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ELCPartially AllowedEnvironment & Land Case E003 of 2022· [2023] KEELC 20692 (KLR)

Awandu v Odindo & another

Environment and Land Court of Kenya
12 October 2023
AKA. Y. Koross
3,409 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered proprietor of North Gem/Malunga/1151, sued the defendants, a married couple and his neighbours, alleging trespass on diverse dates, including 26/11/2021 when they felled trees, made bricks and destroyed crops, causing loss of Kshs 120,000/-. He sought a permanent injunction, general damages, special damages of Kshs 120,000/-, interest and costs. The defendants denied trespass, asserting their parcel was adjacent and that any entry was with express or implied permission; the 2nd defendant claimed the family had tilled a portion since 1974 and hinted at adverse possession. The court framed two issues: whether the defendants trespassed, and whether the plaintiff was entitled to the reliefs. Relying on Sections 24 and 25 of the Land Registration Act, Section 152A of the Land Act and Section 3 of the Trespass Act, the court found the plaintiff's title unchallenged, the Registry Index Map showed the parcels separated by a road, and the defendants' evidence was evasive and contradictory. Permission was never proved, and even the area chief's alleged permission could not displace the plaintiff's rights. Trespass was therefore established. Special damages failed for want of an assessor's report, but trespass being actionable per se, general damages of Kshs 200,000/- were awarded, jointly payable. A permanent injunction issued, and costs went to the plaintiff.

Key legal issues

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01

Whether the defendants trespassed onto the suit property

Holding

Trespass proved; defendants' claim of permission and of adjacency of their parcel was not substantiated.

Reasoning

The plaintiff's title was unchallenged and the RIM showed the defendants' parcel was separated from the suit property by a road. The 2nd defendant's evidence was evasive and contradictory; DW2 admitted the defendants dictated his statement. No evidence showed the plaintiff or his predecessors granted permission. Even the chief's alleged permission could not override the plaintiff's proprietary rights.

p. 6
02

Whether the plaintiff is entitled to the reliefs sought

Holding

Permanent injunction and general damages of Kshs 200,000/- granted; special damages of Kshs 120,000/- refused for want of proof.

Reasoning

Trespass being actionable per se, general damages were assessable without proof of specific loss, but the court noted no evidence of diminution in value or reinstatement cost and assessed Kshs 200,000/-. Special damages failed because no assessor's report proved the trees' species, number, maturity and value.

Legal principles established

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  • Trespass is actionable per se; proof of trespass entitles the plaintiff to general damages without proof of specific loss.
  • Special damages must be specifically pleaded and strictly proved by evidence.
  • Registration vests absolute ownership of land including everything above and below it (cujus est solum).

Court orders

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  1. 1.A permanent injunction issued against the defendants restraining them, their servants, agents and workers from entering, occupying, constructing, destroying, damaging or dealing whatsoever with land parcel no. North Gem/Malunga/1151.
  2. 2.General damages for trespass awarded in the sum of Kshs 200,000/- payable jointly by the defendants to the plaintiff.
  3. 3.Costs of the suit awarded to the plaintiff.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land Registration ActSections 24, 25, 26, 28
  • Land Act, 2016Section 152A
  • Trespass ActSection 3(1)
  • Evidence ActSection 107

Cases cited (7)

  • Hassan Mohammed Haji vs. Mohammed Kenyan & another
    [2019] eKLR

    Indefeasibility of title to land

  • Peter N Migwi Kang'ethe vs. John Githua Wahome
    [2008] eKLR

    No trespass where entry is with permission of the registered owner

  • Douglas Odhiambo Apel & Anor vs. Telkom Kenya Ltd
    Civil Appeal No. 115 of 2006

    Special damages must be strictly proved by actual evidence, not pleadings or submissions

  • John K Koech v Peter Chepkwony
    [2019] eKLR

    Definition of trespass; proof of ownership is prima facie proof of possession

  • Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited
    [2016] eKLR

    Special damages must be specifically pleaded and proved

  • Nakuru Industries Limited v S S Mehta & Sons
    [2016] eKLR

    Damages for trespass computed on basis of restitution/cost of restoration of land

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

    Where trespass is proved, no need to prove specific damage; court assesses damages on the facts

Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (implied; suit for trespass to land)

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, "Awandu v Odindo & another", Case Analysis (2023). Environment & Land Case E003 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20692/eng@2023-10-12

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