Daimler Enterprises Ltd v Bakhresa Food Products (K) Ltd & another (Environment and Land Case 495 of 2015) [2026] KEELC 3992 (KLR) (29 June 2026) (Judgment)

Daimler Enterprises Ltd v Bakhresa Food Products (K) Ltd & another (Environment and Land Case 495 of 2015) [2026] KEELC 3992 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELC 3992 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 495 of 2015 MN Kullow, J June 29, 2026 Between Daimler Enterprises Limited Plaintiff and Bakhresa Food Products (K) Limited 1st Defendant Bakhresa Grain Milling (K) Limited 2nd Defendant Judgment Introduction 1.The Plaintiff commenced these proceedings by way of a Plaint dated 5th June 2015 against the Defendant seeking the following reliefs:I.A declaration that the Plaintiff has the right to exclusive possession of L.R. No. 15100 Nairobi.II.A declaration that the presence of the defendant and its agents constitutes trespass to land.III.A permanent injunction restraining the Defendant, its supporters, servants and/or agents from entering into or remaining and or being on L.R. No. 15100 Nairobi.IV.A permanent injunction restraining the Defendant, its supporters, servants and/or agents from interfering with the Plaintiff's quiet enjoyment of the suit property.V.An order that the police at Embakasi Police Station do protect the suit property against the trespassers.VI.Costs of the suit.VII.Any other relief the Court deems fit to grant. 2.The Plaintiff's case is that it is the registered proprietor of the leasehold interest comprised in L.R. No. 15100 Nairobi (hereinafter referred to as "the suit property") and, by virtue of that proprietorship, is entitled to exclusive possession and enjoyment thereof. The Plaintiff pleaded that its proprietary rights include the right to regulate access to the suit property and to exclude all unauthorized persons from entering or occupying it. 3.It was the Plaintiff's further case that in or about June 2015, the Defendant, without any lawful claim or registrable interest over the suit property, unlawfully entered the land, placed an additional padlock on the entrance gate, and stationed security guards together with dogs at the premises. According to the Plaintiff, those actions amounted to trespass and deprived it of its lawful possession and enjoyment of the property. 4.The Plaintiff further averred that the Defendant was merely attempting to unlawfully seize the suit property notwithstanding the Plaintiff's proprietary rights protected under Article 40 of the Constitution. It maintained that despite demand and notice of intention to sue, the Defendant failed and refused to vacate the suit property, thereby prompting the institution of the present proceedings seeking declaratory, injunctive and ancillary reliefs. Statement of Defence and Counterclaim 5.The Defendants entered appearance and filed a Statement of Defence and Counterclaim, denying the Plaintiff's claim in its entirety. The Defendants maintained that the 2nd Defendant is the lawful and registered proprietor of L.R. No. 29455 (formerly L.R. No. 21185) by virtue of Grant No. I.R. 67143, which was first registered on 6th October 1995. 6.They asserted that the property was subsequently purchased for valuable consideration in 2003, whereupon the 2nd Defendant took possession, obtained the necessary development approvals, erected a boundary wall and site house in 2008, and has remained in exclusive possession ever since. The Defendants consequently denied that the Plaintiff had ever occupied or developed the suit property and contended that the Plaintiff's assertions to the contrary were false. 7.The Defendants further pleaded that the 2nd Defendant's title, being the first registration under the repealed Registration of Titles Act, enjoys statutory protection and is indefeasible. They denied receiving the demand alleged by the Plaintiff and further averred that there were proceedings pending before the National Land Commission concerning the competing titles over the suit property. Accordingly, they contended that the Plaintiff had neither a valid title nor any sustainable cause of action against them. 8.By way of Counterclaim, the Defendants averred that prior to purchasing the property, the 2nd Defendant conducted due diligence which established an unbroken chain of ownership beginning with Wandegeya Company Limited, through subsequent transfers to Clovesleaf Limited and Don Holdings Limited, from whom the 2nd Defendant acquired the property. 9.They further pleaded that following a boundary dispute with the owner of an adjoining parcel, the property was resurveyed, resulting in the issuance of a fresh deed plan and the renumbering of the property as L.R. No. 29455. The Defendants also stated that during the compulsory acquisition process for the Standard Gauge Railway, the National Land Commission recognized the 2nd Defendant's interest and invited both parties to present their respective ownership documents for consideration. 