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ELCDismissedNot stated in the judgment text· [2024] KEELC 681 (KLR)

Kenpol Services Limited v Cabinet Secetary Ministry of Transport Infrsructure, Housing, Urban Development and Public Works & 2 others (Environment & Land Case E225 of 2020) [2024] KEELC 681 (KLR)

Environment and Land Court
8 February 2024
JOJudy Omange
1,701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 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, represented by Anthony Mose Njehu, sued the Defendants seeking a permanent injunction restraining them from entering, excavating stones, scooping soil, dumping materials, constructing or dealing with LR No 24893 IR 173315 Enterprise Road, plus eviction of the Defendants from the property. The Plaintiff claimed to be the registered owner, holding an allotment letter of 6th April 1998 and a certificate of title issued on 16th March 2016, and alleged that on 9th November 2020 the 1st Defendant invaded the property and demolished part of the perimeter wall with bulldozers. Counsel for the Plaintiff relied on section 26 of the Land Registration Act and Article 40 of the Constitution, arguing indefeasible title. The Defendants, though served, filed a joint defence denying the claim and raising res judicata based on ELC 279 of 2009, but called no witness, confining their submissions to absence of cause of action and burden of proof under sections 107 and 108 of the Evidence Act. The court held that while trespass was evident, the Plaintiff failed to connect the 1st Defendant to it: the plaintiff had only written to the Meteorological Department, a separate entity, and relied on hearsay from unnamed sources. Relying on Janet Kaphiphe Ouma v Marie Stopes International and Kenya Power v Gachoka, the court held that a defence left as mere allegation does not displace the plaintiff's burden of proving its case on a balance of probabilities. The suit was dismissed, with each party bearing its own costs since the defendants did not attend court.

Key legal issues

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01

Burden of proof in trespass despite undefended/unprosecuted defence

Holding

Plaintiff must still prove its case on a balance of probabilities; defendants' unprosecuted defence does not shift or remove that burden

Reasoning

The court relied on the principle that he who asserts must prove. Although the defendants called no witness and their defence remained mere allegations, the plaintiff's own evidence had to identify the 1st Defendant as the trespasser. Hearsay from unnamed sources and letters to a different government entity (the Meteorological Department) did not connect the 1st Defendant to the demolition and excavation.

p. 3
02

Whether the acts of trespass were attributable to the 1st Defendant

Holding

Trespass occurred but attribution to the 1st Defendant was not proved

Reasoning

The photographs proved an act of trespass but did not identify the trespasser. The plaintiff's belief that the 1st Defendant was responsible was based on hearsay from unnamed sources. Letters were addressed to the Meteorological Department, a separate government entity, with no evidence linking it to the 1st Defendant.

p. 3
03

Effect of an uncontroverted defence without evidence

Holding

Assertions in a defence without evidence remain mere allegations, but uncontroverted evidence must still be interrogated

Reasoning

Citing Janet Kaphiphe Ouma v Marie Stopes International and Edward Muriga v Schulter, defence assertions unsupported by evidence remain allegations. However, per Kenya Power v Gachoka, uncontroverted evidence must still bring out the defendant's fault and should not be accepted without interrogation.

p. 3

Legal principles established

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  • Even where a defendant adduces no evidence, the plaintiff still bears the burden of proving its case on a balance of probabilities
  • A plaintiff must prove fault and negligence even against uncontroverted evidence

Court orders

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  1. 1.Suit dismissed for failure of proof on a balance of probability
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Evidence Actsections 107 and 108
  • Land Registration Actsection 26
  • Constitution of Kenya 2010Article 40

Cases cited (8)

  • Shiramba & 27 others vs County Government of Uasin Gishu & 3 others
    Environment and Land Petition 14 of 2018
  • Dr Joseph Arap Ng'ok vs Justice Moijo Ole Keiwua & 7 others
    Civil Application No 60 of 1997
  • Kenya Anti-Corruption Commission vs Wilson Gacanja & 3 others
    ELC 279 of 2009
  • Peter Kanithi Kimunya vs Aden Guyo Haro
    (2014) eKLR
  • Morgan Air Cargo Limited vs Everest Enterprises Limited
    (2014) eKLR
  • Janet Kaphiphe Ouma & Another vs Marie Stopes International (Kenya)
    Kisumu HCCC No. 68 of 2007
  • Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter
    Civil Appeal No. 23 of 1997
  • Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another
    [2016] eKLR
Jurisdiction invoked
Original civil suit before the Environment and Land Court

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, "Kenpol Services Limited v Cabinet Secetary Ministry of Transport Infrsructure, Housing, Urban Development and Public Works & 2 others (Environment & Land Case E225 of 2020) [2024] KEELC 681 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/681/eng@2024-02-08

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