https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3754

Muchemi (Suing on behalf of the Late Johnstone Muchemi Mugutu) v Kamau & 3 others (Land Case E011 of 2025) [2026] KEELC 3754 (KLR) (Environment and Land) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3754 (KLR) Republic of Kenya In the Environment and Land Court at Naivasha Environment and Land Land Case E011 of 2025 MC Oundo, J June 18, 2026 Between Christine Mumbi Muchemi (Suing on behalf of the Late Johnstone Muchemi Mugutu) Plaintiff and Simon Kihara Kamau 1st Defendant Muiruri Kinyua 2nd Defendant David Ndungú Kamau 3rd Defendant and Kenton Kijabe Co-Operative Society Ltd Interested Party Judgment 1.Vide a Plaint dated 21st August 2013 and amended on 18th March 2020, the Plaintiff herein sought the following orders:i.A declaration that the parcel of land comprised in Title No. Longonot/Kijabe Block 3/1513 (Kenton) is a privately owned land belonging to the Plaintiff.ii.A permanent injunction restraining the Defendants, their servants and/or agents from entering, trespassing and excavating for sand harvesting in the Plaintiff’s parcel No. Longonot/Kijabe Block 3/1313 (Kenton) or in any other way interfering with the suit property.iii.General and exemplary damages for trespass and environmental damage to the Plaintiff’s parcel of land, Title No. Longonot/Kijabe Block 3/1513 (Kenton).iv.Costs of and incidental to the suit.v.Any other relief the Honourable Court deems fit to grant to prevent miscarriage of justice. Loss of use of land.vi.Interest on (iii), (iv) and (v) above at court rates 2.The Defendants filed their Statement of Defence dated 16th January 2026, denying the allegations contained in the Plaint, putting the Plaintiff to strict proof, while arguing that the suit land forms part of land owned by Kenton Kijabe Co-operative Society Limited (under liquidation) and not the Plaintiff. They contended that the suit land had never been arable agricultural land and asserted that:i.The land is predominantly rocky;ii.The land was reserved by Kenton Kijabe Co-operative Society Ltd for community use;iii.The land has historically been utilised for sand harvesting and stone excavation by members of the Society and the surrounding community. 3.They denied having trespassed onto the suit land and instead argued that:i.They have been in lawful, open, and uninterrupted occupation and use of the land for decades;ii.Their occupation and use have been with the authority of Kenton Kijabe Co-operative Society Ltd.iii.The Plaintiff has no lawful proprietary interest capable of grounding a claim in trespass. 4.They contended that the Plaintiff’s alleged title, if any, had been irregularly and/or unlawfully acquired, hence should be cancelled and the suit be dismissed with costs. 5.In a rejoinder, the Plaintiff reiterated the contents of her Amended Plaint and prayed for judgement to be entered against the Defendants and that their Counterclaim be dismissed with costs. 6.Whereas the Interested Party entered an appearance, it did not file any Defence. 7.The parties having complied with the pretrial directions, the matter proceeded for hearing on 3rd March 2026, wherein Christine Mumbi Muchimi, was sworn and stated in the English language that she lived in Naivasha and was a farmer. She testified that her late father, Johnstone Muchemi, passed away in 2017 and that she was testifying on behalf of his estate as his representative. She stated that she had obtained letters of administration from the Naivasha Magistrate's Court in Succession Cause No. 90 of 2018 and produced a copy as Pf exh 1. 8.She further stated that she had filed a witness statement dated 18th March 2020, which she formally adopted as her evidence-in-chief. 9.PW1 testified that her father’s parcel of land was known as Longonot Kijabe Block 3/15113 (Kencon) under the Kenton Co-operative. She recalled that while she was in high school, she heard her father state that there were people who had trespassed on the land. According to the witness, her father later shared with her that trespassers were entering the land and digging holes without his permission. 10.She stated that over time, her father had approached local authorities, including the District Commissioner (DC) and the police, to compel the trespassers to leave, and because his verbal attempts failed, he wrote a demand letter dated 2nd June 2013 to sue three Defendants, which she produced as Pf exh 2. 11.The witness testified that the Defendants refused to vacate the property and continued to dig into the land, prompting her father to file the lawsuit. She stated that her father had been issued a title deed, a copy of which she produced as Pf exh 3, noting that she had misplaced the original. To support her claim, she produced a letter from the Ministry of Co-operative Development and Marketing dated 8th July 2013, which recognised her father as the owner of the land, and produced it as Pf exh 4. 12.Additionally, she produced an official land search certificate conducted on 25th March 2013, confirming her father’s ownership, as Pf exh 5. She also produced a letter dated 11th July 2013 from the Office of the President, signed by the Chief of Longonot Location, indicating that her father was a member of Kenton Farmers Co-operative Society and the owner of the suit land, which letter was produced as Pf exh 6. To demonstrate the environmental degradation, she produced as Pf exh 7 (a-e) five photographs showing gullies left on the property. 13.PW1 admitted that she did not personally know the Defendants, asserting that she had produced several documents proving her father had acquired the land legally, noting that if the acquisition had been illegal, proper legal procedures should have been followed to challenge the title in court, which the Defendants failed to do. She denied the defence’s claim that the land had been used for sand and stone excavation since time immemorial, clarifying that her father was a farmer who had bought the property for farming. She explained that the family could no longer farm because the massive valleys and gullies had rendered the property inaccessible. 