https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3945

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **MILIMANI ELC 512 OF 2017** **BURTON WACHIRA}** **GATHIMBA N MWANGI}** **JOHN GITONGA}** **Suing as Chairman, Secretary and Treasurer of** **UMOJA II RESIDENTS** **WELFARE ASSOCIATION ...................................................PLAINTIFF** **VERSUS** **BENSON NDIRANGU........................................................1st DEFENDANT** **FRED KINYUA...................................................................2nd DEFENDANT** **BEATRICE KIRARA.........................................................3rd DEFENDANT** **JUDGMENT** 1. Vide a Plaint dated the 27th July 2017, the Plaintiffs seek the following reliefs: 2. **A declaration that the defendants have encroached and illegally developed approximate area of 0.073Ha within the Plaintiff’s land LR No Nairobi/ Umoja Block107/ 1057 (Original Plot No 1113).** 3. **The encroachment, development and construction of the defendants’ storey buildings on LR No Nairobi/ Umoja Block107/ 1057 is illegal and should be demolished.** 4. **The demolition be supervised by licensed auctioneers and or court bailiffs. Officer commanding Buruburu Police Station (O.C.S) and his counterpart in Umoja Police Post do enforce the demolition orders using competent contractors.** 5. **Defendants do meet the costs of demolition and clearing of the debris of their structures built on plaintiff LR No Nairobi/ Umoja Block107/ 1057.** 6. **Defendants do also pay costs of this suit.** 7. It is the Plaintiffs case that in 1985, when Umoja II Estate was being allocated to the residents by the then Nairobi City Council, land parcel No Nairobi/ Umoja Block107/ 1057 (Original Plot No 1113) measuring approximately 0.6104 Ha. (the suit property), was set aside in the subdivision plan as a public utility plot to build a community market. 8. According to the Plaintiffs, the City Council of Nairobi subsequently subdivided the suit property into approximately 300 stalls for use as a community market serving the residents of Umoja II Estate. They aver that some of the stalls were constructed and allocated to traders, while portions of the land were deliberately left vacant to allow for future expansion. The Nairobi City County, they averred has duly recognized the said market and has in several minutes in their social services and housing commitees deliberated and recommended that the same be formalized. 9. The Plaintiff states that the Defendants, as the registered proprietors of LR No. Nairobi/Umoja Block 107/1105, which borders the suit property, have, unbeknownst to them, unlawfully and maliciously encroached onto the suit property by hiving off approximately 0.073 hectares of land, which forms part of the public land comprising the market. The Defendants have since erected multi-storey commercial buildings on the encroached portion, and Nairobi City County has directed the Defendants to demolish the said structures. 10. It is the Plaintiffs’ case that the particulars of the trespass and encroachment include the Defendants knowingly and without any lawful authority or permission entering upon the suit property, and constructing commercial flats thereon notwithstanding that it constitutes market land under the Plaintiffs' custody and management for the benefit of Umoja II Residents. In so occupying, they have deprived the Plaintiffs of revenue that would otherwise have been generated from the market. 11. The Plaintiffs further assert that the Defendants' developments have reduced the size of the suit property, thereby interfering with and denying the Plaintiffs the exclusive use and occupation of the entire parcel of land. 12. They maintain that the Defendants have no right to encroach on public utility land set aside as a community market and which has served the residents of Umoja II for over twenty-five years in sheer disregard to the importance of public land. 13. The 1st and 2nd Defendants did not participate in these proceedings. 14. The 3rd Defendant filed her Defence on 16th May 2024. She denied the allegations contained in the Plaint and averred that she is a stranger to the matters pleaded therein. 15. It was her case vide the Defence that by an agreement for sale dated 27th December 2001, she purchased a portion of the property then known as Nairobi/Block 107/1105 from Daniel Maranga Kamau, Peter Ndungu Ngure and Samuel Weru Maina. According to her, the portion purchased was identified as Plot No. 16 in the Agreement for Sale. 16. She explained that the vendors subsequently caused Nairobi/Block 107/1105 to be subdivided into a total of sixty-four (64) plots, following which Plot No. 16 became known as Nairobi/Block 107/1135. Consequently, she denied that she is the registered proprietor of LR No. Nairobi/Umoja Block 107/1105 and denied that she had encroached upon LR No. Nairobi/Umoja Block 107/1057. 17. The 3rd Defendant admitted having undertaken developments on her property known as LR No. Nairobi/Block 107/1135. However, she denied ever receiving any demolition notice from the Nairobi City Council, encroaching onto the Plaintiffs' parcel of land and specifically denied all the pleaded particulars of trespass and encroachment, putting the Plaintiffs to strict proof thereof. 