https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5159

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO. E052 OF 2022** **LOICE WAMBUI KURIA** **……………………………………..…………PLAINTIFF** **VERSUS** **DAVID CHEGE MUNIU ……..…………………………..….….. 1ST DEFENDANT** **ROBERT MWANGI MUREARENGO ……………………….. 2ND DEFENDANT** **MERCY WANJIRU GICHUGI …………………………….….. 3RD DEFENDANT** **JOHN NGUGI NJOKI ………………………………………...… 4TH DEFENDANT** **EVANS IRUNGU MWANGI ………………...……………….… 5TH DEFENDANT** **MARY WAMBUI MACHARIA ………………………………… 6TH DEFENDANT** **JAMES KIMANI MACHARIA ……………………………….... 7TH DEFENDANT** **DANIEL KAMAU NDUTAI ………………...………………….. 8TH DEFENDANT** **JOSEPH KARIUKI NJUGUNA …………………………...….. 9TH DEFENDANT** **SAMUEL KIBANDI GITAU ………………………………….. 10TH DEFENDANT** **SAMUEL MBUGUA KAMANU ………………………...……. 11TH DEFENDANT** **HANNAH MUTHONI NGUTU …………………………….… 12TH DEFENDANT** **DORCAS NYAMBURA ……………………………………..…. 13TH DEFENDANT** **JUDGMENT** **Introduction** 1. Ownership of land carries with it not merely a paper title but the right to exclusive possession. It is that right which the Plaintiff says has been violated. 2. The proceedings were commenced by a Plaint dated 26th April 2022. The Plaintiff pleads that she is the registered proprietor of Title No. RUIRU/RUIRU EAST BLOCK 2/1051 (hereinafter "the suit property"), having acquired the same for valuable consideration and remained in continuous occupation ever since. 3. The Plaintiff alleges that the Defendants, acting jointly and severally and without any colour of right, forcefully entered upon the suit property and have persisted in occupying a portion thereof. That occupation, she contends, constitutes continuing trespass, has substantially interfered with her use and enjoyment of the land, and has occasioned her loss and damage. 4. The Plaintiff further pleads that her efforts to secure vacant possession through demands and notice of intention to institute legal proceedings proved unavailing, the Defendants having failed or refused to vacate the suit property. She therefore contends that, unless the Court grants the reliefs sought, she will suffer irreparable harm incapable of adequate compensation in damages. 5. The Plaintiff accordingly prays for: 1. *A permanent injunction restraining the Defendants and any other person claiming from or under them from in any way or at all entering into, trespassing, occupying, fencing, cultivating, building and constructing, engaging in any acts of possession and/or dealing in all that property known as Title No. RUIRU/RUIRU EAST BLOCK 2/1051.* 2. *An order of Eviction all that property known as Title No. RUIRU/RUIRU EAST BLOCK 2/1051 to issue against the Defendants and any other person claiming from or under them from and that the same be undertaken by the Court Bailiff or a Licensed Auctioneer under the supervision of a Police Officer in charge of the Police Station within whose jurisdiction the Suit Property is situated.* 3. *Vacant possession of that part of the land consisting of Title No. RUIRU/RUIRU EAST BLOCK 2/1051 which is occupied by the Defendants* 4. *Damages or mesne profits.* 5. *Costs of this suit plus interest thereon at Court Rates from the dated of Judgment until settlement in full.* 6. *Further or other relief that this Honourable Court may deem just and fit to grant.* 6. That account, however, is vigorously contested. The Defendants response, initially articulated in a joint Statement of Defence dated 28th June 2022 was subsequently restated in an Amended Statement of Defence dated 8th January 2024, rejects the Plaintiff's allegations and put him to strict proof thereof. The Defendants further deny having been served with any demand notice or notice of intention to sue. 7. The Defendants' case does not end with a denial of the Plaintiff's claim. By way of counterclaim, they assert a competing proprietary interest in the suit property founded upon their alleged purchase of distinct portions thereof. 8. According to the Defendants, they are bona fide purchasers for value who acquired their respective portions of the suit property from one Jane Wanjiku Ngugi. They aver that before the suit property was assigned a Parcel Number, it was identified as Ballot No. 593, the ballot paper bearing Parcel No. 1051 and Share Certificate No. 3066 issued by NYAKINYUA INVESTMENTS LIMITED on 17th June 1992. They contend that Jane Wanjiku Ngugi, whom they describe as the original and lawful allottee of the suit property, authorised WAMUKI ENTERPRISES LIMITED, a land buying and selling company, to subdivide and dispose of the land on her behalf. 