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ELCDismissedNot stated in the judgment text (originally filed in Machakos ELC in 2016)· [2022] KEELC 141 (KLR)

Mwendwa & another v China Road and Bridge Corporation (Kenya (Environment & Land Case 146 of 2017) [2022] KEELC 141 (KLR)

Environment and Land Court
16 June 2022
MCMBOGO C.G.
4,547 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenyan land buyers who have not yet been registered as owners cannot sue for trespass — complete your transfer and registration before asserting title.

What this practically means

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Executive summary

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The Plaintiffs sued for permanent injunctions, damages for trespass, and special damages of Kshs. 24,503,376 (restoration costs) and Kshs. 257,000,000 (projected agribusiness profits), alleging the Defendant, which held a 2014 lease from Dennis Kilonzo Mutui over LR. No. 9731/1, excavated soil on land the Plaintiffs were purchasing as Plot No. 63 (later Parcel No. 266, Mbitini/Nzai Block 1(Nzai Farm)/266). The Plaintiffs' evidence comprised the 2nd Plaintiff, a quantity surveyor (PEX 3, restoration at Kshs. 24,503,376), an accountant (business plan projecting the Kshs. 257,000,000 claim), and a licensed surveyor who verified a 200-metre encroachment. The defence called its own quantity surveyor who estimated restoration at about Kshs. 2,000,000. The Defendant argued the Plaintiffs lacked locus, having neither title nor possession at the material time of 15th May 2015 — title issued only in September 2020 and the final purchase instalment was paid in October 2020 — and that the boundaries were never fixed under the Land Registration Act. The court held, applying Section 25(1) of the Land Registration Act and Moya Drift Farm Ltd v Theuri, Joseph N.K. Arap Ng'ok, Charles Ogejo Ochieng and Ochako Obinchu, that only registration confers absolute and indefeasible ownership and legal possession sufficient to support trespass, and that a purchaser's contractual interest cannot trump registered title. The court was also doubtful the suit property was visibly enclosed. On costs, invoking Cecilia Karuru Ngayu, each party was ordered to bear its own costs. The suit was dismissed in its entirety.

Key legal issues

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01

Whether a purchaser of unregistered land under an incomplete sale agreement can maintain an action in trespass

Holding

No. The Plaintiffs had no certificate of title when the alleged trespass occurred in 2015, and their contractual interest cannot trump registered title.

Reasoning

The court relied on Section 25(1) of the Land Registration Act and Court of Appeal authorities (Moya Drift Farm, Charles Ogejo Ochieng, Ochako Obinchu) holding that registration confers absolute and indefeasible ownership and legal possession sufficient to support trespass. The Plaintiffs only obtained title in September 2020 and paid the last purchase instalment in October 2020, so they lacked title and possession at the material time.

p. 6
02

Whether the suit property was visibly enclosed so as to support trespass quare clausum fregit

Holding

The court was doubtful the plot was enclosed by a perimeter fence as alleged.

Reasoning

The court noted the ambiguity of both the lease and sale agreements, the absence of photographs of the alleged fence, the lack of a claim for the demolished fence in special damages, and the seller's failure to testify. Ten acres was expansive and the prominence of beacons was unproven.

p. 6
03

Costs of the suit

Holding

Each party to bear their own costs, given the conduct and duration of the suit.

Reasoning

Applying Cecilia Karuru Ngayu v Barclays Bank, the court considered the parties' conduct, the depth of evidence, and the long-standing tussle since 2016, concluding an order for costs would only prolong the dispute.

p. 8

Legal principles established

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  • Only registration of a person as proprietor of land confers absolute and indefeasible ownership enabling an action in trespass; a purchaser without registration and without possession cannot sue in trespass.
  • The proper plaintiff in an action of trespass to land is the person with title or deemed possession at the time of the trespass.
  • In determining costs the court considers the conduct of the parties, the subject of litigation, the circumstances leading to the proceedings and their termination, and the need to promote reconciliation.

Court orders

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  1. 1.The Plaintiffs' suit is hereby dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Land Registration ActSection 25(1)
  • Land Registration ActSections 18 and 19
  • Land Registration ActSection 18(1)
  • Survey ActSections 24 and 32
  • Registration of Titles ActSection 23(1)
  • Constitution of KenyaArticle 159(2)(c)

Cases cited (10)

  • Moya Drift Farm Ltd v Theuri
    [1973] 1 EA 114
  • Joseph N.K. Arap Ng'ok v Moijo Ole Keiwua & 4 others
    [1997] eKLR
  • Charles Ogejo Ochieng v Geoffrey Okumu
    [1995] eKLR
  • Ochako Obinchu v Zachary Oyoti Nyamongo
    [2018] eKLR
  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & another
    [2016] eKLR
  • Rhoda S Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited
    [2019] eKLR
  • Ajit Bhogal v Kenya Power And Lighting Co. Ltd
    [2020] eKLR
  • Union Technology Kenya Limited v County Government of Nakuru
    [2019] eKLR
  • Kenya Power and Lighting Company Limited v Philip A.M. Kimondiu
    [2018] eKLR
  • New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd
    [1988] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim for trespass to land

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, "Mwendwa & another v China Road and Bridge Corporation (Kenya (Environment & Land Case 146 of 2017) [2022] KEELC 141 (KLR)", Case Analysis (2022). Not stated in the judgment text (originally filed in Machakos ELC in 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/141/eng@2022-06-16

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