https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/263

Salim v Rombosha & another (Environment and Land Case E014 of 2025) [2026] KEMC 263 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEMC 263 (KLR) Republic of Kenya In the Mariakani Law Courts Environment and Land Case E014 of 2025 TN Sinkiyian, PM July 7, 2026 Between Masoud Salim Plaintiff and Zainab Akora Rombosha 1st Defendant Richard Meme Kobia 2nd Defendant Judgment Background of the Matter 1.This matter proceeded undefended on 30/4/2026 for formal proof: 1 witness testified and plaintiff closed. The plaintiff Masoud Salim, a resident of MacKinnon road, testified adopting his witness statement (taarifa ya ushahidi ya 7/10/2025) and his documents as his testimony and producing documents in the bundle of even date as plaintiff’s exhibits 5 documents in total. Marked as exhibits 1 to 5 respectively. He surged court to grant him prayers as per his plaint of 7/10/2025, pleading that nimefungiwa njia sana mahali ya kupitia kwa sasa. 2.The plaintiff filed closing submissions dated 6th May 2026 lodged through Mwahunga Mtana & Company Advocates on record for the plaintiff 3.The suit was lodged by way of Plaint dated 7th October 2025. Prayers in the suit:a)An injunction against the defendants ,their servants, agents, employees, family members or anybody acting through them from fencing off the plot and blocking the plaintiff’s access road to his house on his plot measuring 0.059ha Situated at Kiwanjani Mackinon Road.b)Costs and interest of the suit. 4.The plaintiff avers that he sues as the true occupier and bonafide purchaser of all that land wholly covered and utilized measuring approximately 0.159 Ha from the 1st defendant for a consideration of Kshs.150,000/ and after he duly paid in full, later he added another area and paid the 1st defendant Kshs. 10,000/=. The 1st defendant acknowledged by signing the agreement for sale dated 13/7/2023. Upon the execution of the agreement the plaintiff took possession of his land and has been utilizing the said land; he built a house and lives there with his family to date. The land he bought was marked out as they put up beacons using surveyor. The beacons were fixed and since then the vendor and all her family members agreed and lived in peace until the 2nd defendant claimed to have allegedly been sold the land. The said defendant insisted that the plot belongs to him and began to prepare to fence up plaintiff’s plot totally blocking plaintiff’s access road to his house . 5.For that reason plaintiff’s claim is for an injunction restraining the defendants , their servants, agents, relatives, family members or anybody acting through her from fencing and uprooting the beacons on his plot measuring 0.159 ha situated at Kiwanjani Village Mackinon Road Kwale county. He is owner of the parcel of land having duly purchased the plot. THAT on or about the 13th of July 2023 the plaintiff bought land. 6.The defendants have no color of right to the property as plaintiff had legally acquired the same. The 2nd defendant who alleges to have bought the land later is blocking the plaintiff's access road to his house and he must be restrained. The 2nd Defendant plans to uproot the plaintiff's beacons earlier placed, and he has already dug holes unlawfully and unless restrained the plaintiff shall suffer irreparable loss. The 1st defendant having disposed off her interest in full, with knowledge of her family, has no right over the land and should be restrained from interfering. 7.The plaintiff has in his submissions reiterated his witness statement adopted as evidence. He urges that he has proved his case on a balance of probability as required by law. He urges the exhibits he produced show that he purchased the plot of land through his brother and the agreements were duly witnessed by the assistant chief Macknon road sublocation on the 9/2/2019 and the other agreement by the plaintiff himself also witnessed by the assistant chief. He has therefore adduced evidence that prove that he is entitled to the land. He purchased the plots and is backed up by the elders and the local administration who witnessed the sale. He has met conditions for grant of an injunction. He lives on the suit property and he needs access to his plot. The defendants should be restrained from interfering with the plaintiff’s parcel of land and especially the access to his house. The defendants did not respond or appear in court which is a clear show that they do not have any genuine or tangible claim. The court has power to exercise its discretion in granting him the equitable remedy he seeks. He submits that an injunction is warranted to restraining the defendants. Analysis and Findings: 8.The court has considered parties' pleadings, evidence tendered and submissions by the plaintiff. 