Kariuki Mathu v Registered Trustees of Shilo Tabernacle Church & another [2021] KEELC 3353 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Ownership of the suit property
The Plaintiff proved on a balance of probabilities that he is the registered owner of LR No. 12080, Kibwezi
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.
Trespass by the Defendants
The Defendants were unlawful sub-tenants of Rawji Investment Ltd who refused to give vacant possession after lawful termination notices, and are therefore trespassers
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.
Quantum of general damages
Kshs. 300,000/= awarded as adequate compensation for infringement of the Plaintiff's right to use and enjoy the suit property
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.
Legal principles established
#- 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
#- 1.A permanent injunction restraining the Defendants from trespassing on the Plaintiff’s parcel of land being LR No. 12080 at Kibwezi
- 2.Eviction of the Defendants from the suit property LR No. 12080
- 3.General damages of Kshs. 300,000/=
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.