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ELCPartially AllowedTigania ELC Case (number not stated in the judgment)· [2024] KEELC 4176 (KLR)

Mwenda (Suing As The Administrator Of The Estate Of Francis Kalunge Mwenda – Deceased) v Mukiama & 2 others (Environment & Land Case E008 of 2023) [2024] KEELC 4176 (KLR)

Environment and Land Court
8 May 2024
4,516 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded damages for trespass on land under adjudication but refused to declare ownership until registration is complete.

What this practically means

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Executive summary

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The plaintiff, widow and legal administrator of the estate of Francis Kalung'e Mwenda, sued the defendants alleging that they trespassively entered her Parcel No. 2591 Karama Adjudication Section, buried the remains of the late Zakaria Kanyi there at night on 20.4.2023, fenced off part of it and denied her use of approximately 0.302 hectares. She sought a declaration of ownership, exhumation, a permanent injunction and mesne profits. The defendants, led by the deceased's legal representative, denied trespass and asserted the burial occurred on the deceased's own Parcel No. 903; they also challenged the plaintiff's claimed acreage of 12.76 acres as a fraudulent consolidation and argued the suit was premature because the adjudication register was incomplete. The court framed six issues, including jurisdiction, exhaustion of adjudication mechanisms, trespass and reliefs. Distinguishing Tobias Ochola Osidi because no appeal or pending objection existed against the plaintiff's parcel, the court found no bar to the trespass claim. It held trespass proved, actionable per se, noting the 1st defendant had been warned through the surveyor's report and a pending lower court suit yet buried the deceased at night; a burial permit and chief's letter did not legitimise this. However, because the land remained under adjudication and the section undeclared complete, the declaration and exhumation prayers were refused. The court awarded damages of Kshs.100,000/= per year of deprivation of use, together with compensation for damaged crops, and awarded costs to the plaintiff.

Key legal issues

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01

Jurisdiction over disputes in an ongoing land adjudication area

Holding

The court retains jurisdiction over claims of trespass on land in an adjudication area, but cannot determine or declare ownership while adjudication is incomplete; the consent to sue allowed the trespass claim to proceed

Reasoning

Following Tobias Ochola Osidi, the court accepted that ascertainment of rights in an adjudication area rests with adjudication bodies, but distinguished it because no minister's appeal or pending objection against the plaintiff's parcel existed here. Since the plaintiff held a valid consent to sue and no pending adjudication dispute over her acreage, the suit on trespass was properly before the court even though ownership questions awaited completion of adjudication.

p. 7
02

Whether trespass was proved

Holding

Trespass was proved; the plaintiff's survey report showed the burial and fencing occupied approximately 0.302 ha of her parcel and the defendants led no credible rival evidence to displace it

Reasoning

The plaintiff produced a land surveyor's report, objection proceedings and ODPP recommendations supporting her case. The defendants merely alleged bias in the survey report without calling evidence to substantiate the allegation. DW 1 admitted the burial took place at night despite warnings in the surveyor's report and the pending lower court suit contesting the burial site.

p. 7
03

Whether the burial of Zakaria Kanyi on the disputed land was justified

Holding

The burial was unjustified; neither the burial permit nor the chief's letter legitimised a night burial on the plaintiff's land after warnings

Reasoning

The 1st defendant had been warned through the surveyor's report and the pending Tigania CM ELC No. 12 of 2023 suit that the burial site was contested. He buried the deceased at about 10 pm and fenced off the land. The court, following Augustine Barasa Khisa, held a forceful burial on disputed land improper where the deceased had no rights over it.

p. 8
04

Entitlement to declaration and exhumation reliefs

Holding

Refused because the land is still under adjudication and the section not yet declared complete; the plaintiff may return to court once registration crystallises her title

Reasoning

Both parties agreed the adjudication process was ongoing. Applying Tobias Ochola Osidi, the court cannot declare lawful proprietors of land in an uncompleted adjudication section, and ordering exhumation premised on ownership would be premature. General damages and costs were nonetheless awarded for the proved trespass.

p. 6

Legal principles established

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  • Where an adjudication process is ongoing, a court cannot declare ownership of land before the parties are registered as proprietors under the Land Registration Act
  • Trespass is actionable per se and proof of specific loss or damage is immaterial
  • It is improper to forcefully bury a deceased person on land over which he had relinquished or did not hold rights
  • Damages in tort compensate the plaintiff for losses due to the defendant's wrongful action to restore the position before the wrongful act

Court orders

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  1. 1.General damages of Kshs.100,000/= for every year of deprivation of use of the land awarded against the defendants for trespass
  2. 2.Compensation for damaged crops per the crop assessment reports (Kshs.40,600/= per P. Exh 15; Kshs.1,319,320/= per P. Exh 16 relied on in evidence)
  3. 3.Prayers (a) declaration of ownership and (b) exhumation of the remains of Zakaria Kanyi refused as the land is still under adjudication
  4. 4.Costs of the suit awarded to the plaintiff
Jurisdiction invoked
Consent to sue issued under Section 8(1) of the Land Consolidation Act and Section 30 of the Land Adjudication Act; Environment and Land Court jurisdiction under Article 40 of the Constitution and Order 40 of the Civil Procedure Rules

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, "Mwenda (Suing As The Administrator Of The Estate Of Francis Kalunge Mwenda – Deceased) v Mukiama & 2 others (Environment & Land Case E008 of 2023) [2024] KEELC 4176 (KLR)", Case Analysis (2024). Tigania ELC Case (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4176/eng@2024-05-08

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