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ELCPartially AllowedEnvironment & Land Case 78 of 2018· [2023] KEELC 20458 (KLR)

Kipkemboi & another v Thika Girls High School & another

Environment and Land Court of Kenya
28 September 2023
3,243 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled a school that leased land from a non-owner was a trespasser and must pay damages and costs.

What this practically means

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Executive summary

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The plaintiffs, registered proprietors of LR No 24875 (IR 180266), Thika, sued Thika Girls High School for eviction and a permanent injunction, alleging trespass from 2017. The school defended on the basis that it entered the land in October 2014 under a lease-cum-sale agreement with the 2nd defendant, Elizabeth Muthoni Hussein, who held herself out as owner under a 2011 letter of allotment, and was later joined as 2nd defendant; the school counterclaimed against her for lease payments, construction costs and incidentals. Hussein did not enter appearance. The court framed five issues. It held the lease-cum-sale agreement was entirely illegal because the 2nd defendant had no legitimate interest in the land capable of passing by lease or sale. The school, having learned it was duped, nonetheless remained on the land without consent and continued admitting students in defiance of an interim order of Gacheru J; this was clear trespass. The plaintiffs' title was unimpeached and protected under Article 40 of the Constitution and Sections 24, 25 and 26 of the Land Registration Act, entitling them to the reliefs sought. Lacking evidence of open market value, the court awarded nominal damages of Kshs 1,500,000 for trespass against both defendants jointly and severally. The counterclaim failed as the special damages were neither specifically pleaded nor proved. Costs were awarded to the plaintiffs against both defendants under Section 27 of the Civil Procedure Act, with execution stayed against the school until 31/12/2023 to allow national examinations and peaceful relocation.

Key legal issues

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01

Lawfulness of the lease-cum-sale agreement between the defendants

Holding

The agreement was entirely illegal because the 2nd defendant had no title or legitimate interest capable of passing to the 1st defendant.

Reasoning

The 2nd defendant never entered appearance or explained the basis of her purported lease and sale. DW1 testified that the 2nd defendant confessed she had no title. The court therefore held she had no legitimate interest capable of forming the basis of a lawful lease or sale, rendering the agreement illegal.

p. 5
02

Whether the 1st defendant was a trespasser

Holding

Yes; remaining on the land after learning of the fraud, and in defiance of an interim order, was clear trespass.

Reasoning

Despite knowing it had been duped by the 2nd defendant, the 1st defendant elected to remain without the plaintiffs' consent. It also continued admitting students contrary to Gacheru J's order of 16/11/2018. Continued occupation without consent was held to be clear trespass.

p. 5
03

Entitlement to reliefs in the amended plaint

Holding

The plaintiffs' unimpeached title entitled them to prayers (a) to (e), with nominal damages of Kshs 1,500,000 for trespass.

Reasoning

The plaintiffs produced their title and lease; the title was unimpeached. Under Article 40 and Sections 24, 25 and 26 of the Land Registration Act it is protected. As no evidence of open market value was tendered, only nominal damages for trespass were awarded against both defendants jointly and severally.

p. 6
04

The 1st defendant's counterclaim against the 2nd defendant

Holding

Dismissed; the special damages claimed were not specifically pleaded, itemised or proved.

Reasoning

The reliefs sought were special damages claims requiring specific pleading, itemisation and specification of quantum. The court noted it did not know how much was spent on leasing, construction or incidentals. The counterclaim was also undefended, but it failed for want of specific pleading and proof.

p. 6

Legal principles established

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  • A party with no title or legitimate interest in land cannot pass any lawful interest by lease or sale; a purported lease-cum-sale agreement founded on such interest is illegal.
  • Continued occupation of land without the owner's consent after learning one was duped constitutes clear trespass.
  • An unimpeached registered title is protected under Article 40 of the Constitution and Sections 24, 25 and 26 of the Land Registration Act.
  • Special damages must be specifically pleaded, itemised and their quantum specified to succeed.

Court orders

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  1. 1.The primary suit by the plaintiff is allowed in terms of prayers (a), (b), (c), (d) and (e)
  2. 2.The plaintiffs are awarded nominal damages (mesne profits) for trespass in the sum of Kshs 1,500,000 against both defendants
  3. 3.The counterclaim of the 1st defendant against the 2nd defendant is declined on the ground that it was neither specifically pleaded nor proved as required under the law
  4. 4.The two defendants shall bear the plaintiff's costs of this suit
  5. 5.As against the 1st defendant, execution of the decree is stayed up to 31/12/2023 to facilitate administration of national examinations and enable peaceful relocation

Authorities

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Legislation

  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Land Registration ActSections 24, 25 and 26
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 27(1)

Cases cited (2)

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

    Definition of a 'trespasser' as outlined in Black's Law Dictionary 8th Edition

  • Park Towers Limited v John Mithamo Njika & 7 Others
    [2014]

    Trespass to land is actionable per se

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to land (LR No 24875/IR 180266, Thika)

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, "Kipkemboi & another v Thika Girls High School & another", Case Analysis (2023). Environment & Land Case 78 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20458/eng@2023-09-28

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