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ELCPartially AllowedPlaint dated 14th November 2016 (Baringo/Sergonjun/522 suit), Environment and Land Court at Eldoret· [2020] KEELC 774 (KLR)

Kipyego Cheletewo v County Government of Baringo & 3 others [2020] KEELC 774 (KLR)

Environment and Land Court
4 November 2020
2,357 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan county government was ordered to pay Kshs.1.1 million for entering private land during road works without 30 days' written notice.

What this practically means

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Executive summary

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The Plaintiff, a beneficial joint owner of parcel Baringo/Sergonjun/522, sued the 1st to 4th Defendants for removing about 400 metres of his fence, trees and crops during construction of the Kasiryo-Karumon-Kapkomon-Ossen-Tiloi-Keturwo road in October 2016, seeking injunctions, restoration, general, punitive and special damages. The Defendants asserted the structures had encroached onto the public road reserve and that notices had been issued. The court framed four issues: whether the claim was trespass or a boundary dispute; jurisdiction; entitlement to relief; and costs. Relying on the County Surveyor's report finding a 160-metre encroachment into the Plaintiff's land covering about 400 m2, and confirmed by the Ward administrator's own testimony that the tractor destroyed fence sections not on the road reserve, the court held the suit was one in trespass, not a boundary dispute, and that it had jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act. Although public participation was extensive, entry without prior written notice contrary to Section 49(1) of the Kenya Roads Act and Section 152(c) of the Land Act amounted to trespass. The valuation report by an unlicensed valuer was inadmissible under Section 21 of the Valuers Act, defeating special damages of Kshs.362,500 and the valuation fee; the surveyor's fee was unsupported. The court awarded Kshs.1,000,000 general damages and Kshs.100,000 exemplary damages, refused permanent injunctions for lack of evidence of future trespass, declined loss of user as unpleaded, and awarded the Plaintiff costs under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the dispute was a boundary dispute ousting the court's jurisdiction

Holding

It was a trespass claim, not a boundary dispute under Sections 18 and 19 of the Land Registration Act; the court had jurisdiction.

Reasoning

The pleadings showed the claim was over damage to the fence and trees on the Plaintiff's land, and neither party claimed the other's land. PW3's survey evidence and DW1's confirmation showed the 2nd Defendant's tractor brought down fence sections not on the road reserve. The claim therefore fell under Article 162(2)(b) and Section 13 of the Environment and Land Court Act.

p. 2
02

Whether the Defendants' entry and destruction amounted to trespass notwithstanding public participation and notices

Holding

Yes - entry onto the Plaintiff's land without prior written notice and permission amounted to trespass.

Reasoning

Although the County engaged the public and the Plaintiff eventually removed trees from the road reserve, the tractor entered his land, felling fence sections and vegetation, without written notice. Defendants should have offered to remove deposited materials and compensate. Public participation as per Gakuru was real but did not excuse the trespass.

p. 3
03

Whether special damages of Kshs.362,500 were payable

Holding

No - the valuation report was inadmissible for contravening Section 21 of the Valuers Act, and the surveyor's fees were unsupported.

Reasoning

PW2 was not a licensed valuer, so the report was inadmissible under Section 21. With no other evidence of crop value, special damages failed; the Kshs.15,000 valuation fee was unrecoverable and the Kshs.10,000 surveyor's fee lacked documentary support.

p. 3
04

General and exemplary damages

Holding

General damages of Kshs.1,000,000 and exemplary damages of Kshs.100,000 awarded.

Reasoning

Guided by superior court decisions cited by Plaintiff's counsel, and given the particularized 160m encroachment affecting a 400m stretch, the court found Kshs.1,000,000 general and Kshs.100,000 exemplary damages fair and just.

p. 3

Legal principles established

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  • Entry onto private land without prior written notice, even in the course of road works on a road reserve, amounts to trespass.
  • Persons with materials on a road reserve must be served with prior written notice - 30 days under Section 49(1) of the Kenya Roads Act - before removal or eviction.
  • A valuation report prepared by an unlicensed valuer contravening Section 21 of the Valuers Act is inadmissible and cannot support special damages.

Court orders

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  1. 1.The Defendants pay the Plaintiff Kshs.1,000,000 as general damages for trespass
  2. 2.The Defendants pay the Plaintiff Kshs.100,000 as exemplary damages
  3. 3.The Defendants pay the Plaintiff costs of the suit

Authorities

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Legislation

  • Land Registration ActSections 18 and 19
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSection 13
  • Kenya Roads ActSection 49(1)
  • Land ActSection 152(c)
  • Valuers ActSection 21
  • Civil Procedure ActSection 27

Cases cited (3)

  • Robert N. Gakuru & Others Vs Governor, Kiambu County & 3 Others
    [2014] eKLR
  • Mike Maina Kamau Vs Attorney General
    [2017] eKLR
  • Thomas Kimagut Sambu Vs National Land Commission & 2 Others
    [2018] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution, 2010 and Section 13 of the Environment and Land Court Act No. 19 of 2011

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, "Kipyego Cheletewo v County Government of Baringo & 3 others [2020] KEELC 774 (KLR)", Case Analysis (2020). Plaint dated 14th November 2016 (Baringo/Sergonjun/522 suit), Environment and Land Court at Eldoret. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/774/eng@2020-11-04

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