[2023] KEELC 22061 (KLR)

Ruaraka Sabuni Development Company Ltd v Nyote (Environment & Land Case 11 of 2021) [2023] KEELC 22061 (KLR) (6 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22061 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 11 of 2021

A Nyukuri, J

December 6, 2023

Between

Ruaraka Sabuni Development Company Ltd

Plaintiff

and

Michael Nganju Nyote

Defendant

Judgment

Introduction 1. The plaintiff in this matter instituted this suit against the Defendant by way of plaint dated 16th February 2009, which was later amended on 14th May 2014, seeking the following orders;a)A permanent order of injunction do issue restraining the defendant either by himself, his servants and or agents or otherwise from demolishing, trespassing and encroaching, alienating, disposing, constructing or interfering in any manner whatsoever with the plaintiff’s property known as plot Nos [particulars witheld], [particulars witheld], [particulars witheld], and [particulars witheld] being part of the property known as Ngong/Ngong/[particulars witheld].b)A declaration do issue that the properties known as Ngong/Ngong/[particulars witheld] in particular belong to the plaintiff and consequently an order do issue directing the defendants to remove any building materials on the subject property.c)In default the defendant be evicted from the subject properties at his cost and the eviction be supervised by the officer Commanding Rongai Police Stationd)Damages for loss of use of the suit propertiese)Costs of this suit.

2. The plaintiff averred that they were the owners of the parcel of land known as Ngong/Ngong/[particulars witheld] which had been subdivided into small plots among them plot Nos. [particulars witheld], [particulars witheld] and [particulars witheld] (suit property). He stated that the defendant by fraud had encroached on the suit property and despite being asked to stop the encroachment continued in the same.

3. The defendant filed defence on 29th February 2009. He denied the plaintiff’s claim and stated that it was one Sammy Kariuki Mwangi purporting to be the plaintiff’s secretary, who fraudulently sold the suit property to one David Isuvi at Kshs.370, 000/= without consent from the shareholders. He also stated that there was another pending suit being Nairobi HCCC No. 617 of 2000 and stated that hence this suit was a nullity.

4. The suit proceeded by way of viva voce evidence.

Plaintiff’s evidence 5. PW1 was Sammy Kariuki Mwangi. He testified on 16th March 2023 and adopted the contents of his witness statement dated 6th October 2021 as his evidence in chief. His testimony was that the plaintiff was the registered owner of all that property known as Ngong/Ngong/[particulars witheld] which was divided into several plots among them plot Nos. [particulars witheld], [particulars witheld] and [particulars witheld]. That on 68th February 2009, the defendant encroached on plot numbers [particulars witheld], [particulars witheld] and [particulars witheld] with a view to grabbing them. He stated that the matter was reported at Ongata Rongai Police station where the defendant was summoned but refused to attend. He stated that the encroachment persists and the defendant has put up small structures. He also stated that the plaintiff has never sold the suit property to the defendant or to any other person.

6. The witness produced the plaintiff’s certificate of incorporation; title for parcel No. Ngong/Ngong/[particulars witheld]; land control board consent for transfer of land; and subdivision plan for title No. Ngong/Ngong/[particulars witheld]. That marked the close of the plaintiff’s case.

7. The defendant having been served, failed to attend court on the hearing date and therefore the defence case was marked as closed although no evidence was tendered by the defendant.

8. The plaintiff filed submissions dated 26th April 2023. No submissions were filed on the part of the defence.

Plaintiff’s submissions 9. Counsel for the plaintiff submitted that the plaintiff was entitled to an order of permanent injunction. They relied on the case of Bandari Investments & Co. Ltd v Martin Chiponda & 139 others [2022]eKLR and submitted that the plaintiff is entitled to a permanent injunction to protect his proprietary rights against the defendant as they are the registered proprietors of the suit property.

10. Counsel cited section 26 of the Land Registration Act and argued that a certificate of registration was proof of absolute and indefeasible ownership. To buttress this position, counsel referred to the cases of Abednego Otundo Ayukuv Laban Masinjira [2021] eKLR and Elijah Makeri Nyangwara v Stephen Mungai Njuguna & Another [2013] eKLR.

11. Relying on section 3 (1) of the Trespass Act, counsel further submitted that the defendant’s actions of encroaching on the plaintiff’s land and erecting fencing posts thereon amounted to trespass. Counsel placed reliance on the case of EWM (Suing in his capacity as the guardian Ad Litem & Next Friend to EWM ) v County Government of Laikipia [2019] eKLR for the proposition that once trespass is established there is no need to prove damages for the court to award general damages. Counsel further relied on section 27 of the Civil Procedure Act to argue that costs follow the event and therefore costs should be awarded to the plaintiff.

Analysis and determination 12. The court has duly considered the pleadings, evidence tendered and the submissions of the plaintiff. The issues that arise for determination are;a)Whether or not the plaintiff is the registered owner of the suit propertyb)Whether or not the defendant trespassed on the suit propertyc)Whether or not the plaintiff is entitled to the orders sought.

