Isaac Gathungu Wanjohi & Another v 1st Defendant & 2nd Defendant (Names of parties not fully printed in judgment)
The bottom line
#A Nairobi court confirmed a landowner's right to evict a trespassing neighbour, but denied lost-rent compensation because the claim was poorly pleaded.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction under Section 18(2) of the Land Registration Act
The court had jurisdiction because the boundary had been determined by the Director of Survey
The 1st Defendant objected that the dispute was a boundary dispute for the Land Registrar under Section 18. The court found that the Director of Survey had visited the site on 22nd July 2016 and prepared a report dated 15th September 2016 confirming encroachment of approximately 0.05 acres. Since Section 18(2) only bars court action where boundaries have not been determined under that section, the prior determination conferred jurisdiction on the court.
Proof of trespass
The Plaintiffs proved trespass to the required standard
The Plaintiffs testified and produced a survey report showing encroachment of about 200.02sqm onto L.R. No. 28/1. The 1st Defendant called no evidence and the 2nd Defendant did not participate, so the evidence was uncontroverted. The court was satisfied the Defendants encroached and trespassed on the Plaintiffs' property.
Mesne profits
Refused for want of particularised pleading and proof
Although the Plaintiffs claimed monthly rent of Kshs. 65,000/-, mesne profits were not particularised in the plaint. Being akin to special damages, the claim required specific pleading and cogent proof, and the supporting receipts were not produced. The court therefore declined to award mesne profits.
General damages for trespass
Nominal damages of Kshs. 2,000,000/- awarded
Trespass was pleaded and particularised and proved. Though the Plaintiffs suggested no amount, general damages are awarded as recognition of infringement of a legal right. Following a comparable decision in which Kshs. 2,000,000/- was awarded, and considering the duration of the trespass from December 2013, the court awarded Kshs. 2,000,000/- as nominal damages.
Legal principles established
#- A claim for mesne profits must be particularly pleaded and specifically proved, like special damages
- A court is barred from entertaining a boundary dispute unless the boundaries have been determined under Section 18 of the Land Registration Act; where a Director of Survey report exists, jurisdiction is established
Court orders
#- 1.A declaration that the 1st and 2nd Defendants have trespassed onto the Plaintiffs' property known as L.R. No. 28/1
- 2.A mandatory injunction compelling the 1st and 2nd Defendants to vacate the Plaintiffs' property within 60 days from the date of service of the decree
- 3.A permanent injunction restraining the 1st and 2nd Defendants from entering, selling, disposing of, transferring, charging, pledging, leasing, trespassing into, encroaching, fencing, constructing, dumping or otherwise interfering with the Plaintiffs' property
- 4.General damages for trespass of Kshs. 2,000,000/-
- 5.The OCS and/or OCPD Kasarani Police Station to enforce the orders
- 6.Costs of the suit awarded to the Plaintiffs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; jurisdiction maintained because the boundary dispute had been determined under Section 18(2) of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Gathungu Wanjohi & Another v 1st Defendant & 2nd Defendant (Names of parties not fully printed in judgment)", Case Analysis (2024). ELC Case No. 256 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4422/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.