1. By a plaint dated 22nd August 2025, the plaintiff through Manani Lilan Mwetich and Company Advocates sued the seven defendants for;
a) A declaration that the defendants are trespassers on suit parcel of land known as L.R No. 23173/17 (The suit land) at Kimwani, Nandi County.
b) An order for removal by eviction of the Defendants, agents, servants, assigns, family members, livestock and all the temporary structures erected on the suit land and in default, the same be demolished under the supervision of the O.C.S, Songhor Police Station at the Defendants expense.
c) There be permanent injunction retraining the Defendants, agents, servants, assigns, family members, livestock from entering upon, trespassing, cultivating, grazing livestock or in any manner interfering with the suit land of the Plaintiff.
d) Costs of this suit.
2. Briefly, the plaintiff asserts that he applied to Agricultural Development Corporation (ADC) for land allocation in their ADC farm at Kimwani, Nandi County and received an offer vide the letter dated 16/4/1997. That he paid the purchase price in full for the suit land from Agricultural Development Corporation way back on 13/1/2000 and possession was delivered to him being the purchaser thereof on 21/1/2000. That the suit land was transferred in his favour in the year 13/1/2000 and a Certificate of Title for the suit land was issued to the Plaintiff on 31/1/2000. That he is the registered proprietor of the suit land measuring 11.6 acres.
3. Further, the plaintiff states that since the year 2022, he has been restrained from visiting the suit land due to the violent disposition of the defendants who have settled/trespassed thereunto. That the Defendants have been served with notices to vacate the suit land but have refused to heed the notice thus, provoking this suit.
4. The defendants duly served on 11th September 2025 as disclosed in the affidavit of service sworn on 17th September 2025 neither filed defence nor participated in the suit; see Ogada vs Mollin {2009} KECA 428 (KLR).
5. On 18th June 2026, the court endorsed the request for default judgment dated 13th October 2025 hence, the suit was heard.
6. During hearing of the suit, the plaintiff (PW1) relied on his statement dated 22nd August 2025 and testified, inter alia, that the defendants trespassed into the suit land. Also, he relied on a copy of Certificate of official search – LR 23173/17-PExhibit 1, a copy of Letter of Allocation dated 16/4/1997-PExhibit 2, copies of Payment receipts-PExhibit 3, copies of Letters of confirming delivery of possession-PExhibit 4, a copy of an acknowledgement of payments-PExhibit 5 and Photos-PExhibit 6 contained in his list of documents dated 22nd August 2025 in support of his testimony.
7. Mr Mwetich, the plaintiff’s counsel informed the court that the plaintiff did not wish to file submissions in the suit.
8. In the foregone, the issues for determination relate to ownership of the suit land and trespass thereon flowing from the plaint and whether the plaintiff’s claim has been proved on a balance of probabilities to attract the orders sought in the plaint.
9. On ownership of the suit land, PExhibits 1 to 6 reveal that PW1 is the registered proprietor of the suit land in line with sections 24, 25 and 26 Land Registration Act 2016 (2012) and the Court of Appeal decision in the case of Munyu Maina vs Hiram Gathiha Maina {2013} KECA 94 (KLR). He is the absolute and indefeasible owner of the suit land as there are no overriding interests and /or encumbrances thereon.
10. As regards trespass, PW1 testified in part, that the defendants trespassed into the suit land and are adamant to move out of it having restrained him from accessing the land. Clerk and Lindsell on Torts (18th Edition) paragraph 18-01, defines the term ‘Trespass’ thus;
‘An unjustifiable entry by one person upon the land in possession of another….’
11. The testimony of PW1 in line with the plaint was that local initiatives such as the involvement of the area chief to resolve the matter, failed to serve the purpose. Also, the court takes into account the three pillars including establishment of the applicant’s case on a prima facie level, irreparable damage and balance of convenience on which rests the foundation of any order of permanent injunction sought in the plaintiff’s pleadings as held in Giella vs Cassman Brown & Co. Ltd (1973) EA 358 and Nguruman Ltd vs Jan Bonde Nielsen & 2 others (2014) eKLR.
12. It is trite law that the burden was always on the plaintiff to prove his case on the balance of probabilities and that such burden is not lessened even if the case was heard by way of formal proof; see Kirugi & another vs Kabiya &3 others (1987) KLR 347, John Kinyanjui Njogu vs Daniel Kimani Maingi (2000) eKLR.
