Thomas Mwita Wangubo v County Government of Migori [2020] KEELC 3761 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff has proprietary rights over the suit property
The plaintiff proved he was the holder and allottee of the suit property, allocated by the defunct County Council of South Nyanza, and the acquisition was legal, formal and free from encumbrances
PW1 produced a plot card and receipts showing payment of plot rent from 1996 to 2016. The plot card (PExhibit 1) showed him as holder of the plot and that it had never been withdrawn from him under the law. The court applied the Court of Appeal decision in Munyu Maina v Hiram Githiha Maina on lawful acquisition of property rights.
Whether the defendant trespassed onto the suit property and demolished the plaintiff's structures
The defendant trespassed and demolished the structures; the defence that the structures stood on a road reserve was unsupported by any evidence as the defendant adduced none
PW1, PW2 (a tenant and neighbour who witnessed the demolition) and PW3 (who assessed the damage) all testified that the defendant's tractor demolished the structures, corroborated by photographs (PExhibit 4). The defendant, despite filing a statement of defence and list of documents, tendered no evidence after being given latitude on two occasions, so the unchallenged evidence stood firm on a balance of probabilities.
Whether the plaintiff was entitled to the reliefs sought
The plaintiff was granted declarations, special damages of Kshs. 300,000/-, a permanent injunction and general damages of Kshs. 75,000/- for trespass, but mesne profits were refused for want of specific pleading
Special damages of Kshs. 300,000/- were specifically pleaded and proved by the valuation report (PExhibit 5) in line with Koinange v Koinange. A permanent injunction was justified since the defendant had trespassed, per Nguruman Ltd v Jan Bonde Nielsen and section 13(7)(a) of the Environment and Land Court Act. General damages for trespass, being actionable per se, were assessed at Kshs. 75,000/- following Eric Adome v Pauline Kasumba Osebe.
Legal principles established
#- Issues for determination in a suit generally flow from the pleadings or the issues as framed by the parties
- The tort of trespass is any unjustified intrusion of one person upon land in the possession of another and is actionable per se
- Mesne profits are a form of special damages which must be specifically pleaded and proved
Court orders
#- 1.Declaration that the plaintiff is the lawful proprietor and/or allottee of plot number 55 'A' Nyamaharaga Market, Isebania
- 2.Declaration that the defendant's demolition of portions of the premises on the suit plot was unlawful and illegal
- 3.Payment of Kshs. 300,000/- as special damages for the unlawfully demolished portion of the suit plot
- 4.Permanent injunction restraining the defendant, her agents, servants and anyone claiming under her from further demolishing or interfering with the plaintiff's rights over plot 55 'A' Nyamaharaga Market, Isebania
- 5.General damages for trespass assessed at Kshs. 75,000/-
- 6.Costs of the suit to be borne by the defendant
- Jurisdiction invoked
- Environment and Land Court Act, section 13 (jurisdiction over land and environment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Mwita Wangubo v County Government of Migori [2020] KEELC 3761 (KLR)", Case Analysis (2020). Migori ELC Suit (plaint dated 7th December 2015, filed 16th December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3761/eng@2020-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.