https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3488

Kavoo & 2 others v Lukenya Ranching and Co-operative Society Limited & 3 others (Environment and Land Case Civil Suit 43 of 2016) [2026] KEELC 3488 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEELC 3488 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case Civil Suit 43 of 2016 AY Koross, J June 9, 2026 Between Bernard Mbole Kavoo 1st Plaintiff Mutunga Musyoki 2nd Plaintiff David Mutuku Nzau 3rd Plaintiff and Lukenya Ranching and Co-Operative Society Limited 1st Defendant John Kimani Mwega 2nd Defendant Machakos District Land Registrar 3rd Defendant Josiah Makau Nzioka 4th Defendant Judgment 1.For ease, the parties shall be referred to as per the initial pleadings. In context, the proceedings in this matter have been protracted, to say the least. The plaintiffs instituted suit against the defendants 10 years ago and obtained judgment in their favour over Land Reference Mavoko Block 3/3342 (the “suit property”) on 16 November 2018. However, this judgment was set aside by a ruling rendered on 25 June 2021. Thereafter, pretrial directions were held, and the substantive suit and counterclaim were scheduled for hearing on 5 March 2025. 2.On the hearing date, the plaintiffs failed to attend court, and their suit, as set out in their plaint dated 27 January 2016, was dismissed under Order 12 Rule 3 of the Civil Procedure Rules (CPR) with costs to the defendants and counterclaimants. The court then proceeded with the counterclaim. Nevertheless, before judgment could be rendered, several applications were filed by various parties, which have since been heard and determined, and one of them is the subject of an appeal. These circumstances explain the delays in delivering this judgment. Notably, David Mutuku Nzau, the 3rd plaintiff, died on 29 October 2019, and, in the absence of substitution, his suit is abated. 3.Of significance, the suit property had been the subject of interference during the pendency of this suit by the 1st plaintiff, who violated the doctrine of lis pendens by transferring it to himself, subdividing and retaining one portion in his name while transferring the other parcels to third parties. This resulted in some of the defendants seeking recourse from the court and on hearing the parties, the court, in its ruling dated 10 February 2026, ordered the government surveyor to amend the Registry Index Map (RIM) and directed the land registrar to cancel these subdivisions so that the suit property would revert to its original status in the name of John Kimani Mwega (2nd defendant and also 2nd plaintiff in the counterclaim), as per the title deed dated 28 May 2013. 4.Having laid the background to this case, we shall dwell on the 2nd and 4th defendants’ undefended counterclaim against the plaintiffs, dated 8 July 2021, whereby they prayed for the following orders from this court:a.An order that the acquisition of title over Mavoko 3/3342 by the 2nd defendant was in accordance with the law and so valid.b.A permanent injunction do issue against the plaintiffs restraining them from interfering with the quiet possession of the defendants over the suit property.c.Cost of fencing and planting trees.d.Costs of the suit.e.Any other relief that this honourable court may deem just to grant. 5.In the counterclaim, the 4th defendant stated that shares in the 1st defendant’s, a land-buying society, entitled members to 20 acres each. He further stated that his family initially acquired shares in the names of two members, with a total of eight people involved. Later, the group received neighbouring plots. 6.It is averred that in 2008, the 4th defendant was given the title documents for the suit property. Later, in a 2012 meeting at the 1st defendant’s office, which the 1st plaintiff attended, it was concluded that the 1st plaintiff had not properly verified ownership before purchasing, and he was told to stop claiming or trespassing on the suit property. Subsequently, the 4th defendant sold the suit property to the 2nd defendant in 2013. The 2nd defendant asserted he conducted due diligence, took possession by fencing the suit property and planting trees, and that the plaintiffs trespassed on it on an undisclosed date, erected structures, and cultivated crops without his authority. He seeks their eviction and other orders from this court. 7.Accordingly, having considered the counterclaim, which is a distinct suit, the evidence presented by the 2nd and 4th defendants during the hearing on the merits, and the issues as framed in the filed submissions, the following issues, which shall be handled concomitantly, arise for determination: a)Whether the 2nd defendant is the registered owner of the suit property and b) Whether the 2nd and 4th defendants proved that the plaintiffs had trespassed on the suit properties. 8.Therefore, having framed the issues for determination, this court shall now proceed to summarise the testimonies of the various witnesses who tendered evidence. During the hearing, the 2nd and 4th defendants gave oral evidence, relied on their written statements, and produced documents marked Dex. 2-6. Other documents listed in the 2nd and 4th defendants' bundle of documents were marked for identification. 