https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4489

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COURTS, NAIROBI** **ELCLOS E041 OF 2025** **SKY VIEW LIMITED** .......................................................................................**APPLICANT** **-VERSUS-** **FELISTER NYOKABI MWANGI** .................................................................**RESPONDENT** **JUDGEMENT** 1. By an Originating Summons dated 4th July 2025, the Applicant sought the following orders: 2. A declaration that the Applicant is the lawful registered proprietor of Land Reference No. L.R. 3577/45, situated within East of Kiambu Municipality and measuring approximately 0.2023 hectares. 3. A permanent injunction restraining the Respondent, whether by herself, her servants, agents or any person acting under her authority, from taking possession of, utilizing, selling, disposing of, alienating, charging, advertising for sale, or in any other manner dealing with L.R. No. 3577/45. 4. An order directing the Respondent to give vacant possession of L.R. No. 3577/45. 5. An award of general damages for trespass and mesne profits arising from the Respondent's alleged unlawful occupation and use of the suit property. 6. Costs of the Originating Summons together with such further or other relief as the Court may deem fit. **The Applicant's Case** 1. The Originating Summons was supported by the Supporting Affidavit of JOHN MWANGI KAGOCHI, a Director of the Applicant, sworn on 4th July 2025. The Applicant averred that it is the registered proprietor of L.R. No. 3577/45, having purchased the property from the late Grace Wangari Njoka pursuant to a Sale Agreement dated 30th July 2013, following which a Transfer of Land was registered in its favour on 3rd July 2014. It was contended that, by virtue of that registration, the Applicant acquired an indefeasible title protected under the law. 2. The Applicant further deponed that the Respondent had previously instituted **Nairobi ELC Case No. 384 of 2013, Felister Nyokabi Mwangi -Vs- Grace Wangari Njoka**, claiming entitlement to L.R. Nos. 3577/45, 3577/46 and 3577/47 on the basis that her late husband had allegedly purchased two parcels of land which were later discovered to be smaller than the acreage paid for, and that the parties' deceased spouses had agreed that L.R. No. 3577/45 would be transferred to the Respondent's late husband as compensation. 3. Although the trial court entered judgment in favour of the Respondent on 6th December 2017, the decision was subsequently overturned in Nairobi Civil Appeal No. 253 of **2018, Grace Wangari Njoka -Vs- Felister Nyokabi Mwangi**, where, by a Judgement delivered on 28th July 2023, the appellate court set aside the orders declaring the Respondent the owner of L.R. No. 3577/45 and reinstated Grace Wangari Njoka as the lawful proprietor of the suit property. 4. It was the Applicant's case that notwithstanding the appellate court's determination, the Respondent has continued to occupy and cultivate the suit property without any lawful justification, despite there being no order of stay of execution nor any pending appeal against the appellate judgment. The Applicant maintained that the Respondent has never acquired any proprietary interest over L.R. No. 3577/45, and that her continued occupation amounts to trespass, thereby denying the Applicant the quiet enjoyment and use of its property. Consequently, the Applicant urged the Court to grant the declaratory, injunctive and vacant possession orders sought, together with general damages for trespass, mesne profits and costs. The Respondent's Case 1. In opposition to the Originating Summons, the Respondent filed a Replying Affidavit in which she disputed the Applicant's claim to L.R. No. 3577/45. She deponed that the suit property was not unlawfully occupied by her but was rightfully allocated to her late husband, Stephen Mwangi Muruah, by the original proprietor, the late Ezra H. Njoka. According to the Respondent, her late husband purchased two (2) acres from the deceased proprietor for Kshs. 500,000/=, paid in two instalments of Kshs. 200,000/= and Kshs. 300,000/= in July 1999. She further averred that upon receipt of the purchase price, the deceased proprietor placed her late husband into possession of the land by directing his caretaker to identify the purchased plots, whereupon they took possession and established their matrimonial home on the property. 2. The Respondent further averred that shortly after taking possession, approximately 1.70 acres of the purchased land became waterlogged due to overflow from a nearby dam, leaving only a small usable portion upon which their home stood and where her late husband was eventually buried following his death on 9th November 1999. She contended that in recognition of this loss, the late Ezra H. Njoka agreed to compensate her late husband by allocating him 0.50 acres comprised in L.R. No. 3577/45, placed him in possession thereof, and assured him that the land would subsequently be transferred into his name. She maintained that although both her husband and the vendor passed away before the transfer could be effected, the vendor's widow, Grace Wangari Njoka, repeatedly acknowledged the arrangement and assured her that the suit property would ultimately be transferred to her as the administratrix of her late husband's estate. 