https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3049

Wakahiu v Ndabi & 2 others (Environment and Land Case 309 of 2018) [2026] KEELC 3049 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEELC 3049 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case 309 of 2018 JA Mogeni, J May 18, 2026 Between Francis Wakahiu Plaintiff and Willie Muhungu Ndabi 1st Defendant All Gatundu Self Help Women Group 2nd Defendant and Lenah Mukami Waweru Interested Party Judgment 1.Following the filing of a suit by way of Plaint dated 21/09/2010 amended on 1/10/2010 the Plaintiff brought this suit to Court and prays for Judgment against the Defendants for:a.An order of permanent injunction on restraining the Defendants by themselves, their servants, workmen, agents and/or whomsoever threatening physically, verbally or in writing from entering, accessing, remaining onto, getting ingress or trespassing from erecting or causing to be erected any structure thereon whether temporary or permanent thereon or from in any way interfering with the Plaintiff’s peaceful use and enjoyment of Plot Nos.474,541,097,586,486,487,495.518,529,566,582,587,595,570,603,613,620 and 634 located in Thika District pending the hearing and determination of this suit.b.A mandatory injunction compelling the 2nd Defendant to deliver all records in respect of all 198 properties and to declare the current stature of the same.c.A mandatory injunction compelling the 2nd Defendant to reinstate/restitute/rectify and interference that may have been caused to the Plaintiff’s said suit properties.d.An order compelling the Officer Commanding Police Division, Thika Police Station, Thika to ensure compliance with the orders pursuant to prayer No. a) above by the Defendants and any illegal settlers and/or trespassers of the said suit properties.e.An order that any income and/or monies being collected from all the suit properties to be deposited in Court pending the hearing of this suit.f.An order appointing an agent to ensure that the said income and/or monies are collected from all the suit properties and deposited in Court.g.Any other or further or better relief that this Honorable Court may deem fit and just and convenient to grant in the circumstance.h.A declaration that the ALL THE said suit properties lawfully belong to the Plaintiff.i.General damages for trespass.j.General damages for injury/damage to the suit land.k.Mesne profits.l.Interest on i), j) and k).m.Costs of the suit.n.Any other relief the Court deems fit to grant. 2.The 2nd Defendant denied the claim in its Defense dated 7/04/2011 in toto. 3.The 1st and Interested Parties did not file any responses to the Plaintiff’s claim. 4.At paragraph 4 and 5 of the 2nd Defendant’s Defence, the Defendant denies that the Plaintiff is the registered allottee of plot No. 474,541,097,586,486,487.495.518, 529.566.582, 587, 595,570,603,613,620 and 634 and further states that plot No. 613 belongs to the Interested Party. The 2nd Defendant denies all other aspects of the Plaint. 5.I took over this matter as a part-heard from my sister Lady Justice Kemei who had taken evidence of PW1 and I took the evidence of the 2nd Defendant in open Court. The 1st Defendant and the Interested Party did not attend Court nor file any pleadings. Plaintiff’s Case 6.The Plaintiff’s case was first heard on 18/05/2023 when the Plaintiff, Francis Wakahiu testified as PW1 and adopted his witness statement dated 13/05/2011 as evidence in chief and produced his list of documents of even date which appear in the trial bundle from pages 6-110. He claimed to have bought about 200 plots from the 2nd Defendant between 2003 to 2006. He testified that he dealt with the 1st Defendant and transacted through him as the clerk of the 2nd Defendant. 7.He told the Court that he got ballots and transfer from the 2nd Defendant written in his name which was entered in the register. That some of his plots were transferred without his knowledge. 8.According to him, the 1st Defendant interfered with the register as the Directors of the 2nd Defendant are illiterate. 9.He testified having discovered in 2010 that his plots had been transferred to third parties without his knowledge and consent and he reported to the Police and filed the instant suit. 10.Upon cross-examination, he told the Court that the Directors of the 2nd Defendant sold about 4 plots to him and the rest of the plots were sold to him by the groups and that he did not have any agreements with the group. The transactions are as reflected in the documents filed from pages 6 of the trial bundle. 