Okumu v County Government of Kisumu & another (Environment and Land Case E019 of 2025) [2026] KEELC 4029 (KLR) (2 July 2026) (Judgment)

Okumu v County Government of Kisumu & another (Environment and Land Case E019 of 2025) [2026] KEELC 4029 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELC 4029 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case E019 of 2025 CC Oluoch, J July 2, 2026 Between Benson Meshack Okumu Plaintiff and The County Government Of Kisumu 1st Defendant The Ethics & Anti-Corruption Commission 2nd Defendant Judgment Introduction 1.This Judgment resolves a dispute concerning ownership, boundary re-establishment, and proprietary rights over two contiguous parcels of land identified as Kisumu Municipality/Block 5/559, measuring approximately 0.0504 hectares, and Kisumu Municipality/Block 5/561, measuring approximately 0.0995 hectares, together with the building and structures erected thereon, hereinafter referred to as the suit properties. The Plaintiff, Benson Meshack Okumu, instituted this suit against the County Government of Kisumu as the 1st Defendant and the Ethics & Anti-Corruption Commission as the 2nd Defendant. The Plaintiff challenges the 1st Defendant’s entry, partial physical excision, and settlement of market traders on the suit properties, as well as the 2nd Defendant’s registration of a restriction on the land register. In his Plaint dated 14th March 2025, the Plaintiff prayed for judgment against the Defendants for:i)A declaration that the 1st Defendant is a trespasser on the suit properties, Kisumu Municipality/Block 5/559 and Kisumu Municipality/Block 5/561;ii)An eviction order and a permanent injunction restraining the 1st Defendant, its employees and/or agents, from entering upon, taking possession of, trespassing on, alienating, or interfering with the suit properties by any other means;iii)An award of general damages for trespass and mesne profits arising from wrongful possession of the suit properties;iv)An order directing the Land Registrar to remove the restriction lodged by the 2nd Defendant in respect of the suit properties;v)A permanent injunction restraining the 2nd Defendant from interfering, by any other means, with the Plaintiff's registered proprietorship of the suit properties; and sixth, the costs of this suit, with interest thereon. 2.The 1st Defendant filed a Statement of Defence on 22nd August 2022, denying all substantive allegations of ownership, trespass, encroachment, and financial loss, and seeking dismissal of the suit as incompetent, misconceived, bad in law, and premature. The 2nd Defendant, the Ethics & Anti-Corruption Commission, was served but failed to appear or defend. As neither Defendant appeared at the hearing, the suit was heard ex parte. The Plaintiff’s Case 3.PW1, Benson Meshack Okumu, adopted his written witness statement dated 14th March 2025 and relied on the list of documents filed in support of the Plaint. He stated that he is the registered and rightful proprietor of Kisumu Municipality/Block 5/559, measuring 0.0504 hectares, and Kisumu Municipality/Block 5/561, measuring 0.0995 hectares. He produced copies of documents including the lease certificates, beacon certificates and Land Registry entries in Kisumu, which show that he is the registered proprietor of both parcels. 4.PW1 explained that he had been absent from the suit properties for over ten years due to serious health issues. In 2022, after recovering and visiting the properties, he found that the 1st Defendant had entered Kisumu Municipality/Block 5/559 without his permission or any legal right. The Defendant had built a permanent concrete fence around an excised area of approximately 0.025 hectares. Additionally, the Plaintiff discovered that the 1st Defendant had unlawfully settled market traders on other parts of both properties. These traders operate their businesses there and pay daily and monthly fees directly to the 1st Defendant, excluding the Plaintiff and causing him harm. 5.PW1 stated that, due to the 1st Defendant’s actions, he formally requested the Ministry of Land & Physical Planning to restore the boundary beacons for the properties. After paying the required fees, a Government Surveyor from the department visited the site, re-established the boundaries, and verified that Block 5/559 measured 0.0504 hectares and Block 5/561 measured 0.0995 hectares. The Surveyor issued a Beacon Certificate dated 3rd November 2022, confirming that the 1st Defendant’s concrete wall and the market traders were within the Plaintiff’s registered boundaries. Despite several formal reminders for the 1st Defendant to vacate and relocate the traders, he continued to trespass and encroach on the properties. 