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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff proved ownership of the suit property
The plaintiff proved ownership through an unchallenged chain of registration culminating in transfer to the pension scheme on November 19, 1997
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.
Whether the defendant's occupation amounts to trespass
Yes; the defendant's occupation without justification for close to 25 years amounted to trespass
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.
Whether the plaintiff is entitled to damages for loss of use and how they should be assessed
General damages of Kshs. 90,000,000 awarded as a round figure for loss of use from 1997
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.
Legal principles established
#- 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
#- 1.The defendant is to give vacant possession of the suit property within 30 days
- 2.General damages for trespass awarded to the plaintiff in the sum of Kshs. 90,000,000
- 3.The defendant is condemned to pay costs and interest to run from the date of delivery of the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (suit transferred from the High Court to the ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.