10.The Defendants further contended that the Plaintiff's alleged title was a nullity because the suit property had already been allocated and a grant issued in 1995, leaving no land available for a subsequent allocation in 1999. They further asserted that the Plaintiff was only incorporated in 2009, long after its alleged allotment, failed to comply with the conditions of allotment by paying the requisite premium within the stipulated period, and had neither paid land rent nor rates in respect of the property. In contrast, the 2nd Defendant maintained that it had consistently discharged all statutory obligations relating to the property and remained in peaceful possession thereof while providing private security to safeguard it from repeated acts of trespass. 11.The Defendants lastly averred that although the Plaintiff had initially obtained interim orders ex parte in June 2015, those orders were subsequently set aside after the Court found that they had been obtained through material non-disclosure regarding possession of the suit property. They further alleged that despite the setting aside of those orders, the Plaintiff continued to interfere with the 2nd Defendant's possession by deploying armed groups onto the property, thereby disrupting its quiet possession and exposing its security personnel to danger. The Defendants consequently prayed for the dismissal of the Plaintiff's suit and judgment on the Counterclaim. 12.In the Counterclaim, the Defendants sought the following reliefs:a.An order dismissing the Plaintiff's suit with costs.b.A declaration that the 2nd Defendant is the lawful and indefeasible proprietor of L.R. No. 29455, delineated on Deed Plan No. 363538 dated 26th February 2014 (formerly L.R. No. 21185 under Grant No. I.R. 67143).c.A declaration that the Plaintiff's purported Grant No. I.R. 151750 relating to L.R. No. 15100 is null and void ab initio and incapable of conferring any proprietary rights.d.An order directing the Registrar of Titles to cancel and revoke Grant No. I.R. 151750.e.A permanent injunction restraining the Plaintiff, its servants, agents or any person claiming under it from trespassing upon or otherwise interfering with the 2nd Defendant's possession, occupation and enjoyment of L.R. No. 29455.f.General damages for trespass, together with interest.g.Costs of the suit and the Counterclaim together with interest thereon. Hearing 11.The matter proceeded to full hearing, during which the Plaintiff called three witnesses in support of its case. PW1, Mr. John Mugo Njeru, a director of the Plaintiff, testified on the circumstances under which the Plaintiff acquired the suit property and maintained that the Plaintiff held a valid title to L.R. No. 15100. He adopted his witness statement and produced the Plaintiff's documentary evidence. PW2, Mr. John Mwangi Mwaniki, an officer from the Directorate of Surveys, testified on the survey records relating to the competing titles and produced the Director of Surveys' report regarding the status of the suit property. PW3, Ms. Emma Muthoni Njogu, a former Commissioner of the National Land Commission, testified on the Commission's investigations into the competing ownership claims and the compulsory acquisition process undertaken for the Standard Gauge Railway project. 12.Through the testimony of its witnesses, the Plaintiff maintained that L.R. No. 15100 was the lawful title and that the Defendants' competing titles were the product of irregular survey and registration processes. The Plaintiff relied on the Director of Surveys' report, the National Land Commission's correspondence and other documentary evidence to demonstrate that the competing titles overlapped with the Plaintiff's property and urged the Court to uphold its title while finding that the Defendants were trespassers on the suit property. 13.The Defendants, on their part, called two witnesses. DW1, Mr. Zuberi Issa Mwangi, testified on behalf of the 2nd Defendant and adopted his witness statement together with the documentary evidence contained in the Defendants' trial bundle. DW2, Ms. Nancy Mwangi, a licensed surveyor, testified as an expert witness and produced an Investigative Survey Report dated 7th November 2022 tracing the survey history of the suit property and the evolution of the competing land reference numbers. 