Ngeno v County Government of Kericho
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
#Key legal issues
#Whether the Defendant trespassed on the Plaintiff's land
Yes - the Defendant's excavation and drainage works encroached about 0.469 acres beyond the road reserve, constituting trespass
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.
Whether the Plaintiff's title was protected
Yes - the Plaintiff was the absolute and indefeasible registered proprietor; no impeachment grounds were proved
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.
Whether damages for trespass were payable and in what measure
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
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.
Whether compulsory acquisition procedures were followed
No - no gazette notice or acquisition process was shown; the Defendant could not lawfully take the land without following the Land Act procedure
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.
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.A declaration that the Plaintiff is the bona fide registered owner of L.R No. Kericho/Kipchorian/Lelu Block 10/10 (Borowet)
- 2.A declaration that the Defendant is an illegal occupant and/or trespasser on about half an acre of the Plaintiff's property
- 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.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.General damages of Kshs. 2,000,000/= payable by the Defendant to the Plaintiff for the wrongful entry
- 6.Costs of the suit and interest at court rates
- 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.