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ELCPartially AllowedELC Case No. 620 of 2017· [2018] KEELC 4062 (KLR)

Pamela Waithera Mburu v County Government of Kajiado [2018] KEELC 4062 (KLR)

Environment and Land Court
14 March 2018
2,576 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 ordered Kajiado County to pay a landowner Kshs. 2.1 million for building an ungazetted road through her titled land.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Kajiado/Kitengela/22811 (0.09 ha), sued the County Government of Kajiado alleging that the County demarcated an access road to the Governor's residence through the middle of her land, removed her barrier and fence through the County Physical Planning Officer, and failed to respond to a demand letter or furnish any gazette notice for the road. The Defendant entered appearance but filed no defence and did not attend the hearing; the plaintiff testified alone, producing her title deed, Certificate of Official Search, Mutation Form, Registry Index Map, a valuation report and receipts. The court framed five issues: ownership, trespass, permanent injunction, damages and costs. Relying on sections 26(1) and 24(a) of the Land Registration Act and uncontroverted evidence, it held the plaintiff was the absolute proprietor, that the road shown on no map and never gazetted constituted trespass, and that the County should be permanently restrained. Trespass being actionable per se, general damages of Kshs. 1,000,000 were awarded; exemplary damages of Kshs. 1,000,000 were awarded because the County acted arbitrarily and with impunity without notice or colour of right; special damages of Kshs. 110,000 (fencing and valuation fees) were proved. Mesne profits were refused for want of evidence, the property being vacant and undeveloped. Judgment was entered for Kshs. 2,100,000 with a declaration of ownership, a permanent injunction, and costs of the suit to the plaintiff.

Key legal issues

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01

Whether the Plaintiff is the legal proprietor of the suit property

Holding

Yes; the Plaintiff's certificate of title was prima facie proof of ownership, uncontroverted as the Defendant filed no defence

Reasoning

PW1 produced her title deed, Certificate of Official Search, Mutation Form and Registry Index Map. The court relied on section 26(1) of the Land Registration Act, which renders a certificate of title prima facie evidence of absolute and indefeasible ownership. The Defendant filed no defence and did not attend court, so the evidence stood uncontroverted.

p. 2
02

Whether the Defendant trespassed by demarcating a road through the suit land

Holding

Yes; the road traversing the land to the Governor's residence was not shown on the RIM and no gazette notice was produced, amounting to trespass

Reasoning

The Registry Index Map produced in court showed no road passing through the suit land. The Defendant did not controvert the evidence, furnished no gazette notice, and its officer removed the Plaintiff's barrier and fence. Demand letters went unanswered. On this uncontroverted material the court found the demarcation of the road through the middle of the land constituted trespass.

p. 2
03

Whether a permanent injunction should issue against the Defendant

Holding

Yes; as registered absolute proprietor the Plaintiff's vested rights should not be interfered with, and the Defendant proved no claim over the land

Reasoning

Relying on section 24(a) of the Land Registration Act and the Ahmed Ibrahim Suleiman authority, the court found that registration vests absolute ownership and appurtenant rights. The Defendant, having filed no defence and proved no claim over the suit land, should be permanently restrained from interfering with the Plaintiff's peaceful and quiet possession.

p. 2
04

Whether the Plaintiff was entitled to special, general and exemplary damages

Holding

Special damages of Kshs. 110,000 proved; general damages of Kshs. 1,000,000 awarded as trespass is actionable per se; exemplary damages of Kshs. 1,000,000 awarded for the County's arbitrary conduct

Reasoning

The uncontroverted evidence proved Kshs. 50,000 fencing costs and Kshs. 60,000 valuation fees. Although no loss was quantified for trespass, trespass being actionable per se, general damages were awarded following Duncan Nderitu Ndegwa. Exemplary damages followed Titus Gatitu Njau, the County having failed to give notice or gazette the road, demolished the fence without colour of right, conduct the court termed impunity contrary to the Fair Administrative Action Act.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence that the person named as proprietor is the absolute and indefeasible owner of the land
  • Trespass to land is actionable per se and no proof of damage is necessary for the court to award general damages
  • Exemplary damages may be awarded where there is oppressive, arbitrary or unconstitutional action by servants of the government
  • Registration of a person as proprietor of land vests in that person absolute ownership together with all rights and privileges appurtenant thereto

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendant in the sum of Kshs. 2,100,000 comprising Kshs. 1,000,000 general damages for trespass, Kshs. 1,000,000 exemplary damages and Kshs. 110,000 special damages
  2. 2.A declaration issued that the plaintiff is the absolute proprietor of land parcel Kajiado/Kitengela/22811
  3. 3.A permanent injunction restraining the Defendant, its agents and/or servants from harassing, threatening, intimidating, trespassing upon, demolishing or in any manner interfering with the Plaintiff's suit property known as title number Kajiado/Kitengela/22811
  4. 4.Costs of the suit awarded to the Plaintiff
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over land disputes) - the judgment does not expressly cite the provision, being filed as a plaint under the Land Registration Act and ELC procedure

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Pamela Waithera Mburu v County Government of Kajiado [2018] KEELC 4062 (KLR)", Case Analysis (2018). ELC Case No. 620 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4062/eng@2018-03-14

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