https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4621

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISII** **ENVIRONMENT AND LAND COURT CASE NO. 1209 OF 2016 (FORMERLY HCCC NO. 6B OF 2008)** **ALICE KERUBO NYAMBATI .................................................. PLAINTIFF** **-VERSUS-** **COUNTY GOVERNMENT OF KISII ............................ 1ST DEFENDANT** **MASAGOYE PRIMARY SCHOOL ............................... 2ND DEFENDANT** **ATTORNEY GENERAL .................................................. 3RD DEFENDANT** **JUDGMENT** 1. This case dates back to 2008 when the Plaintiff commenced the suit in the High Court at Kisii vide a Plaint dated 20th February, 2008 against the defunct Gusii County Council. The plaint was severally later amended to add more parties and more prayers with the last amendment contained in the further amended plaint dated 9th June, 2023. 2. She pleaded that she is the registered proprietor of land parcel number **WANJARE/BOKEIRE/1783** (hereinafter the “**Suit Property**”). That sometimes in the year 2008, the defendants, their agents and or servants without any color of right unlawfully encroached and/or trespassed onto a portion of the Suit Property and that the Council had started digging trenches on the Suit Property with a view to constructing structures thereon. 3. The Plaintiff further pleaded that the encroachment and/or trespass on the portion of the Suit Property by the Defendants have denied her the use and occupation of the said portion thereby occasioning her loss and damage. 4. On the foregoing, the Plaintiff prayed for: 1. **A permanent injunction restraining the Defendant, its agents, servants, or employees from in any way whatsoever trespassing and/or encroaching onto, interfering with and/or dealing with in any way whatsoever land parcel no. Wanjare/Bokeire/1783;** 2. **An order evicting the Defendants’ agents, servants, and/or employees from land parcel no. Wanjare/Bokeire/1783 and/or the demolition of all structures erected thereon;** 3. **General damages for the loss occasioned by the trespass, illegal occupation and use and wastage of land parcel no. Wanjare/Bokeire/1783;** 4. **Costs of suit; and** 5. **Interest at Court rates.** 5. Before the matter was transferred to the Environment and Land Court, the record shows on April 24, 2008, the Court ordered the parties, the District Land Registrar, and District Land Surveyor Kisii Central District to visit the land parcel no. Wanjare/Bokeire/1783 and land parcel no. Wanjare/Bokeire/115 to among others, identify beacons of the respective parcels and their measurements, establish the common boundary between the two parcels of land, and to determine whether any of the parties has trespassed into either of the parcels of land and if so to what extent. 6. Following the site visit as ordered by the Court, a report was filed by the Land Registrar, Kisii Central District, indicating that the land parcel number Wanjare/Bokeire/1783 is registered in the name of the Plaintiff and measures approximately 6.30 ha while parcel number Wanjare/Bokeire/115 is registered in the name of Gusii County Council (reserved for Ekerubo clay soil) and measures approximately 0.05 ha. 7. It was further noted that there are no boundary features separating the two parcels, and there was construction of structures ongoing on the Suit Property at the time of the site visit. The Land Registrar also noted that the parcel of land used or occupied by the community was far too large in comparison to the 0.05 ha that is owned by Gusii County Council. 8. The Land Registrar and the County Surveyor’s report was filed on October 28, 2018. Attached to the report include a Registry Index Map (RIM) extract for Wanjare/Bokeire Sheet 6 showing a survey map of both Wanjare/Bokeire/1783 and Wanjare/Bokeire/115; a mutation form combining parcel number Wanjare/Bokeire/1767 and Wanjare/Bokeire/1769 to Wanjare/Bokeire/1783; Official Search for parcel number Wanjare/Bokeire/1783 showing the Plaintiff as the registered proprietor; Official Search for parcel number Wanjare/Bokeire/115 showing Gusii County Council as the registered proprietor; a surveyor’s sketch showing that a school has been constructed on both parcels numbers Wanjare/Bokeire/1783 and 115 covering approximately 2.3 ha, thus, the area encroached by the school upon the Plaintiff’s land is approximately 2.215 ha. 9. When the matter came up for Mention on June 10, 2019, Mr. Mosota appearing for the 1st Defendant indicated that the 1st Defendant was agreeable to engaging with the Plaintiff with a view to settling the matter. On this basis, the Court adopted the report filed by the Land Registrar and the County Surveyor, Kisii County, as the Judgement of the Court. The Court further directed the parties to consult on the implementation of the report, with a view to having the portion occupied by the School, being 2.215 ha, hived off from the Plaintiff’s land and the Plaintiff compensated for the same. 10. However, during the parties’ negotiations on the valuation of the encroached upon portion of the Suit Property, the 1st Defendant filed a Notice of Motion application dated January 12, 2022 seeking orders that the Judgment of the Court delivered on June 10, 2019 be reviewed/varied to correct an error apparent on the face of the record. 