9. The Defendants further plead that they entered into separate agreements for sale with WAMUKI ENTERPRISES LIMITED and, upon completion of their respective purchases, were issued with share certificates corresponding to the portions acquired. They aver that they immediately took possession of their respective portions, constructed permanent developments thereon, and that some of them have remained in occupation for more than two decades. 10. It is the Defendants' case that, at the time of their purchases, the suit property had not been registered and no certificate of title had been issued in respect thereof. Consequently, they contend that any title subsequently issued in favour of the Plaintiff was procured fraudulently and unlawfully. 11. The Defendants deny any knowledge of the Plaintiff prior to these proceedings and describe her as a stranger to their transactions. 12. The Defendants further allege that the Plaintiff knowingly colluded with the Land Registrar-Ruiru to fraudulently and illegally procure registration of the suit property in her favour, particulars of fraud and misrepresentation having been pleaded in the Amended Statement of Defence and Counterclaim. 13. On the strength of those allegations, the Defendants seek, *inter alia*, cancellation of the Plaintiff's title, dismissal of the Plaintiff's suit, a declaration that the suit property belongs to the Defendants, a permanent injunction restraining the Plaintiff, whether by herself, her servants or agents, from interfering with the suit property, together with costs of the suit. 14. In her Reply to Defence and Defence to Counterclaim dated 18th July 2022, the Plaintiff joins issue with the Defendants on all material allegations. She denies the averments contained in the counterclaim, reiterates that she is the lawful and registered proprietor of the suit property, and maintains that the Defendants are trespassers with no lawful interest therein. She further disavows the allegations of fraud and misrepresentation levelled against her, describing herself as a stranger thereto, and puts the Defendants to strict proof of each and every allegation. Accordingly, the Plaintiff prays for the dismissal of the counterclaim with costs. 15. The pleadings having framed the controversy, the matter proceeded to trial, where the parties sought to substantiate their respective cases through oral testimony and documentary evidence. **Plaintiffs Case** 16. The Plaintiff testified as PW1 and adopted her witness statement dated 26th April 2022 as her evidence in chief. Her list of documents dated 26th April 2022 were adopted and PEX 1-5 and her list of documents dated 27th July 2022 adopted as PEX 6 and 7. 17. It was the Plaintiff’s testimony that she was give the suit property by her grandmother. She testified that the Defendant’s invasion of the suit property has rendered her unable to use the land and prays for their eviction. 18. On cross examination, the Plaintiff reiterated that she is the registered proprietor of the suit property which was given to her by her grandmother in August 2014. PW1 testified that her grandmother passed away in 2015 after she had already transferred the suit property to her. PW1 admitted that she did not have her grandmother’s death certificate. 19. PW1 testified that she was issued with a title to the suit property in August 2014. PW1 testified that her grandmother was called Loise Wambui Waweru. 20. Upon further cross examination, PW1 was referred to the application for registration dated 11th August 2014 and PEX7 (a letter from Aga Khan Hospital). PW1 conceded that according to PEX 7 she had the title as at June 2014. 21. PW1 testified that she tried evicting the Defendants between 2014 and 2022 and denied the allegations that the title deed was obtained fraudulently. 22. On re-examination, PW1 testified that she obtained the title to the suit property lawfully. PW1 further testified that she learnt of the Defendants trespass in 2014 and thereafter instructed her advocates to write to the Defendants. PW1 testified that she got a response from the Defendants advocate dated 20th July 2015 indicating that the Defendants had been on the land for 20 years. 23. PW1 testified that the title deed she deposited to Aga Khan Hospital belonged to her grandmother who died in 2015 after she had transferred the property to her. **Defendants’ Case** 24. Jane Wanjiku Ngugi testified as DW1 and adopted her witness statement dated 19th December 2023 as her evidence in chief. The Defendants’ bundle of documents were adopted as DEX 1-13. DW1 produced the original ballot no. 593 for the suit property which bears the seal of NYAKINYUA INVESTMENTS LIMITED. 