Thairu v National Land Commission & 54 others
The bottom line
#A Nairobi court confirmed a registered landowner's title, ordered 54 occupants evicted within 120 days, and awarded Kshs 500,000 yearly for trespass since 2004.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff is the legal owner of the suit property
Yes - the unchallenged certificate of title issued on 2nd August 1994 confers conclusive and indefeasible ownership
The Plaintiff produced a certificate of title for a 99-year leasehold issued on 2nd August 1994, which was never challenged. Under Sections 26 and 30 of the Land Registration Act, 2012, a certificate of title is conclusive proof of proprietorship absent fraud, misrepresentation or illegality. The former 1st Defendant alleged fraud but failed to particularise it or lead evidence, so the higher standard of proof for fraud was not met.
Whether the Plaintiff is entitled to mesne profits
Yes - general damages of Kshs 500,000 per year awarded from 2004 until vacant possession is surrendered
The Plaintiff proved he was denied possession from 2004 when occupants violently prevented development. Trespass is actionable per se and damages need not be proved. Applying the reasonable-rent measure, and noting the occupants themselves had offered Kshs 11,500,000 to purchase, the court assessed Kshs 500,000 per year as reasonable compensation running until the decree is executed.
Costs
Costs awarded to the Plaintiff against the 2nd to 54th Defendants
Although the 2nd to 54th Defendants did not defend the suit, their trespass generated the litigation. Applying the principle that costs follow the event, the court found it in the interests of justice to award the Plaintiff costs against them.
Legal principles established
#- A certificate of title is conclusive proof of proprietorship unless fraud, misrepresentation, illegality or other statutory exceptions are proved
- Allegations of fraud must be specifically pleaded and strictly proved to a standard higher than balance of probabilities
- Trespass to land is actionable per se; once trespass is proved, damages must be assessed and awarded without proof of actual loss
- The measure of mesne profits is reasonable rent, assessed down to the date possession is given
Court orders
#- 1.A declaration that the Plaintiff is the lawful and rightful owner of plot No. LR 209/9459 (IR.63446) issued on 2nd August 1994
- 2.The 2nd to 54th Defendants given 120 days from service of the decree to surrender vacant possession to the Plaintiff
- 3.In default, an order for eviction against the 2nd to 54th Defendants with security provided by the Officer Commanding Police Division-Buru-Buru Nairobi County
- 4.General damages for trespass/mesne profits at Kshs 500,000 every year from 2004 until vacant possession is surrendered
- 5.Costs of the suit awarded to the Plaintiff
- 6.Interest on damages and costs at court rates from the date of judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thairu v National Land Commission & 54 others", Case Analysis (2023). Environment and Land Case 376 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21330/eng@2023-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.