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ELCPartially AllowedELC Case No. 05 of 2021 (Formerly Narok ELC Case No. 63 of 2018)· [2021] KEELC 1202 (KLR)

Keiyian Group Ranch v Samwel Oruta & 9 others [2021] KEELC 1202 (KLR)

Environment and Land Court
27 October 2021
MKMohammed Kullow
3,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner with a valid title deed won a trespass case and got an injunction, but received only Kshs 100,000 because it could not prove its actual losses.

What this practically means

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Executive summary

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Keiyian Group Ranch, registered proprietor of L.R No. Trans-Mara/Keiyian/5 (approximately 816.4 Ha) since 19th November 1988, sued nine defendants for trespass, alleging encroachment, boundary interference and diversion of water by persons living on the adjoining L.R No. South Mugirango/Botabori South/150. It sought a declaration of proprietorship, a permanent injunction and general damages. All defendants except the 5th filed defences denying trespass, some asserting they lived on their own titled land, others objecting to jurisdiction on the ground that boundary disputes belong to the Land Registrar, and one claiming adverse possession. None attended the hearing, which proceeded ex parte on 4th November 2020 with the plaintiff's evidence uncontroverted. Earlier, on 18th May 2017, the court had ordered the Land Registrar and Surveyor, Trans-Mara West Sub-County, to demarcate and fix the boundary; their reports found an encroachment of approximately 28 hectares (70 acres) with buildings in the encroached area, and stood unchallenged. The court (Kullow J) held it had jurisdiction, the dispute being one of trespass with the statutory boundary-determination procedure having been complied with; that the plaintiff's title was absolute and indefeasible under section 26(1) of the Land Registration Act, no challenge of fraud having been raised; that the defendants were guilty of trespass; and that trespass being actionable per se, general damages were payable, though in the absence of evidence quantifying loss only Kshs. 100,000/- was awarded. Judgment was entered for the plaintiff with a declaration, permanent injunction, general damages of Kshs. 100,000/-, costs and interest, dated and delivered virtually at Migori on 27th October 2021.

Key legal issues

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01

Whether the court had jurisdiction notwithstanding the defendants' objection that boundary disputes must go to the Land Registrar

Holding

The court had jurisdiction; the suit was principally about trespass and encroachment, and in any event there was full compliance with sections 18(2) and 19 of the Land Registration Act because the Land Registrar and Surveyor had, under court order, demarcated and fixed the boundary before trial.

Reasoning

The court invoked Owners of Motor Vessel 'Lillian S' and Samuel Kamau Macharia v KCB on jurisdiction. It found the dispute was one of trespass rather than a pure boundary dispute, and that the statutory requirement for boundary determination had been satisfied through the Registrar's and Surveyor's reports ordered by J. Onyango J on 18th May 2017. The trial court therefore did not usurp statutory authority vested in the Land Registrar.

p. 3
02

Who is the rightful owner/registered proprietor of the suit land

Holding

The Plaintiff, holding a title deed and Green Card for L.R No. Trans-Mara/Keiyian/5 registered in its name since 19th November 1988, is the rightful, absolute and indefeasible owner; the defendants produced no title and never challenged the plaintiff's title for fraud.

Reasoning

Applying section 26(1) of the Land Registration Act, the court held the certificate of title to be prima facie evidence of absolute and indefeasible ownership. The defendants produced only a search certificate for their own parcel (South Mugirango/Botabori South/150) and raised no challenge of fraud or otherwise under section 26(1)(a) and (b). The plaintiff's title, covering approximately 816.4 Ha, therefore stands protected by law.

p. 4
03

Whether the defendants trespassed and whether a permanent injunction should issue

Holding

Trespass was proved. The unchallenged reports of the Land Registrar and the Surveyor established encroachment of approximately 28 hectares (70 acres) with buildings on the encroached area; the plaintiff established a prima facie case under Giella v Cassman Brown and a permanent injunction was granted.

Reasoning

The court adopted the reports of the Land Registrar (dated 29.06.2018) and the Surveyor (dated 04.06.2018) as exhibits; the defendants, though served and fully aware of the hearing date, did not attend and offered no comment on the reports, leaving them unchallenged. The court associated itself with their findings of approximately 28 Ha of encroachment and, applying the Giella v Cassman Brown principles, found the plaintiff entitled to permanent injunctive relief.

p. 4
04

Whether the plaintiff is entitled to general damages for trespass

Holding

Yes, but only Kshs. 100,000/- was awarded because although trespass is actionable per se, the plaintiff led no evidence quantifying the actual damage or loss.

Reasoning

Relying on Duncan Nderitu Ndegwa v KP&LC Ltd (trespass actionable per se, no proof of damage necessary), Halsbury's Laws of England Vol. 45 and Philip Ayaya Aluchio v Crispinus Ngayo (measure of damages being difference in property value or restoration cost, whichever is less), the court found trespass proved and damages payable. However, lacking evidence to quantify the actual loss for the 28 Ha encroachment, it awarded a global sum of Kshs. 100,000/- as general damages, with interest at court rates.

p. 5

Legal principles established

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  • Jurisdiction is everything and goes to the root of a case; without jurisdiction a court must down its tools
  • A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner, subject only to encumbrances endorsed on the certificate and to challenge on grounds of fraud
  • Trespass to land is actionable per se and no proof of damage is necessary for the court to award general damages
  • The measure of damages for trespass is the difference in the value of the plaintiff's property immediately after the trespass or the cost of restoration, whichever is less

Court orders

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  1. 1.A Declaration that the Plaintiff is the lawful and/or registered proprietor of the suit land, that is, L.R NO. TRANS-MARA/KEIYIAN/5
  2. 2.Permanent Injunction restraining the Defendants either by themselves, agents, servants and/or anyone claiming under the Defendants from entering, trespassing onto, cultivating, building structures thereon, interfering with and/or in any manner dealing with the suit land, that is, L.R. NO. TRANS-MARA/KEIYIAN/5
  3. 3.Kshs. 100,000/= being General Damages for Trespass
  4. 4.Costs of the suit to the Plaintiff
  5. 5.Interest on the general damages at court rates

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Land Registration ActSection 19(1)
  • Land Registration ActSection 26(1)(a) and (b)
  • Registered Land ActSection 26(1) (as cited in the judgment, though the quoted text is from the Land Registration Act)

Cases cited (6)

  • Owners of Motor Vessel “Lillian S”
  • Samuel Kamau Macharia -vs- Kenya Commercial Bank & 2 Others
    Civil Appl. No. 2 of 2011
  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Duncan Nderitu Ndegwa v. KP& LC Limited & Another
    (2013) eKLR
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Hostler – VS – Green Park Development Co.
    986 S.W 2d 500 (No. App. 1999)
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction); Sections 18(2) and 19 of the Land Registration Act on boundary disputes considered in determining jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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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, "Keiyian Group Ranch v Samwel Oruta & 9 others [2021] KEELC 1202 (KLR)", Case Analysis (2021). ELC Case No. 05 of 2021 (Formerly Narok ELC Case No. 63 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1202/eng@2021-10-27

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