By an Amended Plaint dated 5th April, 2024 and filed in Court on the 6th May, 2024 the Plaintiff herein seek Judgment against the Defendant for; -
a) That A TEMPORARY INJUCTION ORDER DO ISSUE restraining the Defendant, her agents or anybody authorized by them from entering, trespassing, digging the trench or doing anything that would interfere with the Plaintiff's peaceful enjoyment and possession of the Suit Property pending the hearing and determination of the Application inter parties.
b) That A PERMANENT INJUCTION ORDER DO ISSUE restraining the Defendant, her agents or anybody authorized by them from entering, trespassing, digging the trench or doing anything that would interfere with the Plaintiff's peaceful enjoyment and possession of the Suit Property pending the hearing and determination of the Suit.
c) That an ORDER DO ISSUE COMPELLING the Defendant to permanently vacate the Plaintiff's portion of land.
d) That an ORDER DO ISSUE COMPELLING the Defendant to fully compensate the Plaintiff for the loss of user of the portion where the trench has been dug, and for all the damages on the premises caused by the Defendant as per the Valuation Report dated 29th February, 2024.
e) Costs of this Suit
f) Any other relief that the Court deems fit to grant
The Plaintiff avers in the Plaint that she is the Legal Administratrix of the Estate of the Late Haron Tar Mohamed Haron who was the Registered Owner of Plot No. CR. 22402 Subdivision No. 1010 (Original No. 114/AV) Section II/MN. That she has developed the property by constructing several permanent buildings housing several shops near the road. On the 25th May, 2016 the Defendant began enlarging a road adjacent to the Plaintiff's Registered Property and dug a trench through three of the Plaintiff's shops and across her land, without notice or consent. The trench was dug using heavy machinery, causing cracks in the walls of the shops. The Defendant also damaged the soak pit serving the sewage system.
The Plaintiff avers that the trench encroaches into the Registered Property, interfering with ownership and possession. Tenants have vacated due to the damage, access has been destroyed and rental income used to service loan has been severely affected. The Defendant proceeded to construct a cabro pedestrian pathway on the Plaintiff's Registered Property. Thus, it is the Plaintiff's Case that by reason of the aforesaid, he stands to suffer irreparable loss and damages as he is deprived of the use and benefit of his Registered Property.
The Defendant in a Statement of Defence dated 16th May, 2024 and filed in Court on the 21st May, 2024 denies the Plaintiff's averments in the Amended Plaint and puts the Plaintiff to strict proof thereof. Accordingly, the Defendant contends that any development exercise herein undertaken as alleged by the Plaintiff was solely done on a road reserve area and not on the Suit Property. That the road reserve is Public Land which is held by the Defendant in trust, on behalf and for the benefit of the Public, whereof any exercise thereon does not require any notice and consent from the Plaintiff.
It is the Defendant's further contention that the Department of Public Works indicates that the road has been in use as a Public Access Road for many years prior to any developments in that particular area and the same was upgraded for the benefit of residents of Mombasa County.
When the matter came up for hearing of the plaintiff’s case, Gafun Haron Tar Mohammed testified as PW1. He is the son of Hadija Sadiq Harun who is elderly. His plot no 1010 in Mtopanga area was taken by County Government for road construction and drainage. The defendats dug a trench in front of the shop therefore barring the defendants from gaining access to the shop. The construction works caused the walls of his shops to crack due to vibrations. Moreover, a large trench was dug inside his compound. He has suffered huge losses as the tenants moved out after closing shops.
The plaintiff called Edward Kiguru a land surveyor as PW2, who produced a report dated 26th February 2024 whose import is that the works of the defendant encroached on the plaintiffs land. He was commissioned to establish the extent of encroachment to the suit property by a road and drainage system constructed by the County Government of Mombasa. He relied on FR NO 157/20 which is an approved survey plan by the director of surveys. The surveyor found that part of the road and drainage system has encroached into the subject plot. That the extent of the encroachment is 0.0310 hectares as shown on the topo –cadastral map. The surveyor further found that the structures on the suit property did not encroach on the road reserve and that they were damaged during the timeof the road and drainage construction.
On cross examination, he states that there is no evidence that the road was being constructed by the County Government. He further states that he did not indicate in the report the type of structures on the land.
Samwel Musyoki, a registered valuer practicing as Musyoki and Associates prepared a valuation report and states that the value of the encroached property was Ksh 4,650,000. He added 15 % of the figure being injurious affection and disturbance thus Ksh 697,500. The total figure was Ksh 5,347,500.00.
