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ELCAllowedNot stated in the judgment (Plaint dated 24th January, 2018)· [2022] KEELC 635 (KLR)

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)

Environment and Land Court
24 March 2022
1,746 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Moto Moto Multipurpose Cooperative Society Limited, sued the 1st to 7th Defendants by Plaint dated 24th January 2018 seeking a permanent injunction, eviction, general damages for trespass, and costs in respect of Land Reference Number 7149/10 at Mavoko, Mlolongo, Machakos County. The Defendants were duly served but failed to enter appearance or file defences, and the suit proceeded for formal proof with two witnesses, the Plaintiff's Chairperson and Treasurer. They testified that the Plaintiff is the registered proprietor holding a Certificate of Title, that members noticed structures being erected on the land, and that a criminal investigator found the Defendants claiming ownership and erecting permanent structures, selling and leasing the land to third parties. The court framed five issues: trespass, eviction, damages, the orders sought, and costs. Relying on Sections 24, 25 and 26 of the Land Registration Act, the court held the Plaintiff is the absolute and indefeasible proprietor, its title unchallenged. Adopting Clerk & Lindsell's definition of trespass and the Trespass Act, the court found the Defendants' uncontroverted conduct amounted to continuing trespass. Applying Duncan Nderitu Ndegwa v KP & LC Limited, that trespass is actionable per se, the court awarded Kshs. 200,000 general damages despite no specific proof of loss. Applying Giella v Cassman Brown, it granted a permanent injunction, ordered eviction within ninety days with forcible eviction on default, and awarded costs to the Plaintiff.

Key legal issues

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01

Whether the Defendants trespassed on the suit land

Holding

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

Reasoning

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.

p. 2
02

Whether the Defendants should be evicted and permanently restrained

Holding

Yes - the Defendants are trespassers who should be evicted after ample notice and permanently restrained

Reasoning

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.

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03

Whether the Plaintiff is entitled to damages for trespass

Holding

Yes - general damages of Kshs. 200,000 awarded despite absence of proof of specific loss, as trespass is actionable per se

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.General damages of Kshs. 200,000 for trespass with interest at court rates from the date of Judgment until payment in full
  5. 5.Costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 24(a)
  • Trespass ActSection 3

Cases cited (7)

  • Justine Magare Bosire v. Isaac Omboga (2018) eKLR
  • Willy Kipsongok Morogo v Albert K. Morogo (2017) eKLR
  • Eliud Njoroge Gachiri vs. Stephen Kamau Nganga ELC No. 121 of 2017
    ELC No. 121 of 2017
  • Duncan Nderitu Ndegwa v. KP & LC Limited & Another (2013) eKLR
  • Ochako Obinchu v Zachary Oyoti Nyamongo (2018) eKLR
  • Nakuru Industries Limited Vs S S Mehta & Sons (2016) eKLR
  • Giella Vs Cassman Brown & Company Limited (1973) EA 358
    (1973) EA 358
Jurisdiction invoked
First-instance suit under the Civil Procedure and Land Registration Act (specific enabling provision not stated 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, "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.