Samson Kungu Guda v John Omollo Kunga [2019] KEELC 4091 (KLR)

The amended plaint followed a court-allowed substitution under Order 1 Rule 10 of the Civil Procedure Rules. Although Order 24 and Section 2 of the Civil Procedure Act govern suits against legal representatives, the defendant was not sued in that capacity but as a trespasser alleged in the plaint. Hence the defendant, who admitted cultivating the land, was properly sued.

The plaintiff produced the title deed, green card, mutation form and land control board consent showing the suit land was subdivided from the original parcel in 1979, he was registered on 19 April 1995 and title issued on 27 January 2004. Sections 24, 25 and 26 of the Land Registration Act confer conclusive proprietorship, and the defendant himself admitted registration in the plaintiff's name. The fraud allegation was unsupported.

The plaintiff testified that the defendant prevented him from accessing the land since 2010 and cultivated maize on it; the defendant admitted planting maize on the land. Trespass is defined as an unjustifiable entry upon land in possession of another, and Section 152A of the Land Act prohibits unlawful occupation of private land. The defendant owns a different parcel, LR No. 1090.

Section 7 of the Civil Procedure Act defines res judicata, which requires an earlier decision, a final judgment on the merits, and the same parties or their privies. Although earlier proceedings existed between the plaintiff and the defendant's deceased father, the similar suit was withdrawn, so no final judgment on the merits was rendered and the doctrine cannot apply.

Having proved ownership and trespass on a balance of probability, the plaintiff is entitled to the equitable and discretionary remedy of a permanent injunction. However, the claim for mesne profits of Kshs. 100,000/= per year was not specifically pleaded and strictly proved as special damages, following Nakuru Industries Ltd v S.S. Mehta and Sons, and was therefore declined.