https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3278

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC LAND CIVIL SUIT NO. E038 OF 2023** **ANNE GATHONI MBAABU.…………………………….…………...PLAINTIFF** **VERSUS** **CHRISTINE GENDALA……………………………………………..DEFENDANT** **JUDGMENT** 1. In a plaint dated 4 October 2023, the plaintiff sued the defendant. It was her case that on or about 10 February 1992, she and her husband, Geoffrey Mbaabu M’mubongo (deceased), purchased the property known as **Mavoko Town Block 2/293 (“the suit property”),** which was registered in her name. 2. She maintained that she enjoyed uninterrupted possession of the property until 28 September 2023, when she was notified that unidentified individuals had trespassed onto the suit property and, among other actions, declared themselves the owners. She stated that on 29 September, her representatives visited the suit property and encountered the defendant, who was accompanied by two Maasai men armed with crude weapons and another individual identifying himself as a relative of the defendant. 3. The court was informed that the defendant had, among other actions, uprooted sisal plants, erected a steel structure on the property, and prevented her from accessing it, causing her to report the matter to the police and was issued with an OB number. As a result of these actions, a pending sale of the suit property collapsed. Accordingly, she alleged loss and fraud and sought the following prayers from the court: - 4. ***A declaration that the plaintiff is the legal owner of Mavoko Town/Block 2/293.*** 5. ***A declaration that the defendant trespassed on Mavoko Town/Block 2/293.*** 6. ***A permanent injunction due issue against the defendant, her agents, and/or assignees, prohibiting them from trespassing, occupying, transferring and otherwise interfering with Mavoko Town Block 2/293.*** 7. ***The plaintiff be reimbursed for loss of business to the tune of Kes 50,600,000/-, being unrealised proceeds from the botched sale.*** 8. ***General damages for trespass and loss of business.*** 9. ***Costs and interest of the suit be provided for.*** 10. ***Any other relief that this honourable court may deem just and fit.*** 11. On service, the defendant filed a defence dated 15 June 2025, which was mostly composed of denials and put the plaintiff to strict proof. It was stated that the title in the plaintiff's possession was either invalid, superseded, or fraudulently obtained. She averred that the plaintiff, through her agents, unlawfully attempted to evict her and her workers from the suit property. 12. She maintained that she was not a trespasser and that her presence and developments on the suit property were lawful and within her rights as the beneficial and lawful registered owner, and stated she employed caretakers to guard the suit property due to threats of encroachment by persons claiming ownership, including the plaintiff. 13. Further, that any claim for general damages and/or loss of business was unsubstantiated, remote, speculative, and incapable of being awarded in the absence of valid ownership by the plaintiff. Despite not filing a counterclaim, she pleaded, among other reliefs, that she be declared the lawful owner and possessor of the suit property. In spite of filing a defence, neither the defendant nor her witnesses testified; therefore, the defence consisted of unsubstantiated allegations. 14. Ultimately, this case proceeded to a hearing on 8 October 2025, during which the plaintiff testified as the sole witness, and she relied on her oral testimony, her witness statement dated 2 May 2025, and documents produced and marked as **Pex. 1-7.** During the hearing, she tendered the original title document for the suit property for the court's examination. 15. Her witness statement mirrored the averments of her plaint. She produced a copy of the title document and official search certificate **(Pex. 1 & 4),** which showed that the suit property measured 2.05 ha and was registered in her name and that of the deceased on 10 February 1992. 16. She also tendered a bundle of photographs allegedly demonstrating the defendant’s acts of trespass **(Pex. 3 & 5).** The OB extract was presented as evidence **(Pex. 7).** She also proffered correspondence between the plaintiff’s law firm on record and an intended purchaser’s law firm (**Pex. 6),** which demonstrated that the potential purchaser wanted to purchase the suit property at Kshs. 11,000,000/- per acre on 11 September 2023. The offer was accepted on 13 September 2023, but was suspended by the intended purchaser on 2 October 2023 due to activities on the suit property by unknown people and questions about the authenticity of the title documents. 1. Following the conclusion of the hearing, the plaintiff, through her law firm on record, **Ms. Wanyoike Thuo Advocates**, filed written submissions dated 31 March 2025, in which counsel delineated three issues for determination: (a) whether the plaintiff was the lawful and indefeasible owner of the suit property; (b) whether the defendant unlawfully trespassed onto the suit property; and (c) whether the plaintiff was entitled to the orders sought. 2. In her evidence and submissions, it is apparent that she abandoned her claim of fraud, which was proper, as the particulars, which included trespass, did not meet the definition of fraud as set out in **Black’s Law Dictionary, 11th Edn, at p. 802,** namely a knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment. 3. Now, upon review of the entire case, this court identifies the single issue for determination as **whether the plaintiff has proven her trespass claim** **to the requisite standards.** Accordingly, in its analysis and determination, the court will meticulously consider the arguments presented in the plaintiff’s submissions. 