https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/414

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE,S COURT AT KEHANCHA** **ELC NO. E024 OF 2025** **JOSEPH MAROA MASWI…………………………………………PLAINTIFF** **VERSUS** **MAGABE MWITA WAMBURA…………………………….1ST DEFENDANT** **MAGABE MWITA……………………………………………2ND DEFENDANT** **EMMANUEL MAKABWA…………………………………..3RD DEFENDANT** **PAUL WANSATO MWITA………………………………….4TH DEFENDANT** **NYAMBARI MWITA………………………………………..5TH DEFENDANT** **CHACHA MWITA…………………………………………..6TH DEFENDANT** **BASKWI MWITA……………………………………………7TH DEFENDANT** **JOSEPH MAKABWA……………………………………….8TH DEFENDANT** **MWITA MAKABWA……………………………………….9TH DEFENDANT** **MONGOSI MAKABWA……………………………………10TH DEFENDANT** **JOHN MAKABWA…………………………………………11TH DEFENDANT** **FRANCIS GIBAI……………………………………………12TH DEFENDANT** **WILLIAM MAKABWA……………………………………13TH DEFENDANT** **ANDREW MAKABWA…………………………………….14TH DEFENDANT** **JAMES WANSATO……………………………………..15TH DEFENDANT** **JOHN WANSATO………………………………………..16TH DEFENDANT** **JUDGMENT** 1. The plaintiff in a plaint dated 25th April 2025 sued the defendants jointly and severally seeking for the following orders: 2. A permanent injunction to issue restraining the defendants jointly and severally from trespassing, occupying, cultivating, building, grazing and/or carrying out any dealings on LR. NO. NYABASI/BOMERANI/448 and an eviction order to issue therefrom. 3. General damages for trespass. 4. Costs of this suit. 5. Interest on (b) and (c) at current court rates. 6. Any other relief the court may deem fit in the circumstances. 7. The plaintiff averred that he is the sole registered proprietor with an absolute title to LR NO. NYANBASI/BOMERANI/448 measuring 25.5 Ha. That the defendants were occupants of the neighbouring parcel of land NYABASI/BOMERANI/447 measuring 53.5 Ha. That the defendants have jointly and severally trespassed into the plaintiff’s land and have since continued to causing waste thereon. The plaintiff particularized particulars of trespass by the defendants as follows; destroying boundaries, putting up structures, destroying crops, denying plaintiff access to his land, cultivating the plaintiff’s land, denying plaintiff use of his land and planting trees. 8. The plaintiff averred that as a result of the aforesaid, the plaintiff has been deprived of the said suit land as the same is occupied by the defendants who are subjecting it to waste. The defendants have their own land which shares a common boundary with the plaintiff’s land. That the defendants encroached onto the plaintiff’s parcel of land by continuously unlawfully extending the boundaries between the two parcels which boundaries were determined by the Land Registrar Kuria East/West Sub Counties and a finding made that the defendants had trespassed onto the plaintiff’s land and were illegally occupying 17.93Ha of the plaintiff’s land. 9. The plaintiff further averred that there is no other suit pending between the parties over the same cause of action save for Kehancha SPM ELC NO. 13 of 2019 that was withdrawn and consolidated with Migori ELC OS NO. 239 Of 2017 which was dismissed. That this Honourable court granted leave to the plaintiff to file this suit out of time vide Kehancha Misc. Civil Application No. E022 of 2024 through its ruling issued on 19/3/2025. 10. The defendants on the hand filed their joint defence dated 10th July 2025 denying all the averments contained in the plaint save for expressly admitted. They averred that they will prove at the hearing that the plaintiff’s title to 17.93 Ha out of parcel NYABASI/BOMERANI/448 has been extinguished under section 17 of the Limitation of Actions Act Cap 22 Laws of Kenya. They admitted that they are the occupants of parcel NYABASI/BOMERANI/448 measuring 53.5Ha. That they will prove that the plaintiff’s suit for trespass is time barred as per section 4(2) of the Limitation of Actions Act as the defendants have been in occupation of 17.93 Ha of the suit land for a period exceeding 3 years since 2013. They averred that they have been in occupation of the 17.93 Ha before the registration of the plaintiff as proprietor in 2013 and even after his registration for a period exceeding 40 years. 11. The defendants confirmed that the land registrar and surveyor Kuria East Sub County confirmed that they have and they are in occupation of 17.93Ha of the suit land. That the plaintiff cannot get any orders of eviction or injunction against them when his suit is time barred. That they were not served with any demand notice to sue. That their claim for adverse possession was dismissed in Migori ELC OS NO. 239 Of 2017, but they also reiterate that the plaintiff’s suit for trespass was equally struck out as time barred. 