https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/212

Mwangi v Kamunge & another (Environment and Land Case E029 of 2025) [2026] KEMC 212 (KLR) (1 July 2026) (Judgment) Neutral citation: [2026] KEMC 212 (KLR) Republic of Kenya In the Nyeri Law Courts Environment and Land Case E029 of 2025 MM Gituma, SRM July 1, 2026 Between Harrison Muhoro Mwangi Plaintiff and Kagithi Kamunge 1st Defendant Kiguoya Kamunge Kagithi 2nd Defendant Judgment 1.The Plaintiff states that he is the registered and beneficial owner of land parcel no. Aguthi/Gititu/691 which borders land parcel no. LR No. Aguthi/Gititu/690 which is occupied by the 1st and 2nd Defendants. He claims that between 19th and 21st June 2018, the 2nd Defendant intentionally and unlawfully interfered with the boundary line dividing the two parcels of land by destroying the barbed wire fence that had been placed between the two parcels of land by the Plaintiff through a court order. The Plaintiff explains that in the course of the destruction, the 2nd Defendant destroyed other properties including mature coffee bushes which the Plaintiff relied on as a source of income. 2.The Plaintiff explains that owing to the actions of the 2nd Defendant, the 2nd Defendant was charged in Nyeri Criminal Case No. 1850 OF 2021. He was subsequently convicted vide judgment delivered on 26th September 2024. 3.The Plaintiff claims that as a result of the actions of the 1st and 2nd Defendants he suffered loss and damage to wit legal fees to have Counsel watch brief in the criminal case, travelling and subsistence costs for the Plaintiff and witnesses to attend court in the criminal matter, damages as per the agricultural officer report dated 7th November 2020, re-establishment of the fence in 2025, costs for coffee produce damages, costs and subsistence allowance for surveyor, land registrar and security personnel all totaling to Kshs. 785,900/=. The Plaintiff seeks to have the Defendants compensate him for this loss. 4.To this end, the Plaintiff seeks judgment as against the Defendants jointly and severally as follows:a.A declaration do issue that the Plaintiff is entitled to the refund and/or recovery of the amounts as tabulated i.e Kshs. 785,900/=.b.An order to the Nyeri County Land Registrar and the Nyeri County Surveyor to supervise and/or reconstruct the boundary between land parcels no. LR No. Aguthi.Gititu/691 and Aguthi/Gititu/690 at the cost of the 1st and 2nd Defendants jointly and severally.c.An order to the OCS Gichira police station or the OCS in charge of the area to provide security during the reconstruction of the boundary between land parcels no. LR No. Aguthi.Gititu/691 and Aguthi/Gititu/690 at the cost of the 1st and 2nd Defendants jointly and severally.d.General damages.e.Costs of the suit.f.Interest on a), b), c), d) and e) above.g.Any other better relief the Honourable Court may deem fit to grant. Defence 5.The Defendants filed a joint defence dated 26th March 2026. They admit that the 1st Defendant is the registered owner of land parcel no. LR No. Aguthi/Gititu/690. The Defendants claim that the 1st Defendant is a separate entity from the 2nd Defendant and is not liable for his actions. The 1st Defendant denied interference with the boundary between his land parcel and LR No. Aguthi/Gititu/691. 6.On the other hand, the 2nd Defendant reluctantly admits that he was charged and convicted in Nyeri Criminal Case No. 1850 OF 2021 which was appealed and the conviction upheld. He opines that the convictions were wrongful. To this extent, the 2nd Defendant states that he is only liable for damage of Kshs. 103,000/= which was the amount in the charge sheet. He denies owing the Plaintiff Kshs. 785,900/= as claimed. Hearing 7.When the matter came up for hearing, the Plaintiff testified in support of his case while the 1st Defendant testified in support of the Defendants’ case. 8.PW1, the Plaintiff, adopted his statement dated 4th March 2025 as his evidence in Chief. The said statement was a reiteration of the Plaint. The Plaintiff produced the documents in his list of documents dated 26th March 2025. The Plaintiff told the court that he seeks compensation and for the demarcation of the boundary. Upon cross-examination, the Plaintiff stated that the land that borders his belongs to the 1st Defendant. However, it is the 2nd Defendant that was charged and convicted in the criminal case. He admitted that the 1st Defendant did not do any of the acts complained of. 9.DW1, the 1st Defendant, adopted his and the 2nd Defendant’s joint statement dated 26th March 2026. In the said statement, the 2nd Defendant denies maliciously damaging the Plaintiff’s property. However, the 2nd Defendant admitted liability of Kshs. 103,900/=. He stated that he did not participate in the damage that was caused by his brother, 2nd Defendant. He produced a copy of the judgment that