https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5235

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAROK** **ELC NO. E028 OF 2025** **JAMES ENINA SADERA …………………………………….. PLAINTTIFF** **VERSUS** **CHARLES RONTE NABAALA ………………………… 1ST DEFENDANT** **COLLINS LESHAN NABAALA ……………………….. 2ND DEFENDANT** **JUDGMENT** 1. The Plaintiff herein ***James Enina Sadera*** instituted this suit vide a Plaint dated ***16th September 2024,*** as against the Defendants in respect of all that land known as ***NAROK/OLOCHORO OROWUA/10*** (hereinafter referred to as “the ***Suit Property****”).* 2. The Plaintiff averred that he is the registered proprietor of the Suit Property known as **Narok/Olochoro Orowua/10,** having been registered as owner in the year **1977**; and that he was in possession of the suit property and utilized it for farming while occasionally leasing it to interested persons. 3. The Plaintiff further averred that in **1990**, the Defendants ***unlawfully entered*** unto the suit property, ***dispossessed*** him thereof and remained in occupation until **2017**, when he forcefully regained possession of the said suit Property. 4. It is the Plaintiff’s case that during the period of ***their occupation***, the Defendants ***cultivated*** the suit property, ***grazed livestock*** thereon, ***leased portions*** of the land to third parties and denied him access to and enjoyment of his property, thereby depriving him of its use and economic benefit. 5. The Plaintiff particularized his loss to include; the Defendants’ alleged unlawful occupation of the suit Property without his consent; the leasing of the suit property to third parties and receipt of rental income amounting to ***Kshs. 7,672,800***; the alleged realization of profits from cultivation amounting to ***Kshs.* *74,520,000/=***; and the loss of use and enjoyment of the suit property, thereby depriving him of the opportunity to utilize the land and realize its full economic potential. 6. Consequently, the Plaintiff prayed for judgment against the Defendants jointly and severally for: 7. ***Special damages of Kshs. 7,672,800/= for rent collected by the Defendants from NAROK/OLOCHORO OIROWUA/10.*** 8. ***Mesne profits at a rate of Kshs. 2,760,000/= per annum from the year 1990 till the year 2017 amounting to Kshs. 74,520,000/=.*** 9. ***General damages.*** 10. ***Costs and interest of the suit to be awarded to the Plaintiff.*** 11. In response to the Plaint, the Defendants filed their joint Statement of Defence dated ***7th March 2025,*** and denied that the Plaintiff became the registered proprietor of the suit property in ***1977****,* contending that the title deed was issued on ***3rd May 1989*** as reflected on the title document. 12. They further denied any knowledge of the Plaintiff’s alleged leasing of the suit property to third parties, maintaining that they were not privy to any such arrangements. 13. The Defendants denied that they ***unlawfully entered*** or ***took possession*** of the suit property in ***1990***; and that at the material time, the 1st Defendant was approximately ***16 years*** old while the 2nd Defendant was about ***5 years*** old and, as such, they were incapable of invading or taking possession of the Plaintiff’s land. 14. The Defendants averred that they are the biological children of the late ***MOSES KASAINE OLE NABAALA****,* the registered proprietor of Land Parcel No. ***CISMARA/OLCHORO-OIROWUA/9****,* and that they resided with their parents on the said parcel of land and not on the Plaintiff’s property. 15. The Defendants further denied ever encroaching upon, occupying, cultivating, leasing or otherwise taking possession of the Plaintiff’s land and denied the Plaintiff’s claim for mesne profits and the alleged losses pleaded. They also denied having been served with a demand or notice of intention to sue. 16. The Defendants further pleaded that contrary to the Plaintiff’s averment, there had been previous proceedings between the parties, namely ***Narok Chief Magistrate’s Court MELC No. 110 of 2018****,* concerning Land Parcel No. ***CISMARA/OLCHORO-OIROWUA/10****.* 17. Consequently, the Defendants prayed that the Plaintiff’s suit be dismissed with costs. 18. The Plaintiff filed a Reply to the Defendants’ Statement of Defence dated ***25th June 2025***, wherein he joined issue with the Defendants and reiterated the averments contained in the Plaint and maintained that he is the lawful proprietor of the suit property. 