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ELCPartially AllowedNot stated in the judgment as provided· [2023] KEELC 213 (KLR)

Kariuki v Wachira & another (Environment & Land Case 159 of 2018) [2023] KEELC 213 (KLR)

Environment and Land Court
25 January 2023
824 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado landowner won a permanent injunction and Kshs. 250,000 for trespass because his neighbour produced no evidence to dispute the boundary encroachment.

What this practically means

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Executive summary

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The Plaintiff, registered owner of Title Number Kajiado/Kitengela/33713 (subdivided from Kajiado/Kitengela/8009, measuring 2.60 hectares), sued the first Defendant, owner of the abutting parcel Kajiado/Kitengela/1977, and the District Land Registrar Kajiado, seeking a permanent injunction against trespass, general damages, costs and interest. He alleged that from 2010 the first Defendant removed validly placed beacons, planted illegal ones and encroached on the western, southern and eastern sides of his land. The Land Registrar's report dated 20/5/2011, with an accompanying surveyor's report, corroborated the encroachment. The first Defendant filed nothing despite substituted service; the second Defendant, through the Attorney General, filed a bare general denial unsupported by any witness statement or documents. At trial only the Plaintiff and his witness Erick Gitau testified. The court framed two issues: proof of the case on a balance of probabilities, and entitlement to and quantum of damages. It held trespass proved on unchallenged evidence corroborated by the survey and Land Registrar reports, reaffirmed that trespass is actionable per se, but found the Kshs. 3 million claimed excessive since no serious non-user was proved, awarding Kshs. 250,000/- as general damages. Judgment with a permanent injunction was entered against the first Defendant, with costs and interest on damages and costs from the date of judgment until payment in full.

Key legal issues

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01

Whether the Plaintiff proved trespass against the Defendants on a balance of probabilities

Holding

Trespass was proved against the first Defendant on the strength of the Plaintiff's uncontroverted evidence and the corroborating surveyor and Land Registrar reports

Reasoning

The Plaintiff testified that the first Defendant removed validly placed beacons and placed illegal ones, encroaching on the western, southern and eastern sides. The second Defendant filed only a general denial without evidence, and the first Defendant filed nothing after substituted service. The surveyor's report dated 11/2/2019 and the Land Registrar's report dated 20/5/2011 corroborated the Plaintiff's evidence in all material particulars, remaining unchallenged at trial.

p. 2
02

Whether the Plaintiff was entitled to damages and in what amount

Holding

General damages for trespass were awarded at Kshs. 250,000/- instead of the Kshs. 3,000,000/- claimed

Reasoning

Trespass being actionable per se, damages were payable without proof of special damage. However, the court found Kshs. 3 million excessive because the trespass had not occasioned serious non-user, and the Plaintiff had not proved use of the land that would yield the claimed sum. The court exercised discretion to fix a modest award of Kshs. 250,000/- as sufficient compensation.

p. 3

Legal principles established

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  • Trespass to land is actionable per se, so a plaintiff need not prove actual damage to be awarded damages
  • Unchallenged and corroborated evidence of a plaintiff suffices to prove trespass on a balance of probabilities

Court orders

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  1. 1.Judgment entered for the Plaintiff against the first Defendant as prayed for in paragraph 30(a) of the plaint (permanent injunction)
  2. 2.General damages of Kshs. 250,000/- for trespass
  3. 3.Costs of the suit
  4. 4.Interest on damages and costs at court rates from the date of judgment until payment in full
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a claim of trespass to land (statutory provision not expressly cited in the judgment)

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, "Kariuki v Wachira & another (Environment & Land Case 159 of 2018) [2023] KEELC 213 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/213/eng@2023-01-25

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