https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4650

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT ISIOLO ELC E003 OF 2025 MASJID ANSAR [SUING THROUGH ITS TRUSTEES SALAT JILLO UTUQA, SALAD MOLU DIDA, AND ABDULLAHI MUSA ADAN………………………………..PLAINTIFF VERSUS THE BOARD OF MANAGEMENT RAMADHAN PRIMARY SCHOOL ……………………………DEFENDANT **JUDGMENT** 1. The Plaintiffs, who are the Trustees of Masjid Ansar mosque, situated within Isiolo Town, have sued the defendant pertaining to and concerning encroachment onto LR No. Isiolo/Township/Block I /313 [herein after referred to as the suit property]. The Plaintiffs have contended that the suit property lawfully belongs to Masjid Ansar, but the defendant has encroached thereto, albeit without any colour of right. 2. The Plaintiffs’ have sought the following reliefs: 3. ***An order of permanent injunction to restrain the defendant, its employees, and agents and/or anyone acting on their behest, trespassing onto, or in anyone acting on their behest from entering, trespassing onto, or plaintiff’s quite use and possession of the Plaintiffs land with title number Isiolo /Township/block 1/313.*** 4. ***A declaration that plaintiff is the legal owner of the said parcel of land with title number ISIOLO/TOWNSHIP/BLOCK 1/313.*** 5. ***An order for eviction against the defendant, its employees, and agents and/or anyone acting on their behest from Plaintiff’s land title number ISIOLO/TOWNSHIP/BLOCK 1/313.*** 6. ***The Officer Commanding Police Division [OCPD] Isiolo Police Station do enforce the orders issued by this Honourable Court.*** 7. ***General damages and interests thereon.*** 8. ***Costs of this suit.*** 9. ***Any other relief[s] the court deems fit to grant.*** 10. The defendant duly entered appearance and filed a statement of defence. The statement of defence is dated the 18.03.2026. The defendant has denied the assertions by and on behalf of the plaintiffs. In addition, the defendant has posited thus: The suit property constitute[s] and comprises of public land; the public land constituting the suit property was reserved for the school; the suit property was therefore not unalienated government land; the suit property stood alienated vide reservation; the defendant school has been in occupation of the suit property; the defendant school is in lawfully in occupation ; and the occupation of the suit land by the school, was /is a matter of public knowledge. 11. In addition, the defendant has asserted thus: The suit property was not lawfully allocated to the plaintiff; the plaintiff did not procure any ground report; the process attendant to the allocation of the suit property was irregular; the certificate of lease held by the plaintiffs is invalid; and the plaintiffs have no lawful rights to the suit property. 12. The subject matter came up for directions and pre-trials. The advocates for the parties duly confirmed that same had filed and exchanged the requisite documents; and the witness statements. To this end, the parties intimated to the court that the suit was ready for hearing. 13. The Plaintiffs’ suit is premised on the evidence of one witness. The witness is Salat Jillo Utuqa. The witness testified as PW1. 14. It was the testimony of the witness that same is the chairperson of Masjid mosque. In addition, the witness averred that by virtue of being the chairperson, same is conversant with the facts of this matter. Moreover, the witness posited that same has since recorded and filed a witness statement. The witness referenced the statement date the 16.09.2025 and which statement, the witness sought to adopt and rely on as his evidence in chief. Suffice it to state that the witness statement was duly adopted and constituted as the evidence in Chief. 15. The witness also adverted to the list and bundle of documents dated the 24.03.2025 and thereafter sought to tender the documents before the court. There being no objection to the production, the documents were tendered and admitted as Plaintiffs’ exhibits P1 – P4 , respectively. 16. Additionally, the witness referenced the further list and bundle of documents dated the 16.09.2025. The witness thereafter sought to produce the documents as further exhibits before the court. In the absence of any objection, the documents were tendered and produced as exhibits P5 – P17, respectively. 17. The witness equally referenced the list and bundle of documents dated the 02.03.2026. The bundle of documents comprised of two [2] documents. Thereafter, the witness sought to produce the documents as exhibits. In the absence of any objection, the documents were duly produced as Plaintiffs’ exhibits P18 and 19 , respectively. 18. Thereafter, the witness alluded to the amended Plaint dated the 02.03.2026. The witness intimated that same was seeking to adopt and rely on the said amended Plaint. Further, and in addition, the witness implored the court to grant the reliefs sought thereunder. 