6.Regarding the 2nd Defendant, PW1’s evidence was that it had unilaterally applied to the Land Registrar in Kisumu to register a restriction against the titles of the suit properties. The Plaintiff stated that the restriction was registered without following the due procedure under Section 77(1) of the Land Registration Act, 2012, as no notice was ever issued or served upon him. The Plaintiff added that the properties have never been adversely mentioned in the Ndungu Land Report or in any other title revocation notices issued by the National Land Commission, and that the unprocedural restriction has unlawfully curtailed his constitutional right to enjoy and deal with his properties as guaranteed under Article 40 of the Constitution of Kenya. He therefore prayed for all the prayers in the Plaint. Summary of Plaintiff’s Submissions 7.The Plaintiff’s submissions, dated 9 June 2026, addressed proof of ownership and the indefeasibility of title. The Plaintiff asserted lawful registered ownership of two parcels: Kisumu Municipality/Block 5/559 (approximately 0.0504 Ha) and Kisumu Municipality/Block 5/561 (approximately 0.0995 Ha). To discharge the burden of proof, the Plaintiff relied on certificates of lease and green cards confirming registration as proprietor on 21 September 2001. 8.Counsel argued that under Sections 24, 25, and 26 of the Land Registration Act, this registration confers absolute and indefeasible ownership, together with all appurtenant rights, unless successfully challenged on grounds of fraud, misrepresentation, or illegality. Relying on the Court of Appeal decisions in Wreck Motors Enterprises v The Commissioner of Lands & 3 Others, Civil Application No. NAI. 74 of 1997 (UR. 33/97), and Arthi Highway Developers Limited v West End Butchery Limited & 6 Others, Civil Appeal No. 246 of 2013; [2015] eKLR, the Plaintiff argued that registered proprietary rights must be protected. The Plaintiff emphasised that an innocent proprietor cannot be dispossessed of their legal title by unlawful acts, and that a certificate of title is prima facie evidence of absolute ownership, which can be challenged only in accordance with the law. 9.The Plaintiff contended that the 1st Defendant unlawfully entered Kisumu Municipality/Block 5/559 without consent, statutory authority, or the compulsory acquisition process, encroaching on approximately 0.025 Ha. The 1st Defendant allegedly constructed a concrete wall and permitted traders to occupy the land, thereby depriving the Plaintiff of quiet possession and enjoyment. Relying on the High Court’s holding in Philip Ayaya Aluchio v Crispinus Ngayo, Civil Case No. 74 of 2010; [2014] eKLR, the Plaintiff submitted that a party who enters property without consent or colour of right and erects structures upon it is a trespasser. Consequently, the Plaintiff argued that such trespass entitles the registered owner to an order for eviction, demolition of the offending structures, and general damages. 10.[10] The Plaintiff’s counsel further submitted that the 2nd Defendant registered a restriction against the suit properties without issuing due notice, affording a hearing, or providing lawful justification. While acknowledging the Registrar’s power under Section 76 of the Land Registration Act to enter a restriction, the counsel submitted that this power must be exercised reasonably and in accordance with the procedural requirements mandated by Section 77 of the Act and Article 47 of the Constitution. To support this argument, the Plaintiff cites Sceneries Limited v National Land Commission & 2 Others, Miscellaneous Constitutional Application No. 1 of 2016; [2017] eKLR, arguing that any administrative action affecting a person’s rights, including investigations into land titles, must strictly comply with the requirements of procedural fairness and natural justice under Article 47. Further, relying on Republic v Chief Land Registrar & Another Ex parte Yosabia Kerubo Manyura, Miscellaneous Application No. 5 of 2017; [2018] eKLR, the Plaintiff submitted that actions affecting title must adhere to due process; a failure to do so renders the action ultra vires, null, and void, warranting the immediate removal of the restriction. 11.Having established ownership and trespass, the Plaintiff’s counsel sought vacant possession and an order compelling the 1st Defendant to remove the wall, structures, materials, and traders from the land. The Plaintiff prayed for a permanent injunction to restrain the 1st Defendant from further trespass and the 2nd Defendant from unlawfully interfering with the Plaintiff’s proprietary rights. The principles for injunctive relief set out in Giella v Cassman Brown & Co Ltd [1973] EA 358 were cited in support of this prayer. Finally, arguing that trespass is actionable per se, the Plaintiff urged the Court to award general damages and mesne profits to compensate for the continued deprivation of use, commercial wastage, and loss of rental income. Analysis and Determination 12.After considering the pleadings, the evidence, and the submissions, the Court identifies the following issues for determination:i)Whether the Plaintiff