Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment and Land Case Civil Suit E15 of 2022· [2023] KEELC 15995 (KLR)

Waweru v Maina

Environment and Land Court
7 March 2023
FNFM Njoroge
2,406 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Nakuru court confirmed a landowner's title, ordered a trespasser off the plot, and awarded Kshs. 200,000 in damages plus costs.

What this practically means

#

Executive summary

#
The plaintiff sued the defendant seeking declarations that she is the bona fide owner of Plot No. 1707 on Kiambogo/Kiambogo Block 12 (1.17 Ha), purchased from Nakuru Mutukanio Farmers Company Limited, and that the defendant is a trespasser, together with eviction, a permanent injunction, damages/mesne profits and costs. She claimed the defendant evicted her tenants in 2017 after her own sons fraudulently sold the plot to the defendant; her sons were charged in Naivasha Criminal Case No. 1255 of 2019. The defendant, though served, filed no statement of defence, did not appear and filed no submissions, so the plaintiff's evidence went uncontroverted. The plaintiff produced a share certificate No. 131/1707 issued 02/02/2011, receipts for survey and R.I.M fees, and a clearance certificate. The court framed a single issue: whether the plaintiff was entitled to the orders sought in the plaint. It found she had sufficiently demonstrated acquisition of the suit property and proved her claim on a balance of probabilities. Following Peter Githinji Kamau v William Cheruiyot Rotich, the court held that the claim for mesne profits failed because no particulars of loss were given, but awarded general damages for trespass of Kshs. 200,000/=. Judgment was entered declaring the plaintiff the bona fide owner and the defendant a trespasser, ordering the defendant to vacate forthwith (with eviction in default at her own cost), issuing a permanent injunction, awarding Kshs. 200,000/= general damages, and ordering the defendant to pay the costs of the suit.

Key legal issues

#
01

Whether the plaintiff proved ownership of Plot No. 1707 on Kiambogo/Kiambogo Block 12

Holding

Yes - the plaintiff produced the share certificate, receipts and clearance certificate demonstrating acquisition from the company, and the evidence was uncontroverted

Reasoning

The plaintiff produced a share certificate No. 131/1707 issued 02/02/2011, receipts for survey and R.I.M fees, and a clearance certificate. The defendant, though served, filed no defence or submissions and did not appear. The court found the documentary evidence sufficiently demonstrated acquisition of the suit property and that the claim was proved on a balance of probabilities.

p. 4
02

Whether the plaintiff was entitled to mesne profits and general damages for trespass

Holding

Mesne profits refused for want of particulars of loss; general damages of Kshs. 200,000/= awarded for trespass

Reasoning

Following Peter Githinji Kamau v William Cheruiyot Rotich, the court held that where no particulars of loss are given for being deprived of use of the land, mesne profits fail. However, since the defendant had no right to occupy the land, general damages for trespass were awarded in the sum of Kshs. 200,000/=.

p. 5

Legal principles established

#
  • A claim for mesne profits unsupported by particulars of loss fails, though general damages for trespass may still be awarded
  • Uncontroverted evidence of a plaintiff, where the defendant does not participate despite service, is sufficient to establish the claim on a balance of probabilities

Court orders

#
  1. 1.Declaration that the plaintiff is the bona fide owner of Plot No. 1707 on property known as Kiambogo/Kiambogo Block 12 measuring 1.17 Ha
  2. 2.Declaration that the defendant and her servants and/or agents are trespassers on the plaintiff's Plot No. 1707
  3. 3.Defendant, her servants and/or agents to remove themselves and all their belongings from the plot forthwith, failing which they shall be evicted at their own cost
  4. 4.Permanent injunction restraining the defendant, her servants and/or agents from re-entering, occupying or wasting the plaintiff's Plot No. 1707
  5. 5.No order for payment of mesne profits since no evidence was led in proof thereof
  6. 6.Defendant to pay the plaintiff Kshs. 200,000/= as general damages for trespass
  7. 7.Defendant to pay the plaintiff the costs of the suit

Authorities

#

Legislation

  • Land Registration Actsection 24
  • Trespass Actsection 3(1)
  • Evidence Actsections 107 and 116

Cases cited (15)

  • Lawrence Mukiri v Attorney General & 4 others
    [2013] eKLR

    Proof of bona fide ownership and development of suit property

  • Joseph Kamuya Maitha v Noah Leinah & another
    [2018] eKLR

    Exclusive interests and rights over suit property under section 24 Land Registration Act

  • Christopher Mwangi Kioi v The Chief Land Registrar & 2 others
    unreported

    Ownership document issued first in time should prevail

  • Wreck Motors Enterprises v The Commissioner of Lands and others
    Civil Appeal No. 71 of 1997

    Ownership document issued first in time should prevail

  • Charles Chebore Chelimo & another v Jackson Cherono
    [2019] eKLR

    Trespass under section 3(1) Trespass Act

  • Norah Ndunge Henry & another v Abednego Mutisya & another
    [2022] eKLR

    Entitlement to eviction orders

  • Joseph Kipchirchir Koech v Philip Cheruiyot Sang
    [2018] eKLR

    Entitlement to eviction orders

  • Susan Wambui Wachira v Christine Kasavi Monyi
    [2018] eKLR

    Burden of proving fraud/allegations under sections 107 and 116 Evidence Act

  • Bandari Investments & Co. Ltd v Martin Chiponda & 139 others
    [2022] eKLR

    Eviction and permanent injunction

  • Keiyian Group Ranch v Samwel Oruta & 9 others
    [2021] eKLR

    Eviction and permanent injunction

  • Park Towers Ltd v John Mithamo Njika & 7 others
    [2014] eKLR

    Damages/mesne profits for trespass

  • Kenya Power & Lighting Company Limited v Fleetwood Enterprises Limited
    [2017] eKLR

    Damages/mesne profits for trespass

  • Pamela Waithera Mburu v County Government of Kajiado
    [2018] eKLR

    Entitlement to costs

  • Catherine Wambui Waruinge v Retia Ene Samera Mutemperia & 5 others
    [2021] eKLR

    Entitlement to costs

  • Peter Githinji Kamau v William Cheruiyot Rotich
    [2019] eKLR

    Mesne profits fail without particulars of loss; general damages for trespass may be awarded

Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (ELC civil suit)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Waweru v Maina", Case Analysis (2023). Environment and Land Case Civil Suit E15 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15995/eng@2023-03-07

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