Mwangi v Kiambu Dandora Farmers Company Limited

previous owner thereafter applied for the necessary consents and the suit property was subsequently transferred and registered in the name of the plainti on July 4, 1997. 3. On or about June 10, 2018, the defendant through its agents/employees invaded the suit property, fenced it o and had since then refused to remove its illegal structures thereon despite meetings between the parties to resolve the issue. The plainti reported the matter to Buruburu Police Station. Both parties were summoned but the defendant neither attended nor produced any ownership documents to the police. The plainti averred that due to the defendant’s continued acts of trespass, she had continued to suer loss and had been unable to develop the suit property. 4. The defendant entered appearance but did not le a defence to the plainti’s claim. At the trial, the plainti testied as PW1. She produced her bundle of documents as exhibits and adopted her witness statement as part of her evidence in chief. She stated further as follows: She purchased the suit property in 1992 using her deceased’s husband’s National Social Security Fund dues. It was transferred to her in 1997. She did not develop the suit property. It was the only undeveloped plot in the neighbourhood. In 2017, her daughter wanted to develop the suit property so she went to view it in the company of an architect. She found that it had been fenced. The matter was reported to the Chief of Kariobangi South who summoned the defendant but the defendant did not show up. She reported the matter to the police but the defendant failed to honour the summons from the police. The police advised her to take the matter to court. She had paid rates for the suit property from 1993. She wanted to develop the suit property but was prevented from doing so by the fence that had been put around it. She urged the court to evict the defendant from the suit property and to award her damages and costs of the suit. 5. The plainti’s daughter, Susan Wanjiru Mwangi gave evidence as PW2. PW2 adopted her witness statement as part of her evidence in chief. She stated further as follows: She was familiar with the suit property. She had visited it before and it was unfenced. When she visited the property in 2017, she found that it had been fenced. She called the plainti and they reported the matter to the area chief who later informed them that the fence was put up by the defendant. The fence was removed and then put up again. The chief called the parties for a meeting but the defendant did not show up. They reported the matter to Buruburu Police station. The defendant was summoned but did not appear. They escalated the matter to the District Ocer. Someone claiming to be a director of the defendant appeared and claimed that the suit property and the surrounding plots belonged to them. 6. Since the defendant did not le a defence, it did not tender evidence at the trial. After the close of the plainti’s case, the court directed the parties to make closing submissions in writing. The plainti led her submissions on April 26, 2022 while the defendant did not le submissions. 7. The plainti framed a number of issues for determination that she submitted on. The rst issue framed by the plainti concerned the ownership of the suit property. On this issue, the plainti cited Shaneebal Limited v County Government of Machakos [2018] eKLR and submitted that since the defendant neither led a defence nor adduced evidence, the evidence adduced by the plainti on the ownership of the suit property was not controverted. The plainti submitted that she had proved that she was the owner of the suit property. 8. The second issue was whether the defendant had trespassed on the suit property. The plainti dened trespass as any unjustiable intrusion by one person upon the land in the possession of another. Clerk and Lindsell on Torts, 18th edition, page 23 was cited for this denition. The plainti submitted that she was the registered proprietor of the suit property and as such the defendant’s act of putting up a fence on the property amounted to trespass. 9. The last issue was whether the plainti was entitled to the reliefs sought. The plainti cited Park Towers Ltd v John Mithamo Njika & 7 others [2014] eKLR and Philip Ayaya Aluchio v Crispinus Ngayo [2014] https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13846/eng@2022-10-27 2

