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ELCPartially AllowedKajiado ELC Case No. 636 of 2017 (Formerly Machakos ELC 189 of 2015)· [2020] KEELC 3835 (KLR)

Rachael Mutabari (Suing for and on behalf of Humility Ministries) & 9 others v Kasaine Ole Koruta & 13 others [2020] KEELC 3835 (KLR)

Environment and Land Court
3 February 2020
2,998 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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In a Kenyan land dispute, a registered title beat letters of allotment, but the winning landowner still lost his mesne profits claim for lack of proof.

What this practically means

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Executive summary

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Two consolidated land disputes were determined together: the Plaintiffs in Kajiado ELC No. 636 of 2017 (formerly Machakos ELC No. 189 of 2015) sought a permanent injunction against the Defendant, a declaration that they are the sole legal owners of plots at Noonkopir Trading Centre, and an order that he cease inducing them into illegal arrangements; the Defendant, as plaintiff in Machakos ELC No. 207 of 2015, sought a permanent injunction against the Plaintiffs, removal of structures, mesne profits at Kshs. 20,000 per acre per month, costs and interest. Each side alleged trespass. The Plaintiffs relied on letters of allotment, sale agreements and rate receipts, claiming purchases between 2001 and 2003; the Defendant produced a Certificate of Title for parcel Kajiado/Noonkopir Township/214 acquired from Moses Yiare. By consent, the dispute was referred to the County Surveyor, whose expert evidence established that it was the Plaintiffs who had encroached on parcel 214, with structures belonging to the 6th and 8th Plaintiffs, that developments had covered the 15-metre access road, and that the Defendant's perimeter wall was also not aligned to the surveyed boundaries. The court held that the Defendant's Certificate of Lease, being prima facie proof of proprietorship under Section 26 of the Land Registration Act and unimpeached by any evidence of fraud, superseded the Plaintiffs' letters of allotment, which are not title. The Plaintiffs failed to discharge their burden of proving trespass and their suit was dismissed. The Defendant was granted a permanent injunction and removal of the Plaintiffs' structures within 90 days, but his mesne profits claim failed for want of specific proof, mesne profits being akin to special damages. Costs with interest were awarded to the Defendant.

Key legal issues

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01

Whether the Plaintiffs proved trespass by the Defendant and entitlement to a permanent injunction and declaration of ownership

Holding

The Plaintiffs' claim was dismissed; the expert evidence of the County Surveyor showed it was the Plaintiffs who had encroached on parcel No. 214, and they failed to discharge the burden of proof

Reasoning

The County Surveyor, an expert witness, measured the parcels and found six Plaintiffs' structures on the Defendant's parcel and developments on the 15-metre access road, with the survey plan and ground developments not in tandem. The Defendant held a Certificate of Title while the Plaintiffs held only letters of allotment. On a balance of probability, the Plaintiffs failed to prove the Defendant was a trespasser under the Trespass Act.

p. 5
02

Whether the Defendant, as registered proprietor, is entitled to injunctive relief and removal of the Plaintiffs' structures

Holding

Yes; the Defendant's Certificate of Lease supersedes the Plaintiffs' letters of allotment and he is entitled to injunctive relief against the Plaintiffs who encroached on his land

Reasoning

Section 26 of the Land Registration Act makes the Certificate of Lease prima facie proof of proprietorship, and there was no evidence of fraud or illegality in its acquisition. Applying the Giella v Cassman Brown principles and the County Surveyor's findings of encroachment, the court found the Defendant entitled to an injunction and an order compelling removal of the structures within the boundaries per the County plans.

p. 6
03

Whether the Defendant was entitled to mesne profits

Holding

No; mesne profits, akin to special damages, must be specifically proved and the Defendant did not prove the losses he claimed

Reasoning

The Defendant admitted he had not developed the land apart from a perimeter wall and had been away, while the Plaintiffs developed their parcels up to 2014 without interference. The County Surveyor also confirmed the Defendant's wall was not aligned to the map. The Defendant therefore failed to prove the mesne profits he sought.

p. 6

Legal principles established

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  • A Certificate of Lease/Title is prima facie proof of proprietorship unless fraud, illegality or unprocedural acquisition is proved
  • A letter of allotment does not constitute title to land and is superseded by a registered title
  • Mesne profits, being akin to special damages, must be specifically proved
  • Any unauthorised entry, whether present or continuous, constitutes trespass under the Trespass Act Cap 403

Court orders

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  1. 1.A permanent injunction restraining the Plaintiffs jointly and severally from further trespassing onto the Defendant's parcel of land
  2. 2.The Plaintiffs to remove all items of trespass and or nuisance on the Defendant's parcel, including vegetation, fences, walls, structures, excavations and or mountings, within Ninety (90) days, jointly and or severally, at their own cost
  3. 3.Costs awarded to the Defendant and to be borne by the Plaintiffs
  4. 4.Interest on costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes); the judgment does not expressly cite the provision

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, "Rachael Mutabari (Suing for and on behalf of Humility Ministries) & 9 others v Kasaine Ole Koruta & 13 others [2020] KEELC 3835 (KLR)", Case Analysis (2020). Kajiado ELC Case No. 636 of 2017 (Formerly Machakos ELC 189 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3835/eng@2020-02-03

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