https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4625

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MALINDI** **ELC CASE NO 33 OF 2023** **DIRE OLOW MOHAME………………….………………………PLAINTIFF** **VERSUS** 1. **BARE MUHAMED ABDI** 2. **ABDILE HASSAN DUALE** 3. **SULEIMAN ABDILLE HASSAN DUALE** 4. **ABDIWAHAB ABDILLE HASSAN** 5. **KAHINDI NGOMBO** 6. **KAHINDI KATANA MENZA** 7. **AMOS MWALIMU CHENGO** 8. **KAHINDI MADZI KOMBЕ** 9. **CHANGAWA KAINGU..................................................... DEFENDANTS** **JUDGMENT** 1. The Plaintiff herein, Dire Olow Mohamed, filed this claim against the Defendants for trespass, seeking a permanent injunction and eviction orders concerning the suit property, identified as plot number C.R. number 17503, Land Reference 13472/1, measuring 50,000 acres, also referred to as Chakama Ranch. 2. The Plaintiff initiated this legal action, asserting that they are the lawful lessee of the land owned by Chakama Ranching Company Limited. The Plaintiff asserts that the Defendants unlawfully invaded, trespassed upon, and occupied a specific section of the ranch known as the "Digirie" area without proper authorization, consent, or legal justification. On the 5th of May, 2025, an Interlocutory Judgment was entered against the 2nd, 3rd, and 4th Defendants due to their failure to appear or file a defense. The case proceeded to a hearing on the 15th of July, 2025 (and subsequent dates) against the remaining Defendants. 3. The Plaintiff called two witnesses to testify. Despite Counsel Mr. Kiponda's initial representation, the Defendants did not attend court to present a defense. On the 17th of November, 2025, Counsel representing the Defendants was granted permission to cease acting for lack of instructions. On the 8th of December, 2025, the Court officially closed the defense case and instructed the parties to file written submissions. 4. PW1: Dire Olow Mohamed (The Plaintiff) testified on oath that he entered into a Lease Agreement with Chakama Ranching Company Ltd for the purpose of grazing livestock. He stated that the initial lease covered 100,000 acres, but the Government has since acquired a portion, leaving approximately 50,000 acres owned by the Ranch. He further testified that the Defendants invaded the "Digirie" section of the Ranch, which borders Gimma Ranch and Kalalu Ranch. He confirmed the following: He has a valid lease agreement with the landowners (Chakama Ranch) ( List of Documents, Items 1-3). The Defendants have no license or agreement with Chakama Ranch. The Defendants are trespassers who have "stormed" the land. 5. PW2: Daniel Kisau Baya, Chairman of Chakama Ranch, testified as the registered owner of the suit land. He confirmed his witness statement, stating that Chakama Ranch still owns 50,000 acres of the land. The Ranch has a valid lease agreement with the Plaintiff, Dire Olow Mohamed, for grazing purposes. He also stated that the Ranch did not authorize the Defendants to enter or occupy the land. The Defendants entered the area without permission from either the Lessee or the Lessor, rendering their occupation illegal. 6. Based on the materials and submissions before me, the issues I frame for this Court's determination are whether the Plaintiff has a valid interest in the suit property sufficient to sustain a claim for trespass, whether the Defendants trespassed on the suit property, and whether the Plaintiff is entitled to the relief sought. 7. Chakama Ranching Company Limited (not a party in this suit) is said to own vast tracts of land that it leases to pastoralists. In this case, it is said to have leased over 50,000/- acres of its land, as recorded in Land Title No. 17503, Land Reference 13472/1, to the Plaintiff. The Plaintiff's evidence on ownership and possession is uncontroverted. The Defendants failed to proffer any evidence to challenge the validity of the Lease Agreement or the testimony of PW2. In law, where a party fails to call evidence to challenge the opponent's case, the court is entitled to treat the evidence on record as the truth. See **University of Nairobi v Leonard Lisanza Muaka [2020] eKLR,** which cites with approval the decision in **Kenya Akiba Micro Financing Ltd v Ezekiel Chebii & 14 Others [2012] eKLR**, **Edward Muriga thro’ Stanley Muriga v Nathaniel D. Schulter (Civil Appeal 23 of 1997),** and **Acceler Global Logistics v Gladys Nasambu Waswa & another [2020] КЕНС 9074**. 8. The Defendants' pleadings, unsupported by oral or documentary evidence, cannot withstand the Plaintiff's sworn testimony. As held by Mativo J. (as he then was) in **Jamlik Muchangi Miano v Attorney General [2017] КЕНС 8422:** ***"Where a party fails to call evidence in support of his case, that party's pleadings remain mere statements of fact since in so doing the party fails to substantiate his pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the Plaintiff against the defence is uncontroverted and therefore unchallenged."*** 1. Consequently, the Plaintiff has fulfilled its burden of proof, and the Court hereby rules in favor of the Plaintiff. 2. The Plaintiff has proved, on a balance of probabilities, that the Defendants trespassed on the suit property. Trespass to private land is defined in authoritative texts and by statute: Clerk and Lindsell on Torts defines trespass to land as *“any unjustifiable intrusion by one person upon land in the possession of another,"* and the smallest unauthorized crossing of a boundary will suffice to make out the tort. 3. Statutorily, Section 3(1) of the Trespass Act, Chapter 294, stipulates that: ***"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. Section 3(2) clearly states that the individual who enters private property must prove they have a reasonable excuse or consent. The Trespass Act's criminal prohibition supports the civil protections linked to possession: trespass mainly involves an invasion of possession and is actionable per se, allowing the possessor to seek relief without needing to prove specific damages. 