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ELCPartially AllowedEnvironment & Land Case 4 of 2016· [2022] KEELC 3282 (KLR)

Akinyi v Orwa (Environment & Land Case 4 of 2016) [2022] KEELC 3282 (KLR)

Environment and Land Court
5 August 2022
AOANTONY OMBWAYO
2,408 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered proprietor of Kisumu/Kogony/1965 since 2002 (purchased around 1987), sued the defendant, registered proprietor of the adjoining Kisumu/Kogony/1966, claiming he had entered, fenced and cultivated her land from January 2013 without colour of right. She sought vacant possession, general damages for trespass, a permanent injunction, costs and interest. The defendant denied trespass, asserting he acquired his parcel in 2012 and that a road separates the two parcels. The plaintiff testified and called a neighbour and a surveyor (PW3), who confirmed in a 2013 report that the two parcels are distinct on the map and on the ground, separated by a public road. After the defence case, the court directed the Regional Surveyor Kisumu to visit the parcels, place the road and re-establish boundaries; the resulting report dated January 13, 2022 confirmed a 6-metre public road (originally a 2-metre foot path per the Preliminary Index Diagram No. 9) separating the parcels and well-established boundaries, with no need for re-establishment. The defendant did not file submissions. The court held trespass was clearly established, applying Section 3(1) of the Trespass Act and authorities to the effect that trespass need not be accompanied by proof of specific loss. Judgment was entered for the plaintiff: vacant possession of Kisumu/Kogony/1965 with the defendant to vacate within 90 days, general damages of Kshs. 50,000/= (reduced from the Kshs. 100,000/= claimed), a permanent injunction restraining the defendant and those claiming under him, and costs of the suit.

Key legal issues

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01

Whether the defendant trespassed on the plaintiff's land

Holding

Yes - the evidence, including the surveyor's testimony and the plaintiff's testimony, established that the defendant entered and cultivated the plaintiff's parcel without consent

Reasoning

The plaintiff averred the defendant entered her parcel and cultivated maize. PW3 testified there was a maize plantation on the plaintiff's parcel, and PW1 testified she reported the defendant to the Chief and police after finding maize planted on her land. The court therefore found trespass established under Section 3(1) of the Trespass Act, which criminalises cultivating or remaining on private land without the occupier's consent.

p. 4
02

Whether the two parcels are separated by an access road and whether boundaries required re-establishment

Holding

Yes - the Regional Surveyor's report confirmed a 6-metre public road separates the parcels and the boundaries are well established; no re-establishment was necessary

Reasoning

Pursuant to the Regional Surveyor's Report dated January 13, 2022, a foot path of about 2 metres between the parcels was confirmed to be a 6-metre public road as indicated on Preliminary Index Diagram No. 9 for the Kisumu/Kogony Registration Section, and it was expanded and marked on the ground. The court found no need for re-establishment of the boundaries.

p. 4
03

The measure of general damages for trespass

Holding

Kshs. 50,000/= awarded, the court reducing the Kshs. 100,000/= prayed for as excessive

Reasoning

Relying on Park Towers v Moses Chege and Philip Ayaya Aluchio v Crispinus Ngayo, the court noted that trespass need not be accompanied by proof of specific loss and that there is no mathematical formula for assessing general damages. However, it had to be reasonable, and awarded Kshs. 50,000/= rather than the Kshs. 100,000/= claimed.

p. 5

Legal principles established

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  • Trespass is any unjustifiable intrusion by one person upon the land in possession of another, and the onus is on the plaintiff to prove the defendant invaded his land without justifiable reason
  • Where trespass is proved, a party need not prove specific damage or loss to be awarded damages

Court orders

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  1. 1.An order of vacant possession of the property known as Kisumu/Kogony/1965, with the defendant to vacate within 90 days
  2. 2.General damages of Kshs. 50,000/= for trespass on the property known as Kisumu/Kogony/1965
  3. 3.A permanent injunction restraining the defendant personally and/or his relatives and/or any other person claiming under him from trespassing on and/or interfering with the plaintiff's proprietary rights over Kisumu/Kogony/1965
  4. 4.Costs of the suit to the plaintiff

Authorities

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Legislation

  • Trespass ActSection 3(1)

Cases cited (4)

  • Ochako Obinchu v Zachary Oyoti Nyamongo
    (2018) eKLR
  • Park Towers v Moses Chege & others
    (2014) eKLR
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Hostler v Green Park Development Co
    986 S W 2d 500 (No App. 1999)
Jurisdiction invoked
Original jurisdiction over land disputes (Environment and Land Court)

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, "Akinyi v Orwa (Environment & Land Case 4 of 2016) [2022] KEELC 3282 (KLR)", Case Analysis (2022). Environment & Land Case 4 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3282/eng@2022-08-05

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