https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4705

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLC NO. E132 OF 2023** **MOHAMED SAMEER BUX.................….................….........…..…… PLAINTIFF** **VERSUS** **ATHI WORKS DEVELOPMENT AGENCY....................................DEFENDANT** **JUDGMENT** 1. The plaintiff filed the plaint dated 26th October, 2023 seeking judgment against the defendant for:- 2. ***A declaration that the plaintiff is the lawful and registered proprietor of the suit property known as LR. No. 21080/5 (I.R 68327/16).*** 3. ***A declaration that the defendant has illegally and unlawfully invaded the plaintiff’s land by trespassing thereon and digging pipes through the suit property being LR. No. 21080/5(I.R 68327/16).*** 4. ***Permanent injunction restraining the defendant either by its servants, agents, contractors, employees and/or proxies from entering, trespassing onto, building structures thereon, interfering with and/or in any other manner dealing with the suit property known as LR. No. 21080/5 (I.R 68327/16).*** 5. ***Mesne profits for user of the plaintiff’s land.*** 6. ***General damages for trespass and loss of value.*** 7. ***Special damages to the tune of Kenya Shillings Twenty Seven Million Five Hundred Thousand (Kshs.27,500,000/-).*** 8. ***Costs of and incidental to this suit.*** 9. ***Interest on (d),(e) and (f) above at commercial rates or in the alternative at court rates.*** 10. ***Any other relief that this honourable court may deem fit to grant.*** 11. The plaintiff averred that he purchased the suit property known as LR. No. 21080/5 (I.R 68327/16) from Anne Gachoki Mwangi for a sum of Kshs. 27,500,000/-, and the transfer effecting the interest was initiated on 10th February, 2020. That sometime in November 2020, the defendant without justification entered into the suit property, dug a trench and laid pipes with the intention to develop the suit property. Upon enquiry, he was informed that the defendant had entered the land legally. The plaintiff averred that he did not authorise any entry into the suit property and that the defendant has indeed trespassed onto the suit property. 12. The plaintiff pleaded the particulars of trespass and damages and stated that as a result of the trespass, the suit property has been rendered worthless. 13. The defendant filed its statement of defence dated 30th January, 2024 and denied the averments in the plaint. The defendant averred that it engaged Anne Gachoki Mwangi, the registered proprietor of the suit property early 2019 with a view to acquire an easement following the implementation of Nairobi water distribution network modification project reference vision 2030 flagship project contract no. AWSB/ KfW/NDC/W/02/2016. That following the successful completion of the easement agreement with Anne Gachoki, it engaged a consultant firm to carry out easement evaluations for the respective sections affected by the pipeline and the same was processed to conclusion. 14. The defendant averred that the valuation done on the suit property amounted to Kshs.1,803,030.30/- which was brought to the attention of Anne Gachoki. Further, that Anne Gachoki contested the valuation report and suggested that a joint valuation be conducted which generated a report dated 6th September, 2019 and a figure of Kshs.2,717,450/- was arrived at. That based on a joint inspection carried out on 19th November 2018, the suit property was valued at Kshs. 1,775,025/- as at 10th February, 2020. 15. The defendant maintained that it was in good faith and in the public interest that it pursued the acquisition of easement rights over the suit property as the negotiations on the easement valuation was at an advanced stage when the said Anne informed them that she intended to transfer the suit property. The defendant averred that the easement acquisition was in its optimum and the said Anne impliedly consented to the yet to be done installation works on the affected sections of the suit property. The defendant averred that Anne Gachoki was dishonest and failed to link it to the intended buyer for execution of the easement agreement. 16. The particulars of damages and trespasss were denied and the defendant averred that it acquired easement rights on a section of 0.034343 of the the entire suit property. Thus the suit is misplaced, premature and full of deceit with the intention of unjust enrichment. Further, that it fully engaged the concerned parties during evaluation of the particular sections of the property and indulged the said Anne ultimately leading to a joint valuation. 17. In conclusion, the defendant averred that the jurisdiction of this court has been improperly invoked contrary to the provisions of **Section 133C (6)** of the **Land Act**. Further, that the suit is made in bad faith and it is an abuse of court process as it does not disclose any reasonable cause of action. 