9.The 4th defendant, who testified as DW1, stated that in the 1964-65s he became one of the original members of the 1st defendant, initially joining his family under group shares. Later, as the society encouraged individuals to purchase their own shares, he acquired plot no. 415, which neighbours those of other family members. Although he did not cultivate the plot, he used it for grazing cattle and built a house there for occasional stays while grazing. 10.In 2008, he was issued the official title deed for the plot, which is the suit property. A few years later, in 2012, he discovered that strangers, including the 1st plaintiff, who claimed to have bought the land, were attempting to build on it. Following an investigation by the 1st defendant and a meeting attended by him and the 1st plaintiff, it became clear that the 1st plaintiff had been misled and had not conducted proper checks before his purported purchase, and he was thus barred from claiming the suit property. Eventually, in 2013, he sold the suit property to the 2nd defendant, who conducted due diligence, entered into a lawful transaction with him, and maintained that the 2nd defendant rightfully holds title to the suit property. 11.In support of his case, he produced a certificate of official search (Dex. 2), an incomplete sale agreement between him and the 2nd defendant (Dex. 3), a land control board application and consent to transfer the suit property from the 4th defendant to the 2nd defendant (Dex. 4), a certificate of identity (Dex. 5), and a stamp duty payment assessment and pay-in slip (Dex. 6). 12.During cross-examination, he stated that he did not have documents showing that he paid Kshs. 2000/- or Kshs. 25/- to the 1st defendant, or even recall them, and stated that these transactions took place a long time ago. Notably, he was a very elderly man in his 90s who seemed to have memory difficulties. 13.The 2nd defendant, who testified as DW2, stated that he bought the suit property from the 4th defendant. In 2013, just before he completed payment of the purchase price, he took vacant possession of the suit property. In 2014, he was registered as the rightful owner and received a valid title deed. Later, he fenced the suit property in 2015 and planted trees therein in 2016. 14.On cross-examination, he said he carried out due diligence through a lawyer who represented him in the transaction. He explained that the completion documents, including the title deed and a search, were sent to his transactional lawyer. He also said he paid stamp duty and was registered as the owner. However, he struggled to answer whether he paid the purchase price. When asked about a report to the Directorate of Criminal Investigations (DCI), he did not provide any record of such a report. He mentioned that, although he did not have a copy of the title document in his name in court, he had sent it to his trial counsel. He prayed for the trespassers to be evicted from the property. 15.Following the conclusion of the hearing, the plaintiffs, through their then law firm on record, Ms. Koki Mbulu & Co. Advocates, filed written submissions dated 13 April 2026, whereas Ms. Chege & Sang Co Advocates for the 2nd and 4th defendants filed theirs dated. Accordingly, in its analysis and determination, the court will meticulously consider the arguments presented in these submissions alongside the relevant legal principles and judicial precedents cited. 16.Reverting to the issues for determination, it is essential to delineate the pertinent legal and jurisprudential framework on trespass. Article 40 of the Constitution recognises that every person has the right to acquire and own property of any kind and in any location within Kenya. The protections and limitations related to such land rights are governed by Sections 24, 25, and 26 of the Land Registration Act, which demarcate land rights, privileges, appurtenances, liabilities, and interests. Section 26(1) thereof provides for the sanctity and the indefeasibility of title to immovable property, which sustains only in the absence of fraud, misrepresentation or other unlawful conduct in its acquisition. 17.Concerning the tort of trespass, the relevant provisions of the law are contained in the Land Act and the Trespass Act, which specifically stipulate:Section 152A of the Land Act:“A person shall not unlawfully occupy Private, Community or Public Land.”Section 3 (1) of the Trespass Act:“any person who without unreasonable 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.” 18.Section 2 of the Trespass Act clarifies that private land includes land owned or occupied by anyone under a freehold title, a certificate of ownership, or a lease. Concerning prevailing jurisprudence, the recent Court of Appeal decision in Mohamed v Board of Management Pentrose Community School & another [2026] KECA 501 (KLR) affirms the definition of trespass as follows:“ 24.The textbook Clerk & Lindsell on Torts (21st Edition) at page 1345, specifies that trespass occurs where there is entry onto another person’s land without the consent of the owner or without lawful justification. So that, for trespass to be established, there must be a physical entry onto the land of another, and such entry must be without the permission of the landowner or without any reasonable or lawful excuse. 