https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4614

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT KAJIADO** **ELC LC NO. E083 OF 2025** **JANE WANJIKU WAWERU......................................................1ST PLAINTIFF** **KIRUMBA MWAURA………………………………………...2ND PLAINTIFF** **VERSUS** **EZEKIEL WARUINGE NORIEGA alias NDURA WARUINGE *alias*** **EZEKIEL WARUINGE…….……………….…………………...DEFENDANT** **JUDGEMENT** 1. In the **Plaint dated 13th June 2025**, the Plaintiffs aver that they are the registered owners of parcel Kajiado/Olooloitikoshi/Kitengela/190 which has since been subdivided into parcels Kajiado/Olooloitikoshi/Kitengela/60489-60525. They depose that the Defendant trespassed and took possession of parcels Kajiado/Olooloitikoshi/Kitengela/60489-60493, 60497-60500 and 60505-60508 including a road reserve all totalling to 1.7 acres and has also reserved a 9 meter road, limiting access to their other parcels Kajiado/Olooloitikoshi/Kitengela/60494-60496, and 60502-60504. That the Land registrar and Land surveyor equally confirmed this trespass and when the defendant was approached he admitted he was on the defendant’s land and offered to buy 1 acre or in the alternative exchange the Plaintiff’s parcels with two adjacent parcels subdivided from plot No. 186W but this was never done. The Defendant continued occupying their property and was found guilty of the offence of forcible detainer of their parcel among other offences in Ngong SPM Criminal Case No. 53 of 2016. However, despite the conviction the defendant refuses to give possession of the said land and continues to occupy it, which has led to loss of use and mesne profits of Kshs. 24,097,500. 2. They thus seek an eviction order, removal of structures and permanent injunction against the defendant from use or interference with parcels Kajiado/Olooloitikoshi/Kitengela/ 60489- 60493, 60497-60500 and 60505-60508 and 60502-60504. They also seek general and punitive damages as well as mesne profits of Kshs. 24,000,000 for the 12 years loss of use and that the OCS Ongata Rongai Police station be compelled to enforce the orders. 3. The Defendant neither filed his defence nor entered appearance, as such, the suit proceeded for formal proof hearing. 4. The 2nd Plaintiff testified on behalf of the Plaintiffs and adopted his witness statement together with the documents filed in support of the Plaintiffs' case. The Plaintiffs also called a registered valuer who testified and produced a valuation report quantifying the loss occasioned by the Defendant's occupation of the suit properties. 5. Counsel for the Plaintiffs filed written submissions submitting that the Plaintiffs had proved their case on the required threshold. That the plaintiffs had the right to their land protected against unlawful entry and possession as provided by **Article 40 of the Constitution** and **Section 25 Land Registration Act,** citing **Bianca Kabura Mwangi vs James Kinuthia Mwangi (2013) KLR** and **Charles Ogejo Ochieng vs Geoffrey Okumu [1995] eKLR**. Counsel added that the defendant had equally been convicted of forcible detainer of their property but despite this, he was still in possession of their property. As such, the Plaintiffs were entitled to the orders sought to evict him from their property and also issue a permanent injunction against interference. 6. On whether they were entitled to general, exemplary damages and mesne profits, it was submitted that a valuation report done and tabled before court valued the losses at not using the land for a decade at Kshs. 24,000,000 . And while acknowledging the court reserved the discretion to award exemplary or punitive damages citing **Obongo & Another v. Municipal Council of Kisumu (1971) EA 91**, **Nation Media Group. v Gideon Mose Onchwati Kenya Oil Company Limited [2019] eKLR** and **Godfrey Julius Ndumba Mbogori & another V. Nairobi City County 12018] eKLR** they sought an award of Kshs. 5,000,000 together with costs of the suit. 7. Having considered the pleadings, oral evidence, documentary evidence and the applicable law, the Court frames the following issues for determination. * **Whether the court should grant an eviction order and a permanent injunction** * **whether the court should grant general and punitive damages for trespass** * **whether the court should grant mesne profits** 1. The Plaintiffs produced certificates of title showing that they are the registered proprietors of the suit properties. Sections 24(a) and 25(1) of the Land