19. The Plaintiff further maintained that it was the Defendants’ deceased father who had initially interfered with his quiet possession of the suit property and contended that the Defendants subsequently ignored the boundary separating the two parcels of land, encroached onto Land Parcel No. ***NAROK/OLOCHORO OIROWUA/10****,* occupied and leased portions thereof to third parties. 20. With regard to the Defendants’ assertion that there had been previous proceedings between the parties, the Plaintiff averred that it was the Defendants who had instituted ***Narok Chief Magistrate’s Court MCELC No. 110 of 2018,***alleging that he had encroached onto their land, but that the court determined the dispute in his favour. 21. The Plaintiff further contended that the Defence consisted of mere denials, lacked specificity, failed to raise any triable issues and was therefore a sham and an abuse of the court process. Consequently, he prayed for judgment in terms of the Plaint. 22. After pre-trial conference, the matter proceeded for hearing via ***viva voce,*** evidence. The Plaintiff gave evidence for himself, and called no witness. The Defendants gave evidence through the 1st Defendant, and did not call any other witness. ***PLAINTIFF’S CASE*** 1. ***PW1: James Enina Sadera*,** adopted his witness statement dated ***16th September 2024,*** as part of his evidence; produced his list of documents dated ***16th September 2024,*** as Plaintiff’s ***Exhibits 1 – 3*** and his supplementary list of documents as ***Plaintiff’s Exhibits 4 – 8.*** 2. **PW1** testified that he was the registered proprietor of Land Parcel No. ***NAROK/OLOCHORO OIROWUA/10***, having been registered as its owner in ***1977***; and that upon registration, he took possession of the suit property, developed it into a habitable state and utilized it for cultivation and grazing livestock. 3. He further testified that the suit property was productive and yielded between ***10 and 20 bags*** per acre, translating to between ***1,840 and 3,680 bags*** annually. According to him, each bag sold at approximately ***Kshs. 1,500/=,*** enabling him to earn between ***Kshs. 2,760,000/= and Kshs. 5,520,000/=,*** annually depending on the prevailing climatic conditions. He further testified that during the off-season, he utilized the land for grazing his cattle. 4. It was his evidence that although there had been boundary disputes over the years, the Defendants ***unlawfully entered unto*** the suit property in ***1990***, interfered with his ***possession***, occupied a portion of the land, cultivated it and leased it to third parties for their own benefit. 5. He further testified that besides cultivating the land, the Defendants collected rent from third parties and also utilized the land for grazing cattle. He urged the Court to grant him justice on the ground that the Defendants had unlawfully deprived him and his family of the use and benefit of his land while enriching themselves from its proceeds. 6. Upon cross examination, PW1 stated that he used the land peacefully from ***1977*** *until* ***1990,*** when the late ***MOSES KASAINE NABAALA*** complained about the common boundary of their lands; that they were directed to the Land Registry; and that in ***1987***, the common boundary was confirmed to be a Ravine. 7. He confirmed that the title deed is dated ***3rd May 1989***; and that the land has since changed to ***CIS-MARA/OLCHORO-OIROUWA/275****.* ***DEFENDANTS’ CASE*** 1. ***DW1: Charles Ronte Nabaala*,** adopted his witness statement dated ***7th March 2025,*** as part of his evidence, and further testified that the 2nd Defendant and himself are the biological children of the late ***MOSES KASAINE OLE NABAALA***, who was the registered proprietor of Land Parcel No. ***CISMARA/OLCHORO-OIROWUA/9;*** and that they grew up and have always resided on the said parcel of land together with their parents and not on the Plaintiff’s parcel of land. 2. DW1 denied ever trespassing onto, occupying, cultivating, leasing, or encroaching upon Land Parcel No. ***NAROK/OLOCHORO OIROWUA/10***. He maintained that neither he nor the 2nd Defendant had ever dispossessed the Plaintiff of the suit property or deprived him of its use and enjoyment. 3. It was DW1’s further testimony that the Plaintiff had not tendered any evidence to demonstrate that the Defendants had occupied the suit property or leased it to third parties. He maintained that all the Defendants’ activities have at all material times been confined to Land Parcel No. ***CISMARA/OLCHORO-OIROWUA/9****,* which they occupy as successors to their late father. 