Thaathini Development Company Limited v Coast Water Services Board (Environment & Land Case 371 of 2016) [2025] KEELC 4290 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered Mombasa Water to pay over Kshs 72 million for running pipelines across private land without a valid way leave or compensation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit instituted by the Plaintiff herein has any merit whatsoever
- 2.Whether the Defendant trespassed unto the suit properties without authority of the Plaintiff
- 3.Whether the Plaintiff is entitled to the orders sought in the Plaint
- 4.Who bears the costs of the suit?
Key legal issues
#Limitation of actions
The suit is not time-barred because the trespass is a continuing one; time runs afresh for as long as the pipes remain on the land
The Defendant argued the pipes were laid in 1980 and the suit was filed decades later. The court held that since the Plaintiff's claim was founded on trespass and the pipes remain on the land, each continuance constitutes a fresh trespass generating a new cause of action daily, so the limitation period does not extinguish the claim.
Trespass and ownership
The Plaintiff proved ownership of the suit parcels and that the Defendant's pipelines constitute a continuing trespass without authority or compensation
Certificates of title and searches confirmed registration in the Plaintiff's name. The Defendant claimed a 1961 way leave and alleged compensation of Kshs. 45,787,418/- to third parties, but no beneficiary appeared at hearing or the site visit and no registered way leave instrument was produced. The court found the pipes remain on the land, amounting to continuing trespass.
Entitlement to reliefs
Removal of pipes and market-rate compensation of Kshs. 52,286,000/- plus general damages of Kshs. 20,000,000/- awarded; forcible detainer refused
Having found trespass proved, the court granted the removal and compensation prayers. On damages it relied on authorities that trespass is actionable per se, and that damages are measured by the difference in property value or restoration cost. Compensation was quantified at the valued rate per acre for the encroached area, with general damages awarded without proof of specific loss. Forcible detainer was declined as criminal.
Legal principles established
#- Limitation does not bar a claim founded on continuing trespass, as every continuance of a trespass gives rise to a fresh cause of action
- Registration of a person as proprietor of land vests absolute ownership in that person
- Compulsory acquisition of private property must be carried out under a legal process with prompt payment in full of just compensation
- Trespass to land is actionable per se and no proof of damage is necessary to award general damages
- Costs follow the event and the successful party is typically entitled to costs unless there are compelling reasons otherwise
Court orders
#- 1.Judgment entered in favour of the Plaintiff on the Further Amended Plaint dated 28th February 2023 in its entirety with costs
- 2.Order directing the Defendant to remove and relocate the offensive huge pipes from the listed suit parcels (Mombasa/Mainland North Block 4/72 through Block 4/224)
- 3.Order directing the Defendant to compensate the Plaintiff at current market rate amounting to Kshs. 52,286,000/-
- 4.In the alternative, the parties to consider exploring an amicable out-of-court and/or court-annexed mediation and/or negotiation
- 5.General damages for trespass of Kshs. 20,000,000/- awarded to the Plaintiff
- 6.No award of compensation for forceful detainer, the same being a criminal offence the Court has no jurisdiction to try
- 7.Costs of litigation of the suit awarded to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land and environment disputes (Article 162(2)(b) and the Environment and Land Court Act)
Relief refused
#Compensation for forceful detainer
Forcible detainer is a criminal offence under Section 91 of the Penal Code and this is not a criminal matter
Costs
Costs of the suit awarded to the Plaintiff (judgment entered in its entirety with costs; 'the court awards the costs of litigation of the suit to the Plaintiff')
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.
That Judgment be and is hereby entered in favour of the Plaint dated 28th February, 2023 and filed on 1st March, 2023 in its entirety with costs.
That an Order do and is hereby issued directing the Defendant to compensate the Plaintiff at current market rate which amounts to Kenya Shillings Fifty Two Million, Two Hundred and Eighty Six Thousand (Kshs. 52,286,000/-).
That the Plaintiff be and is hereby awarded Kenya Shillings Twenty Million (Kshs. 20,000,000/-) as general damages for trespass.
I find that the statute of limitation does not apply in the present scenario. It is trite law that continuous injuries to land create separate cause of actions.
Unfortunately, the Court was never shown the actual registered Way leave – being a legal registrable instrument as an encumbrance.
That there shall be no award of compensation for forceful detainer as the same is a criminal offence which the Court has no jurisdiction to try.
Issues in the judgment
#The Defence's limitation plea contains internally inconsistent arithmetic: the defence pleading says the suit was filed 36 years after laying of pipes, while submissions state 44 and then 46 years
The judgment's own limitation analysis attributes inconsistent filing gaps to the Defendant
The judgment computes general damages of Kshs. 20,000,000/- yet describes that sum as 'equivalent to the value of each acre' although PW-3 valued an acre at Kshs. 3,500,000/-
The Plaintiff's claim pleads an encroachment of 4.175 Ha while its own surveyor testified to an encroached area of 6.04 Ha, and the court awarded compensation based on the larger figure without reconciling the discrepancy
The Defendant's expert's years of experience are inconsistently stated: '35 years' at examination in chief and 'over 50 years' in submissions and analysis
The description of the 2nd Defendant (Coast Water Services Board) conflicts with the Defence averment that the Board no longer exists and was replaced by Coast Water Works Development Agency; the judgment refers to the single Defendant throughout yet some orders refer to 'Respondents'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thaathini Development Company Limited v Coast Water Services Board (Environment & Land Case 371 of 2016) [2025] KEELC 4290 (KLR)", Case Analysis (2025). ELC No. 371 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4290/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.