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ELCDismissedELC Case (Thika); related ELC No 1213 of 2015 between the parties· [2022] KEELC 3249 (KLR)

Njenga v Kinuthia & another (Environment & Land Case 21 of 2020) [2022] KEELC 3249 (KLR)

Environment and Land Court
6 June 2022
GKG Kemei
7,071 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kiambu homeowner lost his land fraud claim, was ordered to demolish part of his house, and must pay monthly rent for the land he occupied.

What this practically means

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Executive summary

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The plaintiff bought two one-acre parcels (LR 164/74 and 164/75) from the 1st defendant under agreements dated 1/10/2009 and 4/2/2013, conveyances dated 4/12/2013, and built his family home from 2011. He claimed Parcel 75 was 0.2 acres short of the contracted acreage, that the defendants fraudulently resurveyed the land, excised 0.2 acres on which his house stood, and transferred it to Parcel 73 belonging to the 2nd defendant, who bought it in 2015. He sought a declaration that the 2nd defendant's registration over the 0.2 acres was null and void, a survey and registration in his favour, or alternatively Kshs 29 million, plus costs. The 2nd defendant counterclaimed, alleging trespass on 0.3789 acres of Parcel 73 and seeking eviction, mesne profits and damages. The 1st defendant called no witness. The court first held the jurisdictional question moot, since a preliminary objection under section 18(2) of the Land Registration Act had been dismissed on 4/3/2021 without appeal or review. On the merits it applied the strict standard of proof for fraud (R.G. Patel v Lalji Makanji; Arthi Highway Developers) and found no evidence of any resurvey, excision or fraudulent transfer: the deed plans for all parcels were dated 18/6/2013 off survey plan FR 536/40, Parcel 73 measured a full acre, and the plaintiff had executed a conveyance for Parcel 75 at 0.3203 ha, so the contract was fully performed. The plaintiff's suit was dismissed. Relying on the surveyors' reports showing the plaintiff's house and wall encroaching on 0.1534 ha of Parcel 73, the court found trespass, awarded mesne profits of Kshs 63,127/64 per month from 21/10/2015 with interest, issued a mandatory order to vacate and remove structures within 90 days (failing which eviction under police supervision), and awarded the 2nd defendant costs of the suit and counterclaim.

Key legal issues

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01

Whether the court has jurisdiction notwithstanding the boundary-dispute objection under section 18(2) of the Land Registration Act

Holding

The issue was moot; a preliminary objection on jurisdiction had already been dismissed on 4/3/2021 and was never appealed or reviewed

Reasoning

The 2nd defendant had raised a preliminary objection dated 4/5/2020 contending that a boundary dispute must first go to the Land Registrar under section 18(2) LRA. The court dismissed it in a ruling of 4/3/2021. No appeal or review was preferred, so the finding stood unchallenged and the suit proceeded on the merits.

p. 7
02

Whether the plaintiff proved fraud against the defendants

Holding

Fraud was not proved; there was no evidence of any resurvey, excision or transfer of 0.2 acres to the 2nd defendant

Reasoning

Fraud must be specifically pleaded and proved above a balance of probabilities. The surveyor's reports (2019, 2020) and FR 536/40 showed only one subdivision, with deed plans all dated 18/6/2013 based on the same survey plan. Parcel 73 measured one acre and showed no addition; the plaintiff executed a conveyance for Parcel 75 at 0.3203 ha. The court found the contract for Parcel 75 fully performed.

p. 10
03

Whether the plaintiff encroached/trespassed on Parcel 73

Holding

Yes; the plaintiff, having entered the 2nd defendant's registered land without lawful cause, was a trespasser to the extent of 0.1534 ha / 0.3789 acres

Reasoning

The 2nd defendant was the registered absolute and indefeasible proprietor of Parcel 73 under sections 24, 25 and 26 LRA since 5/8/2015. Government surveyor reports showed the plaintiff's permanent structure and perimeter wall encroaching on 0.1534 ha, with beacons R5 and R6 crossing the house. Demand letters issued from October 2015 with no acquiescence.

p. 11
04

Whether the 2nd defendant was entitled to mesne profits

Holding

Yes; mesne profits of Kshs 63,127/64 per month for 0.153 ha/0.3789 acres from 21/10/2015 were awarded, based on an unchallenged valuation report

Reasoning

Mesne profits are a genre of special damages which must be strictly proved. The 2nd defendant's valuation report, unchallenged, put rent for 0.4 ha at Kshs 164,815 per month, giving Kshs 63,127/64 per month for the encroached portion. The court declined the repetitive prayer for an account of financial benefits.

p. 12

Legal principles established

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  • Allegations of fraud must be strictly proved to a standard above a balance of probabilities but not beyond reasonable doubt, and cannot be inferred from pleadings
  • A registered proprietor's title is prima facie absolute and indefeasible and may only be challenged on proof of fraud or misrepresentation to which the proprietor is party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • The burden of proving a particular fact, including fraud, lies on the party who wishes the court to believe in its existence
  • A party cannot claim both mesne profits and damages for trespass; the court can grant only one

Court orders

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  1. 1.A mandatory order directed at the plaintiff, his servants, employees, representatives, agents and/or any other person to vacate the encroached portion of Land Reference Number 164/73 measuring approx. 0.1534 Ha or 0.3789 acres, remove all structures thereon and restore the 2nd defendant's property to its original state within 90 days of the date of the judgment
  2. 2.If the plaintiff does not comply, the 2nd defendant be at liberty to evict the plaintiff from Parcel 164/73 under the supervision of the Officer Commanding Police Station, Tigoni Police Station, Kiambu County at the plaintiff's cost
  3. 3.The plaintiff to pay the 2nd defendant mesne profits equivalent to rent payable for land measuring 0.153 ha or 0.3789 acres in the area from the 21/10/2015 in the sum of Kshs 63,127/64
  4. 4.Interest on the mesne profits at court rates from the due date until payment in full
  5. 5.Costs of the suit and the counterclaim in favour of the 2nd defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 rule 11
  • Land Registration ActSections 18(2), 24, 25, 26
  • Registered Land ActSection 24
  • Evidence ActSection 109
  • Trespass ActCap 294
  • Civil Procedure ActSection 2 (definition of mesne profits)
  • Civil Procedure RulesOrder 21 rule 13

Cases cited (10)

  • Patrick Muturi Vs Kenindia Assurance Co Limited
    (1993) eKLR
  • Willy Kimutai Kitilit Vs Michael Kibet
    (2018) eKLR
  • Josephine Mwikali Kikenye Vs Omar Abdalla Kombo & anor
    (2018) eKLR
  • R.G. Patel v Lalji Makanji
    (1957) EA 314
  • Koinange & 13 others v Koinange
    [1968] KLR 23
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    [2015] eKLR
  • Insurance Company of East Africa vs. The Attorney General & 3 others
    HCCC135/1998
  • Central Kenya Limited Vs Trust Bank Kenya Limited & 4 others
    (1996) eKLR
  • Maina Kabuchwa v Gachuma Gacheru
    (2018) eKLR
  • Attorney General v Halal Meat Products Limited
    [2016] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; 2nd defendant's preliminary objection on jurisdiction under section 18(2) of the Land Registration Act was earlier dismissed (ruling of 4/3/2021) and not appealed or reviewed

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Njenga v Kinuthia & another (Environment & Land Case 21 of 2020) [2022] KEELC 3249 (KLR)", Case Analysis (2022). ELC Case (Thika); related ELC No 1213 of 2015 between the parties. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3249/eng@2022-06-06

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