The plaintiff submits that his evidence is uncontroverted. That it is trite law that where a defendant fails to call evidence, the Plaintiff's evidence remains uncontroverted. He refers to the dictum in Trust Bank Limited v. Paramount Universal Bank Limited [2005] 2 EA 41, the Court of Appeal held that where a party fails to adduce evidence to counter the opponent's evidence, the opponent's evidence is deemed to be unchallenged and the court may rely on it unless it is manifestly incredible.
That the uncontroverted evidence must be taken as true and cannot be dismissed merely because the other side did not cross-examine or call evidence. In our instant case, the Defendant did cross-examine however no witness was brought to challenge the survey report and valuation report, thus our submission is that the same ought to be taken as truth.
The Plaintiff relies on the following unchallenged evidence:
a) Survey Reports (P. Mulaa & E. Kiguru): Conclusive proof that the road and drainage system encroach onto the Plaintiff's land by 0.0310 Ha.
b) Valuation Report (Samuel Musyoki): Proving loss and damage at Kshs.5,347,500.00
c) Certificate of Title (CR. 22402): Proving the Plaintiff's absolute ownership.
d) Witness Statement of Tarmohamed Haron Gafur: Detailing the actual damage to walls, the soak pit and loss of access by tenants.
According to the plaintiff the County Government has no right to enter private land for public works without following the constitutional framework of compulsory acquisition under Article 40(3) of the Constitution, which requires prompt and full compensation. "(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation (a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or (b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that— Constitution of Kenya, 2010 (i) requires prompt payment in full, of just compensation to the person; and (ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.”
In the instant case, the Defendant neither initiated compulsory acquisition proceedings under sections 107,111 and 113 of the Land Act 2012 nor offered any compensation before encroaching, Section 120 (1) of the Act forbids the government from taking possession without compensating the evener of the land unless it is of urgent necessity, Compulsory acquisition falls in the ambit of administrative action hence regulated by Article 47 (l) and (2) of the Constitution 2010. That the Defendant has not given any reason written or otherwise to justify the arbitrary deprivation of the suit property without justification.
The Defendant submits that any development exercise herein undertaken as alleged by the Plaintiff was solely done on a road reserve area and not on the Plaintiff's Registered Property. The Plaintiff's cause of action is in the realm of the Tort of Trespass and as such, for her to succeed, she is bound to prove to the required standard, one, some and/or all the Particulars of Trespass leading to irreparable Loss and Damage set out in Paragraph 13 of the Plaint in line with the cardinal Rule of Evidence that he who alleges must prove. This Principle is codified at Section 107 of the Evidence Act (Cap 80) of the Laws of Kenya to wit; -
Section 107: -
(1) Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
The Plaintiff has relied on the Survey Report by Peter K. Mulaa and E.M.J Kiguru dated 26th February, 2024 and further Survey Report by Edward M.J Kiguru dated 29th February, 2024 produced as Pexh-7 and Pexh-8 respectively as proof that the Defendant constructed a road and drainage system which encroached on to the Plaintiff's Registered Property by 0.0310ha. The defendant submits that in the aforesaid Survey Reports, it is indicated that the Purpose for the Survey is to establish/determine the extent of encroachment to the Plaintiff's Registered Property by "a road and drainage system constructed by the County Government of Mombasa".
Additionally, the Methodology of the Survey is stated as a Total Station (T.S) Machine which was "able to pick the tarmacked road and drainage system and the damage structures at the time of construction".
The defendant submits that the aforesaid Survey Reports are not conclusive in assisting this Honourable Court make a determination on the trespasser and the extent of encroachment thereof.
The Surveyor Edward Kiguru testified on the 26th February, 2026 and conceded on cross-examination that the Survey Reports did not provide any evidence to indicate that it is actually the Defendant who trespassed on the Plaintiff's Registered Property.
The defendant argues that the surveyor confirmed that there was no concrete information linking the Defendant to the actions as stated in the Survey Reports. Therefore, the same amounted to mere allegations.
According to the defendant, the allegations of trespass levelled against the Defendant relate to events of 25th May, 2016 being Eight (8) Years before the Survey Process. As such, the Survey Process could not make a finding of fact as to who the trespasser was and in particular, that there were "structures" which were damaged at the time of the road and drainage construction. There is no concrete evidence to support this claim in order to ascertain the identity of these "structures" and the extent of damage alleged.
In his Witness Statement dated 13th October, 2024 and adopted as his evidence in chief, he states, "...4. That on 25th May, 2016 while I was at my home, when I saw people who had a big machine digging a trench outside the shop premises. 5. That I went to inquire together with my brothers and my mother and I found that the people at the site had been sent by the Defendant".
