Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedEnvironment & Land Case E10 of 2020· [2023] KEELC 18534 (KLR)

Ngeno v County Government of Kericho

Environment and Land Court
6 July 2023
7,316 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court ruled that Kericho County trespassed on a landowner's property during road works and awarded him Kshs 2 million in damages.

What this practically means

#

Executive summary

#
The Plaintiff, registered proprietor of L.R No. Kericho/Kipchorian/Lelu Block 10/10 (Borowet), sued the County Government of Kericho alleging that during refurbishment of the Kasheen-Borowet road in May 2020, the Defendant exceeded the road reserve, excavated a storm water drainage trench into his land, destroyed his fence and rendered about half an acre unusable. He sought a declaration of ownership, a declaration of trespass, restoration of boundary marks, a permanent injunction, general damages, costs and interest. The Defendant denied encroachment, contending the road had merely shifted due to landslides, that the works were within a 10-metre road reserve, and that the Plaintiff's suit was an afterthought. The court relied on the unchallenged evidence of the Plaintiff's licensed surveyor (PW2), who established by RIM, tape measure and GPS an encroachment of about 4 metres over 210 metres, approximately 0.469 acres. The Defendant's own surveyor conceded the road had shifted 15 metres and that a 2-metre drainage lay on the Plaintiff's land. Applying Sections 24(a), 25(1) and 26(1) of the Land Registration Act, the court held the Plaintiff's title absolute and indefeasible, and found no gazette notice or compulsory acquisition process under the Land Act sanctioned the entry. Trespass was therefore established and, being actionable per se, general damages of Kshs 2,000,000 were awarded. The court issued declarations of ownership and trespass, a permanent injunction, and directed the Land Registrar Kericho to re-ascertain and restore the boundary marks within 30 days at the Defendant's cost, with costs and interest at court rates. The claim for damages measured by diminution in value or restoration cost was not granted on that basis, as no valuation evidence was adduced.

Key legal issues

#
01

Whether the Defendant trespassed on the Plaintiff's land

Holding

Yes - the Defendant's excavation and drainage works encroached about 0.469 acres beyond the road reserve, constituting trespass

Reasoning

PW2, an unchallenged licensed surveyor, established by RIM, tape measure and GPS that the excavation encroached 4 metres over 210 metres (0.469 acres). The Defendant's own surveyor admitted the road had shifted 15 metres and a 2-metre storm water drainage lay on the Plaintiff's land. No gazette notice or evidence of compulsory acquisition or other lawful sanction was produced, so the entry lacked legal justification.

p. 8
02

Whether the Plaintiff's title was protected

Holding

Yes - the Plaintiff was the absolute and indefeasible registered proprietor; no impeachment grounds were proved

Reasoning

Sections 24(a), 25(1) and 26(1) of the Land Registration Act vest absolute ownership in the registered proprietor, subject only to challenge for fraud, misrepresentation to which he is party, or illegal, unprocedural or corrupt acquisition. The Defendant adduced no evidence on any such ground, so the Plaintiff's proprietary rights stood unimpeached.

03

Whether damages for trespass were payable and in what measure

Holding

General damages of Kshs 2,000,000 awarded; trespass actionable per se though the measure is diminution in value or cost of restoration, whichever is less

Reasoning

Trespass being actionable per se, no proof of damage was needed. The court noted the measure is the difference in the property's value immediately after trespass or the cost of restoration, whichever is less, but the Plaintiff adduced no valuation evidence. Exercising discretion on the circumstances, the court awarded Kshs 2,000,000.

04

Whether compulsory acquisition procedures were followed

Holding

No - no gazette notice or acquisition process was shown; the Defendant could not lawfully take the land without following the Land Act procedure

Reasoning

Relying on Patrick Musimba v National Land Commission, the court set out the statutory compulsory acquisition process under Sections 107-122 of the Land Act. The Defendant produced no Gazette Notice or evidence that the Plaintiff's land was due for compulsory acquisition, so its entry and excavation were without lawful sanction.

p. 11

Legal principles established

#
  • Trespass to land is actionable per se; no proof of specific damage is required before general damages are awarded
  • A registered proprietor's title is absolute and indefeasible unless impeached on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
  • Entry onto private land for public road works without compulsory acquisition or the owner's consent constitutes trespass

Court orders

#
  1. 1.A declaration that the Plaintiff is the bona fide registered owner of L.R No. Kericho/Kipchorian/Lelu Block 10/10 (Borowet)
  2. 2.A declaration that the Defendant is an illegal occupant and/or trespasser on about half an acre of the Plaintiff's property
  3. 3.A permanent injunction restraining the Defendant, its agents and/or servants from any further trespass and/or interference with the Plaintiff's quiet possession, use and enjoyment of the suit parcel
  4. 4.The Land Registrar Kericho to within 30 days re-ascertain and restore the boundary marks of the suit property at the Defendant's cost
  5. 5.General damages of Kshs. 2,000,000/= payable by the Defendant to the Plaintiff for the wrongful entry
  6. 6.Costs of the suit and interest at court rates

Authorities

#

Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Land ActSection 7
  • Land ActSections 107-122 (including 108, 110, 111, 112, 113-119, 120-122)
  • Trespass ActSection 3(1)
  • Constitution of KenyaArticle 40(3)
  • Civil Procedure RulesOrder 11

Cases cited (11)

  • EWM (suing in his capacity as the Guardian Ad litem & Next Friend to EWM) vs. County Government of Laikipia
    [2019] eKLR

    Protection of proprietary rights of registered owner against unlawful state interference

  • Joshua Ngeno v Kenya Power & Lighting Company Limited & County Government of Kericho
    [2021] eKLR

    General damages for encroachment and destruction of land

  • Municipal Council of Eldoret v Titus Gatitu Njau
    [2020] eKLR

    Discretionary assessment of damages against the state; public interest considerations

  • Onesmus Kamau Mungai vs. Phares Mwangi Kamau & 2 others
    [2019] eKLR

    Court lacks jurisdiction over boundary disputes; statutory procedure must be followed

  • Vancouver (City) vs. Ward
    2010 SCC 27, [2010] 2 S.C.R. 28

    Damages assessment should be fair to claimant and state; public interest factors

  • Patrick Musimba v National Land Commission & 4 others
    [2016] eKLR

    Compulsory acquisition procedure under Sections 107-122 of the Land Act

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

    Definition of trespass from Clark & Lindsell on Torts

  • Park Towers Ltd vs. John Mithamo Njika & 7 others
    (2014) eKLR

    Trespass actionable per se; no need to prove specific damage

  • Duncan Nderitu Ndegwa v. K P & LC Limited & Another
    (2013) eKLR

    Once trespass established, general damages awardable without proof of damage

  • Philip Ayaya Aluchio vs. Crispinus Ngayo
    [2014] eKLR

    Measure of damages for trespass: diminution in value 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 damages; circumstances of each case guide

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

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ngeno v County Government of Kericho", Case Analysis (2023). Environment & Land Case E10 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18534/eng@2023-07-06

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