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ELCPartially Allowed· [2021] KEELC 488 (KLR)

Isaac. E. N. Okero & another v Tom Soya Okwatch & another [2021] KEELC 488 (KLR)

Environment and Land Court
7 December 2021
AOAntony Ombwayo
2,625 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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The Plaintiffs, registered proprietors of KISUMU/NYALENDA'B'/928, sued the 1st Defendant (Tom Soya Okwatch, owner of plot 1540) and the 2nd Defendant (Samwel Otieno Onyango) for trespass, seeking possession, a permanent injunction and demolition of structures. They relied on a title deed, an official survey report by the county surveyor (PW2), and the 2nd Defendant's arrest on the suit property in April 2008, for which he was later acquitted in Winam Criminal Case No. 424 of 2008. The 1st Defendant contended the boundaries were unfixed and that a 2007 report by J.K. Tanui showed a common western boundary; the 2nd Defendant denied entering the suit property, claiming he was fencing the deceased Peter Odhiambo's plot 1200 at the instigation of the estate's administrator. The court framed four issues: trespass, damages, injunction and costs. It found trespass proved against the 1st Defendant on a balance of probabilities, the surveyor's unchallenged evidence being decisive, but not against the 2nd Defendant, whose plot shared no boundary with the suit property and against whom no physical act of trespass was shown. Applying Halsbury's principles, the court awarded nominal damages of Kshs 50,000/= (rejecting the Plaintiffs' proposed Kshs 1,500,000/=) and granted a permanent injunction against the 1st Defendant. The 1st Defendant was ordered to pay the Plaintiffs' costs; the claim against the 2nd Defendant was dismissed with costs. Judgment delivered electronically at Kisumu on 7th December 2021 by Antony Ombwayo J.

Key legal issues

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01

Trespass by the 1st Defendant

Holding

Trespass proven on a balance of probabilities

Reasoning

Plaintiffs produced the title deed proving ownership; PW2, the acting county surveyor, testified that the 1st Defendant had trespassed and that evidence was largely unchallenged. The survey report placed the portion claimed by the 1st Defendant exclusively within the Plaintiffs' property. The 1st Defendant's allegation that the report was doctored was undermined by the map showing a common western boundary.

p. 3
02

Trespass by the 2nd Defendant

Holding

Trespass not proven against the 2nd Defendant

Reasoning

The 2nd Defendant was acquitted of the criminal charge of trespass; the map showed plot 1200, which he was fencing, shared no boundary with the suit property; and there was no evidence he deposited materials or constructed anything on the suit property. His claim of malice was noted but the claim simply failed on proof.

p. 3
03

Quantum of damages

Holding

Nominal damages of Kshs 50,000/= awarded against the 1st Defendant

Reasoning

Applying Halsbury's principles, since the Plaintiffs proved trespass but suffered no proven monetary loss, limb (a) applying. The proposed Kshs 1,500,000/= was unsupported by factors such as cost of deprivation or continued land use, so a nominal Kshs 50,000/= sufficed, following Maina Kabuchwa v Gachuma Gacheru.

p. 4
04

Permanent injunction

Holding

Permanent injunction granted against the 1st Defendant only

Reasoning

Having found trespass by the 1st Defendant and ownership by the Plaintiffs, the prayer for a permanent injunction was merited as prayed. Since no trespass was proven against the 2nd Defendant, the injunction ran only against the 1st Defendant.

p. 4

Legal principles established

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  • Proof of ownership is prima facie proof of possession and entitles the owner to sue in trespass
  • A plaintiff who proves trespass without actual loss is entitled at least to nominal damages

Court orders

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  1. 1.A nominal amount of Kshs 50,000/= to be paid by the 1st Defendant as damages for trespass
  2. 2.A permanent injunction to issue against the 1st Defendant from interfering with the suit property
  3. 3.The 1st Defendant to pay the plaintiffs the costs of this suit
  4. 4.The claim against the 2nd defendant is dismissed with costs

Authorities

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Legislation

  • Trespass Act, Cap 294Section 3(1)

Cases cited (3)

  • CHRISTINE NYANCHYAMA OANDA VS CATHOLIC DIOCESE OF HOMA BAY REGISTERED TRUSTEES
    [2020] eKLR
  • PARK TOWERS LTD VS JOHN MITHAMO NJIKA & 7 OTHERS
    [2014]
  • MAINA KABUCHWA V GACHUMA GACHERU
    [2018] EKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over claims relating to land (suit by plaint dated 17th January 2010)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Isaac. E. N. Okero & another v Tom Soya Okwatch & another [2021] KEELC 488 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/488/eng@2021-12-07

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