Said & 3 others v Kenya Rural Roads Authority (Environment & Land Case 198 of 2020) [2024] KEELC 4662 (KLR)
The bottom line
#Kenya's roads authority was ordered to remove pavement it laid on private land it never legally acquired.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs proved legal ownership of the suit property
The Plaintiffs produced an unchallenged certificate of title and are the bona fide owners of the suit property
The court applied Sections 24, 25 and 26 of the Land Registration Act, which vest absolute ownership in the registered proprietor and make a certificate of title prima facie evidence of indefeasible ownership. The Plaintiffs produced title deeds and official searches which were never challenged by the Defendant. The Defendant adduced no evidence of compulsory acquisition under Article 40(3) of the Constitution and Sections 101 to 119 of the Land Act, so the construction was undertaken on land unlawfully acquired.
Whether the Defendant trespassed on the suit property
Trespass proved; the Defendant's entry and cabro construction lacked the Plaintiffs' consent or legal process
PW-1 testified that cabro works covered two-thirds of his plots, and the Defendant's letter of 2nd December 2019 (Plaintiff Exhibit 9) acknowledged that the paving works passed through the suit property and sought relocation. DW-1 confirmed the letter was authored by her boss. The Constituency Roads Committee resolution did not authorise encroachment on private land, and no compulsory acquisition notices existed. Applying Section 3(1) of the Trespass Act, trespass was proved on a balance of probabilities.
Whether the Plaintiffs were entitled to permanent and mandatory injunctions
The prayers for declaration, permanent injunction and permanent mandatory injunction were granted as prayed
The court distinguished prohibitory from mandatory injunctions, citing Shepard Homes v Sandham and Giella v Cassman Brown. Having already found that the Defendant trespassed on the suit property, the court held that the Plaintiffs' right had been infringed and that equity required the Defendant not to retain an advantage obtained by an unlawful act, justifying the positive step of removing the cabro works.
Who bears the costs of the suit
Costs follow the event; the successful Plaintiffs were awarded costs
The court applied Section 27(1) of the Civil Procedure Act, under which costs follow the event, and the line of authority holding that the successful party is entitled to costs absent compelling reasons. Having established their case, the Plaintiffs were awarded the costs of the suit.
Legal principles established
#- A certificate of title is prima facie evidence that the person named therein is the absolute indefeasible owner of the land, challengeable only on grounds of fraud, misrepresentation or illegal/unprocedural/corrupt acquisition
- Trespass is proved where entry onto private land is made without the consent of the owner; state acquisition of private land must follow the compulsory acquisition procedure under Article 40(3) of the Constitution and the Land Act
Court orders
#- 1.Judgment entered in favour of the 1st, 2nd, 3rd and 4th Plaintiffs as pleaded in the Plaint dated 3rd November, 2020
- 2.A declaration issued that the Defendant's acts amount to illegal trespass and encroachment on private property and infringed the Plaintiffs' right to own property under the Constitution of Kenya, 2010
- 3.A permanent injunction issued barring the Defendant, her servants, employees, agents and any other persons acting under her directions from trespassing on, encroaching onto, carrying out developments on or otherwise interfering with Mombasa/Block XII/243 MI and Mombasa/Block XII/244 MI
- 4.A permanent mandatory injunction issued directing the Defendant to remove, at their own cost, the cabro paving blocks illegally laid on the Plaintiffs' suit property
- 5.Costs of the suit awarded to the Plaintiffs, to be borne by the Defendant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010; Section 13(1) of the Environment and Land Court Act, 2011; Section 101 of the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said & 3 others v Kenya Rural Roads Authority (Environment & Land Case 198 of 2020) [2024] KEELC 4662 (KLR)", Case Analysis (2024). ELC Case of 2020 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4662/eng@2024-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.