Registration Act provide that registration vests in a proprietor absolute ownership together with all rights and privileges belonging or appurtenant thereto and that such rights shall not be defeated except as provided by law. 2. Section 26(1) of the Act further provides that a certificate of title shall be taken by the Court as prima facie evidence that the person named therein is the absolute and indefeasible owner unless the title is impeached on the grounds set out therein. The Defendant neither challenged the Plaintiffs' titles nor tendered any evidence disputing ownership. Evidence was also produced confirming criminal proceedings that have been taken against him. The Plaintiffs are entitled to the orders sought. 3. **Regarding the Prayer for Trespass, Section 3 (1)** of the Trespass Act, Cap 294 provides that: "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. In the case of Entick vs Carrington (1765) as quoted in the case of **Maina Kabuchwa v Gachuma Gacheru [2018] eKLR** , Lord Camden CJ had this to say:- “**Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave”.** 1. The Plaintiffs testified that the Defendant unlawfully entered thirteen (13) plots belonging to them and further blocked access to six (6) additional plots before commencing permanent developments thereon. Their evidence was that despite their protests, the Defendant continued with the developments. 2. The evidence further shows that during construction, the Defendant's workers were arrested, prosecuted, pleaded guilty and were convicted. Subsequently, the Defendant himself was charged with the offence of forcible detainer and was convicted and sentenced to pay a fine. 3. Although criminal proceedings do not conclusively determine civil liability, they constitute persuasive evidence supporting the Plaintiffs' account of unlawful occupation. The Defendant elected not to participate in these proceedings. Consequently, the Plaintiffs' evidence remained wholly uncontroverted. 4. The law is settled that trespass consists of unjustifiable intrusion by one person upon land in possession of another. 5. In **Park Towers Limited v John Mithamo Njika & 7 Others [2014] eKLR**, the Court held that where a person proves ownership of land and another enters or remains thereon without lawful justification, trespass is established. 6. The Court is therefore satisfied that the Defendant unlawfully trespassed upon the Plaintiffs' properties. Given his continuing trespass even after conviction in criminal cases the court awards Kshs 1,000,000 General Damages and Kshs 5,000,000 punitive damages. 7. Regarding the claim for mesne profits, the Plaintiffs pleaded mesne profits and called a registered valuer who assessed the loss of user arising from the Defendant's occupation. 8. Mesne profits constitute special damages and must be specifically pleaded and strictly proved. The Court of Appeal in **Attorney General v Halal Meat Products Ltd [2016] eKLR** reiterated that mesne profits must be specifically pleaded and proved by evidence. 9. The evidence by the valuer was unchallenged. As such the Court is entitled to rely upon it. Having considered the valuation report and the oral testimony of the valuer, the Court is satisfied that the Plaintiffs proved the loss of user to the extent established by the evidence. The Court therefore awards mesne profits in the amount proved. 10. In the end, Judgement is entered for the Plaintiff in the following terms; 11. **A permanent injunction is hereby issued restraining the Defendant, his servants, agents or persons claiming under him from entering, occupying, developing, constructing upon, alienating or in any other manner interfering with the suit properties Kajiado / Olooloitikoshi/ Kitengela/ 60489-60493, 60497-60500 and 60505-60508.** 12. **The Defendant shall vacate the portions of the suit properties presently occupied within sixty (60) days from the date of this Judgment, failing which he is to be evicted forcefully.** 13. **The OCS Ongata Rongai is to provide security during the eviction once satisfied sixty days notice was issued by service of the order.** 14. **General Damages are awarded for Trespass in the sum of Ksh 1,000,000 and Punitive Damages of Kshs 5,000,000** 15. **Mesne Profits are awarded of Kshs 24,000,000.** 16. **The Plaintiff will have the costs of the suit.** **Dated, Signed and Delivered virtually at Kajiado this 16th day of July 2026.** **JUDY OMANGE** **JUDGE** **IN THE PRESENCE OF:** N/A for parties. Peter – Court Assistant.