https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4016

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELCLC CASE NO. E003 OF 2023** **AMOS GIKURU MAIYO------------------------------------------1ST PLAINTIFF** **ALICE NJAMBI GIKURU----------------------------------------2ND PLAINTIFF** **VERSUS** **THE COUNTY GOVERNMENT OF** **TRANS -NZOIA------------------------------------------------------DEFENDANT** **JUDGMENT** 1. The plaintiffs approached this court through a plaint dated **17/7/2023**. They seek: 2. **Declaration that the 1st plaintiff is the sole owner of Land Parcel No. Kitale Municipality Block 3/857.** 3. **Declaration that the plaintiffs are the owners of the land comprised in the unsurveyed light industrial Plot No. 4 Kitale Municipality.** 4. **Declaration that Land Parcel No. Kitale Municipality Block 3/857 and the unsurveyed light industrial Plot No. 4, Kitale Municipality, do not form part of the Kitale Stadium land in Kitale.** 5. **Declaration that the demolition of the plaintiffs’ developments standing on Land Parcel No. Kitale Municipality Block 3/857 and the unsurveyed light industrial Plot No. 4, Kitale Municipality, by the defendant on 17/4/2023, was illegal, high-handed, and extremely malicious.** 6. **General and exemplary damages for trespass to property or improvements standing on Land Parcel No. Kitale Municipality Block 3/857 and the unsurveyed light industrial Plot No. 4, Kitale Municipality.** 7. **Special damages of Kshs. 3,900,000/=.** **(g) Temporary and permanent injunction.** 1. The 1st plaintiff avers that he is the registered proprietor of Title No. **Kitale Municipality Block 3/857** measuring **0.0692 Ha**, whose certificate of lease was issued on **26/2/2020**, which plot is situated within Section **19** and fronts Mumias Highway, adjoining **Plot No. 4.** 2. The plaintiffs contend that they were lawfully allotted the unsurveyed light industrial plot by the then Commissioner of Lands office, vide a letter of allotment dated **31/5/1996,** and paid the requisite fees while awaiting lease processing. 3. The plaintiffs aver that their development plan for the plots was duly approved by the defendant, after which they undertook development of the two plots, including erecting a perimeter wall around them, followed by a double lockable metal sheet gate. 4. Regarding the parcel **Kitale Municipality Block 3/857**, the plaintiffs aver that the developments comprised a store, an office with two bathrooms and a two-pit latrine, while in the unsurveyed light industrial **Plot No. 4**, there was a temporary auxiliary structure with electricity and water connectivity and fitted with Closed-Circuit Television (CCTV) cameras. 5. The plaintiffs aver that they were also undertaking an auto spares business in the suit properties, while at the same time making rates and licence fee payments to the defendant. The plaintiffs aver that on **17/4/2023**, the defendant’s servants, using a bulldozer, demolished and flattened the permanent wall and all the standing structures on the two plots in their absence; and by the time they became aware and visited the suit properties, the demolition was complete. 6. As a consequence, the plaintiffs aver that they not only lost the buildings and the business that was being run in the suit properties, but also lost most of their vital documents, including the approved development plans stored in the office. The plaintiffs plead that the value of the land comprising **Kitale Municipality Block 3/857** and the unsurveyed light industrial **Plot No. 4** was **Kshs. 6,000,000/=**, respectively. While the value of the developments therein was **Kshs. 2,700,000/=** and **Kshs. 1,200,000/=,** respectively. 7. The defendant opposed the suit through a statement of defence and counterclaim dated **18/7/2024**, in which it maintained that Land Title No. **Kitale Municipality Block 3/857** and the unsurveyed light industrial **Plot No. 4** in Kitale Municipality are public land, on which the plaintiffs hold no proprietary interest, and which form part of the Kenyatta Stadium land. 8. The defendant avers that it is the legal, lawful, and beneficial owner of Land Title No. **Kitale Municipality Block 3/857**, measuring **0.0692 Ha**, and the unsurveyed light industrial **Plot No. 4**, adjoining each other, while the former plot fronts the Mumias Highway, which forms part of the government land, The defendant avers it has an interest in, known in law, and holds possession of, as land that was reserved for putting up public utilities, and in this respect the Kenyatta Stadium. 