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ELCAllowedEnvironment & Land Case E02 of 2023· [2024] KEELC 4586 (KLR)

Igainya Co. Ltd v Mukuse (Environment & Land Case E02 of 2023) [2024] KEELC 4586 (KLR)

Environment and Land Court of Kenya
10 June 2024
COChristine Ochieng
2,074 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that an unchallenged title certificate wins: a company evicted a trespasser who never defended the case.

What this practically means

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Executive summary

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This was an uncontested first-instance land suit before the Environment and Land Court at Machakos. The Plaintiff company sought eviction of the Defendant and trespassers from LR No. 12610/34 and LR No. 12610/35 at Mavoko, Machakos, a declaration of ownership, a permanent injunction, an order for police security during eviction and fencing, and costs. The Defendant was duly served but neither entered appearance nor filed a Defence; the suit proceeded by way of formal proof with one witness, Isabella Nyaguthi, who testified that the Plaintiff purchased the parcels at a public auction and produced Certificates of Title and statutory eviction notices. The court framed three issues: registered proprietorship, trespass and eviction, and costs. Relying on Sections 24, 25 and 26 of the Land Registration Act and the decision in Willy Kipsongok Morogo v Albert K. Morogo, the court held the Plaintiff's unchallenged Certificates of Title established it as absolute proprietor. It further found that the Notice of Eviction dated 11th March 2022, published in the Daily Nation and personally served on 18th March 2022, satisfied Section 152E of the Land Act; that the Defendant was a trespasser under the Trespass Act and common law definitions; and, applying Giella v Cassman Brown, that a permanent injunction should issue. Judgment was entered for the Plaintiff on a balance of probability, with a declaration of ownership, mandatory eviction and demolition order, permanent injunction, an order to the Mavoko Sub County Police Commander to provide security, and costs awarded to the Plaintiff.

Key legal issues

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01

Registered proprietorship of the suit lands

Holding

The Plaintiff, having produced unchallenged Certificates of Title acquired through a public auction, is the absolute proprietor of LR No. 12610/34 and LR No. 12610/35 entitled to protection under Sections 24, 25 and 26 of the Land Registration Act.

Reasoning

PW1 testified that the Plaintiff purchased the suit lands at a public auction and produced Certificates of Title. The Defendant never entered appearance or filed a Defence and did not challenge the titles. Applying Section 26(1) of the Land Registration Act, the certificates are prima facie evidence of absolute and indefeasible ownership, and the court associated itself with Willy Kipsongok Morogo v Albert K. Morogo on the protection afforded by Sections 24, 25 and 26.

p. 3
02

Trespass and eviction

Holding

The Defendant and his agents are trespassers who were validly served with eviction notices under Section 152E of the Land Act and should be evicted and permanently restrained from the suit lands.

Reasoning

PW1 testified that the Defendant erected structures, uprooted beacons, subdivided and sold the land and used violence. A Notice of Eviction dated 11th March 2022 was published in the Daily Nation on 15th March 2022 and served on 18th March 2022. The court found the service complied with Section 152E of the Land Act, that the Defendant was a trespasser, and applying Giella v Cassman Brown principles granted permanent restraint and eviction.

p. 4
03

Costs

Holding

The Plaintiff is entitled to costs of the suit because it was inconvenienced by the Defendant's occupation of the suit lands.

Reasoning

Costs follow the event. The court found the Plaintiff had been inconvenienced by the Defendant's actions and occupation of the suit lands and therefore awarded costs to the Plaintiff.

p. 4

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation or illegal, unprocedural or corrupt acquisition (Section 26(1), Land Registration Act).
  • Registration of a person as proprietor of land vests in that person absolute ownership of the land together with all rights and privileges appurtenant thereto (Section 24(a), Land Registration Act).
  • Trespass is any intrusion by a person on land in the possession of another without justifiable cause.
  • Eviction from private land requires a statutory notice of not less than three months served in accordance with Section 152E of the Land Act.

Court orders

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  1. 1.A declaration that the Plaintiff company is the absolute proprietor and/or owner of LR Nos. 12610/34 & LR No. 12610/35
  2. 2.A mandatory order of eviction directed at the Defendant and all the trespassers upon LR No. 12610/34 and LR No. 12610/35 and demolition of buildings and/or structures erected thereon by the Defendant and his agents
  3. 3.A permanent injunction restraining the Defendant, his agents, servants or employees from entering, trespassing, subdividing, selling, alienating or blocking the Plaintiff from freely accessing LR No. 12610/34 Mavoko & LR No. 12610/35 Mavoko
  4. 4.An order directing the Mavoko Sub County Police Commander to provide security to the Plaintiff company and its agents/servants to access the lands, replace destroyed beacons and fence the parcels during eviction and beacon replacement
  5. 5.Costs of the suit awarded to the Plaintiff

Authorities

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Legislation

  • Land ActSection 152E (as amended by Act No. 28 of 2016)
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 24(a)
  • Land Registration ActSections 24, 25 and 26
  • Trespass ActSection 3(1) and (2)

Cases cited (6)

  • Joseph Kipchirchir Koech v Philip Cheruiyot Sang
    (2018) eKLR
  • Salome Naliaka Wabwile v Alfred Okumu Musinaka
    (2022) eKLR
  • Willy Kipsongok Morogo V Albert K. Morogo
    (2017) eKLR
  • Jacob Njeru Karuku v Njagi Njuguna
    (2022) eKLR
  • Eliud Njoroge Gachiri v. Stephen Kamau Ng’ang’a
    (2018) eKLR
  • Giella v Cassman Brown & Company Limited
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (Plaint dated 20th July 2023)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Igainya Co. Ltd v Mukuse (Environment & Land Case E02 of 2023) [2024] KEELC 4586 (KLR)", Case Analysis (2024). Environment & Land Case E02 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4586/eng@2024-06-10

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