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ELCPartially AllowedEnvironment & Land Case 65 of 2014· [2023] KEELC 15880 (KLR)

Benard Cheruiyot Mursi v Musa Chepkwony, Jeremiah Ruto, Joseph Ruto & David Ruto

Environment and Land Court of Kenya
2 March 2023
2,885 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that registered landowners can win injunctions and damages against neighbours who build roads through their land without consent.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of LR Nos Kericho/Kapsuser/1767 and 1204, sued his neighbours, the defendants, who occupied adjacent parcel Kericho/Kapsuser/1100, for a permanent injunction to restrain them from trespassing onto and creating an access road through his parcels, plus damages, costs and interest. The defendants neither entered appearance nor filed a defence despite service, and the suit proceeded ex parte. The plaintiff testified with official search certificates; the District Land Surveyor, Christopher Kirui, reported that the road marked on the Registry Index Map served only parcel 1204, not the defendants' parcel 1100, and that the road in dispute was not a registered public road. The court framed two issues: whether the defendants were trespassers, and whether the plaintiff was entitled to damages. Relying on sections 24(a), 25(1) and 26(1) of the Land Registration Act, the court found the plaintiff's title absolute and indefeasible, unimpeached by any evidence of fraud or illegality. It held that forcibly creating an access road through the suit parcels without the plaintiff's consent constituted trespass, actionable per se. On quantum, although the plaintiff claimed Kshs 10,000,000 in general damages, no evidence of the property's value before and after the trespass was adduced; the court awarded Kshs 2,000,000, together with a permanent injunction, costs at a lower scale (the suit being undefended), and interest on the damages computed after 30 days from the judgment date.

Key legal issues

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01

Whether the defendants were trespassers on LR Kericho/Kapsuser/1767 and 1204

Holding

Yes - the plaintiff was the registered proprietor and the defendants, without his consent, forcibly created an access road through his parcels, amounting to trespass

Reasoning

Relying on sections 24(a), 25(1) and 26(1) of the Land Registration Act, the court found the plaintiff was the absolute and indefeasible owner of the suit parcels. The defendants never entered appearance or filed a defence and adduced no evidence impeaching the title on fraud or any other statutory ground. The district land surveyor confirmed the road on the RIM served parcel 1204 only, not parcel 1100. Creating an access road without authorization therefore constituted unjustifiable intrusion on the plaintiff's land.

p. 5
02

Whether the plaintiff was entitled to general damages and in what quantum

Holding

Yes, damages were awarded at Ksh 2,000,000, not the Ksh 10,000,000 claimed

Reasoning

The court accepted that trespass is actionable per se and that general damages follow on proof. It cited Aluchio for the measure of damages (difference in value of the property after the trespass or cost of restoration, whichever is less) and Willesden Investments for the absence of a mathematical formula. However, the plaintiff adduced no evidence of the state or value of his property before and after the trespass, making precise assessment difficult; the court therefore exercised discretion and awarded a reduced global figure.

Legal principles established

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  • Registration vests absolute ownership in the proprietor together with all rights and privileges appurtenant thereto
  • Title is protected but may be impeached on grounds of fraud, misrepresentation, illegality, procedural impropriety or corrupt scheme
  • Trespass is actionable per se by an award of general damages once established
  • There is no mathematical formula for assessing general damages; the circumstances of each case guide the court

Court orders

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  1. 1.A permanent order of injunction restraining the defendants, their agents, employees, servants or otherwise from trespassing onto, interfering with and/or doing any other act prejudicial to the plaintiff's quiet possession and/or enjoyment of ownership rights over LR Nos Kericho/Kapsuser 1767 & 1204
  2. 2.General damages of Ksh 2,000,000 awarded to the plaintiff
  3. 3.Costs of the suit at a lower scale since the suit was undefended
  4. 4.Interest on the general damages to be computed after 30 days from the date of delivery of the judgment

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Trespass ActSection 3(1)

Cases cited (5)

  • Kenya Power & Lighting Co Limited vs Sheriff Molana Habib
    [2018] eKLR

    That trespassers should be perpetually restrained from continuing to trespass and damage property

  • Park Towers Limited versus John Mithamo Njika & 7 others
    [2014] eKLR

    Relied on by plaintiff to support the claim for general damages for trespass

  • John Kiragu Kimani vs Rural Electrification Authority
    [2018] eKLR

    Definition of trespass per Clark & Lindsell on Torts; onus on plaintiff to prove unjustifiable invasion

  • Philip Ayaya Aluchio vs Crispinus Ngayo
    [2014] eKLR

    Measure of damages for trespass - difference in property value after trespass or cost of restoration, whichever is less

  • Willesden Investments Limited vs Kenya Hotel Properties Limited
    NBI H C C no 367 of 2000

    No mathematical formula for assessing damages; guiding factors are the circumstances of each case

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) of the Constitution and the Environment and Land Court Act)

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, "Benard Cheruiyot Mursi v Musa Chepkwony, Jeremiah Ruto, Joseph Ruto & David Ruto", Case Analysis (2023). Environment & Land Case 65 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15880/eng@2023-03-02

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