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ELCPartially AllowedNot stated in judgment (Plaint dated 9th December 2008, filed 16th January 2009)· [2022] KEELC 667 (KLR)

Wambui Wagacha & another v Dominic Kinya Ngaba; S/Sarah Wanjiku Kinya (Interested Party) [2022] KEELC 667 (KLR)

Environment and Land Court
28 March 2022
2,550 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded landowners over Kshs. 19.6 million against a man who built his house on their land, because he offered no evidence in his defence.

What this practically means

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Executive summary

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This was an assessment of damages following summary judgment entered on 4th September 2013 in favour of the Plaintiffs, registered proprietors of LR Nos. 20604/69 and 20604/70 in Mavoko Municipality, against a Defendant who had purchased two adjacent plots but constructed his house on the Plaintiffs' land from 2000. A Decree and eviction order issued in 2016 and the Defendant was evicted, though his structure remains standing. At the hearing the Plaintiffs called two witnesses, including a registered valuer, while the Defendant called none. The court framed three issues: entitlement to general and aggravated damages for trespass, entitlement to mesne profits, and costs. Relying on Land Registration Act sections 24, 25 and 26 and authorities holding that trespass is actionable per se and that an undefended assertion leaves evidence uncontroverted, the court found the trespass proved on a balance of probability. The Defendant's claim that he learnt of the dispute only in 2009 was rejected as untenable given his own 2004 letters admitting construction from 2000. The court declined to award the valuer's figures for land value and development value, but awarded Kshs. 17,400,000 as rental value from January 2000 to November 2018, Kshs. 1,225,000 for loss of rental income from December 2018 to October 2021, Kshs. 1 million demolition costs, and special damages of Kshs. 50,000, 78,000 and 168,000 for auctioneer and security expenses, while refusing Kshs. 46,710 land rates as the Plaintiffs' own responsibility. Costs were awarded to the Plaintiffs. Judgment delivered virtually at Machakos on 28th March 2022 by Christine Ochieng, J.

Key legal issues

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01

Whether the Plaintiffs' evidence stood uncontroverted

Holding

Yes - the Defendant filed a Statement of Defence but called no witnesses, so the Plaintiffs' evidence remained uncontroverted

Reasoning

The court relied on Janet Kaphiphe Ouma v Marie Stopes International citing Edward Muriga v Nathaniel D. Schulter, holding that a defence unsupported by evidence leaves the plaintiff's testimony unchallenged. The Defendant tendered no evidence, and his letters of 2004 contradicted his claim of ignorance of the dispute until 2009.

p. 2
02

Whether the Plaintiffs were entitled to general, aggravated damages and mesne profits for trespass

Holding

Yes - trespass was established and, because the Defendant's structure still stands on the land, general and aggravated damages and mesne profits were awarded

Reasoning

Trespass was defined as intrusion on land in another's possession without justifiable cause. Sections 24, 25 and 26 of the Land Registration Act confer on registered proprietors all rights and privileges over their land. The court applied the principle that trespass is actionable per se and awarded mesne profits based on the uncontroverted valuation report on rental income from 2000.

p. 3
03

Whether special damages were proved

Holding

Partially - the auctioneer and security service receipts were proved, but the land rates claim of Kshs. 46,710 was rejected

Reasoning

The Plaintiffs produced receipts for eviction costs by Pyramid Auctioneers, security services and rates. The court accepted the expenses supported by receipts but held that rates on their own land were the Plaintiffs' own responsibility and could not be visited on the Defendant.

p. 3
04

Costs of the suit

Holding

Costs awarded to the Plaintiffs as the inconvenienced party

Reasoning

Following the general rule that costs follow the event, and given the Defendant's trespass caused the Plaintiffs' inability to utilise their land, the court awarded the Plaintiffs the costs of the suit.

p. 3

Legal principles established

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  • A party who files a defence but fails to adduce evidence leaves the plaintiff's evidence uncontroverted
  • Trespass to land is actionable per se and no proof of damage is necessary for an award of general damages
  • Mesne profits are special damages which must be both pleaded and proved

Court orders

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  1. 1.Kshs. 17,400,000 for rental value for the period 1st January, 2000 up to 30th November, 2018
  2. 2.Kshs. 1,225,000 for loss of rental income from 1st December, 2018 to 31st October, 2021
  3. 3.Cost of demolition amounting to Kshs. 1 million
  4. 4.Special damages of Kshs. 50,000 to Pyramid Auctioneers; Kshs. 78,000 to Inter Security Services Limited; Kshs. 168,000 to Wycliffe Dechia Inyambuka for provision of security services on suit lands
  5. 5.Costs of the suit awarded to the Plaintiffs

Authorities

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Legislation

  • Land Registration ActSections 24, 25 and 26
  • Trespass ActSection 3(1) and (2)

Cases cited (11)

  • Park Towers Ltd V John Mithamo Njika & 7 Others
    (2014) eKLR
  • Visor Saw Mills Ltd Vs Attorney General
    (1997) eKLR
  • Duncan Nderitu Ndegwa V Kenya Pipeline Company Limited & Another
    (2013) eKLR
  • Attorney General V Halal Meat Products Limited
    (2016) eKLR
  • Rookes V Barnard
    (1964) AC 1129
  • Thompson V Commissioner of Police of the Metropolis
    (1998) QB 498
  • Cassel & Co V Broome
    (1972) AC 1129
  • Nazmudin Shar & 3 Others V Kenya Power & Lighting Co. Ltd
    (2018) eKLR
  • Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya)
    Kisumu HCCC No. 68 of 2007
  • Edward Muriga through Stanley Muriga vs. Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Juliet Karisa -v- Joseph Barawa & Another
    Civil Appeal No. 108 of 1988 (Unreported)
Jurisdiction invoked
Original civil jurisdiction over land claims (trespass, eviction and damages); suit instituted by Plaint under the Civil Procedure Act and Land Registration Act framework

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, "Wambui Wagacha & another v Dominic Kinya Ngaba; S/Sarah Wanjiku Kinya (Interested Party) [2022] KEELC 667 (KLR)", Case Analysis (2022). Not stated in judgment (Plaint dated 9th December 2008, filed 16th January 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/667/eng@2022-03-28

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