19. On cross examination by learned counsel for the defendant [the Honourable Attorney General] the witness averred that same is indeed the chairperson of Masjid Ansar Mosque. The witness added that the mosque has been duly registered as a society/organization with the Ministry. 20. It was the further testimony of the witness that the organization was registered in the year 1997. In addition, the witness posited that upon the registration, the organization was dully issued with a certificate of registration. Moreover, the witness averred that same has been renewing the registration annually. 21. It was further testimony of the witness that the organization namely; Masjid Ansar, applied to be allocated a piece of land within Isiolo Town. The witness added that the application was made through the County Council of Isiolo [now defunct]. 22. While still under cross examination, the witness averred that the application for allotment of a plot was duly considered and thereafter same was approved. Besides, the witness posited that the plaintiffs were issued with a letter of allotment. To this end, the witness referenced the letter of allotment which had been tendered as an exhibit. 23. It was the further testimony of the witness that the application for allotment of the Plot [suit property], went through the County Council of Isiolo, and thereafter the approval was minuted. The witness stated that the allotment was approved *vide* minute number 12 of 1997. 24. It is also worthy to recall that the witness averred that prior to the allotment of the suit property, the directorate of physical planning generated a part development plan [PDP], which was duly circulated. Besides, the witness averred, that the land which was allocated is separate and distinct from the land, where the school is located. 25. The witness further testified that even though the land lawfully belongs to the plaintiffs, the defendant [school] has since entered upon and erected a kitchen on a portion of the suit property. In addition, it has been averred that the school is also claiming ownership of the suit property. 26. It was the further testimony of the witness that the suit property was subsequently surveyed and a beacon certificate was issued. Moreover, the witness averred that the Plaintiff was thereafter issued with a Certificate of lease. The witness maintained that the Plaintiffs are the lawfully owners of the suit property. 27. On re-examination, the witness averred that the application for allotment of land was made to the county Council of Isiolo [now defunct]. The witness added that the minutes have been produced before the court as exhibit. 28. Additionally, the witness testified that the plaintiff entered upon the suit property in the year 2002. The witness further testified that the dispute over the suit property arose when the plaintiff attempted to commence the construction. Be that as it may, the witness clarified that the land was lawfully allocated to the plaintiffs. 29. With the foregoing testimony, the Plaintiffs’ case was closed. 30. The defendant case is premised on the evidence of two witnesses. The witnesses are: Frankline Kagwima Gikunda; and Bernard Ogechi. The witness testified as DW1 and DW2, respectively. 31. It was the testimony of DW1 that the same is a land administration officer. In addition, the witness posited that he is privy to and conversant with, the facts of the matter. Moreover, the witness averred that same has brought to court a copy of the development plan in respect of the area. 32. Thereafter, the witness sought to tender and produce the development plan as an exhibit. Suffice it to state that the development plan was dully produced and marked as Exhibit D1. In addition, the witness averred that he had been commissioned to visit the suit property and to prepare a ground report. Moreover, the witness averred that plot number 449 [the suit plot] is separate and distinct from the one referenced as Ramadhan. 33. It was the further testimony of the witness that the two plots, namely; the suit plot and the one referenced as Ramadhan Primary School, are Separated by a road of access. Furthermore, the witness testified that the two plots cannot be one and the same. 34. DW1 also testified that same has tendered and produced a copy of the development plan before the court. However, the witness clarified that the development plan which has been produced has neither been certified nor signed. 35. It was the further testimony of the witness that the plaintiffs herein have filed a copy of the PDP. The witness added that a PDP is extracted from a development plan. In addition, the witness asserted that there was no objection that was raised against the validity of the PDP. 36. On re- examination, the Witness stated that same had not seen a copy of the part development plan, which the plaintiffs are relying upon. The witness added that he has just been shown a copy of the PDP. To this end, the witness averred that same was not able to verify the PDP, being relied upon by the Plaintiff. 