Weru t/a Viozen Commercial Agencies v Reliance Oxygen Ltd & 2 others (Environment and Land Case E073 of 2020) [2026] KEELC 4048 (KLR) (2 July 2026) (Judgment)

Weru t/a Viozen Commercial Agencies v Reliance Oxygen Ltd & 2 others (Environment and Land Case E073 of 2020) [2026] KEELC 4048 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEELC 4048 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case E073 of 2020 NA Matheka, J July 2, 2026 Between Peter Weru t/a Viozen Commercial Agencies Plaintiff and Reliance Oxygen Limited 1st Defendant Philip Lemarasia 2nd Defendant Chief Land Registrar Nairobi 3rd Defendant Judgment 1.The Plaintiff avers that he is the registered owner, proprietor of land known as L.R 18052 Mavoko, IR No. 105156 measuring 2.160 Hectares or thereabouts. On the 25th day of May 2015, the Defendants claiming ownership of the Land purported to bring a surveyor who attempted to fence the land above named as L.R No. 18052 Mavoko belonging to the Plaintiff but were repulsed by the Plaintiff's workers and site guard or caretaker. That on the 25th day of May 2015, the 2nd Defendant purporting to be acting on behalf of the 1st Defendant moved into Land Parcel No.L.R 18052 Mavoko belonging to the Plaintiff and removed a sign board written private property, not for sale and carried the same away in his official Government vehicle. That the Plaintiff reported the matter to the Criminal Investigation Office in Mavoko vide OB No.39/16/2/2015. The Defendants further on the 26th May 2015 through same agents removed the Plaintiff's barbed wire and dug a trench claiming that they intended to put a perimeter wall on behalf of the 1st Defendant but ran away on seeing the police. The Plaintiff's claim is that the Defendants acts amounts to trespass, interference and the Plaintiff has suffered loss, special and general damages. 2.The Plaintiff prays for judgment against the Defendants jointly and severally for: -a.Declaration that the Plaintiff is the sole proprietor of LR NO 18052 Mavoko.b.A permanent injunction against the Defendants form in any way interfering with the Plaintiff's occupation of LR NO. 18052.c.Special& General damages for trespass.d.Costs and interest. 3.The 1st Defendant avers that the Grant for IR No. 67574 was issued to them on 22nd November 1995 with a land rent of Kshs. 53,200/- while on the other hand the forged title the Plaintiff purportedly derive their interest from is Grant IR No. 105156 was issued on 16th March 2007 with a land rent of Kshs. 90,000/= that at all material times relevant to this suit, the 1st Defendant was the lawful and the registered owner of all that parcel of land known as LR No. 18052 situate North East of Mavoko Township in Machakos District. The Plaintiff's claim that they put up the barbed wire fence on the property is a total fabrication of lies and that it is the 1st Defendant who put up the barbed wire fence. The Plaintiffs herein admit to have committed acts of trespass on the 1st Defendants property by having so called "workers or guards" on the suit property. The Plaintiff has through use of force; coercion and a criminal network denied the 1st Defendant off the quiet use and enjoyment of their property. The Plaintiffs through collusion and corrupt practices with the local police denied the 1st Defendants through its servants agents and employees access to their property for purposes of doing survey work and constructing a boundary wall. The 1st Defendant sought and was granted approval by the County Government of Machakos to construct the boundary wall over the suit property herein which the plaintiff has denied him access to. 4.In the alternative and without prejudice to the above-mentioned, the 1st Defendant avers that if any party has committed acts of trespass, it must be the Plaintiff, who have attempted to defraud and dispossess the 1st Defendant of its land and now want to use the court process to sanctify and validate their forged title in respect of L.R No. 18052 Mavoko. The 1st Defendant avers that the Plaintiff herein has never acquired any interest from the 1st Defendant property either by way of purchase or otherwise and the origin of its title is suspect and the same could only be verified and/or authenticated by the 3rd Defendant herein and/or the Land Fraud Unit Department. The 1st Defendant avers that the alleged loss the Plaintiff purports they stand to suffer and/or suffered is moot and unverifiable as the Plaintiff cannot suffer loss over what they do not own and/or dispose of that which they do not have. In the alternative, the 1st Defendant avers that it stands to suffer irreparable loss and/or damage, as it is now unable to deal with its own land owing to the Plaintiffs illegitimate claim. 