11. The 1st Defendant argued that the entity stated to have encroached upon the Plaintiff’s land is a school and not the 1st Defendant. The 1st Defendant could not therefore be required to compensate the Plaintiff for encroachment on the Plaintiff’s land by another entity. The Court found in favour of the 1st Defendant, and the consent Judgment of June 10, 2019 was set aside. 12. Subsequently, Counsel for the Plaintiff, filed a Chamber Summons Application dated June 09, 2023 seeking leave to amend the Plaint to include the Honourable Attorney General as a party. The Application being unopposed, leave to amend the Plaint was granted by Justice Sila Munyao, as he then was, on September 28, 2023. 13. A Further Amended Plaint dated June 09, 2023 was filed on June 21, 2023, joining Masagoye Primary School and the Attorney General as the 2nd and 3rd Defendants respectively; thus, the Defendants as they are currently. 14. Through a Statement of Defence dated April 30, 2024, the 1st Defendant denies the allegations contained in the further amended Plaint and states that the Plaint does not disclose any cause of action against the 1st Defendant. 15. The 1st Defendant avers that land parcel numbers Wanjare/Bokeire/115 and Wanjare/Bokeire/1783 are separate and distinct. While the Plaintiff claims ownership of Wanjare/Bokeire/1783, the 1st Defendants maintains that it has never encroached upon or trespassed into the Plaintiff’s land. 16. The 1st Defendant also raised a Preliminary Objection on the basis that it is not a necessary party to these proceedings. 17. The Honourable Attorney General entered appearance through a Memorandum of Appearance dated February 26, 2024 and filed a Statement of Defence on behalf of both the 2nd and 3rd Defendants, dated January 29, 2025. 18. In the Statement of Defence, the 2nd Defendant avers that it is the beneficial owner of a parcel of land known as Wanjare/Bokeire/115 registered in the name of the defunct Gusii County Council and situated adjacent to the Suit Property. 19. The 2nd Defendant further avers that the school has enjoyed peaceful and quiet possession of land parcel number Wanjare/Bokeire/115 within the demarcated boundaries prior to the survey and registration of the Suit Property. 20. Both the 2nd and 3rd Defendants deny that they have encroached and/or trespassed onto a portion of the Suit Property or that they have caused loss and damage upon the Plaintiff by denying her use and occupation of the Suit Property. **Hearing** 1. Hearing in the matter commenced on February 03, 2025 with the testimony of PW-1, the Plaintiff. She adopted her witness statement dated May 22, 2024. From her list of documents, she also produced a map, title deed, valuation report, photographs, and a report by the Land Registrar and the County Surveyor dated August 09, 2018. 2. The Plaintiff reiterated that she is the registered proprietor of land parcel number Wanjare/Bokeire/1783. She testified that she has owned the land since 1976 and that she was issued with a title deed in her name over the Suit Property on August 16, 1992. 3. She stated that sometime in 2008, the Defendants’ agents, servants, and/or employees unlawfully and without her permission encroached and/or trespassed onto the Suit Property and they started wasting and damaging the same by digging trenches thereon. 4. In her oral evidence before the court, PW1 said some people came to her land and started building on it claiming it was their land. She found out their land measured 50 by 100 feet reserved for clay works in the name of the 1st Defendant. She asserted that instead of the 1st Defendant cutting out a portion of the land measuring 50 by 100 feet, they had carved out 5.7 acres from her land. 5. She averred the Defendants should compensate her or they be permanently injuncted against trespassing and/or encroaching onto or interfering with and/or dealing with the land parcel number Wanjare/Bokeire/1783, whether by their servants, agents, or employees; an order evicting the Defendants’ agents from the Suit Property and to demolish the structures illegally erected on her property. Finally, she asks for general damages for the loss caused by the trespass and illegal occupation of land parcel No. Wanjare/Bokeire/1783. 