https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/422

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGUSTRATE’S COURT AT KEHANCHA** **ELC CASE NO. E014 OF 2026** **MARGARET BOKE MWITA (*Suing as administrator of the estate of MWITA NYOHINDI MAROA (deceased)*……………………………………..PLAINTIFF** **VERSUS** **DANIEL MARWA NYAMOHANGA………………………..1ST DEFENDANT** **JOHNES OBUY NYAMOHANGA………………………….2ND DEFENDANT** **BONIFACE ROBI NYAMOHANGA……………………….3RD DEFENDANT** **SARAH NYABORERI MARWA…………………………….4TH DEFENDANT** **MUNIKO NYAMOHANGA…………………………...……..5TH DEFENDANT** **JUDGMENT** 1. The defendant in a plaint dated 9th March 2026 and amended on 20th March 2026 sued the defendants jointly and severally seeking for the following orders: 2. That the defendants jointly and severally by themselves or their agents, servants and family members be permanently restrained from in any manner whatsoever interfering with parcel BWIREGE/BUKIHENCHE/993. 3. Mesne profits of Kshs. 100,000/= being the loss suffered by the Estate of the deceased as a result of their interference. 4. Costs of this suit. 5. Any other further relief this Honourable Court may deem fit to grant in the circumstances. 6. The plaintiff averred that the deceased MWITA NYOHINDI MAROA has been the registered owner of all that parcel of land known as BWIREGE/BUKIHENCHE/993 measuring approximately 6.1(Ha). The plaintiff averred that on or about the end of the year 2025 the defendants jointly and severally trespassed into the deceased’s suit land and started to cultivate thereon and cut down trees. 7. The defendants were served but they did not enter appearance nor file defence. The case proceeded for hearing on 15/7/2026 as undefended. PW1 MARGRET BOKE MWITA testified and adopted her written statement dated 9/3/2026 as her evidence in chief, in which she reiterated the averments contained in the plaint. She also produced a copy of the title deed and grant of letters of administration Ad litem as exhibits 1 and 2 respectively. She prayed that her suit be allowed. The plaintiff closed her case and the defendants’ case was closed. **Determination** 1. This suit was not defended, nevertheless, the plaintiff is by law required to proof their case. In the case of **[Gichinga Kibutha v Caroline Nduku](https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3981%22%20%5Ct%20%22_blank) [2018] eKLR,** the Court held that: ***“It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”*** 1. Further, the provisions of Section 107 of the [Evidence Act](https://new.kenyalaw.org/akn/ke/act/1963/46)stipulate that: **“Whoever desires any court to give judgment as to any legal right or dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person”.** 1. In the case of **Charter House Bank Limited (Under Statutory management –vs- Frank N. Kamau [2016] e KLR** the court of appeal when discussing the burden of proof on the plaintiff in a situation where the defendant failed to adduce evidence stated that: ***“we would therefore venture to suggest that before the trial court can conclude that the Plaintiff’s case is not controverted or is proved on a balance of probability by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence from the defendant.…………The Plaintiff must adduce evidence, which in the absence of rebutted evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the Defendant has not testified’’*** 1. The plaintiff claim is based on trespass. [Trespass Act](https://new.kenyalaw.org/akn/ke/act/1962/48) in Section 3 defines trespass upon private land as follows: **“3.Trespass upon private land(1)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 shall be guilty of an offence.”** 1. From the foregoing definition, an essential ingredient for one to succeed in a claim of trespass is proof of exclusive occupation of private land. In the case of **Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR** the Court of Appeal cited with approval its earlier decision in **M’Mukanya vs. M’Mbijiwe [1984] KLR 761,** where trespass was spoken of in the following terms; ***“Trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land which is different from ownership.”*** 1. It is clear from the above provision that there must be entry into another’s land (private land), such entry must be without permission of the occupier of the land and or without reasonable excuse. Trespass also consists of any unjustifiable intrusion by one person upon land in possession of another (see [Clerk & Lindsell on Tort](https://www.wildy.com/isbn/9780414034259/clerk-lindsell-on-torts-21st-ed-hardback-sweet-maxwell-ltd) (21st Edn) page 1345). 