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ELCPartially AllowedPlaint dated 12th February 2021· [2021] KEELC 953 (KLR)

DIM Agencies Limited v Kenya Airports Authority [2021] KEELC 953 (KLR)

Environment and Land Court
11 November 2021
3,530 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 Plaintiff company sued the Defendant for trespass onto L.R No. 9042/617, seeking declarations of ownership and trespass, general damages for trespass, compensation for breach of its right to property under Article 40 of the Constitution, interest and costs. The Defendant was served but neither entered appearance nor filed a defence, so the suit proceeded by way of formal proof, with the Managing Director, Ashok L. Doshi, testifying as the sole witness. The court framed three issues: proprietorship of the suit land, trespass, and entitlement to compensation with quantum. On the first issue, the Plaintiff proved a land sale agreement dated 20th January 2000, registration of the property in its name on 21st January 2000, a certificate of official search and confirmation from the Chief Land Registrar's office; the court held that an unchallenged title vests absolute and inviolable rights under Sections 24 and 25 of the Land Registration Act 2012. On the second issue, the court found the Defendant's erection of a perimeter wall around the property in February 2018 and continued occupation to be trespass, since the Defendant had never challenged the Plaintiff's title and could not take the law into its own hands. On quantum, applying the principle that trespass is actionable per se, the court awarded general damages of Kshs 10,000,000/= considering the size (about 1½ acres) and prime location of the property. The court declined a separate award for breach of the Article 40 right to property, holding a second award would be duplicative. Judgment was entered with declarations, damages, an order for demolition of the wall within 60 days, interest and costs to the Plaintiff.

Key legal issues

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01

Lawful proprietorship of the suit land

Holding

The Plaintiff was held to be the lawful and registered proprietor on the strength of the title, certificate of official search and confirmation from the Chief Land Registrar

Reasoning

The Plaintiff produced a land sale agreement dated 20th January 2000, evidence of payment of the purchase price, a title showing registration on 21st January 2000, a certificate of official search and a letter from the Chief Land Registrar's office confirming registered ownership. The title was never challenged. The court held that an unchallenged title vests absolute and inviolable rights protected under Sections 24 and 25 of the Land Registration Act 2012.

p. 3
02

Trespass by the Defendant

Holding

The Defendant's erection of a perimeter wall around the suit property and continued occupation constituted trespass

Reasoning

The Plaintiff wrote letters to the Defendant asserting ownership and intention to fence the property; the Defendant acknowledged the correspondence but never challenged the Plaintiff's title in court. Despite this knowledge, the Defendant erected a stone fence/wall around the entire property in February 2018. The court, applying the definition of trespass, found the Defendant's activities unlawful and amounts to trespass.

p. 3
03

Entitlement to and quantum of damages

Holding

General damages of Kshs 10,000,000/= awarded for trespass; separate compensation under Article 40 refused as duplicative

Reasoning

Trespass being actionable per se, damages were payable without proof of specific loss. Considering the size of the property (approximately 1½ acres) and its prime location off Mombasa Road in Nairobi, and guided by the award in Joshua Ngeno v Kenya Power, the court assessed general damages at Kshs 10,000,000/=. However, because the trespass and the Article 40 infringement were the same acts, a second award would be duplex.

p. 4

Legal principles established

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  • Trespass is actionable per se and once proved the aggrieved party is entitled to general damages without proof of specific loss
  • An unchallenged registered title confers absolute and indefeasible rights on the holder under Sections 24 and 25 of the Land Registration Act
  • A party who disputes another's title must approach the court rather than take the law into their own hands

Court orders

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  1. 1.Declaration issued that the Plaintiff is the bona-fide and registered owner of L.R No. 9042/617
  2. 2.Declaration issued that the Defendant has trespassed and is continuing to trespass onto the Plaintiff's property
  3. 3.General damages of Kenya Shillings 10,000,000/= awarded to the Plaintiff for trespass on land
  4. 4.The Defendant directed to remove/pull down the perimeter wall around the suit property within 60 days, in default the Plaintiff may demolish it without further notice
  5. 5.Liberty to apply to the Deputy Registrar for an order for security from the nearest police station and/or sub-county Police Commandant to enforce compliance
  6. 6.Interest on the general damages award at court rates from the date of judgment
  7. 7.The Plaintiff to have costs of the suit

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40 (including Article 40(6))
  • Land Registration Act 2012Sections 24 and 25

Cases cited (8)

  • Ocean View Plaza Ltd v Attorney General
    [2002] eKLR
  • Isaac Gathungu Wanjohi & another v Attorney General & 6 others
    [2012] eKLR
  • Chemei Investments Limited v The Attorney General & Others
    Nairobi Petition No. 94 of 2005 (Unreported)
  • Milan Kumarn Shah & 2 Others v City Council of Nairobi & Another
  • Kuria Green Limited v Registrar of Titles and Another
  • John Kiragu Kimani v Rural Electrification Authority
    (2018) eKLR
  • Park Towers v Moses Chege & Others
    (2014) eKLR
  • Joshua Ngeno v Kenya Power & Lighting Company Limited & County Government of Kericho
    [2021] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (unspecified provision in the judgment)

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, "DIM Agencies Limited v Kenya Airports Authority [2021] KEELC 953 (KLR)", Case Analysis (2021). Plaint dated 12th February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/953/eng@2021-11-11

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