6. During cross-examination by Ms Bonareri, Counsel for the 1st Defendant, PW-1 stated that her whole land is 17 acres. Her dispute concerns on 5.7 acres which are occupied by the School. She confirmed that she has no dispute over parcel number Wanjare/Bokeire/115 registered in the name of Gusii County Council. 7. Cross-examined by Mr Ndiritu representing the 2nd and 3rd Defendants, PW-1 admitted that she was not aware that land parcel no. Wanjare/Bokeire/115 existed at the time she bought the Suit Property. She also stated that she does not know whether the school is using parcel no. Wanjare/Bokeire/115 and further that she did not purchase the Suit Property from Gusii County Council. 8. It was the Plaintiff’s case that she purchased the suit property in 1976 with the sale agreement executed between her deceased husband and the previous owner. She affirmed that she did not have a copy of the sale agreement and the documents of transfer to her name. She admitted that her husband, Samson Nyambati worked with Gusii County Council. 9. The Plaintiff admitted that the suit parcel was an amalgamation of parcel numbers 1766 and 1769. She further confirmed that she did not live on the suit land. That she became aware of the existence of the land, parcel number 115 belonging to the government when the school was built. She denied that she got the suit land from the county council, insisting she purchased it. 10. She also stated that she was not present during the survey conducted on 7th August 2018 and was unaware whether representatives of the school were present during the survey. However, she relied on the contents of that report. She repeated that there is a school operating on her land and that she had no issue with L.R. No 115. 11. The Plaintiff called a certified valuer, Ms. Rael Otundo as her second witness. PW2 stated that she is a registered and practising valuer and that under instructions from the Plaintiff, she visited land parcel number Wanjare/Bokeire/1783 on 27th October, 2020 for purposes of preparing a valuation report. It is her evidence that the School is largely built on parcel number Wanjare/Bokeire/1783 but there is a small portion measuring about 50 X 100 Feet within the Suit Property. 12. She further testified that area occupied by the School is about 2.215 ha or approximately 5.7 acres. She stated that what she saw on the ground was similar what the surveyor drew and and also the lager map sheet 6. Pw2 said that she only valued what was occupied by the 2nd Defendant without the buildings and she returned a value of KShs. 25,300,000/= for the land encroached by the School assuming it is vacant. PW-2 produced the Valuation Report marked as P-Ex. No. 2. 13. During cross-examination by Ms Bonareri, Counsel for the 1st Defendant, PW-2 testified that her valuation was in respect of the portion of parcel number Wanjare/Bokeire/1783 encroached by Masagoye Primary School and did not include parcel number Wanjare/Bokeire/115. 14. She further confirmed during cross-examination that she relied on the Surveyor’s Report of August 09, 2018 and a map of the Suit Property from the Survey office in preparing her Report. That the land was valued at Kshs 22 million plus a disturbance allowance of 15% raising the total value to Kshs 25300000. 15. Mr Ndiritu asked why she attached her 2021 practising certificate to a report prepared in 2020. She responded that the Plaintiff took the report in 2021, even though PW-2 had been instructed and prepared the report in 2020. She added that a report must include attachments, and in this case she attached a copy of the title deed, a search (done by PW1), the 2018 survey report, and the green card which she obtained. 16. During re-examination, PW-2 indicated that her practicing license for the year 2020 can be verified on the valuers’ board portal. She further stated that the School occupies parcel number Wanjare/Bokeire/115 and extends to parcel number Wanjare/Bokeire/1783. 17. The Land Registrar, Kisii testified as Pw3. She said that she could not trace records of the suit property as they are new numbers which are not in the system. That she required to get records of the mother number before 1979 and also she did not liaise with the survey office. However, she confirmed that she was aware of the report prepared by the former Land Registrar and County Surveyor, Kisii. 18. According to the report, land parcel no Wanjare/Bokeire/1783 is registered in the name of the Plaintiff and that parcel number Wanjare/Bokeire/115 measures 0.05 ha and is registered in the name of Gusii County Council. The report stated that the 2nd Defendant was using 5.7 acres as the area encroached. PW-3 produced the report prepared by the Land Registrar and County Surveyor, Kisii, which was marked P-Exhibit No. 3. 