Mwaura v Njeri & another (Environment & Land Case 382 of 2015) [2024] KEELC 5072 (KLR)

Both parties traced root of title to the 2nd Defendant, Embakasi Ranching Company Limited. The 2nd Defendant's resident surveyor (DW1) demonstrated how the 1st Defendant was allocated, paid for and shown her plots. By contrast, the Plaintiff's own witnesses conceded in cross-examination that they never engaged the company's surveyor and that only a surveyor could confirm plot locations. No surveyor was called for the Plaintiff, so the requisite standard of proof on a balance of probabilities was not met.

A counterclaim, like any suit, must be proved to the required standard. DW1, the resident surveyor, demonstrated how the 1st Defendant acquired and was shown the plots, and produced receipts for site-visit and survey fees. His evidence that plots 1719B and 1720B belonged to the 1st Defendant was never challenged or controverted by the Plaintiff, so the counterclaim succeeded.

Having established a good root of title, the 1st Defendant qualified for a permanent injunction under the principles in Kenya Power & Lighting Co Ltd v Sheria Molana Habib. On damages, the court noted the 1st Defendant never submitted on quantum, and thus exercised restraint by awarding only nominal damages rather than general, exemplary or aggravated damages.

The court acknowledged the statutory default that costs follow the event but exercised its discretion depart from it. It considered the familial relationship between the litigants and directed that each party bear its own costs of both the suit and the counterclaim.