Banda v Mwashetani (Environment and Land Case 107 of 2020) [2026] KEELC 4344 (KLR) (13 July 2026) (Judgment)

Banda v Mwashetani (Environment and Land Case 107 of 2020) [2026] KEELC 4344 (KLR) (13 July 2026) (Judgment) Neutral citation: [2026] KEELC 4344 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case 107 of 2020 A Ombwayo, J July 13, 2026 Between Timothy Kai Banda Plaintiff and Tuma Mwashetani Defendant Judgment 1.Timothy Kai Banda (hereinafter referred to as the plaintiff) claims, and it has not been controverted, that he has at all material times been the proprietor of the property known as Mombasa Ziwa la Ngómbe Scheme/1128 (hereinafter the "suit property") and Fatuma a.k.a Tuma Mwashetani (hereinafter referred to as the defendant) has been the Plaintiff's immediate neighbour. The 1st Defendant claims to have bought Mombasa/Ziwa la Ngo'mbe/1130 from Esther Kahindi sometimes in 2016 and the latter affirms the same. The 1st Defendant is and has at all material times been the alleged proprietor of all that parcel of land known as Mombasa Ziwa la Ng'ombe Scheme/1129 and 1130. 2.It is not controverted that the 2nd Defendant is and has at all material times been the proprietor of all that parcel of land known as Mombasa Ziwa la Ngómbe Scheme/1130. Moreover that the Plaintiff sometimes in 2008 bought the parcel of land known as Mombasa Ziwa la Ngombe Scheme/1128 from one Mr. Dishon Kubandakale Musinya. At the time, there was a twelve (12)-room Swahili house on the said plot and the government had already issued allotment letters. Mr Dishon went to the District Land Adjudication and Settlement Office where Mr Dishon wrote a letter indicating that he had sold the plot to the Plaintiff and the register was altered from his name to that of the Plaintiff. The Plaintiff asserts that at the time he bought the suit property from Mr. Dishon the beacons were already there and he was shown the beacons by Mr Dishon (the previous owner of the suit Property), and that he bought it on the strength that the plots were already demarcated. 3.This fact is not controverted. 4.It is evident that sometimes later after he bought the suit property and transfer in his favour completed, the government issued another set of allotment letters to the residents of Ziwa La Ngómbe Area hence got one in his name, after which he was issued with a title deed as the first owner. The Plaintiff has proved that on or about December 2014 he constructed a mabati fence around the said plot amid preparation to build on the said plot. The said mabati fence was constructed within his plot and has since 2014 been erected until its demolition by the 1 st Defendant and his servants, agents and/or employees on the 10th day of August 2020. The 1st Defendant then began construction, encroaching, trespassing and/or interfering with the property of the Plaintiff without due regard of existing boundaries and a result filled the Plaintiff's septic tank with dirt. The Plaintiff has proved that on 11th August 2020, he pursued the services of a licenced surveyor so as the boundary dispute could be resolved accordingly. However, after the surveyor placed a beacon to distinguish the boundary of the two plots, the 1st Defendant and her servant, agent and/or employee uprooted the said beacon without due regard of its significance. As a result, he reported the matter at Nyali Police station and was issued with an 0B No. 45/14/8/2020 5.The Plaintiff has demonstrated that the 1st Defendant being a sister to a member of parliament one Hon. Ayub Mwashetani, is trying to use her brother's influence to intimidate and/or tyrannize him. This is so for the Hon. MP visited the site on 15th August 2020 and issued instruction to the Plaintiff's caretaker in a bid to intimidate the Plaintiff. 6.The Plaintiff has demonstrated that he convened a meeting on 16th August 2020 involving various parties including the village elder to settle the matter. However, the 1st Defendant failed, neglected and/or refused to settle the matter amicably, instead she continues to infringe on the rights of the Plaintiff and has since refused to involve a surveyor in any way whatsoever. In light of the foregoing, the Plaintiff has and/or incurred special damages. Particulars of special damages. The Services of a licensed Surveyor to establish boundary - Kenya Shillings Thirteen thousands (KShs 13,000/-). Surveyor's report - Kenya shillings fifteen thousand (15,000/-) 7.The Plaintiff prays for judgment against the Defendants jointly and severally for: 1.An Order for eviction of the Defendants and demolition of the whole or part thereof of that building and any structure erected and/or developed on the Plaintiff's parcel of land by the Defendant herself, servants and/or employees. 