https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3574

Muthee v Njagi & 5 others (Environment and Land Case 18 of 2020) [2026] KEELC 3574 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELC 3574 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Case 18 of 2020 EC Cherono, J June 11, 2026 Between Felix Murithi Muthee Plaintiff and Marclus Njue Njagi 1st Defendant Julius Waweru Nyaga 2nd Defendant Josphat Gicovi 3rd Defendant Emmanuel Muriithi Nyaga 4th Defendant James Peter Komu 5th Defendant The County Government Of Embu 6th Defendant Judgment 1.Vide the Amended Plaint dated 22/12/2023, the Plaintiff is seeking interalia:a.A declaration that the Plaintiff and his wife Janis Muthoni Mwaniki are the lawful and registered proprietors of Plot No. Embu/Municipality/1200 and that the 1st to 5th Defendants have no interest and or claim in the said plot and are therefore occupying and utilizing the said plot unlawfully.b.That the 6th Defendant unlawfully and irregularly allocated the suit plot to the late Ferdinand Njiru and the late Nyaga Gikuuri purporting that the suit land was plot Nos. 120 and 170.c.That the 1st to 5th Defendants by themselves, their servants, employees and or agents be ordered to vacate the suit land and remove their structures, materials or property within 30 days from the date of judgement and in default the said structures, materials or property be forcefully demolished and removed from the said plot. Thereafter, the 1st to 5th Defendants by themselves, their agents, servants and or tenants be permanently restrained from entering upon, putting up structures, carrying on business or in any manner interfering with the suit plot and or the Plaintiffs use, occupation and or exercise of his proprietary rights over the suit plot.d.That the 1st to 5th Defendants be ordered to pay the Plaintiff mesne profits of Kshs. 50,000/= per month as from 14/03/2012 until they vacate the suit plot.e.That the 6th Defendant be ordered not to issue any business licences or permits to the 1st to 5th Defendants to carry out business on the Plaintiffs plot No. 1200 without the Plaintiffs consent and or authority.f.Costs of the suit be provided for. 2.The Plaintiffs’ case is that, he is the proprietor of all the leasehold interest comprised in plot No. Embu/Municipality/1200 jointly with his wife Janis Muthoni Muriithi. He avers that they purchased the suit property at Kshs. 2,200,000/= in a public auction conducted by Spotlight Intercepts Kenya Auctioneers on behalf of Barclays Bank as it was then, on 28/11/2011 and, that he and his wife paid the full purchase price as the successful and highest bidders in the said auction. He avers that they were issued with a Memorandum of Sale as joint owners of the said plot and that he was issued with a Certificate of Sale. He states that he acquired a Certificate of Lease on the 14/03/2012 from the County Council of Embu for the remainder of the period of 99 years as from 01/01/1992 at a revisable annual rate of Kshs. 2,400/= which he contends he has been paying. 3.The Plaintiff further avers that the 1st to 5th Defendants without any color of right and without the Plaintiffs authority or consent, trespassed upon and are now unlawfully occupying and carrying on business on the suit property. He avers that they purport to occupy the suit premises as tenants of the late Ferdinand Njiru and the late Nyaga Gikuuri, and further contend that the premises from which they conduct their businesses comprise Plot Nos. 120 and 170, allegedly jointly owned by the said Ferdinand Njiru and Nyaga Gikuuri, and not Plot No. 1200 as claimed by the Plaintiff. He further avers that the 6th Defendant has unlawfully and irregularly been issuing business permits to the 1st to 5th Defendants to carry out business unlawfully on the suit plot while purporting the same to be plot Nos 120 and 170. He set out the particulars of trespass against the 1st to 5th Defendants and illegality on the part of the 6th Defendant. 4.He avers that the 1st to 5th Defendants illegal and continued occupation and use of the suit plot has occasioned him loss of income since he cannot develop or utilize the property and therefore he claims mesne profits from 14/03/2012 when he acquired a lease for the plot. 5.The 1st to 5th Defendants filed a joint statement of Defence dated 07/08/2020. They denied the Plaintiffs claim and aver that the Plaintiff is a stranger to them and that they have not seen him at the suit premises. They contend that they have been tenants on the plots they occupy for their duly licensed businesses by the County Government of Embu from as far back as the year 2000. That they are tenants of the landlords who were duly issued with the plots who took possession as early as the 1970’s and therefore they are not trespassers. They contend that the suit is misconceived, bad in law and misdirected. 