14.She alleged that the sand was being sold for the Defendants' economic gain without any benefit to her family, and emphasized that no consent had ever been given to the Defendants to harvest sand or occupy the land. She noted that the Defendants had failed to present any documentation proving they had a title or a right of access, meaning her father's title remained unchallenged. Consequently, she prayed that the Court compel the Defendants to respect the private property, cease excavation, and award the Plaintiff damages, costs, mesne profits, and any other appropriate relief. 15.During cross-examination by the Defendants' counsel, PW1 clarified that her father had acquired the land from the Kenton Kijabe Co-operative Society. While she stated that the official letters indicated when the land was acquired, she admitted she did not know the exact date because she was young at the time. She mentioned that a sale agreement existed, but acknowledged that it was not among the documents she had produced in court. 16.The witness reiterated that she had never personally seen the Defendants and was only standing in for her late father. She stated that she could not specify the exact date on which the Defendants invaded the land, noting only that the gullies were several years old and that she could not approximate their age. She also admitted that she had never personally witnessed the Defendants excavating the property. She testified that neither she nor her father had ever settled on the land due to the invasion, and confirmed that no structures had been built on it. She estimated the land to be approximately 80 acres and confirmed she had walked around it. She acknowledged that communities lived around the property but stated she did not know if they were members of the Kenton Kijabe Co-operative Society, though she confirmed her father had been a member. She admitted she had not brought the Co-operative's register to court. She further stated that, although her father had repeatedly warned the Defendants to leave and stop their criminal activities, she had not obtained an Occurrence Book (OB) abstract from the police. 17.When referred to Pf exh 2, the witness conceded that while it was a letter addressed to the Defendants, she did not know if they actually received it, and noted that it did not contain the Defendants' personal details. 18.Regarding Pf exh 6, she observed that while most of its contents were typed, the date was handwritten, which she assumed had been inserted by the District Officer. 19.When questioned on Pf exh 4, PW1 acknowledged that the letter was written by a liquidator, confirming that Kenton Co-operative was under liquidation. When pressed on paragraph 2 of the same letter, she admitted that specific requirements had to be met, including a sale agreement, and conceded that she had not produced a clearance certificate. 20.Finally, when cross-examined on the photographs produced as Pf exh 7, the witness admitted that she did not take the photos, did not know when they were taken, and did not know who took them. She acknowledged that the photographs only captured gullies and did not show any individuals. She maintained that the sand and stones were being sold but admitted she had no direct evidence linking the Defendants to the sales or proving they profited from the excavation, though she maintained they were brought to court for a reason. 21.During re-examination by her counsel, PW1 pointed out that the statement filed by the third Defendant, which admitted that the suit land was used for sand harvesting, served as confirmation that a trespass had indeed occurred. The Plaintiff closed its case. 22.The Defence case commenced with the testimony of Muiruri Kinyua, the 2nd Defendant herein, who proceeded to state that he was 53 years old, a casual worker who dug for people as well as on his own land, and resided in Murungaru, Kinangop. He stated that he had recorded a statement with his advocate on 16th January 2016, which he formally prayed to be adopted as his evidence-in-chief. 23.The witness testified that the case against him was one of trespass, but he contended that the suit land belonged to Kenton. He stated that his late father had been a member of Kenton and that they used to assist him on the land, where sand harvesting took place. He stated that they had entered onto that land in 1992 and had harvested sand throughout that period. He further explained that upon becoming adults, they left home approximately 20 years ago. He stated that when he was summoned to the court in Nakuru, he complied, but expressed shock at the complaints leveled against him, maintaining that he had not trespassed on the land. 24.During cross-examination by the Plaintiff’s counsel, the witness confirmed his identity and stated that although he had instructed his advocate to defend him, he did not know what a legal ‘’defense’’ actually meant. He stated that the land was rocky and asserted that the Plaintiff owned no land in Kenton. Crucially, the witness admitted he had never approached any other court to declare the Plaintiff’s title fraudulent. He further stated that the suit land continued to be excavated. He explained that although he had moved away from the land, he still visited his people regularly, noting that his last visit was two months prior, and confirmed that he still observed people harvesting sand on the property during those visits. 25.During re-examination, the witness stated that even while they were present in court, sand harvesting was actively continuing on the suit land. (The Court noted that the witness appeared truthful). 