[2022] KEELC 1065 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CASE NO. 41 OF 2017

AGRICULTURAL DEVELOPMENT CORPORATION

LANDS LIMITED........................................................................PLAINTIFFS

-VERSUS-

RAPHAEL MLEWA MKARE & 515 OTHERS.....................DEFENDANTS

JUDGMENT

By a Plaint dated 27th February, 2017, the Plaintiffs herein sued the Defendants jointly and severally seeking the following orders: -

a) An order of permanent injunction restraining the Defendants, their servants and/or agents from interfering, trespassing, selling, wasting or interfering with the Plaintiffs quiet enjoyment and use of their parcels of lands known as LR NO. 513, 510, 490, 495, 489, 483, 482, 488, 455, 456, 550, 475, 480, 427, 461, 469, 472, 460, 454, 479, 458, 114, 440, 540 M 53, M54, M58, M38, M29 and 392 at Malindi township Kilifi County.

b) Vacant possession/ eviction orders be granted against the Defendants.

c) The Defendants to pay special damages.

d) The Defendants to pay the Plaintiffs mesne profits of Kshs. 3,000/- per year from January, 2010 until possession is delivered.

e) The OCS Malindi Police Station to provide security and in effecting the courts orders.

f) Costs of the suit.

PLAINTIFFS CASE

PW1 a Legal Officer of the Plaintiffs adopted her statement and testified that the Defendants started encroaching on the suit parcel known as LR No 513 Malindi in Kilifi County in the year 2000. PW1 further stated that the Defendants would encroach during rainy seasons, cultivate the land and plant crops like maize and cassava.

It was PW1’s testimony that in the year 2009, the Defendants increased in numbers and started building temporary structures which necessitated the Plaintiffs to issue notices stopping them from further encroaching on the land.

PW1 gave evidence that the Defendants filed a suit vide Malindi ELC Case No. 16 of 2010 against the Plaintiffs and that while injunctive orders were in place, the Defendants continued encroaching until the case was determined on 15th April, 2016 whereby the court decreed that the land belongs to the Plaintiffs.

PW1 further stated that the Plaintiffs gave the Defendants three months’ notice to stop encroaching and to remove the temporary structures on the parcel of land, but the Defendants completely ignored the said notice and continued trespassing on the said parcel of land.

It was PW1’s evidence that the 2nd Plaintiff is the registered owner of all that land known as Malindi land No. 513, 510, 490, 495, 489, 487, 483, 482, 488, 455, 456, 550, 475, 480, 427, 461, 469, 472, 460, 454, 479, 458, 114, 440, 540, M53, M54, M58, M38, M29 and 392 situate within Kilifi County. That the 2nd Plaintiff is the subsidiary company of 1st Plaintiff and it purchased all the suit lands in 1977.

It was her testimony that the 1st Plaintiff is the owner, Manager and administrator of all that suit land registered in the name of the 2nd Plaintiff and further that the 1st Plaintiff has the mandate to manage all the government agricultural lands which has been gazetted as government specialized farms situated at Malindi Township Kilifi County Legal Notice No. L. N 37/2001 and L.N 157/2003.

PW1 stated that the Plaintiffs have suffered loss and damage by the acts of the Defendants since their invasion on the suit lands which has greatly reduced the size of the Plaintiffs land for grazing. That further that the Plaintiffs animals have died in great numbers as a result of starvation due to shortage of grazing area/grass which was confirmed by the animals’ death certificates produced (see items 8 to 17 of the Plaintiffs list of documents dated 23/01/2018).

It was PW1 further evidence that in order to sustain the remaining animals, the Plaintiffs had to incur heavy costs of buying and transportation of hay/grass from Kitale and Nakuru areas to the suit lands in Malindi at a total cost ofKshs. 33,442,282. 00 (Thirty-Three Million Four Hundred Forty-Two Thousand Two Hundred and Eighty-Two)

PW1 prayed for damages for loss and special damages as particularized in the plaint as follows:

a) Loss of 203 cows valued at Kshs. 13, 397, 600. 00

b) Cost of fodder Kshs. 8, 712, 000. 00

c) Loss of business value at Kshs. 11, 332,682. 00

Total Kshs. 33,442,282. 00

PW1 further produced documents in the List of Documents which included certificate of incorporation, copies of title deeds/indentures, transfers, copy of survey Map, copy of a letter from the National Land Commission, judgment and decree in ELC No 16 of 2010 and copies of Death Certificates of the cows to buttress the Plaintiffs case.