37. The 2nd witness who testified on behalf of the defendant was one Bernard Ogechi. The witness testified as DW2. The witness averred that same is currently working as the District Surveyor – Isiolo. 38. It was the further testimony of the witness that same is conversant with the facts of the case. In addition, the witness averred that same wrote a letter /report dated the 18.03.2026 and which report the witness sought to tender and produce before the court. In the absence of any objection, the report was tendered and admitted as exhibit D1 on behalf of the defendant. 39. On cross examination by learned counsel for the plaintiff, the witness averred that the report which has been produced before the court does not have any annextures/attachments thereto. The witness added that the report is a stand-alone document. 40. It was the further testimony of the witness that the report confirms that it was not him [witness ] who undertook the survey. Upon being referred to Exhibit D1, the witness stated that the document is the development plan for Isiolo Township. In particular, the witness averred that the plan bears reference number ISL/117/206/01. 41. While still under cross examination, the witness averred that the plot being claimed by the plaintiff is shown to be plot number 449. Moreover, the witness posited that from the development plan, it is indicated that plot number 449 is separate and distinct from the one referenced as Ramadhan Primary School. In addition, the witness clarified that according to the development plan, which was approved, the plot before the court is not the same as the one for the primary school. 42. It was the further testimony of the witness that the land for the Plaintiffs’ is indicated to have been surveyed. Moreover, the Witness referenced a copy of the Beacon Certificate. On the other hand, the witness posited that the land for the school was unsurveyed. 43. On re-examination the witness testified that the development plan [exhibit D1] was issued in the year 2006. The witness added that the school land has not been surveyed. In addition, the witness asserted that the school land is public land. Moreover, the witness averred that the land in dispute belongs to the school. 44. With the foregoing, testimony, the defendant’s case was closed. 45. Following the conclusion of the hearing, the advocates for the parties sought time to file and exchange written submissions. The court thereafter proceeded to and issued directions. The directions were: The plaintiffs shall file and serve written submissions within 14 days from the date of directions; the defendant shall file and serve written submissions within 14 days from the date of service; and the plaintiffs shall be at liberty to file and serve rejoinder submissions [if any] with 7 days from the date of service. 46. The plaintiffs filed written submissions dated the 11.06.2026 and where in same have canvassed three [3] key issues. The issues are: Whether the plaintiffs proved their claim as the bona fide owners of the suit property; Whether the defendant has trespassed onto the suit property; and What reliefs should be issued by the court. 47. The defendant filed submissions dated the 26.06.2026. The defendant has highlighted four [4] key issues. The issues are: Whether the plaintiff proved its existence/registration and continuity from 1997; Whether the plaintiff proved a lawful root of title; whether the plaintiff proved trespass in law; and Whether the Plaintiff is entitled to the reliefs sought or otherwise. 48. *In a nutshell*, learned counsel for the defendant has submitted that the suit property comprises of public land, which was reserved for the defendant school. To this end, it has been submitted that the suit land was not unalienated government land for purpose of alienation. In addition, it has been submitted that the school had been in existence and in occupation of the suit property since 1995. 49. Additionally, it has been posited that the mere fact that the plaintiffs’ have been issued with a certificate of lease, does not by and of itself, denote that the plaintiff is the lawful owner of the suit property. In particular, it has been submitted that it was incumbent upon the plaintiff to prove the root of their title. 50. Be that as it may, learned counsel for the defendant has submitted that the plaintiffs did not demonstrate the root of their title. In this regard, the court has been invited to find and hold that the doctrine of indefeasibility of title, cannot be relied upon to sanction an illegality. 