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ELCPartially AllowedEnvironment & Land Case 53 of 2017· [2023] KEELC 17846 (KLR)

Redeemed Gospel Church Inc v East African Portland and Cement Co. Ltd & 2 others

Environment and Land Court
29 May 2023
ANA. Nyukuri
4,254 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed a church's ownership of disputed Mavoko land, ordered the cement company evicted, and dismissed its counterclaim for lack of evidence.

What this practically means

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Executive summary

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The Plaintiff, Redeemed Gospel Church Inc., claimed ownership of LR No. 337/1211 Mavoko, allocated to it in 1992 with a freehold title issued on 19th November 1993, and sought a declaration of ownership, permanent injunction, eviction, and general damages for trespass by East African Portland Cement Co. Ltd, which allegedly destroyed its fence in 2002 and later placed building materials and structures on the land. The Defendant denied the Plaintiff's proprietary interest, contending the suit land was part of its parcel LR No. 337/195, and by counterclaim against the Plaintiff, the Commissioner of Lands and Mavoko Municipal Council alleged systematic land grabbing, fraud and collusion, seeking cancellation of the Plaintiff's title and declarations of illegality. Only the Plaintiff called evidence; the Defendant and 3rd Defendant closed their cases without witnesses. The court found the Plaintiff's ownership documents (allotment letter, acceptance, receipt and title) unchallenged and held that its registration vested absolute and indefeasible ownership. Trespass was proved by unrebutted evidence of the Defendant's entry, depositing sand and constructing a Nissan hut. Damages were assessed at Kshs. 100,000/-, the Plaintiff having produced no valuation or proof of specific loss. The Defendant's counterclaim failed for want of evidence under Section 107 of the Evidence Act. Judgment was entered for the Plaintiff with a declaration of ownership, permanent injunction, eviction order, damages of Kshs. 100,000/- and costs against the Defendant in favour of the Plaintiff and the 3rd Defendant.

Key legal issues

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01

Ownership of the suit property

Holding

Plaintiff proved lawful registered proprietorship of LR 337/1211; Defendant's fraud allegations unsupported by evidence

Reasoning

The Plaintiff produced the allotment letter, acceptance, payment receipt and title issued 19th November 1993. The Defendant pleaded fraud and that the suit land formed part of LR 337/195 but closed its case without calling any witness, leaving the Plaintiff's evidence unchallenged even in cross-examination.

02

Trespass and measure of damages

Holding

Trespass proved; damages assessed at Kshs. 100,000/- as no specific loss was proved

Reasoning

The Defendant's entry, placing of sand and construction were unrebutted. No valuation report or proof of the number/value of destroyed fence posts was produced; the court applied the principle that damages for trespass are the difference in value or cost of restoration, and awarded a modest sum in the circumstances.

p. 7
03

Defendant's counterclaim

Holding

Counterclaim dismissed for failure to discharge the burden of proof

Reasoning

The Defendant closed its case without calling evidence; under Section 107 of the Evidence Act the burden lay on it to prove the alleged fraud, collusion and that LR 337/1211 was unlawfully hived off LR 337/195. Pleadings alone cannot constitute evidence.

Legal principles established

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  • A certificate of title issued under the Registration of Titles Act is conclusive evidence of proprietorship and vests absolute and indefeasible ownership
  • Pleadings unsupported by evidence have no probative value; a party who fails to adduce evidence cannot prove its case
  • Trespass is an unlawful entry on another's land without the owner's consent

Court orders

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  1. 1.Declaration that the Plaintiff is the owner of LR. No. 337/1211 situated within Mavoko County Council
  2. 2.Permanent injunction restraining the Defendant, its agents, servants or employees from entering, trespassing, developing, utilising, alienating or interfering with Plot LR. No. 337/1211
  3. 3.Order of eviction of the Defendant from LR No. 337/1211
  4. 4.General damages for trespass of Kshs. 100,000/- awarded to the Plaintiff against the Defendant
  5. 5.Defendant's counterclaim dismissed with costs to the Plaintiff and the 3rd Defendant
  6. 6.Defendant to bear the costs of the suit in favour of the Plaintiff and the 3rd Defendant

Authorities

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Legislation

  • Trespass ActSection 3
  • Evidence ActSection 107
  • Civil Procedure ActSection 27
  • Registration of Titles Act Cap 281 (repealed)Section 23
  • Land Registration Act No. 3 of 2012Section 26

Cases cited (10)

  • Park Towers Limited vs. John Mithamo Njika & 7 Others
    [2014] eKLR

    Nominal damages where trespass is proved without proof of specific loss

  • Philip Aluchio v. Chrispinus Ngayo
    [2014] eKLR

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

  • Rhoda S. Kiilu v. Jiangxi Water and Hydropower Construction Kenya Limited
    [2019] eKLR

    Damages for trespass without proof of specific damage

  • Edward Muriga through Stanley Muriga v. Nathaniel D. Schulter
    Civil Appeal No. 23 of 2017

    Failure to call evidence means pleadings remain statements with no probative value

  • Motex Knitwear Limited v. Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No. 834 of 2002

    Burden of proof; failure to adduce evidence

  • Janet Kaphiphe Ouma & Another v. Marie Stoppes International (Kenya)
    Kisumu HCC No. 68 of 2007

    Party failing to call evidence cannot rely on pleadings as evidence

  • Peter Ngigi & Another (Suing as the Legal Representative of the Estate of Joan Wambui Ngigi v. Thomas Ondiki Oduor & Another
    [2019] eKLR

    Burden of proof on party alleging facts

  • Republic v. Rosemary Wairimu Munene, Exparte Applicant v. Ihururu Dairy Farmers Co-operative Society Ltd

    Costs follow the event; costs are discretionary

  • Hostler v. Green Park Development Co.
    986 S.W. 2d 500 (No. App. 1999)

    Measure of damages for trespass

  • Willesden Investment Limited v. Kenya Hotel Properties Limited
    HCC No. 367 of 2001

    No mathematical formula for damages; circumstances of each case guide

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) Constitution / ELC 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, "Redeemed Gospel Church Inc v East African Portland and Cement Co. Ltd & 2 others", Case Analysis (2023). Environment & Land Case 53 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17846/eng@2023-05-29

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