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ELCPartially AllowedCivil Suit 332 of 2015· [2023] KEELC 19192 (KLR)

Ofwona v Muthoni & 3 others

Environment and Land Court of Kenya
6 July 2023
LNL.L. Naikuni
12,171 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court dismissed a landowner's boundary-fraud claim and ordered him to demolish his garage, pay Kshs. 345,000, and cover the neighbours' legal costs.

What this practically means

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Executive summary

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The Plaintiff, registered owner of Plot No. Mombasa/Ziwa la Ngombe Settlement Scheme/1760, sued the 1st-3rd Defendants and the Land Registrar Mombasa, alleging that the Defendants, in collusion with the Land Adjudication Officer, fraudulently moved the boundary between Plots 1760 and 1759, encroached on his plot, and allocated part of it (where his tenant's welding workshop stood) to themselves. He sought a permanent injunction and a declaration that the workshop portion formed part of Plot 1760. The 1st-3rd Defendants denied the claim and counterclaimed, asserting the Plaintiff's garage encroached 3.5 metres onto Plot 1759; they sought a mandatory injunction to demolish it, a permanent injunction, rental income of Kshs. 345,000 and mesne profits. The court framed four issues and, after trial evidence from two witnesses per side and written submissions, adopted the surveyor's report as properly and lawfully prepared, finding the boundary lay on the Defendants' plot. The main suit was dismissed for failure of proof. On the counterclaim, the court found continuous trespass by the Plaintiff, actionable per se, and entered judgment for the counterclaimants: Kshs. 345,000 rental income, a permanent injunction against trespass on Plot 1759, and a mandatory injunction to demolish the garage within 45 days. Mesne profits were refused for want of empirical proof. Costs and interest of both the suit and counterclaim were awarded to the Defendants as counterclaimants. Judgment delivered by L.L. Naikuni, J on 6 July 2023 at Mombasa.

Key legal issues

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01

Whether the Plaintiff proved ownership of the disputed portion and fraud in the boundary alteration

Holding

The Plaintiff failed to prove his case; the court adopted the surveyor's report which placed the boundary on the Defendants' plot

Reasoning

The court found the Regional Surveyor's site visit and report proper and within the law, and adopted it. The report dated 23rd December 2015 indicated the boundary lay on the Defendants' plot. The Plaintiff's allegations of fraud and boundary tampering were not proved on a balance of probability, so the main suit failed.

p. 15
02

Whether the Plaintiff's garage encroached on Plot 1759 so as to establish trespass

Holding

The Plaintiff's construction of the garage on the Defendants' plot amounted to continuous trespass

Reasoning

Relying on the surveyor's findings and the evidence, the court held the Plaintiff exceeded his boundary in constructing the garage. Citing the Trespass Act and authorities, trespass is actionable per se, entitling the counterclaimants to damages and injunctive relief without proof of specific damage.

p. 16
03

Whether the counterclaimants were entitled to rental income of Kshs. 345,000 and mesne profits

Holding

Rental income of Kshs. 345,000 awarded, but mesne profits refused for lack of empirical proof

Reasoning

Having found trespass, the court held the Plaintiff owed the rental income he collected from the garage. However, on mesne profits, the counterclaimants produced no empirical proof quantifying the claim, so the court declined to award mesne profits despite defining the concept and citing authority on it.

p. 17
04

Who should bear costs

Holding

Costs follow the event; the successful counterclaimants awarded costs of the suit and counterclaim

Reasoning

Applying Section 27(1) of the Civil Procedure Act and Supreme Court authority, costs follow the event and are meant to compensate the successful party, not penalize the losing one. The counterclaimants having proved their case, they were entitled to costs and interest.

p. 21

Legal principles established

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  • Registration vests absolute ownership; a certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, or illegal/unprocedural/corrupt acquisition
  • Trespass to land is actionable per se and no proof of damage is necessary for an award of general damages
  • The Director of Survey is empowered under Sections 15-17 of the Land Registration Act to alter and rectify boundary lines based on approved plans
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act, and a successful party should ordinarily be awarded costs

Court orders

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  1. 1.The Plaintiff's main suit against the 1st, 2nd, 3rd and 4th Defendants dismissed with costs
  2. 2.Judgment entered for the Plaintiffs in the Counterclaim that trespass by the Plaintiff onto the Defendants' land was established
  3. 3.The Defendant to the Counterclaim to pay the Plaintiffs in the Counterclaim Kshs. 345,000.00 being rental income collected from the garage from 2007 to date
  4. 4.A permanent injunction restraining the Defendant to the Counterclaim from trespassing on MOMBASA/ZIWA LA NGOMBE SCHEME/1759
  5. 5.A mandatory injunction compelling the Defendant to the Counterclaim to demolish and remove the debris of the garage constructed on Mombasa/Ziwa la Ngombe Scheme/1759 within 45 days from delivery of the judgment
  6. 6.Costs and interest of the suit and Counterclaim at court's rate awarded to the Plaintiffs in the Counterclaim and borne by the Defendant to the Counterclaim

Authorities

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Legislation

  • Constitution of Kenya, 2010generally
  • Land Registration Act, No. 3 of 2012Sections 15-17, 24, 25, 26, 28
  • Land Act, No. 6 of 2012Section 7
  • Evidence Act, Cap. 80Sections 109-112
  • Trespass Act, Cap. 294Section 3(1)
  • Physical Planning Act, Cap. 286Section 36
  • Civil Procedure Act, Cap. 21Sections 2, 27(1)
  • Civil Procedure Rules, 2010Order 11; Order 21 Rule 13

Cases cited (9)

  • Sangale Ole Langas v Stephen Mishishi & Another
    ELC No. 881 of 2017

    Similar circumstances where the court found in favour of the plaintiff (cited by Plaintiff's counsel)

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

    Trespass is actionable per se; no need to prove specific damage to be awarded damages

  • Duncan Nderitu Ndegwa v KP& LC Limited & Another
    (2013) eKLR

    Once trespass is established it is actionable per se and no proof of damage is necessary for general damages

  • Attorney General v Halal Meat Products Limited
    [2016] eKLR

    When mesne profits may be awarded for wrongful deprivation of property

  • Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah
    [2016] eKLR

    Meaning and principles governing mesne profits; wrongful possession as the essence of the claim

  • Jasbir Singh Rai v Tarlochan Singh Rai
    (2014) eKLR

    Costs follow the event; costs compensate the successful party

  • RoseMary Wambui Munene v Ihururu Dairies Co-Operative Limited
    (2014) eKLR

    Basic rule on attribution of costs

  • Kenya Sugar Board v Ndungu Gathini
    (2013) eKLR

    Costs follow the event

  • Cecilia Nyayo v Barclays Bank of Kenya Limited
    (2016) eKLR

    Costs follow the event

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes (Article 162(2)(b) of the Constitution, 2010); the jurisdiction of the court was admitted by the Defendants

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, "Ofwona v Muthoni & 3 others", Case Analysis (2023). Civil Suit 332 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19192/eng@2023-07-06

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