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ELCPartially AllowedELC Case of Kisumu HCCC No. 17 of 2006 (transferred; current case number in ELC Kisumu not stated in judgment)· [2025] KEELC 4316 (KLR)

Paramount Engineering (2005) Limited v Farm Engineering Industries Limited & 5 others (Environment & Land Case 367 of 2015) [2025] KEELC 4316 (KLR)

Environment and Land Court
5 June 2025
3,878 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu ordered three defendants to remove a fence that had swallowed part of a neighbour's land and to pay Sh2 million in damages.

What this practically means

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Executive summary

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This was a trespass suit originating as Kisumu HCCC No. 17 of 2006 in the High Court and transferred to the Environment and Land Court at Kisumu. Paramount Engineering (2005) Limited claimed ownership of a leasehold interest in L.R. No. 18127 measuring 3.102 hectares and complained that the 1st, 2nd and 3rd Defendants unlawfully erected a fence beyond the common boundary with their parcel L.R. No. 18128, hiving off approximately 3 acres. It sought mandatory and prohibitory injunctions, general damages for trespass and mesne profits, and costs. The 1st to 3rd Defendants denied the claim, asserting any fence was within their boundaries; the 4th to 6th Defendants (including the Chief Land Registrar and Director of Survey) filed a bare denial, adduced no evidence and made no submissions. The court framed five issues: ownership, common boundary, encroachment, entitlement to relief and costs. Relying on the Grant I.R. 59205, a beacon certificate and survey report, the court found ownership proved. Both parties' surveyors confirmed a common boundary, and the Plaintiff's surveyor found the fence encroached by approximately 1.267 hectares. The defence did not displace survey plan F/R 235/96 or its authentication. Judgment was entered for the Plaintiff against the 1st, 2nd and 3rd Defendants for a permanent mandatory injunction to remove the offending fence, a permanent prohibitory injunction, general damages of Kshs. 2,000,000 (trespass being actionable per se), and costs. Mesne profits were not awarded as both mesne profits and trespass damages cannot be granted together.

Key legal issues

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01

Ownership of the suit land

Holding

The Plaintiff proved ownership of L.R. No. 18127 measuring 3.102 hectares through the Grant I.R. 59205, beacon certificate and survey report

Reasoning

The Plaintiff produced a Grant dated 25th May 1993 for 99 years from 1st April 1992, a beacon certificate dated 21st June 2010 and a survey report. Despite denial and a plea of strict proof by the Defendants, no evidence rebutted the title documents. The court found the documents established ownership of the suit parcel.

p. 4
02

Common boundary

Holding

The two parcels share a common boundary, confirmed by both parties' surveyors and a Municipal Council letter

Reasoning

PW2, a licensed surveyor, testified the parcels share a common boundary. DW2, a senior surveyor, in his report confirmed the boundary was the line Kot2–N2 on which both parcels lay. A 2005 Municipal Council letter and sketch plan also showed the parcels were adjoining.

p. 4
03

Encroachment and trespass

Holding

The Plaintiff proved the 1st, 2nd and 3rd Defendants encroached by erecting a wall and fence that hived off part of the suit land

Reasoning

PW2's survey found a barbed wire fence encroached on the suit parcel by approximately 1.267 hectares, based on survey plan F/R 235/96 authenticated by the Director of Survey. The defence did not deny the plan's existence, produced no evidence that surveyor Makori was unregistered, made no counterclaim challenging the plan, and its own surveyor's report did not address encroachment.

p. 7
04

Entitlement to relief

Holding

Having established ownership, common boundary and encroachment, the Plaintiff was entitled to injunctions and general damages of Kshs. 2,000,000 but not mesne profits

Reasoning

The court applied the authority that mesne profits and damages for trespass cannot both be granted, and that trespass is actionable per se. Considering that the Plaintiff was denied access and use of the encroached portion, Kshs. 2,000,000 was considered adequate compensation.

p. 7

Legal principles established

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  • Where a party claims both mesne profits and damages for trespass, the court can only grant one, not both, and mesne profits must be pleaded and proved
  • Trespass to land is actionable per se and no proof of damage is necessary for an award of general damages once trespass is established

Court orders

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  1. 1.An order of permanent mandatory injunction against the 1st, 2nd and 3rd Defendants, their officers, agents and/or servants to remove the offending fence/boundary and cease the acts of trespass, and in default that they be ejected from the property
  2. 2.An order of permanent prohibitory injunction restraining the 1st, 2nd and 3rd Defendants from trespassing on the Plaintiff's property L.R. No. 18127 after removal of the offending wall/fence
  3. 3.General damages of Kshs. 2,000,000/- against the 1st, 2nd and 3rd Defendants
  4. 4.Costs of the suit to the Plaintiff
Jurisdiction invoked
Original civil jurisdiction over land disputes transferred from the High Court to the Environment and Land 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, "Paramount Engineering (2005) Limited v Farm Engineering Industries Limited & 5 others (Environment & Land Case 367 of 2015) [2025] KEELC 4316 (KLR)", Case Analysis (2025). ELC Case of Kisumu HCCC No. 17 of 2006 (transferred; current case number in ELC Kisumu not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4316/eng@2025-06-05

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