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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 1244 (KLR)

Josephat Mburugu v Silas Mwiti Mugwika [2022] KEELC 1244 (KLR)

Environment and Land Court
23 February 2022
CNC.K. Nzili
2,929 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that trespass claims fail without surveyor's evidence, and damages must be specifically pleaded to succeed.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru against a trial court judgment that had dismissed the appellant's claim for a permanent injunction over trespass on L.R No. Nkuene/U-Mikumbune/1547 and entered judgment for the respondent on his counterclaim. The respondent counterclaimed that the appellant had since 2013 blocked a public access road with a permanent gate, and sought a mandatory injunction to reopen the road. Following a locus visit, the land registrar and surveyors reported that the respondent's parcel boundaries were intact and correlated with the Registry Index Map, while the appellant's gate encroached on the road reserve by approximately nine metres, blocking the respondent's access by five metres, possibly due to survey errors. Neither party cross-examined the officers or disputed the report. On appeal, the court found that the appellant had failed to prove any trespass or encroachment by the respondent, having produced no title deed or survey report, so his injunction claim failed. The court further held that the trial court erred in awarding damages: mesne profits were neither pleaded nor prayed for, no loss was proved, and no figure was mentioned, mesne profits being special damages requiring pleading and proof. Although the appellant's gate stood on a public road reserve, no evidence of reckless or deliberate trespass was adduced, and the respondent had not enjoined the custodians of the road. Allowing the appeal, the court dismissed both the suit and the counterclaim, with each party bearing its own costs.

Key legal issues

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01

Whether the appellant proved trespass by the respondent on his parcel L.R No. 1547

Holding

The appellant failed to prove any encroachment or illegal entry by the respondent; the surveyor's report showed both parcels intact with the appellant encroaching on the road reserve

Reasoning

The appellant relied only on a boundary-dispute application and receipt and produced no title deed or survey report showing encroachment or acreage affected. The unchallenged land registrar/surveyor report found the respondent's parcel boundaries intact and correlated with the RIM, while the appellant's gate encroached on the road reserve. Without evidence of illegal entry, the claim for a permanent injunction failed.

p. 3
02

Whether damages/mesne profits were properly awarded to the respondent on the counterclaim

Holding

No damages were payable: none were pleaded or prayed for, no loss was proved, and no figure was mentioned

Reasoning

The respondent never pleaded or prayed for mesne profits or general damages, adduced no evidence of loss from the blocked access road, and mentioned no figure. Mesne profits being special damages must be specifically pleaded and proved. The appellant was thus denied notice and an opportunity to counter such a claim, so the award could not stand.

p. 4
03

Weight to be attached to the unchallenged surveyor/land registrar report

Holding

Neither party disputed the report, sought cross-examination, or produced a contrary one, so the court was bound by its findings

Reasoning

The report filed following the locus visit found the respondent's parcel intact and the appellant's gate on the road reserve blocking access by five metres. No party sought leave to cross-examine the officers or questioned the report's credibility, authenticity or probative value, and no alternative report was produced. Its recommendations that the appellant relocate his gate therefore stood unrebutted.

p. 3

Legal principles established

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  • A party seeking a permanent injunction for trespass must prove illegal entry into or encroachment upon their land, ordinarily by surveyor's evidence
  • Mesne profits are special damages which must be specifically pleaded and proved
  • A party seeking an injunction must first prove infringement of his rights before calling for rebuttal

Court orders

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  1. 1.The appeal is allowed with merits
  2. 2.The lower court suit is dismissed
  3. 3.The counterclaim is dismissed
  4. 4.Each party shall bear its own costs

Authorities

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Legislation

  • Trespass ActSection 3(1), Cap 294
  • Surveyors ActSection 21
  • Survey RegulationsRegulation 26 (Surveyors Regulations 1994); Regulations 56, 60 and 91 of the Survey Rules
  • Traffic ActSection 91, Cap 403
  • Kenya Roads ActNot specified
  • Civil Procedure RulesOrder 21 Rule 13; Order 11

Cases cited (11)

  • Peters –vs- Sunday Post Ltd
    (1958) EA 424
  • Duncan Nderitu Ndegwa –vs- Kenya Power & Lightening Ltd & Another
    [2013] eKLR
  • Rhoda S. Kiilu –vs- Jiangxi Water & Hydro Power Construction (K) Ltd
    [2019] eKLR
  • Entick –vs- Carrington
    [1765] EWHC KB J98
  • Ntukusoi Ole Letiria –vs- Ruth Ngonyo Kangethe
    [2019] eKLR
  • Kenya Power & Lightening Company Ltd –vs- Sheriff Molana Habib
    [2018] eKLR
  • Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Elizabeth Wambui Githinji & 29 Others –vs- Kenya Urban Roads Authority & 4 Others
    [2019] eKLR
  • Chief Land Registrar & 4 Others –vs- Nathan Tirop Koech & 4 Others
    [2018] eKLR
  • Karanja Mbugua & Another –vs- Marybin Holdings Co. Ltd
    [2014] eKLR
  • Stephen Njuguna Kiragu & Another –vs- Kenya National Highways Authority
    [2018] eKLR
On appeal from
Magistrates' Court
Jurisdiction invoked
First appeal from the trial court (magistrates' court) under the court's appellate jurisdiction; the judgment notes 'This being a first appeal, the court is obliged to re-evaluate, rehearse and re-assess the pleadings, evidence and come up with its own findings and conclusion'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Josephat Mburugu v Silas Mwiti Mugwika [2022] KEELC 1244 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1244/eng@2022-02-23

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