Notably, the Plaintiff in her Written Submission is of the view that failure by the Defendant to adduce evidence meant that the Plaintiff's Case remains uncontroverted.
The mere fact that the Defendant elected not to call evidence did not relieve the Plaintiff of the burden of proof as it were. The need for a Plaintiff to prove his Case even where the same is not defended was succinctly expressed by the Court of Appeal in the Case of Karungi and Another vs. Kibiya & 3 Others (1987) KLR 347 wherein the Court held;-
"The burden on a Plaintiff to prove his Case remains the same throughout the Case even though that burden may become easier to discharge where the matter is not validly defended. The burden of proof is in no way lessened because the case is heard by way of formal proof."
Further, in the Case of Evans Mogire Omwansa vs. Benard Otieno Omolo & Another (2016) eKLR the Court pronounced itself as follows; -.
"8. ...The Appellant was under duty to prove his case on a balance of probability notwithstanding that the Respondents did not testify. The provisions of the Evidence Act (Cap 80) came to play that he who asserts must prove. It was the Appellant's duty to tender satisfactory evidence to discharge the burden placed upon him.
It is not enough to say that since the opposing Party has not testified, my testimony must be taken as truthful. It must be proved.
The Respondents in their Written Submissions stated correctly that though they did not testify there was enough rebuttal evidence during cross examination".
The defendant urges this Honourable Court to make a finding that the Plaintiff has failed to prove that the Defendant trespassed on the Plaintiff's Registered Property reason wherefore the Defendant is not liable for any irreparable loss and damage.
On whether the Plaintiff is entitled to the reliefs sought, the defendant argues that the Valuation Report quantifies the alleged loss at Kshs. 5,347,500.00 for structural cracks on the walls, destruction of the soak pit, vacating of tenants due to Loss of Access and Loss of Family Income. As such, if the Plaintiff brings an action for damages, it is for them to prove their damage.
The defendant cites the Case of Nairobi Civil Appeal No. 283 of 1996 David Bagine vs. Martin Bundi where the Appellate Court pronounced itself thus; -
"It has been held time and again by this Court that Special Damages must be pleaded and strictly proved.
We refer to the remarks by this Court in the Case of Mariam Maghema Ali vs. Jackson M. Nyambu T/A Sisera Store Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani vs. City Council of Nairobi (1982-88)IKAR 681 at Page 684,
"...Special Damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J in Bonham Carter vs. Hyde Park Hotel Limited [1948]64 TLR 177 thus,
"...Plaintiffs must understand that if the bring actions for damages it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the Court, saying, 'this is what I have lost, I ask you to give me these damages'. They have to prove it."
The Plaintiff in the Amended Plaint dated 5th April, 2024 and filed in Court on the 6th May, 2024 has particularized the Particulars of Irreparable Loss and Damage, the Plaintiff has failed to plead with a degree of certainty and particularity any particulars of Special Damages in respect to the amount of Kshs. 5,347,500.00 sought as per the Valuation Report by S.N Musyoki dated 29th February, 2024.
In arriving at the sum of Kshs. 5,347,500.00 the Valuer indicates in the Valuation Report that he took into consideration, firstly, the "Market Value of the Land" and secondly, "Injurious affection and disturbance as business has to be relocated to another site".
It should be noted that the said Valuation Report was prepared on the 29th February, 2024 being Eight (8) Years since the alleged encroachment being 25th May, 2016. As such, it is difficult to discern how the Valuer managed to make a consideration in respect to businesses which were allegedly relocated Eight (8) Years ago as a basis of compensation. Consequently, the evidence in respect to the Claim for Special Damages for Kshs. 5,347,500.00 is unsatisfactory as no evidence was availed to support the amount claimed.
The defendant relies on the case of Kakamega ELC Case No. 147 of 2017 Masheti vs. County Government of Kakamega, Ministry of Transport, Infrastructure, Public Works & Energy [2024] KEELC 1727 (KLR) where the Learned Judge D.O Ohungo faced with similar facts held; -
"20. In view of Prayer (b) of the Plaint, the maximum amount that can be awarded in this matter as Special Damages is the pleaded sum of Kshs. 26,000/= and even then, only upon being strictly proved with a degree of certainty and particularity.
21. A perusal of the Plaint reveals that the Plaintiff did not plead any particulars of Special Damages.
Whereas the Plaintiff chose to rely on the undated Report which was prepared by the Patrick Mudeshi Shitakwa, a retired Ward Agricultural Officer, a perusal of the said Report shows that the quantum therein was arrived at based on unknown quantity of damaged maize and bean crops that the maker of the Report states that the figures therein are estimates.