25. DW1 testified that she was issued with an original share certificate in 1979 which she surrendered to NYAKINYUA INVESTMENTS LIMITED. She testified that she was subsequently issued with a share certificate dated 17th June 1992. 26. DW1 testified that she took vacant possession of her land in 1985 and carried out farming until 2000 when she instructed WAMUKI ENTERPRISES LIMITED to sell the land on her behalf. 27. DW1 testified that WAMUKI ENTERPRISES LIMITED issued receipts and share certificates to the various purchasers of her land. 28. On cross-examination DW1 confirmed that the land in dispute is known as Title No. RUIRU/RUIRU EAST BLOCK 2/1051. She further testified that she produced ballot no. 593 and that it is the title deed that bears number RUIRU/RUIRU EAST BLOCK 2/1051. 29. DW1 conceded that she did not have a title deed and clarified that the she bought her parcel for Ksh. 1050 and it measured 1 acre and further that she had a receipt dated 11th May 1979 which was for the purchase of 100 shares from NYAKINYUA INVESTMENTS LIMITED. 30. DW1 testified that she did not have the initial share certificate she was given and further that she surrendered her share certificate in 1997. 32. DW1 confirmed that she instructed WAMUKI ENTERPRISES LIMITED to sell the land which was divided into 16 portions on her behalf. 33. DW1 testified that she did not have the mutation forms for the land and further that the Defendants who she confirms purchased her land did not have titles. 34. On re-examination, DW1 testified that she was issued with a clearance certificate for parcel no. 1051 dated 27th November 2015 and that the clearance certificate bears ballet card no. 593 and RUIRU/RUIRU EAST BLOCK 2/1051. 35. David Chege Muniu testified as DW2 and adopted his witness statement dated 8th January 2024 as his evidence in chief. 36. DW2 testified that he bought a parcel measuring 40ft by 60ft comprised in RUIRU/RUIRU EAST BLOCK 2/1051 from Jane Wanjiku Ngugi (DW1). 37. DW2 testified that after the purchase of his parcel in 2000, he built a house on it. 38. On cross examination, DW2 reiterated that he purchased his portion in 2000 but conceded that he did not have a copy of the sale agreement. 39. DW2 testified that he did not know if the Plaintiff was charged with fraud and further that the Defendants have been following up on the titles with DW1 since 2015. 40. Mercy Wanjiru Gichuhi testified as DW3 and adopted her witness statement dated 8th January 2024 as her evidence in chief. 41. DW3 testified that she purchased two plots each measuring 40ft by 60ft from DW1. 42. DW3 testified that she constructed on her plots which her children now reside on. 43. On cross examination, DW3 testified that she did not live on her two plots on the suit property and reiterated that her children are the ones who reside on the plots. **Issues for Determination** 44. The parties' respective cases, viewed against the pleadings, the evidence adduced at trial, and the submissions of counsel, crystallise the following issues for determination: 1. ***Whether the Plaintiff or the Defendants have established a lawful interest in the suit property.*** 2. ***Whether the Defendants' occupation of the suit property amounts to trespass.*** 3. ***Whether the Plaint and the Counterclaim are merited.*** **Analysis and Determination** 1. ***Whether the Plaintiff or the Defendants have established a lawful interest in the suit property.*** 45. Each party says the land is theirs. Each asks the Court to reject the claim of the other. But such a dispute is not resolved by the confidence with which competing claims are advanced. It is resolved by tracing those claims to their legal foundation and testing them against the evidence. That is the task to which I now turn. 46. **The parties approach this dispute from fundamentally different legal premises. The Plaintiff's claim rests upon her registration as proprietor of the suit property. The Defendants, on the other hand, challenge the validity of that registration and assert an independent interest founded upon allotment, purchase and long occupation. The resolution of those competing claims must therefore begin with the statutory framework governing the acquisition, registration and protection of interests in land.** **47.** Sections 24, 25 and 26 of the Land Registration Act define the legal effect of registration, the rights conferred upon a registered proprietor, and the circumstances in which a certificate of title may be impeached. 