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ELCPartially AllowedEnvironment and Land Case (Nairobi) - Plaint dated 29th January, 2018· [2024] KEELC 620 (KLR)

Manair Limited v Fleet Logistics Limited & 3 others (Environment and Land Case 34 of 2018) [2024] KEELC 620 (KLR)

Environment and Land Court
8 February 2024
OAO. A. Angote
3,934 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court confirmed Manair Limited owns the disputed Nairobi property, cancelled the rival title as a forgery, and awarded over Kshs. 53 million for trespass.

What this practically means

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Executive summary

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Manair Limited sued Fleet Logistics Limited, Sigma Limited, Kenya Railways Corporation and the Chief Land Registrar over L.R. No. 20274 (Grant I.R. 63991). The Plaintiff claimed to be the registered lessee, having purchased the property from the original allottee Jackson I. Kalweo in 1995, and alleged the 1st Defendant obtained a competing Grant dated 28th January, 1994 from Sigma Ltd fraudulently. It sought an injunction, cancellation of the 1st Defendant's Grant, damages for trespass, costs and interest. The 1st Defendant denied the claim, asserted its own title was first in time, and counterclaimed for a declaration of ownership and cancellation of the Plaintiff's Grant. The 4th Defendant (Chief Land Registrar) supported the Plaintiff's title, and the 2nd Defendant alleged the 1st Defendant's Deed Plan was a forgery. The 1st Defendant failed to avail witnesses and its case was closed on 30th October, 2023 without evidence. The court framed three issues: competing title, entitlement to the orders sought, and costs. It held that pleadings are not evidence and the unproved Defence and Counterclaim failed, while the unchallenged evidence of PW1 and the Registrar's witnesses established the Plaintiff's genuine title and the forgery of the 1st Defendant's Grant. Trespass being actionable per se, the court awarded damages computed at KShs. 560,000 per month from the 1st Defendant's lease with China Road and Bridge Corporation for 8 years, totalling Kshs. 53,760,000, with interest from 1st January, 2015, but refused additional compensatory damages as double compensation. Judgment was entered for the Plaintiff with an injunction, cancellation orders, damages, interest and costs against the 1st Defendant.

Key legal issues

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01

Who between the Plaintiff and the 1st Defendant has a good title over the suit property?

Holding

The Plaintiff's title is genuine and was upheld; the 1st Defendant's purported Grant was a forgery with no root.

Reasoning

PW1 and DW1 (Deputy Chief Land Registrar) both testified that the Grant was issued to Jackson Itirithia Kalweo and transferred to the Plaintiff, and that the 1st Defendant's Deed Plan and title were forgeries. DW2 confirmed the purported Grant to Sigma Limited was fraudulent and a nullity. The court held the root of the 1st Defendant's title had been successfully challenged and the Plaintiff's title should be upheld.

p. 7
02

Effect of the 1st Defendant's failure to adduce evidence on its Defence and Counterclaim

Holding

The Defence and Counterclaim remained unproved mere allegations and could not be considered by the court.

Reasoning

The court relied on authority that pleadings are not evidence and that where a defendant calls no witness, the plaintiff's evidence stands unchallenged and the counterclaim must fail. However, the plaintiff still bore the onus of proving its case, being a non-liquidated claim.

p. 5
03

Whether the Plaintiff was entitled to damages for trespass and the quantum

Holding

General damages for trespass were awarded at KShs. 560,000 per month for 8 years (2015-2023), assessed at Kshs. 53,760,000, based on the lease consideration between the 1st Defendant and China Road and Bridge Corporation.

Reasoning

Trespass is actionable per se. The 1st Defendant entered the land in 2015 after the impugned transfer and leased it to China Road and Bridge Corporation in 2016 at KShs. 140,000 per acre for 4 acres (KShs. 560,000 per month). The lease was held sufficient evidence of the benefit the 1st Defendant received and a true reflection of quantum. Compensatory damages were refused as double compensation.

p. 7

Legal principles established

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  • Pleadings, including a Statement of Defence and Counterclaim, are not evidence; where a defendant adduces no evidence, the plaintiff's unchallenged evidence is to be believed and the defence and counterclaim fail as unsubstantiated allegations.
  • Trespass is actionable per se and no proof of specific damage is required for an award of general damages.
  • The measure of damages for trespass is the difference in the value of the plaintiff's property immediately after the trespass or the cost of restoration, whichever is less.
  • An award of compensatory damages in addition to damages for trespass is double compensation and not allowed in law.

Court orders

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  1. 1.An order for injunction restraining the 1st Defendant, whether by itself, servants, agents or employees, from entering upon, remaining on, selling, offering for sale or alienating the premise on L.R. No. 20274 Grant No. I.R. 63991
  2. 2.An order directed to the Chief Land Registrar to cancel any and all entries for Grant I.R. 63991 dated 28th January, 1994 over Land Reference No. 20274 in the name of Sigma Ltd and transferred on 19th October, 2015 to Fleet Logistics Ltd
  3. 3.Damages for trespass in the sum of Kshs. 53,760,000 to be paid by the 1st Defendant to the Plaintiff
  4. 4.Interest at court rates on the damages from 1st January, 2015 until payment in full
  5. 5.Costs of the suit and the counter claim awarded to the Plaintiff and payable by the 1st Defendant

Authorities

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Legislation

  • Land Registration ActSections 24, 25, 26
  • Trespass Actgeneral

Cases cited (13)

  • Daudi Kaptugen vs Commissioner of Lands & 4 Others
    (2015) eKLR
  • Mwangi James Njehia vs Janetta Wanjiku Mwangi & Another
    (2021) eKLR
  • Philip Ayaya Aluchio vs Crispinus Ngayo
    (2014) eKLR
  • Park Towers Ltd vs John Mithamo Njika
    (2014) eKLR
  • Rhoda S. Kiilu vs Jiangx & Hydropower Construction Kenya Ltd
    (2019) eKLR
  • Kenya Power and Lighting Company Ltd vs Ringera & 2 Others
    Civil Appeal E247 & E248 (Consolidated) (2022) KECA 104 KLR
  • North End Tradign Company Limited (Carrying on the Business Under the Registered Name of) Kenya Refuse Handlers Limited vs City Council of Nairobi
    (2019) eKLR
  • Edward Muriga Through Stanley Muriga vs Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Motex Knitwear Limited Vs. Gopitex Knitwear Mills Limited
    Nairobi (Milimani) HCCC No. 834 of 2002
  • Autar Singh Bahra And Another Vs. Raju Govindji
    HCCC No. 548 of 1998
  • Edward Mariga Through Stanley Mobisa Mariga vs Nathaniel David Shulter & Another
    (1979) eKLR
  • CMS Aviation Ltd vs Crusair Ltd (No.1)
    (1987) KLR 103
  • Park Tower vs Moses Chege & Others
    HC Civil Suit No. 1825 of 1999 (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land registered under Grant I.R. 63991 (Land Registration Act)

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, "Manair Limited v Fleet Logistics Limited & 3 others (Environment and Land Case 34 of 2018) [2024] KEELC 620 (KLR)", Case Analysis (2024). Environment and Land Case (Nairobi) - Plaint dated 29th January, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/620/eng@2024-02-08

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