Samuel Njoroge Gichuhi v George Macharia Kagua & another [2022] KEELC 178 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that trespass claims never expire, and a developer built on the wrong plot at his own cost.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was barred by limitation given the plaintiff became aware of the intrusion in 1998 but sued in 2013
The claim is one of continuing trespass, which is not time-barred.
The claim against the 1st defendant is in trespass under the Trespass Act Cap 403. Relying on Clerk & Lindsell on Torts and the Court of Appeal decision in Muthiora v Kiara, the court held that every continuance of a trespass is a fresh trespass creating a new cause of action day to day as long as the trespass continues, so the claim filed in 2013 was not barred despite knowledge of entry in 1998.
Who between the plaintiff and the 1st defendant lawfully occupies the disputed ground - Plot 668 or Plot 677 Gilgil Site & Service
On a balance of probability, the surveyor's Ground Status Report proved that the 1st defendant is in occupation of Plot No. 668, which belongs to the plaintiff, and not his own Plot No. 677.
Both parties claimed the same ground under different plot numbers. The 1st defendant traced a chain of transfers for Plot 677 from Kamunya Ndemo through Elijah Muriu and Joseph Cuthi Kinja to himself, while the plaintiff held a re-issued allotment letter for Plot 668 and paid rates. The 2018 survey placed Plot 668 next to the Nakuru-Nairobi highway, where the 1st defendant had developed, and Plot 677 undeveloped near the Village Polytechnic. The 1st defendant had been informed in 2004 he was on the wrong plot and served with a demolition order, yet continued construction.
Whether the plaintiff was entitled to the declaratory, eviction, injunction and damages relief sought
The plaintiff established his claim and judgment was entered with the declarations, eviction, permanent injunction, general damages and costs granted as prayed.
Having found the claim not time-barred and that the plaintiff proved occupation rights over Plot 668 on the balance of probability, the court concluded the claim must succeed. The court also held the 2nd defendant, the allocating authority, failed to resolve a dispute within its ability and could not escape liability for costs.
Legal principles established
#- Trespass is a continuing tort and each continuance of the trespass gives rise to a fresh cause of action; a claim in trespass is therefore not barred by limitation so long as the trespass continues.
- A claim in trespass is not defeated by the Limitation of Actions Act by a party occupying County-allocated land without authority.
Court orders
#- 1.Declaration that the plaintiff is entitled to exclusive and unimpeded possession of LR No. 668 Gilgil Site & Service Residential and that the 1st defendant is a trespasser occupying the plaintiff's parcel illegally
- 2.Eviction of the 1st defendant from Plot No. 668 Gilgil Site & Service Residential forthwith, and in default, the relevant officials of the Nakuru County Government to enter, evict him and remove his structures to give vacant possession to the plaintiff
- 3.Permanent injunction restraining the defendants or their servants/agents from entering, constructing, remaining, taking up, evicting, leasing out, renting out and/or interfering with the plaintiff's quiet possession and occupation of parcel Plot LR No. 668 Gilgil Site & Service Residential
- 4.General damages for trespass of Ksh 50,000/= payable by the 1st defendant to the plaintiff
- 5.Defendants jointly and severally to bear the costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (plot LR No. 668 Gilgil Site & Service Residential)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Njoroge Gichuhi v George Macharia Kagua & another [2022] KEELC 178 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/178/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.