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ELCPartially AllowedMigori ELC Suit (plaint dated 7th December 2015, filed 16th December 2015)· [2020] KEELC 3761 (KLR)

Thomas Mwita Wangubo v County Government of Migori [2020] KEELC 3761 (KLR)

Environment and Land Court
28 January 2020
2,299 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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This was a first-instance land suit before the Environment and Land Court at Migori in which the plaintiff, Thomas Mwita Wangubo, claimed that plot 55A at Nyamaharage Market, Isebania, had been allocated to him by the defunct County Council of South Nyanza, that he built residential and commercial premises on it, and that on 24th November 2015 the defendant, County Government of Migori, demolished an extensive portion of the premises. He sought declarations of lawful proprietorship and unlawfulness of the demolition, special damages of Kshs. 300,000/-, general damages for trespass/mesne profits, a permanent injunction and costs. The defendant denied the claim, contending that any demolition was carried out by relevant authorities because the structures stood on a road reserve. The defendant did not adduce any evidence, and its case was deemed closed. The court compressed the agreed issues into three: the plaintiff's proprietary rights, trespass, and entitlement to reliefs. Relying on the plot card, rent receipts, oral testimony of the plaintiff and two witnesses, photographs and a valuation report, the court found the plaintiff had proprietary rights and that the defendant's tractor demolished the structures, the road-reserve defence being unsubstantiated. Judgment was entered for the plaintiff on the declarations, special damages of Kshs. 300,000/- and a permanent injunction, with general damages for trespass assessed at Kshs. 75,000/-. Mesne profits were refused for want of specific pleading. The defendant was ordered to bear the costs of the suit.

Key legal issues

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01

Whether the plaintiff has proprietary rights over the suit property

Holding

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

Reasoning

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.

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02

Whether the defendant trespassed onto the suit property and demolished the plaintiff's structures

Holding

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

Reasoning

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.

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03

Whether the plaintiff was entitled to the reliefs sought

Holding

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

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.Declaration that the plaintiff is the lawful proprietor and/or allottee of plot number 55 'A' Nyamaharaga Market, Isebania
  2. 2.Declaration that the defendant's demolition of portions of the premises on the suit plot was unlawful and illegal
  3. 3.Payment of Kshs. 300,000/- as special damages for the unlawfully demolished portion of the suit plot
  4. 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. 5.General damages for trespass assessed at Kshs. 75,000/-
  6. 6.Costs of the suit to be borne by the defendant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 40, 50(1), 159(2)(b)
  • Evidence Act (Cap 80)Sections 107, 108
  • Civil Procedure Act (Cap 21)Section 27; section 2 (definition of mesne profits)
  • Civil Procedure Rules, 2010Order 7 Rule 6; Order 15 Rules 1 and 2
  • Land Registration ActSection 2 (definitions of 'Proprietor' and 'Register')
  • Environment and Land Court ActSection 13(7)(a)

Cases cited (14)

  • Selle v Associated Motor Boat Limited and another
    (1968) EA 123 at 128
  • Veronicah Waithira and 4 others v Kenya National Highway Authority
    (2014) eKLR
  • Ocean View Plaza Limited v Attorney General
    KLR (E&L) 475 at 478
  • Samwel Kipkorir Ngeno and another v Local Authorities Pension Trust (Registered trustees)
  • Tecno Holdings Limited v National Social Security Board of Trustees
    (2018) eKLR
  • Galaxy Paints Limited v Falcon Grounds Limited
    (2000) 2 EA 385
  • Munyu Maina v Hiram Githiha Maina
    (2013) eKLR
  • Zacharia Onsongo Momanyi v Evans Omurwa Onchagwa
    (2014) eKLR
  • Koinange and 3 others v Koinange
    (1986) KLR 23
  • Rioki Estate Company (1970) Ltd v Kinuthia Njoroge
    (1977) KLR 146
  • Nakuru Industries Ltd v S.S. Mehta and Sons
    (2016) eKLR
  • Eric Adome and another v Pauline Kasumba Osebe and another
    (2014) eKLR
  • Nguruman Ltd v Jan Bonde Nielsen and 20 others
    (2014) eKLR
  • James Kanyiita Nderitu and another v Mariosphilotas Ghikas and another
    (2016) eKLR
Jurisdiction invoked
Environment and Land Court Act, section 13 (jurisdiction over land and environment disputes)

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, "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.