PW1 therefore urged the court to allow the Plaintiffs claim as prayed in the Plaint.

The Defendants were served with summons to enter appearance but five Defendants named in the suit as Defendant numbers 197, 198, 263, 265 and 313 appointed the firm of Omagwa Angima Advocates to represent their interests in the suit whereby they claimed that they only came to learn about the case on 8th August, 2017 after the orders of injunction had been issued against them restraining them from cultivating the land. The above-named Defendants neither filed a defence nor appeared in court during the hearing of the suit despite being served with a hearing notice.

There was a request for judgment against the Defendants which was endorsed on 28th July 2017 and the same has not been set aside.

PLAINTIFFS SUBMISSIONS

Counsel filed submissions and heavily relied on the Judgment in Malindi ELC Case No. 16 of 2010 where the court held that the suit land belonged to the Plaintiffs and urged the court to adopt that Judgment.

Counsel cited the case of William Peter Mayaka vs Richard Kipkorir Mutai & 3 others HCCC No. 246 of 2004 Nakuru where Honourable Judge L. Kimaru held that one of the hallmarks of land ownership is occupation and since the Plaintiffs have established that they are the registered owners of a parcel of land and there is no justifiable reason why the Defendants should be bar to the Plaintiffs to enjoying his property rights including occupation.

Mrs Chesaro also submitted that the Defendants filed a suit in Malindi ELC No. 16 of 2010in which they sought to be granted the suit lands on the basis of adverse possession but the court declined and held that: -

“The suit property is therefore land belonging to the government and the Plaintiffs or any other person have no right to occupy it or utilize it for their private benefit. In the case of Mombasa Technical & Training Institute, Mombasa Civil Appeal No. 286 of 2010, the Court of Appeal follows: -

“Regardless of the length of time the Respondents remained on the suit property, their status remained that of illegal squatters. In considering the legitimacy of the Respondents’ expectation, we cannot fail to take note of the fact that the issue of land squatters in this County is a sensitive and emotive issue in view of the number of people who are landless. To create a precedent that a legitimate expectation for allocation of government land can arise to an occupation declared illegal by statute would be opening a pandoras box which would compound the problem of land by encouraging squatters’ invasion of Government land.”

Counsel therefore urged the court to allow the Plaintiffs claim with costs.

ANALYSIS AND DETERMINATION.

The Defendants were served with summons to enter appearance but neither filed a response nor filed an defence to the Plaintiffs’ claim. This suit is therefore undefended.

The issues for determination are as to whether the Defendants have trespassed on the suit parcels of land, whether an order of permanent injunction should issue against the Defendants, whether eviction orders should issue and whether the Plaintiffs are entitled to loss and special damages.

The evidence on record is that has been adduced by the Plaintiffs and the documents produced in support of the case are that it is not disputed that the Plaintiffs are the registered owners of the suit lands. It is also not disputed that the 1st Plaintiff has the mandate to manage all the government agricultural lands which has been gazetted as government specialized farms including the above mentioned farms situated at Malindi township Kilifi County under legal Notice No. L.N 37/2001 and L.N 157/2003.

The court also takes into account the fact that the Defendants filed a suit in Malindi ELC No. 16 of 2010 in which they sought to be granted the suit parcels of land on the basis of adverse possession which matter was dismissed on the 15th day of April, 2016. The fact that the Defendants filed a suit claiming adverse possession is a confirmation that they acknowledge that the Plaintiffs are the registered owners of the suit parcels of land. One of the ingredients of adverse possession is that you have to prove that your claim is against the owner of the suit land by attaching a copy of the title, an extract of the register or a certificate of search.

The Plaintiffs also produced copies of titles/indentures, transfers, survey maps and official search indication that the parcels of land belong to them. Section 24(a) of the Land Registration Act, 2012, provides that the registration of a person as the proprietor of land vests in that person the absolute ownership of that land together with all rights and privileges associated with that status.