12. That they raise a defence of the plaintiff’s suit being time barred notwithstanding the leave obtained in Kehancha Misc Appl. No. E022 of 2024 and that the court that granted the leave in Kehancha Civil Misc. No. E022 of 2024 had no discretion to extend time to the plaintiff to file suit, moreover the Limitation of Actions Act section 27 and 28 do not give the court the discretion to extend time in cases based on the tort of trespass. That they will rely of the pleadings of the said Kehancha Misc. Civil Application No. e022 of 2024 to prove that in the circumstances of this case leave to file suit out of time cannot be granted by the court. That they further averred that even after the said leave was granted by the court on 18.3.2025(erroneously), the defendant did not file his suit within the 30 days granted. This court therefore cannot again extend the time when the suit was filed out of time. 13. The defendants averred further that the cause of action based on the tort of trespass cannot be extended at all under S. 27 and S.28 of the Limitation of Actions Act and such extension if granted as it was cannot cure the legal fact of time bar. **The Plaintiff’s Case** 1. PW1 JOSEPH MARWA MASWI the plaintiff adopted his written statement dated 25/4/2025 as his evidence in chief reiterating the averments contained in the plaint. He stated that the defendants have continued to remain on his land without his consent and are maliciously subjecting his land to waste. That he has been locked a great portion of his land that he could have otherwise used for cultivation to generate income for his family. He produced the documents in his list of documents dated 25/4/2025 as exhibits1-1-9 respectively. That the defendants have their own land being parcel No. NYABASI/BOMERANI/447. The defendants have sold part of his land to three people. He further stated that the defendants should not continue staying on and occupying his land. The plaintiff then closed his defence case. **The Defendants Case** 1. DW1 NYAMBARI MWITA WAMBURA adopted his written statement dated 10/7/2025 as his evidence in chief, in which he reiterated the averments contained in the defence. He stated that they have been in occupation of the suit land for over 40 years. That they have been in occupation of 17.93Ha out of the suit land. That the plaintiff filed a case against them based on the tort of trespass being Migori ELC Case No. 237 of 2017 where he was seeking the orders being sought in this case. His case was struck out by the High Court on the basis that it was statute barred. That the plaintiff did not appeal that decision of the High Court; such that it remains that his suit was struck out as being time barred. 2. The plaintiff filed Kehancha Misc. Civil Appl. No. e022 of 2024, where he sought leave to file this suit out of time. This court granted him leave and ordered him to file suit within 30 days. He did not file the said suit. He again filed an application dated 2nd May 2025 seeking an enlargement of time to file suit. DW1 produced the documents in the list of documents dated 7th November, 2025 as exhibits 1-5 respectively. The defendants then closed their defence case. **The Plaintiff’s Submissions** 1. Counsel for the plaintiff submitted that the defendants’ evidence on the start of occupation was not serious. The defendants presented the same evidence before the court vide Migori ELC Case No. 239 of 2017 (OS). The court rejected the argument and their evidence and dismissed their case. The defendants did not appeal. 2. Counsel further submitted that only one defendant NYAMBARI MWITA testified and claimed to testify on behalf of the other defendants. However, there was nothing on record to show that the 16 defendants had given the 5th defendant any authority to plead. Counsel relied Order 1 Rule 13(1) and (2) of the Civil Procedure Rules which provides as follows: **“(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceedings.** **(2) the authority shall be in writing signed by the party giving it and shall be filed in the case.”** 1. Counsel for the plaintiff submitted that the evidence against all the defendants save for the 5th defendant is unchallenged and uncontroverted. That even for the 5th defendant, he did not prove how much of the plaintiff’s land he personally occupies. He couldn’t state what the others individually occupy and how they occupy the same. That the claim the defendants have occupied the defendants land for more than 40 years was not proved. There was no evidence placed before the court on the same. Moreover, the plaintiff started owning this land from 23rd October2023. There could be no possible claim over the plaintiff’s land that preceded 2013. Counsel relied on the cases of **Mbararia v Wamahiu (2025) KEELC 18506(KLR) ENVIROMENT AND LAND, Kuria (Suing as the legal administrator of the estate of Howard Thuo Kuria-deceased) v Mwangi