Ali Lekolela Montet v Rigogo Chonjo Farmers Co. Ltd (Environment & Land Case 102 of 2013) [2020] KEELC 2131 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a landowner can evict a long-standing neighbour-encroacher, holding continuing trespass restarts limitation daily and prior boundary suits don't block eviction claims.
What this practically means
#Executive summary
#Key legal issues
#Limitation - whether the trespass claim is time-barred under Sections 4(2) and 7 of the Limitation of Actions Act
The claim is not time-barred under either section; time runs afresh daily for continuing trespass, and under Section 7 time could only run from 21st March 2012 when prior litigation ended, the suit having been filed on 31st January 2013
The parties agreed the claim is founded on trespass. The defendant remained in possession at hearing, so the trespass was continuous, creating fresh causes of action daily per Isaack Ben Mulwa v Jonathan Mutunga Mweke. On adverse possession, the parties had been litigating over possession until 21st March 2012, so possession was not quiet and the 12-year period under Section 7 had not run when the suit was filed.
Whether the claim is a boundary dispute precluded by Section 18(2) of the Land Registration Act
The claim is not a boundary dispute; the plaintiff's boundary is fixed under Section 19(3) by reference to survey plan 114686, and the issue is the plaintiff's entitlement to the full benefit of his delineated property through eviction
The plaintiff is the registered proprietor with a certificate of title issued on 23rd October 1987 delineating the land on survey plan 114686, so the boundary is fixed by virtue of Section 19(3) of the Land Registration Act. Counsel for the defendant conceded the boundary is fixed. The claim is for eviction from land already delineated, not for determination of a boundary, so the court can entertain it.
Whether the suit is res judicata given the prior tribunal and High Court decisions
Res judicata does not apply because the claim for eviction was neither raised nor determined in the previous proceedings, which concerned the boundary/encroachment question
Applying Section 7 of the Civil Procedure Act, res judicata requires the matter directly and substantially in issue to have been heard and finally decided in a former suit between the same parties. The 2004 CMCC ruling was a dismissal for lack of jurisdiction; the tribunal decision and the High Court appeal determined encroachment but neither considered nor ordered eviction. The present claim for eviction is therefore a new cause of action.
Whether the reliefs of eviction, injunction and mesne profits are available
Eviction and permanent injunction are granted; mesne profits awarded at KShs 60,000 per year from 2nd March 2007 until vacant possession is delivered
There was already a finding, affirmed on appeal to the High Court, that the defendant encroached on the plaintiff's land. The surveyor Werugia put the encroachment at 6.33 hectares. The extent issue can be resolved simply by evicting the defendant from the land as delineated on survey plan 114686. For mesne profits, the court applied Mistry Valji v Janendra Raichand, adopting reasonable rent as the measure, adjusting for the semi-arid nature of the land.
Legal principles established
#- Continuing trespass gives rise to fresh causes of action each day, so limitation does not bar a claim while the trespass continues
- Where land boundaries are fixed by reference to a verified survey plan, a dispute over eviction of an encroacher is not a boundary dispute within Section 18(2) of the Land Registration Act
- Res judicata does not apply where the claim and relief now sought (eviction) were neither raised nor determined in the previous suits
Court orders
#- 1.The defendant and its agents to vacate LR. No. 10984/2 as delineated on land survey plan number 114686 within 60 days from the date of delivery of the judgment; in default, the defendant and its agents to be evicted from the said property
- 2.Mesne profits of KShs 60,000 per year from 2nd March 2007 until vacant possession is delivered to the plaintiff
- 3.A permanent injunction restraining the defendant, its agents and/or servants from trespassing, remaining on, interfering with or dealing with L.R. 10984/2 as delineated on land survey plan number 114686 in any manner whatsoever
- 4.The plaintiff to have costs of the suit
- Jurisdiction invoked
- Original civil jurisdiction over the land claim (Environment and Land Court); no specific constitutional or statutory provision invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali Lekolela Montet v Rigogo Chonjo Farmers Co. Ltd (Environment & Land Case 102 of 2013) [2020] KEELC 2131 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2131/eng@2020-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.