Section 26(1) of the said Act provides that the certificate of title issued by the Land Registrar upon registration to a purchaser of land upon transfer shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner thereof and that the said title shall not be challenged save on the ground of fraud or misrepresentation to which the holder is shown to be party or where the title is acquired illegally, un procedurally or through a corrupt scheme.

I therefore find that the Plaintiffs are the absolute owners of the suit parcels of land and are therefore entitled to enjoy rights and privileges associated with such ownership which includes exclusive use, possession and enjoyment thereof without interference by any third party.

On the issue of trespass, it is on record that the Defendants are on the parcel of land where they have put temporary structures. This is as per the correspondences National Land Commission, the provincial administration and the various letters by the Plaintiffs to government offices to urge the Defendants to vacate the parcels of land. The Defendants had also been given 3 months’ notice to vacate after the judgement was delivered in Malindi ELC No 16 of 2010but they ignored.

Further the fact that the Defendants sued for adverse possession is proof that they were on the land but the court decreed that they were on the land illegally as they cannot claim adverse possession on government land.

In the case of TELKOM KENYA LIMITED V COUNTY GOVERNMENT OF MURANGA [2019] eKLRset out the definitions of trespass as below;

“25. According to the 10th Edition of Black’s Law Dictionary trespass is defined as follows;

“an unlawful act committed against the person or property of another; especially wrongful entry on another’s real property. Clark & Lindsell on Torts, 18th Edition on page 923 defines trespass as any unjustifiable intrusion by one person upon the land in possession of another. The onus is on the Plaintiff to proof that the Defendant invaded his land without any justifiable reason”.

The Defendants having unlawfully entered the suit property without the permission of the Plaintiffs are trespassers on the suit property and the Plaintiffs are entitled to judgment against them for eviction and for a permanent injunction to restrain any further acts of trespass. The Defendants have no legal mandate to use the suit land in any manner. The Defendants are trespassers on the suit parcels of land hence should vacate or be evicted.

On the issue of loss and special damages which was itemized and evidence led to prove the same, the Plaintiffs prayed for Kshs. 33,442, 282/- which includes loss of 203 cows and cost of fodder. PW1 in her testimony told the court that Plaintiffs livestock died in great numbers as a result of starvation due to shortage of grazing area/grass. To prove this, PW1 produced the animals’ death certificates and that in order to sustain the remaining livestock, they had to incur heavy costs of buying and transportation of hay/grass from Kitale and Nakuru as shown in the exhibits 16 and 17.

I find that the Plaintiffs have proved the claim for special damages which as to be specifically pleaded and proved as was held in the Court of Appeal case of Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, at P. 717, and 721 where the Learned Judges of Appeal - Kneller, Nyarangi JJA, and Chesoni Ag. J.A. - held:

“Special damages must not only be specifically claimed(pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

I have considered the pleadings, the evidence, the documents produced, submissions by counsel and the relevant authorities and find that the Plaintiffs have proved their case against the Defendants and are therefore entitled to the orders sought save for mesne profits being a special damage which has not been proved.

I therefore grant the following specific orders:

a) An order of permanent injunction is hereby issued restraining the Defendants, their servants and/or agents from interfering, trespassing, selling, wasting or interfering with the Plaintiffs quiet enjoyment and use of their parcels of lands known as LR Nos. 513, 510, 490, 495, 489, 483, 482, 488, 455, 456, 550, 475, 480, 427, 461, 469, 472, 460, 454, 479, 458, 114, 440, 540 M 53, M54, M58, M38, M29 and 392 at Malindi township Kilifi County.

b) The Defendants to pay special damages of Kshs. 33, 442, 282/-

c) The Defendants to give vacant possession of the suit parcels on land within 60 days failure to which the Plaintiffs are at liberty to evict the Defendants or cause to be evicted from the suit land in strict adherence to the law.

d) The OCS Malindi Police Station to provide security in effecting the court’s orders.

e) The Defendants to pay costs of the suit.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 2ND DAY OF MARCH, 2022.

M.A. ODENY

JUDGE

NB: In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Judgment has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.