Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC No 148 of 2016· [2021] KEELC 3049 (KLR)

Stephen Olang Misigah v Lush Home Propoerties Limited [2021] KEELC 3049 (KLR)

Environment and Land Court
24 May 2021
CYC.K. Yano
3,422 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Mombasa court ordered a property developer off land it never paid for, awarding the owner Kshs 1 million in damages after a sale deal collapsed.

What this practically means

#

Executive summary

#
The plaintiff, registered owner of Plots 13611 and 13612/1/MN, sued the defendant for trespass, seeking declarations of his entitlement to possession, eviction, a permanent injunction, loss of income and general damages. He pleaded that in 2016 the defendant wrongfully entered and occupied the plots while developing 54 maisonettes. The defence, filed by the defendant before ceasing participation, asserted that it had purchased three plots (13610, 13611 and 13612) from the plaintiff under a sale agreement for Kshs 25,500,000, paid a Kshs 5,000,000 deposit, taken possession under clause 11, and held signed transfers. The defendant failed to attend the hearing despite substituted service, and the matter proceeded ex parte under Order 12 Rule 2(a). The plaintiff testified that only Plot 13610 was transferred to the defendant after they agreed to complete payment for that plot alone. The court, applying Section 26 of the Land Registration Act, held the plaintiff to be the registered owner of Plots 13611 and 13612 and the defendant owner only of Plot 13610. It found the sale agreement, which made time of the essence, was validly terminated after the defendant defaulted on the balance and after sufficient notice. The defendant's continued occupation after rescission was unlawful trespass, actionable per se. However, because the plaintiff produced no evidence of actual loss or the value of the land, the court granted only a nominal award. Judgment was entered for the plaintiff with a permanent injunction, vacant possession within 60 days, eviction and demolition in default, Kshs 1,000,000 general damages with interest, and costs.

Key legal issues

#
01

Ownership of Plots 13611 and 13612/MN

Holding

The plaintiff remains the registered owner of Subdivisions 13611 and 13612; the defendant is registered owner only of Plot 13610

Reasoning

Section 26 of the Land Registration Act makes a certificate of title prima facie evidence of absolute and indefeasible ownership. The plaintiff produced a Certificate of Ownership showing transfer of the suit properties to him, and the register showed transfer of only Plot 13610 to the defendant. The defendant, though pleading that transfers had been signed in its favour, tendered no evidence, leaving its defence as mere allegations.

p. 3
02

Validity of termination of the sale agreement

Holding

The sale agreement was validly terminated for the defendant's non-payment

Reasoning

Time was of the essence under clause 12, and the final instalment of Kshs 17,500,000 was due within 90 days of 6th August 2013. The defendant defaulted. The plaintiff's three letters demanding payment, sent over a four-month period after the completion date, constituted sufficient notice, and the four-month lapse amounted to unreasonable delay justifying termination and entitling the plaintiff to vacant possession.

p. 3
03

Whether the defendant's continued occupation constitutes trespass

Holding

The defendant's continued occupation after rescission was unlawful and constituted continuing trespass

Reasoning

Clause 11 permitted possession only on payment of the deposit, and upon rescission the Law Society Conditions of Sale 1989 (clause 6(b)) required the purchaser to deliver up possession. The defendant remained on the land without consent after rescission, and every continuance of a trespass is a fresh trespass giving rise to a new cause of action from day to day.

p. 4
04

Quantum of damages for trespass

Holding

A nominal award of Kshs 1,000,000 as general damages for trespass was granted

Reasoning

Although trespass is actionable per se, the plaintiff did not tender evidence guiding the court on monetary loss or the value of the properties before and after the trespass. Following Hassan Mohammed Haji and Eliud Njoroge Gachiri, the court awarded a nominal sum of Kshs 1,000,000 with interest at court rates from the date of judgment.

p. 4

Legal principles established

#
  • A certificate of title is conclusive evidence of proprietorship unless the contrary is proved
  • Where a contract states that time is of the essence, failure to perform within the specified period constitutes a breach
  • Trespass to land is actionable per se without proof of damage
  • Where actual loss from trespass is not proved, the court may grant a nominal award of general damages

Court orders

#
  1. 1.A permanent injunction restraining the defendant, their servants or agents from remaining on, continuing in occupation of, or constructing structures on Subdivision Number 13611/1/MN and Subdivision Number 13612/1/MN
  2. 2.The defendant ordered to vacate and deliver vacant possession of the suit properties to the plaintiff within 60 days from the date of service of the decree
  3. 3.In default of compliance, the plaintiff entitled to an order of eviction for forcible removal of the defendant, their agents and/or servants, and demolition of the structures thereon
  4. 4.General damages for trespass of Kshs 1,000,000/- awarded to the plaintiff with interest at court rates from the date of judgment until payment in full
  5. 5.Costs of the suit awarded to the plaintiff, to be borne by the defendant

Authorities

#

Legislation

  • Land Registration ActSection 26
  • Trespass ActSection 3
  • Civil Procedure RulesOrder 12 Rule 2(a)
  • Civil Procedure RulesOrder 14 Rule 3
  • Law Society Conditions of Sale 1989 (now repealed)Clause 6(b)

Cases cited (5)

  • Park Tower Ltd V John Mithamo Njoka & 7 Others
    (2014) eKLR
  • Kenneth Nyaga Mwige v Austin Kiguta & 2 others
    [2015] eKLR
  • Elijah Mbatha V Madivest Company Limited
    (2018) eKLR
  • Hassan Mohammed Haji v Mohamed Keynan & another
    [2019] eKLR
  • Eliud Njoroge Gachiri v Stephen Kamau Ng’ang’a
    [2018] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (as constituted to hear land disputes)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Stephen Olang Misigah v Lush Home Propoerties Limited [2021] KEELC 3049 (KLR)", Case Analysis (2021). ELC No 148 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3049/eng@2021-05-24

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