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ELCPartially Allowed· [2023] KEELC 392 (KLR)

Omalla (Suing as the administrator ad litem of the Estates of William Opondo Omalla, Augustino Omwanda, Henry Mutula and Dismas Othwilla) v Oriwo & another (Environment & Land Case 36 of 2021) [2023] KEELC 392 (KLR)

Environment and Land Court
2 February 2023
2,913 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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Kenya's Environment and Land Court ordered a landowner to vacate encroached land in 90 days and pay Kshs 300,000 damages for trespass.

What this practically means

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Executive summary

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The plaintiff, holding limited grants of letters of administration over four brother-estates registered as tenants in common of North Ugenya/Sega/12, sued the owners of adjacent parcels North Ugenya/Sega/1216 and North Ugenya/Sega/5181 for trespass. The claim against the 2nd defendant was withdrawn on 5/7/2022 for want of service. The 1st defendant entered appearance and filed a preliminary objection which was dismissed, but filed no defence, leaving the suit unopposed. The plaintiff testified with the district surveyor, land registrar and a former assistant chief, showing that boundaries had been determined and fixed and that encroachment had occurred; the claimant sought a declaration of trespass, permanent injunction, eviction, special damages of Kshs 200,000, general damages, mesne profits and costs. The court framed two issues: trespass and entitlement to reliefs. It held the 1st defendant had trespassed, a continuing trespass, relying on survey and registrar reports and the sketch map, while noting even an undefended suit must be proved. Special damages failed for want of receipts; general damages of Kshs 300,000 were assessed since trespass is actionable per se; mesne profits were refused as duplicative of general damages, following Kenya Hotel Properties Ltd v Willesden Investments Ltd. The court corrected defence counsel's miscitation of Inverugie Investments v Hackett. Final orders: 90 days for the 1st defendant to vacate with default eviction, a permanent injunction, Kshs 300,000 general damages, and costs to the plaintiff.

Key legal issues

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01

Whether the 1st defendant trespassed on North Ugenya/Sega/12

Holding

Yes - boundary determination and fixing established encroachment by the 1st defendant, constituting a continuing trespass

Reasoning

The land registrar and district surveyor had, per the statutory process under the Land Registration Act, determined and fixed the boundaries. The sketch map showed encroachment by both adjacent parcels. Although PW3's report attributed the house to the 2nd defendant, the 1st defendant's parcel North Ugenya/Sega/1216 had encroached. The court found a continuing trespass by the 1st defendant.

p. 5
02

Whether the plaintiff was entitled to the reliefs sought

Holding

Partially - permanent injunction and eviction granted, general damages of Kshs 300,000 awarded, but special damages and mesne profits refused

Reasoning

Special damages failed for want of strict proof. General damages were payable since trespass is actionable per se; Kshs 300,000 assessed in the absence of evidence on diminution in value or reinstatement cost. Mesne profits were refused as duplicative of general damages. As against a found trespasser, permanent injunction and eviction followed.

p. 6
03

Whether the 1st defendant's failure to file a defence meant automatic success for the plaintiff

Holding

No - even in an undefended suit the plaintiff retained the burden of proving his case

Reasoning

The court held that although the 1st defendant's failure to file a defence rendered the suit unopposed, the plaintiff still had the onus of proving his case, and the court evaluated the plaintiff's evidence and documents before reaching its findings.

p. 4

Legal principles established

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  • Special damages must be both specifically pleaded and strictly proved
  • Trespass to land is actionable per se; general damages may be awarded without proof of specific loss
  • A claimant cannot recover both general damages for trespass and mesne profits for the same trespass

Court orders

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  1. 1.The 1st defendant granted 90 days from service of the orders to remove himself and his developments from land parcel no. North Ugenya/Sega/12 and give the plaintiff vacant possession, in default the plaintiff shall forcefully evict him together with his servants or agents
  2. 2.Permanent injunction restraining the 1st defendant, his servants and agents from entering or occupying, constructing, destroying, damaging or dealing whatsoever with land parcel no. North Ugenya/Sega/12
  3. 3.General damages for trespass in the sum of Kshs 300,000/- payable by the 1st defendant to the plaintiff
  4. 4.Costs of the suit payable by the 1st defendant to the plaintiff
  5. 5.Eviction to be undertaken in accordance with Sections 152B, 152E, 152F, 152G, 152H and 152I of the Land Act

Authorities

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Legislation

  • Land Registration ActSections 24, 26, 18(2), 19
  • Land Act 2016Sections 152A, 152B, 152E, 152F, 152G, 152H, 152I
  • Trespass ActSection 3(1)

Cases cited (11)

  • Rhoda S Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited
    [2019] eKLR
  • Daniel Kenga Katana & 4 others v Dzitu Toto Bokole & 3 others
    [2022] eKLR
  • Duncan Ndegwa v Kenya Pipeline
    HCC Number 2577 of 1990 (Nairobi)
  • Ochako Obinchu v Zachary Oyoti Nyamongo
    [2018] eKLR
  • Hahn v Singh
    Civil Appeal Number 42 of 1983 [1985] KLR 716
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Inverugie Investment v Hackett (Lord Lloyds)
    [1995] 3 ALL ER 842
  • John K Koech v Peter Chepkwony
    [2019] eKLR
  • Eliud Njoroge Gachiri v Stephen Kamau Ng'ang'a
    [2018] eKLR
  • Park Towers Ltd v John Mithamo Njika and 7 Others
    2014 eKLR
  • Kenya Hotel Properties Limited v Willesden Investments Limited
    [2009] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land (trespass to land parcel North Ugenya/Sega/12)

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, "Omalla (Suing as the administrator ad litem of the Estates of William Opondo Omalla, Augustino Omwanda, Henry Mutula and Dismas Othwilla) v Oriwo & another (Environment & Land Case 36 of 2021) [2023] KEELC 392 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/392/eng@2023-02-02

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