Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment as provided

Tikoishi ole Nampaso & 2 others v Kipkurui Arap Langat & 11 others [2018] KEELC 3092 (KLR)

Environment and Land Court
12 April 2018
3,230 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The plaintiffs, administrators and heirs of the estate of the late Meshack Partasio Ole Nampaso, sued the 1st to 11th defendants and the Land Registrar Narok (12th defendant) seeking eviction, an injunction, a declaration that the titles issued to the defendants over parcels Narok/Cismara/Ilmotiok/2995 and 2996 were wrong and illegal, cancellation of those titles, damages for trespass and mesne profits, and costs. Their case was that the suit properties were subdivisions of the deceased's parcel 379, allocated to them in succession, and that the defendants, having bought subdivisions of parcel 377 from one Virginia Pertet, erroneously occupied the plaintiffs' land, upon which the 12th defendant wrongfully issued titles. The 12th defendant substantially admitted the plaintiffs' case. The defendants denied trespass, claimed to hold titles to subdivisions of parcel 377, and counterclaimed for a declaration of ownership by adverse possession under sections 7 and 17 of the Limitation of Actions Act. At trial, the plaintiffs produced title deeds and land registrar reports; the defence produced no documents, and its sole witness produced no titles or authority to represent deceased co-defendants. The court found the plaintiffs to be the absolute and indefeasible owners, declared the defendants' titles wrong and illegal, ordered their cancellation, evicted the defendants, and issued a permanent injunction. Mesne profits were declined for lack of a pleaded or proved amount. Judgment was entered as prayed in the plaint with costs to the plaintiffs. The judgment was signed by Mary M. Gitumbi J on 12th April 2018 and delivered by Samson Okongo J on 19th April 2018.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiffs have proved that the defendants have trespassed on the suit properties and whether the title documents issued by the 12th defendant to the 1st to 11th defendants were wrong and illegal
  2. 2.Whether the 12th defendant should be compelled to cancel all title deeds issued to the 1st to 11th defendants in respect of the suit properties
  3. 3.Whether to issue an eviction order against the 1st to 11th defendants and an injunction restraining interference with the plaintiffs' possession
  4. 4.Whether to award the plaintiffs damages for trespass and mesne profits
  5. 5.Who pays the costs of the suit and interest

Key legal issues

#
01

Whether the plaintiffs proved ownership of the suit properties and wrongful occupation by the defendants

Holding

Yes. The plaintiffs produced title deeds and land registrar reports which were unchallenged, while the defence produced no documents; the court found the plaintiffs entitled to exclusive use of the suit properties and declared the defendants' titles wrong and illegal

Reasoning

The plaintiffs traced their root of title to the deceased's parcel Narok/Cismara/Ilmotiok/379, subdivided into the suit properties, and corroborated their claim with title deeds and a land registrar's report arising from site visits in 1994 and 2008. The 12th defendant's own defence admitted that the titles were issued erroneously and that the defendants were wrongfully occupying the plaintiffs' land. The sole defence witness produced no title documents or authority to represent deceased co-defendants. Applying section 26(1) of the Land Registration Act, the court found the plaintiffs' indefeasible title established and the defendants' occupation wrongful.

p. 6
02

Whether the defendants' counterclaim for adverse possession under sections 7 and 17 of the Limitation of Actions Act succeeds

Holding

Implicitly rejected; the defendants failed to prove their occupation of the suit properties, so no adverse possession was established

Reasoning

The defendants counterclaimed that they had been in open, peaceful, continuous, exclusive and uninterrupted occupation of the suit properties for over 12 years, extinguishing the plaintiffs' title. However, their only witness produced no documents of title and their own defence asserted that their parcels were subdivisions of Narok/Cismara/Ilmotiok/377, not the suit properties. The land registrar's report and the 12th defendant's admissions showed the defendants were occupying the plaintiffs' land erroneously. Having failed to discharge the burden of proving possession of the suit properties, the counterclaim necessarily failed.

p. 5
03

Whether the plaintiffs are entitled to damages for trespass and mesne profits

Holding

No; mesne profits declined because no specific amount was pleaded or proved

Reasoning

Although the court found trespass proved, it declined mesne profits because no specific sum was claimed in the plaint and no evidence supported any figure. It applied the Court of Appeal decision in Peter Mwangi Mbuthia v Samow Edin Osman & Naftali Ruth Kinyua, where mesne profits were refused on the same basis: it is unfair to force a party to pay an amount neither pleaded nor supported by evidence.

p. 6

Legal principles established

#
  • A certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner, subject only to challenge on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
  • Mesne profits cannot be awarded where no specific sum was claimed in the plaint and no evidence supports any figure

Court orders

#
  1. 1.Declaration that the title documents issued by the 12th defendant to the 1st to 11th defendants in respect of the suit properties were wrong and illegal
  2. 2.Order compelling the 12th defendant to cancel all title deeds issued to the 1st to 11th defendants in respect of the suit properties wrongfully issued to them
  3. 3.Eviction order evicting the 1st to 11th defendants together with their agents, servants and representatives or any other person from the suit properties
  4. 4.Permanent injunction restraining the defendants, their agents, servants and representatives from interfering with the plaintiffs' quiet enjoyment and possession of or in any other way dealing with the suit properties
  5. 5.Judgment entered as prayed in the plaint with costs to the plaintiffs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
Jurisdiction invoked
Not expressly stated; original jurisdiction over a land dispute (eviction, trespass, cancellation of titles) before the Environment and Land Court

Relief refused

#

Damages for trespassing and mesne profits

No specific amount was claimed or supported by evidence

p. 6

Costs

Judgment entered as prayed in the plaint with costs to the plaintiffs

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This court issues a declaration that the title documents issued by the 12th defendant to the 1st to 11th defendants in respect of the suit properties were wrong and illegal.
p. 6Declaration on wrongful titles
this court issues an eviction order evicting the 1st to the 11th defendants together with their agents, servants and representatives or any other person from the suit properties.
p. 6Eviction
this court also issues an order of permanent injunction restraining the defendants, their agents, servants and representatives from interfering with the plaintiffs' quiet enjoyment and possession of or in any other way dealing with the suit properties.
p. 6Permanent injunction
The prayer for mesne profits is declined as no specific amount has been claimed and supported.
p. 6Mesne profits refused
Judgment is accordingly entered as prayed in the plaint with costs to the plaintiffs.
p. 6Final orders and costs

Issues in the judgment

#
minor

Ambiguity over the judgment date: the judgment is signed and dated 12th April 2018 but the delivery block records delivery on 19th April 2018 by a different judge

minor

The case number of the suit is not stated anywhere in the judgment as provided

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tikoishi ole Nampaso & 2 others v Kipkurui Arap Langat & 11 others [2018] KEELC 3092 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3092/eng@2018-04-19

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