Moto Moto Multipurpose Cooperative Society Limited (Suing through Josephine K. Mutua – Chairperson, George G. Kimari – Secretary & Johnson Kanyongoro- Treasurer) v Florence A Odhiambo & 6 others [2022] KEELC 635 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants trespassed on the suit land
The Plaintiff, as registered proprietor with an unchallenged Certificate of Title, is the absolute proprietor and the Defendants' erection of structures and leasing of the land amounted to trespass
The Plaintiff produced a Certificate of Title proving ownership, which under Sections 24, 25 and 26 of the Land Registration Act vests absolute and indefeasible ownership. The Defendants, though served, did not enter appearance or file defences, leaving the Plaintiff's evidence uncontroverted. PW1 and PW2 testified that the Defendants erected permanent structures and leased the land to third parties, constituting trespass to the Plaintiff's quiet possession.
Whether the Defendants should be evicted and permanently restrained
Yes - the Defendants are trespassers who should be evicted after ample notice and permanently restrained
The Defendants failed to controvert the Plaintiff's evidence and photographs of permanent structures on the land. The court found them to be trespassers entitled to eviction after ample notice, and applying the Giella v Cassman Brown principles, granted a permanent injunction restraining further trespass.
Whether the Plaintiff is entitled to damages for trespass
Yes - general damages of Kshs. 200,000 awarded despite absence of proof of specific loss, as trespass is actionable per se
Although the Plaintiff did not provide evidence of the specific loss incurred, the court relied on Duncan Nderitu Ndegwa v KP & LC Limited, holding that trespass is actionable per se and proof of damage is unnecessary. The court awarded Kshs. 200,000 as general damages for the infringement of the Plaintiff's right to use and enjoy the suit property.
Legal principles established
#- A Certificate of Title is prima facie evidence of absolute and indefeasible ownership under Section 26(1) of the Land Registration Act
- Trespass to land is actionable per se and no proof of damage is necessary for the award of general damages
Court orders
#- 1.Declaration that the Plaintiff is the lawful owner of Land Reference Number 7149/10 situated at Mavoko, Mlolongo area, off Mombasa Road Machakos County
- 2.Permanent injunction restraining the 1st to 7th Defendants, their agents and servants from further using, trespassing, erecting structures or in any other way dealing with LR No. 7149/10
- 3.Defendants to vacate and deliver vacant possession of LR No. 7149/10 to the Plaintiff within Ninety (90) Days, failing which an order of forcible eviction to issue upon application by the Plaintiff
- 4.General damages of Kshs. 200,000 for trespass with interest at court rates from the date of Judgment until payment in full
- 5.Costs of the suit awarded to the Plaintiff
- Jurisdiction invoked
- First-instance suit under the Civil Procedure and Land Registration Act (specific enabling provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moto Moto Multipurpose Cooperative Society Limited (Suing through Josephine K. Mutua – Chairperson, George G. Kimari – Secretary & Johnson Kanyongoro- Treasurer) v Florence A Odhiambo & 6 others [2022] KEELC 635 (KLR)", Case Analysis (2022). Not stated in the judgment (Plaint dated 24th January, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/635/eng@2022-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.