6.The 6th Defendant filed a statement of defence dated 20/03/2025 and denied that they issued the Plaintiff with a Certificate of Lease. They averred that certificates of lease are issued by the Chief Land Registrar and that letters of allotment were previously issued by the Commissioner of Lands which role is currently being carried out by the National Land Commission. They averred that the registry map index and the plot numbers assigned to the properties in dispute were all prepared by the Director of Survey and that it had no information to assist the parties on the ownership of the suit properties. 7.The matter proceeded for hearing on 08/10/2025 where the Plaintiff, Felix Muriithi Muthee testified as PW1. He adopted his written statement dated 18/07/2020 as his evidence in chief. On cross examination, he stated that when he bought the suit plot he did not know the Defendants and that he purchased the plot at an auction in Nairobi and visited the suit plots and found that it had stalls. He stated that he visited the land with an agent of the auctioneers and went to Nairobi to bid. That when he saw the Defendants physically, he informed them that he wanted to develop his plot and that they should start paying him rent but they have failed to. That he has issued them with demands to vacate the plot but they have refused to vacate. He stated that from 2014 to 2016 he was looking for funds to start developing the land. 8.On re-examination, he stated that he saw the plot in the newspaper and that he purchased it at an auction. He stated that the plot was being sold because the owner had failed to pay a bank loan. He produced in evidence, a certificate of sale dated 28/08/2011, a memorandum of sale dated 28/10/2011, a letter from the Municipal Council of Embu, a certificate of lease, an extract from Embu township map, demand letters dated 17/02/2014 and 06/04/2020. 9.The 2nd Defendant, Julius Gicobi Waweru Nyaga testified as DW1. He adopted his written statement dated 25/08/2020 as his evidence in chief. In his statement, he stated that they have been tenants occupying premises erected on Plot Nos. 120 and 170 under the Municipal Council of Embu. He further stated that the owners of the plots on which they conduct their businesses are the late Ferdinand Njiru, who owned Plot No. 120, and the late Nyaga Gikuuri together with the late F. Njiru, who jointly owned Plot No. 170. He averred that they have valid business permits for their businesses issued by the County Government of Embu. He averred that they are not aware of any auction of the suit plots and that their landlords continue to pay land rates to the County Government. He averred that from the Plaintiffs pleadings, the Plaintiff acquired the lease form the County Council of Embu whereas their landlords’ plots are from Municipal Council of Embu. 10.On cross examination, he stated that he signed a lease agreement with his landlord the late Ferdinand Njiru but his property got burnt in a fire. He stated that he entered the land in 1985 and that the late Ferdinand and his son showed him a lease. He stated that he had a right to be on the plot as the person who leased it to him had not asked him to move out. He produced in evidence, Council rates payment receipts for Plot Nos. 120 and 170 from the Municipal Council of Embu, Embu Municipal Council minutes of 1993, judgement in Embu civil case No. 345 of 1998, a copy of a grant issued in Embu High Court Succession Cause No. 284 of 2013 in the estate of Ferdinand Njiru and a confirmed grant issued on 25/11/2015, and an authority to plead to the 2nd Defendant on behalf of the 1st, 3rd, 4th and 5th Defendants, a tenancy agreement dated 17/08/2001, a business permit for Plot No. 170 issued on 30/03/2021 and receipts from EMBU County Government dated 08/04/2021. 11.DW2 was Judith Mbeere Njiru who also adopted her written statement dated 25/08/2020 as her evidence in chief. She stated that she was shown the documents produced by the 2nd Defendant and she wished to adopt the same as her evidence. She stated that she is the administrator of the estate of the late Ferdinand Njiru who was the registered proprietor of plot Nos. 120 and 170 Shauri, Embu Municipality where the Defendants carry out their businesses. She stated that she has been paying rates to the Municipal Council of Embu for the said plots upto date and there has been no indication or notices of leases to other owners. 