alias Paul Mundia & 2 others (Environment and Land Case E122 of 2023) KEELC (KLR) (2024) KEELC 202 (KLR), Maina v Waweru & 2 others (Environment and Land Appeal 10 of 2023) 2025 KEELC 791 (KLR)** where the court spelt out the rights of the registered owner. **Defendants Submissions** 1. The defendants counsel submitted that it is not in disoute that the plaintiff is the registered proprietor of land parcel NO. NYABASI/BOMERANI/448 measuring 25.5(Ha). That it is also not in dispute that the defendants are trespassers on 17.93 (Ha) of the said land. 2. Counsel submitted that the above facts were established by the ELC Court in Migori ELC NO. 239 OF 2017 by judgment of the said High Court which was exhibited by both parties. In the said case the plaintiff herein has sued the defendant for eviction, but the High Court basing its findings on matters of law established that the defendants had been on occupation of 17.93Ha of the suit land for a period of 6 years and therefore the plaintiff’s suit was time barred under S.4(2) of the Limitation of Actions Act. The plaintiff suit was therefore struck out. 3. Counsel submitted that that being the position the plaintiff moved to court vide an application in Kehancha Misc. Civil Application No. E022 of 2024 where he obtained leave to file the current suit out of time premised on Order 37 Rule 6 of the Civil Procedure Rules 2010, Section 27 and 28 of the Limitation of Actions Act. The Court, Hon. Obiero SPM granted leave. The suit was not filed within the 30 days granted and the plaintiff sought extension from the same court which was granted and eventually giving room for filing this suit. As a general rule a suit which has been struck out can be revived by leave of the court, if the Law allows. 4. Counsel submitted that the application for leave to file suit out of time was made by way of notice of motion =, as can be seen on its face, and yet the requirement for the originating summons is mandatory as the word shall is used. That the procedure used to obtain the leave of the court to file suit out of time was irregular, which cannot be cure under Article 159 of the Constitution. 5. Counsel submitted that the exparte leave to file suit out of time can only be challenged at the hearing of the suit that was filed using the leave. Counsel relied on the Court of Appeal case of **Yusuf K Oruta & another v Samwel Mose Nyamato Civil Appeal N0. 1984 (unreported)** where it was held: ***“That the issue of challenge to the granting of leave to file suit out of time can ony arise at the trial.”*** 1. Counsel submitted that the leave to file this suit out of time is not sacrosanct. That when challenged the court has to decide whether it was obtained properly and whether it is relevant to the cause of action. They relied on the case of Kisumu Court of Appeal Civil No. 244 of 2000 Mary Osundwa v Nzio Sugar Co. Ltd. The Court held on section 27(1) Limitation of Actions Act. This section clearly lays down the circumstances in which the court would have jurisdiction to extend time. The action must be founded on tort and it must relate to the torts of negligence, nuisance or breach of duty and the damages claimed are in respect of personal injuries to the plaintiff as a result of the tort. 2. That the section does not give jurisdiction to the court to extend time for filing suit in cases involving contract or any other causes of action other than those of tort. That the authority states and it is clear that leave to file suit cannot be given where the cause of action is on trespass to land as it is not covered under section 27. 3. Counsel submitted on the issue whether the application met the conditions or threshold under section 27 & 28 of the Limitation of Actions Act for leave to be granted. He relied on the case of **Divecon Ltd v Samani (1995-1998) EA 48 (AK)** The Court held that under section 28(2) of the Limitation Actions Act, where an exparte application for extension of time was made before commencement of an action, leave would only be granted where a cause of action had been established and the requirements of section 27(2) and 29 provided that where the period of limitation had elapsed, it had to be proved that material facts relating to the cause of action were or included facts of decisive nature which were at all material times until his death outside the knowledge (actual or constructive) of the decease4d and not the respondent. The court went further to state that ignorance by the respondent of the statutory period of limitation was not a material fact. 4. Counsel submitted that on the face of the application for leave made by the defendant in Kehancha SPMC MISC CIVIL APPL. NO. E022 OF 2024 does not give any material fact why the plaintiff failed to file suit in time. Except stating that he is the registered owner of NYABASI/BOMERANI/488, he gave no material fact which could convince the court to grant leave to file suit out of time. 5. Counsel further submitted that by stating that once 3 years have passed without the owner of land seeking redress against trespassers on his land he cannot bring up a suit even with leave. There is no provision in the Limitation of Actions Act for him to come to court. Counsel relied on the case of **Gathoni v Kenya Cooperative Creameries Ltd (1982) KLR 104** the Court of Appeal held that**:** ***“The Law of Limitation of Actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.”