The National Oil Corporation of Kenya (Nock) has been ordered to pay Sh1 million as general damages for trespassing onto a parcel of land in Mombasa.
Justice Nelly Matheka of the Environment and Land Court in Mombasa further issued a declaration that Nock, whether by itself or its agents, is wrongfully occupying the land belonging to Fathiya Hafidh and Thelma Salim.
Justice Matheka ruled that the plaintiffs have demonstrated that they are registered proprietors of the land.
She said it was not disputed that Nock encroached on the plaintiffs’ land since 2008 and that both surveyors of the plaintiffs and defendants confirmed and recommended the re-alignment of a wall.
“This amounts to trespass as the defendant has intentionally entered onto the plaintiff’s property without the legal right or consent to do so,” ruled Justice Matheka.
In her judgement delivered on December 19, the judge ruled that it was clear that Ms Fathiya and Thelma were absolute and indefeasible owners of the parcel of land.
“I have also held that the defendant is guilty of encroaching and trespassing onto the plaintiffs’ land,” ruled Justice Matheka. She saidthe wall encroachment denied the plaintiff's use, occupation, possession, and enjoyment of the land while the defendant on the other hand has been running a petrol station business.
Although the court awarded the plaintiffs Sh1 million as general damages, it ruled that from evidence on record, though they proved trespass, there was nothing in their evidence that could be used to determine the actual damage or measure the loss for them to be compensated.
Justice Matheka further ordered Nock to vacate the encroached portion of land within the next 90 days and in default it be evicted.
Nock told the court that it bought the land as a petrol station and they have had quiet enjoyment from 2008. It also denied that the plaintiffs were entitled to the remedies.
Ms Fathiya and Thelma told the court that they were registered and absolute proprietors of the land and that in 2021 they instructed their surveyor to conduct a survey on it to establish boundaries and the potential illegal occupation of Nock on the land.
According to the plaintiffs, the survey report established that the defendant had trespassed and had been for a number of years carrying on business and occupying a substantial portion of the land without their authorisation or knowledge.
They told the court that the defendant conducted its own survey report and confirmed it was a trespasser and encroaching on the land.
The plaintiffs told the court that through their advocates, they wrote to the defendant demanding an immediate end to the trespass and removal of structures from its properties but it (defendant) refused to comply.