9. By way of a counterclaim, the defendant, as the plaintiff, avers that it is the legal and lawful owner of Land Title No. **Kitale Municipality Block 3/857** measuring **0.1267** of a Hectare, industrial **Plot No. 4** in Kitale Municipality, as it is land reserved by the government for putting up public utilities. 10. The defendant avers that officers, including the County Executive Committee Member for Land and Housing, applied white chalk to the area earmarked for demolition, which now included the whole of the plaintiffs’ plots, and told them to remove whatever they wanted or else everything was to be lost through demolition. 11. The defendant seeks: 12. **A declaration that the defendant is the legal owner of the Land Title No. Kitale Municipality Block 3/857, measuring 0.0692 ha, and Plot No. 4 in Kitale Municipality.** 13. **Permanent injunction restraining the plaintiffs, their servants, agents, or any other person from entering, dealing with, or interfering with the defendant’s interest in the two parcels of land.** 14. At the hearing, the plaintiffs called **Francis Kariuki Njagi** as **PW1**. As a Land Valuer, he told the court that the plaintiffs instructed him to conduct a valuation report on plots he visited on **18/5/2023**, and later compiled a report dated **21/5/2023**, produced as **P. Exhibit No. (10).** He said that the two plots, according to his investigation, did not form part of the Kitale Stadium, since, in between the two plots, there are other plots, as mentioned on page **7** of the report. 15. PW1 said that all the relevant documents of ownership were supplied to him by the plaintiff and was therefore also able to verify and ascertain ownership for the relevant government offices, such as the Land Registrar, Trans Nzoia, and the survey reports from the Director of Surveys. PW1 said that he used the comparative and the contractor’s methodology to arrive at the values shown in his report. 16. **Amos K. Maiyo**, the 1st plaintiff, testified as **PW2**. He relied on a witness statement dated **17/7/2023** as his evidence-in-chief. He stated that he is the registered owner of Land Title No. **Kitale Municipality Block 3/857**, measuring **0.0692 Ha,** pursuant to a Certificate of Lease issued to him on **26/2/2020**. PW2 stated that the property is situated within Section 19 and fronts Mumias Highway, adjoining unsurveyed light industrial Plot No. **4,** Kitale Municipality, which they were allocated together with his wife, the 2nd plaintiff, by the defunct Commissioner of Lands, vide letter of allotment dated **31/5/1996**, and paid the requisite fees of **Kshs.22,390/=,** to the Land Department and the processing of the lease was ongoing. 17. PW2 told the court that approvals for development plans were sought and approved by the defendant’s offices, whereafter they undertook development on the two plots by erecting a perimeter wall around the two plots, constructing a double lockable metal sheet gate fitted, and a store with two bathrooms and two pit latrines on Parcel No. **Kitale Municipality Block 3/857**. 18. PW2 said that on the unsurveyed light industrial **Plot No 4**, they erected temporary structures, connected water and electricity to the plots, and also mounted some CCTV cameras for security, since they were running an auto spares business therein, which was never part of Kitale Stadium land. 19. PW2 said that they have also been paying land rates and rents to the defendant. PW2 said that on **17/4/2023**, in their absence, the defendant’s servants, using a bulldozer, demolished and flattened the perimeter wall and all the existing standing structures on the two plots, whereby they found that they had lost everything by the time they came to the site. 20. By reason of the offensive demolition, PW2 said that they not only lost the buildings, business, and developments on the suit premises, but also most of the vital documents in relation to the plots, which were stored in the office block before the demolition took place. 21. PW2 said that the defendant’s acts were not only illegal but also high-handed; hence, they are entitled to special damages for the value of both plots and their developments as well as general and exemplary damages for trespass. 