2.An Order of permanent injunction restraining the Defendants by either themselves, their servants, agents, assignees or employees from entering, building, erecting, constructing trespassing and/or in any other way whatsoever interfering with the suit property. 3.An Order of temporary permanent injunction restraining the Defendants by either themselves, their servants, agents, assignees or employees from continuing with their construction. 4.An Order against the Defendants to reinstate the mabati fence to a state it was before. 5.A re-establishment of beacons of Plot No. Mombasa/Ziwa la ngombe/scheme/1128. 6.Issue an order for the OCS Nyali Police station to ensure compliance of prayer 5 above. 7.General damages and Special damages of Kenya shillings twenty seven thousand (Kshs 27,000/-) 8.Costs of the suit and interest of the above. 8.The Defendants despite service, never entered appearance hence an interlocutory judgment was entered and the matter was placed for formal proof. 9.The plaintiff submits that from the evidence on record, particularly the regional surveyor's report, it is confirmed that the Defendants did and are still unlawfully encroaching upon he plaintiff's parcel, Further to that, they demolished the plaintiff's mabati fence, interfered with his septic tank, and proceeded with construction despite express Court orders restraining them. 10.The plaintiff submits that the Plaintiff is the lawful proprietor of Mombasa (Ziwa la Ngómbe Scheme/ 1 128. The Plaintiff purchased the suit property in 2008 from Mr. Dishon Kubandakale Musinya, with allotment letters already issued. The District Land Adjudication and Settlement Office duly altered the register to reflect the Plaintiff as proprietor. The Plaintiff was subsequently issued with a title deed as the first registered owner. 11.Section 24(a), Land Registration Act, 2012 provides that o registration vests absolute ownership in the registered proprietor. Further to that, Section 26(1), of the said Act provides that a certificate of title is prima facie evidence of ownership and is indefeasible except on grounds of fraud or misrepresentation. The plaintiff refers to the case of Wreck Motors Enterprises v The Commissioner of Lands & Others r 19971 eKLR — the Court of Appeal affirmed that title issued under the law is conclusive evidence of ownership unless challenged under statutory exceptions. 12.This decision was upheld in Farai Maharus vs. J.B. Martin Glass Industries and 3 Others C.A 130/2003 (unreported) and affirmed in the persuasive authority of Gitwany Investment Limited -v- Taimal Limited & 2 Others, (2006) eKLR. 13.The plaintiff submits that he has proved that the Defendants unlawfully encroached upon and interfered with the Plaintiff's property. On 10th August 2020, the Defendants demolished the Plaintiff's mabati fence and commenced construction on the suit property. On 11th August 2020, a licensed surveyor placed a beacon to distinguish the boundary, which the Defendants uprooted. That upon an application by the Plaintiff, the Court on 26th August, 2020 ordered, inter alia:1.The Regional Surveyor prepare a sketch map and report on encroachment.2.That pending the survey report, the Defendants be restrained from construction.3.That the Survey costs be borne by the Plaintiff in the first instance, with discretion reserved to order reimbursement by the Defendants. 14.That despite the injunction, the Defendants proceeded with construction. The Plaintiff filed a Contempt Application dated 31st August 2020 and on the 9th October 2020, Justice Munyao found the 1st Defendant in contempt of the Court orders issued on 26th August 2020. The Regional Surveyor's Report dated 9th September 2020 confirmed that the Defendants had indeed encroached upon the Plaintiff's parcel Mombasa/Ziwa la Ngómbe/1 128. 15.Section 3(1), Trespass Act, Cap 294: Trespass upon private land without consent is actionable. Article 40, Constitution of Kenya, 2010: Guarantees the right to property and protection from arbitrary deprivation. 16.The applicant refers to the matter of Kenya Power a Lighting Co. Ltd v Ringera Others 20201 eKLR the court held that trespass entitles the injured party to damages irrespective of actual loss. That further to the foregoing, under paragraph five of the orders issued on 26th August, 2020 by Justice Munyao, the survey costs were to be borne by the Plaintiff in the first instance, with discretion reserved to order reimbursement by the Defendants. The Regional Surveyor's Report of 9th September 2020 confirmed encroachment, thereby triggering the Court's discretion to order reimbursement of survey costs. As such we pray this Court finds it fit to have the plaintiff's cost in respect to the survey order by the court be reimbursed. 