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ELCDismissedE.L.C. Case No. 95 of 2014 (Formerly HCCC No. 123 of 2012)· [2019] KEELC 3334 (KLR)

James Mwangi Gatundu v Mastermind Tobacco (K) Limited [2019] KEELC 3334 (KLR)

Environment and Land Court of Kenya
16 May 2019
YAY.M. Angima
2,742 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost a Kshs.12.6 million trespass claim because he could not prove he owned the land, and never demanded the tenant leave.

What this practically means

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Executive summary

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The plaintiff, claiming to be the registered proprietor of title No. Nthawa/Riandu/1029 measuring about 13.85 acres, sued the defendant for permanent injunction, eviction, special damages of Kshs.12,628,000/- for loss of user and destruction of indigenous trees, and general damages, alleging that the defendant unlawfully invaded the land on or about 24th February 1994 and established a tree nursery. The defendant denied the claim, asserting that it leased one acre under a five-year tenancy agreement (2004-2009) with one Alexander Nyaga Mwake who held himself out as owner, and that it vacated upon expiry of the tenancy on 30th June 2009. At trial the plaintiff testified and called an agricultural officer; the defendant called its Area Leaf Growing Manager. The court framed four issues under Order 15 Rule 2 of the Civil Procedure Rules. On the first issue, the copy green card produced showed only four entries, none disclosing the plaintiff's registration, so ownership was not proved. Trespass, which requires proof of proprietary rights, consequently failed. The court further held in obiter that even if ownership had been proved, occupation would have been limited to one acre for five years, and damages for loss of user would still have been refused for failure to mitigate, an unexplained assessment report, and lack of demonstrated financial capacity. The injunction and eviction reliefs failed, eviction being futile as the defendant vacated in 2009. Counsel's submission for Kshs.100 million was rejected as grossly at variance with the pleadings. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Proof of ownership of the suit property

Holding

The Plaintiff did not prove ownership because the copy of the green card produced showed only four entries, none of which showed him as registered proprietor

Reasoning

The court examined the green card in the Plaintiff's list of documents dated 20th July 2017. It contained only entries No.1 to No.4, none indicating the Plaintiff's registration. Although the register might contain further entries, it was the Plaintiff's duty to tender a complete copy of the land register. The first issue was answered in the negative, which was fatal to all the reliefs claimed.

p. 2
02

Whether trespass was proved

Holding

Trespass was not proved because the Plaintiff failed to demonstrate proprietary rights over the suit property

Reasoning

The court held that trespass to land involves unlawful interference with proprietary rights such as ownership or leasehold. Since ownership was not proved, the alleged trespass could not stand. In obiter, the court would have found trespass lasting only five years (2004-2009) over one acre, not ten years over the entire 13.85 acres.

p. 2
03

Entitlement to permanent injunction and eviction orders

Holding

Both reliefs were refused as ownership was not proved and the Defendant had vacated in 2009 and never returned

Reasoning

Injunction failed on ownership grounds and because there was no evidence of any intention by the Defendant to interfere with the land again. Eviction failed because the Defendant vacated on 30th June 2009, making any such order futile. These findings applied across the reliefs sought in the plaint.

p. 3
04

Special damages for loss of user and destruction of trees

Holding

The claim of Kshs.12,628,000/- failed for lack of proof of ownership and trespass, absence of mitigation, an unexplained assessment report, and lack of evidence of financial ability to undertake the banana project

Reasoning

Even if ownership and trespass had been proved, the court gave three further reasons for refusing loss-of-user damages: the Plaintiff took no steps to mitigate loss; the agricultural officer's report gave a net profit figure of Kshs.10,269,000/- without breakdown of costs, sales or tax provisions; and there was no demonstration of the Plaintiff's financial ability to undertake the investment, with no project undertaken nine years after the Defendant vacated.

p. 3
05

Costs of the suit

Holding

Costs were awarded to the successful Defendant pursuant to section 27 of the Civil Procedure Act

Reasoning

The court applied the general rule that costs follow the event, citing Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd [1967] EA 287, and found no good reason to deprive the successful litigant of costs.

p. 3

Legal principles established

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  • The tort of trespass to land requires proof of violation of proprietary rights such as ownership or leasehold
  • A plaintiff claiming special damages must strictly prove the claim, and a court must independently assess the reasonableness of an uncontroverted valuation or assessment report
  • A plaintiff claiming damages for loss of user must take reasonable steps to mitigate his loss, including issuing a demand or notice to vacate
  • Costs follow the event unless the court, for good reason, directs otherwise under section 27 of the Civil Procedure Act

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Costs of the suit awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 15 Rule 2
  • Civil Procedure Act (Cap. 21)Section 27

Cases cited (5)

  • African Highland Produce Ltd Vs John Kisorio
    (2001) eKLR
  • Chief Land Registrar & 4 Others Vs Nathan Tirop Koech & 4 Others
    [2018] eKLR
  • National Land Commission Vs Nathan Tirop Koech & 3 Others
    Civil Appeal No. 58 of 2016
  • National Land Commission Vs The Estate of Sisiwa Arap Malakwen & Another
    [2017] eKLR
  • Hussein Janmohamed & Sons Vs Twentsche Overssas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to title to and occupation of land (suit transferred from the High Court as HCCC No. 123 of 2012)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Mwangi Gatundu v Mastermind Tobacco (K) Limited [2019] KEELC 3334 (KLR)", Case Analysis (2019). E.L.C. Case No. 95 of 2014 (Formerly HCCC No. 123 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3334/eng@2019-05-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.