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ELCPartially Allowed· [2022] KEELC 3372 (KLR)

Washika (Suing through her legal attorney Grishon Kwoba Olingo) v Wekesa & another (Environment & Land Case 482 of 2017) [2022] KEELC 3372 (KLR)

Environment and Land Court
9 June 2022
YAY. M. Angima
1,213 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that a registered title beats an untested adverse possession claim, awarding eviction plus damages for trespass.

What this practically means

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Executive summary

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The Plaintiff, Mary Washika, sued the Defendants seeking a declaration of ownership of land parcel Nyandarua/Kaimbaga/250, eviction of the Defendants, a perpetual injunction, general damages for trespass, costs and interest. She pleaded she was the registered proprietor, having acquired the parcel from the Settlement Fund Trustee around 1983 and obtained title in 1993, and that the Defendants, initially allowed occupation on humanitarian grounds, had become trespassers. The Defendants, though they filed a replying affidavit to an interim injunction application asserting adverse possession under the Limitation of Actions Act based on 20 years of exclusive possession and extensive development, filed no defence and did not attend the trial despite service. Only the Plaintiff's attorney, Grishon Olingo, testified, adopting his witness statement and producing exhibits including the title deed and official search. The court framed two issues: proof of the claim and entitlement to reliefs. It found ownership proved on a balance of probabilities and held the Plaintiff entitled to the rights of a registered proprietor under Section 24 of the Land Registration Act, 2012, including immediate possession. The court granted a declaration of lawful proprietorship and an eviction order, refused a perpetual injunction because the Defendants were already in possession and eviction was the effective remedy, and awarded Kshs. 100,000/= as general damages, trespass being actionable per se. The suit succeeded on all heads except the injunction; no costs were awarded as the suit was undefended.

Key legal issues

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01

Proof of ownership of the suit property

Holding

The Plaintiff proved she was allocated the property by SFT in 1983 and is the current registered proprietor, evidenced by title deed and official search

Reasoning

PW1, the Plaintiff's attorney, testified that the Plaintiff acquired the property from the Settlement Fund Trustee around 1983 and obtained a title deed in 1993 after fulfilling conditions. The title deed and official search were produced as exhibits. The Defendants, though served, did not attend trial or challenge the documentary evidence, so ownership on a balance of probabilities was established.

p. 3
02

Entitlement to reliefs (declaration, eviction, injunction, damages)

Holding

Declaration and eviction granted; perpetual injunction refused as eviction is the effective remedy; general damages of Kshs. 100,000/= awarded as trespass is actionable per se

Reasoning

Having found the Plaintiff to be the registered proprietor entitled to immediate possession, the court held she merited a declaration and eviction order to vindicate her property rights. An injunction was unnecessary since the Defendants were already in possession. Damages for trespass were awarded without proof of specific loss because trespass is actionable per se, the court adopting the reasoning in Joseph Kipchirchir Koech v Philip Cheruiyot Sang.

p. 3
03

Defendants' claim of adverse possession

Holding

Not adjudicated; the Defendants did not file a defence or attend trial, so their assertion of adverse possession under the Limitation of Actions Act was never litigated

Reasoning

The Defendants filed a replying affidavit in response to an interim injunction application claiming 20 years of exclusive possession, but they filed no memorandum of appearance or statement of defence and neither they nor their advocate attended the trial despite service. Their untested claim therefore fell away and the uncontroverted evidence of the Plaintiff carried the day.

p. 3

Legal principles established

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  • A registered proprietor is entitled to all rights under Section 24 of the Land Registration Act, 2012, including the right to immediate possession
  • Trespass to land is actionable per se; proof of specific loss or damage is not required before damages become awardable

Court orders

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  1. 1.A declaration that the Plaintiff is the lawful proprietor of Title No. Nyandarua/Kaimbaga/250
  2. 2.An order of eviction of the Defendants, their representatives, agents, servants and persons claiming under them from Title No. Nyandarua/Kaimbaga/250
  3. 3.General damages for trespass awarded to the Plaintiff in the sum of Kshs. 100,000/=
  4. 4.No order as to costs since the suit was not defended

Authorities

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Legislation

  • Limitation of Actions ActCap. 22 (referred to by Defendants as basis of adverse possession claim)
  • Land Registration ActSection 24

Cases cited (1)

  • Joseph Kipchirchir Koech –vs- Philip Cheruiyot Sang
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction over land disputes; reliefs founded on the Land Registration Act, 2012 (Section 24) and the Limitation of Actions Act (Cap. 22)

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, "Washika (Suing through her legal attorney Grishon Kwoba Olingo) v Wekesa & another (Environment & Land Case 482 of 2017) [2022] KEELC 3372 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3372/eng@2022-06-09

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