Orago v Adede
The bottom line
#A Kenyan court blocked a neighbour from interfering with an 8-metre access road but refused damages because the trespass was on the road, not the plaintiff's land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant trespassed onto the Plaintiff's parcel No 2002
No trespass onto parcel 2002 was proved; the encroachment was onto the 8-metre road access, 3 metres from the parcel 51 side
The court relied on the Land Registrar and Surveyor's report of January 22, 2019 (Pexh 14), which found the boundaries of parcel 2002 intact and located the encroachment on the road on the parcel 51 side, where eucalyptus trees had been planted 3 metres into the road. The report was unchallenged by the Defendant, who closed his case without calling evidence. The court therefore associated itself with those findings and held that no encroachment onto the Plaintiff's land was demonstrated.
Whether the Plaintiff was entitled to a permanent injunction
A permanent injunction was granted, but restraining the Defendant from interfering with the 8-metre road access rather than the suit parcel
Applying the Giella v Cassman Brown principles, the court found that the Surveyor's report confirming encroachment onto the road access established a prima facie case to the required threshold. Although the injunction sought related to the suit parcel, the court moulded the relief to protect the road access, restraining the Defendant from re-entering, trespassing onto, cultivating, building on or otherwise interfering with the 8-metre road.
Whether general damages for trespass were payable
General damages refused because the trespass was not onto the Plaintiff's parcel
The court accepted the principle from Philip Ayaya Aluchio v Crispinus Ngayo that damages for trespass are measured by the difference in the value of the property immediately after the trespass or the costs of restoration, whichever is less. However, since the trespass found was onto the road access and not onto parcel 2002, and the claim of being blocked from grazing fields was unfounded, there was no basis for an award of general damages.
Legal principles established
#- The measure of damages for trespass is the difference in the value of the plaintiff's property immediately after the trespass or the costs of restoration, whichever is less
- An unchallenged official report by the Land Registrar and Surveyor stands uncontroverted and may be adopted by the court
Court orders
#- 1.An Order of Permanent Injunction restraining the Defendant, his agents, servants and/or anyone claiming under him, from re-entering, trespassing onto, laying a claim to, cultivating, leasing, building onto, interfering with and/or in any other manner dealing with the Road Access measuring 8 metres
- 2.Costs of the suit to be borne by the Defendant
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act (Environment and Land Court, Migori)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Orago v Adede", Case Analysis (2022). Environment & Land Case 52 of 2017 (Formerly Kisii ELC Case No. 162 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14679/eng@2022-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.