11.He testified having had informal agreements with the 2nd Defendant and that he paid the 2nd Defendant through bank transfers. That the transactions were done in Kikuyu language since the Directors were illiterate. He also stated that there are 18 plots where other parties have developed but that he did not know who sold the land to them. 12.It was his testimony that he did not inform the third parties about the instant suit since he had instructed his Advocate. He told the Court that his name is still in the register of the 2nd Defendant and that he had no evidence to show that the 1st Defendant was an employee of the 2nd Defendant. 13.According to his testimony he purchased plot No. 474 from Mwirigi Women Groups as shown at page 28 of the Plaintiff’s bundle and parcel 595. He mentioned that plots 487 and 582 belong to him as per the register which he got from the CID but on the ground the said plots are occupied by third parties and yet he did not sell the land to them. He alleges that the 1st Defendant colluded with the 2nd Defendant Directors to sell his plots to third parties. That he has also not been issued with titles. 14.When cross-examined further he stated that the 2nd Defendant never denied that the 1st Defendant was their employee since he acted for them and as their employee but that he had no documents to support his claim. 15.The Plaintiff concluded his case by stating that he believed that the 1st Defendant who prepared agreements for him did that on behalf of the 2nd Defendants and he knew where the land was on the ground. Since he believed he was a clerk of the 2nd Defendant despite not having any documents to support that belief. With this the Counsel for the Plaintiff Ms Sang closed the Plaintiff’s case. 16.When the matter came up for hearing on 13/05/2024 the Counsel for the Plaintiff sought leave to serve the 1st Defendant by way of substituted service which was granted. The Plaintiff on 19/11/2024 confirmed having served the 1st Defendant by substituted service. 17.Finally, the defence hearing proceeded on 21/07/2025 without attendance of the 1st Defendant and the Interested Party. 2nd Defendant’s Case 18.The 2nd Defendant Joyce Wanjiru Muigai testified as DW2 and adopted her witness statement as evidence in chief and the list of documents with 14 documents. She testified that she was Secretary in the All Gatundu Self Help Women Group. She told the Court that she was Secretary to the 2nd Defendant group and all members in the group were allocated plots. 19.It was her testimony that she did not know who Francis Wakahiu Theuri (Plaintiff) is. That the plots given to members saw members get two plots each and that these plots were given to members by the MP of Gatundu. 20.She stated that since each women group had its own plots, she was not aware if some groups sold land to the Plaintiff. At the same time, she testified not knowing which members had constructed on the respective plots. That the Plaintiff should claim his plots from those who have constructed on his plots or from the groups that sold the plots to him. 21.At this point the Counsel for the Plaintiff who came to Court late cross-examined the witness. Upon being cross-examined, the DW2 told the Court that it is true that the Plaintiff was sold the suit properties by Matangi Women Group and so he owns the suit property. With that the 2nd Defendant closed their case. 22.The parties were directed to file written submissions. The Plaintiff filed submissions dated 16/12/2025 and the 2nd Defendant filed theirs dated 4/12/2025. Plaintiff’s Submissions 23.The Plaintiff's submissions are presented in support of his case and draw upon his pleadings, witness statement, evidence adduced at trial, applicable statutes, and relevant case law. He seeks declaratory orders, permanent and mandatory injunctions, mesne profits, damages for trespass, and ancillary reliefs arising from the unlawful interference with the suit properties. 24.He submits that between 2003 and 2006, the Plaintiff lawfully purchased one hundred and ninety-eight plots, among them Plot Numbers 474, 541, 097, 586, 486, 487, 495, 518, 529, 566, 582, 587, 595, 570, 603, 613, 620 and 634, all situated within Thika Municipality, from the 2nd Defendant. He is said to have fully complied with the conditions of the respective Letters of Allotment and paid the full purchase price, thereby becoming the lawful allottee of the suit properties. 25.According to the Plaintiff, the 2nd Defendant, failed to issue title documents despite repeated assurances that titles would be processed. In July 2010, upon inspecting the plots, the Plaintiff discovered that illegal settlers had erected structures thereon without his knowledge or consent. When he confronted those settlers, they asserted competing claims of purchase from the Defendants, and the 2nd Defendant's own Chairperson subsequently confirmed to the Plaintiff that the 1st Defendant an employee of the 2nd Defendant had engaged in double allocation by irregularly selling the Plaintiff's plots to third parties. 