https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3964

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC E107 OF 2025** **LEON ISLAND INTERNATIONAL LIMITED - PLAINTIFF** **VS** **KENNETH KIMUTAI SANG - DEFENDANT** **JUDGMENT** 1. By a plaint dated 13/3/2025, the Plaintiff filed suit against the Defendant, seeking orders of permanent injunction restraining the Defendant, either by himself or through his agents, servants and/or any other person purportedly authorised by him, from interfering with the Plaintiff's enjoyment and quiet possession of LR No 12672/45 (now Nairobi Block 100/45) [suit land]. 2. It is averred that the Plaintiff purchased the suit land at a public auction on 15/12/2015 and subsequently obtained a vesting order, a completion order, and a transfer from this Court, as stipulated in Civil Case No. 34 of 2015. Since the acquisition, the Plaintiff has been in possession of the suit land. 3. However, on 20/2/25, the Defendant entered the land, fenced it, erected a temporary structure of iron sheets, and cut down an indigenous tree [Mugumo] estimated to be over 300 years old. The Plaintiff immediately reported the matter to the Land Fraud Department of the Office of the Directorate of Criminal Investigations [DCI] on 21/2/25 and filed a formal complaint. The Plaintiff also checked with the Nairobi City County Offices to confirm whether the Defendant had obtained any construction approvals. The temporary structures and the fence were removed by Nairobi City County officers on 27/2/2025. Thereafter, the Defendant threatened the Plaintiff on phone. The Plaintiff is apprehensive that unless stopped by an order of the Court, the Defendant will continue to interfere with the suit land, including transferring it to third parties, thereby causing the Plaintiff loss and suffering. 4. Although service was duly effected on the Defendant, the Defendant did not enter an appearance or file a defence to the Plaintiff's claims. Consequently, the Plaintiff's suit against the Defendant is undefended. 5. At the hearing, Evance Ochieng led evidence on behalf of the Plaintiff and reiterated the contents of the plaint herein. He stated that the Plaintiff bought the land at a public auction on 1/12/2015 for Kshs 7 million, as evidenced by a memorandum of sale dated the same day, and later obtained vesting orders vesting the property in the Plaintiff's name. Despite this, the Defendant trespassed onto the suit land and erected a temporary structure and a fence, which were later removed by an officer of Nairobi City County when the complaint was filed. 6. The Plaintiff submitted that it is the lawful owner of the suit land pursuant to the vesting order and a transfer executed pursuant to the Court order in Civil Case No. 34 of 2015, and therefore, the Plaintiff is both the beneficial and legal owner of the suit land. 7. On trespass, the Plaintiff submitted that it had been in possession of the land until February 2025, when the Defendant unlawfully trespassed and erected structures without its consent and knowledge and urged the Court to allow its claim **Analysis and determination** 1. Having considered the pleadings and the written submissions herein, the only issue for determination is whether the Plaintiff has proven trespass on the land. 2. The Land Registration Act safeguards land rights. These provisions should be read in conjunction with Article 40 of the Constitution, which outlines the rights of landowners under the Bill of Rights. 3. The relevant provisions of the said Act are as follows; ### “24. **Interest conferred by registration** 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. Rights of a proprietor** (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—(a)to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and(b)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. Undoubtedly, the rights of a property owner under the statute include the peaceful and enjoyable possession of the land, subject to the limitations and modifications provided for in the Act, which include overriding interests. 2. Section 3 (1) of theTrespass Act, Cap 294 stipulates provides that: "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.” 1. The foregoing definition aligns with the description provided in Clerks and Lindsell on Torts, which characterises trespass as an unjustified entry onto land in the possession of another. Broadly, trespass to land encompasses entry onto the land or any direct and immediate act that interferes with the possession of another person's land. Trespass constitutes a breach of the right to possession, and the Plaintiff is required to demonstrate that it possessed the immediate and exclusive right to the land in question, and that the Defendant entered the land during such possession. It is trite that an honest belief that the land belonged to the Defendant is not a good defence nor an excuse to trespass. 2. In the case of Charles Ogejo Ochieng Vs Geoffrey Okumu [1995] EKLR, the Court of Appeal held that; “Trespass is an injury to the possessory right, and therefore the proper Plaintiff in an action for trespass to land is the person who has title to it or the person who is deemed to have possession of the land at the time of trespass.” 1. Conversely, the Plaintiff must demonstrate either actual possession or the right to immediate exclusive possession of the disputed land. Owners of registered titles are presumed to hold possessory rights unless evidence to the contrary is presented, such as unauthorised and unjustifiable entry by the Defendant, or the absence of consent, licence, or other lawful justification. Once possession and authorised entry are established, the burden of proof shifts to the Defendant to substantiate the legality of the entry. The obligation to prove reasonable cause or consent rests with the trespasser. 2. In this case, the Plaintiff has demonstrated that it acquired the suit land through a public auction on 15/12/2015 at the sum of Kshs 7 Million. 