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ELCAllowedELC Case No. 45 of 2019· [2021] KEELC 2721 (KLR)

Pennina Kavindu Nzioki & another v Joseph Kiema Kitungi [2021] KEELC 2721 (KLR)

Environment and Land Court
30 June 2021
2,395 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who fences onto a neighbour's registered land is a trespasser and must pay damages even without proof of actual loss.

What this practically means

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Executive summary

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The Plaintiffs, administrators ad litem of the estate of the late Nzioki Muia, sued the Defendant, registered proprietor of the neighbouring parcel Kalawa/Kathulumbi/407, alleging encroachment and trespass onto parcel Kalawa/Kathulumbi/409 (29.16 hectares) registered in the deceased's name since 1969. They sought a declaration of ownership, a permanent injunction, an order to demolish the Defendant's fence, possession and eviction, and general damages for trespass. The Defendant denied encroachment in his defence but, after an adjournment application, neither he nor his counsel attended the defence hearing and his case was deemed closed. At trial, the 2nd Plaintiff testified and produced correspondence and a survey report; surveyor Gabriel Maingi (PW1) established that the true boundary between the parcels is a river and that the Defendant had erected posts across it, encroaching 0.33 hectares (0.82 acres). The proceedings were stayed at the Plaintiffs' request for referral of the boundary dispute to the Land Registrar under Sections 18 and 19 of the Land Registration Act, and the Land Registrar's report confirmed the surveyor's findings. The court framed two issues: ownership of parcel 409 and encroachment by parcel 407. Finding both proved on a balance of probabilities, it held the Defendant a trespasser and, relying on the principle that trespass is actionable per se, awarded Kshs. 200,000/= general damages (less than the Kshs. 500,000/= urged by counsel). Judgment was entered for the Plaintiffs with declaration, permanent injunction, demolition order, possession and eviction, general damages, and costs with interest.

Key legal issues

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01

Ownership of land parcel Kalawa/Kathulumbi/409

Holding

The suit land is registered in the name of the deceased Nzioki Muia, whose estate is represented by the Plaintiffs as administrators ad litem.

Reasoning

The court found no dispute that the parcel was registered in the deceased's name on 9th September 1969 and that the Plaintiffs obtained letters of administration ad litem on 21st May 2019. Documentary evidence produced by the 2nd Plaintiff, together with the surveyor's and Land Registrar's reports, confirmed ownership and the Defendant's ownership of the neighbouring parcel 407.

p. 3
02

Encroachment and trespass by the Defendant

Holding

The Defendant, as proprietor of parcel 407, encroached 0.33 hectares into parcel 409 and is a trespasser.

Reasoning

The surveyor Gabriel Maingi (PW1) and the Land Registrar R. M. Soo both established that the true boundary between the parcels is a river passing between points E, K, M, N and J, and that the Defendant had erected posts across the river, encroaching 0.33 hectares. The Defendant did not appear at trial and his case was deemed closed, leaving the Plaintiffs' evidence uncontroverted.

p. 3
03

General damages for trespass

Holding

General damages of Kshs. 200,000/= were awarded, trespass being actionable per se without proof of damage.

Reasoning

Relying on Duncan Nderitu Ndegwa v KPLC Ltd and Park Towers Ltd v John Mithamo Njika, the court held that once trespass is established no proof of specific damage is necessary. Although counsel urged an award of Kshs. 500,000/=, the court in its discretion found Kshs. 200,000/= sufficient on the facts.

p. 3

Legal principles established

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  • Once trespass to land is established, it is actionable per se and no proof of damage is necessary for the court to award general damages.
  • Where trespass is proved, a party need not prove specific damage or loss to be awarded damages; the court assesses damages on the unique facts and circumstances of each case.

Court orders

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  1. 1.A declaration that the entire land title number KALAWA/KATHULUMBI/409 measuring 29.16 Ha or thereabouts is the property of Nzioki Muia also known as Peter Nzioki Muia and that the Defendant has no right of claim whatsoever over the said property
  2. 2.An order of permanent injunction restraining the Defendant, his family, servants and/or agents from continuing with acts of trespass or interfering with the Plaintiffs' peaceful occupation and use of land title number KALAWA/KATHULUMBI/409
  3. 3.An order compelling the Defendant to demolish and remove his illegal fence and/or vegetation on land title number KALAWA/KATHULUMBI/409 at his own cost, in default the Plaintiffs be at liberty to demolish and remove the same at the Defendant's cost
  4. 4.An order of possession and eviction of the Defendant from the Plaintiffs' land title number KALAWA/KATHULUMBI/409
  5. 5.General damages for trespass of Kshs. 200,000/= awarded to the Plaintiffs
  6. 6.Costs of the suit with interest on the general damages at court rates from the date of judgment until payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land Registration Act No. 3 of 2012Sections 18 and 19
  • Land Registration Act No. 3 of 2012Section 24(a)

Cases cited (4)

  • Sabastian Otieno Omari & 4 Others v Derek Otieno Oluoch
    [2018] eKLR
  • Joseph Kiema Kitungi v Francis Mutavi Musyoka
    [2019] eKLR
  • Duncan Nderitu Ndegwa v KPLC Ltd & Anor
    [2013] eKLR
  • Park Towers Ltd v John Mithamo Njika & 7 Others
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court) - original jurisdiction over land disputes; suit filed as a plaint

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, "Pennina Kavindu Nzioki & another v Joseph Kiema Kitungi [2021] KEELC 2721 (KLR)", Case Analysis (2021). ELC Case No. 45 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2721/eng@2021-06-30

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