2. An occupier for purpose of the[Act](https://new.kenyalaw.org/akn/ke/act/1962/48) is defined under section 2 to mean; - ***“The owner or the person lawfully in occupation of private land, any manager or agent of such person and in respect of forest areas and railway land, the Chief Conservator of Forests and the Managing Director of Kenya Railways respectively”*** 1. The [Act](https://new.kenyalaw.org/akn/ke/act/1962/48) defines Private land as interalia land which is owned or occupied by any person by virtue of a freehold title, a certificate of ownership or lease. The [Constitution](https://new.kenyalaw.org/akn/ke/act/2012/5) of Kenya also categorizes land into private, public, and community land. Article 64 defines private land as follows: -Private land consists of: - 2. Registered land held by any person under any freehold tenure; 3. Land held by any person under leasehold tenure; and 4. Any other land declared private land under an Act of Parliament. 5. The court in the case of **[Nyangeri Obiye Thomas V Yunuke Sakagwa Nyoiza](https://new.kenyalaw.org/akn/ke/judgment/kehc/2013/302%22%20%5Ct%20%22_blank) ELC Case No.277 of 2018** observed as follows on trespass: “***Clerk & Lindsell on Torts 18th Edition at paragraph 18-01 defines trespass as follows: “Any unjustifiable intrusion by one person upon land in possession of another.” …. Trespass is actionable at the instance of the person in possession and that proof of ownership is prima facie proof of possession” ………The acts of putting up structures on the land and taking occupation of the same forcefully surely do amount to trespass.”*** 1. Guided by the foregoing I will proceed to look at the issue of ownership of the suit property being one of the relevant issues. Be that as it may, I have considered the pleadings, the evidence tendered during trial, and in my view, the issue for determination is whether the plaintiff is entitled to the orders sought. 2. The plaintiff averred that the deceased is the registered owner of the suit parcel. In proving ownership the plaintiff produced copy of the title deed showing that the deceased is the registered owner of the suit land. There is no evidence to the contrary. 3. The [Land Registration Act](https://kenyalaw.org/akn/ke/act/2012/3), Cap 300 is very clear on issues of ownership of land, and Section 24(a) of the said Act provides as follows: **“Subject to this Act, 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.”** 1. Section 26 (1) of the [same Act](https://kenyalaw.org/akn/ke/act/2012/3) states as follows: **“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –** 1. **On the ground of fraud or misrepresentation to which the person is proved to be a party; or** 2. **Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”** 3. The law is clear that, the certificate of title issued by the Registrar upon registration shall be taken by all courts, as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner and the title of that proprietor shall not be subject to challenge except on the ground of fraud or misrepresentation to which the person is proved to be a party; or where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme. 4. The plaintiff in this case, produced a copy of the title deed to the dispute land, clearly outlining the name of the registered owner. It has been said time and again that a Title Deed is an indefeasible evidence of the ownership of land. The defendants have not offered any evidence to the contrary. 5. Having looked at the copy of the title deed, I am satisfied that the suit property indeed belongs to the deceased who is the registered proprietor. The registration and proprietorship of the deceased is, therefore, not in dispute and thus, the deceased remains the rightful, absolute and indefeasible owner of the property with all the rights and privileges accruing therefrom; including the right to possession, to a quiet and peaceful occupation and right to use the property. 6. The evidence that the defendants have trespassed on the suit property has not been challenged, and this court having found that the deceased is the registered owner, it is my finding that the deceased’s estate is entitled to peaceful and quiet enjoyment of the suit property without any interference by the defendants. **Mesne Profits** 1. The plaintiff prayed for mesne profits of Kshs. 100,000/=being the loss suffered by the estate of the deceased as a result of their interference. 