[2021] KEELC 2960 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC CASE NO. 543 OF 2017

MICHAEL NJIIRI KARIUKI................................................................................PLAINTIFF

VERSUS

HON. FERDINAND NDUNGU WAITITU aka BABA YAO.....................1ST DEFENDANT

HON ALICE NG’ANG’A.............................................................................2ND DEFENDANT

DAVID KARIUKI NGARI...........................................................................3RD DEFENDANT

GAKUYO REAL ESTATE LTD...................................................................4TH DEFENDANT

JUDGMENT

By a Plaint dated 19th May 2017, the Plaintiff herein filed this suit against the Defendants jointly and severally seeking for orders that;

1. A permanent Injunction restraining the Defendants, their agents, servants, employees, assigns or any other person, body or authority from entering, causing to enter any machinery for construction, constructing, passing through or in any other way trespassing upon the Plaintiff’s property comprised in L.R 12646/4.

2. An order that the road constructed on the Plaintiff’s land L.R No. 12646/4 be permanently closed.

3. An order that the defendants do remove all structures that they put on L.R No. 12646/4 and restore at their own cost the Plaintiff’s land to its original state as farmland.

4. Damages.

5. Costs and Interest of the suit.

In his statement of Claim, the Plaintiff averred that he is the registered proprietor of the suit property. That on 9th May 2017, the Defendants and their agents unlawfully and willfully entered and caused to be entered road construction equipment into the suit property. That they then caused the equipment to destroy the suit property and therein damaged crops, namely kaleand spinachthereby occasioning loss and damage. He particularized loss and Damage as; causing destruction and uprooting of growing crops; loss of business and income due to the destroyed horticultural crops; causing the levelling and establishment of a road; causing changes to the landscape resulting in environmental degradation; Causing disruptions and inconvenience to the Plaintiff’s daily life; causing the Plaintiff’s home to become insecure, erection of posts on the Plaintiff’s land in readiness for installation of street lights .

The Plaintiff further particularized illegality by the Defendants as; wrongfully entering onto his property; removing a fence which he had caused to be placed and wrongfully levelling a road through the property; commencing alienation of his land and subsequent construction without any authority from the relevant government agencies; causing part of the suit property to be used by vehicles as a public road; failing to seek Plaintiff’s consent in the alienation of the road. That the trespass on the suit property continues to date.

The Plaintiff further averred that the Defendants actions amounted to violation of his right to Clean and Healthy Environment and his right to privacy and security. He further particularized Violation of his rights under Paragraph 12.

The suit is Contested and the Defendants filed a Statement of Defence dated 5th July 2019, and denied all the allegations made in the Plaint. They averred that the Plaintiff extended his boundaries and therefore encroached on the riparian section of the river and the road reserve. That once the competing Interests are established by the government through the National Land Commission, will make good of any encroachment if any. They further averred that they have dealt along the confines of the law principles of equity and governance.

The matter proceeded by way of Viva Voce evidence, wherein the Plaintiff testified for himself and closed his case. The Defendants did not call any witness.

PLAINTIFF’S CASE

PW1 Michael Njiru, adopted his witness statement as his evidence in Court. He produced his list of documents as Exhibit 1. That his land was trespassed upon and a public road was built on. That the Defendant did not have his permission to build on the suit property and he was seeking that the road be closed. That there is a river that borders his land and he denied that the road is a riparian area or that his land has encroached on the same. That as per the Survey plan, there is no road on his land. That the encroachment was before the 2017, elections and the Defendants were candidates in the elections, but none of them are in office nor are they in control of the road. That there was a proposal to acquire part of his land, but that at the time of encroachment there was no acquisition. That he was not aware if the process of acquisition had collapsed. That there was no evidence that the land was compulsory acquired and that the Defendants acquired his land as private individuals and not public officers and he has sued them in their private capacities.

After Viva voce evidence, the Plaintiff filed written submissions which the Court has carefully read and considered. The Court has also considered, together with the evidence adduced and the provisions of law and finds that the issue for determination is whether the Plaintiff is entitled to the orders sought.

It is not in doubt that the Defendants Entered Appearance and further filed their Statement of Defence. However, during the hearing of the suit, the Defendants did not call any witness and therefore failed to substantiate the allegations made in their Defence and produce any document that would be able to Counter the Plaintiff’s testimony. It therefore follows that the Defense on record remain mere allegations and the Plaintiff’s evidence remains uncontroverted. See the case of Kenya Power & Lighting Co Ltd ….Vs… Rassul Nzembe Mwadzaya [2020] eKLR,where the Court held that;-

It is noteworthy that the Appellant in its amended Statement ofDefencefiled on 15th October 2012,denied all the allegations raised by the Respondent and attributed contributory negligence on the part of the Respondent. Although a defence was filed on behalf of the Appellant, no witness was called to prove that defence. Since no evidence was adduced in support of the defence case, the defence on record therefore remained as a mere allegation. This is the position in law and was restated in the case of Edward Muriga through Stanley Muriga…Vs…Nathaniel D. Schulter, Civil Appeal No.23 of 1997, where the Court of Appeal stated:-

“In this matter, apart from filing its statement of defence the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations. Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.