18. The matter proceeded for hearing on 6th October 2025 with the evidence of PW1 **Burton Wachira,** who at the time of filing the suit was the Chairman of the 1st Plaintiff. He adopted his witness statement dated 2nd August, 2017 as his evidence-in-chief. 19. PW1 testified that the Plaintiffs were allocated the suit property, namely LR No. Nairobi/Umoja Block 107/1057. He maintained that the parcel claimed by the 3rd Defendant forms part of the market. According to him, the encroached portion is clearly identified on the survey map and is marked as measuring approximately 0.073 hectares, having been hived off by the owner of Plot No. 1105. 20. He further testified that the Plaintiffs were never consulted before the alleged encroachment. He referred to minutes of the Nairobi City Council dated 17th July 2007, which, according to him, granted the Plaintiffs permission to construct the market. 21. PW1 further testified that the suit was initially brought against three Defendants. However, the 1st and 2nd Defendants indicated they did not wish to be part of the dispute. He maintained that the 3rd Defendant had been sold the wrong parcel of land and that her title ought to be cancelled. 22. During cross-examination, PW1 testified that, according to the original survey map, the market land is comprised in LR No. Nairobi/Umoja Block 107/1057. He conceded that the Plaintiffs had not measured the length of the common boundary between the adjoining parcels. He further stated that LR No. Nairobi/Umoja Block 107/1105 belonged to the County and had been reserved for a shopping centre. He testified that he did not know Kariti Welfare Society or how it operated. 23. He also acknowledged that when the surveyors visited the site to measure the Plaintiffs' land, the 3rd Defendant was not present. He maintained that all three persons who had initially been sued had encroached onto LR No. Nairobi/Umoja Block 107/1057. He further acknowledged that the 3rd Defendant had her own survey report relating to her parcel of land. 24. PW1 also acknowledged that Document No. 8 in the 3rd Defendant's bundle of documents was a subdivision document indicating that LR No. Nairobi/Block 107/1135 arose from the subdivision of LR No. Nairobi/Block 107/1105. He further stated that he was not aware that the judgment previously entered in the matter had been set aside. 25. Upon re-examination, PW1 testified that the documents produced by the 3rd Defendant referred interchangeably to "Kariti" and "Kerti", and that the Plaintiffs were unable to tell whether the two names referred to the same organization. He further explained that the Plaintiffs had obtained judgment in their favour before the 3rd Defendant applied to be joined to the proceedings. Lastly, he reiterated that the length of the common boundary between the two parcels was not indicated on the Plaintiffs' survey plan. 26. **Beatrice Kerera the 3rd Defendant** testified that she resides in Dallas, Texas, in the United States of America. She adopted her witness statement dated 19th November 2024, as her evidence-in-chief and produced her bundle of documents of the same date as Defence Exhibits 1–13 (DEXH 1–13). 27. In her witness statement, DW1 stated that in the year 2001 she entered into an agreement for sale with Daniel Maranga Kamau, Peter Ndungu Ngure and Samuel Maina Weru, whom she described as trustees of Kariti Umoja II Welfare Society, for the purchase of Plot No. 16. She testified that the vendors were the registered proprietors of the property known as Nairobi/Block 107/1105, from which the portion she purchased was to be excised upon subdivision. 28. She further stated that, pending completion of the subdivision process, she was issued with a share certificate and, upon payment of the full purchase price, took possession of the property in 2003. According to her, she also paid the requisite fees for processing the subdivision of the parcel, which was subsequently identified as Nairobi/Block 107/1135. She testified that, upon payment of the lease fees, she was issued with a letter authorizing the collection of the lease. 29. DW1 further testified that after taking possession of the property, she developed it by constructing rental units, which are presently occupied by tenants and from which she derives rental income. **Submissions** 1. The Plaintiffs filed their written submissions dated 15th January 2025. Counsel submitted that the Plaintiffs had established both ownership and user rights through survey maps, Nairobi City Council minutes, evidence of historical occupation, allocation by the Nairobi City Council, long and uninterrupted possession, and payment of rent and rates which evidence remained uncontroverted throughout the proceedings. Their rights in this regard were as such protected pursuant to **Articles 40** and **62** of the **Constitution** and **Sections 24, 25** and **26** of the **Land Registration Act**. 2. According to counsel, the evidence on record clearly established that the 3rd Defendant had encroached upon the suit property and no contradictory evidence had been adduced challenging this. Accordingly, it was submitted that the alleged encroachment had been proved on a balance of probabilities. 