3. The Respondent acknowledged having previously instituted Nairobi ELC Case No. 384 of 2013 against Grace Wangari Njoka, in which judgment was entered in her favour on 6th December 2017, before being overturned on appeal in Civil Appeal No. 253 of 2018. She nevertheless contended that she had remained in continuous, open and uninterrupted possession of L.R. No. 3577/45 from 1999, and asserted that by the time the Applicant acquired title to the property, she had already acquired rights over the land through adverse possession. She further alleged that the Applicant purchased the property with knowledge of her occupation and of the existing dispute over the suit land. 4. Lastly, the Respondent contended that the Applicant was not entitled to an order of eviction, and urged the Court to adopt an equitable approach by directing the beneficiaries of the estate of the late Ezra H. Njoka to provide her with an alternative 0.50-acre portion from the main estate in fulfilment of the deceased's intention to compensate her family. She therefore prayed that the Originating Summons be dismissed, that she be allowed to continue enjoying the land she claimed had been allocated to her family as compensation, and that the dispute be resolved in a manner that would achieve a "win-win" outcome for both parties rather than a winner-takes-all determination. Supplementary Affidavit 1. In response to the Respondent's Replying Affidavit, the Applicant filed a Supplementary Affidavit sworn by John Mwangi Kagochi, a Director of the Applicant. The Applicant contended that the matters raised by the Respondent were res judicata, having been conclusively determined in **Nairobi Civil Appeal No. 253 of 2018, Grace Wangari Njoka -Vs- Felister Nyokabi Mwangi**, wherein the Court of Appeal held that the Respondent's claim to L.R. No. 3577/45 was unsupported by any written agreement as required under **Section 3(3) of the Law of Contract Act** and **Section 38(1) of the Land Act, 2012**. The Applicant further asserted that the Court of Appeal found the Respondent's assertions regarding the alleged compensation agreement to be hearsay, held that the trial court had improperly shifted the burden of proof, and ultimately set aside the orders directing the registration of the Respondent as proprietor of L.R. No. 3577/45. 2. The Applicant reiterated that it is the lawful registered proprietor of L.R. No. 3577/45, having acquired the property pursuant to a Sale Agreement dated 30th July 2013 and a duly registered transfer. It was further deponed that although the Court of Appeal restored ownership of the property, its judgment had not been implemented owing to the death of Grace Wangari Njoka before delivery of the appellate decision. The Applicant maintained that the Respondent had continued to occupy and cultivate the suit property without any lawful basis, despite there being no stay of execution or pending appeal, thereby preventing the Applicant from enjoying its proprietary rights. 3. The Applicant therefore urged the Court to allow the Originating Summons, grant the reliefs sought, and facilitate enforcement of the Court of Appeal's judgment together with an award of costs. **Submission** **The Applicant's Submissions** 1. Pursuant to the directions issued by the Court, the Applicant filed written submissions identifying **four issues for determination**, namely: whether the Applicant is the lawful proprietor of L.R. No. 3577/45; whether the Respondent has trespassed onto the suit property and ought to be evicted; whether the Respondent's defence is a sham and an abuse of the court process; and whether the Applicant is entitled to general damages and mesne profits. 2. The Applicant submitted that it lawfully acquired the suit property through a Sale Agreement dated 30th July 2013, which culminated in the registration of the property in its name on 3rd July 2014. It relied on **Section 26 of the Land Registration Act** to argue that its certificate of title constituted prima facie evidence of absolute ownership, and further invoked **Section 3(3) of the Law of Contract Act** and **Section 38(1) of the Land Act** to contend that any alleged disposition of the suit property in favour of the Respondent was unenforceable for want of a written agreement. The Applicant also relied on the judgment in **Grace Wangari Njoka -Vs- Felister Nyokabi Mwangi, Nairobi Civil Appeal No. 253 of 2018**, wherein the Court of Appeal reinstated Grace Wangari Njoka as the lawful proprietor of **L**.R. No. 3577/45. 