*** 1. Counsel further relied on the case of **Inga v Makerere University 1972 EA** the court held that: ***“A plaint which is barred by Limitation is a plaint barred by law. Reading the provisions of Limitation of Actions together, it seems clear that unless the applicant in this case had put himself within the limitation period by showing grounds upon which he could claim exemption the court shall reject his claim. The Limitation Act does not extinguish a suit or action itself but operates to bar the claim or remedy sought for and when a suit is time barred the court cannot grant the remedy or relief sought.”*** 1. Counsel submitted that the suit be dismissed with costs for the foregoing reasons. **Determination** ***The first issue for determination is who bears the burden of proof.*** 1. The Court is guided by the doctrine of “the Burden of Proof" which is founded under the provision of Sections 107, 108 and 109 of the [Evidence Act](https://kenyalaw.org/akn/ke/act/1963/46), Cap. 80 of the Laws of Kenya whereby it the Plaintiff to prove its case. They provide as follows:- **“Section (107) Burden of proof.** **(1) Whoever desires any court to give Judgement as to any legal right or liability dependent on existence of facts which he asserts must prove those facts exists.** **(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.** **Section (108); Incidence of burden.** **The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.** **Section (109); proof of particular fact.** **The burden of proof as to any particular fact lies in the person who wishes the court to believe in its existence. Unless it is provided by any law that the proof of fact shall lie on any particular person.”** 1. On this ground, I seek solace from the case of: **Kirugi and Another – Versus - Kabiya & 3 others (1987) KLR 347** the Court of Appeal held that:- ***“The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a plaintiff of the duty to prove the case to the required standard.”*** 1. Similarly, in the case of**: Gichinga Kibutha – Versus - Caroline Nduku (2018) eKLR** the Court held that:- “***It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”*** 1. Guided by the above authorities the plaintiff bears the burden of proving his case to the required standard which is on the balance of probabilities. ***The second issue for determination is whether the 5th defendant had authority to testify on behalf of the other defendants*** 1. DW1 NYAMBARI MWITA testified and claimed to testify on behalf of the other defendants. Order 1 Rule 13(1) and (2) of the Civil Procedure Rules which provides as follows: **“(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceedings.** **(2) the authority shall be in writing signed by the party giving it and shall be filed in the case.”** 1. The 5th defendant DW1 does not have any written authority from the other defendants authorizing him to plead and testify on their behalf. Thus the other defendants did not offer any evidence challenging the plaintiff’s evidence and their defence remains mere statement as they did not substantiate the same. ***The third issue for determination is whether the plaintiff’s suit is time barred*** 1. This issue emanates from the defence raised by the defendants that the plaintiff suit is time barred. That the plaintiff’s suit to trespass is time barred as per section 4(2) of the Limitation of Actions Act as the defendant have been in occupation of 17.93 Ha of parcel NYABASI/BOMERANI/448 for a period exceeding 3 years since 2013. 2. Section 4(2) of the Limitations of Actions Act provides as follows:- **“An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:** **Provided that an action for libel or slander may not be brought after the end of twelve months from such date.”