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ELCPartially AllowedELC Case Number 440 of 2012· [2021] KEELC 2613 (KLR)

Kenneth Kang’ethe Chege v Alexander Kisilu & 2 others [2021] KEELC 2613 (KLR)

Environment and Land Court
6 May 2021
EOE. O. Obaga
843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Nairobi land buyer won his plot back after a neighbour built on it by mistake, proving ownership with certificates and being awarded Kshs. 500,000 for trespass.

What this practically means

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Executive summary

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The plaintiff, Kenneth Kang'ethe Chege, sued by amended plaint dated 20th May 2017 seeking a declaration that Plot No. 275 within the Embakasi/Njiru United Self Help Group Komarock Phase III Project belongs to him, permanent injunctions against the 1st Defendant (Alexander Kisilu) and against the Self Help Group through its officials (the 2nd and 3rd Defendants), an order compelling transfer of the plot to him, the 1st Defendant's vacation of the plot and removal of structures, compensation for developments on plot No. 274, general damages and costs. The 2nd and 3rd Defendants, though served, neither entered appearance nor filed a defence; the 1st Defendant, who had filed a defence, did not attend the hearing, which proceeded ex parte. The plaintiff testified that he purchased the plot from John Mwaura, a member of the group, and was issued a share certificate and beacon certificate; in 2008 he found it fenced off. He was advised to build on adjacent plot No. 274 but was stopped by court orders after the Chief of Kayole location intervened. The court found the plaintiff's evidence uncontroverted: he produced a certificate of ownership, a beacon certificate, and a letter of 3rd November 2010 signed by the 2nd Defendant confirming his ownership and that the 1st Defendant had erroneously constructed on Plot No. 275. Holding that the 1st Defendant's plot was No. 276 but he built on the suit property, the court found trespass proved on a balance of probabilities. Prayers (a) to (e) were allowed with general damages for trespass of Kshs. 500,000/=. The claim for compensation for developments on plot No. 274 failed for lack of evidence. The plaintiff received costs of the suit.

Key legal issues

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01

Ownership of Plot No. 275

Holding

The Plaintiff is the owner of Plot No. 275, having purchased it from John Mwaura, a member of the Self Help Group, and having been issued a share certificate and beacon certificate

Reasoning

The Plaintiff produced a certificate of ownership and beacon certificate, and a letter dated 3rd November 2010 signed by the 2nd Defendant confirming ownership. The evidence was uncontroverted as the 2nd and 3rd Defendants did not appear and the 1st Defendant did not attend the hearing. The court accepted the plaintiff's unchallenged testimony on a balance of probabilities.

p. 2
02

Trespass by the 1st Defendant

Holding

The 1st Defendant constructed on the wrong plot; his plot is Plot No. 276 but he built on the Plaintiff's Plot No. 275, amounting to trespass

Reasoning

The court found on the uncontroverted evidence, including the 2nd Defendant's letter confirming the erroneous construction, that the 1st Defendant built on the wrong plot. Trespass having been established, the Plaintiff was entitled to injunctions, an order to vacate and remove structures, and general damages for trespass assessed at Kshs. 500,000/=.

p. 2

Legal principles established

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  • A claimant who produces a certificate of ownership and beacon certificate confirming ownership, uncontroverted by evidence, proves ownership of the suit property on a balance of probabilities
  • Compensation for developments requires evidence of the developments undertaken; unproven claims for reimbursement are declined

Court orders

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  1. 1.Permanent injunction restraining the 1st Defendant from trespassing on, developing or otherwise dealing with Plot No. 275
  2. 2.Permanent injunction restraining the Embakasi/Njiru United Self Help Group through the 2nd and 3rd Defendants from selling, disposing, alienating, transferring or interfering with Plot No. 275
  3. 3.Declaration that Plot No. 275 belongs to the Plaintiff
  4. 4.Order that the 2nd and 3rd Defendants transfer Plot No. 275 to the Plaintiff and issue him with the requisite documents of ownership
  5. 5.The 1st Defendant to vacate Plot No. 275 and remove all structures he has built thereon at his cost, failing which the Plaintiff may remove them at the 1st Defendant's cost
  6. 6.General damages for trespass assessed at Kshs. 500,000/= in favour of the Plaintiff
  7. 7.Plaintiff awarded costs of the suit
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land ownership and trespass

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, "Kenneth Kang’ethe Chege v Alexander Kisilu & 2 others [2021] KEELC 2613 (KLR)", Case Analysis (2021). ELC Case Number 440 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2613/eng@2021-05-06

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