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ELCPartially AllowedELC 80 of 2019 (Thika)· [2023] KEELC 780 (KLR)

Gitau & another (Suing as the Administrators of the Estate of Jane Muthoni Ngugi – Deceased) v Mwangi (Environment & Land Case 80 of 2019) [2023] KEELC 780 (KLR)

Environment and Land Court
13 February 2023
JKJ G Kemei
2,638 words in judgment
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The bottom line

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A Kenyan court awarded a landowner Kshs 13 million after proving a neighbour built on her land by just one acre, with surveyor reports deciding the case.

What this practically means

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Executive summary

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The Plaintiffs, joint administrators of the estate of Jane Muthoni Ngugi (registered owner of Ruiru/Kiu Block 2/3878), sued the Defendant for trespass, a declaration of ownership, eviction, permanent injunction, mesne profits and costs, alleging encroachment since 23/9/2013 including a residential house and leased businesses. The Defendant denied trespass, asserting ownership of adjacent parcel 3877 whose boundaries were defined by the RIM, and challenged jurisdiction as the dispute was arguably a boundary dispute. Four plaintiffs' witnesses testified, including a private surveyor and the District Surveyor, Ruiru, whose reports both found parcel 3877 encroached on 3878 by about one acre; the Defendant's own evidence admitted building on and leasing part of the land for Kshs 25,000 per stall to four businesses. The court framed issues on trespass, entitlement to damages and mesne profits, and orders. Holding that both surveyors agreed the encroachment was one acre, the court found trespass proved and reiterated that trespass is actionable per se without proof of specific damage. It awarded general damages of Kshs 1,000,000, computed mesne profits at Kshs 12 million based on the admitted rental income from 2013, declared title in the estate, ordered the Defendant and his leases to vacate within 60 days failing which eviction would ensue, issued a permanent injunction, and awarded costs to the Plaintiffs. Judgment was delivered at Thika on 13 February 2023 by J G Kemei, Judge.

Key legal issues

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01

Whether trespass was proved

Holding

Trespass proved; both surveyors agreed the encroachment was about one acre.

Reasoning

The court relied on the reports of PW3 (private surveyor) and PW4 (District Surveyor), both finding parcel 3877 encroached on parcel 3878 by about one acre. The court held that the two reports agreed on the extent of encroachment despite minor variations in measurements, and concluded the plaintiff proved trespass.

p. 4
02

Damages for trespass and mesne profits

Holding

General damages for trespass of Kshs 1,000,000 awarded; mesne profits of Kshs 12 Million computed from the defendant's admitted rental income from four stalls from 2013.

Reasoning

Trespass being actionable per se, the court assessed damages considering the duration and one-acre size of the encroachment. For mesne profits, the court took the defendant's admission of earning Kshs 25,000 per stall for four stalls, computed monthly from 2013, totalling Kshs 12 million, despite uncertainty whether the rent was monthly or yearly.

p. 5

Legal principles established

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  • Trespass is actionable per se; once trespass is proved there is no need to prove specific damage.

Court orders

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  1. 1.A declaration that land Title Ruiru/Kiu Block 2/3878 rightfully belongs to the Estate of the late Jane Muthoni Ngugi
  2. 2.The Defendant and his leases ordered to vacate the suit land within 60 days, in default eviction to ensue
  3. 3.A permanent injunction restraining the Defendant, his agents, servants and employees from dealing with or interfering with the suit property
  4. 4.Mesne profits from 23/9/2013 to the date of judgment in the sum of Kshs 12 Million
  5. 5.Damages for trespass in the sum of Kshs 1,000,000/-
  6. 6.Costs payable to the Plaintiffs

Authorities

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Legislation

  • Trespass Actsection 3(1)
  • Civil Procedure Actsection 2

Cases cited (3)

  • Joshua Ngeno v Kenya Power & Lighting Company Limited and the County Government of Kericho
    (2021) eKLR
  • Park Towers Limited v John Mithamo Njika & 7 others
    (2014) eKLR
  • Attorney General v Halal Meat Products Limited
    (2016) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land (Environment and Land Court Act; dispute over title Ruiru/Kiu Block 2/3878)

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, "Gitau & another (Suing as the Administrators of the Estate of Jane Muthoni Ngugi – Deceased) v Mwangi (Environment & Land Case 80 of 2019) [2023] KEELC 780 (KLR)", Case Analysis (2023). ELC 80 of 2019 (Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/780/eng@2023-02-13

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