26.David Ndungu Kamau, who testified as DW2, was sworn and stated in the Kiswahili language that he was born in 1966 and currently resided with his family in Narok. He identified himself as the 3rd Defendant in the case. He testified that his father owned the land on which the Plaintiff’s land was located, describing the area as the “Rocky Area.” He stated that when he was young, he used to assist his father in harvesting sand on the property, but upon reaching adulthood, he relocated to Narok. He explained that because he owned plots in the surrounding area, he still visited to look after his property, despite having moved away approximately 30 years ago. 27.In response to questions from the Court, the witness stated that he did not know the Plaintiff. He explained that he was familiar with the suit land because it was known as the Rocky Area. He testified that their parents had collectively refused to have that specific portion of land subdivided because it was full of stones, maintaining that the land belonged to the Kenton Society, of which their parents were members. 28.Under cross-examination by the Plaintiff’s counsel, the witness stated that he could not bring his father’s title deed to court. He acknowledged that he had appeared before the Nakuru Court but admitted he had never filed a lawsuit alleging that the Plaintiff’s title was fraudulent. He reiterated that he did not know the Plaintiff and explained that he had simply come to court after receiving the legal papers. He admitted that he had not seen the Plaintiff’s title deed. Finally, he claimed that it was not true that members of the society were still harvesting sand on the suit land. 29.During re-examination, the witness reversed his previous statement and explicitly confirmed that up to the present date, sand harvesting still continued on the suit land.The defence then closed its case. 30.At the close of the Defendants’ case, the parties were directed to file written submissions which I shall summarize as herein under: Plaintiff’s Submissions. 31.Upon summarizing the factual background of the matter and reiterating the evidence adduced in court in detail, the Plaintiff in her submissions dated 24th March 2026 emphasized that whereas she had produced all the documents to support her case, including the title deed and pictures evidencing the illegal acts of the Defendants, the said Defendants did not produce any documents to support their claim on the suit property. That indeed, whilst the Defendants had alleged in their Defence that the title to the suit property had been obtained fraudulently, they had not challenged the same before any court of law. She thus contended that she had proved that the Defendants had trespassed on the suit property and that her deceased father is the registered proprietor of all that piece of land known as Longonot/Kijabe Block 3/1513 (Kenton) (the suit land herein) measuring 35.75 Hectares or thereabouts. 32.She reiterated how the Defendants had repeatedly invaded the suit land, her efforts to restrain them, including through the Local Provincial administration office and the Chief Longonot Location, who had all warned the Defendants to stop the said invasion to no avail. She also reiterated the particulars of trespass by the Defendants and the prayers sought as listed in her Amended Plaint before relying in the decided case of Karunga v Wangunyu [2023] KEELC 17367 (KLR) where the court had restated the holding in the case of WAAS Enterprises Limited v City Council of Nairobi & Another [2014] eKLR that had emphasized the import and tenor of the certificate of ownership and confirmed that the bearer of such a certificate deserves the protection until and unless the same is cancelled. She thus argued that, in the present case, the Plaintiff is vested with rights that must be protected by the Honourable Court, based on the certificate of title, since the Defendants had not produced any evidence to challenge the said certificate of title. She further relied on the Court of Appeal’s decision in Kenya National Highway Authority v Shalien Masood Mughal & 5 Others [2017] KECA 465 (KLR) on the principle of the sanctity of title. Defendants’ Submissions. 33.The Defendants also summarized the factual background of the matter before basing their submissions, dated 16th March 2026, on the following issues for determination:i.Whether the Plaintiff has proved lawful ownership of the suit land.ii.Whether the Plaintiff has proved membership in the Co-operative.iii.Whether the Plaintiff has proved that the Defendants trespassed on the suit land.iv.Whether the Plaintiff is entitled to the reliefs sought in the Plaint. 34.The Defendants submitted that the Plaintiff failed to prove lawful ownership of Longonot/Kijabe Block 3/1513. They argued that while the Plaintiff's case relies heavily on the production of a title deed, she failed to establish the root of that title. They relied on the statutory burden of proof under Sections 107 and 109 of the Evidence Act to argue that the burden of proof rests entirely on the party asserting a right. In land ownership disputes, this standard was on a balance of probabilities, and the mere production of a title deed was therefore not conclusive if the chain of legal acquisition is unproven. 35.That the Plaintiff had failed to meet statutory formalities because while property rights are protected under Article 40 of the Constitution, they are subject to statutory compliance under the Land Registration Act and the Land Control Act. To prove lawful ownership, a party must show a valid title, actual/constructive possession, and compliance with statutory formalities (e.g., transfer instruments, Land Control Board (LCB) consent, stamp duty payments, and a liquidation clearance certificate). They pointed out that none of these secondary documents had been produced by the Plaintiff. 36.They argued that PW1’s own testimony was an admission that she had never personally occupied the land, never seen the Defendants harvesting sand, and never witnessed any sales, which confirmed that the Plaintiff lacked both actual and constructive possession. 