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ELCAllowedMiscellaneous file arising from Kericho High Court Civil Suit No. 72 of 2005 (transferred suit CMCC No. 3 of 2015)· [2022] KEELC 2365 (KLR)

Chirchir v Chairman BOM Kiptalal Primary School Joshua Rono & another (Civil Miscellaneous Application 8 of 2017) [2022] KEELC 2365 (KLR)

Environment and Land Court
30 June 2022
4,522 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed a school trespassed on private land and ordered it to vacate, pay damages, and settle costs.

What this practically means

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Executive summary

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This first-instance judgment of the Environment and Land Court at Kericho, delivered by M.C. Oundo, J on 30th June 2022, resolved a trespass claim prosecuted in a miscellaneous file after the original court file (HCCC 72/2005, later CMCC 3/2015) went missing. The Plaintiff, suing as legal representative of the estate of Chebutit Arap Ngeny (registered owner of LR No. Kericho/Sosiot/768), alleged that the 1st Defendant, Kiptalta Primary School, which had legitimately purchased one acre from his late father in 1968, encroached a further 1.3 acres beyond the boundary. Three witnesses testified for the Plaintiff. The Defendants filed a defence pleading limitation under the Public Authorities Limitation Act and later submissions asserting purchase and long possession amounting to adverse possession and questioning the Plaintiff's locus standi, but did not attend the hearing; their defence case was closed. The court held that pleadings and submissions are not evidence, applying CMC Aviation Ltd v Cruisair Ltd, Motex Knitwear Ltd v Gopitex Knitwear Mills Ltd and related authorities, but that the Plaintiff still had to formally prove his case on a balance of probabilities. Under Section 26(1) of the Land Registration Act, the registered proprietor's title was absolute and indefeasible, no fraud or illegality having been shown. The court found it undisputed that the school had extended beyond the boundary and trespassed by 1.3 acres. Trespass being actionable per se, the court entered judgment for the Plaintiff: a declaration of trespass, an order to vacate within 30 days with eviction in default, general damages of Kshs.100,000/=, and costs with interest at a lower rate given the undefended nature of the suit.

Key legal issues

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01

Indefeasibility of title under Section 26(1) of the Land Registration Act

Holding

The plaintiff's father, as registered proprietor of LR No. Kericho/Sosiot/768, was vested with absolute ownership, no fraud or illegality having been shown

Reasoning

The court applied Section 26(1) of the Land Registration Act, under which a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. No such evidence having been adduced, the registered proprietor held absolute title with all appurtenant rights.

p. 7
02

Effect of a defendant's failure to adduce evidence

Holding

The plaintiff's unchallenged evidence is to be believed but must still be formally proved on a balance of probabilities

Reasoning

Relying on CMC Aviation Ltd v Cruisair Ltd, Motex Knitwear Ltd v Gopitex Knitwear Mills Ltd and related authorities, the court held that pleadings and submissions are not evidence. The defendants filed pleadings and submissions but did not testify, leaving the plaintiff's case unchallenged; nonetheless, the plaintiff retained the duty of formal proof.

p. 7
03

Trespass and entitlement to damages

Holding

The defendant school trespassed 1.3 acres beyond the boundary and, trespass being actionable per se, general damages of Kshs.100,000/= were awarded

Reasoning

The court found as undisputed that the school purchased one acre but planted trees on the boundary and extended onto the plaintiff's land by 1.3 acres. Applying the definitions of trespass in Black's Law Dictionary, the Trespass Act and Clark & Lindsell on Torts, and the authorities holding trespass actionable per se, the court awarded general damages without proof of specific loss.

p. 5

Legal principles established

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  • A registered proprietor's title is absolute and indefeasible except on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corruption
  • Pleadings are not evidence; where a defendant adduces no evidence, the plaintiff's unchallenged evidence is to be believed, though it must still be formally proved
  • Submissions are not evidence on which a case is decided
  • Trespass to land is actionable per se without proof of damage

Court orders

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  1. 1.Declaration that the 1st Defendant is a trespasser on 1.3 acre portion in LR No. Kericho/Sosiot/768
  2. 2.The 1st Defendant to vacate the 1.3 acre portion in LR No. Kericho/Sosiot/768 within 30 days and in default eviction orders to issue
  3. 3.General damages of Kshs.100,000/= payable within 30 days by the Defendants to the Plaintiff
  4. 4.Costs of the suit and interest at a lower rate since the suit was undefended

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Trespass ActSection 3(1)
  • Public Authorities Limitation ActCap 40
  • Civil Procedure RulesOrder 11

Cases cited (10)

  • CMC Aviation Ltd. v Cruisair Ltd. (No. 1)
    [1978] KLR 103; [1976-80] 1 KLR 835
  • Motex Knitwear Limited vs. Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No. 834 of 2002
  • Autar Singh Bahra and Another vs. Raju Govindji
    HCCC No. 548 of 1998
  • Erastus Wade Opande v Kenya Revenue Authority & Another
    Kisumu HCCA No. 46 of 2007
  • Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi
    Nairobi HCCC No. 36 of 1993
  • John Kiragu Kimani vs Rural Electrification Authority
    [2018] eKLR
  • Park Towers Ltd v. John Mithamo Njika & 7 others
    (2014) eKLR
  • Duncan Nderitu Ndegwa v. KP& LC Limited & Another
    (2013) eKLR
  • Hosea vs Njiru & Others
    1974 (EA)
  • Sisto Wambungu vs Kamau Njuguna
    null
Jurisdiction invoked
Original civil suit on land trespass transferred to the Environment and Land Court (suit originally HCCC 72/2005, later CMCC 3/2015, prosecuted in a miscellaneous file)

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, "Chirchir v Chairman BOM Kiptalal Primary School Joshua Rono & another (Civil Miscellaneous Application 8 of 2017) [2022] KEELC 2365 (KLR)", Case Analysis (2022). Miscellaneous file arising from Kericho High Court Civil Suit No. 72 of 2005 (transferred suit CMCC No. 3 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2365/eng@2022-06-30

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