2. Section 2 of the [Civil Procedure Act](https://kenyalaw.org/akn/ke/act/1924/3) Cap 21 of the Laws of Kenya defines mesne profits as follows:-“mesne profits", in relation to property, means *those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession;* 3. Order 21 Rule 13 of the Civil Procedure Rules provides;(1)Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the court may pass a decree— 4. **for the possession of the property;** 5. **for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits;** 6. **directing an inquiry as to rent or mesne profits from the institution of such suit until —** **(i)the delivery of possession to the decree-holder;** **(ii)the relinquishment of possession by the judgment- debtor with notice to the decree holder through the court; or** **(iii)the expiration of three years from the date of the decree, whichever event first occurs.** **(2)Where an inquiry is directed under subrule (1) (b) or (1) (c), a final decree in respect of the rent and mesne profits shall be passed in accordance with the result of such inquiry.** 1. The Court of Appeal in the case of **Attorney General v Halal Meat Products Limited [2016] eKLR** as cited in **Njenga v Kinuthia & another (Environment & Land Case 21 of 2020) [2022] KEELC 3249 (KLR) (6 June 2022) (Judgment)** considered when mesne profits could be awarded. The court stated as follows:- ***“It follows therefore that where a person is wrongfully deprived of his property he/she is entitled to damages known as mesne profits for loss suffered as a result of the wrongful period of occupation of his/her property by another.”*** 1. Mesne profits are akin to special damages in that they must be specifically pleaded and proved. This was the holding of the Court in the case of **[Karanja Mbugua & Another](https://kenyalaw.org/akn/ke/judgment/keelc/2014/378%22%20%5Ct%20%22_blank)**[**vs. Marybin Holding Co. Ltd**](https://kenyalaw.org/akn/ke/judgment/keelc/2014/378)**[2014] eKLR**stated as follows with regard to mesne profits:- ***“This Court is alive to the legal requirement that mesne profits, being special damages must not only be pleaded but also proved, as shown by the provisions of Order 21, Rule 13 of***[***Civil Procedure Act***](https://kenyalaw.org/akn/ke/act/ln/2010/151/eng%402022-12-31)***.”*** 1. Mesne profits is also the term used for the compensation due for the occupation of land to a person with right of immediate occupation, where no permission has been given for that occupation. In the case of **[Inverugie Investments Ltd](https://vlex.co.uk/vid/inverugie-investments-ltd-v-806607985%22%20%5Ct%20%22_blank)**[**vs. Hackett**](https://vlex.co.uk/vid/inverugie-investments-ltd-v-806607985)**[1995]3 All ER 841 [1995] WLR 713,** where the privy council held that one who was deprived of the use of his property is entitled to recover damages in the form of mesne profits. 2. The above authorities clearly show that the plaintiff is entitled to mesne profits where they have specifically been pleaded and proved. How should mesne profits be calculated? The answer is found in the case of **Mwaya Wa Kitavi and Another vs. Peter Kitemwa Muia Nrb ELC No. 10 of 2013** where the Court held that; ***“The Plaintiffs sought the damages in the form of mesne profits which means “the profits of an estate received by a tenant in wrongful possession between two dates.”*** 1. In our instant case a perusal of the amended plaint shows that the plaintiff did not specifically plead for the Mesne profits. She did not prove the same. I find that this prayer has not been proved and will award nothing under the same. 2. In conclusion I find that the plaintiff has been able to prove her case on a balance of probabilities and thus she is entitled to the orders sought in the plaint. In the end I hereby enter judgment in favour of the plaintiff as against the defendants as follows:- 3. That the defendants jointly and severally by themselves or their agents, servants and family members be and are hereby permanently restrained from in any manner whatsoever interfering with parcel BWIREGE/BUKIHENCHE/993. 4. Mesne profits Nil. 5. Costs of the suit and interest **Dated, Signed and Delivered in open Court at Kehancha on this 31stday of July, 2026 virtually via Microsoft Teams.** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of:** **Mr. Kigera…….Court Assistant** **Plaintiff………..Present** **Defendants……..Absent** **Advocate for plaintiff…….Mr. Achola present**