Soita (Suing as a representative of the Estate of Peter Soita Shitanda) v Malumasi & 2 others (Environment & Land Case E004 of 2022) [2024] KEELC 4119 (KLR)
The bottom line
#A Bungoma court ordered a woman evicted from 100 acres, awarded the new owner Kshs. 1.3 million for trespass, and refused shortcut title-processing orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff is a trespasser on Land Parcel No. Bungoma/Kabuyefwe/271 and liable to eviction
Yes. Ownership of the suit land had already been determined in favour of the 3rd defendant following this Court's ruling adopting Mugure Thande J's pronouncements, so the plaintiff's suit having been struck out, she gave no justification for her occupation and is a trespasser liable to eviction.
The court held that the issue of ownership was settled by its earlier ruling subscribing to Mugure Thande J's decision in Nairobi High Court Succession Cause No. 1520 of 2016. With the plaint struck out, the plaintiff adduced no evidence justifying her entry or continued occupation. The burden of justifying occupation lay on her once the 3rd defendant's proprietorship was established; she discharged nothing, hence she is a trespasser and eviction follows.
Whether the 3rd defendant is entitled to damages for trespass
Yes. General damages of Kshs. 1,300,000/= were awarded as a nominal award, computed with reference to the period from the alleged invasion on 22nd February 2022 to the date of judgment.
Relying on Park Towers Ltd v John Mithamo Njika, the court held that proof of trespass does not require proof of specific damage. Applying the measure in Philip Ayaya Aluchio v Crispinus Ngayo and Halsbury's principles, and considering the particulars of trespass from 22nd February 2022 to judgment, the court found a nominal award of Kshs. 1,300,000/= reasonable in the circumstances.
Whether the 3rd defendant is entitled to mesne profits
No. The 3rd defendant failed to discharge its burden of proof on mesne profits, and in any event damages for trespass and mesne profits cannot both be awarded.
The court applied Peter Mwangi Mbuthia v Samow Edin Osman, requiring a claimant to place material before the court demonstrating how a mesne profits claim was computed, and Kenya Hotel Properties v Willesden Investments, holding that mesne profits and damages for trespass are one and the same thing. Since damages for trespass were already awarded, mesne profits could not also issue.
Whether the court could order the County Land Registrar, Bungoma to process title documents without the original title (prayer h)
No. The court has no inherent jurisdiction to direct the Land Registrar in the exercise of his statutory powers; it may only review his administrative decisions under section 86(1) of the Land Registration Act, and no application for dispensation or replacement had been made.
Associating itself with Okon'go J in Kenya Commercial Bank Ltd v Alcon Holdings Limited, the court held that sections 31 and 33 of the Land Registration Act govern dispensation with production of title and replacement of lost titles, and no provision allows court intervention. Granting the order would constitute a misuse of procedure, encourage short-cuts and undermine the rule of law and sanctity of title.
Whether the 2nd defendant (Agricultural Finance Corporation) should execute documents to transfer title to the 3rd defendant
Yes. Prayers (f) and (g) of the counter-claim were granted since the 2nd defendant did not enter appearance or object despite service.
Having found the 3rd defendant to be the lawful owner, the court held registration in its name imperative. The 2nd defendant, though served, did not enter appearance or file a defence to the counter-claim, so no objection was registered against the prayer. The court granted the order compelling execution of documents within 14 days, with the Deputy Registrar to execute in default.
Legal principles established
#- Title to land carries with it legal possession, and once a party is established as lawful proprietor, the burden shifts to the person in occupation to justify that occupation; absent justification, the occupier is a trespasser liable to eviction
- Where trespass is proved, a party need not prove specific damage or loss to be awarded general damages
- A party cannot be awarded both mesne profits and damages for trespass; the court may grant only one as they mean one and the same thing
- The court lacks inherent jurisdiction to direct the Land Registrar generally in the exercise of his powers under the Land Registration Act, 2012; it may only review his administrative decisions under section 86(1)
Court orders
#- 1.An order of eviction against the plaintiff, Betty Glorious Soita, whether jointly and/or severally, by herself, her agents, servants and/or anyone claiming through her, to vacate and deliver vacant possession of all that land comprised in Land Parcel No. Bungoma/Kabuyefwe/271 measuring One Hundred (100) acres
- 2.The eviction orders to be enforced by Samson Itonde Tumbo t/a Dominion Yards Auctioneers or any other auctioneer or court broker that the 3rd defendant may appoint
- 3.The OCS Mbakalu Police Station to ensure compliance of the above orders and peace prevails during the eviction exercise
- 4.Damages for trespass at Kshs. 1,300,000/= against the plaintiff in favour of the 3rd defendant
- 5.The 2nd defendant (Agricultural Finance Corporation) to provide necessary papers and execute all documents requisite within Fourteen (14) days of the judgment to enable the 3rd defendant acquire title for One Hundred (100) acres in respect of Land Parcel No. Bungoma/Kabuyefwe/271
- 6.In default of compliance by the 2nd defendant, the Deputy Registrar of the court to execute the documents on behalf of the 2nd defendant in execution of this decree
- 7.Costs and interest on the damages for trespass at court rates from the filing of suit until payment in full
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution over disputes relating to land; judgment on the 3rd defendant's counter-claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Soita (Suing as a representative of the Estate of Peter Soita Shitanda) v Malumasi & 2 others (Environment & Land Case E004 of 2022) [2024] KEELC 4119 (KLR)", Case Analysis (2024). Not stated in the extract (Bungoma ELC suit filed by plaint dated 17th February 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4119/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.