18. The plaintiff filed the reply to defence dated 2nd March, 2024. While reiterating the contents of the plaint, the plaintiff pleaded that the matter in issue is on trespass and not acquisition of easement as alleged. The plaintiff maintained the proprietorship of the suit property as at 10th February 2020, and averred that creation of an easement cannot be implied and at no time did the plaintiff or Anne Gachoki consent to either expressly or impliedly to the said easement acquisition. 19. The plaintiff’s case proceeded for hearing on 9th March, 2026. The plaintiff (PW1) adopted his witness statement dated 26th October, 2023 as his evidence in chief, and produced the documents contained in the list of documents dated 26th October 2023 as p. exhibits nos. 1 to 8 respectively. 20. On cross examination, PW1 testified that he purchased the suit property in 2019 and he was not aware that the previous owner had an engagement with the defendant. He stated that the agreement shows that the property was being sold with vacant possession, and that he was chased away when he went to the suit property. PW1 informed the court that he found people on the suit property laying pipes and reported to the matter to the police. 21. PW1 further stated that he purchased the suit property for Kshs.27,500,000/- but he did not have documents to support his claim. 22. On re-examination, PW1 stated that he saw the trespassers after the property was transferred to him, and after reporting the trespass, he was issued with an OB number. With the testimony of PW1, the plaintiff rested his case. 23. Loice Kamau (DW1) introduced herself as the manager in charge of environment safeguard of the defendant and adopted her witness statement dated 30th January, 2024 as her evidence in chief. She produced exhibits nos. 1 to 16 respectively contained in the list of documents and the supplementary list of documents both dated 30th January, 2024. 24. On cross-examination, and on being shown the plaintiff’s documents, DW1 testified that the plaintiff made a report dated 14th November, 2020 and that they did not have the permission to enter into the suit property based on the transfer which showed that as at 3rd March, 2020, the plaintiff was the owner of the suit property. She stated that the people who went to the suit property on 20th November 2020 were not from the defendant, and she was not aware that the police asked for the ownership documents. 25. On being shown the demand letter dated 20th November 2020, DW1 stated that she was not aware if a response was made to the same. With regard to the valuation report, DW1 admitted that the same was based on the instructions of Mr. Otune Gachoki made on 12th March, 2019 and who was not the plaintiff in this matter. 26. DW1 testified that she was not aware if the defendant acquired an easement, and neither did they share the valuation report with the plaintiff. She stated that at the time of laying pipes in 2020, Anne Gachoki was the proprietor of the suit property. She admitted that no easement report was produced and that they had no authorization letter to enter into the suit property. 27. DW1 stated that they followed due process and paid the registered owner and as they were settling, Anne Gachoki disappeared. She stated that the portion of the suit property that was hived off was surveyed, and that Anne Gachoki surrendered a copy of the title, and that they were to apply for temporary occupation of land. DW1 informed the court that the laying was not done in 2019 and 2020. 28. On re-examination, DW1 testified that the proprietor of the suit property as at the time of laying the pipe was Anne Gachoki, and that they were not aware of the plaintiff’s existence. Following the testimony of DW1, the defendant rested its defence. 29. The plaintiff filed his written submissions dated 10th April, 2026 while the defendant filed its written submissions dated 20th April, 2026. I have considered the pleadings, the evidence tendered, the testimonies of the witnesses and the written submissions filed. The issue for determination is *whether the defendant trespassed onto the plaintiff’s property and whether the plaintiff is entitled to the orders sought.* 30. It is not in dispute that the plaintiff is the registered owner of the suit property having acquired the same through purchase from Anne Gachoki. Therefore, an order seeking declaration of the same cannot issue as it is uncontested. The plaintiff’s case is that he purchased the suit property from Anne Gachoki vide an agreement of sale date dated 15th October 2019, and a transfer initiated on 10th February 2020. However,sometime in November 2020, the defendant entered the suit property and began digging trenches, without the plaintiff’s permission as he had not given any consent or authorization. He reported the unlawful invasion of his property to the police and was issued with an OB number. 