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ELCPartially AllowedELC Case No. 604 of 2019· [2020] KEELC 3544 (KLR)

John B. Viketo Marango v Dinah M. Wawire & 2 others [2020] KEELC 3544 (KLR)

Environment and Land Court
20 February 2020
1,198 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A registered title deed won the landowner an injunction against trespassers in Kakamega, but his Kshs. 492,000 damages claim failed for lack of proof.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Bunyala/Namirama/335, sued the defendants, alleging they had since 2009 trespassed on approximately one acre of his land and grown crops thereon. He sought a mandatory injunction and mesne profits of Kshs. 492,000, plus costs. The defendants denied trespass and suggested the boundary be determined by the District Lands Office. The court noted a prior Navakholo Land Disputes Tribunal case (No. 2 of 2009) against the defendants' deceased husband and father, Asman/Aswani Hamisi, whose decision had been adopted as Kakamega CMCC Award No. 13 of 2010 and which had recommended a boundary determination in the plaintiff's favour. Applying sections 24(a) and 26(1) of the Land Registration Act, and the Elijah Makeri Nyangw'ra decision on the indefeasibility of title, the court held the plaintiff's title prima facie absolute. The Land Registrar, Surveyor and Agricultural Officer testified; the surveyor's report confirmed trespass by the deceased Aswani Hamisi, and the sugarcane on the disputed land was valued at Kshs. 492,000. The court found trespass established on a balance of probabilities and granted a mandatory injunction restraining the defendants from interfering with the plaintiff's parcel. However, mesne profits were refused: the defendants denied using the land, and it was not established that they were administrators of the deceased's estate or benefited from the crops. Each party was ordered to bear its own costs. Judgment delivered at Kakamega on 20th February 2020 by N.A. Matheka, J.

Key legal issues

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01

Trespass on registered land

Holding

Trespass established on a balance of probabilities against the deceased Aswani Hamisi, justifying a mandatory injunction

Reasoning

The plaintiff produced his title deed and search certificate proving registration. The Land Registrar and Surveyor gave evidence and produced a surveyor's report confirming encroachment onto the plaintiff's parcel. On this evidence the court found trespass proved on a balance of probabilities and granted a mandatory injunction restraining the defendants from interfering with the land.

p. 2
02

Indefeasibility of title

Holding

The plaintiff's title is prima facie absolute and indefeasible under sections 24(a) and 26(1) of the Land Registration Act

Reasoning

The court applied sections 24(a) and 26(1) of the Land Registration Act, as explained in Elijah Makeri Nyangw'ra, holding that title can be challenged only on proven fraud or misrepresentation to which the proprietor is party, or where acquired illegally, unprocedurally or through a corrupt scheme. No such challenge was made here.

p. 1
03

Mesne profits

Holding

Mesne profits of Kshs. 492,000 not awarded because liability of the defendants was not proved

Reasoning

Although trespass was proved, the court found no proof that the defendants were administrators of the deceased trespasser's estate or that they benefited from the sugarcane grown on the land. The defendants denied using the land, and that evidence was not rebutted, so the mesne profits claim failed.

p. 2

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership, and a certificate of title is prima facie evidence of absolute and indefeasible ownership challengeable only on fraud/misrepresentation or illegal, unprocedural or corrupt acquisition

Court orders

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  1. 1.A mandatory injunction restraining the defendants, in person or through children, relatives, workers, tenants or any other person acting under their instructions, from trespassing, tilling, constructing or in any other manner interfering with land parcel No. Bunyala/Namirama/335
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (not expressly cited 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, "John B. Viketo Marango v Dinah M. Wawire & 2 others [2020] KEELC 3544 (KLR)", Case Analysis (2020). ELC Case No. 604 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3544/eng@2020-02-20

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