26.He further submits that notwithstanding this admission, the 2nd Defendant refused to provide relevant records, failed to reverse the double allocations, declined to take disciplinary or corrective action against the 1st Defendant, and made no effort to assist the Plaintiff in recovering possession. As a consequence, the Plaintiff has since been denied possession of the suit properties, suffered continuous trespass, incurred loss of use, and endured threats. 27.In his submissions, the Plaintiff identifies five discrete issues for the Court's determination, namely: whether he is the lawful allottee and beneficial owner of the suit properties; whether the Defendants unlawfully and fraudulently caused the double allocation of those properties; whether the Defendants are liable in trespass, interference with proprietary rights, and loss suffered; whether the Plaintiff is entitled to the injunctive, declaratory, mandatory, and compensatory reliefs sought; and who ought to bear the costs of the suit. 28.To address these issues the Plaintiff submits that proof of a Letter of Allotment coupled with full compliance with its conditions confers a legally enforceable interest in land. He places reliance on the Court of Appeal's decision in Wreck Motors Enterprises v Commissioner of Lands [1997] eKLR, wherein the Court held that title to landed property ordinarily arises upon the issuance of a Letter of Allotment and satisfaction of the conditions therein. He further relies on Nelson Kazungu Chai & 9 Others v Pwani University (2014) eKLR for the proposition that a valid allottee holds a protectable interest enforceable against third parties. On this basis, the Plaintiff contends that his equitable interest is superior to and overrides any purported allocation made in favour of the persons currently occupying the suit properties. 29.The Plaintiff submits that the 2nd Defendant made express admissions confirming that double allocations had occurred, that the 1st Defendant had been irregularly selling plots, that complaints had been received from multiple allottees, and that records were not properly maintained. He invokes the principle articulated in Vijay Morjaria v Nansingh Madhusingh Darbar (2000) eKLR that fraud, though requiring strict proof, may be established by way of circumstantial evidence. It is submitted that the Defendants had knowledge of the Plaintiff's prior purchases, deliberately concealed material facts, and consciously permitted further allocations of the same plots. Their sustained silence and failure to rectify the position, it is further submitted, constitutes constructive fraud and gross negligence, rendering them jointly liable. 30.The Plaintiff submits that trespass consists in any unjustified intrusion upon another's land and that, as held in Park Towers Ltd v John Mithamo Maina (2014) eKLR, proof of trespass gives rise to an entitlement to damages as a matter of course, even in the absence of proved actual loss. The Defendants are said to have allowed illegal settlers onto the Plaintiff's land, perpetuated the double allocations, and persistently failed to take any steps to remove the trespassers. The Plaintiff has, on his account, been excluded from possession continuously since 2010. It is further submitted that the Defendants' conduct constitutes a violation of the Plaintiff's right to property as guaranteed under Article 40 of the Constitution of Kenya, 2010. 31.The Plaintiff urges the Court to grant a mandatory injunction restraining the Defendants, their agents, employees, and all persons claiming through them from trespassing upon or continuing to trespass upon the suit properties. He contends that the ongoing nature of the interference and the threats levelled at him amply demonstrate both the existence of a clear proprietary right and the necessity of injunctive protection. On general damages, the Plaintiff submits that his exclusion from the suit properties since at least 2010 entitles him to compensation for trespass. On mesne profits, he invokes Sections 2 and 12 of the Civil Procedure Act, Cap. 21, submitting that the commercial character of the plots and the developments that have taken place thereon make an award of mesne profits appropriate compensation for his loss of use. As regards costs, the Plaintiff relies on Section 27 of the Civil Procedure Act for the established principle that costs follow the event, and submits that the Defendants' conduct made litigation unavoidable. 32.The Plaintiff submits that he has discharged the burden of proof on a balance of probabilities, having established that he is the lawful allottee of the suit properties and that the Defendants acted unlawfully and fraudulently in causing double allocations, permitting trespass, and interfering with his proprietary rights. He accordingly urges the Court to grant all orders as prayed for in the Plaint. 