12.She averred that the said plots were given out to the owners in 1974 and the issue of leases settled vide Municipal Council minutes of 1993. She stated that their plot has been the subject of court cases where other parties were claiming that they had leases to the plots one case being Embu Civil Case No. 345 of 1998 where it was held that the plot owners were the rightful owners and not person with leases. She averred that the lease held by the Plaintiff relates to other parcels of land. 13.On cross-examination, she stated that her plots were plot Nos. 120 and 170 and that she did not have a lease in respect of the said plots. She stated that she was the land lady to all the Defendants. 14.DW3 was Nicholas Mogaka, a Legal Officer with the Embu County Government. He adopted his written statement dated 20/03/2025 as his evidence in chief. He stated that the 6th Defendant had been wrongly joined in the suit as they are not involved in the issues of titles to property. He averred that while it is true that some trust lands belonging to the County are normally allocated with consent of the County, most of these plots are un-surveyed plots. That once the survey is done, Part Development Plan (PDP) is prepared by the Director of Survey at the instance of the Commissioner of Lands, the plots are given numbers before the letters of allotments in respect of the same are issued by the Commissioner of Lands. 15.He stated that upon survey of these un-surveyed plots, the County is normally not informed of the new plot numbers issued to the plots and that in respect of this suit, the County cannot confirm whether the plots in dispute in this matter are one and the same, as the only entity that can determine the same is the Director of Survey, who has the records and maps of the said parcels of land. He averred that while the Plaintiff alleged that the 6th Defendant issued them with a certificate of title, the same is not true as the 6th Defendant is not involved in issuing titles to land, and has no such mandate as all titles to land are issued by the Chief Land Registrar. 16.He averred that the Plaintiff’s claim that the 6th Defendant wrongly issued business permits to the 1st – 5th Defendants is unfounded because business permits and licences do not relate to or prove land ownership. That the 6th Defendant has no duty to verify or determine ownership of land before issuing such permits, nor can it make land ownership a condition for granting a business permit. He contended thatthe proper parties to assist the Court would have been the Director of Survey, the National Land Commission, the Land Administration Department at the Lands Office and the Chief Land Registrar and not the 6th Defendant. 17.On cross examination, he stated that the issuance of licences and permits is not confirmation of the existence of a plot. 18.The suit was canvassed by way of written submissions. The Plaintiff filed submissions dated 25/03/2026 through the firm of Duncan Muyodi & Company Advocates. He submitted that he is the lawful proprietor of Plot Number Embu/Municipality/1200. He stated that the suit property originally belonged to one Nancy Wambui Nyaga, who was the first lessee under a 99-year lease running from 01/01/1992. That the said lessee charged the property to Barclays Bank on 22/09/1999 to secure a loan of Kshs. 300,000, but defaulted in repayment. He averred that consequently, Barclays Bank exercised its statutory power of sale over the property and that he purchased the suit property from Barclays Bank through a public auction conducted on 28/10/2011. 19.He stated that the chargee duly notified the lessee of the intended sale, and the auction was properly advertised in the Standard Newspaper on 17th and 24th October 2011. He further stated that the auction was conducted lawfully and procedurally in accordance with the Auctioneers Act. He further submitted that he was the highest bidder and was declared the purchaser, and that he paid the full purchase price. That thereafter, consent for transfer was obtained from the Municipal Council of Embu on 10/02/2012 to transfer the property from the original lessee to him and his wife, who were subsequently registered as proprietors of the suit plot. He added that they have since been paying land rates, rent, and other outgoings