I merely made an estimate of what in his view would be the yield and value of such yield. I find that the Plaintiff has failed to prove Special Damages to the required standard. I will therefore not award any Special Damages."
The defendant submits that the Plaintiff has failed to prove the claim for Special Damages for Kshs. 5,347,500.00 to the required legal standard. We urge that the same is not awardable.
In addition, the Plaintiff has equally sought an Order compelling the Defendant to vacate the Plaintiff's Registered Property. The Plaintiff submits that the Defendant has violated her Right to Property pursuant to Article 40 of the Constitution which guarantees the Plaintiff the Right to acquire and own Property. Further, the Plaintiff relies on Article 40 (3) of the Constitution to proffer that the Defendant shall not deprive a person of Property except for Public purposes and only upon prompt and full compensation.
The defendant submits that the Defendant has not deprived the Plaintiff of the use and benefit of his Registered Property. The Registered Property has not been taken away from the Plaintiff.
In fact, it is the Defendant position that the Plaintiff has not suffered any loss and damage.
The defendant submits that the road and drainage system constructed on the road reserve was done in the wider Public interest which overrides Private claims. This improved the commercial viability of the area situate the Plaintiff's Registered Property and it cannot be said to be severance, injurious affection and disturbance.
As a matter of fact, the Plaintiff has not shown what prejudice has been occasioned on his part by the said improvement. (Underlining ours for emphasis)
The defendant relies on the case of Mombasa Civil Appeal No. 114 of 2018 Abdalla Mohamed Abdalla vs. County Government of Mombasa where the Appellate Court held; -
"15. As submitted by Learned Counsel for the Respondent, the Appellant has not shown what prejudice this improvement has caused him. Article 40 (iii) of the Constitution of Kenya 2010 provides that the "State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description..."
In this Case, the Property has not been taken away from the Appellant. There is no evidence either that the Property's value dissipated, and the Court cannot speculate what might happen in future.
The Learned Judge found from the evidence before the Court that the removal of the cabro would be supeflous as the access road would still remain the way it was before, only this time in a worse state.
We agree with her finding and cannot fault the Judge for failing to Order the removal of the cabro.
The Appellant should sit back and enjoy the improvements made on his access road instead of fighting to have it reverted to its former dusty dilapidated state."
Additionally, the defendant submits that an Order for Injunction would be ineffectual since upgrading the road reserve to cabro and construction of the drainage system had been completed way back.
I have considered the plaintiffs evidence on record as adduced by the witnesses and do find that the same was uncontroverted that the County Government of Mombasa constructed on a portion of the plaintiffs land. This court further takes judicial notice that it is the County Government of Mombasa that constructs county roads in Mombasa County.
“The issue of uncontroverted evidence was succinctly addressed by Justice Mwongo in Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) -v-Thomas Ondiki Oduor & Another 2019 eKLR where he stated as follows:-
22.“There are many authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements.
23.In the case of Shaneebal Limited v County Government of Machakos [2018] eKLR, Odunga, J, relied on the cases below in reaching his judgment. In Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.”
The evidence of Edward Kiguru a land surveyor was un-controverted that the works of the defendant encroached on the plaintiffs land. He relied on FR NO 157/20 which is an approved survey plan by the director of surveys. The surveyor found that part of the road and drainage system has encroached into the subject plot. That the extent of the encroachment is 0.0310 hectares as shown on the topo –cadastral map. The surveyor further found that the structures on the suit property did not encroach on the road reserve and that they were damaged during the time of the road and drainage construction.
Samwel Musyoki, a registered valuer practicing as Musyoki and Associates prepared a valuation report and states that the value of the encroached property was Ksh 4,650,000. He added 15 % of the figure being injurious affection and disturbance thus Ksh 697,500. The total figure was Ksh 5,347,500.00.