37.They relied on the decision in Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR) to emphasize that it is settled law in Kenya that where the root of a title is challenged, the registered proprietor cannot simply rely on the certificate of title; they must actively demonstrate the legality and procedural correctness of the process through which the title was acquired. 38.They submitted that the Plaintiff had failed to prove that her late father was ever a member of the Kenton Kijabe Co-operative Society Limited or held a lawful interest via the society. That membership in a co-operative was a formal legal status governed by Section 14 of the Co-operative Societies Act, which required meeting specific admission rules, paying entrance fees/share capital, and being formally enrolled in the society's membership register. Mere assertions or letters from government offices were insufficient. 39.The Defendants then submitted that the Plaintiff failed to produce any membership register extracts, share certificates, or payment receipts. Furthermore, under Section 39 of the Co-operative Societies Act, shares or interests cannot be transferred without the formal approval of management and proper documentation, none of which the Plaintiff presented. Conversely, their testimony had been that the land was owned collectively by the Co-operative because their parents (who were original members) refused to subdivide it due to its rocky, non-arable nature. 40.They argued that the Plaintiff failed to prove actionable trespass, which required proving that a person intentionally entered or interfered with land in the lawful possession of another without justification. That PW1 explicitly admitted during cross-examination that she had never personally seen the Defendants on the land harvesting or selling sand. 41.They argued that the photographs produced as Pf exh 7(a-e) had zero probative value. They were not accompanied by an electronic infrastructure certificate identifying the device or describing its manner of production, directly violating Sections 106A and 106B of the Evidence Act. Furthermore, the photographs showed empty gullies and did not capture any individuals. 42.Since they had moved away from the area over 20 years ago, their occasional, limited visits to family nearby could not legally amount to trespass, especially since the Plaintiff never established actual occupation or control of the 80 acres. They cited the decision in Haji & another v Pamba & 4 others (sic) to reinforce that the burden lies squarely on the Plaintiff to demonstrate that the specific Defendants named in the suit entered or interfered with the property without permission. Because no credible evidence connected them to the sand harvesting, the claim of trespass and speculative agricultural damages must fail. 43.Finally, the Defendants submitted that because the Plaintiff failed to establish the foundational legal pillars of her suit, namely, the root of her title, her father's co-operative membership, and actionable trespass, she was completely barred from receiving any of the reliefs sought in the Plaint. They cited the case of Mrao Ltd v First African Bank of Kenya Ltd & 2 others (sic) to argue that a party must first establish a clear, recognizable, and prima facie legal right before a court can exercise its jurisdiction to grant protective, injunctive, or declaratory orders. Their conclusion was that the Plaintiff failed to prove her case on a balance of probabilities, and urged the Court to dismiss the suit in its entirety with costs. Determination. 44.I have considered the evidence adduced, the written submissions by learned Counsel, the authorities cited and the applicable law. Briefly, the Plaintiffs' case, while acting as the administrator of her late father’s estate, was that he was the absolute owner of land known as Longonot/Kijabe Block 3/1513 (Kenton), measuring approximately 35.75 Hectares (approx. 80 acres), land which the Defendants have unlawfully invaded without her family's consent, to harvest sand and excavate stones for their own economic gain. 45.To prove her case, the Plaintiff relied on the principle of the sanctity of title, producing a certificate of title deed and an official land search confirming her father as the registered owner, supporting letters from the Ministry of Co-operative Development and the local administration (the Chief) confirming her father's lawful membership in the Kenton Co-operative Society and his allocation of the land. 46.She argued that the Defendants have never filed a formal lawsuit to challenge or cancel this title in a court of law; the title remains valid, unchallenged, and deserving of absolute court protection. She contended that the Defendants’ illegal, continuous sand harvesting had caused massive environmental damage, leaving behind deep gullies and valleys. As a result, the family has been entirely deprived of the use of their land, rendering the property inaccessible and unusable for its intended purpose of farming and sought relief in her Plaint. 47.The Defendants' case, on the other hand, rested on a complete denial of trespass and a direct challenge to the validity of the Plaintiff's title, contending that the Plaintiff did not lawfully own the land. They argued that under Kenyan law, a title deed was not absolute if its acquisition was tainted. 48.They asserted that the Plaintiff failed to produce the foundational documents required to prove a legal transfer, such as a sale agreement, Land Control Board (LCB) consent, share certificates, or a formal clearance certificate from the liquidator of the Kenton Kijabe Co-operative Society Limited, maintaining that the land was never legally subdivided or allocated to the Plaintiff's father. 49.That the land was locally known as the ‘’Rocky Area’’ and was a non-arable, stony land that was deliberately never subdivided and belonged collectively to the Kenton Co-operative Society (now in liquidation), of which their late parents were original members. They claimed that the society had historically reserved this rocky area for communal use, specifically for sand harvesting and stone excavation. 