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ELCPartially AllowedNot stated in the extract (E&L suit, Nyahururu)· [2022] KEELC 952 (KLR)

Harrison Chege Kariuki v Jeremiah Kanyanjua Njuguna & 4 others [2022] KEELC 952 (KLR)

Environment and Land Court
3 March 2022
YAY. M. Angima
2,232 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Nyahururu court confirmed no access road crossed the plaintiff's land but refused damages because he could not prove who destroyed his gate.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of parcels Nyandarua/Ol Aragwi/6282 and 6283 acquired from the 3rd and 4th Defendants, sued for a permanent injunction and damages for trespass, alleging that the 1st, 2nd and 5th Defendants destroyed his gate and pillars on parcel 6283 in 2015 on the pretext that the gate blocked an access road. The Defendants denied the claim, filed a preliminary objection based on pending magistrate court proceedings, which were stayed by consent in October 2017 pending this suit. At trial the court framed four issues. On the first, it held, on the Registry Index Map and the Defendants' own mutation form, that no access road traversed parcel 6283; the alleged road terminated at parcel 6282, and no steps had been taken under the Public Roads and Roads of Access Act. The court found a private surveyor's contrary copy of the mutation to be doctored. On the second issue, it held the Plaintiff had not proved that the Defendants caused the destruction: the worker who reported the incident was not called, and the photographs and police OB did not identify the culprits. A permanent injunction was granted only in respect of parcel 6283, since no claim was made against the Plaintiff regarding parcel 6282. Damages, both general and special, were refused for failure of proof and lack of particularisation of special damages. Having partly succeeded and partly failed, each party was ordered to bear their own costs.

Key legal issues

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01

Existence of an access road through parcel 6283

Holding

No access road traverses parcel 6283; neither the mutation form nor the Registry Index Map reflects one, and the Defendants took no legal steps to create one

Reasoning

The official RIM tendered in evidence showed no road through parcel 6283. The Defendants' own mutation form showed the access road terminating at parcel 6282. The 4th Defendant's claim of an oral instruction to her surveyor was unsupported, and she never sought rectification from survey authorities. The private surveyor's copy was found to be doctored. No steps were taken under the Public Roads and Roads of Access Act.

p. 3
02

Trespass and destruction of property

Holding

Not proved; photographic and OB evidence did not establish that the Defendants destroyed the gate and pillars

Reasoning

The registered proprietorship was not contested, but the Plaintiff's worker who reported the incident was not called as a witness. The photographs only showed the gate brought down, not who did it, and the OB entry only recorded that a report was made. Burden of proof was therefore not discharged.

p. 3
03

Special damages particularisation

Holding

Special damages for destruction of pillars and gate were not properly particularised as required by law and were declined

Reasoning

Although pleaded generally in the plaint, damages for the destroyed pillars and gate were not itemised as the law requires for special damages, so no award could be made in any event.

p. 3

Legal principles established

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  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act, but the court may direct otherwise for good reason

Court orders

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  1. 1.An order of permanent injunction restraining the Defendants jointly and severally from destroying the Plaintiff’s property on, or interfering with his proprietary rights over Title No. Nyandarua/Ol Aragwi/6283
  2. 2.The Plaintiff’s claim for general damages for trespass and special damages declined
  3. 3.Each party shall bear his own costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 15 Rule 2
  • Public Roads and Roads of Access ActCap 399
  • Civil Procedure ActSection 27 (proviso)

Cases cited (1)

  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original civil suit under the Civil Procedure Act (Cap. 21)

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, "Harrison Chege Kariuki v Jeremiah Kanyanjua Njuguna & 4 others [2022] KEELC 952 (KLR)", Case Analysis (2022). Not stated in the extract (E&L suit, Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/952/eng@2022-03-03

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