I do find that the plaintiff has proved his case on a balance of probabilities and I do grant judgment in the following terms:-
a) That A PERMANENT INJUCTION ORDER DO ISSUE restraining the Defendant, her agents or anybody authorized by them from entering, trespassing, digging the trench or doing anything that would interfere with the Plaintiff's peaceful enjoyment and possession of the Suit Property pending the hearing and determination of the Suit.
b) That an ORDER DO ISSUE COMPELLING the Defendant to permanently vacate the Plaintiff's portion of land within 90 days, or in the alternative pay for the value of the portion illegally occupied by the defendant valued Ksh Ksh 4,650,000
c) Damages for loss of user were not proved and therefore not granted.
d) Costs to the plaintiff
a) That A TEMPORARY INJUCTION ORDER DO ISSUE restraining the Defendant, her agents or anybody authorized by them from entering, trespassing, digging the trench or doing anything that would interfere with the Plaintiff's peaceful enjoyment and possession of the Suit Property pending the hearing and determination of the Application inter parties.
b) That A PERMANENT INJUCTION ORDER DO ISSUE restraining the Defendant, her agents or anybody authorized by them from entering, trespassing, digging the trench or doing anything that would interfere with the Plaintiff's peaceful enjoyment and possession of the Suit Property pending the hearing and determination of the Suit.
c) That an ORDER DO ISSUE COMPELLING the Defendant to permanently vacate the Plaintiff's portion of land.
d) That an ORDER DO ISSUE COMPELLING the Defendant to fully compensate the Plaintiff for the loss of user of the portion where the trench has been dug, and for all the damages on the premises caused by the Defendant as per the Valuation Report dated 29th February, 2024.
e) Costs of this Suit
f) Any other relief that the Court deems fit to grant
The Plaintiff avers in the Plaint that she is the Legal Administratrix of the Estate of the Late Haron Tar Mohamed Haron who was the Registered Owner of Plot No. CR. 22402 Subdivision No. 1010 (Original No. 114/AV) Section II/MN. That she has developed the property by constructing several permanent buildings housing several shops near the road. On the 25th May, 2016 the Defendant began enlarging a road adjacent to the Plaintiff's Registered Property and dug a trench through three of the Plaintiff's shops and across her land, without notice or consent. The trench was dug using heavy machinery, causing cracks in the walls of the shops. The Defendant also damaged the soak pit serving the sewage system.
The Plaintiff avers that the trench encroaches into the Registered Property, interfering with ownership and possession. Tenants have vacated due to the damage, access has been destroyed and rental income used to service loan has been severely affected. The Defendant proceeded to construct a cabro pedestrian pathway on the Plaintiff's Registered Property. Thus, it is the Plaintiff's Case that by reason of the aforesaid, he stands to suffer irreparable loss and damages as he is deprived of the use and benefit of his Registered Property.
The Defendant in a Statement of Defence dated 16th May, 2024 and filed in Court on the 21st May, 2024 denies the Plaintiff's averments in the Amended Plaint and puts the Plaintiff to strict proof thereof. Accordingly, the Defendant contends that any development exercise herein undertaken as alleged by the Plaintiff was solely done on a road reserve area and not on the Suit Property. That the road reserve is Public Land which is held by the Defendant in trust, on behalf and for the benefit of the Public, whereof any exercise thereon does not require any notice and consent from the Plaintiff.
It is the Defendant's further contention that the Department of Public Works indicates that the road has been in use as a Public Access Road for many years prior to any developments in that particular area and the same was upgraded for the benefit of residents of Mombasa County.
When the matter came up for hearing of the plaintiff’s case, Gafun Haron Tar Mohammed testified as PW1. He is the son of Hadija Sadiq Harun who is elderly. His plot no 1010 in Mtopanga area was taken by County Government for road construction and drainage. The defendats dug a trench in front of the shop therefore barring the defendants from gaining access to the shop. The construction works caused the walls of his shops to crack due to vibrations. Moreover, a large trench was dug inside his compound. He has suffered huge losses as the tenants moved out after closing shops.
The plaintiff called Edward Kiguru a land surveyor as PW2, who produced a report dated 26th February 2024 whose import is that the works of the defendant encroached on the plaintiffs land. He was commissioned to establish the extent of encroachment to the suit property by a road and drainage system constructed by the County Government of Mombasa. He relied on FR NO 157/20 which is an approved survey plan by the director of surveys. The surveyor found that part of the road and drainage system has encroached into the subject plot. That the extent of the encroachment is 0.0310 hectares as shown on the topo –cadastral map. The surveyor further found that the structures on the suit property did not encroach on the road reserve and that they were damaged during the timeof the road and drainage construction.
On cross examination, he states that there is no evidence that the road was being constructed by the County Government. He further states that he did not indicate in the report the type of structures on the land.
Samwel Musyoki, a registered valuer practicing as Musyoki and Associates prepared a valuation report and states that the value of the encroached property was Ksh 4,650,000. He added 15 % of the figure being injurious affection and disturbance thus Ksh 697,500. The total figure was Ksh 5,347,500.00.
