Warirah v Deputy County Commissioner Kasarani Sub County, Nairobi County & 4 others (Environment and Land Case Civil Suit 119 of 2020) [2025] KEELC 1343 (KLR)
The bottom line
#A Kenyan court ordered the state to pay Ksh. 23 million for building a CDF-funded wall on private land without following lawful acquisition procedures.
What this practically means
#Executive summary
#Key legal issues
#Ownership and indefeasibility of the plaintiff's title
The plaintiff is the rightful and indefeasible registered owner of L.R. No. 24187 (I.R 86729), with liberty to develop it
The plaintiff produced his title document as uncontroverted evidence of registered ownership. The 1st-3rd defendants filed a defence but called no witnesses; the 5th defendant did not participate. No evidence was adduced that the land was ever public property or that the title was fraudulently or illegally acquired, and the defendants filed no counterclaim for cancellation of title. The title therefore stood as conclusive proof of ownership under the Land Registration Act framework.
Whether the defendants' conduct amounted to compulsory acquisition or trespass
The conduct constituted trespass by the 1st-4th defendants, not compulsory acquisition
Compulsory acquisition under Article 40(3) of the Constitution requires prompt payment in full of just compensation and follows the procedure in Section 107 of the Land Act, driven by the National Land Commission (the 5th defendant). Here the only state activity was the erection of a wall with signage reading 'Kasarani Public Grounds funded by CDF Kasarani'. There was no acquisition process, no compensation, and no evidence of any act or omission by the NLC. The plaintiff's alternative acquisition claim therefore failed, and the matter was treated as trespass.
Liability of the NG-CDF Board (4th defendant) for a project it funded but did not implement
The 4th defendant was liable notwithstanding its limited funding role
DW1 admitted a wall was constructed around the plaintiff's property, funded and branded by the Board as a project approved for FY 2019/2020, implemented by the Project Management Committee chaired by the Deputy County Commissioner. The court held that approving projects carried out on known lands is not a shield: the defendants had to justify building on private land and none did. The Constituency Committee, which conducted due diligence, was not enjoined, but this did not exonerate the Board.
Quantum of damages for trespass
A lump sum of general damages for trespass of Ksh. 23 million awarded against the 1st-4th defendants
Relying on authority that damages for trespass need not be proven by evidence of actual loss once trespass is established, and taking into account all circumstances, including that the interference (letters claiming the land was public land and the wall) had persisted since 2011, the court declined the plaintiff's pleaded figures of Ksh. 55 million land value, Ksh. 112 million lost investment and Ksh. 2.4 million annual mesne profits, and instead made a lump sum general damages award.
Legal principles established
#- Where a defendant admits the physical act complained of (here, construction of a wall on the plaintiff's land), the burden shifts to it to justify its actions, and a claim that its role was limited to approving or funding projects does not suffice where the project was carried out on known private land
- Where the registered proprietor's uncontroverted title is not challenged by any evidence showing the land was public or the title was fraudulently acquired, interference with the property rights is unjustified
- A suit founded on claims of compulsory acquisition fails where the state has not invoked the statutory process under Section 107 of the Land Act driven by the National Land Commission; a unilateral enclosure of private land is trespass
- Once trespass is proved, the affected party need not prove damages or loss; the court is bound to assess and award damages on a case to case basis
Court orders
#- 1.A declaration that the plaintiff is the rightful and indefeasible owner of the suit property Land Reference Number 24187 (Title Number I.R 86729) Kasarani Nairobi, with liberty to develop the suit property
- 2.A permanent injunction restraining the defendants, their servants, employees, agents or any other person acting at their behest from in any way unlawfully interfering with the suit property Land Reference Number 24187 Kasarani Nairobi
- 3.The 1st-4th defendants are directed to remove the offending wall and signage on the suit property forthwith
- 4.General damages for trespass awarded against the 1st-4th defendants amounting to Ksh. 23 million
- 5.Costs of the suit plus interest at court rates awarded to the plaintiff as against the 1st-4th defendants, interest computed from the date of delivery of the judgment
- Jurisdiction invoked
- Original jurisdiction under Article 162(2)(b) of the Constitution (Environment and Land Court) over land and property claims; the court noted the 4th defendant's contention that it lacks jurisdiction in so far as the matter relates to implementation of the provisions of the NG-CDF Act, 2015, but proceeded to determine the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warirah v Deputy County Commissioner Kasarani Sub County, Nairobi County & 4 others (Environment and Land Case Civil Suit 119 of 2020) [2025] KEELC 1343 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1343/eng@2025-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.