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ELCDismissedELC. Case No. 417 of 2017 (Formerly Machakos ELC. Case No. 28 of 2014)· [2021] KEELC 1700 (KLR)

Silantoi Ene Santa Nkoipiyia & another v Natasha Ene Santa Ngopia [2021] KEELC 1700 (KLR)

Environment and Land Court
5 October 2021
COCHRISTINE OCHIENG
2,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Both sides lost: without surveyor's evidence proving exactly where the boundary lay, a Kenyan landowner's trespass claim failed.

What this practically means

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Executive summary

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The Plaintiffs, mother and son and registered joint proprietors of land parcel Kajiado/Dalalekutuk/1944, sued the Defendant, the 2nd Plaintiff's stepmother, seeking her eviction, demolition of her structures, a permanent injunction, and general damages for trespass. The parcel was a subdivision of the family land Kajiado/Dalalekutuk/27, owned by Santa Nkopitia Norperesian. The Defendant denied the Plaintiffs' title, alleging the subdivision was undertaken without her consent and that of her ailing husband, and counterclaimed for declarations that the subdivision and the Plaintiffs' registration were null and void and for cancellation of title 1944. Each party called one witness. The Plaintiffs relied on their certificate of official search, showing registration on 10th September 2010, but produced no mutation or surveyor's report establishing boundaries or the extent of the alleged encroachment, and did not call the original owner. The court held that the burden under section 107 of the Evidence Act lay on the Plaintiffs, who failed to prove trespass on a balance of probability, and accordingly declined eviction, injunction and damages. On the counterclaim, the court shifted the burden to the Defendant, noting that she did not enjoin the original owner or the purchaser of parcel 1946, and is herself a beneficiary of the same subdivision as owner of parcel 1945, which she did not seek to cancel. Her counterclaim was dismissed as premature. The suit and counterclaim were both dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether the Defendant trespassed on Kajiado/Dalalekutuk/1944

Holding

Plaintiffs failed to prove trespass

Reasoning

The Plaintiffs held the paper title from a subdivision of the mother title Kajiado/Dalalekutuk/27 but produced neither the mutation nor a surveyor's report to establish the boundary or the extent of any encroachment. They did not avail the original owner to confirm when and how the subdivision occurred, and no evidence established that the Defendant's land was clearly distinct from theirs. The burden of proof under section 107 of the Evidence Act was on the Plaintiffs and was not discharged.

p. 3
02

Whether the Plaintiffs were entitled to eviction, injunction and damages

Holding

Not entitled; suit dismissed

Reasoning

Having failed to prove trespass, the Plaintiffs could not obtain eviction, a permanent injunction or general damages. There was also no evidence of the damages allegedly suffered from any encroachment. The court accordingly declined to grant the prayers in the Plaint and dismissed the suit on a balance of probability.

p. 3
03

Whether the Defendant's counterclaim for nullification of the subdivision and cancellation of the Plaintiffs' title should succeed

Holding

Counterclaim dismissed as premature

Reasoning

The Defendant sought to reverse the subdivision of Kajiado/Dalalekutuk/27 and cancel the Plaintiffs' title, but did not enjoin the original owner, Santa Nkopitia Norperesian, nor the third party who purchased Kajiado/Dalalekutuk/1946. She is herself a beneficiary of the same subdivision as registered owner of parcel 1945, whose title she did not seek to cancel. The burden under section 107 of the Evidence Act shifted to her and was not discharged.

p. 3

Legal principles established

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  • A plaintiff in trespass must prove the right to immediate and exclusive possession of the land
  • In the absence of evidence to the contrary, the owner of land with paper title is deemed to be in possession, but the party alleging trespass bears the burden of proving it
  • A party seeking cancellation of a subdivision and rectification of titles must enjoin all persons who acquired the resultant subdivisions as parties

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.The Defendant's counterclaim is dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Trespass ActSection 3(1) (Cap 294)
  • Evidence ActSection 107
  • Limitation of Actions ActSection 4

Cases cited (7)

  • Daniel Otieno Migore V South Nyanza Sugar Co. Ltd
    (2018) eKLR
  • Eliud Njoroge Gachiri V Stephen Kamau Nganga
    (2018) eKLR
  • Judith Julia Wanjiro Njoroge V Samuel Ngeru Mwangi
    (2019) eKLR
  • Joseph Kipchirchir Koech V Philip Cheruiyot Sang
    (2018) eKLR
  • Joseph Muchina Njogu V Francis Mucacia Sibashi
    (2019) eKLR
  • Municipal Council of Eldoret v Titus Gatitu Njau
    [2020] eKLR
  • M'Mukanya v M'Mbijiwe
    (1984) KLR 761
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (ELC Case No. 417 of 2017, formerly Machakos ELC. Case No. 28 of 2014)

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, "Silantoi Ene Santa Nkoipiyia & another v Natasha Ene Santa Ngopia [2021] KEELC 1700 (KLR)", Case Analysis (2021). ELC. Case No. 417 of 2017 (Formerly Machakos ELC. Case No. 28 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1700/eng@2021-10-05

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