The plaintiff submits that his evidence is uncontroverted. That it is trite law that where a defendant fails to call evidence, the Plaintiff's evidence remains uncontroverted. He refers to the dictum in Trust Bank Limited v. Paramount Universal Bank Limited [2005] 2 EA 41, the Court of Appeal held that where a party fails to adduce evidence to counter the opponent's evidence, the opponent's evidence is deemed to be unchallenged and the court may rely on it unless it is manifestly incredible.
That the uncontroverted evidence must be taken as true and cannot be dismissed merely because the other side did not cross-examine or call evidence. In our instant case, the Defendant did cross-examine however no witness was brought to challenge the survey report and valuation report, thus our submission is that the same ought to be taken as truth.
The Plaintiff relies on the following unchallenged evidence:
a) Survey Reports (P. Mulaa & E. Kiguru): Conclusive proof that the road and drainage system encroach onto the Plaintiff's land by 0.0310 Ha.
b) Valuation Report (Samuel Musyoki): Proving loss and damage at Kshs.5,347,500.00
c) Certificate of Title (CR. 22402): Proving the Plaintiff's absolute ownership.
d) Witness Statement of Tarmohamed Haron Gafur: Detailing the actual damage to walls, the soak pit and loss of access by tenants.
According to the plaintiff the County Government has no right to enter private land for public works without following the constitutional framework of compulsory acquisition under Article 40(3) of the Constitution, which requires prompt and full compensation. "(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation (a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or (b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that— Constitution of Kenya, 2010 (i) requires prompt payment in full, of just compensation to the person; and (ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.”
In the instant case, the Defendant neither initiated compulsory acquisition proceedings under sections 107,111 and 113 of the Land Act 2012 nor offered any compensation before encroaching, Section 120 (1) of the Act forbids the government from taking possession without compensating the evener of the land unless it is of urgent necessity, Compulsory acquisition falls in the ambit of administrative action hence regulated by Article 47 (l) and (2) of the Constitution 2010. That the Defendant has not given any reason written or otherwise to justify the arbitrary deprivation of the suit property without justification.
The Defendant submits that any development exercise herein undertaken as alleged by the Plaintiff was solely done on a road reserve area and not on the Plaintiff's Registered Property. The Plaintiff's cause of action is in the realm of the Tort of Trespass and as such, for her to succeed, she is bound to prove to the required standard, one, some and/or all the Particulars of Trespass leading to irreparable Loss and Damage set out in Paragraph 13 of the Plaint in line with the cardinal Rule of Evidence that he who alleges must prove. This Principle is codified at Section 107 of the Evidence Act (Cap 80) of the Laws of Kenya to wit; -
Section 107: -
(1) Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
The Plaintiff has relied on the Survey Report by Peter K. Mulaa and E.M.J Kiguru dated 26th February, 2024 and further Survey Report by Edward M.J Kiguru dated 29th February, 2024 produced as Pexh-7 and Pexh-8 respectively as proof that the Defendant constructed a road and drainage system which encroached on to the Plaintiff's Registered Property by 0.0310ha. The defendant submits that in the aforesaid Survey Reports, it is indicated that the Purpose for the Survey is to establish/determine the extent of encroachment to the Plaintiff's Registered Property by "a road and drainage system constructed by the County Government of Mombasa".
Additionally, the Methodology of the Survey is stated as a Total Station (T.S) Machine which was "able to pick the tarmacked road and drainage system and the damage structures at the time of construction".
The defendant submits that the aforesaid Survey Reports are not conclusive in assisting this Honourable Court make a determination on the trespasser and the extent of encroachment thereof.
The Surveyor Edward Kiguru testified on the 26th February, 2026 and conceded on cross-examination that the Survey Reports did not provide any evidence to indicate that it is actually the Defendant who trespassed on the Plaintiff's Registered Property.
The defendant argues that the surveyor confirmed that there was no concrete information linking the Defendant to the actions as stated in the Survey Reports. Therefore, the same amounted to mere allegations.
According to the defendant, the allegations of trespass levelled against the Defendant relate to events of 25th May, 2016 being Eight (8) Years before the Survey Process. As such, the Survey Process could not make a finding of fact as to who the trespasser was and in particular, that there were "structures" which were damaged at the time of the road and drainage construction. There is no concrete evidence to support this claim in order to ascertain the identity of these "structures" and the extent of damage alleged.
In his Witness Statement dated 13th October, 2024 and adopted as his evidence in chief, he states, "...4. That on 25th May, 2016 while I was at my home, when I saw people who had a big machine digging a trench outside the shop premises. 5. That I went to inquire together with my brothers and my mother and I found that the people at the site had been sent by the Defendant".