3. A vesting order dated issued on 8/12/22 vested the suit land in the name of the Plaintiff. It stated as follows; “Whereas Michael Muasya Ndunda c/o LR No. 12672/45 situated at Runda off Mimosa Drive in Nairobi registered as proprietor for an estate in absolute title (subject to the Acts, charges lease, encumbrances and the special conditions contained in the memorandum endorsed hereto of all that piece of land situated in County of Nairobi in the Nairobi Area of the Republic of Kenya together with the buildings and improvements erected and being there on the premises LR No. 12672/45 situated at Runda off Mimosa Drive in Nairobi. And whereas pursuant to a decree made in the 1st Class Magistrate’s Court in Nairobi by M. W. Njagi (P.M.) on 1/10/2015 in Civil Suit No. 34 of 2015 at Nairobi City Court, the said piece of land was offered for sale by Public Auction by Ideal Auctioneers of P. O. Box 42174 and a bid in the sum of Kshs. Seven Million (Kshs. 7,000,000) by Leone Island International Limited aforesaid (herein called (“the Purchaser”) was accepted and whereas pursuant to the said Public Auction and to the payment of Kshs. One Million, seven hundred fifty thousand (1,750,000.00) the purchaser has applied to this Court an order that the said piece of land be vested in it. Now therefore it is ordered that the said property herein before described together with buildings and improvements erected thereon be and is hereby vested in the Purchaser subject to the terms and conditions upon which the said Michael Muasya Ndunda held the same. Memorandum; 1. The Government Land Act (Cap. 280) 2. The Registered Land Act (Cap. 300) (Now Repealed) 3. The terms and condition contained in L.R No. 12672/45 situated at Runda off Mimosa Drive in Nairobi. GIVEN UNDER my hand and seal of this Honourable Court this 8th Day of December, 2022. ISSUED AT Nairobi this …14th…Day of December 2022.” 1. Under the said vesting order, the Executive Office of the Court was mandated to execute the transfer of the said land to the Plaintiff. In pursuance of the said orders, the Court has perused a duly executed transfer by the Executive Officer in favour of the Plaintiff. 2. It is the finding of the Court that the Plaintiff has proven beneficial ownership of the suit land. 3. Regarding trespass, the Plaintiff's witness, who also serves as a director of the company, testified that the company had possessed the property from the time of acquisition until 20/2/25, when the Defendant trespassed, constructed temporary structures, erected a fence, and felled a tree estimated to be over 300 years old. The Defendant's unlawful actions were duly reported to the relevant authorities, including the police and the Criminal Investigation Office. Officials from the City County subsequently visited the land and removed the structures. The Defendant has not contested the Plaintiff's account; therefore, the Court regards the evidence as uncontested under the circumstances. 4. Furthermore, the Defendant, in his statement recorded at the police station, confirmed that the structures erected on the suit land were dismantled by officers from the City County on 28/2/25, thereby affirming that he had unlawfully entered the suit land. The Court determines that trespass has been established. 5. On damages for trespass, the Plaintiff has sought a sum of Kshs 1.0 Million. This prayer, like all others, was not contested. 6. The Court of Appeal decision in the case of Kenya Power & Lighting Company Limited vs Fleetwood Enterprises Limited [2007] eKLRaffirmed inter alia that where trespass is proven the affected party need not prove that it suffered damages or loss as a result of the trespass so as to be awarded damages because once the trespass is proved, the Court is bound to assess and award damages on a case to case basis. Additionally, the case of Duncan Nderitu Ndegwa vs KP& LC Limited & Another (2013) eKLR for the holding, inter alia, 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 damages. 7. In the case of Park Towers Limited Vs John Mithamo Njika & 7 others [2014] EKLR, the Court stated that where trespass is proved, a party need not prove that he suffered any specific damage or loss to be awarded damages. … the Court is under a duty to assess the damages awardable depending on the unique facts and circumstances of the case. 8. Halsbury 4th ed, Vol 45 at para 26, 1503 provides as follows on computation of damages in an action of trespass: - 9. If the Plaintiff proves the trespass he is entitled to recover nominal damages, even if he has not suffered any actual loss. 10. If the trespass has caused the Plaintiff actual damage, he is entitled to receive such amount as will compensate him for his loss. 11. Where the Defendant has made use of the Plaintiffs land, the Plaintiff is entitled to receive by way of damages such sum as would reasonably be paid for that use. 12. Where there is an oppressive, arbitrary or unconstitutional trespass by a government official or where the Defendant cynically disregards the rights or the Plaintiff in the land with the object of making a gain by his unlawful conduct, exemplary damages may be awarded. 13. If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, the general damages may be increased. 14. In the case of Nakuru Industries Limited (supra) the Court cited the case of Duncan Ndegwa V Kenya Pipeline HCC No. 2577 of 1990 (Nairobi) where the Court held: - “The general principles as regards the measure of damages to be awarded in cases of trespass to land where damage has been occasioned to the land is the amount of diminution in value or the cost of reinstatement of the land. The overriding principles is to put the claimant in the position he was prior to the infliction of the harm.” 1. On general damages, it is trite that trespass is actionable per se, that is, without the need to lead evidence in support. Guided by the above precedents, I allow a nominal sum of Kshs 65,000/- as general damages for trespass, having considered that the period of trespass lasted for 7 days, that is, from 20/2/25 to 27/2/25. 2. **Final orders for disposal** 3. The Plaintiff’s case succeeds. 4. it is hereby ordered that a permanent injunction restraining the Defendant, either by himself or through his agents, servants and/or any other person purportedly authorised by him, from interfering with the Plaintiff's enjoyment and quiet possession of LR No 12672/45 (now Nairobi Block 100/45) [suit land]. 5. The Plaintiff is awarded Kshs 65,000/- payable by the Defendant being general damages for trespass. 6. I make no orders as to costs. 7. Orders accordingly **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. Ms. Kimuyu for the Plaintiff 2. N/A for the Respondent 3. CA- Ms Kendi