22. Further, PW2 said that on **15/7/2023**, the defendant, through its employees, agents, or servants, again made an entry into the two plots and started digging fence holes. PW2 produced as an exhibit an allotment letter dated **1/9/1996** as **P. Exhibit No. (1)**, receipt for payment dated **28/2/1996, P. Exhibit No. (2),** lease registered on **26/2/2020, P. Exhibit No. (3)**, and a certificate of lease dated **26/4/2020** as **P. Exhibit No. (4)**. 23. PW2 also relied on a rent clearance certificate up to the year **2018,** as **P. Exhibit No. (5)**, rates payment for the year **2020** as **P. Exhibit No. (6)**, allotment letter dated **31/5/1996,** for the unsurveyed plot, **P. Exhibit No. (7)**, PDP as **P. Exhibit No. (8),** photographs accompanied by a certificate of electronic evidence as **P. Exhibit No. 9(a),(b),(c),(d), (e),** and **(f)**, and a valuation report as **P. Exhibit No. (10).** 24. PW2 denied that his two plots were part of public land reserved for Kitale Stadium, as alleged in the defence and counterclaim. PW2 stated that they were never served with any notice to vacate the two plots or of the impending demolition. PW2 said that he witnessed the defendant’s machines undertaking the unjustified demolition, since they lawfully own the two plots. 25. Further, PW2 stated that they procedurally obtained ownership documents for the two plots after undertaking due diligence to ascertain their registration status. PW2 said that the two plots were never registered in the defendant’s name, since they were the first allottees. He termed the allocation as regular based on the PDP before the court. 26. PW2 said that all his approved development plans were destroyed during the demolition exercise. PW2 denied that the defendant’s officers visited the two plots before the demolition or issued a notice to remove any offensive structures or developments on the two plots. 27. PW2 said that he was not privy to any task force that had been convened by the defendant, whose report it acted on in demolishing his buildings and developments in the two plots. PW2 denied that they were among the alleged land grabbers of public land in Kitale. 28. PW2 denied receiving any verbal or written notice of intended demolition before **17/4/2023**. PW2 said that they were not taken to court for the repossession of the two plots by the defendant before the demolition. 29. In view of the non-availability of the defence witnesses, learned counsel Mr. Akunde opted to close the defendant’s defence and counterclaim dated **11/11/2024**. 30. The plaintiffs rely on written submissions dated **2/5/2026**, isolating eight issues for determination. It is submitted that the plaintiffs have tendered documentary evidence to prove ownership of the two plots, use and occupation, developments therein, which the defendant unlawfully trespassed into and committed acts of destruction and demolition. Therefore, the plaintiffs submit that they have proved that they lawfully and procedurally acquired, occupied, possessed, and developed the two plots by **17/4/2023**, whose root of title ownership is valid, regular, procedural, and formal. 31. The plaintiffs submit that the defendant has been unable to demonstrate that the two plots under their name comprise public land generally or form part of Kenyatta Stadium. Reliance is placed on ***Euros Nyakwana -vs- Cleophas Bwana Ongaro [2015] eKLR***. 32. Further, the plaintiffs submit that the defendant did not plead or prove that the two plots were acquired irregularly, unprocedurally, or through fraud, leaving the ownership documents unimpeachable. The plaintiffs submit that the defendant was not justified in trespassing and demolishing the suit properties, for want of a notice or a court order before the offensive entry and demolition on **17/4/2023**. 33. It is submitted that the defendant took the law into its own hands, but when called upon to demonstrate that the two plots form part of any public land, it refused to appear and defend the illegal actions. Reliance is placed on ***Rutongot Farm Ltd -vs- Kenya Forest Service & Others, Petition No. 2 of 2016 [2018] KESC 29 eKLR***, that the plaintiffs are entitled to protection of proprietary rights under **Article 40** of the Constitution and the relief sought. 34. The plaintiffs submit that the absence of a certificate of lease does not disentitle them from the protection of law in relation to the unsurveyed plot, for they had authorised developments on the said plot. Reliance is placed on ***Danson Kimani Gacina & Another -vs- Embakasi Ranching Co. Ltd [2014] eKLR***. 