Chirchir v Chairman BOM Kiptalal Primary School Joshua Rono & another (Civil Miscellaneous Application 8 of 2017) [2022] KEELC 2365 (KLR)
The bottom line
#A Kenyan court confirmed a school trespassed on private land and ordered it to vacate, pay damages, and settle costs.
What this practically means
#Executive summary
#Key legal issues
#Indefeasibility of title under Section 26(1) of the Land Registration Act
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
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.
Effect of a defendant's failure to adduce evidence
The plaintiff's unchallenged evidence is to be believed but must still be formally proved on a balance of probabilities
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.
Trespass and entitlement to damages
The defendant school trespassed 1.3 acres beyond the boundary and, trespass being actionable per se, general damages of Kshs.100,000/= were awarded
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.
Legal principles established
#- 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
#- 1.Declaration that the 1st Defendant is a trespasser on 1.3 acre portion in LR No. Kericho/Sosiot/768
- 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.General damages of Kshs.100,000/= payable within 30 days by the Defendants to the Plaintiff
- 4.Costs of the suit and interest at a lower rate since the suit was undefended
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.