Robins Nyangau Mosongo & another v Ngoitoi Leiyan & another [2021] KEELC 4036 (KLR)

The court relied on the County Surveyor's report dated 6th October 2015, filed pursuant to a court order referring the parties to the Chief County Surveyor. The report established that plot 522 abuts plot 56, is partly on an 18m road reserve and encroaches onto plot 56 by 3m. The Plaintiffs produced no map to contradict this, so the two plots were found distinct.

Since the plots were distinct and plot 522 encroached onto plot 56, the 1st Defendant did not encroach on the Plaintiffs' plot. However, the 2nd Plaintiff was in possession with structures on the land, and the 1st Defendant should have pursued recovery through due legal process rather than taking the law into his own hands by demolishing structures and removing iron sheets and poles.

The suit plot was allocated to the 2nd Plaintiff on 17th November 2011, and having complied with legal requirements the 2nd Defendant lost power to alienate it to a third party on 17th May 2012. The transfer to the 2nd Plaintiff was backdated and the reference number changed without known procedure, suggesting double allocation and irregular conduct by the 2nd Defendant, which was responsible for the dispute and liable to compensate the Plaintiffs.

Although there was intrusion, removal of iron sheets and poles and wastage of the plot, the Plaintiffs failed to justify the Kshs. 30 million claimed and admitted removing some materials themselves. Applying the compensatory measure of damages in conversion, the court fixed general damages at Kshs. 1,000,000, apportioning liability between the two Defendants according to their respective responsibility.