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ELCPartially AllowedELC Case No. 24 of 2017· [2019] KEELC 4155 (KLR)

Hassan Mohammed Haji v Mohamed Keynan & another [2019] KEELC 4155 (KLR)

Environment & Land Court
25 March 2019
ECE. C Cherono
2,284 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Hassan Mohammed Haji, sued the Defendants seeking a permanent injunction restraining them from occupying Land Reference No. 28650 in Garissa, vacant possession, general damages for trespass, costs and interest. He relied on an allotment letter dated 19th April 1999, a title deed issued on 18th May 2011, and an official search confirming his registration as proprietor. He testified that the Defendants trespassed on the property around 2012, erecting semi-permanent structures. The Defendants did not attend the hearing despite substituted service by newspaper advertisement; only the 1st Defendant filed a defence containing general denials, and none of the documents listed in their lists were filed. The court framed two issues: validity of the Plaintiff's title and entitlement to the prayers sought. Applying Sections 24, 25 and 26 of the Land Registration Act and the Court of Appeal's decision in Arthi Highway Developers Ltd v West End Butchery Ltd, the court held the Plaintiff's title valid and indefeasible, unchallenged by any allegation of fraud and unrebutted by evidence. On trespass, the court accepted that trespass to land is actionable per se, citing Park Towers Ltd and Duncan Nderitu Ndegwa. However, the Plaintiff offered no evidence of the benefits the Defendants accrued or of any activity on the land, so the court declined the claim of Kshs. 1,000,000/= annually and instead awarded nominal general damages of Kshs. 100,000/= with interest at court rates from the date of judgment. The Defendants were given six months' notice to vacate, failing which an eviction order would issue, and were ordered to bear costs jointly and severally. The suit partially succeeded.

Key legal issues

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01

Validity of the Plaintiff's title to the suit property

Holding

The Plaintiff's title to Land Parcel No. 28650 is valid and indefeasible; it was never challenged on grounds of fraud or misrepresentation, and the Defendants, despite substituted service, adduced no evidence to the contrary.

Reasoning

Sections 24, 25 and 26 of the Land Registration Act vest absolute ownership in the registered proprietor and render title unchallengeable except on fraud or misrepresentation to which the proprietor is a party. The Plaintiff produced an allotment letter dated 19th April 1999, a title deed issued 18th May 2011 and an official search, all unchallenged. No pleadings alleged fraud, and the Defendants chose not to attend or contest the evidence despite sufficient notice.

p. 3
02

Trespass and entitlement to damages

Holding

Trespass was established and is actionable per se; however, in the absence of evidence of the value of the land's use or the Defendants' activity, only nominal general damages of Kshs. 100,000/= were appropriate.

Reasoning

Having found valid title, the court held that the Defendants' continued occupation and construction of semi-permanent structures constituted trespass, actionable per se without proof of damage. The Plaintiff claimed Kshs. 1,000,000/= annually but provided no evidence of the benefits the Defendants accrued, the opportunity cost of deprivation of use, or any activity on the land. Considering the duration of the trespass and the size of the land, the court assessed a nominal award.

p. 4

Legal principles established

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  • A registered proprietor's title is absolute and indefeasible and can only be challenged on grounds of fraud or misrepresentation to which the owner is a party
  • Trespass to land is actionable per se and proof of specific damage is not necessary for an award of damages

Court orders

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  1. 1.The defendant is given six (6) Months' notice to vacate the Plaintiff Land Parcel No. 28650 situate at Garissa, failure of which an eviction Order to Issue
  2. 2.The Defendants to pay the plaintiff nominal general damages for trespass in the sum of Kshs. 100,000/= plus interest at court rates from the date of delivery of this Judgment
  3. 3.The defendant to bear the costs of this suit jointly and severally

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 25
  • Land Registration ActSection 26
  • Evidence ActSection 107
  • Registration of Titles Act (repealed, as referenced in the Arthi Highway Developers case)Section 23(1)
  • Constitution of Kenyageneral reference to guaranteed rights

Cases cited (5)

  • Arthi Highway Developers Limited -Vs- West End Butchery Limited and Others
    Civil Appeal No. 246 of 2013
  • Ephantus Gathua Muiyoro –Vs- Kenya Power Company Limited
    [2016] eKLR
  • Eliud Njoroge Gachiri –Vs- Stephen Kamau Nganga
    [2018] eKLR
  • Park Towers Ltd v. John Mithamo Njika & 7 others
    (2014) eKLR
  • Duncan Nderitu Ndegwa v. KP& LC Limited & Another
    (2013) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (case filed in ELC at Garissa)

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, "Hassan Mohammed Haji v Mohamed Keynan & another [2019] KEELC 4155 (KLR)", Case Analysis (2019). ELC Case No. 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4155/eng@2019-03-25

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