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ELCPartially AllowedELC 258 of 2016· [2022] KEELC 2086 (KLR)

Paul Wanjigi Njoroge v Come-Cons Africa Ltd & 2 others [2022] KEELC 2086 (KLR)

Environment and Land Court
19 January 2022
4,342 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Naivasha landowner won eviction of trespassers but got no compensation because he couldn't prove exact rent figures, and Kenya Power's electricity dispute had to go through the Energy Act process.

What this practically means

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Executive summary

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The plaintiff, registered owner of Naivasha Town Block 2/859, sued the 1st and 2nd Defendants for trespass - erection of wooden structures and occupation - and the 3rd Defendant, Kenya Power, for allegedly installing illegal electricity connections. The 1st and 2nd Defendants never entered appearance and interlocutory judgment was entered against them; the 3rd Defendant participated by submissions only. The plaintiff died during the pendency of the suit and his son, John Mbugua Wanjigi, was substituted. At trial, PW1 and PW2 testified, producing a Certificate of Lease and photographs. The court found the plaintiff had proved ownership under Section 26 of the Land Registration Act and that the 1st and 2nd Defendants had trespassed by erecting and letting out structures and using the land for vehicle parking. On the claim against the 3rd Defendant, the court held that the laying of electric supply lines and any resulting disputes fell under sections 46, 47, 48 and 107 of the repealed Energy Act and its dispute resolution mechanism; applying the exhaustion doctrine, it found no evidence of illegality in the connection process and dismissed the claim against the 3rd Defendant. The claim for mesne profits failed because no specific amounts of rent or profits were pleaded or proved, mesne profits being special damages requiring strict proof. The court granted a permanent injunction and eviction orders against the 1st and 2nd Defendants, to be effected 90 days after service, dismissed the claim against the 3rd Defendant with no order as to costs, and awarded the plaintiff costs against the 1st and 2nd Defendants.

Key legal issues

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01

Whether the Plaintiff proved ownership of the suit land

Holding

Yes; the Certificate of Lease was unchallenged and conclusive under Section 26 of the Land Registration Act

Reasoning

The Plaintiff produced a Certificate of Lease as proof of proprietorship. Relying on Section 26 of the Land Registration Act and the unchallenged nature of the evidence, the court found ownership established, entitling the Plaintiff to assert rights as proprietor of the suit parcel.

p. 3
02

Whether the 1st and 2nd Defendants trespassed

Holding

Yes; they erected wooden structures, rented them out and used part of the land for parking, unsupported by any documents

Reasoning

PW1 and PW2 testified that the 1st and 2nd Defendants entered the land and erected wooden structures, which the 2nd Defendant rented out while using part of the land as a parking yard; photographs corroborated this. The Defendants, who entered interlocutory judgment, produced no documents justifying their occupation. Applying Halsbury's definition, trespass was established.

p. 3
03

Whether the claim against the 3rd Defendant sustains

Holding

No; the process of laying electricity supply lines and resulting disputes fall under the Energy Act's dispute resolution mechanism, which was not exhausted

Reasoning

Although the plaint disclosed a cause of action against the 3rd Defendant, no evidence was led on the process culminating in the power supply so as to determine illegality. Sections 46, 47, 48 and 107 of the repealed Energy Act govern survey, laying of supply lines, objections and dispute resolution. Applying the exhaustion doctrine, the court declined jurisdiction over that aspect and dismissed the claim against the 3rd Defendant.

p. 5
04

Whether the Plaintiff is entitled to mesne profits

Holding

No; mesne profits are special damages requiring specific pleading and strict proof, and no evidence of amounts received was adduced

Reasoning

Citing Rajan Shah and Peter Mwangi Msuitia, the court noted mesne profits compensate a true owner for a trespasser's occupation, but must be specifically pleaded and strictly proved as special damages (Nakuru Industries Ltd v S.S. Mehta and Sons). No evidence was led as to the rent and profits received by the Defendants, so the prayer failed.

p. 6
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Costs

Holding

Plaintiff awarded costs against the 1st and 2nd Defendants; 3rd Defendant denied costs despite success on its claim

Reasoning

Costs follow the event under Section 27 of the Civil Procedure Act. The 3rd Defendant succeeded only to the extent the suit was dismissed against it, and its participation was limited to a memorandum of defence and submissions. The court, in its discretion, found the circumstances did not merit awarding it costs.

p. 6

Legal principles established

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  • A certificate of lease/title is conclusive evidence of proprietorship under Section 26 of the Land Registration Act
  • Any form of clear and exclusive possession, exercised with intention to possess, suffices to support trespass
  • Where an Act of Parliament provides a dispute resolution mechanism, it must be exhausted before invoking the court's jurisdiction
  • Mesne profits are a form of special damages which must be specifically pleaded and strictly proved
  • Costs follow the event under Section 27 of the Civil Procedure Act, but the court may decline costs for good reason

Court orders

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  1. 1.A permanent injunction/restraining orders issued against the 1st and 2nd Defendant on land known as Naivasha Town Block 2/859
  2. 2.Orders of eviction and removal of all illegally erected structures issued against the 1st and 2nd Defendant
  3. 3.The eviction orders to be effected after 90 days of service of the court order
  4. 4.The claim for mesne profits fails
  5. 5.The suit as against the 3rd Defendant is dismissed with no order as to costs
  6. 6.The Plaintiff to have the costs of the suit as against the 1st and 2nd Defendant

Authorities

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Legislation

  • Land Registration ActSection 26
  • Energy Act No. 12 of 2006 (Revised/Amended 2012)Sections 46, 47, 48, 107
  • Energy (Complaints and Dispute Resolution) Regulations 2012Regulation 2
  • Civil Procedure Act (Cap. 21)Section 27
  • Constitution of KenyaArticle 159

Cases cited (12)

  • Janeth Chepkoech and another
    (2019) eKLR
  • Elizabeth Chemutai Chepkwony Vs Janeth Chepkoech and Another
    (2019) eKLR
  • Crescent Construction Co. Ltd Vs Delphis Bank Ltd
    2007 eKLR
  • James Mwaura Ndungu Vs Kenya Power & Lighting Company Ltd
    Nairobi CA No. 228 of 2011
  • Alice Mweru Ngai -vs- Kenya Power & Lighting Co.
  • Samson Chembe Vuko Vs Nelson Kilumo & 2 Others
    [2016] eKLR
  • Geoffrey Muthinja Kabiru & 2 Others Vs Samuel Munga Henry & 1756 Others
    [2015] eKLR
  • Rajan Shah T/A Rajan S. Shah & Partners Vs Bipin P. Shah
    (2016) eKLR
  • Peter Mwangi Msuitia & Another Vs Samow Edin Osman
    (2014) eKLR
  • Nakuru Industries Ltd Vs S.S. Mehta and Sons
    (2016) eKLR
  • Hussein Janohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    (1967) EA 287
  • Jabir Singh Rai & Others Vs Tarlochan Rai & Others
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Environment and Land Court Act); suit by plaint seeking injunction, eviction, mesne profits

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Paul Wanjigi Njoroge v Come-Cons Africa Ltd & 2 others [2022] KEELC 2086 (KLR)", Case Analysis (2022). ELC 258 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2086/eng@2022-01-19

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