50.They denied having trespassed on the suit land, arguing that they have been in open, uninterrupted, and lawful occupation of the land for decades, tracing their entry back to 1992, where, as children, they lawfully assisted their parents in harvesting sand with the full authority of the Co-operative Society until they reached adulthood and moved away from the area decades ago (one 20 years ago to Kinangop, the other 30 years ago to Narok). That their rare, occasional visits to family in the area could not therefore legally constitute trespass, especially since they did not reside on or actively control the property. 51.Based on the above summary, I find the issues arising for determination as being:i.Whether the Plaintiff holds a valid and lawful Title to the suit land.ii.Whether the suit property is Private Land or Community Land reserved for the Co-operative Society.iii.Whether the Defendants have committed acts of Trespass on the suit land.iv.Whether the Plaintiff is entitled to the reliefs sought. 52.On the first issue for determination as to whether the Plaintiff holds a valid and lawful Title to the suit land, Section 26 (1) of the Land Registration Act of 2012, which provides as follows: -“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon 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, easements, 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; orb.Where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme. 53.The Plaintiff produced a Certificate of Title Deed as Pf exh 3 (and an official land search certificate dated 25th March 2013 as Pf exh 5. Under Section 26(1) of the Land Registration Act, a certificate of title issued by the Registrar is taken as prima facie evidence that the person named is the absolute and indefeasible owner of the land and enjoys deep legal protection to ensure predictability in property ownership, it is therefore presumed that the Plaintiff's late father is the lawful owner. 54.It was held in the case of Republic vs Senior Registrar of Titles Ex parte Brookside Court Limited (2012) eKLR, that statutorily, the sanctity of title to land is assured and protected under Sections 24, 25 and 26 of the Land Registration Act. The court is also aware of the attribute of Section 26(1) (a) and (b) of the Land Registration Act, which provides that a Title to land shall not be absolute and indefeasible because it can be impeached where it is shown to have been obtained through fraud, misrepresentation, illegally, unprocedurally, or through a corrupt scheme. 55.Once the Plaintiff presented a registered title deed, the evidential burden shifted squarely to the Defendants to prove their claim that the title was obtained through fraud, misrepresentation, illegally, unprocedurally, or through a corrupt scheme because under Sections 107 and 109 of the Evidence Act, the party who alleges a fact must prove it. 56.Although the Defendants argued that the land belongs to the Kenton Kijabe Co-operative Society, which only entered an appearance as an Interested Party but did not file any Defence, the same was never meant for subdivision. However, both Defendants (DW1 and DW2) admitted during cross-examination that they had never filed any legal proceedings to challenge or cancel the Plaintiff's title as being fraudulent. 57.In R.G Patel vs Lalji Makanji 1957 E.A 314, the Court of Appeal stated as follows:“Allegations of fraud must be strictly proved although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required”. 58.As can be seen, allegations of fraud or irregular land allocation must be specifically pleaded and proved to a standard higher than a regular balance of probabilities. By failing to bring independent evidence of fraud, the Defendants’ challenge to the title was legally weakened. 59.While the Defendants failed to prove fraud, they raised a valid legal critique regarding the root of the title, stating that the Plaintiff could not just simply hide behind the title deed but ought to have demonstrated that her father had a clean chain of legal acquisition. 60.Indeed, PW1 admitted that while a sale agreement existed between her father and the Co-operative Society, it was not produced in court and neither did she produce share certificates or official co-operative registry extracts to prove her father's membership under Section 14 of the Co-operative Societies Act. Further, the land being agricultural land, no consent from the Land Control Board was also obtained. To bridge these evidentiary gaps, the Plaintiff relied on administrative documentation where she produced a letter from the Ministry of Co-operative Development, as Pf exh 4, indicating that a title was issued after a clearance certificate was obtained from the liquidator, thus recognizing her father's ownership, and a letter from the Office of the President via the Chief of Longonot Location as Pf exh 6, confirming her father was a member of the Kenton Farmers Co-operative Society and the rightful owner of the suit land. 61.While the Defendants dismissed these as mere letters, I find that these were official communications from government bodies acting in their official capacity, carry weight unless they are proven to be forgeries. No evidence was adduced by the Defendants to the contrary. The letters showed that multiple arms of government formally recognised the Plaintiff’s late father's ownership as far back as 2013. 62.In Arthi Highway Developers Ltd vs West End Buthery Ltd & Others C.A Civil Appeal No. 246 of 2013 [2015] eKLR, the Court of Appeal cited the following passage from Bullen & Leake precedents pleadings 13th edition at Page 427:“The statement of the claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of ….. It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved …… General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any Court ought to take notice”. 