John Nduba v Director of Surveys & another [2022] KEELC 1368 (KLR)
The bottom line
#A Kenyan court ordered a landowner to move an encroaching fence within 60 days and paid damages, proving boundary trespass claims can't be defeated by delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the correct procedure for resolving the fixed boundary dispute was followed
The procedure was properly followed; the Regional Surveyor's report of 21 November 2018 was adopted
The boundary was a fixed boundary and the Chief Land Registrar had directed the parties to the Director of Survey, who is empowered under Sections 15-17 of the Land Registration Act to alter and rectify boundary lines based on approved plans. The Regional Surveyor visited the site and prepared a report finding encroachment of 2.8 metres. Even the Plaintiff's own surveyor's report adopted the findings. The court held the process was proper and adopted the report.
Whether the Plaintiff's encroachment was time-barred under the Limitation of Actions Act
The encroachment constituted a continuing trespass, which is not barred by the Limitation of Actions Act
The Plaintiff argued that the trespass claim was extinguished by Section 4(2) of the Limitation of Actions Act since the Defendant had not raised the encroachment with the previous owner. The court found that the Plaintiff's action amounted to continuous trespass, and continuing causes of action are not barred by the Act. The limitation defence therefore failed.
Entitlement to permanent injunction and damages for trespass
The Defendant proved the encroachment and was granted a permanent injunction and nominal damages of Kshs 200,000
The court found trespass to land actionable per se, relying on Park Towers Ltd and Duncan Nderitu Ndegwa. Although the Defendant did not indicate an amount to guide assessment of general damages, the court was still obligated to assess damages and awarded Kshs 200,000 as nominal damages considering the duration of the trespass. The threshold for a permanent injunction was met as the Plaintiff had no right to encroach on the Defendant's land.
Costs of the counterclaim
Each party to bear their own costs despite the general rule that costs follow the event
Although Section 27 of the Civil Procedure Act provides that costs follow the event, the court noted the parties were neighbours of several years. It reasoned that in such suits the court should ensure the dispute is amicably resolved without further straining the relationship, and imposing costs on either party would not be appropriate.
Legal principles established
#- Trespass to land is actionable per se without proof of damage
- Continuous trespass is not barred by the Limitation of Actions Act
- Special damages must be pleaded and specifically proved
- Costs follow the event under Section 27 of the Civil Procedure Act unless the court directs otherwise
Court orders
#- 1.Judgment entered for the 2nd Defendant/Plaintiff in Counterclaim
- 2.A permanent injunction restraining the Defendant to the counterclaim, his agents, servants, employees and people working under him from entering, encroaching, trespassing or interfering with the Plaintiff's quiet possession of L.R No. 13843/2
- 3.The Defendant to the counterclaim to move, at his own cost, the live fence and any other encroaching fixture onto L.R No. 13843/2 within sixty (60) days
- 4.Should the Defendant not comply within sixty (60) days, the Plaintiff in the counterclaim be at liberty to remove the encroachments himself
- 5.Nominal damages for trespass of Kshs 200,000 awarded to the Plaintiff in the counterclaim against the Defendant
- 6.The Defendant to pay Kshs 40,000 being costs of beacon re-establishment incurred by the Plaintiff in the counterclaim
- 7.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over boundary and trespass disputes relating to land
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Nduba v Director of Surveys & another [2022] KEELC 1368 (KLR)", Case Analysis (2022). ELC Case No. 475 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1368/eng@2022-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.