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ELCPartially AllowedELC Suit No. 1160 of 2015· [2021] KEELC 1336 (KLR)

Stephen Makau Kanyia v Wilson Njeru Wega & 4 others [2021] KEELC 1336 (KLR)

Environment and Land Court
28 October 2021
MMM.D. Mwangi
3,366 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court evicted buyers of plots sold by a fraudster, confirming a registered title beats any deal made by someone who never owned the land.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of the late Haron Kanyia Makau, sued five defendants for eviction from Nairobi/Block 118/1079, a permanent injunction, general damages and mesne profits, alleging they trespassed after buying plots from one Muia Kimatu, a fraudster with no title. The defendants entered appearance and filed a preliminary objection but never filed a defence or witness statements, and did not attend the hearing on 30 September 2021. The court framed five issues: ownership, defendants' rights, eviction and injunction, general damages and mesne profits, and costs. Relying on sections 24 and 26 of the Land Registration Act, the court held the plaintiff's certificate of title established indefeasible, absolute ownership, uncontroverted by any evidence. Since Muia Kimatu had no title - as he admitted in writing before the Assistant Chief - the defendants, invoking nemo dat quod non habet, acquired no rights. Trespass was established under section 3(1) of the Trespass Act, and the court granted eviction and a permanent injunction. On quantum, adopting the Park Towers principle that trespass damages need not be tied to specific loss, the court awarded Kshs. 500,000 as nominal general damages. Mesne profits were refused because they were neither pleaded with specificity nor proved, and cannot be awarded alongside trespass damages. The plaintiff was awarded costs. Judgment was entered on a balance of probabilities.

Key legal issues

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01

Ownership of the suit land

Holding

The Plaintiff, as administrator and registered proprietor holding a Certificate of Lease, established indefeasible ownership under ss. 24 and 26 of the Land Registration Act

Reasoning

The Plaintiff produced a Certificate of Lease, a lease document, a confirmed grant of letters of administration intestate and a letter from Drumvale Farmers' Co-operative Society Limited confirming his late father was the original allottee. The evidence was uncontroverted as the defendants did not participate in the hearing. Title under section 26 is prima facie and not subject to challenge except for fraud or corrupt acquisition.

p. 3
02

Defendants' rights over the land

Holding

The defendants acquired no rights; their alleged vendor, Muia Kimatu, had no title to pass and admitted so in writing

Reasoning

The defendants claimed through Muia Kimatu, who was shown to be a fraudster with no title and who admitted in a document signed before the Assistant Chief that the deceased never sold him the land. The defendants did not controvert the plaintiff's case, having failed to file defence or attend the hearing. Nemo dat quod non habet applies.

p. 3
03

Eviction and permanent injunction

Holding

Unauthorised entry constituted trespass; eviction and permanent injunction were granted

Reasoning

Having held that the plaintiff is the legal owner and never authorised the defendants' entry, the court found trespass established under section 3(1) of the Trespass Act. The plaintiff, entitled to quiet possession, was granted eviction and a joint and several permanent injunction as prayed.

p. 3
04

General damages and mesne profits

Holding

General damages of Kshs. 500,000 awarded as a nominal figure; mesne profits refused for want of pleading and proof and because it cannot be awarded alongside trespass damages

Reasoning

The plaintiff pleaded no figures for either head. Applying the measure in Philip Ayaya Aluchio and Park Towers, the court held trespass damages recoverable without proof of specific loss and assessed Kshs. 500,000 based on the duration of trespass and size of the land. Mesne profits must be pleaded and proved, and cannot be doubled with trespass damages per Kenya Hotel Properties.

p. 4

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership, and a certificate of title is prima facie evidence of indefeasible ownership subject only to fraud, misrepresentation or corrupt acquisition (ss. 24 and 26, Land Registration Act)
  • One cannot pass title to land that one does not have (nemo dat quod non habet)
  • Trespass is actionable per se without proof of specific damage
  • A claimant cannot recover both mesne profits and general damages for trespass; a party must also plead and prove the quantum of mesne profits

Court orders

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  1. 1.An eviction order issued directed to the defendants ordering them to vacate the plaintiff's parcel of land known as Nairobi/Block 1118/1079 forthwith
  2. 2.A permanent injunction restraining the defendants from trespassing, encroaching, entering into, selling, developing, disposing, or in any other manner interfering with the Plaintiff's quiet possession and ownership of the parcel of land known as Nairobi/Block 1118/1079
  3. 3.General damages for trespass of Kshs.500,000/- with interest at court rates from the date of the judgment until payment in full
  4. 4.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 26
  • Trespass Act, Cap 294Section 3(1)
  • Civil Procedure Act, Cap 21Section 2 (definition of mesne profits)

Cases cited (10)

  • Entick vs Carrington
    (1765)
  • Maina Kabuchwa v Gachuma Gacheru
    [2018] eKLR
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Hostler – VS – Green Park Development Co.
    986 S. W 2d 500 (No. App. 1999)
  • Park Towers Ltd –vs- John Mithamo Njikia & 7 others
    (2014) eKLR
  • Avid Developers Ltd –vs- Blue Horizon Properties Ltd & 2 others
    (2021) eKLR
  • Attorney General v Halal Meat Products Limited
    [2016] eKLR
  • Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah
    [2016] eKLR
  • Peter Mwangi Mbuthia & another v Samow Edin Osman
    [2014] eKLR
  • Kenya Hotel Properties Limited v Willesden Investments Limited
    [2009] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution and the Environment and Land Court Act in respect of land title and trespass

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Stephen Makau Kanyia v Wilson Njeru Wega & 4 others [2021] KEELC 1336 (KLR)", Case Analysis (2021). ELC Suit No. 1160 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1336/eng@2021-10-28

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