Vitalis Otiego Odida v Martin Chengo [2020] KEELC 2137 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the demolition of the boundary wall on 17th May 2014 was justified
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
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.
Whether the plaintiff is entitled to the prayers sought in the plaint
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
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.
Legal principles established
#- 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
#- 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.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.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.General damages for trespass of Kshs. 200,000
- 5.Costs of the suit and interest
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.