14.The Defendants maintained that the 2nd Defendant acquired the suit property lawfully for valuable consideration and had remained in possession thereof since 2003. They relied on the chain of ownership from Wandegeya Company Limited to the 2nd Defendant, the National Land Commission proceedings, and the expert survey evidence to contend that L.R. No. 15100 had long ceased to exist following lawful survey processes and that the valid title was L.R. No. 29455 (formerly L.R. No. 21185). They consequently urged the Court to dismiss the Plaintiff's claim and allow the Counterclaim. 15.Upon the close of the oral hearing, the Court directed the parties to file and exchange written submissions. Both the Plaintiff and the Defendants duly complied and filed their respective submissions, which the Court has carefully considered together with the pleadings, the evidence on record, and the applicable law. Submissions 16.In its written submissions, the Plaintiff submitted that the dispute called upon the Court to interrogate the legality and priority of the competing titles over the suit property and determine which title was founded on a lawful root. It argued that the Defendants' titles were tainted by illegality, procedural impropriety and fraud, and that the Court ought to look beyond the face of the certificates of title and examine the process through which each title was acquired. In support of that proposition, the Plaintiff relied on Gathondu (As Administrator of the Estate of the Late Thumbi Kariuki) & 3 Others Vs Registrar & 7 Others [2024] KECA 668 (KLR). 17.The Plaintiff identified the following issues for determination: whether L.R. No. 15100 is the valid and lawful title deserving protection; whether L.R. Nos. 21185 and 29455 were lawfully created; whether the Defendants had proved a lawful chain of title; whether the alleged determination of the National Land Commission could displace the technical evidence adduced by the Plaintiff; and whether the circumstances surrounding the Standard Gauge Railway compensation revealed an improper scheme to defeat the Plaintiff's title. The Plaintiff principally relied on the Director of Surveys' report in urging the Court to uphold its title. 18.The Plaintiff further submitted that under Section 26(1) of the Land Registration Act and Article 40(6) of the Constitution, a certificate of title is liable to impeachment where it is shown to have been acquired illegally, unprocedurally or through a corrupt scheme. In support of its arguments, it relied on Arthi Highway Developers Limited Vs West End Butchery Limited & 6 Others [2015] eKLR, Williams & Kennedy Limited Vs Gicharu & 10 Others (Civil Appeal Nos. E682, E686 & E705 of 2024) (Consolidated). 19.The Defendants submitted that the Plaintiff had sought to enlarge its claim through submissions by introducing reliefs that had neither been pleaded nor proved and urged the Court to confine itself to the pleadings. They further argued that the Plaintiff's failure to file a Defence to the Counterclaim rendered the Counterclaim undefended, with the legal consequence that the material facts pleaded therein stood admitted. 20.The Defendants identified the following issues for determination: the legal effect of the Plaintiff's failure to file a Defence to the Counterclaim; whether the suit property could lawfully have been allocated to the Plaintiff before its incorporation; whether the property was available for allocation after its prior alienation; the effect of the National Land Commission's determination dated 14th November 2016; whether the 2nd Defendant was entitled to general damages for trespass; and who should bear the costs of the suit and the Counterclaim. 21.The Defendants maintained that the Plaintiff's claim was legally untenable because it was incorporated in 2009, yet claimed an allotment made in 1999, and because the property had already been alienated before the alleged allotment. They relied on Amos Kimeu Ngutu Vs Beta Healthcare International Limited & Another [2021] eKLR, Julius Murungi Muriuki Vs Equity Building Society Ltd & Another, Nairobi HCCC No. 2274 of 1988, Cleaver-Hume Vs British Tutorial College (Africa) Ltd [1975] EA 323, Hebron Properties Limited Vs Mutunga & Another [2022] KEELC 56 (KLR), Gitwany Investment Limited Vs Tajmal Limited & 3 Others [2006] KEHC 2519 (KLR) and Wreck Motors Enterprises Vs Commissioner of Lands, Civil Appeal No. 71 of 1997 in urging the Court to dismiss the suit and allow the Counterclaim. Issues for Determination 22.I have carefully considered the pleadings, the evidence adduced by the parties, the documentary exhibits produced, and the rival written submissions together with the authorities cited. In my view, the issues proposed by the parties substantially overlap and can conveniently be condensed into the following issues for determination:a.Whether the Plaintiff has proved that it is the lawful proprietor of L.R. No. 15100 and consequently entitled to the declaratory and injunctive