13. Further, it is trite that if no evidence is tendered to support an averment in a pleading, in this case, the defence, such averment stand as such as mere statement. Further, if there is no rebuttal of evidence by a party, that evidence remains uncontroverted. In the case of John Wainaina Kagwe..Vs..Hussein Dairy Ltd[2013]eKLR, the Court of Appeal held as follows:-

“The Respondent never called any witness(es) with regard to the occurrence of the accident. Even its own driver did not testify meaning that the allegations in its defence with regard to the blame worthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations. The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no fresh in support thereof. It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability. It was thus substantially to blame for the accident….”

However, it is not in doubt that uncontroverted evidence is not automatic evidence and the Plaintiff still has an obligation to prove his claim. It is the Plaintiff’s evidence that the Defendants engineered the destruction of his property by bringing in people and some construction machinery that destroyed his produce and created a public road in his property without any colour of right.

Though the Defendants denied these allegations they did not give any evidence to controvert the same. The Plaintiff in his evidence testified that his workers informed him that the Defendants had brought in people and they had further ordered the creation of the said road. Further the Plaintiff testified that he himself spoke to the Defendants and they acknowledged that they had ordered the creation of the said road.

The Court has seen photographs evidencing the presence of the Defendants in the said property. Further the depiction that they were in the suit property during the creation of the said road has not been controverted and neither have the Defendants denied that they are the persons in the photographs and that the Plaintiff spoke to them and they confirmed they engineered the said creation of the road.

The Court therefore has no reason to doubt the Plaintiff’s testimony that the Defendants caused the entry of construction materials on the suit property that caused the destruction of his crops. Though, the Defendants had initially claimed that the suit property was public land, there has been no evidence adduced to confirm the same. The Declaration on whether or not a property is public property can only be found when a Court or tribunal with the requisite jurisdiction conducts a hearing and comes to the said determination. In this instant, there has been no such determination.

It had further been contended that the National Land Commission was in the process of compulsorily acquiring the suit property or the part of the suit property that would be used to construct a Public Road and this was the basis upon which the Court granted a temporary Injunction. There was no evidence adduced of any such acquisition nor was there evidence adduced on whether the National Land Commission is in the process of acquiring the said property. Apart from a letter requesting the Plaintiff to avail his documents pertaining to the suit property, no further evidence on whether a determination was ever made as to whether or not the suit property is public land and was acquired to warrant the Court make its finding. The Court therefore finds and holds that the suit property is the Plaintiff’s private property and in the absence of any determination to the contrary he is entitled to all the rights and privileges.

The Plaintiff being the lawful owner of the suit property is thus entitled to all the rights and privileges appertaining to the suit property as provided for under Sections 24 and 25 of the Land Registration Act and is entitled to protection of these rights and therefore Permanent Injunction. He is further entitled to the peaceful use and quiet possession of the suit property and therefore the closure of the road.

The Plaintiff has also sought for damages. It is not in doubt that if a Court finds that there was trespass upon a person’s land, then the party is entitled to damages. Trespass has been defined by Clerk and Lindsel on Torts, 18th edition at Pg.23as;

“any unjustifiable intrusion by one person upon the land in possession.’’

There is no doubt that the Defendants were not justified in intruding upon the Plaintiff’s parcel of land and therefore they trespassed upon the said property. In the case of Park Towers Limited versus John Mithamo Njika & 7 others (2014)eKLR, where the Court held that:-

“I agree with the learned Judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded damages awardable depending on the unique facts and circumstances of each case.’’

Given that the Plaintiff did not give the value of the suit property, the Court finds that he is only entitled to Damages of Kshs. 500,000/=

Having now carefully read and considered the Pleadings by the parties, the evidence adduced, the written submissions and the provisions of law, the Court finds and holds that the Plaintiff has proved his case on the required standard of balance of probability and is thus entitled to the orders sought. The Court finds and holds that the Plaintiff’s claim as contained in the Plaint dated 19th May 2017 ismerited and the same is allowed entirely and the he is granted damages of Kshs. 500,000/=with costs of the suit. The said Judgment is entered against the Defendants herein jointly and severally.

In the event that the Government is interested in acquiring the Plaintiff’s said suit property for use as a Public Road, let them follow the right procedure of compulsorily acquisition wherein the Plaintiff would be paid prompt compensation for his parcel of land.

It is so ordered.

Dated, signed and Delivered at Thika this 10th day of June 2021.

L. GACHERU

JUDGE

10/6/2021

Court Assistant - Dominic

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Judgmenthas been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Njoroge Mungai holding brief for Mr. Kariuki Muigua for the Plaintiff

Mr. Jesse Kariuki for the 1st, 2nd, 3rd and 4th Defendants

L. GACHERU

JUDGE

10/6/2021