19. During cross-examination, PW-3 confirmed that as indicated in the report, parcel number Wanjare/Bokeire/1783 is an amalgamation of parcel numbers Wanjare/Bokeire/1767 and Wanjare/Bokeire/1769. That the school was using 5.7 acres of the Plaintiff’s land. 20. During further cross-examination, Pw3 stated that they are the custodians of the mutations for parcel numbers 1767 and 1769 which mutation would give their sizes. She confirmed she did not have the said mutation forms. She affirmed the report did not give the name of the school or how the school is utilizing the impugned land. The witness confirmed parcel number 115 is an original number. 21. In re-examination, PW-3 testified that parcel number Wanjare/Bokeire/115 had been reserved for clay works and not a school. She further testified that there can be a change of user from industrial to residential, and while she could not tell if clay works is covered in the industrial user, the reserved user for parcel number Wanjare/Bokeire/115 cannot be a school. 22. During a hearing held on July 03, 2025, continuing with the testimony of PW-3, she produced green cards to parcel numbers Wanjare/Bokeire/1767, 1769, and 1783, together with a combination form through which parcel numbers Wanjare/Bokeire/1767 and 1769 were combined to 1783. The documents were produced as P-Exhibits Nos. 4, 5, 6, and 7, respectively. 23. PW-3 also produced the green card for parcel number Wanjare/Bokeire/115 showing that the land is registered in the name of Gusii County Council, it is reserved for Ekerubo Clay Soil, and measures 0.05 ha. The green card was produced as P-Exhibit No. 8. 24. During cross-examination by State Cousnel Mr. Ndiritu, deriving from the combination form that resulted in the creation of Wanjare/Bokeire/1783, PW-3 confirmed that the area of parcel number 1767 was 4.0 ha and the area of parcel number 1769 was 0.6 has combined into parcel number 1783 with a total area of 4.6 ha. 25. PW-3 further confirmed that when the register for parcel number 1783 was opened, parcel number 115, being an original number after adjudication, was already existing. The Green Card for parcel number 1783 indicates the acreage to be 6.30 ha. 26. PW-3 testified during cross-examination that even though it is not indicated in the Green Card for parcel number 1783, the Land Registrar had documents of transfer of the Suit Property to the Plaintiff. 27. During re-examination, PW-3 stated that they use approximation on acreages. However, where there is discrepancy between what is on the register and what is on the ground, the discrepancy can be cured by the Surveyor who confirms what is on the ground. However, the lands registry will generally go by the acreages included in the original parcel numbers. 28. PW-4 introduced himself as David Lemaiyan, a Surveyor in the Ministry of Lands stationed in Kisii County. He testified that he visited land parcels numbers 1783 and 115 on August 07, 2018 and was involved in the preparation of the report filed before the Court. 29. PW-4 further testified that in the joint report prepared by the Land Registrar and the County Surveyor, Kisii, he attached the mutation combining parcels 1767 and 1769 into 1783. There are two mutations. One is No. 45 and the other is No. 46. 30. Combination form No. 46 shows the total acreage of parcel no. 1783 as 4.6 ha while form No. 45 indicates the total acreage as 6.3 ha. PW-4 testified that on the basis of the marginal notes by the Land Registrar on the bottom left section of combination form No. 45, he would rely on combination form No. 45 as considers form No. 46. 31. PW-4 further testified that the 2nd Defendant does not occupy parcel no. 115 but the School is within parcel no. 1783. He concluded that the 2nd Defendant has encroached into parcel no. 1783 by 2.215 ha but noted that the Plaintiff is also occupying the clay works land, that parcel number 115 reserved for Ekerubo Clay works. 32. During cross-examination by State Counsel Mr. Ndiritu, PW-4 confirmed that he took measurements of parcel no. 1783 on the ground the correct acreage is 6.3 ha. 33. PW-4 further stated that he could not tell the acreages of parcels no. 113 and 114, the mother titles to parcels no. 1769 and 1767, before subdivision as they are no longer in the map, because the map was amended. 34. During re-examination, PW-4 testified that the 2nd Defendant is occupying parcel no. 115. He further stated that only 0.05 ha constituting parcel no. 115 should be school land but the 2nd Defendant is using additional land from parcel no. 1783. He clarified that no portion of parcel no. 115 is being occupied by the Plaintiff. 