reliefs sought in the Plaint.b.Whether the 2nd Defendant has established its Counterclaim by proving that it holds a valid and indefeasible title to the suit property, thereby entitling it to the reliefs sought therein.c.Who should bear the costs of the suit and the Counterclaim. Analysis And Finding: ISSUE NO:1 Whether the Plaintiff has proved that it is the lawful proprietor of L.R. No. 15100 and consequently entitled to the declaratory and injunctive reliefs sought in the Plaint 23.The Plaintiff's claim is premised on the assertion that it is the lawful proprietor of L.R. No. 15100 and that the Defendants unlawfully entered upon and occupied the suit property. The Defendants dispute that claim and maintain that the 2nd Defendant is the lawful proprietor of L.R. No. 29455, formerly L.R. No. 21185, which they contend is the same parcel of land. The issue therefore calls upon the Court to interrogate the root of the competing titles and determine whether the Plaintiff has proved a lawful title capable of attracting the declaratory and injunctive reliefs sought. 23.The law governing title to land is found in Sections 24, 25 and 26 of the Land Registration Act. Section 24(a) provides that registration vests in the proprietor absolute ownership together with all rights and privileges appurtenant thereto. Section 25(1) further protects the rights of a registered proprietor. However, that protection is qualified by Section 26(1), which provides as follows:“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, 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." 24.It follows that a certificate of title is not conclusive proof of ownership where its root is challenged. In Munyu Maina Vs Hiram Gathiha Maina [2013] eKLR, the Court of Appeal held: " “We state that when a registered proprietors’ 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” 25.Similarly, in Arthi Highway Developers Limited Vs West End Butchery Limited & 6 Others [2015] eKLR, the Court of Appeal emphasized that the Court must interrogate the process by which title was acquired. 26.The Plaintiff's case rests substantially on the Director of Surveys' Report dated 4th July 2016, which stated that L.R. No. 29455 and L.R. No. 15100 refer to the same parcel on the ground and that L.R. No. 21185 may have been irregularly created while L.R. No. 15100 was still alive. The report recommended that L.R. No. 15100 be upheld. That evidence was supported by PW2, who testified on the survey records, and PW3, who testified that during the SGR compulsory acquisition process, the National Land Commission sought clarification because the competing titles overlapped. 27.On the other hand, the Defendants relied on the evidence that the suit property had earlier been alienated to Wandegeya Company Limited, a grant issued on 6th October 1995, and the property subsequently transferred through Clovesleaf Limited and Don Holdings Limited to the 2nd Defendant in 2003. They also relied on the National Land Commission determination dated 14th November 2016, which upheld the title relating to L.R. No. 29455 and recommended revocation of the title relating to L.R. No. 15100. 28.The Plaintiff was required to prove not merely that it held a document of title, but that the process through which it obtained that title was lawful. In that regard, the evidence presents two material difficulties. First, the Plaintiff claims an allotment made in 1999, yet the evidence shows that the Plaintiff company was incorporated on 2nd February 2009. A company cannot own property, receive an allotment, or acquire legal rights before it comes into existence. The alleged allotment therefore cannot, without more, found a lawful title in favour of the Plaintiff. 29.In Hebron Properties Limited Vs Mutunga & Another [2022] KEELC 56 (KLR), the Court held that a company cannot claim to have acquired or owned property before its incorporation. I agree with that reasoning. A limited liability company is a separate legal person only from the date of incorporation. Any alleged allotment made before incorporation required clear evidence of lawful assignment or transfer to the company after incorporation. No such evidence was satisfactorily placed before this Court. 30.Secondly, the Defendants' evidence shows that the property had already been alienated before the Plaintiff's alleged allotment. The law is that once public land has been alienated, it ceases to be available for subsequent allocation. In Wreck Motors Enterprises Vs Commissioner of Lands, Civil Appeal No. 71 of 1997, the Court of Appeal held that once land has been alienated, the Commissioner of Lands has no power to alienate it again. In Gitwany Investment Limited Vs Tajmal Limited & 3 Others [2006] KEHC 2519 (KLR), the Court similarly held that the earlier grant takes priority because the land had already been alienated. 