5.The 1st Defendant avers that the Plaintiffs alleged Title in the name of "Viozen Commercial Agencies" is invalid and illegal for reasons, inter alia that "Viozen Commercial Agencies" is not a legal entity capable of holding a title in immovable property. The 1st Defendant prays for judgment against the Plaintiffs for:a.The Plaintiff's claim against the 1st Defendant be dismissed with costs.b.A declaration that the 1st Defendant herein is the absolute and registered proprietor of the suit property herein known as LR No. 18052 (IR No. 67574)c.A declaration that the creation of the duplicate and forged titles in respect of LR No. 18052 (IR No. 105156) by deed plans obtained from genuine Title files in favour of the Plaintiff is fraudulent, illegal, null and void and of no legal consequence.d.An Order directing the 3rd Defendant to cancel the Certificate of Title for IR No. 105156 issued to the Plaintiff and all subsisting entries.e.An Order directing the Director of Surveys to cancel the forged Deed plan 170457 emanating from certificate of title number IR No. 105156 purportedly issued on 24th February 1992f.A permanent injunction to restrain the Plaintiff and each of them whether by themselves, agents, servants or employees from advertising, undertaking any construction, trespassing, making any subdivisions, sale, transfer, lease, charge or in any manner creating any legal or beneficial interest in parcel of land known as LR No. 18052 (IR No. 105156) situated within Mavoko municipality in Machakos County.g.Damages for fraud and trespass.h.Costs of the suit and the Counterclaim herein 6.The 3rd Defendant states that the Plaintiff has never been the registered owner of the suit property and further states as follows in respect of the records held by the Chief Land Registrar. That according to records available at the office of the Chief Land Registrar, L.R. No. 18052 corresponds to IR 67574 situated North East of Mavoko Township in Machakos County, measuring approximately 2.160 Ha Grant IR 67574 (LR. 18052) was issued on 10th November, 1995 and registered on 22nd November, 1995 in the name of Reliance Oxygen Limited. That the Deed File IR. 67574 cannot be traced from the records available at the Chief Land Registrar's office and it is misplaced and/or missing, however there is a copy of Title from LIMS (Scanned Records). That their records show that IR. 105156 corresponds to land reference number 400/100 situated adjoining lake Naivasha in Nakuru District and is owned by Nicholas Mukora Kaberia and not the Plaintiff. That IR. 105156 (LR. 18052) in the name of the Plaintiff did not emanate from their office. 7.This court has considered the evidence and the submissions therein. The Plaintiff failed to attend court or adduce any evidence in open court and their case was dismissed and the court proceeded with the counter claim. DW1, a Director of the 1st Defendant Company stated that they are the sole registered proprietor of the parcel of land known as LR No. 18052 situate North East of Mavoko Township in Machakos District and produced a copy of the same. The 1st Defendant avers that the alleged Grant Number 105156 for LR No. 18052 purportedly held by the Plaintiff and/or their predecessor in title was obtained illegally, irregularly and/or fraudulently and therefore null and void. 8.DW2 the 2nd Defendant testified that at the material time he was stationed at Athi River as the Assistant County Commissioner. That he received a report of Intruders at the 1st Defendant’s suit property. That there was a caretaker on the ground and a caretaker was overseeing the same. That he neutralized the intruders and left when the situation was calm. 9.The 3rd Defendant George Gitonga a Land Registrar testified that the Plaintiff has never been the registered owner of the suit property as per the records held by the Chief Land Registrar. That according to records L.R. No. 18052 corresponds to IR 67574 situated North East of Mavoko Township in Machakos County, measuring approximately 2.160 Ha Grant IR 67574 (LR. 18052) was issued on 10th November, 1995 and registered on 22nd November, 1995 in the name of Reliance Oxygen Limited. That the Deed File IR. 67574 cannot be traced from the records available at the Chief Land Registrar's office and it is misplaced and/or missing, however there is a copy of Title from LIMS (Scanned Records). That their records show that IR. 105156 corresponds to land reference number 400/100 situated adjoining lake Naivasha in Nakuru District and is owned by Nicholas Mukora Kaberia and not the Plaintiff. He produced the following documents to support his evidence; 1.A certified copy of Grant I.R 67574 L.R 18052. 2.A certified copy of a lease registered as I.R 105156/1 3.A certified copy of a screenshot image in respect of the LMIS Dashboard in respect of search for I.R 67574. 4.A copy of a letter Ref. CT 235/57/114 dated 11th February, 2025 from the Director of Surveys stating that the deed plan signed on 24th February was not authentic 5.A copy of letter Ref. I.R No. 105156 dated 28th November, 2024 from the Registrar of titles stating that I.R No. 105156 corresponds to land reference number 420/100 situate adjourning lake Naivasha in Nakuru District. 6.A copy of letter Ref. I.R 67574 dated 12th August, 2015 from the Chief Land Registrar confirming that the suit property belongs to Reliance Oxygen Limited. 7.A copy of a letter Ref. CID/C/CRI/1/5/VOL.VI/1 dated 19th June, 2015 a letter from the DCIO Athi River requesting for a detailed report of the suit property. 