63.It is to this end that I find that on a balance of probabilities, the Plaintiff holds a valid and lawful title to the suit land because while the Plaintiff’s case suffered from minor procedural omissions of failing to attach the original sale agreement or the liquidator's clearance certificate, the presence of a registered title deed coupled with corroborating letters from government ministries outweighed the Defendants' purely verbal claims. 64.Because a title deed can only be defeated by clear proof of fraud or illegality, and because the Defendants failed to produce any documentary evidence or file a counterclaim to impeach the title, the statutory protection of the sanctity of title under Section 26 of the Land Registration Act safely guards the Plaintiff's ownership. 65.On the second issue for determination as to whether the suit property is Private Land or Community Land reserved for the Co-operative Society. Article 61 of the Constitution of Kenya provides as follows:(1)All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals.(2)Land in Kenya is classified as public, community or private. 66.The Defendants argue that the suit property was reserved for community use, specifically for communal sand harvesting and stone excavation. However, under the law, land owned by a private commercial entity, such as a Co-operative Society, is not public or community land. A Co-operative Society is a private corporate body. Accordingly, any land belonging to the Kenton Kijabe Co-operative Society Limited was fundamentally private land, held corporately for its members and intended for subdivision and allocation to individuals. The private legal status of such land did not change merely because a large number of members of society or neighbouring communities had encroached on it for historical grazing or the extraction of raw materials (such as sand or stone). It remained private land subject to statutory protections. 67.For land to transition to Community Land, it ought to meet the strict constitutional definition set out in Article 63 of the Constitution, which provides as follows:‘’Community land shall vest in and be held by communities identified on the basis of ethnicity, culture or similar community of interest.(2)Community land consists of—(a)land lawfully registered in the name of group representatives under the provisions of any law;(b)land lawfully transferred to a specific community by any process of law;(c)any other land declared to be community land by an Act of Parliament; and(d)land that is—(i)lawfully held, managed or used by specific communities as community forests, grazing areas or shrines;(ii)ancestral lands and lands traditionally occupied by hunter-gatherer communities; or(iii)lawfully held as trust land by the county governments,but not including any public land held in trust by the county government under Article 62(2).’’ 68.The core of the dispute lies in the difference between how the land was legally registered (de jure) versus how it was physically used by the local residents (de facto). The Plaintiff produced a registered Certificate of Title Deed and an official land search from the land registry. As seen earlier, Section 24 of the Land Registration Act vests in the registered proprietor absolute and exclusive ownership of the land, completely moving it from corporate society ownership to individual private ownership. 69.The Defendants testified that the area was known locally as the ‘’Rocky Area’’ and that their parents, as original members of the society, had collectively refused to subdivide it because it was too stony for farming. They argued this refusal turned the parcel into an un-subdividable communal asset for the surrounding community. A collective verbal agreement or custom among some members cannot override formal registration. For land to be legally recognized as community land under the Community Land Act, it must be formally registered as such in the community land register. The Defendants did not produce registration certificates, maps, or gazette notices showing that the ‘’Rocky Area’’ was legally set aside as communal or public land. 70.The fact that Kenton Kijabe Co-operative Society was under liquidation, as confirmed by both parties, the liquidator’s primary statutory duty under the Co-operative Societies Act is to wind up its affairs, including recovering assets, paying off debts, and distributing or formalizing the transfer of land parcels to individual members who have cleared their dues. The letter from the Ministry of Co-operative Development and Marketing, herein produced as Pf exh 4, confirmed that the government recognised the late Johnstone Muchemi as the legitimate owner of the land following the society's processes. 71.The Defendants’ admission that sand harvesting has been continuous and is still going on to date, without a legally recognized easement or public right-of-way formally registered against the Plaintiff's title, can therefore be categorized as a continuous, cumulative act of trespass rather than a valid claim to community land since the suit property is legally private land belonging to the Plaintiff's father's estate, not community land. 72.On the third issue for determination as to whether the Defendants have committed acts of Trespass on the suit land. Trespass has been defined by the 10th Edition of Black’s Law Dictionary as;“an unlawful act committed against the person or property of another; especially wrongful entry on another’s real property.’’ 73.Section 3 (1) of the Trespass Act, also defines trespass as follows;“Any person who without reasonable 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.”(Emphasis mine) 74.The Court in John Kiragu Kimani vs Rural Electrification Authority [2018] eKLR also, in defining trespass, relied on Clark & Lindsell on Torts, 18th Edition, on page 923, which defines trespass as;‘any unjustifiable intrusion by one person upon the land in possession of another. The onus is on the Plaintiff to proof that the Defendant invaded his land without any justifiable reason’. 