Damian Mitimbo Aroka v Hellen Adhiambo Ngore & 3 others [2020] KEELC 746 (KLR)
The bottom line
#The court confirmed a registered title holder's right to evict trespassers, award damages, and recover legal costs.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is not res judicata; the earlier Ndhiwa and Homa-Bay proceedings were withdrawn or lost jurisdiction, so the ingredients of the doctrine were not met.
The court applied Section 7 of the Civil Procedure Act and Black's Law Dictionary elements of res judicata: an earlier decision, a final judgment on the merits, and the same parties or their privies. The Ndhiwa suit was withdrawn and the Homa-Bay court ceased to possess jurisdiction over the Tribunal award. Since neither earlier proceeding produced a final determination on the merits between the same parties, the doctrine was not satisfied and the suit could not be struck out or dismissed.
Proprietorship of the suit land
The plaintiff is the registered proprietor of LR No. Kanyamwa/Kayambo/Kwamo/437 with effect from 29th July 2008, holding a title deed issued on 8th June 2011.
The plaintiff's title deed and the Land Registrar's report of 24th November 2016 confirmed registration in his name pursuant to the repealed Registered Land Act. Even the defendants' own expert report (Homa Bay County Land Registrar's report dated 3rd October 2013) confirmed that parcel 437 belongs to the plaintiff while parcel 436 belongs to Ogutu Agot. DW2 conceded the land belongs to the plaintiff and DW1 denied living on it.
Trespass by the defendants
The 1st, 2nd, 3rd and 4th defendants trespassed onto the suit land, proved to the requisite standard under Sections 107, 108, 109 and 112 of the Evidence Act.
Relying on the definition of trespass in Clerk and Lindsell on Torts and the documentary exhibits (PExhibits 5, 6, 9 and DExhibit 3), the court found the plaintiff had proved trespass. The 1st and 4th defendants merely denied the claim and failed to thwart it, while the 2nd and 3rd defendants never filed a defence and did not challenge the claim. General damages of Kshs 100,000/= were awarded as appropriate and reasonable.
Entitlement to the reliefs sought
The plaintiff proved his case on a balance of probabilities and was granted the declaratory, eviction, injunctive and damages reliefs sought in the plaint.
The court invoked Article 40(1) on the protection of the right to property and the settled injunctive-relief jurisprudence (including Giella v Cassman Brown and Shimmers Plaza), together with Section 13(7)(a) and (c) of the Environment and Land Court Act, to grant the declaration, eviction, permanent injunction, general damages, interest and costs. The defendants were given 45 days to vacate, failing which an eviction order would issue.
Legal principles established
#- Res judicata is not established where earlier suits were withdrawn or the court ceased to have jurisdiction; all ingredients of the doctrine must be attained.
- Trespass is an unjustifiable entry by one person upon land in the possession of another, and it is proved on a balance of probabilities.
- A registered proprietor's title evidenced by a title deed issued under the registration statutes entitles him to protection of the right to property under Article 40(1).
Court orders
#- 1.Declaration that the plaintiff is the registered and/or lawful owner of LR No. Kanyamwa/Kayambo/Kwamo/437
- 2.Order of eviction against the defendants, their agents and/or servants from the suit land
- 3.Permanent injunction restraining the defendants from entering upon, re-entering, trespassing onto, building on, cultivating or otherwise dealing with the suit property
- 4.General damages for trespass assessed at Kenya Shillings One Hundred Thousand (Kshs 100,000/=) against the defendants jointly and severally
- 5.Interest on general damages at court rates
- 6.Costs of the suit to be borne by the defendants
- 7.Defendants to vacate the suit land within forty-five (45) days, failing which an eviction order to issue
- Jurisdiction invoked
- Articles 7(3)(b), 159(2)(b) and (d) of the Constitution of Kenya, 2010, Section 3A of the Civil Procedure Act and Sections 3 and 19 of the Environment and Land Court Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Damian Mitimbo Aroka v Hellen Adhiambo Ngore & 3 others [2020] KEELC 746 (KLR)", Case Analysis (2020). Migori ELC Case (plaint dated 3rd June 2015, filed 9th June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/746/eng@2020-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.