35. The hearing of the Defence case commenced on September 16, 2025 with DW-1 introducing himself as Mr Douglas Makori, the Acting Director, Land Administration, Kisii County Government. He adopted his witness statement dated October 15, 2025 as his evidence in chief. 36. During cross-examination by State Counsel Mr. Ndiritu, DW-1 testified that he is the custodian of land records in Kisii County. He further testified that parcel no. 115 has not been transferred to any entity and that he has never heard of Masagoye Primary School until after the Land Registrar testified. 37. During cross-examination by Mr. Nyamu, Counsel for the Plaintiff, DW-1 testified that he does not have records of any request to allocate land to Masagoye Primary School. 38. He also testified that the 1st Defendant has records of schools whose lands are registered under the Gusii County Council, but the 2nd Defendant is not among those schools. In addition, the 1st Defendant does not have the function of constructing schools, save for ECD institutions. 39. DW-2 introduced himself as Christopher Miruka, the current Headteacher and Secretary of the Board of Management of the 2nd Defendant. DW-2 adopted his witness statement dated January 29, 2025 as his evidence. 40. DW-2 testified that the 2nd Defendant is the beneficial owner of the land parcel number 115 registered in the name of Gusii County Council. 41. He states that with restructuring of Provincial Administration in 2003 and the establishment of Kisii South District with headquarters at Kerina ELCK Primary School playground, Kerina ELCK Primary School was closed as a result, and the community of Bomokira Sub-location was left without a public school. The community therefore requested the defunct Gusii County Council to allocate them land for purposes of establishing a school. Land parcel number 115 was available and was allocated for the establishment of Masagoye Primary School. 42. The witness further states that Suit Property was not allocated to the Plaintiff during the adjudication of Bokeire Registration Section and was at all material times public land. 43. During cross-examination by State Counsel Mr. Ndiritu, DW-2 stated that he has documentary evidence that parcel number 115 was handed over to the 2nd Defendant by the defunct Gusii County Council but he did not produce that document. 44. DW-2 also testified that he knows of parcel no. 115 to be 17 acres. On the land, DW-2 confirmed that they have 9 classes, staff and learner’s latrines, a playground including a football pitch which is around 2 acres, and the 2nd Defendant also farms 2.5 acres of the land. 45. DW-3 introduced himself as Mr. Johana Mosioma Maisiba, a resident of Bomokura sub-location. Like DW-2, DW-3 testified that parcel number Wanjare/Bokeire/115 was allocated by the defunct Gusii County Council for the construction of a school after Kerina ELCK Primary School was closed down. 46. DW-3 testified that to the best of his knowledge, parcel number Wanjare/Bokeire/115 is public land registered in the name of the defunct Gusii County Council with clear boundaries which were fixed during adjudication. **Submissions** 1. The parties were given time to file and serve submissions in the matter. The Plaintiff informed the court that she had filed her submissions in December, 2025 however, none exists in the CTS or the court file. I was only able to trace the written submissions filed by the 1st Defendant. 2. The 1st Defendant submits that there lies no cause of action in the suit against it because it has no responsibility to construct schools. It can only be answerable for Early Childhood Development Education centers, and there are none constructed on the Suit Property. The 1st Defendant therefore maintains that it was illegally joined in this matter. **Issues** 1. The following are the identified issues for determination: 1. Whether the 1st Defendant has been illegally made a party to these proceedings; 2. Whether the Defendants have trespassed onto the Plaintiff’s land; and 3. If it is established that the Defendants have trespassed onto the Plaintiff’s land, what remedies is the Plaintiff entitled to? **Whether the 1st Defendant has Been Illegally Made a Party to these Proceedings** 1. Among the documents produced by the Plaintiff was the green card for L.R No. 115, which shows that it is registered in the name of Gusii County Council. The 1st Defendant was the successor in title to Gusii County Council. The evidence from the 2nd Defendant was that they were given this parcel number 115 to build the school. 2. Although it is not the role of the 1st Defendant to construct schools such as the 2nd Defendant, the land on which the 2nd Defendant is using to deny it has encroached still bears the 1st Defendant’s name. The determination of the extent of the encroachment was premised on occupation of parcel 1783 and 115. 