75.The Defendants argued that the Plaintiff cannot maintain an action for trespass because her witness, PW1, admitted that the family had never lived on, farmed, or physically occupied the 80-acre property, and therefore she did not demonstrate an active, protectable interest. However, a registered owner who holds a valid title deed enjoys constructive possession of the land by virtue of that legal title, provided no other person has established an overriding or adverse legal right over it. Since the Plaintiff had established a prima facie valid title, she had the immediate legal right to enter and utilise the land. Therefore, she has the necessary locus standi to sue anyone who entered the land without her consent. 76.To succeed in a defence against trespass, a party must show that they never entered the land or had express permission to be there. In the present case, however, both Defendants admitted entering the land to harvest sand. Although they argued that their entry was authorised by the Kenton Kijabe Co-operative Society, they produced no licence, permit, or other documentary authorisation from the society or its liquidator to extract resources from this specific parcel. Unauthorised extraction of sand and stone from private land, even if done under a mistaken belief in a communal right, constitutes a textbook act of trespass. 77.To escape liability, both Defendants argued that when they reached adulthood, they had moved away from the area and therefore their temporary, occasional visits to family could not amount to an ongoing trespass although they confirmed that sand harvesting on the suit land was still actively continuing to date. 78.In land jurisprudence, trespass can be continuing if a party sets in motion an illegal activity, leaves tools, creates deep excavations, or continues to access a property periodically without a license, the trespass does not cease simply because they sleep elsewhere. 79.The Court of Appeal in Muthiora v Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara - Deceased) [2022] KECA 28 (KLR) held that:“The time of accrual of a cause of action is a question of fact (see Black’s Law dictionary at Page 23). However, in a case of a continuing trespass, a trespass consists of a series of acts done on consecutive days that are of the same nature and that are renewed or continued from day to day so that the acts in the aggregate form one indivisible harm.’’ 80.By their own admission, the Defendants entered the property, treated it as an unregulated communal quarry, and extracted resources for economic gain without the express consent of the registered owner. Their defence that they moved away decades ago is heavily undermined by their admissions that excavation continues to this day and that they still frequent the area. Because they failed to produce any written authorization, lease, or license from the Co-operative Society to counter the Plaintiff's registered title, their historical and ongoing presence on the property constitutes a civil trespass. I find that on a balance of probabilities, they have committed acts of trespass on the suit land. 81.Lastly, to determine whether the Plaintiff is entitled to the reliefs sought, the Court must assess if she has successfully established her claims of ownership and trespass on a balance of probabilities, and whether the requested remedies meet the established thresholds. Having produced a valid Certificate of Title and an official search, and since the Defendants failed to file a counterclaim or present any documentary evidence proving fraud or illegality to impeach this title, the Plaintiff is fully entitled to enjoy the presumption of absolute ownership under Section 26(1) of the Land Registration Act. 82.The Plaintiff seeks a permanent injunction to restrain the Defendants from entering, trespassing, or harvesting sand on the property. 83.In Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR, it was held that:“A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected.” 84.A permanent injunction is granted when a Plaintiff demonstrates a clear legal right, an actual or threatened violation of that right, and a high probability that irreparable injury will occur if the injunction is denied. In this case, both the Defendants admitted during re-examination that sand harvesting on the suit land continues to this day. Because the trespass is ongoing and threatens to permanently destroy the land's topology, damages alone cannot suffice. The Plaintiff is fully entitled to a permanent injunction to protect her property from further environmental degradation. 85.The Plaintiff further seeks general and exemplary damages for trespass and environmental damage to her parcel of land. It is trite that once a trespass is established, general damages are awarded as a matter of course because trespass is actionable per se (without proof of specific financial loss). The Defendants directly admitted to accessing the land and harvesting sand without the owner's consent. 86.The courts have held that trespass to land is actionable per se, meaning that once a Plaintiff proves that their property rights have been violated by an unauthorised entry, they are entitled to general damages as a matter of course, even if they cannot prove specific financial loss. The court of Appeal in Ng'ang'a v Kenya Power and Lighting Company [2026] KECA 648 (KLR) held as follows:“With due respect, we do not find any legal or justifiable basis why the learned judge referred to mesne profits when the trial court categorically awarded general damages. We therefore find that the appellant was correctly entitled to an award of general damages for trespass. We reiterate the ruminations of this Court in Wanyeki vs. Bhudiya & another [2023] KECA 87 (KLR) that held as follows on damages for trespass:"It is trite law that trespass to land is actionable per se. Once it is proved the appellant is