4. Upon cross examination, DW1 testified that he was born on ***27th November 1972,*** while the 2nd Defendant was born on ***27th February 1985****,* to which he produced birth certificates in court as ***DExhibits 2(a) and 2(b)****.* 5. After the close of the viva voce evidence, parties were directed to file and exchange written submissions, which directions they complied with. Consequently, The Plaintiff filed his written submissions dated ***30th April 2026***, through ***Michire & Associates Advocates,*** and identified the following issues for determination: 6. ***Whether the Plaintiff is the registered proprietor of Land Parcel No. NAROK/OLOCHORO OIROWUA/10.*** 7. ***Whether the Defendants unlawfully occupied and leased the Plaintiff's land.*** 8. ***Whether the Plaintiff is entitled to mesne profits.*** 9. ***Whether the Plaintiff is entitled to general damages.*** 10. The Defendants filed their submissions dated 3rd July 2026, through ***Kamwaro & Co Advocates,*** and identified two issues for determination being; 11. ***Whether the Plaintiff is entitled to the prayers sought;*** 12. ***Who should bear the costs of this suit.*** 13. On the first issue, the Plaintiff submitted that he had proved his ownership of the suit property by producing a Title Deed dated ***3rd May 1989***, confirming his registration as the proprietor of Land Parcel No. ***NAROK/OLOCHORO OIROWUA/10****.* He relied on ***Sections 24*** *and* ***25*** of the ***Land Registration Act, 2012***, submitting that registration vests in a proprietor absolute ownership together with all rights and privileges appurtenant thereto, and protects such title from unlawful interference. 14. He further submitted that the Defendants had unlawfully encroached upon the suit property, ignored the boundary demarcation, leased portions of the land to third parties and cultivated the same for their own benefit. The Plaintiff also relied on the judgment in ***Narok Chief Magistrate’s Court MCELC No. 110 of 2018****, and* contended that the court therein found in his favour, thereby affirming both his ownership and occupation of the suit property. 15. Reliance was placed on ***Ernest Wesonga Kweyu vs Kweyu Omuto [1990] KLR 709****,* where the Court of Appeal affirmed the indefeasibility of a registered proprietor’s title. 16. On whether the Defendants unlawfully occupied the suit property, the Plaintiff submitted that the evidence on record established that the Defendants remained in occupation of the suit property between ***1990*** *and* ***2017***, during which period they cultivated the land, leased it to third parties and collected rent therefrom. He argued that such ***occupatio***n amounted to ***trespass*** and ***unlawful deprivation*** of property contrary to ***Article 40*** of the ***Constitution***, which guarantees every person’s right to acquire and own property and protects against arbitrary deprivation of property. 17. On the claim for mesne profits, the Plaintiff submitted that he had proved both the period of unlawful occupation and the income-generating capacity of the suit property. He relied on the definition of mesne profits under ***Section 2*** of the ***Civil Procedure*** ***Act,*** submitting that he had demonstrated that the land produced between **1*,840 and 3,680 bags*** annually, earning a minimum income of ***Kshs. 2,760,000/=,*** per year, and that over a period of 27 years, the mesne profits amounted ***to Kshs. 74,520,000/=.*** 18. He argued that the Defendants had unjustly enriched themselves through cultivation, grazing and leasing the suit property while he was deprived of its use and income. In support of this submission, he relied on ***Attorney General v Halal Meat Products Ltd [2016] eKLR****,* ***Mistry Valji v Janendra Raichand & 2 Others [2016] eKLR****,* ***Rajput v Barclays Bank of Kenya Ltd [2002] 1 EA 296****, and* ***Shell (Kenya) Ltd v Kobil Petroleum Ltd [2006] eKLR****,* which he submitted recognize that mesne profits are recoverable where unlawful occupation has been established and must be assessed based on the proven income or value derived from the land. 19. On the claim for General damages, the Plaintiff submitted that as a result of the Defendants’ unlawful occupation, he suffered ***embarrassment, ridicule, trauma, social stigma*** and ***loss of livelihood,*** all arising from the violation of his constitutional right to property under **Article 40** of the Constitution. He relied on ***Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & Another [2016] eKLR and Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR,*** for the proposition that general damages are awardable for inconvenience, suffering and violation of constitutional rights. 