3. Order 1 rule 5 and 7 of the Civil Procedure Rules states thus; **“5. It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him’** **7. Where the plaintiff is in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties**.” 73. The Court of Appeal in the case of **Kaangi & another v Pulei (Suing as the Personal Representative of the Estate of Kasaine Pulei Kinyoei alias Kasina Ole Pulei) & 8 others (Civil Appeal E322 of 2023) [2026] KECA 1243 (KLR) (3 July 2026) (Judgment)** **“Although the application before the Judge did not cite any specific provisions under which it was brought, under Order 1 rule 10 of the Civil Procedure Rules the court is empowered, “either upon or without the application of either party” at any stage of the proceedings to order the striking out of a party improperly joined or the addition of any person who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate and settle all questions involved in the suit. In effect, the trial court could have, *suo motto*, directed the joinder of parties likely to be affected by the decision of the court, notice having been given of that risk.”** 1. Consequently, it is my considered opinion and I so hold that by virtue of the 1st Defendant owning the parcel number 115 from which the 2nd Defendant derives authority to defend its occupation of the suit property, it remained a necessary party to these proceedings. **Whether the Plaintiff has proved trespass/encroachment:** 1. The burden of proof rested on the shoulders of the Plaintiff to show that he was the rightful owner of L.R. No 1783 and therefore entitled to exclusive use. She was also under obligation to demonstrate that the Defendants particularly the 2nd Defendant had trespassed on to her land. 2. In the persuasive authority of **Park Towers Limited v John Mithamo Njika & 7 Others [2014] eKLR**, the Environment and Land Court stated: **"Trespass is any unjustifiable intrusion by one person upon land in the possession of another."** 1. In establishing that she was the owner of the suit land, the plaintiff called four (4) witnesses and also produced documents. The summary of the said evidence is set out hereinabove but key is the fact that the Plaintiff produced a title for her land. Besides the title, there was produced the copy of records and the map sheet number 6 which corroborated the land existed. 2. Though initially Pw3 said she had no records of L.R 1783 was an amalgamation of 1767 and 1769, she was recalled to produced records which included LCB Consent issued on 28th July 1994 transferring the land from Samson Nyambati to the Plaintiff. A copy of the transfer registered on 15th August 1994 was also produced. 3. Contemporaneous with these were copies of green cards for 1767 and 1769. The green card for 1769 was opened on 6th June 1979 in the name of Samson Nyambati. It showed this number was a subdivision of LR No. 113 while for 1767 also opened the same date showed it was a subdivision of 114. Although no records of the original numbers 113 and 114 were produced, none of the Defendants claimed ownership of the same. 4. Thus, the documents produced give a history and or root of the title of the Plaintiff which numbers follow the sequence of parcel 115 owned by the 1st Defendant. The Plaintiff having proved her ownership of Wanjare/Bokeire/1783, it follows that she is entitled to exclusive ownership. 5. Section 25 of the Land Registration Act of 2012 (having similar provisions to section 25 of the Registered land Act cap 300 repealed, as the applicable law then) provides thus; **“(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of 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 appurtenances belonging thereto, free from all other interests and claims whatsoever.”** 1. Has the Plaintiff demonstrated encroachment on her suit parcel? There was produced a Land Registrar’s report following a sit visit made in August 2018. The finding in that report was that the school was using 5.7acres of Wanjare/Bokeire/1783. This usage was without the consent and or authority of the Plaintiff. 2. In their defence, Dw2, stated that they are occupying parcel 115 although they have not been issued with a title. He also stated that the school was not represented when the Land Registrar and the Surveyor visited the disputed site. According to him, he did not agree they had encroached because of the disparities on the sizes stated on the combination forms for 1767 and 1769. In cross-examination, he said that his general knowledge informs him that 0.05 is equivalent to 16-17 acres. He could not tell the size of the land the school occupies. 