** 1. Section 28 of the [Limitation of Actions Act](https://kenyalaw.org/akn/ke/act/1968/21) allows for the extension of time where a party found himself unable to file suit for good cause. However, the court has to be moved in this regard to allow for the filing of any claim arising under the provisions of Section 4 thereof be filed out of time. 2. Section 4(2) of the [Limitation of Actions Act](https://kenyalaw.org/akn/ke/act/1968/21) could apply in a case of a one-time trespass where the Defendants unlawfully entered the suit land and left. But that is not the position in the instant suit. The facts pleaded in the instant suit demonstrate a continuing trespass. Continuous trespass has been defined in [Black’s Law Dictionary](https://www.worldcat.org/title/blacks-law-dictionary/oclc/877371635) 8th edition as *“a trespass in the nature of a permanent invasion on another’s property such as a sign that overhangs another’s property.”* 3. In the case of **Ismael v Mandera County Government (Environment and Land Case E006 of 2024) [2025] KEELC 5797 (KLR) (31 July 2025) (Ruling)** JM Mutungi, J, rendered himself on the issue of continuous trespass as follows: ***“In this case, my view is that the Plaintiff deserves the opportunity to express his concerns. It is undisputed that the Defendant is currently operating a vocational training Centre on the property in question and/or part of the property. Additionally, the Defendant acknowledges that it took possession of the property in the 1980s without providing any compensation or restitution to the Plaintiff, who has presented a certificate of ownership for the land. Both parties affirm that the Defendant remains on the property to this day. This situation constitutes a continuing trespass. The Law recognizes that, in such cases, the passage of time does not eliminate the right to pursue legal action, as long as the trespass continues.”*** 1. The Court of Appeal in the case of **[Muthiora v Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara - Deceased)](https://kenyalaw.org/akn/ke/judgment/keca/2022/28%22%20%5Ct%20%22_blank) (Civil Appeal 43 of 2017) [2022] KECA 28 (KLR) (4 February 2022) (Judgment)**, affirmed that in cases of continuing trespass, a fresh cause of action arises from day to day for so long as the unlawful occupation continues. They observed at paragraphs 53 and 54 of the Judgment as follows:- ***53.“Trespass is described under the Trespass Act Cap 294 to mean “any person who without reasonable excuse enters, in or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof”. On the other hand, a continuing trespass is defined in Jowitt’s Dictionary of English Law 2nd Edition (page or paragraph?) as follows:-“A continuing trespass is one which is permanent in its nature; as where a person builds on his own land so that part of the building overhangs his neighbor’s land”. In Black’s Law Dictionary 10th Edition (page 1734), a continuing trespass is defined as:-“A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property” Finally, in Clerk & Lindsel on Torts 16th Edition, paragraph 23 - 01, it is stated that:-“Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues”.*** ***54.From the above definitions of the term “trespass” by the eminent learned authors, it is clear that any unauthorized entry, whether present or continuous, is trespass. In this case, it is indeed common ground that the Appellant entered into and has remained in occupation of the suit property. The appellant’s continued occupation of the said property from the first date of entry in so far as it is unauthorized by the Respondent, amounts to trespass and remains as such to date. The Respondent’s claim for trespass being a continued tort is, therefore, not time-barred. We find no fault with that finding by the trial Court.”*** 1. Further in the case of [**Gladys Koskey v Benjamin Mutai**](https://kenyalaw.org/akn/ke/judgment/keelc/2017/3463)**[2017] eKLR** the Court held as follows; ***“On the first issue, the suit is founded on trespass, which is a tort. Under Section 4 of the***[***Limitation of Actions Act***](https://kenyalaw.org/akn/ke/act/1968/21)***, an action founded on a tort must be instituted within three years. However, as the Plaint indicates, the trespass is continuous and the***[***Limitation of Actions Act***](https://kenyalaw.org/akn/ke/act/1968/21)***does not come into play. This is supported by the case of Nguruman Limited v Shompole Group Ranch & 3 Others Civil Appeal No 73 of 2004 reported in 2007 KLR. Citing Clerk and Lindsel on Torts 16th Edition, paragraphs 23-01 the Court of Appeal stated that:Every continuance of a trespass is a fresh trespass in respect of which a new cause of action arises from day to day as the trespass continues.”