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ELCAllowedELC Case of 2020 (Mombasa)· [2024] KEELC 4662 (KLR)

Said & 3 others v Kenya Rural Roads Authority (Environment & Land Case 198 of 2020) [2024] KEELC 4662 (KLR)

Environment and Land Court
4 June 2024
10,711 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~43 min to read original · ~4 min brief

The bottom line

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Kenya's roads authority was ordered to remove pavement it laid on private land it never legally acquired.

What this practically means

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Executive summary

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Four Plaintiffs, registered joint owners since 5th June 1997 of Mombasa/Block XII/243 MI and 244 MI (each approximately 0.0166 ha), sued the Kenya Rural Roads Authority for trespass. They alleged that in October 2019 the Defendant, without right, consent or compulsory acquisition, laid cabro paving blocks covering about two-thirds of the plots while constructing the Ziwani Access Road. They sought a declaration of trespass and infringement of the right to property, a permanent injunction, and a permanent mandatory injunction compelling removal of the cabro works at the Defendant's cost. The Defendant denied trespass, asserting it had merely upgraded a pre-existing road prioritised by the Mvita Constituency Roads Committee on 5th June 2018. The court framed four issues and held that the Plaintiffs' unchallenged certificate of title, protected by Sections 24, 25 and 26 of the Land Registration Act and Article 40 of the Constitution, established their ownership; that the Defendant produced no evidence of compulsory acquisition under Article 40(3) and the Land Act; and that trespass was proved, notably through the Defendant's own letter of 2nd December 2019 acknowledging the works passed through the suit property and proposing relocation. The committee's resolution did not legalise the encroachment. Judgment was entered for the Plaintiffs with a declaration of trespass, a permanent injunction, and a mandatory injunction requiring the Defendant to remove the cabro blocks at its own cost, plus costs to the Plaintiffs.

Key legal issues

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01

Whether the Plaintiffs proved legal ownership of the suit property

Holding

The Plaintiffs produced an unchallenged certificate of title and are the bona fide owners of the suit property

Reasoning

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.

02

Whether the Defendant trespassed on the suit property

Holding

Trespass proved; the Defendant's entry and cabro construction lacked the Plaintiffs' consent or legal process

Reasoning

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.

p. 16
03

Whether the Plaintiffs were entitled to permanent and mandatory injunctions

Holding

The prayers for declaration, permanent injunction and permanent mandatory injunction were granted as prayed

Reasoning

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.

p. 17
04

Who bears the costs of the suit

Holding

Costs follow the event; the successful Plaintiffs were awarded costs

Reasoning

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

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  • 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

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  1. 1.Judgment entered in favour of the 1st, 2nd, 3rd and 4th Plaintiffs as pleaded in the Plaint dated 3rd November, 2020
  2. 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. 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. 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. 5.Costs of the suit awarded to the Plaintiffs, to be borne by the Defendant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 40 (including 40(3) and 40(6))
  • Constitution of Kenya, 2010Article 65
  • Constitution of Kenya, 2010Article 27(4)
  • Environment and Land Court Act, 2011Section 13(1)
  • Land Registration Act, 2012Sections 24, 25(1), 26(1), 101
  • Land Act, No. 6 of 2012Sections 101 to 119
  • Evidence Act, Cap. 80Sections 3, 107, 108, 109
  • Trespass Act, Cap 294Section 3(1)
  • Civil Procedure Code, Cap. 21Sections 1A, 3, 3A, 27(1)
  • Kenya Roads Act, 2007Section 6
  • Kenya Roads Board Act, 1999 (as amended by Finance Act 2009)Sections 17(1), 17(4)
  • Civil Procedure Rules, 2010Order 11

Cases cited (19)

  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    Mombasa Civil Appeal No. 83 of 2016
  • Evans Kafusi Mcharo v Permanent Secretary, Ministry of Roads, Public Works and Housing & another
    [2013] eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
  • CMC Aviation Limited v Crusair Ltd (No. 1)
    [1976-80] 1 KLR 835
  • Margaret Njeri Muiruri (Being the Administrator of the Estate of Joseph Muiruri (Deceased)) v Bank of Baroda (Kenya) Ltd
    [2001] eKLR 183
  • Attorney General v Bala
    Civil Appeal 223 of 2017 [2023] KECA 117 (KLR)
  • Mohamed Ahmed Noor & 3 Others v Bora Developers Limited & 2 others
    [2012] eKLR
  • Suleiman v Amboseli Resort Limited
  • Belle Maison Ltd v Yaya Towers Limited
    Civil Case No. 2225 of 1992
  • Mucuha v Ripples Limited
    [1990-1994] E.A 388
  • Kenya Power & Lighting Co. Ltd v Sherifi Molana Habib
    [2018] eKLR
  • Malier Unissa Karim v Edward Oluoch Odumbe
    [2015] eKLR
  • Giella v Cassman Brown
    1973 E.A. Page 358
  • Shepard Homes v Sandham
    [1970] 3 WLR Pg. 356
  • Harun Mutwiri v Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
  • Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others
    Machakos ELC Pet No. 6 of 2013 [2013] eKLR
  • Levben Products v Alexander Films (SA) (Pty) Limited
    1957 (4) SA 225 (SR) at 227
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

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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, "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.