35. The plaintiffs submit that the defendant is liable for the loss and damage, since the photographs before the court show employees of the defendant perfecting the exercise, the defendant has admitted the demolition or giving an alleged notice through the pleadings, and paragraph **4** of the witness statement of Truphosa Otwala. Reliance is placed on ***Lapana Ltd -vs- The County Government of Trans-Nzoia, ELC No. 8 of 2013***. 36. The defendant relies on written submissions dated **28/5/2026**. On whether the two plots form part of the Kenyatta Stadium, the defendant submits that the land was designated and reserved for public utility purposes and was therefore never available for alienation to private individuals. Land set aside for public utility cannot be legally allocated to private persons. 37. Reliance is placed on **Sections 107-109 and 112** of the Evidence Act, ***Dina Management Limited -vs- County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) and Sehmi & Another -vs- Tarabana Company Limited & 5 Others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11th April 2025).*** 38. The defendant further submits that the plaintiffs’ allotment letter was never perfected as to the ownership of **Plot No.4.** Regarding parcel No. **3/857**, the defendant submits that the entire process of alienation, allotment and subsequent issuance of the Certificate of Lease was irregular and unlawful since the land formed part of the Kenyatta Stadium public utility land and was therefore not available for private alienation. The defendant also submits that the protection under **Article 40** of the Constitution does not extend to property unlawfully acquired by virtue of **Article 40(6).** 39. The defendant submits that its enforcement actions of **17/4/2023** were undertaken in the exercise of its statutory mandate under **Sections 40, 46, 55,** and **72** of the Physical and Land Use Planning Act (PLUPA) and the County Governments Act. The defendant also submits that **Article 62** of the Constitution vests public land in the National or County governments, and the plaintiffs have not shown any lawful and valid process by which such land was legally allocated to them. 40. The issues calling for the court’s determination are: 41. ***If the plaintiffs have proved that the defendant trespassed into the suit parcels of land and committed acts of destruction without justification.*** 42. ***If the defendant has proved that the suit land is public land that was incapable of alienation to the plaintiffs.*** 43. ***Whether the plaintiffs are entitled to the reliefs sought.*** 44. ***What is the order as to costs?*** 45. Trespass to private property in Kenya is governed by **Section 3(1)** of the Trespass Act. It is defined*, inter alia*, as entry into private land and the commission of acts of destruction without authority or consent of the owner or justification. See ***Kenya Power and Lighting Company -vs- Ringera & Others [2022] KECA 104 [KLR]***. 46. In ***Warrakah (Suing as the Administrator and Legal Representative of the Estate of Gakweli Mohamed Warrakah - Deceased) -vs- Mwatsami [2024] KECA 579 (KLR),*** trespass was said to occur when a person enters upon land in possession of another without permission and remains there, or places an object or structure upon the land. The court said that the tort of trespass is aimed at enforcing possession rights, rather than proprietary rights, from unlawful interference. 47. In ***Muthiora -vs- Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara - Deceased) [2022] KECA 28 (KLR)***, the court said trespass is unauthorized entry, whether present or continuous, and that to prove trespass, a claimant must show that they had immediate and exclusive possession whose rights have been violated by the intruder. See also ***M’Ikiara M’Mukunya & Another -vs- M’Mbijiwe [1984] eKLR***. 48. The onus in this suit is on the plaintiffs to prove that they are valid owners of the suit properties and that the defendant invaded and destroyed their developments without any justifiable cause or reason, as held in ***Ochako Obinchu -vs- Zachary Oyoti Nyamongo [2018] KEELC 3418 (KLR)***. 