20. In conclusion, the Plaintiff submitted that he had discharged the burden of proof by producing documentary evidence of his ownership, the Defendants’ unlawful occupation and the income generated from the suit property. He argued that he had proved his claim for special damages of ***Kshs. 7,672,800/=***, mesne profits of *Kshs.* ***74,520,000/=***, and General damages. 21. He further relied on ***Kenya Hotel Properties Ltd v Willesden Investments Ltd [2009] eKLR*** for the proposition that mesne profits must be based on evidence of income or rental value and are not speculative. He urged the Court to enter judgment in his favour as prayed in the Plaint dated **16th September 2024**. 22. On their part, the Defendants submitted as follows; **it** is trite that he who alleges must proof, and the standard of proof is on the balance of probabilities. Reliance was sought in the case of ***Palace Investment ltd vs Geoffrey Kariuki Mwenda & Another ( 2015) eKLR***. 23. On evidential burden, reliance was sought in these cases; ***Mbuthia Macharia vs Annah Mutua & Another ( 2017) eklr; Gichinga Kibutha vs Caroline Nduku ( 2018) eklr and Raila Amolo Odinga & Another vs IEBC & 2 OTHERS ( 2017) KESC 42 (KLR).*** 24. ***It*** was the Defebdants submissions that though the Plaintiff has sought for special damages alleging that the Defendants took possession of his land, and leased it to third parties, no lease agreements were produced , and thus the said allegation was not proved, Reliance was sought in the case of ***Capital Fish Kenya Ltd vs Kenya Power & Lighting Co Ltd ( 2016) eKLR*,** where the court held that special damages must not only be specifically pleaded , but they must be strictly proved. 25. On mesne profit, the Defendants submitted that they are like special damages, which are payable by the person who is in wrongful occupation of ones parcel of land. It was the Defendants submissions, that in this case the Plaintiffs just threw figures of ***ksh 74, 520, 000/=***at the court, and they did not lay the basis of this amount. Reliance was sought in the case of ***Attorney General Vs Halal Meat Products Ltd (2016) eKLR***, where the Court of Appeal held that mesne profits are profits accrued during the time rightful owner was excluded from his land. 26. Further reliance was sought in the cases of ***Peter Mwangi Mbuthia vs Samow Edin Osman (2014) eKLR; Gathungu & 2 others vs Karanja (2022) KEELC 155560(KLR),*** and submitted that there was no basis upon which mesne profits can be granted to the Defendants. 27. On trespass, the Defendants relies on section 3(1) of Trespass Act, Cap 294, and on the case of ***Hellen Wangari Wangeshi vs Carumera Muthini Gathua (2005) eKLR***, an submitted that the Plaintiff did not discharge the burden of proof for trespass, as the boundary between the two parcels of land were not ascertained, and no evidence of encroachment was adduced. 28. Further reliance was sought in the case of ***Antony Francis Wareham t/a AF Wareham & 2 others vs Kenya Post Office Savings Bank (2004) eKLR,*** and submitted that there was no conclusive of professional evidence to substantiate the allegations of trespass. 1. On the issue of costs, the Defendants relied on ***Black Law Dictionary*** definition of costs, which means expenses of litigation, prosecution or other legal transactions especially those allowed in favor of one party against the other. They also relied on ***section 27*** of the ***Civil Procedure Act***, and urged the court to award them costs. 2. The Court has carefully considered the pleadings filed by the parties, the oral and documentary evidence tendered at the trial, the written submissions together with the cited authorities in support thereof. The court has also considered the applicable constitutional and statutory provisions governing the dispute. It is settled that parties are bound by their pleadings and that a court’s determination must be confined to the issues arising therefrom. Equally, he who alleges bears the burden of proving his case on a balance of probabilities in accordance with ***Sections 107, 108*** and ***109 o***f the ***Evidence Act, Cap. 80*** Laws of Kenya. 