2nd Defendant’s Submissions 33.The 2nd Defendant's submissions are presented in opposition to the Plaintiff's claim and urge the Court to dismiss the suit with costs. The suit was filed by way of a Plaint on 22/09/2010, later amended on 1st October 2010. 34.The 2nd Defendant in its submissions sets out the Plaintiff's case as it emerged from the evidence. The Plaintiff claimed to have purchased one hundred and ninety-eight plots from groups affiliated to the 2nd Defendant, and that the 2nd Defendant's role was limited to endorsing transfers upon the Plaintiff presenting sale agreements, ballots, and affiliate group officials attending at the 2nd Defendant's offices to execute the transfer documents. 35.Importantly, the 2nd Defendant submits that the Plaintiff himself clarified that it was only eighteen of those plots that were the subject of dispute, and that those plots had occupants on the ground. He stated that he had reported the illegal occupation to Thika Police, but he failed to inform the Court of the outcome of that report. He neither provided the OB number of the Police report nor disclosed the names of the persons who had erected structures on the disputed plots. 36.Upon cross-examination according to the 2nd Defendant, the Plaintiff disclosed that only four groups had sold plots to him. He further conceded that he had never issued demand letters to the occupants of the eighteen plots requiring them to vacate, and that he had not joined those occupants as parties to the suit. In a particularly significant admission made during re-examination by his own Counsel, the Plaintiff conceded that he had no documentary proof that the 1st Defendant was an employee of the 2nd Defendant. 37.Furthermore the 2nd Defendant states that the Plaintiff further admitted that the 1st Defendant had not signed any transfer documents in conjunction with the 2nd Defendant, and that whatever the 1st Defendant did was done independently and without the knowledge of the 2nd Defendant. That the Plaintiff additionally admitted that there had been no tampering with the Register held in the custody of the 2nd Defendant. The 2nd Defendant further notes that the Plaintiff did not produce any of the allegedly irregular transfer documents in evidence, did not call any person who purportedly received an irregularly transferred plot as a witness, and placed no rental income records or accounts before the Court in support of his claim for mesne profits. 38.It is their submissions that the 2nd Defendant's official testified that all documents held by the 2nd Defendant are intact, that the 2nd Defendant's records reflect the Plaintiff as the registered owner of all the plots claimed, save for the one subject to a claim by an Interested Party. The official was unequivocal that should the Plaintiff present the requisite documentation for issuance of title deeds, the 2nd Defendant has no objection to facilitating the transfer of whatever is rightfully his. That position was, in the 2nd Defendant's submission, corroborated by documents produced in evidence by both parties, which consistently reflected the Plaintiff as the rightful owner. 39.On the prayer for a permanent injunction, the 2nd Defendant submits that the Plaintiff's own evidence established that the 2nd Defendant is not in occupation of the disputed plots and has no agents or servants on the ground. There is accordingly no basis in law or on the evidence to grant injunctive relief against the 2nd Defendant or any person claiming through it. 40.On the prayer for delivery of records and a declaration as to the current status of all one hundred and ninety-eight properties, the 2nd Defendant submits that a party is bound by its pleadings and that the Plaintiff furnished plot details and numbers for only eighteen plots. The Court is accordingly not in a position to make orders in respect of properties whose particulars have never been placed before it. 41.On the prayer relating to the removal of occupants from the eighteen disputed plots, the 2nd Defendant submits that the failure to join the occupants as parties to these proceedings is a matter of fundamental importance. The law is settled that no party ought to be condemned unheard, and the Plaintiff has offered no explanation for his failure to make the occupants parties to the suit. Any orders issued against unknown and unjoined occupants would, on the 2nd Defendant’s submission, be a recipe for chaos. 