49. Further, the onus is on the defendant to demonstrate that the titles held by the plaintiffs are defeasible, for the two parcels of land fall under land previously alienated, reserved, or set aside as public land. 50. Similarly, the onus is on the defendant to prove that the law on eviction was complied with before the events of **17/4/2023** and that the defendant had superior rights or justification to make entry therein, to reclaim what was otherwise public land under the hand of the plaintiffs, in the public interest. See ***Bandi -vs- Dzomo & Others [2022] KECA 584 [KLR], Embakasi Properties Ltd & Another -vs- Commissioner of Lands & Another [2019] eKLR,*** and ***Torino Enterprises Ltd -vs- Attorney General [2023] KESC 79 [KLR]***. 51. In this suit, the plaintiffs have produced before the court a paper trail to show the root of their titles to the suit properties. The only ground raised by the defendant in the statement of defence and counterclaim is that the suit properties were and remain part of public land under its jurisdiction, reserved for public utilities generally and, in particular, Kitale Stadium, otherwise known as Kenyatta Stadium. 52. In support of the said defence and counterclaim, the defendant filed a witness statement of Truphosa Otwala and a list of documents dated **11/11/2024.** The defendant in this suit failed to call any witnesses to come and produce oral as well as documentary evidence, to sustain the claim of public land generally and in particular, tender tangible, cogent, and credible evidence that indeed the certificates of leases and title and the PDPs held by the plaintiffs were incapable of granting any proprietary interests or rights on land already set aside or reserved as public land. He who alleges must prove as provided under **Sections 107 - 112** of the Evidence Act. 53. Where a party fails to call evidence in support of its proposition, the party’s pleadings cannot be taken as evidence but remain mere statements of fact with no probative value and remain unsubstantiated, as held in ***North End Trading Co. Ltd -vs- The City Council of Nairobi [2019] eKLR***. 54. Both the statement of defence and counterclaim dated **11/11/2024**, the accompanying list of witnesses, the list of documents, an answer in cross-examination, and perhaps written submissions by the defendant cannot amount to evidence and fall short of impeaching the title documents held by the plaintiffs. See ***Njeri Murigi -vs- Peter Macharia & Another [2016] eKLR***. 55. That notwithstanding, however, the onus still was on the plaintiffs to prove that they also obtained titles to the suit properties procedurally, regularly, lawfully, and legally. When the root of title is under challenge, it is not enough to waive the instrument of title before the court. A party, as held in ***Munyu Maina -vs- Hiram Gathiha Maina [2013] eKLR,*** and in ***Dina Management Ltd -vs- County Government of Mombasa*** *(supra),* must go beyond the instrument to prove the legality of how they acquired the title, to show that the acquisition was legal and formal. 56. In ***Presbyterian Foundation -vs- Kibera Siranga Self Help Group Nursery School (Civil Appeal 64 of 2014) [2023] KECA 371 (KLR) (31 March 2023)***, the court said that the elements of a good title include: 57. *It must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question.* 58. *It must contain a recognisable description of the property.* 59. *It must not contain anything that casts any doubt on the title.* 60. In ***Mas Construction Ltd -vs- Sheikh & Others [2025] KECA 349 [KLR],*** the court found that the respondent had a well-documented history of the root of title from **1937**, when the property was registered in the name of their deceased father, and had demonstrated that it had been acquired legally. 61. In this suit, the plaintiffs have availed the paper trail showing the history of their land acquisition, use, and possession. PW1 has also corroborated that history, including showing from the survey maps, that the suit properties do not share the same section with public land forming part of Kitale Stadium land. Therefore, the court, in the absence of rival evidence, finds the title documents held by the plaintiffs valid, legal, and conclusive evidence of ownership. 62. Trespass is actionable *per* *se*. Any person claiming that public land is occupied by illegal trespassers has to follow the law set out in **Sections 152A-I** of the Land Act. By issuing a mandatory **90**-day statutory notice before the intended portion of the land is publicly acquired, the National Land Commission ought to notify the affected persons in writing and through a gazette notice. The notice, once issued, allows the aggrieved party to challenge it. See ***Margaret Karwirwa Mwongera -vs- Francis Kofi [2019] eKLR and Opondo -vs- Opondo ELC Misc. Appl. No. 16 of 2023.