*** 1. It is not disputed that the Plaintiff is the registered proprietor of LR NO. NYABASI/BOMERANI/448 and it is his position that the Defendant have been in continuous trespass without any colour of right and that they took occupation of the suit land without following due process. The Defendants averment is that they have been in occupation of the suit property measuring 17.93 Ha and are still in occupation of the same. The claim by the defendants that they have acquired that said portion by way of adverse possession was dismissed in Migori ELC OS NO. 239 of 2017 which judgment was delivered on 29th December, 2023. Vide this judgment the court found that the defendants failed to prove their case on adverse possession and have no right to be on the plaintiff’s land. They are trespassers on the suit land as submitted by the counsel for the defendants. The fact that that the defendants are still illegally on the plaintiff’s land even after the judgment of the Migori ELC court, it is my considered opinion that it is a continuous trespass and time can also be taken to have started running after the said judgment on 29/12/2023. The current suit was filed on 29th April, 2025 which is still within the three year. 2. In the suit the Plaintiff seeks for a permanent injunction and that the Defendants have no legal right over the property and they should be ordered to vacate failing which they be evicted. The Plaintiff’s claim is one of ownership and is not founded on an incident of trespass. The trespass has been continuing and Section 4(2) of the [Limitation of Actions Act](https://kenyalaw.org/akn/ke/act/1968/21), would be inapplicable. The defendants defence that the suit is time barred does not apply in the instant case. 3. In the case of **[Eliud Njoroge Gachiri v Stephen Kamau Ng’ang’a](https://kenyalaw.org/akn/ke/judgment/keelc/2018/1521%22%20%5Ct%20%22_blank) [2018] eKLR** the court stated as follows; - ***“The Defendant pleaded limitation of time on the Plaintiff’s claim for trespass. This is a correct plea going by the provisions of the***[***Limitations of Actions Act***](https://kenyalaw.org/akn/ke/act/1968/21)***section 4(2), which provide that an action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued. This presupposes a case of a one-time trespass. The term accrue in the context of a cause of action means to arrive, to commence, to come into existence, or to become a present enforceable demand or right the time of accrual of a cause of action is a question of fact (see Black’s Law Dictionary at Page 23). However, in a case of a continuing trespass, a trespass consists of a series of acts done on consecutive days that are of the same nature and that are renewed or continued from day to day so that the acts in the aggregate form one indivisible harm.*** ***Trespass is described under the Trespass Act Cap 403 to mean any person who, without reasonable excuse, enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.*** ***A continuing trespass is defined in Jowitt’s Dictionary Of English Law 2nd Edition as follows: -“A continuing trespass is permanent in its nature; as where a person builds on his land so that part of the building overhangs his neighbor’s land”.In Black’s Law Dictionary 8th Edition, a continuing trespass is defined as:“A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property”. Finally, in Clerk & Lindsell On Torts 16th Edition, paragraph 23 - 01, it is stated that: -“Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues”. The Court further held that; “The Defendant, therefore, is reasonably in occupation of a section of plot T/19. The Plaintiff’s claim for trespass being a continued tort is not time-barred.”*** 1. As per the holding in the Case of **[Eliud Njoroge Gachiri](https://kenyalaw.org/akn/ke/judgment/keelc/2018/1521%22%20%5Ct%20%22_blank) (supra),** which is binding on this court, that every act of trespass on entry onto land without authority gives rise to a fresh cause of action, and therefore the suit filed in 2025 by the plaintiff is competent with regard to all causes of action arising within the three years before filing, as well as for ongoing injury continuing to the date of suit. The evidence on record shows that the defendants are unlawfully in occupation of 17.93 Ha of the suit land which are using to the detriment of the plaint; the complaint was an ongoing deprivation of use. The plaintiff also obtained leave of the court to file the suit out of time which leave was not challenged at the trial to the required standard. Be that as it may, the trespass was continuous and there was no need to obtain leave to file suit out of time. On that evidence, the limitation defence fails. ***The fourth issue is whether the defendants should remain in occupation of the 17.93 Ha out of the suit land.*** 1. Having already found that the defendants’ claim of adverse possession was dismissed by the Migori ELC court, then it follows that they have no basis upon which they can jointly and severally claim ownership and/or any rights over the suit land. They are trespassers on suit land. This position is fortified by the case of **Kuria (Suing as the legal administrator of the Estate of Howard Thuo Kuria - Deceased) v Mwangi alias Paul Mundia & 2 others (Environment & Land Case E122 of 2023) [2024] KEELC 202 (KLR) (25 January 2024) (Judgment)** the Court held:- ***“To this end, it is imperative to take cognizance of the holding in the case of Joseph N.K. Arap Ng'ok v Moijo Ole Keiwua & 4 others [1997] eKLR, where the court held as hereunder;Section 23(1) of the Act gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.