is the lawful and registered proprietor of the suit properties;ii)Whether the 1st Defendant’s entry, physical excision, and settlement of market traders on the properties constitute trespass;iii)Whether the restriction registered by the 2nd Defendant was lawful;iv)Whether the Plaintiff is entitled to the reliefs sought, including eviction, permanent injunction, general damages, and mesne profits. Ownership of the Suit Properties 13.The Plaintiff produced copies of lease certificates and certified land register entries for Kisumu Municipality/Block 5/559 and Kisumu Municipality/Block 5/561, confirming that he is the registered proprietor. Under Section 26(1) of the Land Registration Act 2012, a certificate of title is prima facie evidence of absolute ownership and can be rebutted only in limited circumstances. Section 26(1) provides:“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except- a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 14.In the present case, the Plaintiff’s root of title has not been challenged by any of the Defendants. Although the 1st Defendant denied the Plaintiff’s ownership in its Statement of Defence, it failed to attend court or to present any evidence to impeach the Plaintiff's title. The 2nd Defendant did not file any defence. In Munyu Maina v Hiram Gathiha Maina, [2013] KECA 94 KLR, the Court of Appeal clarified that when a registered proprietor's title is challenged, the proprietor must prove the legality and formality of its acquisition:“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.” 15.The Plaintiff has proved rightful ownership of the suit lands by producing documentary evidence that has not been impeached. The Court therefore holds that the Plaintiff is the registered, absolute, and lawful owner of the suit properties, protected under Article 40 of the Constitution of Kenya, 2010. Trespass and Encroachment by the 1st Defendant 16.Trespass to land comprises any unjustifiable intrusion by a person onto land in the possession of another (see Clerk & Lindsell on Torts, 18th Edition, at paragraph 18-01). Black’s Law Dictionary, 10th Edition, defines trespass to land as “A person’s unlawful entry on another’s land that is visibly enclosed.” 17.The unchallenged evidence of the Plaintiff shows that the 1st Defendant entered the Plaintiff’s land without consent, constructed a concrete wall that physically excised approximately 0.025 hectares of Kisumu Municipality/Block 5/559, and settled market traders on the remaining areas of the suit properties. The boundaries and the encroachment were confirmed by a Government Surveyor in a Beacon Certificate dated 3rd November 2022. The 1st Defendant has not produced any lease, licence, or compulsory acquisition order to justify its actions. The settlement of market traders and the collection of trading fees on private land without the owner’s consent constitute an egregious violation of private property rights. The Court therefore finds that the 1st Defendant is a trespasser on the suit properties and liable for the encroachment and continuous trespass. Appropriate Remedies 18.In respect of the remedy of general damages for trespass, I am guided by Park Towers Ltd v John Mithamo Njika & 7 others [2014] eKLR cited in Oguttu (Suing as the Legal Representatives of the Estate of Rachel Olingo Deceased) v Kobare [2026] KEELC 3110 (KLR), where the Court stated that:“I agree with the learned judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded general damages. The court in such circumstances is under a duty to assess the damages awardable depending on the unique circumstances of each case.”In this case, the Plaintiff did not propose any figure that the Court would award as general damages. The Court therefore awards nominal damages of Kshs. 500,000. [19] The Plaintiff also sought an award of mesne profits for the wrongful possession of the suit properties. Under Section 2 of the Civil Procedure Act (Cap 21), “mesne profits” are defined as:“mesne profits”, in relation to property, means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession”. 20.[20] It is settled law that a claim for mesne profits, being in the nature of special damages, must be specifically pleaded and strictly proved. The Plaintiff bears the legal burden under Section 107 of the Evidence Act to lead concrete evidence of the rental value or actual profits received. In the present case, the Plaintiff led no such evidence. It is also settled law that a court cannot award both general damages and mesne profits in the same suit. These principles are reinforced in Christine Nyanchama Oanda versus Catholic Diocese of Homa Bay Registered Trustees [2020] eKLR, where the Court of Appeal stated:“It is settled law that where a party claims for both mesne profits and damages for trespass, the court can only grant one and not both. Mesne Profits is defined as the profit of an estate received by a tenant in wrongful