was delivered in the criminal matter. Upon cross-examination, he admitted that land parcel no. Aguthi/Gititu/690 was in his name. He told the court that the 2nd Defendant was charged with offences of malicious damage to property and interfering with a boundary. The Determination 10.I have read and appreciated the submissions by the Plaintiff dated 24th June 2026. In my view, the following issues arise for determination by this court:a.Whether the Plaintiff should be compensated Kshs. 785, 900/= for the loss suffered for the alleged actions of the 1st and 2nd Defendant.b.Whether the court should issue orders for the Land Registrar and the Surveyor to reconstruct the boundary between land parcels no. Aguthi/Gititu/691 and Aguthi/Gititu/690.c.Who should bear the costs of this suit.a)Whether the Plaintiff should be compensated Kshs. 785, 900/= for the loss suffered for the alleged actions of the 1st and 2nd Defendant. 11.The Plaintiff alleges that between 19th June 2018 and 21st June 2018, the 2nd Defendant intentionally interfered with the boundary that divides land parcel no. Aguthi/Gititu/691 and Aguthi/Gititu/690. The 2nd Defendant also destroyed the Plaintiff’s properties and a result the Plaintiff suffered loss. The 2nd Defendant was subsequently charged in a criminal matter for the offences of malicious damage to property and interference with a boundary. He was later convicted and the conviction upheld by the High Court. 12.On the part of the Defendants, the 1st Defendant denies interfering with the boundary and causing any loss. The 2nd Defendant reluctantly admitted the conviction in the criminal case but admitted liability to the tune of Kshs. 103,900/=. 13.The first issue for consideration is who as between the Defendants caused the damage. It is not in dispute that the Plaintiff is the registered owner of land parcel no. LR Aguthi/Gititu/691. The said parcel of land borders land parcel no. LR No. Aguthi/Gititu/690 owned by the 1st Defendant. In the Plaintiff’s pleadings, he is categorical that between 19th to 21st June 2018, it is the 2nd Defendant that interfered with the boundary that separates the two parcels of land. Further, it is the 2nd Defendant that destroyed his properties in the process of destroying the boundary. The 2nd Defendant was charged in Nyeri Criminal Case No. 1850 of 2021 for these acts. He was subsequently convicted and the conviction was upheld by the High Court. The 2nd Defendant appeared to admit as much in the joint defence with the 1st Defendant. He acknowledged the conviction but seemed to dispute his liability for the damage caused. 14.From the above, it is clear that it is only the 2nd Defendant that interfered with the boundary and caused destruction of the Plaintiff’s property. The 1st Defendant who is the brother of the 2nd Defendant cannot be liable for actions of the 2nd Defendant simply because he is the owner of land parcel no. Aguthi/Gititu/690. Thus, it is only the 2nd Defendant that is liable for the interference with the boundary and damage to the Plaintiff’s property. 15.The second issue is that of compensation for the loss suffered. The Plaintiff pleaded loss of Kshs. 785,900/=. I have carefully read through the particulars of loss. First, the Plaintiff seeks refund for legal fees and travel and subsistence allowances for the Plaintiff and witnesses in the criminal matter. In my view, these costs cannot be refunded for various reasons being that the costs were incurred in a matter that is separate and distinct from this matter, the matter from which the costs were incurred is a criminal matter and costs were not awarded and being a criminal matter the Plaintiff who was the Complainant in that matter was represented by the Prosecution but still choose to have a Counsel watch brief in the matter. Further, costs such as travel and subsistence allowance incurred in a criminal matter are not recoverable in a civil suit because the same are refundable in the criminal case as witness expenses. It would be unfair to have these costs piled on the 2nd Defendant. 16.Second, the Plaintiff sought damages as per the Agricultural Officer report dated 7th November 2020 at Kshs. 103,900/=. The said report was produced as part of the Plaintiff’s documents. It details the damage to the fence and the coffee bushes. The report assessed damage at Kshs. 103,900/=. Therefore an amount of Kshs. 103,900/= will be awarded. 