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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st defendant trespassed on North Ugenya/Sega/12
Yes - boundary determination and fixing established encroachment by the 1st defendant, constituting a continuing trespass
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.
Whether the plaintiff was entitled to the reliefs sought
Partially - permanent injunction and eviction granted, general damages of Kshs 300,000 awarded, but special damages and mesne profits refused
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.
Whether the 1st defendant's failure to file a defence meant automatic success for the plaintiff
No - even in an undefended suit the plaintiff retained the burden of proving his case
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.
Legal principles established
#- 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
#- 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.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.General damages for trespass in the sum of Kshs 300,000/- payable by the 1st defendant to the plaintiff
- 4.Costs of the suit payable by the 1st defendant to the plaintiff
- 5.Eviction to be undertaken in accordance with Sections 152B, 152E, 152F, 152G, 152H and 152I of the Land Act
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land (trespass to land parcel North Ugenya/Sega/12)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.