17.The plaintiff submits that he is entitled to the reliefs sought, including refund of survey costs, damages, and injunctive relief. 18.The Plaintiff incurred KShs. 20,000/- for the regional survey services in compliance with the court order of 26th August, 2026, evidenced by the receipt dated 27th August 2020._Paragraph five of the Court's orders of 26th August 2020 expressly reserved discretion to order reimbursement of these costs by the Defendants._Given that the Regional Surveyor's Report confirmed encroachment, equity and justice demand that the Defendants refund the Plaintiff._The plaintiff refers to Article 1 Constitution of Kenya, 2010 which provides that Courts must administer justice without Undue regard to technicalities, ensuring fairness and equity. Further to the foregoing, the Plaintiff submits that he has suffered special damages of KShs. 27,000/- (survey fees and report costs) as evidenced in the receipts produced in the list of documents dated 1 8th August, 2020. The Plaintiff has also suffered general damages for trespass, demolition of his fence, interference with his septic tank, and intimidation. 20.In Philip Ayaya Aluchio v Crispinus Ngayo [20141 eKLR where the Court held that once trespass is proved, damages are payable even if no actual damage is shown. In the present case, trespass has been proved through the regional surveyor's report hence damages become payable. 21.In Park Towers Ltd v John Mithamo Niika a 7 Others [20141 eKLR it was also held that trespass is actionable per se and damages are recoverable. 22.Further in Kenya Power & Lighting Co. Ltd v Ringera & Others (supra) the court held that trespass entitles the injured party to damages irrespective of actual loss. Due to the foregoing and the evidence on record, the plaintiff prays that the Court grants the plaintiff orders as per his re-amended plaint dated 23rd March, 2023 together with a reimbursement of the cost incurred for the survey done by the regional surveyor as per the orders of 26th August, 2020. Analysis and Determination 23.I have considered the evidence on record and do find that the evidence by the plaintiff is not controverted. Under common law, evidence that is not controverted (unchallenged or un- contradicted by the opposing party) must generally be accepted as true by the court. However, case law establishes that an unopposed claim is not an automatic victory; the claimant must still discharge their burden of proof. 24.Section 107(1) of the Evidence Act provides that;“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.” 25.Section 108 of the Evidence Act further provides that;-“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given by the other side.” 26.This court is guided by the observation of the court in the case of Rajah J A in Britestone Pte Ltd v Smith & Associates Far East Ltd {2007} 4 SLR 855 where the court stated that:-“The Court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. Since the terms proved, disapproved and not proved are statutory definitions contained in the Evidence Act. The term proof whenever it appears in the Evidence Act and unless the context otherwise suggests, means, the burden to satisfy the Court of the existence or non-existence of some fact.” 27.I do find that the plaintiff has proved his case on a balance of probabilities and therefore I do grant judgment in the following terms:-a.The defendants to vacate the suit property within 90 days failure of which an Order for eviction of the Defendants and demolition of the whole or part thereof of that building and any structure erected and/or developed on the Plaintiff's parcel of land by the Defendant herself, servants and/or employees is hereby issued.b.An Order of permanent injunction restraining the Defendants by either themselves, their servants, agents, assignees or employees from entering, building, erecting, constructing trespassing and/or in any other way whatsoever interfering with the suit property post eviction.c.An Order against the Defendants to reinstate the mabati fence to a state it was before.d.There be a re-establishment of beacons of Plot No. Mombasa/Ziwa la ngombe/scheme/1128.e.The O.C.S Nyali Police station to ensure compliance of prayer d above.f.General damages of ksh 200,000 for and Special damages of Kenya shillings twenty seven thousand (Kshs 27,000/-)Costs of the suit and interest of the above to the plaintiff. SIGNED BY/FOR:★ THE JUDICIARY OF KENYA ★HON. JUSTICE ANTONY O. OMBWAYOMOMBASA ENVIRONMENT AND LAND COURTEnvironment and Land Court Date: 2026-07-13 23:14:22Doc IDENTITY: 861300282403311552725363247 Tracking Number:OOUZFG2026