3. With respect to the validity of the 3rd Defendant's title, counsel submitted that the 3rd Defendant failed to produce essential ownership documents, including a title deed, lease, official search, or county approval. It was further argued that the documents relied upon by the 3rd Defendant relate to LR No. Nairobi/Block 107/1135 and not LR No. Nairobi/Umoja Block 107/1057, which is the suit property. 4. Counsel contended that even if LR No. Nairobi/Block 107/1135 exists as a separate parcel, it is not the land in dispute in these proceedings and any claim arising therefrom lies against the 3rd Defendant's vendors rather than the Plaintiffs. Reliance was placed on **Wreck Motors Enterprises v Commissioner of Lands*[1997] KECA 391 (KLR****)*, where it was held that a person without title cannot maintain a claim for trespass against the registered or lawful owner. 5. Counsel addressed the regularity of the judgment delivered in 2022. It was submitted that a judgment is regular where the defendant has been duly served, has entered appearance, but subsequently fails to file a defence or otherwise participate in the proceedings. Counsel argued that the 3rd Defendant was served with summons in 2017, entered appearance through the firm of Moindi & Co. Advocates, but elected not to defend the suit for a period exceeding five years. In those circumstances, it was submitted that the subsequent application seeking to reopen the proceedings amounted to an abuse of the court process. Counsel relied on the decisions in **Shah v Mbogo (1967)***and***Patel v EA Cargo Handling Services Ltd *(1974).*** 6. Counsel urged that the 3rd Defendant had failed to raise any bona fide triable issue its defence being anchored on a different land reference number and on documents originating from vendors who had no recognized interest in the suit property. Accordingly, counsel maintained that the defence was legally untenable. 7. The 3rd Defendant filed written submissions dated 9th February 2026. Counsel submitted that the Plaintiffs, who allege that the 3rd Defendant's parcel, LR No. NAIROBI/Block 107/1135, overlaps or encroaches upon LR No. Nairobi/Umoja Block 107/1057, bears the legal burden of proving those allegations. It was contended that, in the absence of such proof, the Plaintiffs' suit must fail. Reliance was placed on **Sections 107** and **108** of the **Evidence Act**, as well as the decision in **Evans Nyakwana v Cleophas Bwana *[2015] eKLR.*** 8. Counsel further challenged the admissibility and probative value of the survey reports relied upon by the Plaintiffs, submitting that they were not produced through their makers, the surveyors were not called to testify, and no supporting survey data, beacon records, mutation forms, or cadastral overlays were produced. 9. It was further argued that the 2006 County survey report lacked sufficient context, coordinates, and a clear nexus to the registered parcels in dispute. Counsel therefore submitted that, in the absence of a proper cadastral overlay demonstrating that LR No. Nairobi/Block 107/1135 lies within LR No. Nairobi/Umoja Block 107/1057, the Plaintiffs' case rests on bare assertions and untested hearsay, which cannot justify the grant of demolition orders or permanent injunctive relief. 10. Counsel submitted that the 3rd Defendant produced documentary evidence, including the agreement for sale, certificate of lease, subdivision map, share certificate, approvals, receipts, and correspondence with the Commissioner of Lands, establishing a clear chain of ownership from allocation to registration, which the Plaintiffs did not controvert. It was further argued that no fraud, illegality, misrepresentation, or overriding interest under **Section 28** of the **Land Registration Act** had been pleaded or proved against the 3rd Defendant's title. Counsel therefore maintained that, pursuant to **Sections 24** and **25** of the **Land Registration Act**, the 3rd Defendant's title is valid and indefeasible and cannot be defeated by the Plaintiffs' alleged historical occupation or market management arrangements. 11. Addressing the Plaintiffs' reliance on alleged possessory rights, counsel submitted that the Plaintiffs appear to base their claim on historical occupation and management of the market since 1985, as evidenced by council minutes and payment of rates. Counsel argued that, even if such occupation and management were accepted as true, they could at most establish public or municipal use of LR No. Nairobi/Umoja Block 107/1057 as market land, but they cannot confer proprietary rights over the 3rd Defendant's distinct registered parcel. 12. Counsel further submitted that although **Article 62(1)(a)** of the **Constitution** classifies county markets as public land, that constitutional classification does not, of itself, extinguish or override an existing registered private title without due process. It was argued that where there is an alleged conflict between public use of one parcel and a registered private title to another distinct parcel, the law requires clear evidence demonstrating overlap, acquisition, or compulsory acquisition procedures, rather than mere assertions. 