3. On the issue of trespass, the Applicant submitted that following the Court of Appeal judgment, the Respondent's continued occupation and cultivation of the suit property was unlawful, there being no stay of execution or pending appeal against the appellate decision. It relied on the definition of trespass in **Black's Law Dictionary (8th Edition)** and urged the Court to find that the Respondent's occupation constituted a continuing trespass warranting orders for vacant possession and eviction. The Applicant further argued that the Respondent's defence was a sham and an abuse of the court process within the meaning of **Order 2 Rule 15 of the Civil Procedure Rules**, relying on **Kenya Commercial Bank Ltd -Vs- Suntra Investment Bank Ltd [2015] eKLR** and **Remmington -Vs- Scoles (1897)** for the proposition that frivolous and vexatious pleadings intended merely to delay justice ought to be struck out. 4. Regarding the reliefs sought, the Applicant submitted that the Respondent's unlawful occupation had deprived it of the use and enjoyment of the suit property since 2013, thereby entitling it to general damages for trespass, mesne profits, damages for loss of business opportunity and costs. In support of these prayers, the Applicant relied on **Duncan Nderitu Ndegwa -Vs- Kenya Power & Lighting Company Limited & Another [2013] eKLR** for the principle that trespass is actionable per se and damages may be awarded without proof of actual loss, and **Willesden Investments Limited -Vs- Kenya Hotel Properties Limited [2006] eKLR** on the award of mesne profits and damages following unlawful occupation of land. The Applicant consequently urged the Court to allow the Originating Summons and grant all the reliefs sought. **The Respondent's Submissions** 1. In her written submissions, the Respondent identified four issues for determination, namely: whether the Applicant is the lawful proprietor of L.R. No. 3577/45; whether the Respondent is a trespasser liable to eviction; whether the Respondent's Replying Affidavit constitutes a sham or an abuse of the court process; and whether the Applicant is entitled to general damages and mesne profits**.** 2. The Respondent submitted that she and her late husband had been placed in possession of the suit property by the late Ezra H. Njoka in 1999 as compensation for the 1.30 acres of land that became waterlogged after they had purchased two acres from him. She argued that she had remained in continuous, open and uninterrupted possession of the suit property for over twenty-six years, during which period she developed the land and ultimately acquired title by adverse possession, long before the Applicant purported to purchase the property in 2013. 3. The Respondent further submitted that the Applicant could not derive any benefit from the judgment in Court of Appeal Civil Appeal No. 253 of 2018, since it was not a party to those proceedings, which were solely between herself and the administratrix of the estate of the late Ezra H. Njoka. She contended that by the time the Applicant purchased the suit property, the title of the administratrix had already been extinguished through her long occupation, with the result that the administratrix had no valid title capable of being transferred to the Applicant. 4. Consequently, the Applicant could neither claim to be the lawful proprietor under **Section 26 of the Land Registration Act** nor maintain an action for trespass against her, as she was already in possession as an adverse possessor and later as the person who had acquired title by operation of law. The Respondent also argued that her Replying Affidavit was a proper response under **Order 37 of the Civil Procedure Rules** and could not be struck out as though it were a pleading. 5. On the question of damages, the Respondent submitted that the Applicant was not entitled to general damages or mesne profits, as it had never acquired a valid enforceable interest in the suit property. She distinguished the authorities cited by the Applicant, including **Duncan Nderitu Ndegwa -Vs- Kenya Power & Lighting Co. Ltd** and **Willen Investment Ltd -Vs- Kenya Hotel Properties Ltd**, on the basis that those decisions concerned trespass onto land belonging to the plaintiffs, whereas in the present case she had occupied the land since 1999 and had acquired title by adverse possession before the Applicant entered into the sale agreement. Accordingly, she urged the Court to find that the Originating Summons was incompetent, misconceived and an abuse of the court process, dismiss it with costs on the higher scale, and hold that the Applicant's remedy, if any, lay against the administrators of the estate of the late Ezra H. Njoka rather than against the Respondent. **Supplementary Submissions** 1. The Applicant subsequently filed Supplementary Submissions in response to the Respondent's submissions, contending that the Respondent's submissions were filed out of time and without leave of the Court, contrary to the directions issued on 2nd February 2026. The Applicant submitted that while it had complied with the Court's timelines by filing its submissions on 6th February 2026, the Respondent only filed her submissions on 4th April 2026, well outside the prescribed period. It was therefore argued that the Respondent's submissions ought to be disregarded and expunged from the record. In support of this position, reliance was placed on **Nicholas Kiptoo Arap Korir Salat -Vs- Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR**, for the principle that extension of time is not automatic and must be sought formally and justified before the Court. 