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ELCPartially AllowedNot stated in judgment (originally ELC Kisii, transferred to ELC Nyamira)· [2025] KEELC 6057 (KLR)

Obonyo v County Executive Committee Member Roads and Public Works & another (Environment and Land Case 51 of 2021) [2025] KEELC 6057 (KLR)

Environment and Land Court
18 September 2025
DOD. O. Ohungo
1,722 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, administrator ad litem of the estate of Esther Osebe Obonyo, sued the Defendants for trespass over land parcel Gesima Settlement Scheme/191, registered in the deceased's name since 1995. He alleged that on 2nd March 2017 the Defendants entered the property without consent, destroyed mature eucalyptus trees and constructed an access road over 0.74 acres, claiming KShs 16 million compensation (or, alternatively, closure of the road and KShs 18.4 million), plus general damages, costs and interests. The Defendants appeared but filed no defence, complied with no Order 11 obligations, adduced no evidence despite leave to file a counter valuation report, and filed no submissions. The Plaintiff testified and called a valuer, the Land Registrar and the Assistant County Surveyor, whose reports confirmed no road existed over the intact property prior to the Defendants' actions. The court framed a single issue: whether the reliefs sought should issue. It found trespass established, applied the principle that trespass to land is actionable per se (citing Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees), and accepted the uncontroverted valuation of KShs 18,400,000. General damages were reduced to KShs 500,000. The permanent injunction was refused because the Plaintiff elected compensation for the excised land; the Defendants were left to use the road and directed to regularise the public's rights over it. Judgment of KShs 18,900,000 was entered jointly and severally against the Defendants in favour of the estate, with costs and interest.

Key legal issues

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01

Whether the Plaintiff, as administrator ad litem, had capacity to sue for the estate

Holding

Yes; the letters of administration ad litem conferred legal capacity to bring the suit

Reasoning

The court perused the letters of administration ad litem issued on 3rd March 2017, confirmed the deceased died on 27th November 2011, and was satisfied the Plaintiff could sue on behalf of the estate. Any benefits of the litigation were directed to the estate, not the Plaintiff personally.

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02

Whether trespass on the suit property was established

Holding

Yes; the unchallenged evidence, including the Land Registrar's and County Surveyor's reports, established that the Defendants excised 8 metres by 370 metres (0.30 hectares) of the suit property to construct a road without authorisation

Reasoning

The Defendants filed no defence, gave no testimony and filed no submissions. Official reports confirmed no road existed through the intact, unsubdivided property before 2nd March 2017. Excavation of 0.30 hectares for a road violated the registered proprietor's rights.

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03

What compensation is payable

Holding

KShs 18,900,000 awarded: land value, trees, disturbance allowance plus KShs 500,000 general damages for trespass

Reasoning

The Damon Appraisers valuation of KShs 18,400,000 was uncontroverted; the Defendants' own valuation report was never produced in evidence. General damages for trespass, being actionable per se, were assessed at KShs 500,000 in the circumstances.

p. 3

Legal principles established

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  • Trespass to land is actionable per se without requiring proof of any damage
  • A claimant cannot both claim compensation for land taken and seek an injunction restraining the taking

Court orders

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  1. 1.Judgment entered against the Defendants jointly and severally in favour of the estate of Esther Osebe Obonyo (deceased) for KShs 18,900,000, comprising KShs 10,500,000 for the affected 0.74 acres, KShs 5,500,000 for damaged trees, KShs 2,400,000 disturbance allowance, and KShs 500,000 general damages for trespass
  2. 2.The estate of Esther Osebe Obonyo (deceased) shall have costs of the suit and interest
  3. 3.The Defendants to be left to enjoy the land taken for the road and fully use the road; the Defendants to regularise and secure the public's title and rights over the land

Authorities

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Legislation

  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees
    [2020] KECA 536 (KLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (transferred from ELC Kisii)

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, "Obonyo v County Executive Committee Member Roads and Public Works & another (Environment and Land Case 51 of 2021) [2025] KEELC 6057 (KLR)", Case Analysis (2025). Not stated in judgment (originally ELC Kisii, transferred to ELC Nyamira). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6057/eng@2025-09-18

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