17.Third, the Plaintiff sought re-establishment of the boundary at the current market rate as of 2025. The Plaintiff goes on to detail aspects of the re-establishment of the fence. However, I believe that this is what was captured in the agricultural officer’s report dated 7th November 2020. In my view, to re-assess the amounts again would amount to double compensation. While the Plaintiff brings out the issue of the current market rate, I am of the opinion that issues such as inflation to reflect the current market rate can be covered by an award of interest. Under this head, the Plaintiff sought transport costs to and from Ruiru Coffee Research Institute. However, there was no explanation as to how this cost relates to the suit herein. Thus, the claim fails. Further, the Plaintiff sought subsistence allowance for security officers, land registrar and surveyor during the demarcation exercise. The court can only award these costs once it determines that issue of demarcation of the boundary. 18.On general damages, the Plaintiff simply sought general damages but did not particularize the loss suffered warranting general damages. Therefore, general damages cannot be awarded.b)Whether the court should issue orders for the Land Registrar and the Surveyor to reconstruct the boundary between land parcels no. Aguthi/Gititu/691 and Aguthi/Gititu/690. 19.The Plaintiff sought orders for the County Land Registrar and County Surveyor to supervise and/or reconstruct the boundary between his land parcel and that of the 1st Defendant. The courts have held severally that courts lack jurisdiction to determine boundary disputes until the dispute is first lodged with the Land Registrar. In Wills Ocholla v Mary Ndege [2016] KEELC 754 (KLR), the court held:“a)That in terms of Section 18 (2) of the Land Registration Act, proprietors of registered land with a boundary dispute are obligated to first seek redress or solution from the Land Registrar before moving or escalating the dispute to this court. That where such a party fails to do so, and comes to court without first seeking redress from the Land Registrar, the court being a court of law, has to remind such a party that he/she has moved the court prematurely. That the provision of Section 18 (2) of the Land Registration Act shows clearly that the court is without jurisdiction on boundary disputes of registered land until after the land Registrar's determination on the same has been rendered.” 20.In this case, I have perused the documents produced by the Plaintiff. I note that there is a notice dated 27th June 2022 by the Land Registrar notifying the 2nd Defendant of a boundary dispute between himself and the Plaintiff and requiring the Plaintiff to appear on 19th July 2022 for the resolution of the dispute. The Plaintiff did not furnish the court with the outcome of the boundary dispute. Further, I have read the copy of the judgment in Nyeri Criminal Case No. 1850 of 2021 which was produced by both parties. At the beginning of the judgment, the Honourable Magistrate states that when the amended charge sheet was read out to the 2nd Defendant and he claimed that the land was his, the court ordered the County Surveyor to visit the scene and establish the boundaries and file a report. On 20th October 2022, the Land Registrar attended court and presented the report. The report showed that the 2nd Defendant, the accused in the matter, and the Plaintiff, the Complainant in the matter were present at the scene. It was established that there was a clear marked boundary between the Plaintiff’s land and that of the 2nd Defendant. Specifically, the Plaintiff was on land parcel no. Aguthi/Gititu/691 and the 2nd Defendant was on land parcel no. Aguthi/Gititu/690 which belonged to the 1st Defendant. My understanding is that the boundary between the two parcels of land was already demarcated. The Plaintiff did not plead that there was interference with the boundary after the aforementioned demarcation exercise. Therefore, for these reasons, the court declines the prayer for the County Land Registrar and County Surveyor to supervise and/or demarcate the boundaries between the two parcels of land. Consequently, the costs for subsistence allowance for the security officers, land registrar and surveyor are also declined.c.Who should bear the costs of this suit 21.The general rule is that costs follow the event. From the analysis above, it would appear that the 1st Defendant was without cause joined to this suit. He did not commit the acts alleged that caused loss to the Plaintiff. Therefore, he cannot be liable for the Plaintiff’s costs. The Plaintiff has succeeded partially as against the 2nd Defendant. Therefore, I hold that each party will bear their own costs. 22.In conclusion, orders are issued as follows:a)A declaration do issue that the Plaintiff is entitled to compensation of Kshs. 103,900/= only from the 2nd Defendant being loss suffered due to the acts of the 2nd Defendant.b)Interest on the above amount from date of the report dated 7th November 2020.c)Each party shall bear its own costs. DATED, SIGNED, AND DELIVERED AT NYERI THIS 1ST DAY OF JULY 2026.M.M GITUMASENIOR RESIDENT MAGISTRATEIn the presence of:…………………………..………………Plaintiff…………………………………………..1st Defendant…………………………………………..2nd Defendant…………………………………….Court Assistant