Huts of Gold Limited v Waithaka & another (Environment & Land Case E009 of 2024) [2025] KEELC 1048 (KLR)
The bottom line
#A Kenyan court ruled that land within a dam's spillway is public riparian reserve, so a title holder cannot evict farmers or claim trespass damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the disputed spill way area forms part of the Plaintiff's titled parcels
No. The court-held survey established that part of the Plaintiff's parcels lie within the water mass and dam area, and the spill way forms part of the dam and is a riparian reserve, hence public land.
The court relied on the survey report of the District Land Surveyor, which recommended amendment of the Registry Index Map and excision of the dam area from the Plaintiff's parcels. The court had earlier, in the related petition, found the spill way to be a riparian reserve subsumed in the Plaintiff's titles and directed their rectification. Consistent with that finding, the disputed area could not be declared private land.
Whether the Defendants were trespassers
No. The Defendants cultivated the spill way area of the dam, which is a riparian reserve/public land, not the Plaintiff's parcels.
Trespass requires proof of the right to immediate and exclusive possession. Since the disputed area was found to be riparian reserve forming part of the dam, the Plaintiff could not establish exclusive possession over it. The Defendants admitted they did not own the disputed area but had long accessed it for seasonal cultivation; the Plaintiff also failed to prove its claim to the standard of balance of probabilities.
Whether the Plaintiff was entitled to damages of Kshs. 10,000,000
No, as the suit failed entirely and trespass was not proved.
Damages for trespass are discretionary and must be exercised judiciously on relevant facts; special damages must be specifically pleaded and proved. Having found no trespass and dismissed the suit, no damages could be awarded.
Costs
Although costs ordinarily follow the event and the Defendants were successful, each party was ordered to bear its own costs.
Guided by section 27 of the Civil Procedure Act, the court exercised its discretion to depart from the ordinary rule because of the circumstances of the case, including its relationship with the related petition.
Legal principles established
#- A dam spill way cannot belong to an owner different from the dam itself as it forms part of the dam; a riparian reserve is public land and cannot be private land.
- A boundary dispute is ordinarily resolved by the Land Registrar in consultation with the Surveyor of the area in dispute.
- A permanent injunction is issued only to protect a proprietor's land which is free of dispute.
Court orders
#- 1.The Plaintiff's suit as contained in the Amended Plaint dated 14th February 2024 is dismissed entirely
- 2.Each party to bear its own costs
- 3.All the other final Orders granted in Murang'a ELC Petition No. E002 of 2022 to abide in this suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (not expressly cited; court exercised first-instance civil jurisdiction over a land/trespass claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Huts of Gold Limited v Waithaka & another (Environment & Land Case E009 of 2024) [2025] KEELC 1048 (KLR)", Case Analysis (2025). Not stated in the judgment (related to Murang'a ELC Petition No. E002 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1048/eng@2025-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.