https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5231

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLC/E058/2024 LUCY WANJIRU EAMES VS ABUBAKAR MIJI AND HASSAN ADEN ALI AND 2 OTHERS JUDGMENT JUDGMENT 1. Lucy Wanjiku Eames, hereinafter referred to as the Plaintiff has come to court against Abubakar Miji, Hassan Aden Ali, John Musembi and Mohammed Mohammed Maalim hereinafter referred to as the defendants claiming that at all times, the Plaintiff has been the registered owner of all that parcel known as L.R No. MOMBASA/MN/BLOCK338 having acquired it from one Bridget Barlow in 1997. 2. The Plaintiff alleges that sometimes in November 2023, the 1st and 2nd Defendants and their agents entered into the suit property without any justification and attempted to evict her security guards claiming that they were trespassers. The guards were arrested and later freed on medical grounds. The defendants later forcefully entered into the suit property and violently demolished some parts of the permanent house and perimeter wall after which they constructed a fresh perimeter wall and makeshift gate and other structure purporting to subdivide the suit property by perimeter walls constructed in the suit property. 3. The plaintiff’s claim against the defendant is for; 4. An order of injunction to restrain the Defendants by themselves, servants or agents from re-entering, taking possession, remaining in possession, selling, offering for sale, subdividing, transferring, further demolishing the parts or the wall and houses thereon, further continuing with the construction of the walls and structures thereon or in any manner whatsoever interfering or continuing to interfere with the Plaintiff's registered ownership and possession of property known as LR. No. Mombasa/MS/Block 1/338 or part thereof. 1. The Officer Commanding Police Division in Charge of Shelly Beach to enforce the decree. 2. General damages for trespass. 3. Kshs. 11,741,400.25 being the costs of repairing/restoring the damages made on the Plaintiff's suit property by the Defendants. Kshs. 1,727,285 being the costs for demolishing and removing the structures and walls put on the suit property by the Defendants. 4. Costs. 5. Interest on the (c), (d), (e) and (c) above at court rates of 14% p.a. from the date of judgment till payment in full. 6. Any other relief this Honorable court deems fit to grant. 7. The defendant filed defense admitting that the Plaintiff is registered as owner of the property known as LR. No. Mombasa/MS/Block 1/338. He however states that he is in possession of the original title deed of the suit property having offered financial assistant of three Million Kenya shillings (Kshs. 3000000) which amount the Plaintiff has failed to pay to date. According to the defendant the suit property was surrendered to him as stated in the agreement. The Defendant therefore prayed that the suit be dismissed. 8. The matter was scheduled for hearing on 8th July 2026. The defendant was served with a hearing notice but failed to appear and therefore the matter proceeded for hearing as scheduled. 9. The Plaintiff (PW-1) testified that Abukakar has invaded her property. She further testified that she did not exchange her title deed for any money and that she is in possession of the original title deed. She was in possession of the alleged agreement by the defendant. She stated that she did not know Lucy Wamboi. She adopted her statement dated 17th June 2024 as evidence in chief and produced her list of documents dated 25th June 2024 as PEx 1-PEx 14. 10. Joseph Wamamalwa (PW-2) testified that he was the security in charge of the suit property and adopted his statement dated 25th June 2024 as evidence in chief. 11. The court has considered the pleadings and the evidence on record and submissions by the Plaintiff and do find that the Plaintiff has demonstrated on balance of probability that she owns the suit property. She is the registered as absolute proprietor of the said parcel of land known as L.R No. MOMBASA/ MN/BLOCK1/338 subject to the entries in the register relating to the land and the such of the overriding interests as may for the time being subsist and affect the land. I do find that the Plaintiff's evidence is not controverted that she is the registered proprietor of the suit parcel. 12. The Land Registration Act is very clear on the issue of ownership oof land. Section 24 of the Land Registration Act 2012, provides that 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 that 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. 1. Section 25 of the said Act provides that 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 the 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 to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and 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 and that nothing in the section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. 2. Section 26 provides that 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—on the ground of fraud or misrepresentation to which the person is proved to be a party where the certificate of title has been acquired illegally, unprocedural or through a corrupt scheme. 3. The court had perused the evidence produced by the plaintiff and the same demonstrated that the suit parcel of land is registered in the names of the plaintiff and therefore the plaintiff is entitled to the protection under sections 24, 25 and 26 of the Land Registration Act 2012. 4. I have considered the plaint evidence on record and do find that the plaintiff has proved her case on a balance of probabilities and therefore, he is entitled to the prayers sought. Ultimately, a permanent injunction is hereby issued restraining the Defendants by themselves, servants or agents from re-entering, taking possession, remaining in possession, selling, offering for sale, subdividing, transferring, further demolishing the parts or the wall and houses thereon, further continuing with the construction of the walls and structures thereon or in any manner whatsoever interfering or continuing to interfere with the Plaintiff's registered ownership and possession of property known as LR. No. Mombasa/MS/Block 1/338 or part thereof. 5. As regards the costs of repair and demolishing the structure and walls put on the suit property by the defendants, the same remain uncontroverted. The claim is in form of special damages which should be specifically pleaded and strictly proved. The court has considered the report by the quantity surveyor and the attached estimate which was produced as evidence in court and the same remains unchallenged. The court in the case of Kilifi Plantation Ltd v Karimi (Civil Appeal E039 of 2023) [2026] KECA 910 (KLR) stated that; “the law on claims for special damages is that they should be specifically pleaded and strictly proved. All that the claimant is required to do is to produce evidence of the expenditure(s) incurred, which is not restricted to receipts. What amounts to strict proof depends on the circumstances of the case at hand.” 1. In the matter at hand, the Plaintiff could not be expected to produce receipts for restoration works that had not yet been undertaken. The purpose of the quantity surveyor's report was to assess the cost of reinstating the demolished house and perimeter walls. The report, having been produced in evidence and the same remaining unchallenged, constitutes sufficient strict proof of the special damages claimed. Accordingly, the Plaintiff is entitled to Kshs. 13,486,685.25 as pleaded. 2. The upshot of the foregoing is that the claim by the Plaintiff is allowed with costs thereto. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-07-30 16:31:37