Mirambo v Tabuya (Environment and Land Case E026 of 2026) [2026] KEMC 347 (KLR) (10 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KEHANCHA** **ELC NO. E026 OF 2026** **DANIEL NYANGANA MIRAMBO………………………………..PLAINTIFF** **VERSUS** **NYAMANI TABUYA……………………………………………..DEFENDANT** **JUDGMENT** 1. The plaintiff in a plaint dated 21st May, 2026 sued the defendant seeking for the following orders: 2. A declaration that the defendant, his servants and the 3rd parties whom have leased the suit land and are acting under the directions and instructions of the defendant are trespassers on land parcel BUGUMBE/ISEBANIA/16 belonging to the plaintiff. 3. An eviction order do issue evicting the defendant, his agents, servants and the 3rd parties whom have leased the suit land and are acting under the directions and instructions of the defendant from land parcel BUGUMBE/ISEBANIA/16. 4. An order directed to the OCS ISEBANIA Police Station to assist in the eviction of the defendant, his agents, servants and the 3rd parties whom have leased the suit land and are acting under the directions and instructions of the defendant from land parcel BUGUMBE/ISEBANIA/16 5. A permanent injunction do issue restraining the defendant, his agents, servants and the 3rd parties whom have leased the suit land and are acting under the directions and instructions of the defendant from re-entering land parcel BUGUMBE/ISEBANIA/16. 6. An order directed to the OCS ISEBANIA Police Station to assist in the eviction of the defendant, his agents, servants and the 3rd parties whom have leased the suit land and are acting under the directions and instructions of the defendant comply with the order of permanent injunction issued in prayer (c) above and should they disobey the said order the OCS Isebania Police Station be ordered to arrest them and present them before this Honourable Court. 7. Costs of this suit. 8. The plaintiff averred that he is the registered proprietor of land parcel BUGUMBE/ISEBANIA/16 and has a title deed. That the plaintiff got his title deed via a court decree in Migori CMELC CASE NO. E088 OF 2024 where he had sued for specific performance of a sale agreement. The plaintiff further averred that the defendant, his servants, agents and persons acting under her directions have forcefully trespassed onto the plaintiff’s land and are cultivating thereon by force to the detriment of the plaintiff and have denied the plaintiff the opportunity to utilize his land. That he defendant has forcefully occupied the plaintiff house that he built on the suit land and she is residing thereon by force. That one of the grandsons of the defendant acting under the directions of the defendant and or her servant and/or agent has constructed a structure on the suit land without the consent of the plaintiff. 9. The defendant was served with summons to enter appearance and plaint and the accompanying documents but did not enter appearance nor file a defence. The case proceeded for hearing as undefended on 8/7/2026. The Plaintiff DANIEL NYANGANA MIRAMBO testified as PW1 and adopted his written statement dated 21/5/2026 as his evidence in chief reiterating the averments contained in the plaint. The plaintiff produced a copy of title deed for parcel Bugumbe/Isebania/16 as exhibit-2, Certificate of official search as exhibit-2 and decree in Migori CMELC CASE NO. E088 of 2024 as exhibit-3. The plaintiff then prayed that his suit be allowed as prayed. The plaintiff then closed his case. The defence case was also closed as was closed as she did not testify. **Determination** 1. This suit was not defended, nevertheless, the plaintiff is by law required to proof their case. In the case of **[Gichinga Kibutha v Caroline Nduku](https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3981%22%20%5Ct%20%22_blank) [2018] eKLR,** the Court held that: ***“It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”*** 1. Further, the provisions of Section 107 of the [Evidence Act](https://new.kenyalaw.org/akn/ke/act/1963/46)stipulate that: **“Whoever desires any court to give judgment as to any legal right or dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person”.** 1. In the case of **Charter House Bank Limited (Under Statutory management –vs- Frank N. Kamau [2016] e KLR** the court of appeal when discussing the burden of proof on the plaintiff in a situation where the defendant failed to adduce evidence stated that: ***“we would therefore venture to suggest that before the trial court can conclude that the Plaintiff’s case is not controverted or is proved on a balance of probability by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence from the defendant.…………The Plaintiff must adduce evidence, which in the absence of rebutted evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the Defendant has not testified’’*** 1. The plaintiff claim is based on trespass. [Trespass Act](https://new.kenyalaw.org/akn/ke/act/1962/48) in Section 3 defines trespass upon private land as follows: **“3.Trespass upon private land(1)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.”** 1. From the foregoing definition, an essential ingredient for one to succeed in a claim of trespass is proof of exclusive occupation of private land. In the case of **Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR** the Court of Appeal cited with approval its earlier decision in **M’Mukanya vs. M’Mbijiwe [1984] KLR 761,** where trespass was spoken of in the following terms; ***“Trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land which is different from ownership.”*** 1. It is clear from the above provision that there must be entry into another’s land (private land), such entry must be without permission of the occupier of the land and or without reasonable excuse. Trespass also consists of any unjustifiable intrusion by one person upon land in possession of another (see [Clerk & Lindsell on Tort](https://www.wildy.com/isbn/9780414034259/clerk-lindsell-on-torts-21st-ed-hardback-sweet-maxwell-ltd) (21st Edn) page 1345). 