possession between the dates when he entered the suit property and when he leaves (See: Black's Law Dictionary 9th edition). Mesne Profits must be pleaded and proved. In the case Peter Mwangi Msuitia & Another v Samow Edin Osman [2014] eKLR, this Court held as follows:“As regards the payment of mesne profit, we think the applicant has an arguable appeal. No specific sum was claimed in the Plaint as mesne profit and it appears to us prima facie, that there was no evidence to support the actual figure awarded...”In the case of Inverugie Investment v Hackett (Lord Lloyds [1995]3 ALL ER 842 it was held thus:“Our understanding of the above persuasive authority is that once the learned Judge made the award under the subhead “mesne profits” there was no justification for him awarding a further Kshs.10 million under the subhead “trespass” since both mean one and the same thing…” 21.Consequently, because the Court has already awarded nominal general damages, the Plaintiff failed to tender any evidence to prove the quantum of mesne profits and did not propose any figure in his submissions, the Court cannot make an arbitrary award. The prayer for mesne profits must therefore be disallowed. Validity of the Restriction by the 2nd Defendant 22.Another issue is whether the restriction registered by the 2nd Defendant is valid. The Plaintiff averred that the restriction was entered on the land register without his knowledge and without any notice being served on him. Section 76(1) of the Land Registration Act, 2012, authorises the Registrar to place a restriction to prevent fraud or improper dealing, or for other sufficient cause. However, this power is subject to Section 77(1) of the Land Registration Act, 2012, which states:“The Registrar shall give notice, in writing, of a restriction to the proprietor affected by the restriction.” 23.In the present case, the 2nd Defendant did not file a defence or appear in court to demonstrate that notice was issued or that there was any lawful basis for the restriction. The restriction was registered unprocedurally and must be cancelled. Under Section 80(1) of the Land Registration Act 2012, the court has the power to order the rectification of the register by directing that any registration be cancelled or amended. Section 80(1) provides:“Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.”The Court is satisfied that the registration of the restriction was unprocedural and made by mistake of law, and therefore orders its cancellation. Disposition 24.For the reasons set out above, this Court finds that the Plaintiff has proved his case against the Defendants on a balance of probabilities. Judgment is hereby entered for the Plaintiff against the Defendants as follows:a)A declaration is hereby made that the Plaintiff is the lawful and registered proprietor of Kisumu Municipality/Block 5/559 and Kisumu Municipality/Block 5/561, and that the 1st Defendant’s entry, the physical excision of 0.025 hectares, and the settlement of market traders thereon constitute unlawful trespass and encroachment.b)An eviction order is hereby issued directing the 1st Defendant to demolish and remove, at its own cost, the concrete fence wall erected on Kisumu Municipality/Block 5/559, together with all structures, buildings, and materials constructed on the suit properties, and to relocate all market traders settled thereon within thirty (60) days of this judgment.c)In default, the Plaintiff shall be at liberty to carry out the eviction or demolition after issuing appropriate notices to all third parties in occupation of the suit lands.d)A permanent injunction is hereby granted, restraining the 1st Defendant, its employees, agents, and/or servants from entering upon, taking possession of, or in any other manner trespassing upon or interfering with the Plaintiff's quiet possession of the suit properties.d)General damages for trespass are hereby awarded to the Plaintiff against the 1st Defendant in the sum of KShs. 500,000/=, with interest at court rates from the date of this judgment until full payment.e)The Plaintiff’s claim for mesne profits is hereby disallowed and dismissed in its entirety for lack of proof.f)An order is hereby issued directing the Land Registrar, Kisumu, to remove the restriction registered against the titles of Kisumu Municipality/Block 5/559 and Kisumu Municipality/Block 5/561, at the instance of the 2nd Defendant.g)A permanent injunction is hereby issued restraining the 2nd Defendant, its employees, agents, and/or servants from placing any further restrictions or in any other manner interfering with the Plaintiff's registered proprietorship of the suit properties.h)The 1st Defendant shall bear the costs of this suit, with interest at court rates from the date of judgment until payment in full. DELIVERED VIRTUALLY, SIGNED, AND DATED THIS 2ND DAY OF JULY 2026.HON. C.C. OLUOCH JUDGEIn the presence of:Faith Court Assistant Parties absent