to the County Government of Embu. 20.The Plaintiff relied on Sections 24, 25 and 26 of the Land Registration Act, 2012, submitting that registration vests absolute ownership in a proprietor and that a certificate of title is prima facie evidence of ownership, which can only be challenged on grounds of fraud, misrepresentation, illegality, or procedural impropriety, none of which have been pleaded or proved by the Defendants. He further submitted that the 1st to 5th Defendants had failed to produce any lease over the alleged plot Nos. 120 and 170 and that no counterclaim had been filed challenging his title. The Plaintiff also submitted that even if the Defendants relied on business permits, such permits are not proof of ownership. He contended that the 1st to 5th Defendants were trespassers, as trespass as trespass consists of any unjustifiable intrusion by one person upon land in possession of another. 21.He averred that he was entitled to mesne profits and asserted that the suit property would reasonably attract a monthly rent of Kshs. 50,000, being the prevailing market rate for a similarly situated undeveloped plot within the Embu Central Business District. He therefore sought mesne profits at the rate of Kshs. 50,000 per month from 05/03/2014. He maintained that he had established trespass by the 1st and 5th Defendants and was therefore entitled to an order of eviction against them. He cited the cases of Onyango v Chief Land Registrar Kisumu & 5 others (2025) KEELC 266 (KLR), Attorney General v Halal Meat Products Ltd (2016) Eklr among many others in support of his submissions. 22.The 1st to 5th Defendants submitted that they are lawful tenants of Judith Mbeere Njiru, who inherited ownership of Plot Nos. 120 and 170 Embu Municipality through Embu High Court Succession Cause No. 284 of 2013 in respect of the estate of Ferdinand Njiru Wainaina. They stated that the grant has never been challenged and remains valid. They further submitted that the documents produced by the Plaintiff were dubious and that he purchased some fictitious property. 23.They submitted that in order to solve and determine the existence and location of Plot No. 1200 in contrast to Plot Nos. 120 and 170, a file folio under section 105(1) of the Land registration Act ought to have been produced section 18 of the said Act complied with, which provides that, “except where in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed Plan shall be deemed to indicate the approximate situation only of the parcel.” They averred that the Plaintiff had not demonstrated that they were carrying out business on the purported plot No. 1200 and therefore there was no proof of trespass and that mesne profits were not payable. 24.The 6th Defendant submitted that the real issue in dispute is whether Plot No. Embu/Municipality/1200 is the same property as Plot Nos. 120 and 170, a question that can only be resolved through evidence from the Commissioner of Lands, Director of Survey and the Chief Land Registrar who were not joined in the suit. They contended that the Plaintiff failed to prove that Embu/Municipality/1200 is the same parcel as Plot Nos. 120 and 170. They submitted that the Plaintiff did not produce a survey report, call a surveyor, or join the Director of Survey to establish the location, size, and relationship between the parcels in dispute. According to the 6th Defendant, this evidential gap was fatal because a finding of trespass could only arise after establishing that the Defendants are occupying the Plaintiff’s land. 25.They further submitted that the sizes of the plots raise doubt as to the Plaintiff’s claim, noting that Embu/Municipality/1200 measures approximately 0.040 hectares equivalent to 50 by 100 while Plot Nos. 120 and 170 each measure 50 by 100. In its view, the Plaintiff failed to demonstrate how one parcel could correspond to two separate plots. They also questioned the authenticity and validity of the Plaintiff’s title and acquisition process, arguing that there were inconsistencies regarding the auction through which the Plaintiff allegedly acquired the property. They also pointed to the absence of supporting documents such as an official search showing the Plaintiffs ownership of plot No. 1200 at the time of filing suit, a chain of title to trace the history of Plot No. 1200 from its original allocation to its supposed acquisition by the Plaintiff, no evidence of a public auction that is no advertisement, bank receipts or witnesses form the auction process. 