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ELCPartially AllowedNot stated in judgment· [2020] KEELC 2131 (KLR)

Ali Lekolela Montet v Rigogo Chonjo Farmers Co. Ltd (Environment & Land Case 102 of 2013) [2020] KEELC 2131 (KLR)

Environment and Land Court
4 June 2020
3,294 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, registered owner of L.R. No. 10984/2 (60.33 hectares) in Nakuru County, sued the defendant, owner of the neighbouring L.R. No. 10984/R, seeking eviction from an encroached portion, mesne profits, a perpetual injunction and costs. Prior litigation before the Bahati Land Dispute Tribunal found encroachment; the Provincial Appeals Committee overturned that finding, but the High Court in Nakuru H.C.A. No. 167 of 2008 reinstated the tribunal's decision on 21st March 2012. The defendant denied encroachment and argued the suit was time-barred under Sections 4(2) and 7 of the Limitation of Actions Act, was a boundary dispute for the Land Registrar under Sections 18 and 19 of the Land Registration Act, and was res judicata in light of the prior proceedings. The court framed four issues: limitation, boundary dispute, res judicata and availability of reliefs. It held the claim was not time-barred since continuing trespass creates fresh causes of action daily, and possession had been under litigation until March 2012. The boundary was fixed by reference to survey plan 114686, so this was an eviction claim, not a boundary dispute. Res judicata did not apply because eviction was never raised or determined in the prior suits. Judgment was entered for the plaintiff: eviction within 60 days (with default eviction), mesne profits of KShs 60,000 per year from 2nd March 2007 until vacant possession, a permanent injunction, and costs of the suit to the plaintiff.

Key legal issues

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01

Limitation - whether the trespass claim is time-barred under Sections 4(2) and 7 of the Limitation of Actions Act

Holding

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

Reasoning

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.

p. 2
02

Whether the claim is a boundary dispute precluded by Section 18(2) of the Land Registration Act

Holding

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

Reasoning

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.

p. 3
03

Whether the suit is res judicata given the prior tribunal and High Court decisions

Holding

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

Reasoning

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.

p. 3
04

Whether the reliefs of eviction, injunction and mesne profits are available

Holding

Eviction and permanent injunction are granted; mesne profits awarded at KShs 60,000 per year from 2nd March 2007 until vacant possession is delivered

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.Mesne profits of KShs 60,000 per year from 2nd March 2007 until vacant possession is delivered to the plaintiff
  3. 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. 4.The plaintiff to have costs of the suit

Authorities

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Legislation

  • Limitation of Actions ActSection 4(2)
  • Limitation of Actions ActSection 7
  • Evidence ActSection 107
  • Land Registration ActSections 18, 18(2), 19, 19(3)
  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 2 (definition of mesne profits)

Cases cited (11)

  • Mohamed Mahmood Awadh v Abdulwahab Abdulrahman & 3 others
    [2019] eKLR
  • Isaac Mochabo v Richard Ongeri & another
    [2017] eKLR
  • Telkom Kenya Limited v County Government of Muranga
    [2019] eKLR
  • Stephen Karanja Chege v Rural Electrification Authority
    [2019] eKLR
  • Eliud Njoroge Gachiri v Stephen Kamau Ng'ang'a
    [2018] eKLR
  • Isaack Ben Mulwa v Jonathan Mutunga Mweke
    [2016] eKLR
  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR
  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others
    [2018] eKLR
  • Mistry Valji v Janendra Raichand & 2 others
    [2016] eKLR
  • Invergue Investments v Hacketh
    (1995) 3 All ER 842
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

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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, "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.