4. It is essential to delineate the pertinent legal and jurisprudential framework on trespass. **Article 40** of the **Constitution** recognises that every person has the right to acquire and own property of any kind and in any location within Kenya. The protections and limitations related to such land rights are governed by **Sections 24, 25,** and **26** of the **Land Registration Act,** which demarcate land rights, privileges, appurtenances, liabilities, and interests. Other relevant provisions of the law are contained in the **Land Act** and the **Trespass Act,** which specifically stipulate: **Section 152A o**f the **Land Act 2016** states as follows: - ***“A person shall not unlawfully occupy Private, Community or Public Land.”*** **Section 3 (1)** of the **Trespass Act** defines trespass as: - ***“any person who without unreasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on private land without the consent of the occupier thereof shall be guilty of an offence.”*** 1. As for the writings of eminent scholars, the text of **Clerk & Lindsell on Torts, Sweet & Maxwell, 18th** **Edition, at page 923,** defines trespass to land as follows: - *“****Trespass to land consists of any unjustifiable*** ***intrusion by one person upon land in the possession of another.”*** **Page 927** of the same text discourses as to who may sue for trespass, and it states as follows: - ***“Trespass is actionable at the suit of the person in possession of land, who can claim damages or injunction, or both... Similarly, a person in possession can sue although he is neither owner nor derives title from the owner, and indeed may be in possession adverse to the owner.”*** 1. In the book of **Winfield & Jolowicz on Tort, Sweet & Maxwell, 19th Edition, page 428,** trespass is discussed as follows: ***“Trespass to land, like the tort of trespass to goods, consists of interference with possession. Mere physical presence on the land does not necessarily amount to possession sufficient to bring an action for trespass. It is not necessary that the claimant should have some lawful interest in the land. This is not to say that legal title is irrelevant, for where the facts leave it uncertain which of several competing claimants has possession, it is in him who can prove title that can prove he has the right to possession. More generally, in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land.”*** 1. The prevailing theme in the definition of trespass, as articulated by these esteemed scholars, is that ownership is not a prerequisite for such a claim. Nevertheless, the assertion of a person holding title to the land takes precedence in cases of competing claims of possession. In the instant case, the plaintiff’s claim of ownership and registration status was not displaced; the property is registered as a joint proprietorship with her co-registered owner being her deceased husband, who died on 6 March 2023. The court is satisfied that the plaintiff is the registered owner of the suit property. 2. Still, the evidential burden rested with the plaintiff, as the person alleging, to prove her claim, as provided by **Sections 107** and **109** of the **Evidence Act.** Apart from proving ownership, she needed to show that she had taken possession before the defendant’s entry and that the defendant occupied the suit property without the plaintiff’s permission. 1. As previously stated, the plaintiff’s evidence was uncontroverted, indicating that she maintained peaceful possession from 10 February 1992 until the events of 28 and 29 September 2023, when the defendant trespassed onto the suit property. Her testimony that the defendant entered the suit property without her permission was not challenged. 2. An examination of the coloured photographs presented as evidence of acts of trespass reveals cleared land where shrubs have been uprooted, and a small tin structure inscribed with the words *“this land is not for sale – beawere (sic) for (sic) con people”* exists therein. Her assertion that the defendant engaged in illegal activities such as cutting sisal plants and erecting this structure on the suit property was not rebutted. In the circumstances, this court finds the plaintiff’s testimony was credible, unchallenged, and supported by evidence. 3. It is well established that trespass is an actionable offence *per se,* without the need to prove actual damage. Considering the duration of the trespass, the size of the affected property, the location, and the nature of the trespass, the court hereby awards the plaintiff Kshs 1,500,000/- as general damages. 4. Apart from pleading general damages, she also pleaded loss of business assessed at Kshs. 50,600,000/=. Guided by the Court of Appeal decision of **Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR),** which held that where there are other factors attributable to losses, such as the case herein, where the intended purchaser also maintained there was a conflict as to ownership apart from trespass, hence the suspension of the intended purchase, this court finds that it is not entitled to this sum. In any case, the intended sale was suspended rather than cancelled. 5. In the end and for the aforementioned reasons and findings, this court finds that the plaintiff proved her case to the required standards, being successful, and costs are awarded to her. The following final orders are hereby issued: - 6. ***A declaration is hereby made that the plaintiff is the legal owner of Mavoko Town/Block 2/293.*** 7. ***A declaration is hereby made that the defendant trespassed on*** ***Mavoko Town/Block 2/293.*** 8. ***A permanent injunction is hereby issued against the defendant, whether by herself or her agents or anyone claiming under her, from dealing, transferring, alienating, constructing, trespassing, interfering, charging, or encumbering, or in any other manner dealing with Mavoko Town/Block 2/293.*** 9. ***The plaintiff is awarded general damages of Kshs. 1,500, 000/=, which the defendant shall bear.*** 10. ***The defendant shall bear the plaintiff’s costs of the suit.*** Judgment accordingly. **Delivered and Dated at Machakos this 2nd day of June, 2026.** **HON. A. Y. KOROSS** **JUDGE** **02.06.2026** **Judgment delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Ms. Kanja Court Assistant. Mr. Thuo for the plaintiff. No appearance for other parties.