*** ***25.Other than the foregoing decision, the legal import and significance attendant to a certificate of title, was highlighted and amplified by the Court of Appeal in the case of Elizabeth Wambui Githinji & 29 Others vs Kenya Urban Roads Authority (2019)eKLR, where the court stated and held thus;“If a certificate of lease duly issued by the Registrar is prima facie evidence of ownership and if the owner is proved to have exercised due diligence at the point of acquisition, on what basis could the appellants’ petition for protection under Article 40 be defeated?It has long been accepted beyond debate that the land registration process in Kenya is a product of the Torrens system. This was acknowledged in, among a long line of decided cases, this Court’s judgments in Dr. Joseph Arap Ngok V. Justice Moijo ole Keiwua & 5 others, Civil Appeal No. Nai. 60 of 1997 and Charles Karathe Kiarie & 2 Others V Administrators of Estate of John Wallance Muthare (deceased) & 5 others, Civil Appeal 225 of 2006.Under that system, the title of a bona fide purchaser for value without notice of fraud cannot be impeached; that the land register must mirror all currently active registrable interests that affect a particular parcel of land; that the Government, as the keeper of the master record of all land in Kenya and their owners, guarantees indefeasibility of all rights and interests shown in the land register against the entire world; and that in case of loss arising from an error in registration, the Government guarantees the person affected of compensation. Finally, the statutory presumption of indefeasibility and conclusiveness of title based on the register can be rebutted only by proof of fraud or misrepresentation which the buyer is himself shown to have been involved….*** ***Without belaboring the point, the scope, tenor and extent of the rights of a land owner were delineated and espoused in the case of Moya Drift Farm Ltd. v. Theuri (1973) EA 114; where the Eastern Africa Court of Appeal [EACA]; Spry, V-P at 116, considered the effect of section 23 of the Registration of Titles Act and held –“I cannot see how a person could possibly be described as “the absolute and indefeasible owner” of land if he could not cause a trespasser to be evicted. The Act gives a registered proprietor his title on registration and, unless there is any other person lawfully in possession, such as a tenant, I think that title carries with it legal possession: there is nothing in the Act to say or even suggest that his title is imperfect until he has physical possession.”Furthermore, Sir William Duffus, P. ibid at p.117 agreed with Spry, JA as follows:“In any even I agree with the Vice-President that the fact that the appellant was the registered proprietor as owner in fee simple under the Registration of Titles Act, and as such vested with the absolute and indefeasible ownership of the land, was sufficient to vest legal possession of the land in the appellant and that this possession would be sufficient to support the action of trespass against a trespasser wrongly on the land.”*** ***33.Additionally, the extent of the rights that vests in the land owner and by extension, the Legal administrator/Administratix thereof, were also articulated in the case of WAAS Enterprises Limited v City Council of Nairobi & another [2014] eKLR, where the Honorable court stated as hereunder;“As a registered proprietor, the plaintiff is entitled to enjoy all proprietary rights to the exclusion of all others. This includes the right to exclusive possession of the suit land. The rights of a proprietor of land are set out in Sections 24 and 25 of the***[***Land Registration Act***](https://kenyalaw.org/akn/ke/act/2012/3)***which provide as follows :-*** ***24.Subject to this Act—*** ***(a)the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and*** ***(b)the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.*** ***25.(1)The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—*** 1. ***To the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and*** 2. ***To such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.*** ***(2)Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.”*** 1. Guided by the above decisions, it therefore follows from the above that only the plaintiff is entitled to enjoy proprietary rights over the suit land. The defendants have no right to the suit land. They must therefore vacate the suit land and hand over possession to the plaintiff. ***The firth issue for determination is whether general damages for trespass should be awarded.