1.0The 1st Defendant’s evidence has not been controverted. Section 26 of the Land Registration Act provides that a certificate of tile is conclusive proof of ownership unless inter alia fraud is proven. The burden of proving that the title is not valid lies on the burden as provided by section 107 of the Evidence Act;“(1)Whoever desires any court to give judgment as to any legal right or liability 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.” 11.In the case of Kuria Kiarie & 2 Others vs Sammy Magera (2018) eKLR where the Court of Appeal stated that;“It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo _vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: "... We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases.. "..In cases where fraud is alleged, it is not enough to simply infer fraud from the facts." 12.On the issue of trespass, the Court of Appeal was of this opinion in Jamal Salim vs Yusuf Abdulahi Abdi & another (2018) eKLR and stated that;“In the text Clerk & Lindsell on Torts, Sweet & Maxwell, 18th Edition, at page 923, trespass to land is defined as follows: - "Trespass to land consists of any unjustifiable intrusion by one person upon land in the possession of another.At page 927 of the same text discusses who may sue for trespass and it states as follows: - “Trespass is actionable at the suit of the person in possession of land, who can claim damages or injunction, or both... Similarly, a person in possession can sue although he is neither owner nor derives title from the owner, and indeed may be in possession adverse to the owner.”It is therefore not necessary for one to establish ownership of land to sustain a claim for trespass. It is enough that the person suing is in possession.” 13.The Defendant avers that the Plaintiff had unlawfully encroached on the said suit land and put up a sign of “Private Property – Not for Sale”. This is not disputed by the Plaintiff in his pleadings. In Philip Ayaya Aluchio vs Crispinus Ngayo (2014) eKLR the court held that;“The defendant has constructed on the plaintiff's land. This in itself is damage and wastage of the plaintiff's land. The plaintiff is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage? It has been held that the measure of damages for trespass is the difference in the value of the plaintiff's property immediately before and immediately after the trespass or the cost of restoration, whichever is less. See Hostler – VS – GreenPark Development Co. 986 S. W 2d 500 (No. ct App. 1999).The plaintiff herein did not adduce any evidence as to the state of his property before and after the trespass. It therefore becomes difficult to assess general damages for trespass. There was no evidence adduced on the nature of house which the defendant has constructed on the suit land. The court is at a disadvantaged position in reaching at a cost which might be reasonable for restoration of the property to its former state. However as I have found that the plaintiff is entitled to general damages for trespass, I will award a nominal sum of Kshs. 100,000/= as general damages for trespass. This cost will go towards restoration of the suit land to its former state.” 14.From the evidence on record I find that the 1st Defendant is the sole registered proprietor of the parcel of land known as LR No. 18052 situate North East of Mavoko Township in Machakos District. I find that the alleged Grant Number 105156 for LR No. 18052 purportedly held by the Plaintiff and/or their predecessor in title was obtained illegally, irregularly and/or fraudulently and therefore null and void for all intent and purposes and is therefore liable to be cancelled by this Honorable Court. Similarly as in the case cited above, in this case, the Defendants have not adduced evidence as to the status of their suit land before and after the trespass, they are entitled to general damages for trespass and the court will award a nominal sum of Kshs 150,000/= as damages. I find that the Defendant has proved its claim on a balance of probabilities and I grant the following orders;1.A declaration that the 1st Defendant herein is the absolute and registered proprietor of the suit property herein known as LR No. 18052 (IR No. 67574)2.A declaration that the creation of the duplicate and forged titles in respect of LR No. 18052 (IR No. 105156) by deed plans obtained from genuine Title files in favour of the Plaintiff is fraudulent, illegal, null and void and of no legal consequence.3.An Order directing the 3rd Defendant to cancel the Certificate of Title for IR No. 105156 issued to the Plaintiff and all subsisting entries.4.An Order directing the Director of Surveys to cancel the forged Deed plan 170457 emanating from certificate of title number IR No. 105156 purportedly issued on 24th February 1992.5.A permanent injunction to restrain the Plaintiff and each of them whether by themselves, agents, servants or employees from advertising, undertaking any construction, trespassing, making any subdivisions, sale, transfer, lease, charge or in any manner creating any legal or beneficial interest in parcel of land known as LR No. 18052 (IR No. 105156) situated within Mavoko municipality in Machakos County.6.Kshs. 150,000/= General Damages for trespass.7.Costs of the suit and the Counterclaim to be borne by the Plaintiff. It is so ordered. DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 2ND DAY OF JULY 2026.N.A. MATHEKAJUDGE