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ELCPartially AllowedNot stated in the judgment (Nakuru Environment and Land Court)· [2025] KEELC 3174 (KLR)

Kimani & 26 others v G. Issaias & Company (Kenya) (Environment & Land Case 153 of 2018) [2025] KEELC 3174 (KLR)

Environment and Land Court
8 April 2025
AOAntony O. Ombwayo
2,672 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Seventeen Kenyan landowners won Ksh 300,000 each against road authorities for clearing their land without consent, even without proving actual damage.

What this practically means

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Executive summary

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Kennedy Kimani Ndungu and 16 others, registered owners of plots in Timboroa/Chegeya Block 1 (Subukia), sued over alleged trespass arising from repairs and resealing of the Timboroa-Miteitei road in July 2002 and later road upgrading works. They sought a declaration that the defendants' interference was wrongful, a perpetual injunction, general damages for trespass, and alternatively an order compelling the 2nd defendant to compensate them or compulsorily acquire the portions used as a public road. The 1st defendant denied trespass, asserting the plaintiffs were themselves on public land; the 2nd defendant (Kenya Rural Roads Authority) denied encroachment, asserting works were confined to the 15-metre road reserve shown on the Registry Index Map. PW1 testified the defendants placed beacons on the plaintiffs' land and that in 2019 bulldozers destroyed trees and property, supported by a valuation report covering only one plot; neither the surveyor nor the valuer was called. DW1, a surveyor with the 2nd defendant, testified that a 2020 survey confirmed the road alignment matched the Registry Index Map and works were restricted to the 15-metre reserve. The court found the plaintiffs had proved marking and clearing of their land for road construction without consent or compulsory acquisition, amounting to trespass actionable per se, but that actual damage was not proved. It awarded each plaintiff general damages of Ksh 300,000, granted a permanent injunction against the defendants and the Ministry of Roads and Public Works, and awarded the plaintiffs costs.

Key legal issues

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01

Whether the defendants committed trespass on the plaintiffs' land

Holding

Yes - marking and clearing the plaintiffs' land for road construction without consent, and without compulsory acquisition, amounted to trespass

Reasoning

The court found the plaintiffs' evidence that beacons were placed and land marked and cleared was uncontroverted in the material respects. DW1 did not controvert that the land was cleared for the road and only assured the court the contractor would adhere to the 15-metre reserve. Since the plaintiffs never consented, surrendered the land, and no compulsory acquisition took place, the entry and marking constituted trespass actionable per se.

p. 4
02

Whether the plaintiffs proved actual damage

Holding

No - only marking and clearing was proved; no actual damage was established beyond that

Reasoning

The valuation report by Attic Realtors Ltd covered only one property (plot 150B), and neither the surveyor nor the valuer was called to verify it. No forest or agricultural officer evidence proved destroyed trees and crops. The defendants' evidence that works were restricted to the 15-metre road reserve per the Registry Index Map was uncontroverted. Accordingly only nominal-type general damages for loss of use of the marked and cleared portions were awarded.

p. 5

Legal principles established

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  • Trespass is actionable per se and actual damage need not be proved
  • The measure of damages for trespass is the diminution in value of the land or cost of reinstatement, whichever is less, to restore the claimant to his pre-trespass position

Court orders

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  1. 1.General damages of Ksh 300,000 awarded to each plaintiff for trespass by the defendants on their parcel of land
  2. 2.A permanent injunction restraining the defendants and their servants or agents as well as the Ministry of Roads and Public Works or its servants or agents from interfering with the plaintiffs' properties
  3. 3.Costs of the suit awarded to the plaintiffs
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (court not expressly stated in the judgment); the matter concerns trespass and land within Timboroa, said to be 'within the jurisdiction of this Honorable Court'

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, "Kimani & 26 others v G. Issaias & Company (Kenya) (Environment & Land Case 153 of 2018) [2025] KEELC 3174 (KLR)", Case Analysis (2025). Not stated in the judgment (Nakuru Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3174/eng@2025-04-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.