3. None of the defence witnesses gave evidence to contradict the findings by the Land Registrar. The evidence of DW3 was useful only on the reasons why the impugned school was started at the location, due to the creation of new districts in the year 2003. He affirmed knowing Samson Nyambati who he said was working with Gusii County Council. 4. Dw3 admitted Samson Nyambati had bought the land which had been set aside for grazing. That the school was built on the authority of the Government. There was no evidence adduced to corroborate his assertion that this land was reserved for grazing, as public land. 5. Counsel for the 2nd and 3rd Defendants during cross-exam of PW3 stated that there is no name of school indicated in the report. That is a matter that is neither here nor there since DW2 and Dw3 affirm it is the 2nd Defendant who was authorised to build on parcel 115. Parcel 115 is adjacent to the Plaintiff’s land and there was no evidence that there are two schools within this land. 6. In sum, I am persuaded to find that the plaintiff proved the trespass. **What remedies is the Plaintiff entitled to?** 1. In Kenya, compensation for trespass is awarded to vindicate the plaintiff's right to exclusive possession of land. Since trespass to land is **actionable per se**, a plaintiff is entitled to damages once trespass is established, even where no actual loss or damage is proved. The assessment of damages depends on the nature, duration and consequences of the trespass. 2. In the case of **Philip Aluchio…Vs…Crispinus Ngayo [2014] eKLR,** the Court held as follows: - **“........ The plaintiff is entitled to General Damages for trespass. The issue which arises is as to what is the measure of such Damage. It has been held that the measure of Damages for trespass is the difference in the value of the Plaintiff’s property immediately after the trespass or the costs of restoration, whichever is less ..... The Plaintiff herein did not adduce any evidence as to the state of his property before and after the trespass. It therefore becomes difficult to assess General Damages for trespass...”** 1. In the present case, the Plaintiff has demonstrated that she has been denied use and occupation of the portion occupied by the 2nd Defendant. It is unjust and unconstitutional to allow the 2nd and 3rd Defendants to take over the Plaintiff’s land without any compensation. On the amount of compensation payable, the Plaintiff called the evidence of a valuer who valued the disputed portion of the land at Kshs 25,300,000. Again, none of the Defendants presented evidence to give a contrary value for the disputed portion. 2. The public interest would be to order compensation to the plaintiff, allowing the school to continue operating and serving the children of this nation, rather than granting an order of eviction, which she is entitled to as the owner of the land Wanjare/Bokeire/1783. I find that the amount payable is Kshs 22,000,000 for the land and 15% of that for the disturbance (Kshs 3,300,000). 3. In terms of who should pay the compensation, I exonerate the 1st Defendant since basic education is a function of the national government. The 2nd Defendant stated that they were put in possession by the Government and it being a public school, the 3rd Defendant is the one representing its interests. Hence, the 3rd Defendant is the one to pay and/or source the compensation money. 4. This court being alive to the financial policy of government in processing any payment, I shall grant the 3rd Defendant eight (8) months to honour the decree. The matter shall be mentioned after the fourth (4) month o0f today to receive the progress made. **Disposition:** 1. In conclusion, i enter judgment for the Plaintiff against the 2nd and 3rd Defendants jointly and severally on terms that; 1. **The 2nd and 3rd Defendants shall within a period of eight (8) months of this date, pay to the Plaintiff the sum of Kshs 22,000,000 as compensation for the land encroached upon with interest at court rate from 9th June 2023 until payment is made in full.** 2. **The Plaintiff is awarded general damages for trespass at Kshs 3,300,000 payable with interest from the date of this judgment until settled in full.** 3. **In default of compliance with (a) above, the Defendants, their agents and/or servants are to surrender forthwith vacant possession of the 5.7 acres of Wanjare/Bokeire/1783 to the Plaintiff.** 4. **Further, if vacant possession is not surrendered after the lapse of Eight (8) months, and no compensation paid, the Plaintiff is at liberty to evict using lawful means. Thereafter, orders of permanent injunction as sought in prayer (a) of the further amended plaint shall apply.** 5. **The Plaintiff is awarded the costs of the suit.** **Dated, signed and delivered at Kisii this 16th day of July, 2026** * + 1. **OMOLLO** **JUDGE**