13. Finally, on the reliefs sought, counsel submitted that the Plaintiffs seek orders that would culminate in the demolition of the 3rd Defendant's developments. It was argued that demolition is a drastic remedy which can only be granted upon clear and convincing proof of trespass or unlawful occupation. Counsel referred to **Sections 152E** to **152G** of the **Land Act, 2012,** and submitted that those provisions prescribe the procedure for the eviction and demolition of unlawful occupants of private, public, or community land, and presuppose that the person against whom such orders are sought is, in fact, an unlawful occupant. **Analysis and determination** 1. Having considered the pleadings and evidence, the issues that arise for determination is: 2. **Whether the Plaintiffs have established their claims of trespass against the Defendants?** 3. It is the Plaintiffs’ case that they are the registered owners of parcel of land known as Nairobi/ Umoja Block107/ 1057 (Original Plot No 1113), which was set apart by the Nairobi City County as a community market for Umoja II residents. According to the Plaintiffs, the Defendants have however maliciously encroached onto their land and hived off land measuring approximately 0.073 Ha, on which they have constructed storey commercial buildings. 4. In this regard, they have adduced their certificate of registration dated 31st May 1999, the annual returns of the Umoja II residents’ association, a document referred to as a survey map in respect of the area, and Nairobi City Council minutes dated 17th July 2007. In particular, they have highlighted the section of the minutes showing that: “*The Director of Social Services and Housing reported that the area councillor and Umoja II residents Welfare Association had written to the Council seeking formalization of Umoja II Community Market (Block 107/1113) which was now fully developed. He recommended that the market be formalized in consultation with the Director of City Planning. That the recommended of the Director of Social Services and Housing be approved.”* 1. The 1st and 2nd Defendants have not participated in these proceedings. On its part, the 3rd Defendant disputes the Plaintiffs' allegations, maintaining that she is the rightful owner of L.R Nairobi/Block 107/1135, a sub-division of Nairobi/Block 107/1105. She concedes having constructed on her parcel but denies encroaching on the market. 2. She adduced into evidence an agreement for sale with respect to the parcel, payment voucher, certificate of lease for Nairobi/Block 107/1105, sub-division map for Nairobi/Block 107/1135, share certificate, receipts and correspondence in respect of her parcel. 3. It is trite that he who alleges must prove. Under **Sections 107(1)** and **(2)** and **109** of the **Evidence Act,** the burden lies upon the party who seeks the court to believe in the existence of a particular fact or legal right. **Section 112** imposes a further burden upon a party to prove facts that are especially within that party’s own knowledge. 4. In ***Mumbi M'Nabea v David M. Wachira [2016] KECA 773 (KLR)***, the Court of Appeal reiterated that the standard of proof in civil cases is on a balance of probabilities. It was explained that the court must evaluate the oral, documentary and other evidence presented by the parties and determine which version of events is more probable than not. 5. The court has carefully considered this evidence. To begin with, there is little dispute that LR No. Nairobi/Umoja Block 107/1057 was originally plot 1113 and has for many years been utilized as a community market. The real question is whether the Plaintiffs have proved that the 3rd Defendant's parcel unlawfully extends into LR No. Nairobi/Umoja Block 107/1057. 6. Although PW1 maintained that approximately 0.073 hectares had been hived off from the market, there was no direct evidence demonstrating this. He conceded during cross-examination that the Plaintiffs had not measured the common boundary between the suit property and the alleged trespassing parcel. He further acknowledged that the survey exercise relied upon by the Plaintiffs was conducted in the absence of the 3rd Defendant. Notably, PW1 also admitted that the subdivision documents produced by the 3rd Defendant showed that Nairobi/Block 107/1135 originated from the subdivision of Nairobi/Block 107/1105. 7. Conversely, the 3rd Defendant produced documentary evidence tracing her interest in the property from the agreement for sale executed in 2001, the certificate of lease relating to Nairobi/Block 107/1105 issued on the 29th February, 2001, and other documents demonstrating the process through which she acquired and developed the property. Her evidence is consistent with her testimony that she took possession of the property in 2003 and subsequently constructed the developments presently standing thereon. 8. In the absence of clear evidence establishing the common boundary and the alleged encroachment, the court cannot infer trespass. Consequently, the Plaintiffs have failed to prove their claim on a balance of probabilities, and the suit is dismissed. 9. It is trite law that costs follow the event, but in this case the Plaintiffs’ intention was to preserve public land. However, the 3rd Defendant also incurred expenses to defend the suit. In balancing both interests, I award half costs to the 3rd Defendant. **Dated, signed and delivered at Kisii (virtual Court) this 29th of June, 2026** 1. **OMOLLO** **JUDGE**