42.On the prayers for mesne profits, general damages, and related compensatory reliefs, the 2nd Defendant submits that the Plaintiff placed no income assessments, rental valuations, or accounts before the Court in respect of any of the eighteen properties. There is accordingly no evidential foundation upon which the Court could properly make an award under those heads. Further, the 2nd Defendant submits that the Plaintiff has failed to demonstrate what damage, if any, has been caused specifically by the 2nd Defendant, which at all material times acted merely as a custodian of records for the various groups operating under its umbrella. 43.The 2nd Defendant submits that the proper course of action for the Plaintiff was to ascertain the identities of the persons occupying the disputed plots and to institute proceedings against them individually or jointly. Instead, the Plaintiff chose to drag the 2nd Defendant into litigation in circumstances where its own records vindicate the Plaintiff's ownership and where it played no role in the alleged trespass. The 2nd Defendant accordingly submits that the Plaintiff has failed to prove his case against it on a balance of probabilities, and urges the Court to dismiss the suit with costs awarded to the 2nd Defendant. Analysis and Determination 44.This matter came before the Court by way of a Plaint dated 21/09/2010, amended on 1/10/2010, in which the Plaintiff, Francis Wakahiu Theuri, seeks a raft of reliefs against the 1st and 2nd Defendants arising from the alleged unlawful double allocation of plots situated within Thika Municipality. 45.The 2nd Defendant entered a Defence in April 2011 denying the claim in its entirety and putting the Plaintiff to strict proof. The 1st Defendant and the Interested Party filed no responses to the Plaintiff's claim and, neither did the 1st Defendant nor the Interested Party attend Court when the matter proceeded. The parties subsequently filed written submissions, and it now falls upon the Court to analyse the evidence and submissions and to pronounce itself on the issues arising. 46.Having considered the pleadings, the evidence adduced by both sides, and the rival submissions, the Court identifies the following as the key issues calling for determination:1.Whether the Plaintiff is the lawful allottee and beneficial owner of the eighteen suit properties;2.Whether the 1st Defendant was an employee or agent of the 2nd Defendant and whether the 2nd Defendant is therefore vicariously liable for the double allocations alleged;3.Whether, the Defendants unlawfully and fraudulently caused the double allocation of the suit properties;4.Whether the Plaintiff has made out a case in trespass and interference with proprietary rights against the 2nd Defendant;5.Whether the Plaintiff is entitled to the injunctive, declaratory, mandatory, and compensatory reliefs sought; and6.Who ought to bear the costs of this suit? 47.On the first issue, the evidence before the Court is, to a large extent, uncontroverted. The 2nd Defendant's own witness, Joyce Wanjiru Muigai, testified on behalf of the 2nd Defendant and, upon cross-examination, made the candid concession that the Plaintiff was indeed sold the suit properties by Matangi Women Group and that he therefore owns the suit properties. That admission, coming from the 2nd Defendant's own witness, is of considerable weight and is not lightly to be disregarded. It is in fact consistent with the position consistently maintained by the 2nd Defendant's official throughout the proceedings, namely that the 2nd Defendant's records are intact and reflect the Plaintiff as the rightful owner of all the plots claimed, save for Plot No. 613 which is the subject of a competing claim by the Interested Party. 48.The documentary evidence produced by both parties, as it appears in the trial bundle, is equally consistent with the Plaintiff's ownership. The Court is therefore satisfied, and finds as a fact, that the Plaintiff is the lawful allottee and beneficial owner of the eighteen suit properties. The 2nd Defendant's denial of this fact in its pleadings is plainly inconsistent with the position adopted by its own witness in the witness box and with the documentary record, and it cannot be sustained. 49.The Plaintiff has placed reliance on the Court of Appeal's decision in Wreck Motors Enterprises v Commissioner of Lands (supra) for the proposition that title to landed property ordinarily comes into existence upon the issuance of a letter of allotment and satisfaction of its conditions. He has further relied on Nelson Kazungu Chai & 9 Others v Pwani University (2014) eKLR for the proposition that a valid allottee holds a protectable interest enforceable against third parties. The Court finds these authorities persuasive and applicable. 