*** 1. On the issue of general damages for trespass, the issue that arises is the measure of it. In the case of [**Philip Ayaya Aluchio v Crispinus Ngayo**](https://kenyalaw.org/akn/ke/judgment/kehc/2014/7055)**[2014] eKLR,** it was held as follows: ***“The plaintiff is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage? It has been held that the measure of damages for trespass is the difference in the value of the plaintiff’s property immediately after the trespass or the costs of restoration, whichever is less See Hostler – VS – Green Park Development Co. 986 S. W 2d 500 (No. App. 1999).”*** 1. In the case of [**Duncan Nderitu Ndegwa v KP & LC Limited & Another**](https://kenyalaw.org/akn/ke/judgment/kehc/2013/6408)**(2013) eKLR,** P. Nyamweya, J held that: - ***“…once a trespass to land is established it is actionable per se, and indeed no proof of damage is necessary for the court to award general damages. This court accordingly awards an amount of Kshs 100,000/= as compensation of the infringement of the Plaintiff’s right to use and enjoy the suit property occasioned by the 1st and 2nd Defendants trespass”*** 1. In **Nakuru Industries Limited vs S S Mehta & Sons (2016) eKLR** the court faced held as follows; ***“A similar situation pertains in the present case. The exact value of the land before and after the trespass is not proved. However, I have found the defendants did trespass onto the plaintiff’s land and conduct some excavation. For this reason I award the defendant damages in the amount of Ksh 500,000/= (five hundred thousand only) plus interest and costs of this suit from the date of this judgment until payment in full.”*** 1. In the case of **Willesden Investments Limited vs Kenya Hotel properties Limited NBI H.C.C. NO. 367 of 2000** the court stated that:- ***“There is no mathematical or scientific formula in these types of cases and that the guiding factors are the circumstances in each case. It is my considered view that KSh. 10 000 000 is a reasonable award for general damages”.*** 1. From the evidence on record, the plaintiff has proved trespass but there is nothing in his evidence that can be used to enable this court determine the actual damage and/or measure of the damage or loss that the plaintiff for them to be compensated for the loss. However, in relying on the above case law and the principles laid out, I find the plaintiff indeed suffered damages as a result of the defendants’ continued acts of trespass. I will proceed and award him Kshs. 100,000/= as general damages as against each defendant. 2. In a nutshell, the Plaintiff’s suit is truly meritorious and consequently, the court proceeds to and do hereby enter Judgment in favor of the Plaintiff as against the defendants on the following terms; 3. The Defendants, their agents, servants, heirs and dependents or any one residing thereon without the permission of the Plaintiff, be and are hereby ordered to vacate the portion measuring 17.93Ha out of parcel NYABASI/BOMERANI/448 and hand over vacant possession of the suit property to the Plaintiff within 90 days from the date of this judgment. 4. In default by the Defendants to vacate the suit property in terms of clause (a) herein, an order of Eviction shall and the Defendants shall be evicted from the suit property. 5. In the event that the Defendants are forcefully and forcibly evicted in terms of clause (b) hereof, the expenses incurred towards levying the eviction shall be certified by the court and thereafter same shall be recoverable from the Defendants as part of costs. 6. An order of Permanent injunction be and is hereby issued restraining the Defendants jointly and severally and any other person acting for or under them from trespassing, occupying, cultivating, building, grazing and/or carrying out any dealings on parcel of land known as L.R NYABASI/BOMERANI/448 or otherwise interfering with the Plaintiff’s enjoyment and possession of the suit property. 7. Trespass is actionable per se and in this regard, an award of General damages is hereby granted in the sum of Kes.100, 000/= only as against each of the Defendant. 8. Costs of the suit shall be borne by the Defendants. 9. The Plaintiff shall be at liberty to apply if and where necessary. 10. It is so ordered. **Dated, Signed and Delivered in open Court at Kehancha on this 31st day of July, 2026 virtually via Microsoft Teams.** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of:** **Mr. Kigera…….Court Assistant** **Plaintiff……….absent** **Defendant……..absent** **Advocate for plaintiff……..Mr. Owino present H/B for Mr. Abisai advocate** **Advocate for defendants…..Mr. Achola present** Court: 30 days right of appeal