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ELCPartially Allowed· [2025] KEELC 1343 (KLR)

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)

Environment and Land Court
12 February 2025
4,575 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, registered proprietor of L.R. No. 24187 (Title Number I.R 86729), Kasarani, purchased in 2007, sued the Attorney General, the NG-CDF Board and the National Land Commission claiming persistent interference with his land, culminating in the construction of a concrete perimeter wall with signage reading 'Kasarani Public Grounds funded by CDF Kasarani'. He sought declarations of ownership and unlawful compulsory acquisition, permanent injunctions, damages for trespass of Ksh. 51.8 million, compensation of Ksh. 55 million, and mesne profits of Ksh. 2.4 million per annum. The 1st-3rd defendants filed a defence but called no witnesses; the 5th defendant did not participate; the 4th defendant admitted funding and approving the wall project but said its role was limited to approving projects implemented by the Project Management Committee. The court found the plaintiff's title uncontroverted and indefeasible, with no evidence the land was ever public property. It held the case was trespass, not compulsory acquisition, since the statutory acquisition process under Section 107 of the Land Act driven by the National Land Commission was never invoked, and no evidence linked the 5th defendant to any infringement. The 4th defendant's funding role did not excuse it, as the wall was built on known private land and no justification was offered. Judgment was entered for the plaintiff against the 1st-4th defendants: a declaration of ownership, a permanent injunction, removal of the wall and signage, general damages for trespass of Ksh. 23 million, and costs plus interest from the date of judgment. Claims for compulsory acquisition compensation, mesne profits and exemplary damages were not granted.

Key legal issues

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01

Ownership and indefeasibility of the plaintiff's title

Holding

The plaintiff is the rightful and indefeasible registered owner of L.R. No. 24187 (I.R 86729), with liberty to develop it

Reasoning

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.

02

Whether the defendants' conduct amounted to compulsory acquisition or trespass

Holding

The conduct constituted trespass by the 1st-4th defendants, not compulsory acquisition

Reasoning

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.

p. 8
03

Liability of the NG-CDF Board (4th defendant) for a project it funded but did not implement

Holding

The 4th defendant was liable notwithstanding its limited funding role

Reasoning

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.

04

Quantum of damages for trespass

Holding

A lump sum of general damages for trespass of Ksh. 23 million awarded against the 1st-4th defendants

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 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. 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. 3.The 1st-4th defendants are directed to remove the offending wall and signage on the suit property forthwith
  4. 4.General damages for trespass awarded against the 1st-4th defendants amounting to Ksh. 23 million
  5. 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

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(3)
  • Land ActSections 107-122
  • Land Registration Act, 2012not specified
  • Trespass ActSection 3
  • NG-CDF Act, 2015Sections 14, 16, 30(3), 36, 43, 45
  • NG-CDF Rules and RegulationsRegulations 11 and 18(2)

Cases cited (18)

  • Linus Ng'ang'a Kiongo & 3 others v Town Council of Kikuyu
    [2012] eKLR
  • Joseph N.K Arap Ng'ok v Moijo Ole Keiwua & 4 others
    [1997] eKLR
  • Athi Highway Developers Ltd v West End Butchery Ltd & 6 others
    [2015] eKLR
  • Isaiah Otiato & 6 others v County Government of Vihiga
    [2018] eKLR
  • Arnacherry Limited v Attorney General
    [2014] eKLR
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Patrick Musimba v National Land Commission & 7 others
    [2016] eKLR
  • Zum zum Investment Limited v Habib Bank Limited
    [2014] eKLR
  • Fleetwood Enterprises Ltd v Kenya Power & Lighting Co. Ltd
    [2015] eKLR
  • Philip Ayaya Aluchio v Crispin Ngayo
    [2014] eKLR
  • Duncan Nderitu Ndegwa v KP& LC Limited & Another
    [2013] eKLR
  • Ajit Bhogal v Kenya Power and Lighting Co. Ltd
    [2020] eKLR
  • Rhoda S Kiilu v Jiangxi Water Hydropower Construction Kenya Limited
    [2019] eKLR
  • Titus Gatitu Njau v Municipal Council of Eldoret
    [2015] eKLR
  • Eliud Njoroge Gachiri v Stephen Kamau Nganga
    [2018] eKLR
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR
  • Kenya Power & Lighting Company Limited vs. Fleetwood Enterprises Limited
    [2017] eKLR
  • Commissioner of Lands & Another v. Coastal Aquaculture LTD C.A Civil Appeal No 253 of 1990
    [1997] eKLR
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

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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, "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

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