50.It is also instructive to have regard to the Supreme Court of Kenya's decision in Malcolm Bell v Daniel Toroitich Arap Moi & Another [2013] eKLR, wherein the Court emphasized that property rights, once vested, attract the full protection of the law and that any interference therewith must be justified by clear and cogent legal authority. That principle gains additional constitutional force from Article 40 of the Constitution of Kenya, 2010, which guarantees every person the right to acquire and own property of any description and prohibits the arbitrary deprivation of property. On the totality of the evidence, the Plaintiff has discharged the burden of establishing his lawful allotment of and beneficial entitlement to the suit properties. 51.The second issue is more contentious and turns significantly on the admissions made by the Plaintiff himself in the course of his testimony. During re-examination by his own Counsel, the Plaintiff made several admissions that materially undermine the case he sought to advance against the 2nd Defendant in this regard. He conceded that he had no documentary evidence to establish that the 1st Defendant was an employee of the 2nd Defendant. He further admitted that the 1st Defendant did not sign any documents jointly with the 2nd Defendant, and that whatever the 1st Defendant did was done on his own, independently and without the knowledge of the 2nd Defendant. These are not peripheral concessions. They go to the very heart of the Plaintiff's case against the 2nd Defendant, which was premised substantially on the assertion that the 1st Defendant acted as clerk or agent of the 2nd Defendant and that the 2nd Defendant must therefore answer for his conduct. 52.The doctrine of vicarious liability, as expounded in Clerk and Lindsell on Torts, 22nd Edition, requires the claimant to establish not merely that a wrongful act was committed by a third party, but that the relationship between that third party and the Defendant was of such a nature as to render the Defendant answerable at law for that wrongful act. The conventional test, as articulated in the English Court of Appeal's decision in Lister v Hesley Hall Ltd [2002] 1 AC 215, and subsequently adopted and applied by Kenyan Courts, asks whether there is a sufficient connection between the relationship of the wrongdoer and the Defendant on the one hand and the wrongful act on the other. In this case, the Plaintiff's own evidence dismantles the factual foundation upon which such a connection could have been established. The Plaintiff testified that he believed the 1st Defendant was a clerk of the 2nd Defendant, but he acknowledged that this belief was unsupported by any documentary or other credible evidence. 53.Where a Plaintiff seeks to establish agency, it is not sufficient to assert it in pleadings; it must be proved by credible evidence. The Plaintiff having himself dismantled the factual foundation upon which vicarious liability could be fastened to the 2nd Defendant, it is not open to the Court to hold the 2nd Defendant answerable for the acts of the 1st Defendant. The Court accordingly finds that the Plaintiff has not established that the 1st Defendant was at any material time an employee or agent of the 2nd Defendant so as to render the 2nd Defendant vicariously liable. Accordingly, the Court finds that the Plaintiff has not established that the 1st Defendant was at any material time an employee or agent of the 2nd Defendant. 54.The Plaintiff also sought to establish that the Defendants, jointly or severally, engaged in deliberate and fraudulent double allocation of his plots. He invoked the principle in Vijay Morjaria v Nansingh Madhusingh Darbar (supra) that fraud may be proved by circumstantial evidence. The Court accepts that as a correct statement of the law. However, even accepting that standard, the Plaintiff's evidence falls significantly short of what is required considering the circumstances. It is not disputed that the plots are occupied by third parties. What is in dispute is who is responsible for that state of affairs and whether it came about through fraudulent conduct on the part of the 2nd Defendant. The Plaintiff could not identify the persons occupying the plots. 55.He did not produce any irregular transfer documents. He called no witness who had received a purported irregular transfer. He did not join the occupants as parties to these proceedings. More critically, he himself admitted that the 2nd Defendant's register had not been tampered with. A finding of fraud against the 2nd Defendant on evidence of falls short of the required standard by law. The Plaintiff has not proved fraud against the 2nd Defendant to the requisite standard, which, as the Court of Appeal has emphasized in numerous decisions, must be high in proportion to the gravity of the allegation. 56.The standard of proof required to establish fraud in civil proceedings has been the subject of extensive judicial consideration in this jurisdiction. In Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR, the Court of Appeal reiterated that fraud must be specifically pleaded and strictly proved, and that the degree of proof required is commensurate with the gravity of the allegation. It was stated that:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently.” 