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ELCPartially AllowedELC Suit No. 648 of 2014· [2020] KEELC 2137 (KLR)

Vitalis Otiego Odida v Martin Chengo [2020] KEELC 2137 (KLR)

Environment and Land Court
11 June 2020
3,447 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, a civil servant, was allocated House No. MG 281 on LR No. 209/20594 in Nairobi South B, with title issued in November 2012. On 17th May 2014 the defendant demolished the concrete perimeter wall between the two properties, claiming encroachment, and later erected structures on the plaintiff's land. The plaintiff sued for a declaration of ownership, an injunction, an order for reconstruction of the wall, a mandatory injunction to remove the structures, and damages for trespass. The defendant filed a defence and counterclaim seeking declarations that the plaintiff's deed plan No. 344828 was unlawful for overlapping his earlier survey of LR 209/12905 and that the deed plan and title be recalled and cancelled. Both sides led surveyor evidence. The court preferred the report of Wilson Ojuju, who surveyed on behalf of the Director of Surveys pursuant to a court order, finding that the defendant's survey report had been tampered with, that the wall was not picked in the defendant's survey, and that dimensions should be harmonised with the part development plan. The court found the concrete wall was the boundary, that the demolition was unjustified and constituted trespass. The plaintiff's case was proved on a balance of probabilities; the counterclaim failed. The court issued a declaration of ownership, an injunction, ordered reconstruction of the wall and removal of the structures, and awarded general damages of Kshs. 200,000, declining aggravated damages for want of proof, with costs and interest to the plaintiff.

Key legal issues

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01

Whether the demolition of the boundary wall on 17th May 2014 was justified

Holding

The demolition was not justified because the concrete wall formed the boundary between the two properties as per approved survey plans and the report of the Director of Surveys

Reasoning

The court accepted the survey report of Wilson Ojuju, who acted for the Director of Surveys, finding that the boundary wall was not picked in the defendant's survey, that the surveyor's report appeared tampered with, and that dimensions in FR 254/101 differed from the part development plan. Only the defendant's surveyor contradicted these findings. The defendant failed to avail the initial surveyor B M Okumu. The wall had been accepted by occupants of both plots as the boundary.

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02

Whether the plaintiff is entitled to the prayers sought in the plaint

Holding

The plaintiff proved his case on a balance of probabilities and was granted a declaration of ownership, an injunction, an order for reconstruction of the wall and removal of structures, and general damages of Kshs. 200,000, but aggravated damages were refused

Reasoning

Registration of the plaintiff as proprietor was not in dispute; the defendant admitted the demolition. Damages for trespass were assessed at Kshs. 200,000, less than the Kshs. 500,000 proposed, as adequate compensation. Aggravated damages were declined for lack of proof. The defendant's counterclaim seeking cancellation of the plaintiff's deed plan failed.

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Legal principles established

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  • The Director of Surveys is the custodian of all public records relating to a survey and any survey or resurvey is carried out under and in accordance with the Director of Surveys
  • A party who disputes a boundary must resort to lawful processes of resurvey rather than self-help demolition
  • In trespass to land, damages are computed on the basis of restitution of the land, including the cost of restoration

Court orders

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  1. 1.Declaration that the plaintiff is and continues to be the registered proprietor of House No. MG 281 on LR No. 209/20594, Nairobi South B, bearing Grant Number IR 141800, and entitled to possession
  2. 2.Permanent injunction restraining the defendant, his servants and agents from trespassing on, alienating, constructing or interfering with the plaintiff's quiet possession of the suit property
  3. 3.Order directing the defendant to reconstruct the demolished boundary wall and to remove structures and foundations erected on the plaintiff's property, restoring beacons and boundary marks to original condition
  4. 4.General damages for trespass of Kshs. 200,000
  5. 5.Costs of the suit and interest

Authorities

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Legislation

  • Registration of Title ActCap 281
  • Survey ActSection 30, Cap 229

Cases cited (5)

  • Nakuru Industries Limited vs S S Mehta & Sons
    [2016] eKLR
  • Park Towers Ltd vs John Muthamo Njika & 7 Others
    [2014] eKLR
  • Abdulhamed Ebrahim Ahmed vs Municipal Council of Mombasa
    [2004] eKLR
  • William Kabogo Gitau vs George Thuo & 2 Others
    [2010] 1 KLR 526
  • Moses Kiriiri Muthiru vs Kimathi Muthiru & 2 others
    [2018] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act)

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, "Vitalis Otiego Odida v Martin Chengo [2020] KEELC 2137 (KLR)", Case Analysis (2020). ELC Suit No. 648 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2137/eng@2020-06-11

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