https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5298

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO. E106 OF 2022** **GEORGE KENNEDY MOTHEMBA (Being the Administrator Ad Litem** **of the estate of SYLVIA WANJIKU MUTHEMBA alias** **SILVIA WANJIKU MUTHEMBA (Deceased)………………..………PLAINTIFF** **VERSUS** **THE BOARD OF MANAGEMENT** **NACHU PRIMARY SCHOOL, KIKUYU …………..........……… RESPONDENT** **JUDGMENT** 1. By a plaint dated 17th September 2022, the Plaintiff approached the Honourable court seeking the following reliefs: 1. *A declaration that Sylvia Wanjiku Muthemba alias Silvia Wanjiku Muthemba (Deceased) is the sole registered proprietor of ALL THAT parcel of land being Title No. Ndeiya/Lussigitti/T.1074.* 2. *An Order of permanent injunction restraining the defendant by themselves, their servants, agents and/or whomsoever in any means howsoever from further invading, encroaching, developing, constructing, alienating and/or disposing off , charging, leasing, letting out and/or in any other way interfering with the parcel of land being Title No. Ndeiya/Lussigitti/T.1074* 3. *An Order that Nachu Primary School, Kikuyu be forthwith evicted from ALL THAT parcel of land being Title No. Ndeiya/Lussigitti/T.1074 with the building therein demolished at the defendant’s costs.* 4. *Damages for trespass* 5. *An Order that the O.C.S, Kikuyu Police Station do oversee the enforcement of Court Orders.* 6. *Costs and interest of this suit.* 7. *Any other relief that this Honourable Court may deem fit and just to grant.* 2. In sum, the Plaintiff asserts that his late mother Sylvia Wanjiku Muthemba alias Silvia Wanjiku Muthemba (hereinafter the ‘Deceased’) is the registered proprietor of ALL THAT parcel of land known as Title No. Ndeiya/Lussigitti/T.1074 (hereinafter ‘the suit property’). 3. The Plaintiff traces the deceased's claim to the year 1978. He contends that the deceased obtained approval for the transfer of the suit property in that year, entered into possession thereafter, and remained in occupation until the title was eventually issued in 1983. 4. The Plaintiff further asserts that following the deceased's demise, the Plaintiff and the other beneficiaries embarked on the process of tracing and identifying the assets comprising her estate. It was during that exercise that they discovered that the suit property had been developed and was occupied by a school known as Nachu Primary School. 5. The Plaintiff contends that the school has no lawful or proprietary interest in the suit property capable of justifying either its occupation or the construction of the school premises thereon. According to the Plaintiff, the deceased neither sold, transferred nor otherwise parted with possession of the suit property during her lifetime. 6. It is the Plaintiff's case that the school's occupation of the suit property is unlawful and amounts to trespass. He maintains that the continued intrusion has deprived the beneficiaries of the deceased's estate of the use and enjoyment of the property, thereby necessitating the intervention of this Court to vindicate and protect the proprietary rights vested in the estate. 7. Despite being afforded the opportunity to contest the claim, the Defendants did not enter appearance or file a defence. The record shows that, according to the Affidavit of Service sworn on 28th December 2022, the Principal of Nachu Primary School was personally served with the Summons to enter appearance, the Hearing Notice dated 25th October 2022 and the Pleadings. 8. Subsequently, pursuant to the leave of the Court granted on 8th November 2023, the Defendants were served by way of substituted service through an advertisement published in a local daily newspaper on 21st November 2023. 9. Notwithstanding such service, the Defendants neither entered appearance nor filed any pleadings in answer to the Plaintiff's claim. Consequently, the matter proceeded by way of formal proof. 10. However, an undefended suit does not relieve the Court of its duty to examine the evidence and satisfy itself that the Plaintiff has established his claim on a balance of probabilities. **Plaintiff’s Case** 11. George Kennedy Muthemba testified as PW1 and stated that he was the administrator of the estate of Sylvia Wanjiku Muthemba alias Silvia Wanjiku Muthemba (Deceased). 12. PW1 adopted his witness statement dated 17th September 2022 as his evidence in chief. His list of documents dated 17th September 2022 were adopted as PEX 1-6. 13. PW1 prayed for a declaration that the suit property belonged toSylvia Wanjiku Muthemba alias Silvia Wanjiku Muthemba (Deceased) and a permanent injunction against the Defendant to stop them from interfering with the suit property and an order of eviction. 14. Additionally, PW sought damages for trespass and costs of the suit. 15. The Plaintiff’s counsel filed written submissions on 23rd January 2026, in which he urges that the orders prayed for in the plaint to be allowed. **Issues for Determination** 16. Having considered the pleadings, the evidence on record, and the submissions, the following issues arise for determination: 1. *Whether the deceased's estate has established ownership of the suit property.* 2. *Whether the Defendants' occupation of the suit property amounts to trespass.* 3. *Whether the Plaintiff is entitled to the reliefs sought*. **Analysis and Determination** 17. The resolution of this dispute begins, as it must, with the question of ownership. The Plaintiff's claim is predicated upon the estate's alleged proprietary interest in the suit property. Unless that interest is first established, the allegations of trespass and the reliefs sought cannot arise for consideration. 18. The answer begins with the Land Registration Act. Section 24(a) provides: *"Subject to this Act—* *(a) 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."* 19. Section 25(1) declares that those rights are not liable to be defeated except as provided under the Act. The registered proprietor is thus clothed not merely with a title deed, but with the legal rights and privileges which the statute jealously protects. 