57.Lord Denning in the case of Lazarus Estates Ltd v Beasley [1956] 1 QB 702., stated as follows on fraud:“No Court in this land will allow a person to keep an advantage which he has obtained by fraud. No Judgment of a Court ... can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.” 58.The same principle was affirmed by the Supreme Court of Kenya in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & Others [2017] eKLR, where the Court observed that the standard of proof escalates in proportion to the gravity of the matters alleged. 59.As against the 1st Defendant, the position is different. The 1st Defendant chose not to participate in these proceedings and filed no Defence. The 1st Defendant was ultimately served by way of substituted service and the Plaintiff's own evidence, taken with the 2nd Defendant's own concession that the 1st Defendant appeared to have acted independently in preparing transfer documents, raises a prima facie case that the 1st Defendant's conduct may well have been at the root of the irregular disposals that left third parties occupying the Plaintiff's plots. In the absence of any Defence or evidence from the 1st Defendant, the Court is entitled to draw the appropriate inferences that the Plaintiff's uncontroverted evidence as against the 1st Defendant stands. The Australian Court in Jones v Dunkel [1959] HCA 8 addressed the issue of drawing an adverse inference against a party who fails to call a witness or provide evidence that would logically be expected to support their case. 60.At the same time, the Plaintiff claims to have been dispossessed of the suit properties since 2010, and the evidence establishes that third parties are in occupation of the plots. The Plaintiff invoked Park Towers Ltd v John Mithamo Maina (supra) for the proposition that once trespass is proved, damages follow as a matter of course. He also relied on Article 40 of the Constitution of Kenya, 2010 in support of his right to the undisturbed enjoyment of his property. 61.There is considerable evidence and force in the Plaintiff's case on trespass viewed in isolation. The problem, however, lies in the manner in which the Plaintiff chose to conduct the litigation. Trespass to land is defined in Clerk and Lindsell on Torts, 22nd Edition, as:“Any unjustifiable intrusion by one person upon land in the possession of another." 62.Black's Law Dictionary, 11th Edition, similarly defines it as:“An unlawful act committed against the person or property of another, especially wrongful entry on another's real property." 63.The essential elements of the tort are, first, the possession of land by the Plaintiff, and second, an unjustified intrusion thereupon by the Defendant or a person for whom the Defendant bears responsibility. On the facts of this case, the Plaintiff's possession has been clearly established and the occupation by third parties is not in dispute. There is accordingly a prima facie case of trespass on the facts. 64.The Plaintiff could not identify the persons occupying the plots. He produced no irregular transfer documents. He called no witness who had received a purported irregular transfer. He did not join the occupants as parties to these proceedings. More critically, he himself admitted acknowledged in the witness box that he did not know who sold the land to those occupants that the 2nd Defendant's register had not been tampered with. The 2nd Defendant correctly points out that no party ought to be condemned unheard. Any orders directed at unidentified and un-joined occupants would be, as the 2nd Defendant rightly submits, a recipe for chaos. 65.The Court of Appeal in Lawrence Nduttu & 6000 Others v Kenya Breweries Ltd & Another [2012] eKLR reaffirmed that orders cannot be made against parties who have not been afforded an opportunity to be heard. Any orders purporting to compel the removal of unidentified and un-joined occupants would therefore be made in a procedural vacuum and would be incapable of enforcement. 66.Furthermore, as Halsbury's Laws of England, Volume 4, observes in the context of necessary parties, where the rights of third parties would be directly and materially affected by the outcome of litigation, those parties are necessary parties and their joinder is not merely desirable but essential to the proper constitution of the suit. The failure to join the occupants of the eighteen disputed plots is accordingly a significant procedural shortcoming that constrains the range of reliefs the Court may competently grant at this stage. 