25.In the case of Church Commissioners for Kenya of the Anglican Church of Kenya vs Wayuga (Civil Appeal 111 of 2018) [2024] KECA 1048 (KLR), this Court held that;“Trespass is described under the Trespass Act Cap 294 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…” 19.The prevailing theme in the definition of trespass is that ownership is not a prerequisite for such a claim. Nevertheless, the assertion of a person holding title to the land takes precedence in cases of competing claims of possession. In the instant case, notwithstanding that the 2nd defendant did not produce copies of title documents in his name that would demonstrate the transfer by the 4th defendant, who was the registered owner as at 4 December 2012, this court in its ruling in this matter in Kavoo & 2 others v Lukenya Ranching and Farming Co-operative Society Limited & 3 others; Mwega & another (Plaintiffs to the Counterclaim); Lukenya Ranching and Farming Co-operative Society Limited & another (Defendant to the Counterclaim) [2026] KEELC 609 (KLR) that was rendered on 10 February 2026 established the 2nd defendant was the registered owner as at 28 May 2013 and thus, in addressing the plaintiffs' illegal activities over the suit property, issued the following dispositive orders:-“a.The District Land Surveyor-Machakos or any other designated officer is hereby ordered to amend the Registry Index Map (RIM) of where the subdivisions known as Mavoko Town Block 3/90392, 90393, 90394, and 90395 (now Mavoko Town Block 3/116381-116389) or any other subdivisions emanating from Mavoko Town Block 3/3342 are located so that the land reverts to the previous number being Land Parcel no. Mavoko Town Block 3/3342.b.The Land Registrar- Machakos does cancel the subdivisions known as land parcels numbers Mavoko Town Block 3/90392, 90393, 90394, and 90395 (now Mavoko Town Block 3/116381-116389) or any other subdivisions emanating from Mavoko Town Block 3/3342 so that the land reverts to the previous number being Land Parcel no. Mavoko Town, Block 3/3342, and it be registered in the name of John Kimani Mwega, as per the title deed dated 28/05/2013.” 20.Therefore, with regard to the first limb of the issues, this court finds that the 2nd defendant owns the suit property. Furthermore, in the absence of any challenge to the validity of the title, the court finds that the 2nd and 4th defendants bore no evidentiary burden to establish that their titles were lawful, regular, and free from any illegality. 21.Respecting the second limb of the issues, and notwithstanding that the counterclaim was undefended, the 2nd defendant bore the burden of proving that the plaintiffs committed acts of trespass on the suit property. Sections 107 and 109 of the Evidence Act delineate the burden of proof as follows:“ 107.Burden of proof. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(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. 109.Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 22.When addressing the burden of proof, the Court of Appeal in Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR) cited with approval the decision of Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372, as follows:“Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say:-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” ‘ 23.Therefore, in determining the 2nd limb, this court must examine whether these defendants, particularly the 2nd defendant, have discharged their burden of proof on a balance of probabilities to demonstrate that the plaintiffs were trespassers. In their pleadings, these defendants alleged and particularised trespass by asserting that the plaintiffs had entered the suit property, erected structures, and cultivated it. The 2nd defendant contended that he had obtained vacant possession in 2013 and had subsequently installed a fence and planted trees in 2015 and 2016. He stated that these activities were conducted without disruptions. However, surprisingly, he sought to recover the costs of fencing and trees, yet he never pleaded that the plaintiffs destroyed his trees or fence. 24.Moreover, these defendants never led any evidence on the acts of trespass or presented an iota of evidence to substantiate their claims of trespass, such as by way of expert reports, photographs, or testimonies from neighbours or workers. Additionally, they failed to specify when these acts of trespass purportedly occurred or whether they were of a continuous nature. The court was left in the dark. In the circumstances, this court must find and hold that these defendants have failed to prove that the plaintiffs were trespassers. 25.For the foregoing reasons and findings, and in the absence of any prayer for declaratory relief that the 2nd defendant is the registered owner of the suit property, the court finds that the 2nd and 4th defendants failed to satisfy their burden of proof on the balance of probabilities. Consequently, the counterclaim filed by the 2nd and 4th defendants is hereby dismissed. As it was undefended, they shall bear their own costs.Judgment accordingly. DELIVERED AND DATED AT MACHAKOS THIS 9TH DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE09.06.2026Judgment delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Miss Mutuku for plaintiffs/applicants.No appearance for other parties.