48. Given the centrality of those provisions to the present dispute, I consider it appropriate to reproduce them in extenso. **49. Section 24 of the Land Registration Act provides:** *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.* 50. Section 25 states that: 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*](https://new.kenyalaw.org/akn/ke/act/2012/3/eng%402022-12-31#part_II__sec_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.* 51. Section 26 stipulates: *(1) The certificate of title issued by the Registrar upon registration,* *or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—* *(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or* *(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.* *(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.* 52. Against that statutory framework, I turn to consider the Plaintiff's claim. Counsel submitted that the suit property was gifted to the Plaintiff by her grandmother, following which she was registered as its proprietor. It was contended that the registration so obtained vested in her the rights and protections accorded to a registered proprietor under the Land Registration Act. 53. Counsel further challenged the authenticity and evidential value of the documents relied upon by the Defendants. In particular, it was submitted that the ballot produced by DW1 bore Ballot No. 1051 handwritten on its face, whereas Ballot No. 593, which the Plaintiff relied upon to trace the ownership claim of the suit property, reflected the ballot number as a typed entry. Counsel argued that this discrepancy cast doubt on the authenticity of the ballot relied upon by the Defendants. It was further submitted that, notwithstanding DW1's assertion that she was a member of NYAKINYUA INVESTMENTS LIMITED, no documentary evidence, including a membership register or any other contemporaneous record of membership, was produced to substantiate that claim. 54. Learned counsel for the Plaintiff also took issue with the alleged chain of transmission through which the Defendants claimed to have acquired their respective interests. It was submitted that DW1's assertion that the suit property had been subdivided remained wholly unsubstantiated, no mutation forms or other records of subdivision having been tendered in evidence. 55. The Plaintiff’s **counsel further contended that, having failed to establish any valid legal title to the suit property, DW1 was incapable of transferring a lawful proprietary interest to the Defendants.** 56. Conversely, counsel for the Defendants submitted that the Plaintiff had failed to establish the root of her title to the suit property. While acknowledging that the Plaintiff produced a green card identifying Loise Wambui Waweru as the original registered proprietor, counsel argued that no evidence was adduced to demonstrate that Loise Wambui Waweru was indeed the Plaintiff's grandmother or that she possessed a valid title capable of being passed to the Plaintiff. 57. Learned counsel for the Defendants further submitted that the Plaintiff's evidence was internally inconsistent. In particular, whereas the Plaint pleaded that the suit property had been acquired for valuable consideration, the Plaintiff testified that she acquired it by way of an inter vivos gift from her grandmother. According to counsel, that inconsistency called into question the Plaintiff's account of the manner in which she acquired the suit property and, by extension, the legitimacy of the root of her title. 58. The competing submissions bring into sharp focus the question whether the Plaintiff has discharged the burden of establishing the legality of her title. Although the Plaintiff relies on a certificate of title, the Defendants have mounted a direct challenge to the root of that title. The inquiry therefore extends beyond the fact of registration to the legality and provenance of the acquisition. Besides the certificate of title, the Plaintiff relies on the corresponding green card, an official search, the application for registration, evidence of payment of stamp duty in respect of the transfer, and a letter from Aga Khan Hospital concerning the custody of the original title. 59. The applicable principles are now well settled. In ***Munyu Maina v Hiram Gathiha Maina* Civil Appeal No 239 of 2009 [2013] eKLR**, the Court of Appeal held that where the root of a registered proprietor's title is under challenge, it is insufficient to merely dangle the instrument of title as proof of ownership. The proprietor must go beyond the title and demonstrate the legality of its acquisition. That principle was reaffirmed by the Supreme Court in ***Dina Management Ltd v County Government of Mombasa & 5 others* [2023] KESC 30 (KLR)**, which emphasised that once the root of title is impugned, the Court's inquiry must be directed at the legality of the acquisition and not merely the fact of registration. 