under no duty to prove that he suffered any specific damage or loss. In other words, where trespass is proved as in this case, the affected party such as the appellant need not prove that he suffered any damage or loss as a result so as to be awarded damages. The court under the circumstances is bound to award damages depending on the facts of each case. See Simiyu vs Sinino. [1985] eKLR." 87.In Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] KECA 536 (KLR), the Court of Appeal held as follows;“The above decision was followed by this Court’s decision in the case of Kenya Hotel Proprietors Ltd v Willesden Investments Ltd [2009] KLR 126.In the instant appeal, the trial court made a finding that the appellant was a trespasser from the time the respondent rescinded the agreement. As such the respondent was entitled to compensation for the period the appellant was in occupation of the suit land. The respondent sought both mesne profits and damages for trespass. The law is that trespass to land is actionable per se (without proof of any damage). In Park Towers Ltd v John Mithamo Njika & 7 others [2014] eKLR it was stated:“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 damages. The court in such circumstances is under a duty to assess the damages awardable depending on the unique facts and circumstances of each case...”Therefore, granted that trespass to land is actionable per se, and indeed no proof of damage is necessary for the court to award general damages. We note that the respondent did not claim any amount to guide the court in assessing general damages for trespass. The court would have expected the respondent to obtain the actual benefits accrued by the appellant from the suit property for the duration of the trespass. It is common ground that the appellant had erected a mansion on the suit property. Such information represents the opportunity of cost of the deprivation of the use of land by the appellant’s continued occupation.In tort damages are awarded as a way to compensate a party for the loss he or she had incurred due to a wrongful action on the part of the other party. The damages so awarded are intended to return the party back to the position he or she was in before the wrongful act was committed. Halsbury’s Laws of England 4th Edition Volume 45 para 26 1503 provides as follows on computation of damages in an action for trespass:a)If the Plaintiff proves the trespass, he is entitled to recover nominal damages even if he has not suffered any actual lossb)If the trespass has caused the Plaintiff actual damage, he is entitled to receive such amount as will compensate him for his lossc)Where the Defendant has made use of the Plaintiff’s land, the Plaintiff is entitled to receive by way of damages such an amount as would reasonably be paid for that used)Where there is an oppressive, arbitrary or unconstitutional trespass by a Government official or where the Defendant cynically disregards the rights of the Plaintiff in the land with the object of making a gain by his unlawful conduct, damages may be awardede)If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, general damages may be increased” Emphasis ours.Similarly, in the case of Duncan Ndegwa v Kenya Pipeline Limited HCC No. 2577 of 1990 the court held that:“The general principles as regards the measure of damages to be awarded in cases of trespass to land where damage has been occasioned to the land is the amount of diminution in value or the cost of reinstatement of the land. The overriding principles is to put the claimant in the position he was prior to the infliction of the harm.” 88.From the binding holding herein above and the definition of trespass, the court finds that indeed the Defendants’ action of harvesting sand on the Plaintiff’s suit parcel of land constituted trespass. It is trite law that an act of trespass is actionable per se by an award of general damages once it is established. However, in this case, the Plaintiff has not adduced any evidence regarding the state or value of her property before and after the trespass. Since she is entitled to general damages as a matter of course, this Court awards a global sum of Kshs 1,500,000 as general damages for trespass and environmental damage.1.The Plaintiff has also sought exemplary damage, which in a sense represents an importation of a criminal law principle into civil law. That is the principle of punishment because exemplary damages are awarded to serve the societal purpose of punishing the wrongdoer and deterring him/her and others from similar conduct in the future. While it is true that the Defendants’ actions caused massive gullies, their testimony indicates they acted under a mistaken, generational belief that the land was communal. Unless the Plaintiff could prove malicious intent rather than a structural dispute over a liquidated cooperative's assets, I decline to award exemplary damages. 89.In the end, the Plaintiff’s case succeeds on a balance of probabilities and judgment for the Plaintiff is herein entered against the 2nd and 3rd Defendants jointly and severally as follows:i.A declaration is hereby issued that the parcel of land comprised in Title No. Longonot/Kijabe Block 3/1513 (Kenton) is a privately owned land belonging exclusively to the Estate of Johnstone Muchemi (Deceased).ii.A permanent injunction is hereby granted restraining the Defendants, their servants, and/or their agents from entering, trespassing, and excavating for sand harvesting in the Plaintiff’s parcel of land or in any other way interfering with the suit property.iii.The Defendants shall pay the Plaintiff General Damages for trespass and environmental degradation assessed at a global sum of Kshs 1,500,000/=.iv.The Plaintiff shall have costs of the suit.v.Interest on clause (iii) above to be computed after 30 days from the date of delivery of this judgment. DATED AND DELIVERED VIA TEAMS MICROSOFT AT NAIVASHA THIS 18TH DAY OF JUNE 2026.M.C. OUNDOENVIRONMENT & LAND COURT– JUDGE