Marita & 3 others v Kibagendi & 6 others (Environment & Land Case 224 of 2016) [2023] KEELC 848 (KLR)
The bottom line
#Kenya's Kisii Environment and Land Court ordered the County Government of Kisii to pay a private landowner over Kshs. 21 million for illegally building a road through his property.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs proved their claim of trespass by the defendants
Suit dismissed for want of evidence
Although the plaintiffs filed suit seeking declaration, eviction and damages, they did not call any evidence. Under Sections 107, 108 and 109 of the Evidence Act the burden of proving asserted facts lies on the party who would fail if no evidence were given. Having failed to adduce any evidence, the suit could not succeed and was dismissed with costs.
Whether the 4th Plaintiff committed trespass on West Kitutu/Mwamonari/1454
Yes - three separate acts of trespass proved
The defendants' uncontroverted evidence established that the 4th Plaintiff's officers destroyed the perimeter fence on 9 August 2016, dug a public road through the land on 1 February 2017, and again destroyed the fence on 24 July 2019. Trespass is an unjustifiable entry upon land in possession of another; the acts amounted to egregious trespass by a public body.
Quantum of damages for trespass
Kshs. 2,000,000/= general damages per act (total Kshs. 6,000,000/=) plus Kshs. 15,000,000/= exemplary damages
The court treated the three trespasses as separate and distinct acts, awarding Kshs. 2,000,000/= for each. Exemplary damages were awarded because the County Government's officers acted oppressively, arbitrarily and unconstitutionally, falling within the first Rookes v Barnard category. Special damages of Kshs. 8,000,000/= failed for want of specific proof.
Legal principles established
#- The burden lies on a party asserting facts to prove them; a claim unsupported by evidence must fail
- Trespass to land is actionable per se; damages measured by diminution in value or cost of reinstatement
- Exemplary damages may be awarded for oppressive, arbitrary or unconstitutional action by servants of government
- Special damages must be pleaded and specifically proved
Court orders
#- 1.Declaration that the invasion or encroachment on suit property West Kitutu/Mwamonari/1454 by the 4th Plaintiff's agents and the creation of a public road thereon was illegal and unlawful
- 2.A valuation be conducted by a government valuer within 90 days to establish the value of the portion occupied by the road as a basis for compensating the defendants
- 3.Kshs. 6,000,000/= general damages for trespass payable by the 4th Plaintiff
- 4.Kshs. 15,000,000/= exemplary damages payable by the 4th Plaintiff
- 5.Interest on the valuation-based compensation, general and exemplary damages at court rates until payment in full
- 6.Costs of the suit and Counterclaim to be paid by the 4th Plaintiff
- 7.The Plaintiffs' suit dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction in land and environment disputes (Environment and Land Court); suit by Plaint and Counterclaim under the Civil Procedure framework; Article 40 Constitution invoked on property rights
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marita & 3 others v Kibagendi & 6 others (Environment & Land Case 224 of 2016) [2023] KEELC 848 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/848/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.