Notably, the Plaintiff in her Written Submission is of the view that failure by the Defendant to adduce evidence meant that the Plaintiff's Case remains uncontroverted.
The mere fact that the Defendant elected not to call evidence did not relieve the Plaintiff of the burden of proof as it were. The need for a Plaintiff to prove his Case even where the same is not defended was succinctly expressed by the Court of Appeal in the Case of Karungi and Another vs. Kibiya & 3 Others (1987) KLR 347 wherein the Court held;-
"The burden on a Plaintiff to prove his Case remains the same throughout the Case even though that burden may become easier to discharge where the matter is not validly defended. The burden of proof is in no way lessened because the case is heard by way of formal proof."
Further, in the Case of Evans Mogire Omwansa vs. Benard Otieno Omolo & Another (2016) eKLR the Court pronounced itself as follows; -.
"8. ...The Appellant was under duty to prove his case on a balance of probability notwithstanding that the Respondents did not testify. The provisions of the Evidence Act (Cap 80) came to play that he who asserts must prove. It was the Appellant's duty to tender satisfactory evidence to discharge the burden placed upon him.
It is not enough to say that since the opposing Party has not testified, my testimony must be taken as truthful. It must be proved.
The Respondents in their Written Submissions stated correctly that though they did not testify there was enough rebuttal evidence during cross examination".
The defendant urges this Honourable Court to make a finding that the Plaintiff has failed to prove that the Defendant trespassed on the Plaintiff's Registered Property reason wherefore the Defendant is not liable for any irreparable loss and damage.
On whether the Plaintiff is entitled to the reliefs sought, the defendant argues that the Valuation Report quantifies the alleged loss at Kshs. 5,347,500.00 for structural cracks on the walls, destruction of the soak pit, vacating of tenants due to Loss of Access and Loss of Family Income. As such, if the Plaintiff brings an action for damages, it is for them to prove their damage.
The defendant cites the Case of Nairobi Civil Appeal No. 283 of 1996 David Bagine vs. Martin Bundi where the Appellate Court pronounced itself thus; -
"It has been held time and again by this Court that Special Damages must be pleaded and strictly proved.
We refer to the remarks by this Court in the Case of Mariam Maghema Ali vs. Jackson M. Nyambu T/A Sisera Store Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani vs. City Council of Nairobi (1982-88)IKAR 681 at Page 684,
"...Special Damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J in Bonham Carter vs. Hyde Park Hotel Limited [1948]64 TLR 177 thus,
"...Plaintiffs must understand that if the bring actions for damages it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the Court, saying, 'this is what I have lost, I ask you to give me these damages'. They have to prove it."
The Plaintiff in the Amended Plaint dated 5th April, 2024 and filed in Court on the 6th May, 2024 has particularized the Particulars of Irreparable Loss and Damage, the Plaintiff has failed to plead with a degree of certainty and particularity any particulars of Special Damages in respect to the amount of Kshs. 5,347,500.00 sought as per the Valuation Report by S.N Musyoki dated 29th February, 2024.
In arriving at the sum of Kshs. 5,347,500.00 the Valuer indicates in the Valuation Report that he took into consideration, firstly, the "Market Value of the Land" and secondly, "Injurious affection and disturbance as business has to be relocated to another site".
It should be noted that the said Valuation Report was prepared on the 29th February, 2024 being Eight (8) Years since the alleged encroachment being 25th May, 2016. As such, it is difficult to discern how the Valuer managed to make a consideration in respect to businesses which were allegedly relocated Eight (8) Years ago as a basis of compensation. Consequently, the evidence in respect to the Claim for Special Damages for Kshs. 5,347,500.00 is unsatisfactory as no evidence was availed to support the amount claimed.
The defendant relies on the case of Kakamega ELC Case No. 147 of 2017 Masheti vs. County Government of Kakamega, Ministry of Transport, Infrastructure, Public Works & Energy [2024] KEELC 1727 (KLR) where the Learned Judge D.O Ohungo faced with similar facts held; -
"20. In view of Prayer (b) of the Plaint, the maximum amount that can be awarded in this matter as Special Damages is the pleaded sum of Kshs. 26,000/= and even then, only upon being strictly proved with a degree of certainty and particularity.
21. A perusal of the Plaint reveals that the Plaintiff did not plead any particulars of Special Damages.
Whereas the Plaintiff chose to rely on the undated Report which was prepared by the Patrick Mudeshi Shitakwa, a retired Ward Agricultural Officer, a perusal of the said Report shows that the quantum therein was arrived at based on unknown quantity of damaged maize and bean crops that the maker of the Report states that the figures therein are estimates.
