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ELCPartially AllowedE.L.C. Case No. 148 of 2017· [2020] KEELC 2050 (KLR)

Tana and Athi Rivers Development Authority v Joseph Muli Mukuluta & 26 others [2020] KEELC 2050 (KLR)

Environment and Land Court
12 March 2020
5,285 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court ordered 27 Masinga Dam squatters evicted, ruling long occupation is no defence to trespass on acquired public land.

What this practically means

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Executive summary

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The Tana and Athi Rivers Development Authority sued 27 defendants for trespass and encroachment on L.R. Nos. 28670, 28671 and 12621, the buffer zone of Masinga Dam, seeking declarations of illegality and constitutional violation (Articles 42 and 69(2)), eviction, a permanent injunction, general damages and costs. The Defendants denied ownership, trespass and environmental harm, claiming decades-long occupation predating the dam's 1980 construction, alleged non-compensation, and the Plaintiff's failure to delineate the buffer zone. The court framed seven issues. It held it had jurisdiction despite two parcels lying in Machakos County, since Section 4(3) of the Environment and Land Court Act confers nationwide jurisdiction. It found the Plaintiff was the registered proprietor and that the Defendants had encroached and trespassed; pre-dam occupation ceased upon acquisition and registration, ignorance of boundaries is no defence to trespass, and longevity of occupation and public facilities on the land are not valid defences. However, the Plaintiff adduced no expert evidence of environmental degradation, so the constitutional declarations were declined. The Defendants raised no counterclaim or documented claim for compensation. Trespass being actionable per se, the Plaintiff was entitled to enforcement of its property rights, but given its five-year delay and statutory mandate, only nominal damages of Kshs. 100/- were awarded. The court issued an eviction order with restoration of missing beacons and a 30-day grace period to vacate, a permanent injunction upon vacation, and ordered each party to bear its own costs, considering the Defendants' relocation burden.

Key legal issues

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01

Jurisdiction over land partly in another county

Holding

The court has jurisdiction throughout Kenya notwithstanding that two of the three suit properties fall within Machakos County.

Reasoning

Article 162(2)(b) and Section 4(3) of the Environment and Land Court Act confer nationwide jurisdiction. Requiring the Plaintiff to split the suit across counties where the cause of action arises from the same acts would be cumbersome and expensive. The Defendants also submitted to jurisdiction and fully participated in the trial.

p. 4
02

Ownership of the suit properties

Holding

The Plaintiff proved registered proprietorship of L.R. Nos. 28670, 28671 and 12621 through title documents produced without objection.

Reasoning

The Plaintiff pleaded registered ownership of the three parcels constituting Masinga Dam's buffer zone. Despite denial by all Defendants, the title documents produced at trial were accepted as valid evidence of ownership, and the Defendants produced no documents demonstrating any interest in the suit properties.

p. 4
03

Encroachment and trespass

Holding

The Defendants encroached and trespassed upon the suit properties; neither pre-dam occupation, alleged relocation instructions, nor ignorance of boundaries excuses trespass.

Reasoning

Survey plans and aerial photographs demonstrated the surveyed buffer zone and structures on the ground. Occupation predating the dam ceased when the land was acquired and registered in the Plaintiff's name. Ignorance of boundaries is no defence since trespass does not require awareness.

p. 4
04

Alleged violation of Articles 42 and 69(2) of the Constitution

Holding

The Plaintiff failed to prove environmental degradation or constitutional violation; the constitutional declarations were declined.

Reasoning

Evidence of environmental harm was scanty: no expert or authority report was tendered, no proof of bad farming practices, harmful chemicals, tree felling, or waste mismanagement. Unlicensed water harvesting alone is not proof of degradation, distinguishing this case from Mohamed Ali Baadi.

05

Legitimate defence or claim by the Defendants

Holding

No legitimate defence was demonstrated; the Defendants filed no counterclaim and produced no documents evidencing any interest or declined compensation claims.

Reasoning

The Defendants admitted occupation but lacked a counterclaim, documents of interest, or proof of compensation claims declined without justification. Longevity of occupation, the Plaintiff's non-objection to developments, and the presence of public facilities are not valid defences to the claim.

p. 6
06

Reliefs and damages

Holding

Plaintiff entitled to eviction, injunction and nominal damages of Kshs. 100/- only, since trespass is actionable per se but the Plaintiff delayed about 5 years.

Reasoning

Having proved trespass, the Plaintiff was entitled to property rights enforcement despite failing on the environmental claim. Mesne profits were not particularised. Given the Plaintiff's statutory mandate and five-year delay before suit, only nominal damages were appropriate.

p. 6

Legal principles established

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  • The Environment and Land Court's jurisdiction is not limited by geographical boundaries; it may entertain suits involving land situated in a neighbouring county.
  • Upon acquisition of land for public purposes and registration in a public authority's name, prior interests of occupants cease to exist, and longevity of occupation is no defence to trespass.
  • Trespass to land is actionable per se and does not require proof of specific loss; genuine mistake as to boundaries is no defence.

Court orders

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  1. 1.An eviction order be and is hereby issued against the Defendants, their families, servants and agents from the suit properties, that is, L.R. No. 28670, 28671 and 12621.
  2. 2.The Plaintiff shall restore all missing beacons marking out the boundaries of the suit properties within 30 days and point them out to the Defendants and the Chiefs of the locations adjoining the suit properties.
  3. 3.The Defendants shall have a grace period of 30 days from the date of restoration of the beacons to vacate the suit properties in default of which eviction may ensue.
  4. 4.An order of permanent injunction be and is hereby issued to restrain the Defendants, their families, servants and agents from encroaching or trespassing upon L.R. Nos. 28670, 28671 and 12621 upon eviction or vacation.
  5. 5.The Plaintiff is hereby awarded nominal damages for trespass in the sum of Kshs. 100/- against the Defendants jointly and severally.
  6. 6.The declarations sought in reliefs (a)(b) and (c) of the plaint are hereby declined.
  7. 7.Each party shall bear his own costs of the suit.

Authorities

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Legislation

  • Constitution of KenyaArticle 42
  • Constitution of KenyaArticle 69(2)
  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court Act, 2011Section 4(3)
  • Civil Procedure Act (Cap. 21)Section 27 (proviso)
  • Civil Procedure RulesOrder 2 Rule 12
  • Civil Procedure RulesOrder 15 Rule 2

Cases cited (2)

  • Mohamed Ali Baadi & Others Vs Attorney General & 11 Others
    [2018] eKLR
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya; Section 4(3) of the Environment and Land Court Act, 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, "Tana and Athi Rivers Development Authority v Joseph Muli Mukuluta & 26 others [2020] KEELC 2050 (KLR)", Case Analysis (2020). E.L.C. Case No. 148 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2050/eng@2020-03-12

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