60. **Measured against those principles, the Plaintiff's case cannot be said to rest on the certificate of title alone. In addition to the title, the documentary record comprises the corresponding green card, the official search, the application for registration and evidence of payment of stamp duty in respect of the transfer. Considered together, those documents provide the factual matrix against which the legality of the Plaintiff's acquisition falls to be assessed.** **61.** The Defendants nevertheless contend that the Plaintiff failed to establish that Loise Wambui Waweru was her grandmother or that she possessed a lawful interest capable of transmission. They further rely on the inconsistency between the Plaint and the Plaintiff's oral testimony as to whether the suit property was acquired for valuable consideration or by way of gift. Those matters undoubtedly warranted an explanation from the Plaintiff. The question, however, is whether they demonstrate that the Plaintiff's registration was procured through fraud or misrepresentation to which she was a party, or that it was acquired illegally, unprocedurally or through a corrupt scheme within the meaning of section 26(1) of the Land Registration Act. 62. I do not think they do. While the Plaintiff did not produce documentary evidence establishing her relationship with Loise Wambui Waweru, the documentary record relating to the registration process remained substantially uncontroverted. The green card identifies Loise Wambui Waweru as the original registered proprietor, while the application for registration and the evidence of payment of stamp duty are consistent with the Plaintiff's account that the transfer culminating in her registration followed the ordinary statutory process. **63. The inconsistency as to whether the suit property was acquired for valuable consideration or by way of gift is undoubtedly a matter of concern. It bears upon the weight to be attached to the Plaintiff's account of the transaction.** **64. Viewed, however, in the context of the contemporaneous documentary evidence relating to the transfer and registration of the suit property, I am not persuaded that it demonstrates that the Plaintiff's title was procured through fraud or misrepresentation to which she was a party, or that it was acquired illegally, unprocedurally or through a corrupt scheme within the meaning of section 26(1) of the Land Registration Act.** **65. That finding accords with the settled principles governing allegations of fraud.** It is trite that fraud must not only be specifically pleaded but also distinctly proved, the standard of proof being higher than on a balance of probabilities, though not as high as proof beyond reasonable doubt. Fraud cannot be inferred from mere suspicion, conjecture or inconsistency. See ***Vijay Morjaria v Nansingh Madhusingh Darbar & another* [2000] eKLR**. 66. Although the Defendants identified aspects of the Plaintiff's evidence that warranted scrutiny, those matters, whether viewed individually or cumulatively, fall short of the evidential threshold required to impeach the Plaintiff's title under section 26(1) of the Land Registration Act. 67. **That conclusion does not determine the matter. The Defendants nevertheless assert a competing interest in the suit property derived through DW1. The question is whether the evidence adduced in support of that claim establishes a legal interest capable of displacing the Plaintiff's registered title.** **68. The Defendants relied principally on ballot paper no. 593, share certificates and agreements for sale. Those documents may well explain the basis upon which the Defendants entered into possession of the suit property. They do not, however, without more, demonstrate how the interest allegedly held by DW1 devolved to** WAMUKI ENTERPRISES LIMITED **or how the latter acquired the legal authority to convey a proprietary interest in the suit property to the Defendants. More fundamentally, they do not establish a registrable interest capable of defeating the Plaintiff's title.