2. The Applicant further submitted that the Respondent had improperly introduced new issues, particularly the claim of adverse possession, which had neither been pleaded nor litigated in the earlier proceedings. It argued that the previous litigation, including Nairobi ELC Case No. 384 of 2013 and Civil Appeal No. 253 of 2018, was founded on an alleged contractual entitlement to the suit property and not on adverse possession. Citing **Independent Electoral and Boundaries Commission & Another -Vs- Stephen Mutinda Mule & 3 Others [2014] eKLR**, the Applicant maintained that parties are bound by their pleadings and cannot introduce new causes of action through submissions. It therefore urged the Court to determine the Originating Summons solely on the basis of the pleadings and evidence properly on record, uphold the Applicant's title as the lawful proprietor of L.R. No. 3577/45, and award the costs of the suit **Analysis and Determination** 1. I have carefully considered the Originating Summons, the Supporting Affidavit, the Replying Affidavit, the Supplementary Affidavit, the rival written submissions, the authorities relied upon by the parties, and the applicable law. In my view, the dispute herein crystallizes into the following single issue for determination: *Whether the Applicant has established its claim over L.R. No. 3577/45 and is entitled to the declaratory and consequential reliefs sought in the Originating Summons*. 1. The Applicant's case is founded on its assertion that it is the registered proprietor of L.R. No. 3577/45, having purchased the suit property from the late Grace WangariNjoka pursuant to a Sale Agreement dated 30th July 2013, following which a transfer was registered in its favour on 3rd July 2014. The Applicant further contends that the Respondent has remained on the suit property without any lawful justification despite the Court of Appeal in **Grace Wangari Njoka -Vs- Felister Nyokabi Mwangi, Nairobi Civil Appeal No. 253 of 2018 [2023] eKLR**, having set aside the judgment of the trial court that had declared the Respondent entitled to the suit property. 2. On the other hand, the Respondent asserts that her late husband purchased two acres from the late Ezra H. Njoka in 1999, that a substantial portion thereof became waterlogged, and that the deceased proprietor compensated them by allocating them 0.50 acres comprised in L.R. No. 3577/45. She further contends that she has occupied the suit property continuously since 1999 and has consequently acquired title by adverse possession. 3. The starting point is the legal effect of the Applicant's registration. **Section 24(a)** of the **Land Registration Act** provides that the registration of a person as proprietor vests in that person the absolute ownership of the land together with all rights and privileges appurtenant thereto. Further, **Section 25(1)** of the Act protects those rights from being defeated except as provided by law, while **Section 26(1)** obligates the Court to take 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 acquired through fraud or misrepresentation to which the proprietor was a party or through an illegal, unprocedural or corrupt scheme.** 4. The Court of Appeal in **Arthi Highway Developers Limited -Vs- West End Butchery Limited & 6 Others [2015] eKLR** emphasized that although title is protected by statute, it may be impeached only on the grounds expressly provided under Section 26 of the Land Registration Act. In the present case, the Respondent has not pleaded or proved that the Applicant procured registration through fraud, misrepresentation, illegality, procedural impropriety or a corrupt scheme. Her challenge is instead premised on the assertion that her late husband had been allocated the suit property by the original owner as compensation and that she later acquired title through adverse possession. Those allegations, however, must be considered against the background of the previous litigation between the parties' predecessors in title. 5. The record demonstrates that the very question whether the Respondent was entitled to L.R. No. 3577/45 by virtue of the alleged compensation agreement was conclusively determined in **Grace Wangari Njoka -Vs- Felister Nyokabi Mwangi, Civil Appeal No. 253 of 2018**. In that decision, the Court of Appeal held that the alleged agreement for compensation offended the mandatory provisions of **Section 3(3) of the Law of Contract Act** because it had not been reduced into writing, signed by the parties and attested. The appellate court further held that the Respondent's claim was founded on hearsay, that the trial court had improperly shifted the burden of proof contrary to **Section 107 of the Evidence Act**, and consequently set aside the judgment which had declared the Respondent entitled to the suit property. That decision remains valid and binding, and there is no evidence that it has been stayed, reviewed or overturned. 