I merely made an estimate of what in his view would be the yield and value of such yield. I find that the Plaintiff has failed to prove Special Damages to the required standard. I will therefore not award any Special Damages."
The defendant submits that the Plaintiff has failed to prove the claim for Special Damages for Kshs. 5,347,500.00 to the required legal standard. We urge that the same is not awardable.
In addition, the Plaintiff has equally sought an Order compelling the Defendant to vacate the Plaintiff's Registered Property. The Plaintiff submits that the Defendant has violated her Right to Property pursuant to Article 40 of the Constitution which guarantees the Plaintiff the Right to acquire and own Property. Further, the Plaintiff relies on Article 40 (3) of the Constitution to proffer that the Defendant shall not deprive a person of Property except for Public purposes and only upon prompt and full compensation.
The defendant submits that the Defendant has not deprived the Plaintiff of the use and benefit of his Registered Property. The Registered Property has not been taken away from the Plaintiff.
In fact, it is the Defendant position that the Plaintiff has not suffered any loss and damage.
The defendant submits that the road and drainage system constructed on the road reserve was done in the wider Public interest which overrides Private claims. This improved the commercial viability of the area situate the Plaintiff's Registered Property and it cannot be said to be severance, injurious affection and disturbance.
As a matter of fact, the Plaintiff has not shown what prejudice has been occasioned on his part by the said improvement. (Underlining ours for emphasis)
The defendant relies on the case of Mombasa Civil Appeal No. 114 of 2018 Abdalla Mohamed Abdalla vs. County Government of Mombasa where the Appellate Court held; -
"15. As submitted by Learned Counsel for the Respondent, the Appellant has not shown what prejudice this improvement has caused him. Article 40 (iii) of the Constitution of Kenya 2010 provides that the "State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description..."
In this Case, the Property has not been taken away from the Appellant. There is no evidence either that the Property's value dissipated, and the Court cannot speculate what might happen in future.
The Learned Judge found from the evidence before the Court that the removal of the cabro would be supeflous as the access road would still remain the way it was before, only this time in a worse state.
We agree with her finding and cannot fault the Judge for failing to Order the removal of the cabro.
The Appellant should sit back and enjoy the improvements made on his access road instead of fighting to have it reverted to its former dusty dilapidated state."
Additionally, the defendant submits that an Order for Injunction would be ineffectual since upgrading the road reserve to cabro and construction of the drainage system had been completed way back.
I have considered the plaintiffs evidence on record as adduced by the witnesses and do find that the same was uncontroverted that the County Government of Mombasa constructed on a portion of the plaintiffs land. This court further takes judicial notice that it is the County Government of Mombasa that constructs county roads in Mombasa County.
“The issue of uncontroverted evidence was succinctly addressed by Justice Mwongo in Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) -v-Thomas Ondiki Oduor & Another 2019 eKLR where he stated as follows:-
22.“There are many authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements.
23.In the case of Shaneebal Limited v County Government of Machakos [2018] eKLR, Odunga, J, relied on the cases below in reaching his judgment. In Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.”
The evidence of Edward Kiguru a land surveyor was un-controverted that the works of the defendant encroached on the plaintiffs land. He relied on FR NO 157/20 which is an approved survey plan by the director of surveys. The surveyor found that part of the road and drainage system has encroached into the subject plot. That the extent of the encroachment is 0.0310 hectares as shown on the topo –cadastral map. The surveyor further found that the structures on the suit property did not encroach on the road reserve and that they were damaged during the time of the road and drainage construction.
Samwel Musyoki, a registered valuer practicing as Musyoki and Associates prepared a valuation report and states that the value of the encroached property was Ksh 4,650,000. He added 15 % of the figure being injurious affection and disturbance thus Ksh 697,500. The total figure was Ksh 5,347,500.00.
I do find that the plaintiff has proved his case on a balance of probabilities and I do grant judgment in the following terms:-
a) That A PERMANENT INJUCTION ORDER DO ISSUE restraining the Defendant, her agents or anybody authorized by them from entering, trespassing, digging the trench or doing anything that would interfere with the Plaintiff's peaceful enjoyment and possession of the Suit Property pending the hearing and determination of the Suit.
b) That an ORDER DO ISSUE COMPELLING the Defendant to permanently vacate the Plaintiff's portion of land within 90 days, or in the alternative pay for the value of the portion illegally occupied by the defendant valued Ksh Ksh 4,650,000
c) Damages for loss of user were not proved and therefore not granted.
d) Costs to the plaintiff