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ELCAllowedELC No. 78 of 2019· [2021] KEELC 3566 (KLR)

Stephen Makau Ndeto v Stephen Kilei Mulei [2021] KEELC 3566 (KLR)

Environment and Land Court
28 April 2021
CMC. G. Mbogo
621 words in judgment
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The bottom line

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The Environment and Land Court in Makueni confirmed the plaintiff's ownership, ordered eviction, and awarded damages for trespass without proof of actual loss.

What this practically means

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Executive summary

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The Plaintiff filed suit on 28th October 2019 seeking an eviction and/or demolition order against the Defendant from land parcel No. 390 Kiboko 'B' Settlement Scheme, general damages, costs and interest. The Defendant was served with summons to enter appearance on 18th September 2020 but failed to file a defence, and the suit proceeded as an undefended claim. At the hearing on 20th January 2021, the Plaintiff adopted his statement as evidence in chief and produced documents proving ownership, including a letter of offer, acceptance letter, receipts for payments to the Director of Land Adjudication and Settlement, and a copy of judgment in Makindu Principal Magistrates Court Civil Suit No. 73 of 2009 in which the lower court ruled in his favour. The court found no evidence challenging these documents and noted the prior judgment had not been overturned on appeal, remaining a judgment of a court of competent jurisdiction. The court held the Defendant had no right to be on the land and was a trespasser, and that trespass is actionable per se. Applying Duncan Nderito Ndegwa v KPLC Ltd & Another [2013] eKLR, the court awarded general damages of Kshs. 100,000/=. Judgment was entered for the Plaintiff on 28th April 2021: an eviction and/or demolition order supervised by the OCS Makindu Police Station, general damages of Kshs. 100,000/=, and costs of the suit with interest.

Key legal issues

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01

Ownership of the suit property

Holding

The Plaintiff proved ownership of land parcel No. 390 Kiboko 'B' Settlement Scheme through a letter of offer, acceptance letter, receipts and a judgment of a court of competent jurisdiction

Reasoning

The Plaintiff produced documentary evidence comprising an acceptance letter, letter of offer, a letter by the D.O. and receipts issued upon payment to the Director of Land Adjudication and Settlement. The suit was undefended and no evidence challenged these documents. A prior judgment in Makindu Civil Suit No. 73 of 2009 in the Plaintiff's favour was not shown to have been overturned and thus remained a judgment of a court of competent jurisdiction.

p. 1
02

Trespass and damages

Holding

The Defendant, having no right to be on the land, was a trespasser; trespass being actionable per se, the Plaintiff was awarded general damages of Kshs. 100,000/=

Reasoning

Relying on Duncan Nderito Ndegwa v KPLC Ltd & Another, the court held that once trespass is established it is actionable per se and no proof of damage is necessary before general damages are awarded. The court awarded Kshs. 100,000/= as compensation for the infringement of the Plaintiff's right to use and enjoy the suit property.

p. 2

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

Court orders

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  1. 1.An eviction and/or demolition order against the Defendant and/or his parties representative therein from land parcel No. 390 Kiboko 'B' Settlement Scheme to be supervised by the OCS Makindu Police Station
  2. 2.Kshs. 100,000/= being general damages
  3. 3.Cost of the suit and interest

Authorities

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Cases cited (1)

  • Duncan Nderito Ndegwa –Vs- KPLC LTD & Another
    [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land parcel No. 390 Kiboko 'B' Settlement Scheme

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, "Stephen Makau Ndeto v Stephen Kilei Mulei [2021] KEELC 3566 (KLR)", Case Analysis (2021). ELC No. 78 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3566/eng@2021-04-28

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