51. Having reviewed the pleadings; the evidence tendered [both oral and documentary]; and upon consideration of the written submissions filed by /on behalf of the respective parties, three [3] issues emerge for determination. The issues are: Whether what comprises of the suit property was reserved for the defendant/school; Whether the plaintiffs’ were lawfully allocated the suit plot or otherwise; and Whether the actions by the defendant constitute trespass or otherwise. 52. Regarding the first issue, it is imperative to highlight that the defendant contended that what constitutes the suit property, was /is public land, which had been reserved for the school. In addition, the defendant posited that because the suit land had been reserved for the school, then the land stood alienated on the basis of reservation. 53. Additionally, the defendant asserted that the school had been in existence since 1995. Moreover, it was contended that the school has been in occupation/possession of the suit property. It has been averred that the occupation of the school was/is a matter of public knowledge. 54. To vindicate the foregoing position, namely; that the suit property comprised of public land, which was already alienated on the basis of reservation, DW1 [Frankline Kagwima Gikunda] produced a copy of the development plan. The development plan was indicated to bear reference number ISL/117/206/01. 55. It is the said development plan that the defendant relied upon to anchor and propagate its claim that the suit plot was already reserved and thus same was not available. However, it is worthy to point out that DW1, admitted and acknowledged, during Cross-Examination, that the development plan Exhibit D1, was neither certified nor signed. In the absence of certification and signature of the person, who prepared/ approved same, the impugned document is clearly inadmissible. 56. Moreover, even if, the document was admitted, without any objection by counsel for the plaintiff, the mere fact that the document has been admitted, does not constitute proof of the document. Suffice it to state that admissibility of a document cannot be conflated with proof and the probative value [if any] to be attached thereto. [See **Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR).** 57. Other than the fact that the development plan was neither signed nor sealed, it is also evident that the document demonstrates that plot number 449 – which belongs to the plaintiff [and which has since been duly registered and hence birthing the suit property] is separate and distinct from the land occupied by the school. 58. At this juncture, it is apposite to reference the evidence of DW1 while under cross examination by learned counsel for the plaintiff. 59. The witness stated thus: **“I do say that I did not go the land. I do wish to state that plot number 449 and the plot referenced as Ramadhan Primary School are different on the plan. The two plots are different. I do confirm that the plan shows that there is a road that separate the two plots. I do confirm that the two plots cannot be one and the same.”** 1. What I hear DW1 to be stating is thus: The plot belonging to the plaintiff is different from the one referenced as Ramadhan Primary School. The witness is also confirming that the two plots cannot be the same. Simply put, the ground which constitutes the suit property, cannot be said to have been alienated on the basis of [sic] reservation. 2. The fact the two plots are separate and distinct was also adverted to by DW2 [Benard Ogechi]. The witness testified thus: **“Referred to exhibit D1 and the witness states that the document is a development plan for Isiolo Township. The reference number is ISL/117/206/01. The development plan is before the court. The land being claimed by the plaintiff is shown to be plot 449. I do confirm that as per the development plan, the plot number 449 is separate from the plot referenced as Ramadhan Primary School. I do confirm that as per the development plan which was approved, the plot before the court is not the same as the primary school.”** 1. The totality of the evidence on record shows that the land which was reserved for the school and wherein the school sits, is separate and distinct from the suit property. It then means that what was alienated on the basis of reservation for the school, is not the suit property. Put differently, the defendant has not tendered evidence to show that the suit property comprises of what was reserved for the school. 2. With regard to the second issue, I wish to state that PW1 testified before the court and asserted that the plaintiff applied for allotment of land. In addition, the witness posited that the application for allotment was made to the county council of Isiolo [now defunct]. Moreover, the witness averred that the application for allotment was duly approved. 3. To bolster the assertion that the application was duly approved, the witness tendered before the court a copy of the minutes of the council. Quite clearly, minute number 12 of 1997 confirms that the application was duly approved. 