*** 63. In ***Kenya Railways Corporation -vs- Billal & Others Petition Appl. No. E023 of 2025[2026] KESC 14 [KLR]***, Ombwayo J, at the trial court, had held that the eviction of the respondents from Kibos Township Crown Land was irregular, illegal, and procedurally flawed, for it violated a regular court order and due process. 64. The court upheld the trial court's findings of **21/3/2025**. It noted that the statutory procedure for eviction was not followed, the respondents were not given sufficient notice, and the applicant violated the respondents' social, economic, and cultural rights by destroying their houses, churches, and schools. The Supreme Court, on **30/1/2026**, declined to stay the decree in the trial court and the Court of Appeal. 65. In ***Oil Com (K) Ltd -vs- Timothy Muriungi & Another Isiolo ELC Misc. No. E019 of 2026***, the court cited with approval ***William Musembi & Others -vs- Moi Education Centre Co. Ltd & Others [2021] eKLR*** that an eviction can only be levied by following the law to the letter. The court also cited with approval ***Gusii Mwalimu Sacco Co-operative Society Ltd -vs- Mwalimu Hotel Ltd [1996] eKLR***, holding that a court cannot allow such a state of affairs in which the law of the jungle prevails. 66. In this suit, there is no evidence that the defendant had obtained an order or decree proving that the plaintiffs are trespassers or revoking the title documents they hold as illegally obtained or issued. There is equally no evidence that the defendant held superior titles to the land, justifying its repossession of the suit properties. 67. Eviction or demolition has far-reaching implications, as held in ***Ngeny -vs- Kiarie & Others Misc. Appl. No. E056 of 2025 [2026] KEELC 54 [KLR]***. There is evidence that the defendant had allowed and known of the plaintiffs’ use, possession, and development of the suit properties for many years. **Section 152E** of the Land Act, as held in ***Julius L. Marten -vs- Caleb Arap Rotich [2021] eKLR,*** envisages that there is no dispute on ownership and occupation. Where there is a dispute as to the two, the law must be followed to the letter, and an envisaged eviction and demolition can take place. 68. In this suit, the defendant took the route of the law of the jungle. It did not even follow its own County Government Act and the Physical Land Use Planning Act, and the Rules made thereunder, as held by this court in ***Lapana Ltd -vs- County Government of Trans Nzoia*** *(supra)*, and in ***Mecca & another (Suing on behalf of the Estate of Elizabeth Nasimiyu Nyongesa) -vs- County Government of Trans-Nzoia [2025] KEELC 8376 (KLR).*** 69. As held in ***Rutongot Farm Ltd -vs- Kenya Forest Service*** *(supra)*, where the proprietary interest has been lawfully acquired, the plaintiffs were entitled to the right to protection of their rights. The defendant violated those rights. The court finds the plaintiffs entitled to the reliefs sought, including special damages in the absence of a rival expert report. See ***Kenya Power and Lighting Company -vs- Ringera*** *(supra).* 70. For avoidance of doubt, the court grants the following reliefs: 1. **A declaration be, and is hereby issued that the 1st plaintiff is the sole owner of Land Parcel No. Kitale Municipality Block 3/857.** 2. **A declaration be, and is hereby issued that the plaintiffs are the owners of the land comprised in the unsurveyed light industrial Plot No. 4, Kitale Municipality.** 3. **A declaration be, and is hereby issued that Land Parcel No. Kitale Municipality Block 3/857 and the unsurveyed light industrial Plot No. 4, Kitale Municipality, do not form part of the Kitale Stadium land in Kitale.** 4. **A declaration be, and is hereby issued that the demolition of the plaintiffs’ developments standing on Land Parcel No. Kitale Municipality Block 3/857 and the unsurveyed light industrial Plot No. 4, Kitale Municipality, by the defendant on 17/4/2023, was illegal, high-handed, and extremely malicious.** 5. **Special damages of Kshs. 3,900,000/=.** 6. **General damages of Kshs.5,000,000/=.** 7. **The defence and counterclaim are dismissed.** 8. **Costs to the plaintiffs.** 71. Orders accordingly. **Judgment dated, signed, and delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **29th** day of **June 2026.** **In the presence of:** Court Assistant - Dennis Mr. Kiarie for the plaintiffs present No appearance for the defendant Parties absent  **HON. C.K. NZILI** **JUDGE, ELC KITALE.**