13. Section 26 of the Land Registration Act No. 3 of 2012 provides for conclusiveness of title as evidence of proprietorship as follows;(1)The certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima face evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall be subject to challenge except;a.On the ground of fraud or misrepresentation of which the person is proved to be a party; orb.Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.(2)A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.

14. Essentially, registration of a person as the proprietor of land vests in that person absolute and indefeasible ownership of the land in question, unless it is proved that the title was acquired through fraud, misrepresentation, illegality, want of procedure or corruption.

15. In the instant matter, the plaintiff produced a title deed for parcel no. Ngong/Ngong/ [particulars witheld] which shows that they were registered as proprietor of that title on 26th February 2009. The defendant did not plead fraud against the plaintiff’s registration and therefore the plaintiff’s title is indefeasible. I therefore find and hold that the plaintiff is the absolute registered proprietor of the suit property.

16. Trespass is the unauthorized entry into another’s property. The plaintiff’s evidence was that the defendant encroached on the suit property and erected fencing posts thereon without his authority. That evidence was not rebutted as the defendant failed to attend court to give his evidence. In the premises, I find and hold that the plaintiff has proved trespass as against the defendant.

17. Sections 24 and 25 of the Land Registration Act provide for interest conferred upon registration and rights of a registered proprietor respectively as follows;Section 24 provides as follows;Subject to this Act-(a)The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging thereto; and(b)The registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities or incidents of the lease.Section 25 provides as follows;(1)The rights of a proprietor , whether acquired on first registration or subsequently for valuable consideration or by an order of the court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtanances belonging thereto, free from all other interests and claims whatsoever but subject-(a)To the leases, charges, and other encumberances and to the conditions and restrictions if any, shown in the register, and(b)To such liabilities, rights, and interests as affect the same and are declared by section 28 not to require noting on the register(2)Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.

18. Therefore, registration confers upon the registered owner legal interest and rights that allow them to enjoy their property without interference from trespassers. The plaintiff being the registered proprietor of the suit property, is by virtue of the above provisions entitled to quiet possession of the suit property to the exclusion of everyone else, including the defendant. The plaintiff sought for a permanent injunction to bar the defendant from trespassing on the suit property; a declaration that the suit property belong to the plaintiff; eviction orders and damages for loss of use. It is my view that registration of the suit property entitles the plaintiff to the permanent injunction and eviction.

19. On the question of trespass, since the same is a tort against the land owner’s right of ownership and enjoyment, the trespasser is liable to pay general damages even where damage is not proved. I am fortified in my reasoning with the decision in the case of Duncan Nderitu Ndegwa v KPLC Ltd & Another (2013) eKLR where the court held as follows;Once a trespass to land is established, it is actionable per se, and indeed no proof of damage is necessary for the court to award general damages.

20. In the instant matter, the plaintiff sought for damages for loss of use. In my view, that was a claim for special damages. It is trite that special damages must not only be pleaded, but the same must also be proved. The plaintiff did not adduce any evidence to demonstrate the specific loss incurred which can be said to be loss of user. In addition, I note that the acreage of the entire parcel No. Ngong/Ngong/[particulars witheld] is 1. 62 hectares. The plaintiff stated that the suit property was divided in several plots among them the three plots being Nos. [particulars witheld], [particulars witheld] and [particulars witheld]. PW1 did not give the acreage of the portion that was trespassed upon and therefore this court cannot speculate. The evidence given by the plaintiff’s witness was that the defendant’s encroachment began in February 2009 and is still ongoing. In the circumstances of this case, the evidence adduced is not sufficient to assist the court in arriving at damages for loss of user and therefore that claim fails.

21. In the end, I find and hold that the plaintiff has proved their case on the required standard and I hereby enter judgment for the plaintiff against the defendant as follows;a)A permanent order of injunction be and is hereby issued restraining the defendant either by himself, his servants and or agents or otherwise from demolishing, trespassing and encroaching, alienating, disposing, constructing or interfering in any manner whatsoever with the plaintiff’s property known as plot Nos [particulars witheld], [particulars witheld], and [particulars witheld], being part of the property known as Ngong/Ngong/[particulars witheld].b)A declaration be and is hereby issued that the properties known as Ngong/Ngong/[particulars witheld] in particular belong to the plaintiff and consequently the defendant is ordered to remove any building materials on the said property.c)The defendant is ordered to vacate plot Nos. [particulars witheld], [particulars witheld] and [particulars witheld] being part of land parcel Ngong/Ngong/[particulars witheld] within 90 days of this judgment and in default the defendant shall be evicted therefrom at his cost, under the supervision of the Officer Commanding Rongai Police Station.d)Costs of this suit shall be borne by the defendant.

22. It is so ordered.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 6THDAY OF DECEMBER, 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the presence of;No appearance for the plaintiffNo appearance for the defendant