4. Furthermore, PW1 also tendered in evidence a copy of the part development plan [PDP] and the letter of allotment. It is instructive to state that the part development plan in favour of the plaintiff [mosque] was duly circulated and gazetted *vide* legal notice number 5831 of 29.03.2000. 5. It is also important to highlight that DW1 admitted that no objections were lodged or received as against the intention to approve the part development plan in favour of the plaintiff. Suffice it to state that the PDP in question, was duly approved and thereafter acted upon. To my mind, the preparation and subsequent approval of the PDP adhered to the established provisions of the law.[See the holding in **Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR) – paragraphs 104 and 105, thereof].** 6. I also wish to underscore that the plaintiffs witness tendered evidence and availed to the court a copy of the cadastral plan underpinning the survey of the suit property, as well as the beacon certificate. The witness [PW1] also tendered a copy of the certificate of lease. 7. Looking at the documents which were tendered and placed before the court, it becomes apparent that the plaintiff duly complied with the requisite procedures underpinning the application for allotment; the approval of the application for allotment; payment for survey; the cadastral survey; and the ultimate issuance of the certificate of lease. 8. In my humble, the plaintiff has proved the root of its title. Notably, proof of the root of title, requires the production of the deeds [instruments] that were deployed in the process of acquisition of the title, together with proof that the documents [deeds], are legitimate in the eyes of the law. 9. Before concluding on this issue, I beg to take cognizance of the holding in **Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School [2023] KECA 371 (KLR).** The court of appeal highlighted the import andtenor of the root of Title; and the elements to be adhered to in an endeavor to prove the root of the title. 10. The Court stated thus: “**The best evidence of ownership of immovable property is the title deed to it and that is why the question of the root of title is important. Root of title is the deed to which title to a property is ultimately traced to prove that the owner has good title. Accordingly, when there are competing interests as in this case, the parties are required to give evidence of title starting with a "good root of title." A good root of title and an unbroken chain of ownership is required. To be a good root of title, a document must satisfy each of the following requirements:** **(a) it must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question;** **(b) it must contain a recognizable description of the property; (c) it must not contain anything that casts any doubt on the title.”** 1. *In a nutshell*, I find and hold that the plaintiff has proved and established its case to the requisite standard. The Plaintiff has demonstrated that the allocation; survey; and ultimate issuance of Title, followed the established process/ procedure. 2. Next is the issue of whether the actions complained of constitutes trespass. I have already found and held that the plaintiff is the rightful owner of the suit property. On the basis of its registration as the owner of the suit property, the plaintiff is vested with absolute; indefeasible; and exclusive rights thereto. 3. In the case of **Mohansons (Kenya) Limited v Registrar of Titles & 2 others [2017] KEELC 2730 (KLR) ,** the Court underscored the scope of the rights of the registered owner of land. The court stated thus: [**18] As held by the Court of Appeal for East Africa held in Moya Drift Farm Ltd. v. Theuri (1973) EA 114 a registered proprietor of land is the absolute and indefeasible owner of land and is entitled to take proceedings for trespass and eviction of a trespasser even if he did not have possession of the property. Spry, V-P at 116, considered the effect of section 23 of the Registration of Titles Act and held –** **“I cannot see how a person could possibly be described as “the absolute and indefeasible owner” of land if he could not cause a trespasser to be evicted. The Act gives a registered proprietor his title on registration and, unless there is any other person lawfully in possession, such as a tenant, I think that title carries with it legal possession: there is nothing in the Act to say or even suggest that his title is imperfect until he has physical possession.”** **Sir William Duffus, P. ibid at p.117 agreed with Spry, JA as follows:** **“In any even I agree with the Vice-President that the fact that the appellant was the registered proprietor as owner in fee simple under the Registration of Titles Act, and as such vested with the absolute and indefeasible ownership of the land, was sufficient to vest legal possession of the land in the appellant and that this possession would be sufficient to support the action of trespass against a trespasser wrongly on the land.”