Paramount Engineering (2005) Limited v Farm Engineering Industries Limited & 5 others (Environment & Land Case 367 of 2015) [2025] KEELC 4316 (KLR)
The bottom line
#The Environment and Land Court in Kisumu ordered three defendants to remove a fence that had swallowed part of a neighbour's land and to pay Sh2 million in damages.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether or not the Plaintiff owns a parcel of land known as L.R. No. 18127 measuring 3.102 Ha as pleaded in the amended, amended, amended plaint
- 2.whether land parcel L.R. No. 18127 shares a common boundary with land parcel L.R. No. 18128
- 3.whether by erecting a wall between the two parcels of land, the 1st, 2nd and 3rd Defendants encroached onto the suit land thereby denying the Plaintiff access, occupation and use of a portion measuring 3 acres (1.5477Ha) of the suit land
- 4.Whether or not the Plaintiff is entitled to the relief sought
- 5.Costs of the suit
Key legal issues
#Ownership of the suit land
The Plaintiff proved ownership of L.R. No. 18127 measuring 3.102 hectares through the Grant I.R. 59205, beacon certificate and survey report
The Plaintiff produced a Grant dated 25th May 1993 for 99 years from 1st April 1992, a beacon certificate dated 21st June 2010 and a survey report. Despite denial and a plea of strict proof by the Defendants, no evidence rebutted the title documents. The court found the documents established ownership of the suit parcel.
Common boundary
The two parcels share a common boundary, confirmed by both parties' surveyors and a Municipal Council letter
PW2, a licensed surveyor, testified the parcels share a common boundary. DW2, a senior surveyor, in his report confirmed the boundary was the line Kot2–N2 on which both parcels lay. A 2005 Municipal Council letter and sketch plan also showed the parcels were adjoining.
Encroachment and trespass
The Plaintiff proved the 1st, 2nd and 3rd Defendants encroached by erecting a wall and fence that hived off part of the suit land
PW2's survey found a barbed wire fence encroached on the suit parcel by approximately 1.267 hectares, based on survey plan F/R 235/96 authenticated by the Director of Survey. The defence did not deny the plan's existence, produced no evidence that surveyor Makori was unregistered, made no counterclaim challenging the plan, and its own surveyor's report did not address encroachment.
Entitlement to relief
Having established ownership, common boundary and encroachment, the Plaintiff was entitled to injunctions and general damages of Kshs. 2,000,000 but not mesne profits
The court applied the authority that mesne profits and damages for trespass cannot both be granted, and that trespass is actionable per se. Considering that the Plaintiff was denied access and use of the encroached portion, Kshs. 2,000,000 was considered adequate compensation.
Legal principles established
#- Where a party claims both mesne profits and damages for trespass, the court can only grant one, not both, and mesne profits must be pleaded and proved
- Trespass to land is actionable per se and no proof of damage is necessary for an award of general damages once trespass is established
Court orders
#- 1.An order of permanent mandatory injunction against the 1st, 2nd and 3rd Defendants, their officers, agents and/or servants to remove the offending fence/boundary and cease the acts of trespass, and in default that they be ejected from the property
- 2.An order of permanent prohibitory injunction restraining the 1st, 2nd and 3rd Defendants from trespassing on the Plaintiff's property L.R. No. 18127 after removal of the offending wall/fence
- 3.General damages of Kshs. 2,000,000/- against the 1st, 2nd and 3rd Defendants
- 4.Costs of the suit to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over land disputes transferred from the High Court to the Environment and Land Court
Relief refused
#Mesne profits (claimed together with general damages for trespass)
A party cannot be awarded both mesne profits and damages for trespass; the court awarded general damages instead
Costs
Costs of the suit awarded to the Plaintiff against the 1st, 2nd and 3rd Defendants
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.
From the documents produced as exhibits particularly the Grant, the Beacon certificate, and the survey report, it is clear that the Plaintiff owns land parcel No. L.R. 18127 measuring 3.102 Hectares.
On the basis of the evidence placed before court, I find that the two parcels of land are adjoining on the ground and that they share a common boundary.
I find that the Plaintiff proved that the 1st, 2nd and 3rd Defendants encroached onto the suit land by erecting a wall and a fence that had the effect of hiving off part of the Plaintiff's land.
An order of permanent mandatory injunction to issue against the 1st, 2nd and 3rd Defendants by themselves, their officers, agents and/or servants or otherwise to remove the offending fence/ boundary and to cease the acts of trespass complained of and in default that the 1st, 2nd and 3rd Defendants be ejected from the property.
General damages of Kshs.2,000,000/- (Kenya shillings two million only).
Issues in the judgment
#Survey plan authentication date stated inconsistently - the Plaintiff's surveyor testified plan F/R 235/96 was authenticated by the Director of Survey on 7th April, 1993 whereas DW2 testified it was authenticated on 7th April, 1998
Encroached area pleaded inconsistently - plaint describes approximately 3 acres as 1.05477 Ha in one place and 1.5477 Ha in the issues framed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paramount Engineering (2005) Limited v Farm Engineering Industries Limited & 5 others (Environment & Land Case 367 of 2015) [2025] KEELC 4316 (KLR)", Case Analysis (2025). ELC Case of Kisumu HCCC No. 17 of 2006 (transferred; current case number in ELC Kisumu not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4316/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.