26.They submitted that in contrast, the 1st to 5th Defendants and their landlord had demonstrated a clear history of ownership of Plot Nos. 120 and 170 dating back to allocations made in 1974. They also noted that the landlord had paid land rent and rates over the years to the Municipal Council of Embu. They urged that the suit be dismissed. 27.Having considered the pleadings, the evidence tendered by the parties, the documents produced in evidence and the rival submissions, I find that the issue for determination is whether the Plaintiff’s is entitled to the orders sought in the amended Plaint. 28.The Plaintiff’s case is founded on the assertion that he is the registered proprietor of Plot No. Embu/Municipality/1200, having acquired the same through a public auction conducted pursuant to the exercise of a chargee’s statutory power of sale. He produced in evidence a Certificate of Lease, a Certificate of Sale and a Memorandum of Sale both dated 28/10/2011 to prove the same. He contends that the County Government of Embu irregularly and unlawfully allocated the said plot to the late Ferdinand Njiru and the late Nyaga Gikuuri, purporting that the suit land comprised Plot Nos. 120 and 170. On this basis, he alleges that the 1st to 5th Defendants are unlawfully carrying out business on his Plot No. 1200, claiming that the premises are Plot Nos. 120 and 170, and therefore their occupation amounts to trespass. 29.The 1st to 5th Defendants however consistently maintained that they occupy Plot Nos. 120 and 170 as tenants of the estate of the late Ferdinand Njiru and the late Nyaga Gikuuri. They denied any connection between the suit property, Plot No. Embu/Municipality/1200, and the plots they occupy, insisting that they are separate parcels of land. They further averred that their occupation was lawful as it is based on a tenancy arrangement with their landlords who were duly allocated the said plots. In support of their case, the 1st to 5th Defendants called evidence, including that of Judith Mbeere Njiru, the administrator of the estate of Ferdinand Njiru. She testified that she is the Defendants’ landlord, having acquired Plot Nos. 120 and 170 through transmission of the estate of the late Ferdinand Njiru. She further stated that the Defendants lawfully occupy the premises as tenants of the said estate. The 1st to 5th Defendants further produced land rent and rates payment receipts, as well as business permits issued by the County Government of Embu, to demonstrate that they continue to occupy their plots. 30.The evidence of DW3, the Legal Officer of the County Government of Embu, was that the County Government was not in a position to confirm whether Plot No. 1200 and Plot Nos. 120 and 170 refer to the same parcel of land. He further stated that such a determination could only be made by a surveyor or through the production of a survey report from the office of the Director of Survey. 31.Section 107 and 109 of the Evidence act places the burden of proof on the party who wishes the Court to believe a certain fact exists. In this case, the burden of proof remained upon the Plaintiff to demonstrate, on a balance of probabilities, that the land occupied by the 1st to 5th Defendants is in fact the same land comprised in Plot No. Embu/Municipality/1200 in order to be entitled to the orders sought. In this Court’s view, the Plaintiff was unable to discharge that burden as he did not demonstrate any nexus between his Plot No. 1200 and the plots occupied by the 1st to 5th Defendants, namely Plot Nos. 120 and 170. The Court was merely given two competing descriptions of land without the benefit of expert evidence to determine whether the subject plots are related in any way. In such circumstances, the Court cannot safely or conclusively determine that the Defendants are occupying the Plaintiff’s parcel of land. 32.Having failed to prove, on a balance of probabilities, that the 1st to 5th Defendants are occupying Plot No. Embu/Municipality/1200, the Plaintiff has failed to establish the claim of trespass against them. Consequently, the orders for eviction sought against the 1st to 5th Defendants cannot issue. Likewise, the prayers for a permanent injunction and mesne profits cannot be sustained. 33.The Plaintiffs suit is hereby dismissed in its entirety with costs to the Defendants. DATED, SIGNED AND DELIVERED THIS 11TH DAY OF JUNE 2026HON E. C CHERONOELC JUDGEIn the presence of;1. M/S Kimathi H/B for Mr. Okwaro for the Plaintiff2. Mr. Ngari for the 1st-5th Defendants3. M/S Mwende H/B for Mr. Ouma for the 6th Defendant4. Ruth C/A