67.The Plaintiff seeks a permanent injunction against both Defendants, mandatory orders compelling the 2nd Defendant to deliver records and rectify any interference, mesne profits, general damages for trespass, and a declaration of ownership. Having found that the Plaintiff is the lawful allottee and beneficial owner of the suit properties, the declaratory relief is warranted and shall issue. The 2nd Defendant's records themselves confirm the Plaintiff's ownership, and there is accordingly no impediment to that declaration being made. 68.On the mandatory injunction compelling the 2nd Defendant to deliver records and to facilitate the issuance of title deeds, the 2nd Defendant's witness was categorical that the 2nd Defendant has no objection to doing exactly that, subject to the Plaintiff presenting the requisite documentation. The Court shall give effect to that position by way of a formal order. The Plaintiff has been waiting for title documents since 2006, and the continued absence of titles has clearly contributed to his inability to enforce his proprietary rights against the occupants. That situation cannot be allowed to persist. 69.On the permanent injunction against the 2nd Defendant restraining it from trespassing on the suit properties, the evidence does not support such an order. The 2nd Defendant is not in occupation and has no servants or agents on the ground. An injunction against the 2nd Defendant in those terms would be directed at a party against whom no act of trespass or threatened trespass has been established, and the Court declines to issue it in those terms. 70.On mesne profits and general damages for trespass, the Plaintiff, while clearly having been dispossessed of his plots since 2010 and thereby suffering real loss, failed to place before the Court any income assessments, rental valuations, or accounts capable of forming the basis of a quantified award. It is trite that while nominal damages may be awarded for trespass without proof of actual loss, an award of mesne profits presupposes some evidential material upon which the Court can assess the value of use and occupation from which the Plaintiff has been excluded. In the complete absence of any such evidence, a meaningful award of mesne profits cannot be made. The Court will award nominal general damages for the proven trespass. 71.Having considered the totality of the evidence, the pleadings, and the submissions of the parties, the Court makes the following orders:i.A declaration is hereby issued that the suit properties, being Plot Numbers 474, 541, 097, 586, 486, 487, 495, 518, 529, 566, 582, 587, 595, 570, 603, 613, 620, and 634 situated within Thika Municipality, lawfully belong to the Plaintiff, Francis Wakahiu Theuri, as the lawful allottee thereof, subject to the competing claim of the Interested Party in respect of Plot No. 613 which shall be determined separately.ii.The 2nd Defendant is hereby directed, by way of mandatory order, to process and facilitate the issuance of title deeds to the Plaintiff in respect of all plots in which the Plaintiff is reflected as the registered allottee in the 2nd Defendant's records, within 90 (ninety days) of the date of this Judgment, upon the Plaintiff presenting the requisite documentation.iii.The Plaintiff is awarded nominal general damages for trespass in the sum of Kesh 200,000, having regard to the prolonged period of dispossession since 2010, but in the absence of evidence to found a higher award.iv.The prayer for mesne profits is declined for want of an evidential basis upon which to quantify the same.v.The prayer for a permanent injunction against the 2nd Defendant is declined, as the evidence does not establish any act or threatened act of trespass on the part of the 2nd Defendant.vi.The Plaintiff is at liberty to institute fresh proceedings against the persons currently in occupation of the suit properties, having first obtained title deeds and ascertained the identities of those occupants.vii.The 1st Defendant, having neither filed a Defence nor participated in these proceedings despite service, and the uncontroverted evidence suggesting that the 1st Defendant's conduct was at the root of the irregular dealings with the Plaintiff's plots, Judgment is entered against the 1st Defendant in terms of the declaratory and injunctive reliefs sought by the Plaintiff, with costs to follow.viii.On costs as between the Plaintiff and the 2nd Defendant, having regard to the partial success of the Plaintiff's case and the 2nd Defendant’s own concessions, each party shall bear its own costs.ix.Costs of the proceedings as against the 1st Defendant shall be borne by the 1st Defendant. 72.It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 18TH DAY OF MAY, 2026.MOGENI JJUDGEIn the presence of:Mr. Alusa for the PlaintiffDefendant – AbsentMr. Melita - Court AssistantMOGENI JJUDGE