6. The Respondent nevertheless contends that she has acquired the suit property by adverse possession. While adverse possession is a recognized mode of acquiring title under **Sections 7, 13, 17 and 38 of the Limitation of Actions Act**, it is equally settled that such a claim must be specifically pleaded and proved. In **Mtana Lewa -Vs- Kahindi Ngala Mwagandi [2015] eKLR**, the Court of Appeal held that adverse possession is established where possession is open, continuous, exclusive and adverse to the title of the true owner for at least twelve years. Likewise, in **Kasuve -Vs- Mwaani Investments Ltd & 4 Others [2004] 1 KLR 184**, the Court stated that a claimant must prove exclusive possession that is inconsistent with the rights of the registered owner. 7. The difficulty with the Respondent's position is that no claim for adverse possession has been pleaded in these proceedings. The present matter was commenced by the Applicant through an Originating Summons seeking declaratory and consequential reliefs. The Respondent did not file any pleading seeking a declaration that she had acquired title by adverse possession. Instead, the issue first emerged in her written submissions. It is trite that submissions are not pleadings and cannot introduce a new cause of action or new issues for determination. In **Independent Electoral and Boundaries Commission & Another -Vs- Stephen Mutinda Mule & 3 Others [2014] eKLR**, the Court of Appeal reiterated that parties are bound by their pleadings, and issues for determination must arise from those pleadings rather than submissions. 8. Moreover, even assuming that the issue had been properly pleaded, the Respondent's own case is that she entered the suit property with the permission and authority of the late Ezra H. Njoka, who allegedly allocated the land to her husband as compensation. Possession that commences with the permission or consent of the owner is not adverse unless and until that permission is unequivocally withdrawn and the occupation becomes hostile to the owner's title. No evidence was placed before this Court identifying when such permissive occupation, if at all, transformed into adverse possession. 9. I also find no merit in the Respondent's submission that the Applicant cannot rely on the judgment of the Court of Appeal because it was not a party to those proceedings. The Applicant traces its title directly to Grace Wangari Njoka, whose ownership of the suit property was expressly restored by the Court of Appeal. As a purchaser from the reinstated proprietor, the Applicant is entitled to rely on the legal consequences of that judgment in asserting its proprietary rights. 10. Having found that the Applicant is the lawful registered proprietor of **L**.R. No. 3577/45, and there being no lawful basis upon which the Respondent has demonstrated a superior or competing interest in the property, it follows that the Respondent's continued occupation of the suit land constitutes trespass. The Applicant is therefore entitled to the protection of its proprietary rights, including an order for vacant possession and a permanent injunction restraining further interference with the suit property. 11. As regards the prayers for general damages for trespass and mesne profits, the law distinguishes the two remedies. Mesne profits constitute special damages and must not only be specifically pleaded but also strictly proved. The Applicant neither pleaded a specific quantum of mesne profits nor tendered evidence upon which such profits could be assessed. That prayer therefore fails. 12. Similarly, although damages for trespass are awardable even where no actual loss is proved, the Applicant did not place before the Court sufficient material to guide the assessment of such damages in the circumstances of this case. In the exercise of my discretion, I decline to make an award under that head. **Disposition** 1. In the result, having carefully considered the Originating Summons, the affidavits filed by the parties, the documentary evidence on record, the rival submissions, the applicable law and the authorities cited, I find that the Applicant has proved its case on a balance of probabilities. Accordingly, I make the following orders: 2. A **declaration** is hereby issued that the Applicant, Sky View Limited, is the lawful registered proprietor of Land Reference No. L.R. 3577/45, situated within East of Kiambu Municipality and measuring approximately 0.2023 hectares. 3. A permanent injunction is hereby issued restraining the Respondent, whether by herself, her servants, agents or any person acting under her authority, from entering upon, remaining on, utilizing, cultivating, selling, disposing of, alienating, charging, advertising for sale, or in any other manner interfering with or dealing with L.R. No. 3577/45. 4. The Respondent shall give vacant possession of L.R. No. 3577/45 to the Applicant within ninety (90) days from the date of this Judgment, failing which the Applicant shall be at liberty to execute for eviction in accordance with the law. 5. The prayers for general damages for trespass and mesne profits are declined. 6. The Respondent shall bear the costs of this suit. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** via e-mail at **NAIROBI** on this **16th** day of **July, 2026.** **MOHAMMED N. KULLOW** **JUDGE**