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ELCPartially AllowedELC Case No. 199 of 2015 (formerly High Court Civil Case No. 180 of 2004)· [2023] KEELC 341 (KLR)

Kenya Commercial Bank Limited as trustee of Kenya Cargo handling Services Limited Staff Pension Fund Scheme v Nairobi City County (Environment & Land Case 199 of 2015) [2023] KEELC 341 (KLR)

Environment and Land Court
26 January 2023
3,091 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Nairobi City County must vacate a Nairobi plot it occupied as a parking lot since 1997 and pay the pension scheme that owns it KES 90 million.

What this practically means

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Executive summary

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The plaintiff, a pension scheme whose title was held through Kenya Commercial Bank as trustees, sued the defendant county for trespass over L.R. 209/12015 Kaunda Street, Nairobi. It claimed the scheme purchased the property for Kshs. 110,000,000, with transfer registered on November 19, 1997, but that in December 1997 the defendant violently took over the premises using its askaris and has since operated it as a parking lot while paradoxically continuing to levy rates on the plaintiff as rateable owner. The plaintiff sought vacant possession, general damages, costs and interest. The defendant filed a defence (later amended to allege the land was public land) but tendered no evidence at trial, having held the litigation hostage with repeated adjournments and failing to comply with directions on filing submissions. The court held the plaintiff was still bound to prove its case, which it did through detailed registration entries never challenged. Applying sections 25 and 26 of the Land Registration Act and Article 40(3) of the Constitution, the court found the plaintiff's title indefeasible and the defendant's occupation unjustified trespass. Relying on Fleetwood, damages were payable upon proof of trespass without proof of actual loss. The court found PW2's assessment of Kshs. 113,323,610 (based on parking income) partly on the higher side but, noting loss of use persisted from 1997, awarded a round figure of Kshs. 90,000,000 as general damages. Judgment was entered for the plaintiff: vacant possession within 30 days, general damages of Kshs. 90,000,000, and costs plus interest from the date of judgment.

Key legal issues

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01

Whether the plaintiff proved ownership of the suit property

Holding

The plaintiff proved ownership through an unchallenged chain of registration culminating in transfer to the pension scheme on November 19, 1997

Reasoning

PW1 gave a detailed account of the purchase from Wide View Properties for Kshs. 110,000,000, evidenced by the title entries in the plaintiff's bundle. The defendant, despite amending its defence to claim the land was public land, tendered no evidence at trial and never impeached the title. The defendant had itself recognised the plaintiff as rateable owner by issuing rate demand notices.

p. 4
02

Whether the defendant's occupation amounts to trespass

Holding

Yes; the defendant's occupation without justification for close to 25 years amounted to trespass

Reasoning

The court found no controversy that the defendant was in physical possession using the land as a parking lot. No justification for the take-over was offered by the defendant. Applying section 3 of the Trespass Act and protections of property under Article 40(3) of the Constitution, the forcible take-over in December 1997 constituted trespass entitling the plaintiff to vacant possession.

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Whether the plaintiff is entitled to damages for loss of use and how they should be assessed

Holding

General damages of Kshs. 90,000,000 awarded as a round figure for loss of use from 1997

Reasoning

Applying Dodd Properties and Fleetwood, once trespass is proved damages need not be separately proved. PW2 assessed loss of earnings at Kshs. 113,323,610 based on parking charges of sh.300 per bay over 2009-2019. The court found the sh.300 per bay computation on the higher side and, considering loss persisted from 1997 to date, awarded a round figure of Kshs. 90,000,000.

p. 6

Legal principles established

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  • A claimant must discharge the burden of proof even where the evidence is uncontroverted
  • Once trespass is proved, damages must be assessed and awarded without proof of actual loss
  • Rights of a registered proprietor are indefeasible under section 25 of the Land Registration Act

Court orders

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  1. 1.The defendant is to give vacant possession of the suit property within 30 days
  2. 2.General damages for trespass awarded to the plaintiff in the sum of Kshs. 90,000,000
  3. 3.The defendant is condemned to pay costs and interest to run from the date of delivery of the judgment

Authorities

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Legislation

  • Trespass ActSection 3
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Constitution of KenyaArticle 40(3)

Cases cited (9)

  • Gichinga Kibutha v Caroline Nduku
    [2018] eKLR
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR
  • Elijah Makeri Nyangwara v Stephen Njuguna & another
    [2013] eKLR
  • Rutongot Farm Ltd v Kenya Forest Service & 3 others
    [2018] eKLR
  • Arnacherry Limited v Attorney General
    (2014) eKLR
  • Dodd Properties (Kent) Limited and another v Canterbury City Council and others
    [1980] 1 All ER 928
  • Miaraho Limited v Synohydro Corporation Limited
    [2019] eKLR
  • Kenya Power & Lighting Company Limited v Fleetwood Enterprises Limited
    [2017] eKLR
  • Fleetwood Enterprises Ltd v Kenya Power & Lighting Co Ltd
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (suit transferred from the High Court to the ELC)

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, "Kenya Commercial Bank Limited as trustee of Kenya Cargo handling Services Limited Staff Pension Fund Scheme v Nairobi City County (Environment & Land Case 199 of 2015) [2023] KEELC 341 (KLR)", Case Analysis (2023). ELC Case No. 199 of 2015 (formerly High Court Civil Case No. 180 of 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/341/eng@2023-01-26

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