3. From the pleadings, the evidence adduced and the rival submissions, it is common ground that the Plaintiff is the registered proprietor of the suit property known as Land Parcel No. ***NAROK/OLOCHORO OIROWUA/10****, now* ***CIS-MARA/OLCHORO-OIROUWA/275****,* and that there previously existed a boundary dispute between the Plaintiff and the Defendants’ late father. The parties are, however, sharply divided on whether the Defendants unlawfully entered, occupied, cultivated and leased the suit property between **1990** and **2017**, thereby depriving the Plaintiff of the use and enjoyment of his land and rendering themselves liable for special damages, mesne profits and general damages. 4. It is the court’s considered view, the following issues arise for determination: 5. ***Whether the Plaintiff proved that the Defendants unlawfully entered, occupied or otherwise trespassed upon Land Parcel No. NAROK/OLOCHORO OIROWUA/10.*** 6. ***Whether the Plaintiff has proved his claim for special damages and mesne profits.*** 7. ***Whether the Plaintiff is entitled to an award of general damages.*** 8. ***Who should bear the costs of the suit.*** 9. The Plaintiff’s case is that he is the registered proprietor of Land Parcel No. ***NAROK/OLOCHORO OIROWUA/10***, having acquired title thereto in ***1977***, although the title deed was issued on ***3rd May 1989****.* He contends that he remained in peaceful occupation of the suit property until the year ***1990,*** when the Defendants ***unlawfully*** entered unto the land, ***dispossessed*** him, cultivated the land, grazed livestock thereon, leased portions thereof to third parties and remained in occupation until the year **2017**. 10. On the other hand, the Defendants categorically denied ever trespassing upon or occupying the suit property. Their evidence was that they are the biological children of the late ***Moses Kasaine Ole Nabaala***, the registered proprietor of Land Parcel No. ***CISMARA/OLCHORO-OIROWUA/9****,* where they have always resided. They maintained that they neither cultivated nor leased the Plaintiff's parcel of land and denied depriving the Plaintiff of possession or enjoyment thereof. 11. From the evidence on record, there is no dispute that the Plaintiff is the registered proprietor of the suit property. Indeed, the Defendants did not challenge the Plaintiff’s title. Their only contention was that the title deed was issued on ***3rd May 1989,*** and not in ***1977***, as pleaded. However, that discrepancy does not affect the Plaintiff’s proprietary rights over the suit property. By virtue of ***Sections 24 and 25*** of the ***Land Registration Act,*** registration confers upon a proprietor absolute ownership of land together with all rights and privileges appurtenant thereto, unless the title is challenged on the grounds set out under ***Section 26 of*** the Act. 12. The law on the sanctity and indefeasibility of title is now settled. In ***Joseph N.K. Arap Ng’ok v Justice Moijo Ole Keiwua & 4 Others [1997] eKLR****,* the Court of Appeal held that title to landed property can only be acquired through the process prescribed by law and that once issued, such title is protected by statute. Similarly, in ***Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna & Another [2013] eKLR****,* the Court held that a certificate of title is prima facie evidence of ownership and can only be impeached on the grounds stipulated under **Section 26(1)** of the ***Land Registration Act***. 13. However, ***proof of ownership alone*** does not automatically establish ***trespass or unlawful occupation*** by the Defendants. The burden remained upon the Plaintiff to prove, on a balance of probabilities, that it was these Defendants who entered the suit property, occupied it, cultivated it, leased it to third parties and derived the income now claimed. ***Sections 107, 108 and 109*** of the ***Evidence Act*** place that burden squarely upon the Plaintiff. 14. Although the Plaintiff testified that the Defendants entered the suit property in ***1990,*** and remained thereon until ***2017***, his evidence reveals that the dispute initially arose with the Defendants’ late father, ***Moses Kasaine Ole Nabaala***, over the common boundary between the two parcels of land. Indeed, during cross-examination, the Plaintiff stated that it was the late ***Moses Kasaine Ole Nabaala*** who complained about the common boundary and that the parties were referred to the Land Registry where, in ***1987,*** the boundary was confirmed to be a ravine. This evidence is consistent with the Defendants’ case that any historical boundary dispute involved their late father and not themselves. 