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ELCPartially AllowedNot stated in judgment· [2022] KEELC 367 (KLR)

Joseph Murimi Gaita v Susan Mbeke Kasome [2022] KEELC 367 (KLR)

Environment and Land Court
24 March 2022
OAO. A. Angote
2,786 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court found a Nairobi landowner's plot was trespassed on and awarded him Kshs 500,000 plus a permanent injunction.

What this practically means

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Executive summary

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The Plaintiff sued claiming he purchased Plot No. P1778 (Embakasi Ranching Share Certificate No. 11525) in 1999 for Kshs 200,000, that Embakasi Ranching Company Limited sanctioned the transfer and pointed out beacons, and that the Defendant, claiming to own Plot V10022, trespassed and erected a temporary structure on his plot. He sought an injunction and general damages of Kshs 2,000,000 for trespass. The Defendant filed a Defence asserting that Plot V10022 belongs to her son and daughter-in-law, for whom she held powers of attorney and had sued Embakasi Ranching in ELC No. 1537 of 2013, but she did not testify. The court framed three issues: whether the two plot numbers refer to the same parcel, whether trespass occurred, and entitlement to relief. It held that documents not formally produced in evidence have no evidentiary value, and that although the Defendant gave no evidence, the Plaintiff's burden of proof remained undiminished. Finding no evidence that the two plots were identical, the court concluded they are distinct and that the Plaintiff proved ownership of P1778 on a balance of probabilities. The Plaintiff's unrebutted testimony established trespass, which is actionable per se. Rejecting the claim for Kshs 2,000,000 for want of assessment evidence, the court awarded nominal damages of Kshs 500,000, issued a permanent injunction against trespass on Plot P1778, and ordered the Defendant to pay the costs of the suit.

Key legal issues

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01

Whether plots P1778 and V10022 are one and the same parcel

Holding

In the absence of evidence from the Defendant, the court found the plots are distinct and the Plaintiff is the proprietor of P1778

Reasoning

The Defendant bore the burden of proving the two registration numbers referred to the same parcel but called no evidence and did not produce her documents formally. The Plaintiff held documents showing registration in his favour, so on a balance of probabilities the plots are distinct.

p. 3
02

Whether the Defendant trespassed on the suit plot

Holding

Trespass established; PW1's unrebutted testimony of encroachment and construction of a temporary structure stood

Reasoning

The Plaintiff testified that the Defendant constructed a temporary structure on his plot without permission. The Defendant did not testify or rebut this evidence. Trespass to land being actionable per se, damages follow once trespass is proved.

p. 3
03

What damages are payable for the trespass

Holding

Nominal/general damages of Kshs 500,000 awarded instead of the Kshs 2,000,000 sought

Reasoning

No evidence was led to assist assessment. The structure was temporary and the Plaintiff did not know when it was erected, suggesting no immediate development plans. Applying Halsbury's principles, only nominal compensation was appropriate.

p. 4

Legal principles established

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  • A document filed but not formally produced as an exhibit is of no evidentiary value
  • A plaintiff's burden of proof is not lessened by the defendant's failure to adduce evidence
  • Trespass to land is actionable per se and proof of damage is not required

Court orders

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  1. 1.A permanent injunction restraining the Defendant and her agents/servants from trespassing on Plot P1778 situate in Ruai, Embakasi
  2. 2.The Defendant to pay the Plaintiff Kshs 500,000 as general damages for trespass
  3. 3.The Defendant to pay the costs of the suit

Authorities

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Legislation

  • Evidence ActSections 107 and 109
  • Trespass ActSection 3(1)

Cases cited (7)

  • North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited vs City Council of Nairobi
    [2019] eKLR
  • Josephat Thuo Githachuri vs Joseph Kibui Mwithiga
    [2020] eKLR
  • Kenneth Nyaga Mwige vs Austin Kiguta & 2 others
    (2015) eKLR
  • Motex Knitwear Limited vs Gopitex Knitwear Mills Limited Nairobi
    [2009] eKLR
  • Autar Singh Bahra and Another vs Raju Govindji
    HCCC No. 548 of 1998
  • Charterhouse Bank Limited
    [2016] eKLR
  • Kenya Power & Lighting Company Limited vs Fleetwood Enterprises Limited
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over trespass to land (not expressly invoked in the judgment)

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, "Joseph Murimi Gaita v Susan Mbeke Kasome [2022] KEELC 367 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/367/eng@2022-03-24

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