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eKLR as well as Halsbury’s Laws of England 4th edition volume 45 para 26 1503 and submitted that she was entitled to general damages for trespass since trespass had been proved. The plainti submitted that proof of trespass was sucient and that she did not need to prove any specic damage or loss. Determination 10. In my view, there are only two issues for determination in this suit namely; whether the defendant trespassed on the suit property and whether the plainti is entitled to the reliefs sought in the plaint. The suit property is registered under the Registration of Titles Act, chapter 281 laws of Kenya (now repealed). Section 23(1) of the Registration of Titles Act that has been reproduced in section 26(1) of the Land Registration Act, 2012 provides as follows: “ The certicate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party”. 11. Section 26 of the Land Registration Act, Act, 2012, provides as follows: “ 26 (1) (2) The certicate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certicate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. A certied copy of any registered instrument, signed by the Registrar and sealed with the seal of the Registrar, shall be received in evidence in the same manner as the original.” 12. I am satised from the evidence on record that the plainti is the registered and lawful owner of the suit property. The plainti has produced evidence showing that she purchased the suit property from the previous owner on November 9, 1993. The plainti has proved that the property was transferred to her on June 17, 1997 and registered in her name on July 4, 1997.The plainti has produced in evidence a grant issued by the Commissioner of Lands on March 10, 1989 showing that the suit property was rst registered in the name of the previous owner on March 28, 1989 and that the same was transferred to the plainti on July 4, 1997. In the absence of any evidence to the contrary, it is my nding that the plainti is the owner of the suit property. 13. Section 3 of the Trespass Act, chapter 294 laws of Kenya provides as follows: “ (1) Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13846/eng@2022-10-27 3

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private land without the consent of the occupier thereof shall be guilty of an oence. (2) Where any person is charged with an oence under subsection (1) of this section the burden of proving that he had reasonable excuse or the consent of the occupier shall lie upon him.” 14. Trespass has been dened as any intrusion by a person on the land in the possession of another without any justiable cause. See, Clerk & Lindsell on Torts, 18th Edition, page 923, paragraph, 18-01. In Gitwany Investments Limited v Tajmal Limited & 3 others [2006] eKLR, it was held that title to land carries with it legal possession. This means that even if one does not have actual possession of land, so long as he has a title to the land, that is deemed as possession for the purposes of trespass. 15. To establish trespass, the plainti had to prove that she was either lawfully in possession of the suit property or was the owner thereof and that the defendant entered and occupied the property without any justiable cause. 16. This suit was not defended by the defendant. The defendant entered appearance but did not le a defence to the plainti’s claim as mentioned earlier. The defendant’s failure to le a defence and to tender evidence at the trial means that the allegations that were made against the defendant in the plaint were not denied and that the evidence that was tendered by the plainti in support of her case was not controverted by the defendants. This means that plainti’s title to the suit property is not contested. The plainti’s testimony that the defendant entered the suit property and fenced the same without her consent or authority is also not challenged. The plainti having proved her ownership of the suit property and the defendant’s entry and fencing of the same, the onus was upon the defendant to justify its fencing of the property. 17. In the absence of any evidence from the defendant, the only conclusion this court can reach is that the defendants had no justiable cause for entering and fencing the suit property and as such it is a trespasser thereon. For the foregoing reasons, I am satised that the plainti has proved her claim against the defendant and that she is entitled to the injunction sought. As concerns the prayer for general damages, I am in agreement with the plainti’s submission that once trespass is proved, the plainti is entitled to damages even without proof that she has suered any specic loss or damage. In this case, I am not satised that the trespass by the defendant was such that the defendant derived any benet from the suit property or prevented the plainti from using the same. I will therefore award the plainti only nominal damages. Conclusion 18. In conclusion, it is my nding that the plainti has proved her case against the defendant on a balance of probabilities. I therefore enter judgment for the plainti against the defendant for; 1. A permanent injunction restraining the defendant whether by itself, its servants, agents, assignees and/or nominees or whomsoever acting under or through it from interfering, dealing with, selling, transferring, charging, trespassing, and/or alienating and/or having any other dealings whatsoever with all that property known as LR No 209/10416 (IR No 46877), Kariobangi, Nairobi County (“the suit property”). 2. Kshs 50,000/- being general damages for trespass plus interest at court rates from the date hereof until payment in full. 3. Costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13846/eng@2022-10-27 4

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DELIVERED AND DATED AT KISUMU THIS 27TH DAY OF OCTOBER 2022 S.OKONG’O JUDGE Judgment read virtually through Microsoft Teams Video Conferencing platform in the presence of; Mr. Kibathi for the Plainti Mr. Murunga for the Defendant Ms. J. Omondi-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13846/eng@2022-10-27 5

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