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ELCPartially AllowedEnvironment & Land Case 23 of 2020· [2022] KEELC 14550 (KLR)

Giturwa & another v Cittimark Investment Limited

Environment and Land Court
1 November 2022
COCA Ochieng
2,510 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 plaintiffs sued the defendant claiming to be the sole joint owners of Title No Donyo Sabuk/Komarock Block 1/28136, which they purchased on June 23, 2016 from the previous joint owners, and sought a declaration of ownership, a permanent injunction, demolition of the defendant's structures, eviction, costs and interest. The defendant's defence alleged it had itself contracted on March 10, 2015 to buy the same land from the administrators of the estate of Mwangangi Muvu Nganga for Kshs 7,040,000, paid a deposit and a further Kshs 2,000,000, but the sale was never completed and the vendors were criminally charged for obtaining money by false pretence. At trial the plaintiffs called one witness who produced the sale agreement, title deed and payment cheques; the defendant and its counsel, though duly served, did not attend court or file submissions. The court held that uncontroverted evidence stands unchallenged, and that under section 26(1) of the Land Registration Act the plaintiffs' certificate of title was prima facie evidence of absolute and indefeasible ownership, unimpeached by any allegation of fraud. Applying the ingredients of trespass and the continuing trespass doctrine, the court found the defendant had trespassed. Trespass being actionable per se, it awarded Kshs 300,000 general damages rather than the Kshs 700,000 sought, no evidence of loss having been tendered. Judgment was entered for the plaintiffs with a declaration of ownership, a permanent injunction, an order for vacant possession and demolition within 90 days failing which eviction would issue, damages, and costs of the suit.

Key legal issues

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01

Whether the plaintiffs are the registered owners of the suit land

Holding

Yes - as registered proprietors holding a certificate of title, they are entitled to the protection of the law under the Land Registration Act

Reasoning

PW1 testified the plaintiffs purchased the suit land on June 23, 2016, paid the full purchase price and obtained a certificate of title. The defendant, though alleging an earlier incomplete purchase, adduced no evidence. Under section 26(1) of the Land Registration Act the title is prima facie evidence of absolute and indefeasible ownership, unchallenged on any ground of fraud or misrepresentation.

02

Whether the defendant trespassed on the suit land

Holding

Yes - the defendant's continued entry, digging of holes and intention to subdivide constituted continuing trespass

Reasoning

PW1 confirmed the defendant entered the land, dug holes and intended to subdivide and place fresh beacons. The defendant's own defence confirmed it took possession though the sale was incomplete. Applying the definition of trespass as unjustifiable intrusion upon land in another's possession, and the doctrine of continuing trespass, the uncontroverted evidence established trespass.

p. 5
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What remedies flow from the established trespass

Holding

Permanent injunction, vacant possession with demolition within 90 days, and general damages of Kshs 300,000

Reasoning

Trespass being actionable per se, general damages were awardable without proof of loss. Though plaintiffs sought Kshs 700,000, they led no evidence of loss; the court awarded Kshs 300,000. A prima facie case under Giella v Cassman Brown justified a permanent injunction, and eviction/demolition followed from the declaration of ownership.

Legal principles established

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  • A registered proprietor's certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, or illegal/unprocedural/corrupt acquisition
  • Where a defendant files a defence but adduces no evidence, the plaintiff's uncontroverted evidence stands unchallenged
  • Trespass to land is actionable per se and no proof of damage is necessary for an award of general damages

Court orders

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  1. 1.A declaration that the plaintiffs are the sole joint owners of Title No Donyo Sabuk/Komarock Block 1/28136
  2. 2.A permanent injunction restraining the defendant from fencing, sub-dividing, placing new beacons, constructing, trespassing, encroaching, alienating, disposing of or otherwise interfering with the suit land
  3. 3.The defendant to grant vacant possession and demolish any structures/developments on the suit land within ninety (90) days, failing which an eviction order to issue
  4. 4.General damages of Kshs 300,000 for trespass awarded to the plaintiffs
  5. 5.Costs of the suit awarded to the plaintiffs

Authorities

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Legislation

  • Evidence Actsection 107
  • Law of Contract Actsection 3(3)
  • Land Registration Actsections 24, 25, 26(1)
  • Trespass Actsection 3(1)

Cases cited (12)

  • Ochako Obinchu V Zachary Oyoti Nyamongo
    [2018] eKLR

    protection of registered proprietor's title; trespass damages

  • John K Koech V Peter Chepkwony
    [2019] eKLR

    bona fide purchaser for value with valid title

  • Motex Knitwear Limited vs Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No 834 of 2002

    unchallenged evidence where defendant calls no witness

  • Autar Singh Bahra and Another vs Raju Govindji
    HCCC No 548 of 1998

    claims in a defence fail where no witness is called to substantiate them

  • Nelson Erick Mzee Vs Panal Freighters Limited
    (2020) eKLR

    same proposition on uncontroverted evidence

  • Willy Kipsongok Morogo V Albert K. Morogo
    (2017) eKLR

    protection of registered owner under sections 24, 25 and 26 of the Land Registration Act

  • Municipal Council of Eldoret v Titus Gatitu Njau
    [2020] eKLR

    ingredients of the tort of trespass

  • M'Mukanya v M'Mbijiwe
    (1984) KLR 761

    trespass violates right to possession; plaintiff must prove right to immediate and exclusive possession

  • Eliud Njoroge Gachiri vs Stephen Kamau Nganga
    ELC No 121 of 2017

    definition of continuing trespass

  • Duncan Nderitu Ndegwa v KP& LC Limited & Another
    (2013) eKLR

    trespass actionable per se; general damages without proof of damage

  • Nakuru Industries Limited Vs S S Mehta & Sons
    (2016) eKLR

    trespass damages

  • Giella V Cassman Brown
    (1973) EA 358

    principles for grant of permanent injunction

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land title, trespass and eviction disputes

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, "Giturwa & another v Cittimark Investment Limited", Case Analysis (2022). Environment & Land Case 23 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14550/eng@2022-11-01

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