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ELCPartially Allowedplaint dated 28th June 2013 (suit number not stated in judgment)· [2021] KEELC 2315 (KLR)

Agnes Wambui Kiritu & another v Nicasio Murithi & 3 others [2021] KEELC 2315 (KLR)

Environment and Land Court
22 July 2021
2,813 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court confirmed that registered landowners can evict occupants who prove nothing, but awarded modest damages because the owners' losses were speculative.

What this practically means

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Executive summary

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The Plaintiffs sued by plaint dated 28th June 2013 seeking a declaration that they are the bona fide proprietors of Title No. Nairobi/Block 126/83, an order for demolition of permanent houses erected by the Defendants, enforcement through the O.C.S Ruai Police Station, general damages for trespass and costs. The Plaintiffs, registered as tenants in common since 8th March 1994 after purchasing the property from Ndunda Musungu in 1993, averred that the Defendants entered, occupied and built on the land without consent. The Defendants claimed they had purchased portions from John Ng'ang'a Kibe through Jogi Waki Real Estate Agencies in 2011 and that the Plaintiffs consented to their developments, but they did not appear at trial or tender evidence. The court applied sections 27 and 28 of the Registered Land Act (now sections 24 and 25 of the Land Registration Act, 2012) on indefeasibility of title, and Gitwany Investments v Tajmal on possession. Finding the Plaintiffs' uncontroverted evidence proved ownership on a balance of probabilities, the court held the Defendants were trespassers, the burden having shifted to them to justify their occupation. The Plaintiffs' claim of Kshs. 81,000,000/- in general damages, based on an unbuilt scheme of 50 two-bedroom flats, was rejected as speculative for want of plans, funding evidence or a basis for the assumptions; only reasonable use-based damages were awarded. Judgment was entered for the Plaintiffs with a declaration, demolition and vacant possession within 90 days subject to service conditions, general damages of Kshs. 250,000/- per Defendant with interest, and costs of the suit.

Key legal issues

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01

Whether the Defendants were trespassers on the suit property

Holding

The Defendants, having entered and built on the property without the Plaintiffs' consent and tendered no evidence, were trespassers

Reasoning

The Plaintiffs proved lawful acquisition from Ndunda Musungu and registration as tenants in common under a certificate of lease dated 8th March 1994; a search confirmed continued registration. The Defendants alleged purchase from John Ng'ang'a Kibe but tendered no evidence. Once Plaintiffs proved ownership and the Defendants' unauthorised entry and construction, the burden shifted to the Defendants, who offered nothing.

p. 3
02

Whether the Plaintiffs were entitled to the reliefs sought

Holding

The Plaintiffs proved their case on a balance of probabilities and were entitled to a declaration, vacant possession and damages, but the Kshs. 81,000,000/- general damages claim failed as speculative; reasonable damages of Kshs. 250,000/- per Defendant were awarded

Reasoning

The court applied Halsbury's principles on damages for trespass: nominal damages where no actual loss; use-based compensation where the defendant used the land. The Plaintiffs produced no building plans, evidence of funds, or basis for the assumed 50 flats at Kshs. 15,000/- monthly rent, so actual damage was not proved.

p. 4

Legal principles established

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  • Title to land carries with it legal possession, and a registered proprietor is entitled to possession against trespassers
  • Registration as proprietor vests absolute ownership and indefeasible rights under the Land Registration Act, 2012 (formerly sections 27 and 28 of the Registered Land Act)
  • Where a plaintiff proves trespass, the burden shifts to the defendant to show justifiable cause for the occupation

Court orders

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  1. 1.Declaration that the Plaintiffs are the bona fide proprietors of Title No. Nairobi/Block 126/83
  2. 2.The Defendants shall demolish the houses and other structures each of them has erected on the suit property and vacate within ninety (90) days of the judgment, failing which the Plaintiffs may apply for warrants for forceful eviction and demolition at their costs
  3. 3.The Plaintiffs to serve a copy of the decree on each Defendant within thirty (30) days and file an affidavit of service
  4. 4.If any Defendant cannot be traced, the decree shall be affixed in a conspicuous place on that Defendant's house or structure on the suit property
  5. 5.Such service is a condition precedent to execution by eviction or demolition
  6. 6.Each Defendant to pay the Plaintiffs Kshs. 250,000/- as general damages for trespass with interest at court rates from the date of judgment until payment in full
  7. 7.The Plaintiffs shall have the costs of the suit

Authorities

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Legislation

  • Registered Land Act, Chapter 300 Laws of Kenya (now repealed)sections 27 and 28
  • Land Registration Act, 2012sections 24 and 25

Cases cited (1)

  • Gitwany Investments Limited v Tajmal Limited & 3 others
    [2006] eKLR
Jurisdiction invoked
Original civil suit by plaint under land law (Registered Land Act, Cap 300, now repealed; Land Registration Act, 2012)

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, "Agnes Wambui Kiritu & another v Nicasio Murithi & 3 others [2021] KEELC 2315 (KLR)", Case Analysis (2021). plaint dated 28th June 2013 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2315/eng@2021-07-22

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