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ELCPartially AllowedMuranga ELC suit filed 24/3/17 (particulars not fully stated in judgment)· [2018] KEELC 116 (KLR)

WMM v CWM [2018] KEELC 116 (KLR)

Environment and Land Court
20 December 2018
JKJ. G. Kemei
2,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed a registered land owner's title, ordered a former sister-in-law to vacate within 60 days, but refused compensation she hadn't proven.

What this practically means

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Executive summary

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The Plaintiff, registered owner of LOC6/GIKARANGU//[particulars withheld] (0.53 acres) since 26/3/15 following transmission from the estate of his late father MM under a confirmed grant issued on 21/10/14, sued the Defendant, his former sister-in-law, seeking a permanent injunction, her eviction, mesne profits, damages for opportunity cost, costs and interest. He alleged she trespassed onto the land in 2015 and ignored a demand to vacate. The Defendant, married to the Plaintiff's brother in 1973 and divorced in 2015, claimed she had lived on the land since marriage, that her father-in-law had apportioned the original parcel among his four sons including her husband, and that the Plaintiff and her husband colluded in succession cause HCCC No 1095 of 2013 to disinherit her and her children by renouncing the husband's interest. DW2, a brother of the Plaintiff, supported her account of family distribution but conceded the suit land was allocated to her husband, not her. The court held that the Plaintiff's title was unchallenged and protected under sections 25 and 26 of the Land Registration Act; that the Defendant's allegations of renunciation and discrimination were unsupported by evidence; and that her claims concerning the succession, the alleged will, discrimination and divorce belong to the family court, as the ELC lacks jurisdiction over them. On a balance of probabilities the Defendant was found a trespasser. Mesne profits were declined for failure to plead and prove them as special damages. The claim succeeded in part: the Defendant was given 60 days to vacate failing which she would be evicted, a permanent injunction issued, and the Plaintiff awarded costs.

Key legal issues

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01

Ownership of the suit land

Holding

The Plaintiff proved registration as owner on 26/3/15 pursuant to a confirmed grant; title and green card confirm ownership

Reasoning

The court found no dispute that the Plaintiff was registered pursuant to a certificate of confirmation of grant in the estate of his late father. The certificate of grant, copy of title and green card all showed registration in the Plaintiff's name, and the Defendant's husband was not a beneficiary of the suit land.

p. 3
02

Trespass by the Defendant

Holding

The Defendant is a trespasser; her defence of heirship/beneficial entitlement was unsupported and her claims lie in the family court

Reasoning

The Defendant alleged she was a legal heir and beneficiary entitled to her husband's share, alleging renunciation and collusion. The court found no evidence to support the renunciation allegations, noted the divorce was not denied, and held that succession, will and discrimination issues fall outside its jurisdiction. On a balance of probabilities the Defendant's occupation was unauthorized.

p. 3
03

Mesne profits and damages

Holding

Mesne profits declined for failure of proof as special damages

Reasoning

Mesne profits are in the nature of special damages which must be specifically pleaded and strictly proved. The Plaintiff led no evidence quantifying the loss from the Defendant's occupation, so the claim was declined.

p. 3

Legal principles established

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  • Mesne profits must be specifically pleaded and proved as special damages
  • A registered owner is protected by the Land Registration Act and an unauthorized entry constitutes trespass
  • Claims arising from a succession cause, alleged will, distribution of an estate and divorce belong to the family court, not the ELC

Court orders

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  1. 1.The Defendant is ordered to vacate the suit land voluntarily within 60 days, in default she will be evicted in accordance with the law as set out in the Land Registration Act, 2012
  2. 2.A permanent injunction restraining the Defendant, her agents, servants or anyone purporting to claim through her from interfering with the Plaintiff's occupation, possession, use and quiet enjoyment of parcel LOC6/GIKARANGU//[particulars withheld]
  3. 3.The Plaintiff shall have the costs of the suit
Jurisdiction invoked
Environment and Land Court jurisdiction over title, possession and trespass to land

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, "WMM v CWM [2018] KEELC 116 (KLR)", Case Analysis (2018). Muranga ELC suit filed 24/3/17 (particulars not fully stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/116/eng@2018-12-20

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