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ELCPartially AllowedNot stated in the extract (Bungoma ELC suit filed by plaint dated 17th February 2022)· [2024] KEELC 4119 (KLR)

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)

Environment and Land Court
9 May 2024
5,011 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, Betty Glorious Soita, sued as representative of the estate of the late Peter Soita Shitanda, seeking declarations of ownership of Land Parcel No. Bungoma/Kabuyefwe/271, a permanent injunction and damages. Her plaint and Notice of Motion were struck out on 7th July 2022 as res judicata, leaving for determination only the 3rd defendant Kabras Farm Limited's counter-claim. The counter-claim sought eviction of the plaintiff, damages for trespass, mesne profits, and orders compelling the Agricultural Finance Corporation (2nd defendant) to execute documents enabling the 3rd defendant to acquire title. The 3rd defendant's case, supported by the evidence of its co-director George Malumasi (DW1), was that the company purchased the suit land at a public auction for Kshs. 9,200,000/=, with the deceased and the 1st defendant each holding 500 shares. The court, presided over by E.C. Cherono ELC Judge, held that ownership had already been settled in the 3rd defendant's favour, and since the plaintiff's suit was struck out she gave no justification for her occupation and was therefore a trespasser. The court entered judgment for the 3rd defendant, ordering eviction of the plaintiff and those claiming through her, enforceable by named auctioneers with OCS Mbakalu Police Station ensuring compliance, and awarded general damages for trespass of Kshs. 1,300,000/=. However, mesne profits were refused for failure of proof and because they cannot be awarded alongside damages for trespass. The court also declined prayer (h), which sought to have the County Land Registrar process title without the original title deed, holding that it lacks inherent jurisdiction to direct the Land Registrar in the exercise of his statutory powers under the Land Registration Act, 2012, and could only review his administrative decisions under section 86(1). The 2nd defendant was ordered to execute transfer documents within 14 days, failing which the Deputy Registrar to execute. Costs and interest at court rates were awarded to the 3rd defendant. Judgment dated 9th May 2024 at Bungoma.

Key legal issues

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01

Whether the plaintiff is a trespasser on Land Parcel No. Bungoma/Kabuyefwe/271 and liable to eviction

Holding

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.

Reasoning

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.

02

Whether the 3rd defendant is entitled to damages for trespass

Holding

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.

Reasoning

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.

p. 7
03

Whether the 3rd defendant is entitled to mesne profits

Holding

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.

Reasoning

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.

p. 8
04

Whether the court could order the County Land Registrar, Bungoma to process title documents without the original title (prayer h)

Holding

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.

Reasoning

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.

p. 8
05

Whether the 2nd defendant (Agricultural Finance Corporation) should execute documents to transfer title to the 3rd defendant

Holding

Yes. Prayers (f) and (g) of the counter-claim were granted since the 2nd defendant did not enter appearance or object despite service.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 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. 3.The OCS Mbakalu Police Station to ensure compliance of the above orders and peace prevails during the eviction exercise
  4. 4.Damages for trespass at Kshs. 1,300,000/= against the plaintiff in favour of the 3rd defendant
  5. 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. 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. 7.Costs and interest on the damages for trespass at court rates from the filing of suit until payment in full

Authorities

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Legislation

  • Civil Procedure ActSection 7 (referred to as 'Section t' in the preliminary objection grounds)
  • Civil Procedure ActSection 2 (definition of mesne profits)
  • Trespass ActSection 3(1)
  • Land Registration Act, 2012Sections 31, 31(1), 33, 86, 86(1)

Cases cited (14)

  • Re Estate Of Gitere Kahura & Another (both Deceased)
    (2018) eKLR
  • Re Estate Of Boniface Mutinda Kabaka (deceased)
    (Succession Cause No. E185 OF 2021) {2022) KEHC 12031(KLR) (Family)
  • Pacific Frontier Sea Limited Vs. Kyengo & Another
    (2022) KECA 396 (KLR)
  • Benedette Mwikali Mugambi vs. Mark Kazungu Mramba
    (2021) eKLR
  • Gitwany Investments Limited v Tajmal Limited & 3 others
    [2006] eKLR
  • Entick vs Carrington
    (1765)
  • Maina Kabuchwa v Gachuma Gacheru
    [2018] eKLR
  • Park Towers Ltd. v John Mithamo Njika and 7 Others
    2014 eKLR
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Rajan Shah T/A Rajan S. Shah & Partners v Bipin P. Shah
    [2016] eKLR
  • Peter Mwangi Mbuthia & another v Samow Edin Osman
    [2014] eKLR
  • Kenya Hotel Properties Limited v Willesden Investments Limited
    [2009] eKLR
  • Kenya Commercial Bank Ltd v Alcon Holdings Limited
    [2021] eKLR
  • Nairobi High Court Succession Cause No. 1520 of 2016 (ruling of Mugure Thande J)
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

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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, "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.