15. The Court also takes judicial notice of the ages of the Defendants at the time the alleged trespass commenced. The Plaintiff alleged that the ***unlawful occupation*** began in **1990**. Yet the evidence of DW1, supported by birth certificates produced in evidence, was that the 1st Defendant was born on ***27th November* *1972****,* while the 2nd Defendant was born on ***27th February 1985.*** Consequently, the 1st Defendant was about ***17 years old***, while the 2nd Defendant was approximately ***5 years*** old in **1990**. The Plaintiff did not lead any evidence demonstrating that these Defendants, as opposed to their late father, were the persons who took possession of the suit property at that time. 16. More importantly, apart from his own testimony, the Plaintiff did not call any independent witness nor produce documentary evidence linking the Defendants to the alleged occupation, cultivation or leasing of the suit property. There was no lease agreement, rent records, photographs, valuation report, survey evidence, witness testimony from alleged tenants, or any other documentary evidence showing that the Defendants personally occupied or exploited the suit property during the period claimed. 17. The Plaintiff placed considerable reliance on ***Narok Chief Magistrate’s Court MCELC No. 110 of 2018,*** as proof that the Defendants had unlawfully occupied the suit property. However, from the evidence placed before this Court, that judgment merely demonstrates that there had been previous litigation between the parties concerning the adjoining parcels of land. It does not, without more, establish that these Defendants occupied the suit property continuously ***between 1990 and 2017,*** or that they collected rent or derived the profits now claimed. The previous judgment cannot substitute the evidential burden resting upon the Plaintiff in the present proceedings. 18. Having carefully evaluated the entire evidence, this court finds and holds that whereas the Plaintiff successfully established his ownership of the suit property, he did not prove, on a balance of probabilities, that the Defendants personally trespassed upon, occupied, cultivated or leased the suit property between ***1990 and*** ***2017.*** 19. The evidence instead points to a historical boundary dispute involving the Defendants’ late father, but falls short of demonstrating that liability for the alleged occupation can be attributed to these Defendants. Accordingly, the first issue is answered in the negative. 20. The Plaintiff seeks special damages of ***Kshs. 7,672,800/=*** being alleged rent collected by the Defendants from the suit property and mesne profits of ***Kshs. 74,520,000/=***, calculated at the rate of ***Kshs. 2,760,000/=,*** per annum for the period between ***1990 and*** ***2017.*** The plaintiff contends that the Defendants cultivated the suit property, leased it to third parties and unjustly enriched themselves while depriving him of the use and enjoyment of his land. 21. The Defendants denied collecting any rent, cultivating the Plaintiff's land or deriving any income therefrom. They maintained that they have at all material times occupied Land Parcel No. ***CISMARA/OLCHORO-OIROWUA/9,*** and denied liability for the sums claimed. 22. The law is settled that ***special damages*** must not only be ***specifically pleaded***, but must also ***be strictly proved***. Likewise, ***mesne profits***, being a species of special damages, must be ***specifically pleaded*** and proved by credible evidence. In ***Attorney General v Halal Meat Products Limited [2016] eKLR***, the Court of Appeal held that mesne profits are awarded to compensate a proprietor who has been unlawfully deprived of possession of land and must be proved by evidence. Similarly, in ***Kenya Hotel Properties Limited v Willesden Investments Limited [2009] eKLR****,* the Court emphasized that mesne profits are not speculative but must be based on evidence of the income or rental value of the property. 