9.What are the issues for determination in this case where the defendants have failed to appear and defend the suit? In the case Maina Versus Waweru & 2 others Environment and Land Appeal no. 10 of 2023 [2025] KEELC 791 (KLR) (19 February 2025 (Judgment) Neutral citation: (2025) KEELC (791 KLR), decision by Justice CK Nzili made on 19/2/2025 at ELC Kitale, Judge Nzili found that the appellant in the case had pleaded and tendered evidence based on trespass. The judge held in paragraph 55 and 58 (Maina Vs Waweru) that once the appellant produced ownership documents for the land which the respondents had not impeached, he discharged the legal burden. In paragraph 56 the Judge held that the respondents had the evidential burden once appellant had tendered ownership documents, to demonstrate through cogent evidence justification for entry and occupation under section 107 and section 108 of the Evidence Act 10.In Maina Vs Waweru above, reference is made in paragraph 35 of the decision to the case of Raila Odinga & another VS IEBC & others (2017) eKLR, where the Supreme Court held inter alia that issues only arise when a material proposition of facts or law is affirmed by one party and denied by the other party, and that a court should not frame an issue not arising from the pleadings. 11.In the case now at hand, the material propositions made by the plaintiff, that he is the lawful owner of the suit property has not been controverted. Plaintiff has produced exhibits showing he purchased the plot measuring approximately 0.059ha situated at Kiwanjani Mackinon Road and he has been residing there since he took possession in 2013. He later bought additional portion of land later in 2019. 12.In the case ELC No 161 Of 2016 Kenya Evangelical Lutheran Church Registered Trustees Versus Ngowa Mweru And Mark Emanuel Gonzi, decision made on 6TH MAY 2021 at Environmental & Land Court Of Kenya At Mombasa, found in favour of the plaintiffs upon being satisfied that they had proved ownership and held in paragraph 15 ‘’that the defendants have not felt bold enough to face the plaintiff in court. They are clearly trespassers with no colour of right. I do not hesitate to issue an order directing them to vacate the disputed land within 30 days of service upon them of this judgment. They should also remove all their structures from the land within this period and restore the land to the state that they found it or else the plaintiff is at liberty to remove them and pass over the costs to the defendants. I am also persuaded to award general damages in the sum of Kshs 500,000 for their acts of trespass. The same will attract interest from the date of this judgment at court rates till payment in full’’. The judge granted orders for the defendants to vacate the suit property within 30 days of being served with the judgment and for the ‘’defendants to also remove their structures from the said land and restore the land to the state that they found it. In default, the plaintiff is at liberty to evict the defendants and remove the said structures and pass over the costs to the defendants’’. 13.On the factual question whether or not the defendants have unlawfully entered into his plot; blocking access road, the plaintiff’s evidence has not been challenged by the defendants as they refused to appear and face the plaintiff in court. This court is satisfied that Plaintiff is the lawful owner of the suit property. His testimony that defendants entered his property without his permission blocking his access to his residence is uncontroverted. 14.This court finds the plaintiff’s case has been proved as required in law on a balance of probabilities that he owns the suit property situate at Kiwanjani Mackinon Road plot measuring 0.059ha within Kwale County. 15.The court finds the defendants have trespassed unto the plaintiff's suit property, fencing off the plot and thereby blocking the plaintiff’s access road to his house on his plot, therefore the prayers in the plaint dated 7/10/2025 are warranted to safeguard the plaintiff’s right to property. 16.The court enters judgment in favour of the plaintiff against the defendants as prayed in the suit. An injunction is granted as prayed against the defendants ,their servants, agents, employees, family members or anybody acting through them from fencing off the plot and blocking the plaintiff’s access road to his house on his plot measuring 0.059ha Situated at Kiwanjani Mackinon Road. The defendants shall bear the plaintiff’s costs of suit. JUDGMENT DATED, SIGNED & DELIVERED THIS…7TH ..DAY OF……JULY…..2026T. N. SINKIYIANPRINCIPAL MAGISTRATEIn Presence Of:Plaintiff:AbsentRepresented by………Absent.Mwahunga Mtana & Company AdvocatesDefendants: 1st …Absent. 2nd AbsentCourt Assistant: Michael Wesonga