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ELCPartially Allowed· [2021] KEELC 332 (KLR)

Jacob Ernest Ambala Odondi v Violet Shikuku [2021] KEELC 332 (KLR)

Environment and Land Court
9 December 2021
AOA. Omollo
1,542 words in judgment
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The bottom line

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A Kenyan court ordered a land occupier to demolish structures encroaching on a registered owner's plot within 90 days and pay damages.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of South Teso/Angoromo/1459 since 1984, sued the defendant for trespass, alleging that on returning to Kenya in 2012 he found she had encroached on part of the parcel, claiming to have bought it from third parties without proprietary rights. After a boundary dispute hearing in March 2013, the district land registrar found the defendant occupying more land than her title, but declined jurisdiction, directing the parties to court. The suit proceeded undefended; the defendant neither filed a defence nor appeared. The plaintiff testified alone and relied on documents including the registrar's report and a surveyor's report showing the defendant occupied 0.58Ha against a registered 0.40Ha, an excess of 0.18Ha (approximately ½ acre). The court found the plaintiff's title unchallenged under Section 26 of the Land Registration Act and, relying on the undisputed registrar and surveyor reports, held that the plaintiff proved trespass on a balance of probabilities. It granted a permanent injunction and a mandatory injunction requiring the defendant to demolish the structures within 90 days, with execution by the plaintiff at her cost in default, and police security during execution. The court awarded Kshs.50,000/= general damages for trespass but declined mesne profits, holding that only one of mesne profits or trespass damages can be granted. Costs were awarded to the plaintiff. Judgment delivered at Busia on 9th December 2021 by A. Omollo, J.

Key legal issues

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01

Trespass by encroachment on registered land

Holding

The plaintiff, as registered proprietor, proved on a balance of probabilities that the defendant encroached on 0.18Ha (approximately ½ acre) of his land

Reasoning

The plaintiff's title was unchallenged under Section 26 of the Land Registration Act. The district land registrar's boundary dispute report and the district surveyor's report, both undisputed, found the defendant occupying 0.58Ha against her registered 0.40Ha. These corroborated the plaintiff's claim of trespass.

02

Mesne profits versus damages for trespass

Holding

The prayer for mesne profits was declined because the court had already granted general damages for trespass

Reasoning

Mesne profits must be pleaded and proved; where a party claims both mesne profits and damages for trespass the court can only grant one. Having awarded general damages for trespass, the court declined mesne profits, following Maina Kabuchwa v Gachuma Gacheru (2018) eKLR.

p. 2

Legal principles established

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  • Where a party claims for both mesne profits and damages for trespass, the court can only grant one

Court orders

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  1. 1.Permanent injunction restraining the defendant from entering upon, remaining on, occupying or interfering with the plaintiff's access, use and quiet possession of the suit property
  2. 2.Mandatory injunction directing the defendant to remove and demolish all dwelling structures erected on part of the suit property within 90 days of service of the decree
  3. 3.In default of compliance, the offending structures to be removed by the plaintiff at the defendant's cost and expense
  4. 4.The Officer Commanding Busia Police Station to provide security during execution
  5. 5.General damages for trespass of Kshs.50,000/= payable by the defendant
  6. 6.Plaintiff's prayer for mesne profits declined
  7. 7.Costs of the suit awarded to the plaintiff

Authorities

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Legislation

  • Land Registration ActSection 26

Cases cited (1)

  • Maina Kabuchwa -vs- Gachuma Gacheru (2018) eKLR
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction under the Land Registration Act (referral of boundary dispute by the County Land Registrar to the court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jacob Ernest Ambala Odondi v Violet Shikuku [2021] KEELC 332 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/332/eng@2021-12-09

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