31. In its defence, the defendant stated that it had acquired easement rights over a portion of the suit property from the previous owner-Anne Gachoki following the implementation of the Nairobi water distributon network modification project which involved the construction of approximately 12.55 km water transmission pipelines from Kabete-Uthiru-Karen pipeline. The defendant stated that the suit property previously owned by Anne Gachoki was among the properties affected by this project. 32. In **Charles Ogejo Ochieng vs. Geoffrey Okumu [1995] KECA 169 KLR**, the Court of Appeal described trespass as follows:- ***“Trespass is an injury to a possessory right, and therefore the proper plaintiff in an action of trespass to land is the person who has title to it, or a person who is deemed to have been in possession at the time of the trespass. See Halsbury’s Laws of England 3rd edition Volume 38 at pg 744.”*** 1. Similarly, in **Adeti v Alexander Oyiolo Odongo T/A Alema Service Station [2022] KECA 1037 (KLR)**, it was held that:- ***“it is clear that for one to successfully prosecute a claim on trespass, he must prove that one, he is in possession of the suit property hence has the right to immediate and exclusive possession and two, that there is an entry onto the suit property by the tortfeasor and such unlawful entry denied the claimant his right to exclusive possession.”*** 1. With no contradiction whatsoever, the plaintiff is the registered owner of the suit property, as at 3rd March, 2020. The issue to determine now is whether the defendant had lawful entry into the suit property. I have evaluated the evidence produced and I note that during the cross-examination of DW1, the plaintiff did not seek to challenge any documents relied on by the defendant. In supporting its entry into the suit property, the defendant produced the report and valuation of a portion of land to be excised from LR. No. 21080/5, the suit property for creation of a water pipeline easement dated 12th March, 2019. The terms of this reference is for compulsory acquisition claims made by the then registered owner Anne Gachoki. It appears that the owner was aware of this project for the reason that she made complaints as per the grievance recording and settlement form dated 13th March, 2019. 2. The suit property was also part of some of the private properties that were to be affected by the project as per the letter dated 23rd January, 2019 and evidently so, valuation of the same had been conducted on 20th December, 2018. With regard to the suit property and as per this valuation report, the portion to be affected was 0.034343 and not the entire suit property as alleged. 3. The evidence produced further indicates that Anne Gachoki contested the compensation costs amounting to Kshs.1,803,030/- as per the email dated 7th March, 2019 which resulted to another joint valuation exercise. It is unknown whether Anne Gachoki was eventually compensated for the portion of the suit property to be excised to give way for the project. From the evidence, it appears that Anne Gachoki knew very well of this project but failed to disclose the same to the plaintiff at the time of the sale. 4. As it is, it appears that the project is ongoing since the plaintiff alleges that sometime in November 2020, he found people on the suit property digging trenches. This buttresses the fact that previous owner, Anne Gachoki concealed this material information from the plaintiff. 5. Therefore, the entry to the suit property by the defendant cannot be said to have been entirely unlawful and illegal. The valuation exercise conducted in 2018 and 2019 shows that the water pipeline project was an exercise conducted by the Nairobi City County Government, and the failure was on the part of Anne Gachoki to bring this information to the attention of the plaintiff to enable him decide/engage or complete this exercise with the defendant. 6. More importantly, it is only a portion of the suit property that is seen to be affected by this project. The plaintiff cannot now claim special damages in terms of the whole purchase price. Neither can he claim mesne profits for the reason that trespass has not been proved.In my view, the plaintiff case lies with Anne Gachoki who failed to disclose to him the true facts of the possession of the property. By the time the suit property was registered in his name, negogiations had been ongoing concerning acquisition of easements rights over a portion of the suit property. 7. From the above, I find on a balance of probabilities that the plaintiff has not proved that the defendant has trespassed onto his (plaintiff) property. The plaint dated 26th October, 2023 therefore lacks merit, and the same is hereby dismissed with costs to the defendant. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY** **THIS 22ND DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **22/07/2026.** ***In the presence of:*** *Mr. Benson Agunga - Court assistant* *Mr. Khan for the Plaintiff* *Ms. Gathira holding brief for Dr. Kamotho for the Defendant*