** **69. In the premises, I find that the Plaintiff has established a lawful interest in the suit property as the registered proprietor. Conversely, the Defendants have failed to establish a competing legal interest sufficient either to impeach the Plaintiff's title under section 26 of the Land Registration Act or to sustain their counterclaim to ownership. The first issue is answered in the Plaintiff's favour.** **70. Once the first issue is resolved, the second presents little difficulty. The Plaintiff has established her title. The Defendants have established no competing right. Their continued occupation must therefore be justified by law, and if it is not, it amounts to trespass.** **71. The law supplies a clear answer. In John Kiragu Kimani v Rural Electrification Authority [2018] eKLR, the Court adopted the principle that trespass consists of "*any unjustifiable intrusion by one person upon land in the possession of another*." The decisive question, therefore, is whether the Defendants' continued occupation admits of lawful justification.** 72. **Applying those principles to the facts of this case, I am satisfied that the Defendants have failed to demonstrate any lawful justification for their continued occupation of the suit property. Their occupation therefore constitutes an unjustifiable intrusion upon land in which the Plaintiff has established a lawful interest and, accordingly, amounts to trespass.** **73. In view of the findings reached on the first and second issues, the Plaintiff has proved her claim on a balance of probabilities. She is therefore entitled to the declaratory and consequential reliefs sought, subject to the specific orders set out hereafter.** **74.** As regards the prayer for damages, the law is equally settled that trespass to land is actionable per se. In ***Kenya Power & Lighting Company Limited v Fleetwood Enterprises Limited* [2017] eKLR**, the Court of Appeal reaffirmed that a party who establishes trespass is entitled to an award of general damages notwithstanding the absence of proof of actual loss. Having found that the Defendants unlawfully occupied the Plaintiff's property, I am satisfied that an award of general damages is warranted. I shall accordingly award the Plaintiff general damages for trespass in the sum of **Kshs. 260,000/-** to be paid by the Defendants jointly and severally. **75. The claim for mesne profits stands on a different footing. Although the Plaintiff sought mesne profits, no evidence was adduced to establish the income derived, or reasonably capable of being derived, from the suit property during the period of the Defendants' occupation, or otherwise provide a basis upon which such profits could be assessed. While a party wrongfully deprived of property may be entitled to mesne profits, such a claim must be proved by cogent evidence. In the absence of such proof, the claim for mesne profits cannot succeed.** **76. For the same reasons, the Counterclaim is equally devoid of merit. Having failed to establish a lawful interest in the suit property or to impeach the Plaintiff's title, the Defendants have not demonstrated any basis for the declaratory, injunctive or other reliefs sought therein. The Counterclaim is accordingly dismissed.** **77. The upshot is that judgment shall be entered for the Plaintiff in the following terms:** 1. ***A permanent injunction is hereby issued restraining the Defendants and any other person claiming from or under them from in any way or at all entering into, trespassing, occupying, fencing, cultivating, building and constructing, engaging in any acts of possession and/or dealing in all that property known as Title No. RUIRU/RUIRU EAST BLOCK 2/1051.*** 2. ***The Defendants shall vacate and deliver vacant possession of Title No. RUIRU/RUIRU EAST BLOCK 2/1051 to the Plaintiff within three (3) months from the date of this Judgment. In default of compliance, an order of eviction shall issue against the Defendants and any person claiming through or under them, such eviction to be carried out by a duly authorised Court Bailiff or a licensed Auctioneer under the supervision of the Officer Commanding the Police Station within whose jurisdiction the suit property is situated, in accordance with the law.*** 3. ***The Defendants shall jointly and severally pay to the Plaintiff general damages for trespass in the sum of Kshs. 260,000/-.*** 4. ***The claim for mesne profits is declined.*** 5. ***The Counterclaim is dismissed.*** 6. ***The Plaintiff shall have the costs of the suit and the Counterclaim.*** **Dated, Signed and Delivered, at Thika this 31st day of July 2026** …………………….. **J. M. ONYANGO** **JUDGE** **In the presence of:** Mr. Obado for Ms Oeri for the Plaintiff Mr Wainaina for Mr Machua for the Defendants