31.Applying that principle to the present case, if a grant had been issued in respect of the property on 6th October 1995, the property was no longer available for allocation to the Plaintiff in 1999. The Plaintiff did not place before the Court sufficient evidence to demonstrate that the earlier grant had been lawfully cancelled, surrendered or otherwise extinguished before the alleged allotment to the Plaintiff. 32.I have considered the Director of Surveys' Report relied upon by the Plaintiff. That report raises serious questions on the survey history of the competing parcels. However, the report does not cure the Plaintiff's foundational burden to prove a lawful allotment and acquisition of L.R. No. 15100. The Court must distinguish between a survey opinion and proof of lawful title. A survey report may assist the Court in identifying overlap or irregularity, but it does not by itself prove that a party who did not exist at the time of allotment lawfully acquired title. 33.I have also considered the National Land Commission material. The NLC process involved both parties and resulted in findings adverse to the Plaintiff's title. While this Court is not bound to adopt the NLC determination without scrutiny, the same forms part of the evidentiary record and must be weighed alongside the other evidence. When weighed against the Plaintiff's incorporation date, the prior alienation of the land, and the chain of title relied upon by the Defendants, the NLC material weakens rather than strengthens the Plaintiff's claim. 34.The Plaintiff's claim for trespass and injunction depends entirely on proof that it is the lawful proprietor entitled to possession of the suit property. Having failed to prove a lawful root of title, the Plaintiff cannot sustain a claim that the Defendants were trespassers. Trespass is an unlawful interference with another person's possession or proprietary right. Where the Plaintiff has not proved the superior right to possession, the claim for trespass and the consequential injunctive relief must fail. 35.Consequently, I find that the Plaintiff has failed to prove, on a balance of probabilities, that it is the lawful proprietor of L.R. No. 15100. I further find that the Plaintiff has not established entitlement to the declarations, permanent injunctions, police assistance or any ancillary reliefs sought in the Plaint. Issue No. 1 is therefore answered in the negative.ISSUE NO:2 Whether the 2nd Defendant has proved its Counterclaim and is entitled to the reliefs sought therein 36.The 2nd Defendant seeks, by way of Counterclaim, a declaration that it is the lawful and indefeasible proprietor of L.R. No. 29455, formerly L.R. No. 21185, an order for the cancellation of the Plaintiff's title over L.R. No. 15100, a permanent injunction restraining the Plaintiff from interfering with its quiet possession and enjoyment of the suit property, general damages for trespass, together with costs and interest. 37.The Defendants submitted that the Plaintiff did not file a Defence to the Counterclaim despite leave having been granted by the Court. Relying on Amos Kimeu Ngutu Vs Beta Healthcare International Limited & Another [2021] eKLR, Julius Murungi Muriuki Vs Equity Building Society Ltd & Another, Nairobi HCCC No. 2274 of 1988 and Cleaver-Hume Vs British Tutorial College (Africa) Ltd [1975] EA 323, they contended that the factual averments contained in the Counterclaim remained uncontroverted and therefore stood admitted. While that submission is legally sound to the extent that the Counterclaim remained unanswered, the Court is nevertheless under a duty to satisfy itself that the reliefs sought have been established on the evidence placed before it. 38.The law is settled that a Counterclaim is in the nature of a cross-suit and must be proved on a balance of probabilities. Accordingly, notwithstanding the Plaintiff's failure to file a Defence to the Counterclaim, the Court must still evaluate the oral and documentary evidence adduced by the Defendants before granting the declarations and consequential orders sought. 39.The evidence tendered by the Defendants traced the ownership of the suit property from Wandegeya Company Limited, the original grantee under Grant No. I.R. 67143 issued on 6th October 1995, through subsequent transfers to Clovesleaf Limited and Don Holdings Limited, before its acquisition by the 2nd Defendant in 2003. The Defendants also produced evidence demonstrating that the 2nd Defendant took possession of the property, erected a perimeter wall, established a site office, obtained development approvals and has remained in possession ever since. That evidence was not substantially displaced during cross-examination. 