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ELCPartially AllowedELC Case No. 570 of 2017 (Formerly Milimani ELC No. 1303 of 2013)· [2019] KEELC 3980 (KLR)

Aima Enterprises Limited v Andrew M. Mwonga & 3 others [2019] KEELC 3980 (KLR)

Environment and Land Court
28 March 2019
2,059 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who blocked a neighbour's access road was ordered to demolish the wall, but the neighbour got no damages because they proved no loss.

What this practically means

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Executive summary

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This Environment and Land Court at Kajiado judgment, delivered by Christine Ochieng J on 28 March 2019, determines a counterclaim by the 1st and 2nd Defendants against Aima Enterprises Limited. The Defendants, registered proprietors of Kajiado/Kaputiei North/15744, sued on a counterclaim seeking declarations, a mandatory injunction to remove a wall the Plaintiff erected across their road of access, a permanent injunction, and general and punitive damages. The Plaintiff, though duly served twice, neither filed a reply to the counterclaim nor attended court, and the matter proceeded undefended on the counterclaim. The court framed three issues: whether the Plaintiff should be compelled to open the access road; whether general and punitive damages should be awarded; and costs. Relying on sections 18 and 19 of the Land Registration Act, the court held the District Land Registrar is statutorily mandated to determine boundary disputes, and his report of 30 September 2013 found the Plaintiff had encroached and blocked the access road. The uncontroverted evidence established the road was used by neighbouring purchasers and the Plaintiff's wall infringed the Defendants' rights to enjoy their land. The court applied Homescope Properties Ltd v Gachuki on the distinction between a public road and a road of access. General and punitive damages were declined for lack of evidence of loss. The Plaintiff's suit was dismissed for want of prosecution; a mandatory injunction (wall removal within 90 days), a permanent injunction and costs of the counterclaim were granted to the 1st and 2nd Defendants.

Key legal issues

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01

Whether the Plaintiff should be compelled to open the access road to the 1st and 2nd Defendants' parcels of land

Holding

Yes. The Land Registrar's report of 30th September 2013 found that the Plaintiff encroached on parcel Kajiado/Kaputiei North/27594 and blocked the access road. The Plaintiff, though duly served twice, did not controvert this evidence. A mandatory injunction to remove the wall and a permanent injunction were issued.

Reasoning

The court noted that the District Land Registrar is statutorily mandated under sections 18 and 19 of the Land Registration Act to determine boundary disputes, and his report found the Plaintiff had encroached and blocked the access road. The Plaintiff failed to attend court to controvert the Defendants' evidence despite being served twice. The Defendants hold title, which is prima facie evidence of ownership entitling them to enjoy rights appurtenant, including access. The uncontroverted testimony that neighbours also used the road led the court to find the road of access was protected, and the Plaintiff infringed the Defendants' rights by erecting a wall across it.

p. 2
02

Whether general and punitive damages should be awarded to the 1st and 2nd Defendants

Holding

No. Damages were declined for lack of evidence of loss.

Reasoning

Although the Defendants pleaded that they had suffered general and punitive damages from the blocking of the road of access, their witness did not adduce any evidence of the loss incurred as a result of the Plaintiff's action. Damages must be proved; the court therefore declined to grant either general or punitive damages and confined the relief to the injunctive orders.

p. 3
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Who should bear the costs of the suit

Holding

The 1st and 2nd Defendants were awarded the costs of the counterclaim.

Reasoning

The court applied the principle that costs follow the event. Since the 1st and 2nd Defendants succeeded on their counterclaim and had been inconvenienced by the Plaintiff's actions as well as the suit, costs were awarded to them.

p. 3

Legal principles established

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  • The District Land Registrar is legally mandated to deal with boundary disputes under sections 18 and 19 of the Land Registration Act, and courts should not entertain boundary disputes unless determined under those provisions
  • A registered title is prima facie evidence of ownership and entitles the proprietor to enjoy the land and rights appurtenant thereto
  • There is a distinction between a public road and a road of access under the Public Roads and Roads of Access Act

Court orders

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  1. 1.A mandatory injunction issued against the Plaintiff directing it to remove the stone wall erected across the road of access within 90 days from the date of the judgment, failing which the 1st and 2nd Defendants are at liberty to demolish the said wall
  2. 2.A permanent injunction restraining the Plaintiff from ever blocking in any way the Road of Access whose location and size were determined by the District Land Registrar, Kajiado on 30th September, 2013
  3. 3.The costs of the counterclaim awarded to the 1st and 2nd Defendants
  4. 4.The Plaintiff's suit dismissed for want of prosecution

Authorities

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Legislation

  • Land Registration Actsection 18
  • Land Registration Actsection 19
  • Survey ActCap. 299
  • Public Roads and Roads of Access Actsection 2

Cases cited (1)

  • Homescope Properties Ltd & another v David Gachuki & Pamela Odera Sued as Chairman & Secretary of Karen Ngong View Estate & another
    [2014] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (Land Registration Act, sections 18 and 19)

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, "Aima Enterprises Limited v Andrew M. Mwonga & 3 others [2019] KEELC 3980 (KLR)", Case Analysis (2019). ELC Case No. 570 of 2017 (Formerly Milimani ELC No. 1303 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3980/eng@2019-03-28

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