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ELCPartially AllowedNot stated in extract· [2021] KEELC 3353 (KLR)

Kariuki Mathu v Registered Trustees of Shilo Tabernacle Church & another [2021] KEELC 3353 (KLR)

Environment and Land Court
11 May 2021
1,900 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner evicted a church occupying his property and won Kshs 300,000, confirming you don't need to prove actual loss to claim trespass damages.

What this practically means

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Executive summary

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The Plaintiff, registered owner of LR No. 12080 at Kibwezi, sued the Defendants (Shilo Tabernacle Church and Peter Mutama) for permanent injunction, eviction, special damages of Kshs. 7,000/= per day since 1st May 2016, and general damages, alleging trespass. He pleaded that he had leased the land to Rawji Investment Limited; the lessee unlawfully sub-leased part of it to the Defendants, and after the head lease expired and Rawji vacated, the Defendants refused to give vacant possession despite notices. The Defendants filed a defence of mere denials and did not attend the hearing despite service. The Plaintiff testified and produced his title deed, deed plan, Kenya Gazette notice, demand letters and parking receipts from his current tenant, Matrix Enterprises. The court found the Plaintiff's ownership proved under Section 26(1) of the Land Registration Act and Article 40(1) of the Constitution, held the Defendants were trespassers, and applied the principle that trespass is actionable per se. It awarded Kshs. 300,000/= as general damages but declined the special damages claim because the alleged parking revenue loss was suffered by Matrix Enterprises, the current tenant, not the Plaintiff. Judgment was entered for the Plaintiff with a permanent injunction, eviction order, general damages, and costs and interests of the suit.

Key legal issues

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01

Ownership of the suit property

Holding

The Plaintiff proved on a balance of probabilities that he is the registered owner of LR No. 12080, Kibwezi

Reasoning

The Plaintiff produced a copy of title deed, a deed plan and a Kenya Gazette notice showing the land was demarcated as private land in 1970. Section 26(1) of the Land Registration Act renders a certificate of title prima facie evidence of absolute and indefeasible ownership. The defence consisted of mere denials and did not controvert this evidence.

p. 2
02

Trespass by the Defendants

Holding

The Defendants were unlawful sub-tenants of Rawji Investment Ltd who refused to give vacant possession after lawful termination notices, and are therefore trespassers

Reasoning

Rawji Investment Ltd irregularly and unlawfully sub-leased part of the property to Shilo Tabernacle Church. Upon non-renewal of the head lease, Rawji complied and vacated, but the Defendants declined to vacate despite notices. Trespass being actionable per se, general damages were awardable without proof of loss.

p. 3
03

Quantum of general damages

Holding

Kshs. 300,000/= awarded as adequate compensation for infringement of the Plaintiff's right to use and enjoy the suit property

Reasoning

Following the Duncan Nderitu Ndegwa authority on trespass being actionable per se, the court assessed Kshs. 300,000/= as adequate general damages, while refusing special damages of Kshs. 7,000/= per day because the alleged loss of parking revenue was suffered by the current tenant, Matrix Enterprises, not the Plaintiff.

p. 3

Legal principles established

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  • Once trespass to land is established it is actionable per se and proof of damage is not necessary for an award of general damages

Court orders

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  1. 1.A permanent injunction restraining the Defendants from trespassing on the Plaintiff’s parcel of land being LR No. 12080 at Kibwezi
  2. 2.Eviction of the Defendants from the suit property LR No. 12080
  3. 3.General damages of Kshs. 300,000/=
  4. 4.Costs and interests of the suit to the Plaintiff
Jurisdiction invoked
Original civil suit; Article 40(1) of the Constitution and the Land Registration Act No. 3 of 2012 invoked on the protection of property rights

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, "Kariuki Mathu v Registered Trustees of Shilo Tabernacle Church & another [2021] KEELC 3353 (KLR)", Case Analysis (2021). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3353/eng@2021-05-11

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