40.The Defendants further relied on the Investigative Survey Report dated 7th November 2022, which traced the evolution of the survey records and concluded that L.R. No. 15100 ceased to exist following subsequent survey processes culminating in the creation of L.R. No. 29455. Although the Plaintiff disputed that conclusion by relying on the Director of Surveys' Report, I have already found under the preceding issue that the Plaintiff failed to establish a lawful root of title. The competing survey opinions therefore do not alter the conclusion that the Defendants demonstrated a superior chain of title dating back to 1995, long before the Plaintiff's alleged allotment. 41.The Court has also considered the evidence relating to the proceedings before the National Land Commission. The material produced shows that both parties participated in those proceedings and were afforded an opportunity to present their respective claims. While the determination of the Commission is not binding upon this Court, it remains a relevant piece of evidence which, when considered together with the chain of title produced by the Defendants, lends support to the Defendants' contention that the Plaintiff's title was irregularly issued. I therefore attach due evidential weight to that determination in evaluating the competing claims. 42.Having considered the evidence in its entirety, I am satisfied that the 2nd Defendant has demonstrated a lawful and unbroken chain of title from the original grant issued in 1995 to its acquisition of the property in 2003. Unlike the Plaintiff, whose claim was undermined by the date of its incorporation and the absence of evidence demonstrating a lawful allotment after the land had already been alienated, the Defendants established the legality of the acquisition of their title. Consequently, I find that the 2nd Defendant has proved, on a balance of probabilities, that it is the lawful proprietor of L.R. No. 29455, formerly L.R. No. 21185. 43.The Defendants also sought an order cancelling the Plaintiff's title. Having found that the Plaintiff failed to establish a lawful root of title and that the property had already been alienated before the Plaintiff's alleged allotment, the Plaintiff's title cannot stand. This Court is therefore satisfied that the circumstances fall within the exceptions contemplated under Section 26(1)(b) of the Land Registration Act, the Plaintiff's title having been shown to have been acquired unprocedurally and in respect of land that was no longer available for allocation. 44.The Defendants further prayed for general damages for trespass. It is trite that trespass to land is actionable per se. However, the award of damages remains a matter of judicial discretion and depends on the circumstances of each case. In the present case, the principal issue before the Court has been the determination of the lawful proprietor of the suit property. Having considered the evidence as a whole, I am satisfied that the declaratory and consequential reliefs sought in the Counterclaim are sufficient to vindicate the 2nd Defendant's proprietary rights. In the circumstances, I decline to make a separate award of general damages for trespass. 45.Accordingly, I find that the 2nd Defendant has proved its Counterclaim on a balance of probabilities and is entitled to the declaratory, injunctive and consequential reliefs sought therein, save for the prayer for general damages for trespass, which is declined. Disposition 46.Accordingly, I make the following orders:a.The Plaintiff's suit is hereby dismissed.b.Judgment is hereby entered for the 2nd Defendant on the Counterclaim.c.A declaration is hereby issued that the 2nd Defendant, Bakhresa Grain Milling (K) Limited, is the lawful and indefeasible proprietor of L.R. No. 29455, formerly L.R. No. 21185.d.A declaration is hereby issued that Grant No. I.R. 151750 in respect of L.R. No. 15100 is null and void.e.An order is hereby issued directing the Chief Land Registrar to cancel Grant No. I.R. 151750 relating to L.R. No. 15100 and rectify the register accordingly.f.A permanent injunction is hereby issued restraining the Plaintiff, its servants, agents or any person claiming through it from entering upon, trespassing, occupying, developing, alienating, remaining on, or in any manner whatsoever interfering with the 2nd Defendant's quiet possession, occupation and enjoyment of L.R. No. 29455.g.The Plaintiff shall bear the costs of the suit and the Counterclaim.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 29TH DAY OF JUNE, 2026.MOHAMMED N. KULLOWJUDGEJudgement delivered in the presence of: -Mr. Chege Njoroge for the Defendants/Plaintiffs in counter claimMr. Koech for the PlaintiffMs. Mwangi Court Assistant