** 1. The registered owner is entitled to exclusivity in occupation. Where a third party enters upon and infringes on the right[s] of the registered owner, the actions, unless consented upon by the registered owner would constitute trespass. Instructively, trespass denotes offensive invasion of the land of another, without any colour of rights; and without the permission of the owner. It is a violation of the possessory rights of the Owner of the Land. 2. In the case of **Church Commissioners for Kenya of the Anglican Church of Kenya v Wayuga [2024] KECA 1048 (KLR),** the court highlighted the meaning/definition of trespass thus: “***Trespass is described under the***[***Trespass Act***](https://kenyalaw.org/akn/ke/judgment/keca/2024/1048/aknkeact196248)***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”. On the other hand, a continuing trespass is defined in Jowitt’s Dictionary of English Law 2nd Edition (page or paragraph?) as follows:-“A continuing trespass is one which is permanent in its nature; as where a person builds on his own land so that part of the building overhangs his neighbor’s land”.In Black’s Law Dictionary 8th Edition (page or paragraph?), a continuing trespass is defined as:-“A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property.”Finally, in Clerk & Lindsel on Torts 16th Edition, paragraph 23 - 01, it is stated that:-“Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues.***” 1. Evidence was tendered to show that the defendant has encroached upon the suit property and erected a kitchen thereon. Besides, evidence was tendered that the school has taken over the suit property and deployed same, as its playing ground. 2. To my mind, the actions which were adverted to in the evidence of PW1 and which evidence was not rebutted, confirms trespass. I find and hold that the plaintiff has proved trespass. 3. Regarding the reliefs [if any] to be granted, I wish to point out that where trespass is proven, the owner of the land is not required to prove damage. Simply put, trespass is actionable *per se.* 4. Having found and established trespass, I am minded to and do hereby award general damages in the sum of Kshs. 1,000,000/=only. I am guided by the holding in the case of **Rhoda S Kiilu v Jiangxi Water and Hydropower Construction Kenya Limited [2019] KEELC 1664 (KLR).** **Conclusion:** 1. The Plaintiff had contended that same is the lawful owner of the suit property. It was incumbent upon the Plaintiff to tender and produce before the court, evidence to vindicate the assertions. Suffice it to say, that the Plaintiff indeed tendered credible evidence. 1. On the other hand, the defendant had posited that the suit property had been alienated vide reservation. However, the defendant failed to demonstrate the said assertions. In any event, the development plan [exhibit D1] which the defendant sought to rely on was neither signed nor certified. It was invalid. 2. *In a nutshell*, I am persuaded that the plaintiff has duly proved and established its case. Consequently, the Plaintiffs’ suit is merited. **Final orders:** 1. Flowing from the foregoing, the final orders that commend themselves to the court are: 2. ***There be and is hereby issued a declaration that plaintiff is the legal owner of the said parcel of land with title number ISIOLO/TOWNSHIP/BLOCK 1/313.*** 3. ***The defendant be and is hereby directed to vacate and hand over vacant possession of the suit property or the portion thereof under its occupation within 90 days from the date hereof.*** 4. ***In default by the defendant to comply with clause [ii] above; an order for eviction be and is hereby issued remove the defendant, its employees, and agents and/or anyone acting on their behest from Plaintiff’s land title number ISIOLO/TOWNSHIP/BLOCK 1/313.*** 5. ***There be and is hereby issued an order of permanent injunction restraining the defendant, its employees, and agents and/or anyone acting on their behest, trespassing onto, or in anyone acting on their behest from entering, remaining on, trespassing onto, or interfering with plaintiff’s quiet use and possession of the Plaintiffs land with title number Isiolo /Township/block 1/313.*** 6. ***General damages be and is hereby awarded in the sum of Kshs. 1,000,000/=only.*** 7. ***The award in terms of clause [v] shall accrue interest at court rates [14%] from the date of the judgment until payment in full.*** 8. ***Costs of the suit be and are hereby awarded to the plaintiff.*** 9. ***Costs in terms of clause [vii] above shall be agreed upon and in default to be taxed in the conventional manner.*** **DATED, SIGNED AND DELIVERED AT ISIOLO THIS 22ND DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo/Mukami Mr. Abudallahi Halkano for the Plaintiffs Ms. Nkirote Kinuu – Deputy Chief Litigation Counsel for the Defendant