2. An occupier for purpose of the[Act](https://new.kenyalaw.org/akn/ke/act/1962/48) is defined under section 2 to mean; - ***“The owner or the person lawfully in occupation of private land, any manager or agent of such person and in respect of forest areas and railway land, the Chief Conservator of Forests and the Managing Director of Kenya Railways respectively”*** 1. The [Act](https://new.kenyalaw.org/akn/ke/act/1962/48) defines Private land as interalia land which is owned or occupied by any person by virtue of a freehold title, a certificate of ownership or lease. The [Constitution](https://new.kenyalaw.org/akn/ke/act/2012/5) of Kenya also categorizes land into private, public, and community land. Article 64 defines private land as follows: -Private land consists of: - 2. Registered land held by any person under any freehold tenure; 3. Land held by any person under leasehold tenure; and 4. Any other land declared private land under an Act of Parliament. 5. The court in the case of **[Nyangeri Obiye Thomas V Yunuke Sakagwa Nyoiza](https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/302%22%20%5Ct%20%22_blank) ELC Case No.277 of 2018** observed as follows on trespass: “***Clerk & Lindsell on Torts 18th Edition at paragraph 18-01 defines trespass as follows: “Any unjustifiable intrusion by one person upon land in possession of another.” …. Trespass is actionable at the instance of the person in possession and that proof of ownership is prima facie proof of possession” ………The acts of putting up structures on the land and taking occupation of the same forcefully surely do amount to trespass.”*** 1. Guided by the foregoing I will proceed to look at the issue of ownership of the suit property being one of the relevant issues. Be that as it may, I have considered the pleadings, the evidence tendered during trial, and in my view, the issue for determination is whether the plaintiff is entitled to the orders sought. 2. The plaintiff averred that he is the registered owner of the suit parcel. In proving ownership the plaintiff produced copy of official search and copy of the title deed showing that the plaintiff is the registered owner of the suit land. There is no evidence to the contrary. 3. The [Land Registration Act](https://kenyalaw.org/akn/ke/act/2012/3), Cap 300 is very clear on issues of ownership of land, and Section 24(a) of the said Act provides as follows: **“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”** 1. Section 26 (1) of the [same Act](https://kenyalaw.org/akn/ke/act/2012/3) states as follows: **“The Certificate of Title issued by the Registrar upon registration … 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… and the title of that proprietor shall not be subject to challenge except –** 1. **On the ground of fraud or misrepresentation to which the person is proved to be a party; or** 2. **Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”** 3. The law is clear that, the certificate of title issued by the Registrar upon registration 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 and the title of that proprietor shall not be subject to challenge except on the ground of fraud or misrepresentation to which the person is proved to be a party; or where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme. 4. The plaintiff in this case, produced a copy of the title deed to the dispute land, clearly outlining the name of the registered owner. He has been able to demonstrate how he got the title deed by producing a court decree giving land pursuant to a claim for specific performance. It has been said time and again that a Title Deed is an indefeasible evidence of the ownership of land. The defendant has not offered any evidence to the contrary. 5. Having looked at the copy of the title deed, I am satisfied that the suit property indeed belongs to the plaintiff who is the registered proprietor. The registration and proprietorship of the plaintiff is, therefore, not in dispute and thus, the plaintiff remains the rightful, absolute and indefeasible owner of the property with all the rights and privileges accruing therefrom; including the right to possession, to a quiet and peaceful occupation and right to use the property. 6. The evidence that the defendant has trespassed on the suit property has not been challenged, and this court having found that the plaintiff is the registered owner, it is my finding that the plaintiff is entitled to peaceful and quiet enjoyment of the suit property without any interference by the defendant. 7. In conclusion I find that the plaintiff has been able to prove his case on a balance of probabilities and thus he is entitled to the orders sought in the plaint. In the end I hereby enter judgment in favour of the plaintiff as against the defendant as follows:- 8. A declaration order is hereby issued declaring that the defendant, his servants and the 3rd parties whom have leased the suit land and are acting under the directions and instructions of the defendant are trespassers on land parcel BUGUMBE/ISEBANIA/16 belonging to the plaintiff. 9. An eviction order is hereby issued evicting the defendant, his agents, servants and the 3rd parties whom have leased the suit land and are acting under the directions and instructions of the defendant from land parcel BUGUMBE/ISEBANIA/16 after lapse of 90 days upon service of the orders herein. 10. An order directing the OCS ISEBANIA Police Station to assist in the eviction of the defendant, his agents, servants and the 3rd parties whom have leased the suit land and are acting under the directions and instructions of the defendant from land parcel BUGUMBE/ISEBANIA/16 after lapse of 90 days upon service of the orders. 11. A permanent injunction is hereby issued restraining the defendant, his agents, servants and the 3rd parties whom have leased the suit land and are acting under the directions and instructions of the defendant from re-entering land parcel BUGUMBE/ISEBANIA/16. 12. An order is hereby issued directing the OCS ISEBANIA Police Station to assist in the eviction of the defendant, his agents, servants and the 3rd parties whom have leased the suit land and are acting under the directions and instructions of the defendant comply with the order of permanent injunction issued in prayer (d) above and should they disobey the said order the OCS Isebania Police Station be ordered to arrest them and present them before this Honourable Court. 13. Costs of this suit. **Dated, Signed and Delivered in open Court at Kehancha on this 10th day of July, 2026 virtually via Microsoft Teams.** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of:** **Mr. Kigera…….Court Assistant** **Plaintiff………..Present** **Defendant……..Absent** **Advocate for plaintiff……..Mr. Nyangi Advocate present**