20. Section 26 goes further still. It requires every court to treat a certificate of title as prima facie evidence that the registered proprietor is the absolute and indefeasible owner, unless the title is shown to have been tainted by fraud, misrepresentation, illegality, procedural impropriety or a corrupt scheme. 21. The foregoing provisions encapsulate the statutory framework governing ownership of registered land. Registration vests proprietary rights in the registered proprietor, safeguards those rights against unwarranted interference, and prescribes the limited circumstances under which they may be defeated. 22. With those principles in view, the Court turns from the law to the record. The Plaintiff produced a Limited Grant of Letters of Administration *ad litem* issued on 25th July 2022 and the Death Certificate of the deceased issued on 23rd June 2022, thereby establishing his capacity to institute these proceedings on behalf of the estate. On the issue of ownership, the Plaintiff tendered the Certificate of Title issued on 15th June 1983, an Official Search confirming the deceased as the registered proprietor, and the letter approving the transfer of the suit property to the deceased. 23. The Plaintiff’s evidence discloses a consistent account of the deceased's acquisition of the suit property and culminate in her registration as proprietor. Moreover, there is nothing on the record to cast doubt upon their authenticity or to suggest that the deceased's title falls within any of the exceptions contemplated under section 26(1) of the Act. 24. The Court is accordingly satisfied that the Plaintiff has established, on a balance of probabilities, that the suit property formed part of the deceased's estate. 25. **Ownership having been established, the remaining question is whether the Defendants' occupation of the suit property is supported by any lawful right or whether, as the Plaintiff contends, it constitutes trespass.** 26. Trespass is defined in the **10th Edition** of Black Law’s Dictionary as: *“an unlawful act committed against the person before property of another; especially wrongful entry on another’s real property.”* 27. Similarly, the court in ***Rhoda S Kiilu v Jiangxi Water and Hydropower*** ***Construction Kenya Limited* [2019] eKLR** defined trespass as an intrusion by a person into the land of another who is in possession and ownership. 28. Once trespass is established, the law does not require the claimant to demonstrate that actual loss or damage has been suffered before a remedy in damages may issue. Trespass is actionable per se. This principle was affirmed by the Court of Appeal in **Kenya Power & Lighting Company Limited v Fleetwood Enterprises Limited [2017] eKLR**, where the Court held: *"Trespass is proved as in this case, the affected party such as the respondent need not prove that it suffered any damages or loss as a result so as to be awarded damages. The court is under the circumstances bound to award damages, of course, depending on the facts of each case."* 29. The application of those principles presents little difficulty. The Plaintiff's evidence is that the Defendants entered upon the land, constructed a school and remain in occupation todate. The Plaintiff says that neither the deceased nor her estate ever sold the land, leased it, licensed its occupation or otherwise authorised the Defendants' entry. 30. There is nothing before the Court to suggest otherwise. No lease. No licence. No transfer. No other lawful right to remain upon the land. 31. Therefore Defendants' occupation is without lawful justification and constitutes trespass. So long as that occupation continues, so too does the trespass. 32. **The second issue is thus answered in the affirmative. The Plaintiff has established, on a balance of probabilities, that the Defendant is a trespasser upon the suit property.** **33. The controversy has now been reduced to its final dimension. The estate's title has been vindicated. The Defendants' occupation has been found to be unlawful. What remains is to determine the reliefs that should issue to give effect to those findings.** **34.** The findings reached by the Court are not merely declaratory of legal rights; they call for effective judicial protection. A proprietary right, once established, ought not to remain vulnerable to continuing violation. 35. Having found that the suit property forms part of the deceased's estate and that the Defendants' occupation constitutes trespass, I am satisfied that the Plaintiff is entitled to the reliefs sought. 36. The Plaintiff has further sought an award of general damages. Such damages are undoubtedly available where trespass is established. Their award, however, remains a matter entrusted to the sound discretion of the Court. The land is occupied by a school. That is no answer to the claim. A school has no greater right to trespass than anyone else. But it is a circumstance which cannot be ignored when fashioning relief. In the circumstances of this case, I would decline to award general damages as this would burden the parents of the pupils at the school. 37. Accordingly, judgment is entered for the Plaintiff as follows: 1. ***A declaration is hereby made that Sylvia Wanjiku Muthemba alias Silvia Wanjiku Muthemba (Deceased) is the registered proprietor of ALL THAT parcel of land being Title No. Ndeiya/Lussigitti/T.1074.*** 2. ***A permanent injunction is hereby granted restraining the defendant by themselves, their servants, agents and/or whomsoever in any means howsoever from further invading, encroaching, developing, constructing, alienating and/or disposing off, charging, leasing, letting out and/or in any other way interfering with the suit property.*** 3. ***The Defendants shall vacate and deliver vacant possession of the suit property to the Plaintiff within ninety (90) days of the date hereof, in default of which the Plaintiff shall be at liberty to apply for an order of eviction.*** 4. ***The costs of the suit shall be borne by the Defendant.*** **Dated, Signed and Delivered, at Thika this 30th day of July 2026.** …………………….. **J. M. ONYANGO** **JUDGE** **In the presence of:** 1. Mr. Kariuki for the Plaintiff 2. No appearance for the Defendant Court Assistant: Hinga