23. The starting point in a claim for mesne profits is proof of wrongful occupation by the person against whom the claim is made. Without establishing unlawful possession or trespass, a claim for mesne profits cannot stand. This is because mesne profits are compensation for the loss occasioned by a defendant’s wrongful possession of another person’s land. 24. Although the Plaintiff testified that the suit property yielded between ***1,840 and 3,680 bags*** annually and that each bag sold for approximately ***Kshs. 1,500/=*** thereby generating a minimum annual income of ***Kshs. 2,760,000/=*** no documentary evidence was produced to substantiate those figures. The Plaintiff did not produce farm records, sales receipts, delivery notes, accounts, valuation reports, expert agricultural assessments or any independent evidence demonstrating the acreage under cultivation, the actual yield of the land or the prevailing market prices during the period in question. 25. Equally, the Plaintiff did not produce any evidence to establish that the Defendants leased the suit property to third parties or collected rental income amounting to ***Kshs. 7,672,800/=*** as pleaded. No lease agreements, tenancy records, rent schedules, receipts, acknowledgements of payment or testimony from any alleged tenants were tendered before the Court. The claim therefore remained a bare assertion unsupported by evidence. 26. More fundamentally, this Court has already found that the Plaintiff failed to establish, on a balance of probabilities, that the Defendants unlawfully occupied the suit property between ***1990 and 2017.*** In the absence of proof of wrongful occupation by the Defendants, the foundation upon which the claims for special damages and mesne profits rest collapses. 27. Consequently, after careful consideration of the available evidence, the court finds and holds that the Plaintiff has failed to strictly prove his claim for special damages of ***Kshs. 7,672,800/=*** and mesne profits of ***Kshs. 74,520,000/=***. The said claims therefore fail. 28. The Plaintiff also seeks an award of ***General damages*** for the alleged unlawful occupation of the suit property. He submitted that the Defendants’ actions deprived him of the use and enjoyment of his land, occasioned him embarrassment, trauma, ridicule, social stigma and loss of livelihood, thereby violating his constitutional right to property under ***Article 40*** of the Constitution. 29. The law is settled that an award of ***General damages*** is intended to compensate a party for loss or injury suffered as a result of a wrongful act. Such an award is, however, dependent upon proof of the wrongful conduct complained of. Where liability is not established, the basis for awarding ***general damages*** does not arise. 30. The Court herein has found and held that the Plaintiff has failed to prove, on a balance of probabilities, that the Defendants unlawfully entered, occupied or trespassed upon the suit property between ***1990 and 2017***. Consequently, the alleged deprivation of the Plaintiff’s use and enjoyment of the suit property has not been shown to have been occasioned by the Defendants herein. 31. Further, although the Plaintiff pleaded that he suffered embarrassment, trauma, ridicule, social stigma and loss of livelihood, no independent evidence was tendered to demonstrate the nature or extent of the alleged injury. More importantly, such claims cannot succeed in the absence of proof that the Defendants committed the wrongful acts complained of. 32. In the circumstances, the court also finds and holds that the Plaintiff has failed to establish any legal basis upon which an award of ***General damages*** can be made against the Defendants. 33. On the issue of costs, it is trite that costs ordinarily follow the event pursuant to **Section 27** of the ***Civil Procedure Act.*** The Plaintiff having failed to prove his case against the Defendants on the required standard of balance of probabilities, there is no reason for this Court to depart from the general rule. 34. Consequently, in the final analysis this court finds and holds that the Plaintiff has failed to prove his case on the required standard of balance of probabilities, and for the said reasons, his suit is found to be ***devoid of merit*** and is hereby ***dismissed*** in its entirety with costs to the Defendants. **It is so ordered.** ***Dated, Signed and Delivered Virtually this 6th Day of August 2026.*** ***L. GACHERU*** ***JUDGE*** **06/08/2026** ***Delivered online in the presence of:*** ***Boniface Maluki – Court Assistant*** ***Ms Rotiken holding brief for the Plaintiff.*** ***Mr. Kamwaro for the Defendants.*** ***L. GACHERU*** ***JUDGE*** ***06/08/2026***