2. Unchallenged evidence at trial showed that the landowner's second witness, the chairman of the land-owning company (Chakama Ranch), testified that people entering the area called "Digirie" were strangers to the occupants and entered without permission. He explicitly said they *"did so illegally without our consent."* This oral testimony confirms unauthorized entry. 3. Under Section 107 of the Evidence Act, Chapter 80, the Plaintiff bears the burden of proving the facts entitling them to relief. When a defendant claiming rights offers no rebuttal evidence, the Plaintiff's credible testimony is highly persuasive, and the Court may rely on it if it meets the civil standard of proof on a balance of probabilities. In this case, the Defendants were strangers to the landowner, offered no proof of title or consent, and failed to establish a reasonable excuse. Consequently, their acts constitute trespass, and the Plaintiff is entitled to the legal remedies available. 4. Section 13(7) of the Environment and Land Court Act No. 19 of 2011 authorizes the Court to issue any order or relief it considers appropriate and just, including temporary or permanent preservation orders such as injunctions, prerogative orders, damages, compensation, specific performance, restitution, declarations, or costs. 5. This provision provides the Court with broad discretion to grant remedies that effectively protect land and property rights once a violation is established. The Defendants' ongoing occupation of the suit property is unlawful and violates applicable statutes. Section 152A of the Land Act No. 6 of 2012 states that: ***"a person shall not unlawfully occupy private, community, or public land."*** 1. In instances of illegal occupation, the Act authorizes eviction, contingent upon compliance with the procedural safeguards outlined in sections 152B to 152F. The Plaintiff has explicitly demonstrated that the Defendants possess neither title, lease, license, nor consent, thereby classifying them as unlawful occupants under the law. 2. A perpetual injunction is an appropriate equitable remedy when a Plaintiff proves a clear proprietary interest and demonstrates that the Defendant's actions cause ongoing violations of that right. Courts consistently support eviction and injunctive orders against unlawful occupants in similar cases. In **Siele v Juma & 25 others [2023] KEELC 20485 (KLR)**, the Environment and Land Court ordered eviction and a permanent injunction after the Defendants failed to vacate private land despite receiving notice. 3. The Plaintiff is entitled to general damages. The law is settled that trespass to land is actionable per se, meaning the Plaintiff need not prove any specific damage or loss to be entitled to relief. The act of trespass itself violates the Plaintiff's right to exclusive possession. Regarding the quantum of damages, the Court has discretion to assess an award that reflects the magnitude of the intrusion and the size of the affected property. See **Philip Ayaya Aluchio v Crispinus Ngayo [2014] eKLR**, where the Court held as follows: ***"The plaintiff is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage? It has been held that the measure of damages for trespass is the difference in the value of the plaintiff's property immediately after the trespass or the costs of restoration, whichever is less.”*** 1. However, when the precise mathematical calculation of loss is difficult because of the nature of the trespass or the vastness of the land, the Court is guided by the circumstances of the case. See the decision in **Rhoda S Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited [2019] eKLR**, where the Court cited with approval the case of **Willesden Investments Limited v Kenya Hotel Properties Limited (NBI HCC No. 367 of 2000)**. In **Willesden**, the Court stated: ***"There is no mathematical or scientific formula in these types of cases and that the guiding factors are the circumstances in each case. It is my considered view that KShs 10 000 000 is a reasonable award for general damages".*** 1. In applying this principle in **Rhoda S Kiilu** (supra), Mbugua J. held: ***"I have taken into account the fact that the damage occurred in a rather expansive chunk of land, though the same is situated in a rural area. I am of the view that an award of Kshs. 10,000,000/- as general damages is sufficient."*** 1. As in the Rhoda S Kiilu Case (supra), the suit property, Chakama Ranch, is expansive, measuring approximately 50,000 acres. As in the cited authority, the trespass herein affects a "rather expansive chunk of land" situated in a rural area, a factor the Court affirmed does not preclude the award of substantial damages where the interference is significant. The Plaintiff testified that the Defendants "stormed" the land and have occupied the specific "Digirie" area for a prolonged period, effectively denying the Plaintiff the use of the leased premises for grazing his livestock. Consequently, to compensate for this blatant violation of property rights and the continued loss of use, I award the Plaintiff Kshs 2,000,000/= as general damages. 2. I will also award the costs of the suit. 3. In Summary judgment is entered for the Plaintiff against the Defendants in this manner: 4. **A declaration that the Defendants' entry and occupation of the suit property constitutes trespass.** 5. **An order of permanent injunction restraining the Defendants, their agents, or servants from entering, remaining on, or interfering with the Plaintiff's quiet possession of the suit property.** 6. **An order for eviction directing the Defendants to vacate the suit property immediately.** 7. **General Damages of 2,000,000/= for trespass.** 8. **Costs of this suit** **Dated, signed, and delivered virtually at Nyeri on this 2nd day of July 2026, in the absence of the parties and their counsel, who were notified of the judgment date. Court Assistant Denis present.** **E. K. MAKORI** **JUDGE**