13. Clearly, the plaintiff’s case is not challenged, firm and proved on a balance of probability against the defendants. Thus, the plaintiff deserves orders sought at the foot of the plaint as he has established his case against the defendants on a balance of probabilities. In addition, costs follow the event pursuant to the proviso to section 27 (1) of the Civil Procedure Act Chapter 21 Laws of Kenya and the Supreme Court of the Republic of Kenya decision in the case of Rai & 3 others vs Rai & 4 others {2014} KESC 31 (KLR).
14. Accordingly, judgment is hereby entered for the plaintiff against the defendants for a declaration, eviction, permanent injunction and costs being orders sought in the plaint as stated in paragraphs 1 (a) (b) (c) and (d) respectively hereinabove.
15. In light of Articles 10, 28 and 40 of the Constitution of Kenya 2010, section 3 of the Environment and Land Court Act 2015 (2011) and given the defendants may be in occupation of the suit land, I direct that the respondents remove their structures and hand over vacant possession to the plaintiff within a period of ninety (90) days from this date failing which eviction order to issue against them; see Mohammed Muhiddin (suing for and on behalf of the Estate of Mohammed Muhiddin Mohamed Hatimy vs Jackson Muthama & 168 others (2014) eKLR.
16. It is so ordered.
DATED and DELIVERED at KAPSABET this 27th day JULY 2026.
G M A ONGONDO
JUDGE
Present;
Mr Mwetich learned counsel for the plaintiff
Walter and Emmaculate, Court Assistants
a) A declaration that the defendants are trespassers on suit parcel of land known as L.R No. 23173/17 (The suit land) at Kimwani, Nandi County.
b) An order for removal by eviction of the Defendants, agents, servants, assigns, family members, livestock and all the temporary structures erected on the suit land and in default, the same be demolished under the supervision of the O.C.S, Songhor Police Station at the Defendants expense.
c) There be permanent injunction retraining the Defendants, agents, servants, assigns, family members, livestock from entering upon, trespassing, cultivating, grazing livestock or in any manner interfering with the suit land of the Plaintiff.
d) Costs of this suit.
2. Briefly, the plaintiff asserts that he applied to Agricultural Development Corporation (ADC) for land allocation in their ADC farm at Kimwani, Nandi County and received an offer vide the letter dated 16/4/1997. That he paid the purchase price in full for the suit land from Agricultural Development Corporation way back on 13/1/2000 and possession was delivered to him being the purchaser thereof on 21/1/2000. That the suit land was transferred in his favour in the year 13/1/2000 and a Certificate of Title for the suit land was issued to the Plaintiff on 31/1/2000. That he is the registered proprietor of the suit land measuring 11.6 acres.
3. Further, the plaintiff states that since the year 2022, he has been restrained from visiting the suit land due to the violent disposition of the defendants who have settled/trespassed thereunto. That the Defendants have been served with notices to vacate the suit land but have refused to heed the notice thus, provoking this suit.
4. The defendants duly served on 11th September 2025 as disclosed in the affidavit of service sworn on 17th September 2025 neither filed defence nor participated in the suit; see Ogada vs Mollin {2009} KECA 428 (KLR).
5. On 18th June 2026, the court endorsed the request for default judgment dated 13th October 2025 hence, the suit was heard.
6. During hearing of the suit, the plaintiff (PW1) relied on his statement dated 22nd August 2025 and testified, inter alia, that the defendants trespassed into the suit land. Also, he relied on a copy of Certificate of official search – LR 23173/17-PExhibit 1, a copy of Letter of Allocation dated 16/4/1997-PExhibit 2, copies of Payment receipts-PExhibit 3, copies of Letters of confirming delivery of possession-PExhibit 4, a copy of an acknowledgement of payments-PExhibit 5 and Photos-PExhibit 6 contained in his list of documents dated 22nd August 2025 in support of his testimony.
7. Mr Mwetich, the plaintiff’s counsel informed the court that the plaintiff did not wish to file submissions in the suit.
8. In the foregone, the issues for determination relate to ownership of the suit land and trespass thereon flowing from the plaint and whether the plaintiff’s claim has been proved on a balance of probabilities to attract the orders sought in the plaint.
9. On ownership of the suit land, PExhibits 1 to 6 reveal that PW1 is the registered proprietor of the suit land in line with sections 24, 25 and 26 Land Registration Act 2016 (2012) and the Court of Appeal decision in the case of Munyu Maina vs Hiram Gathiha Maina {2013} KECA 94 (KLR). He is the absolute and indefeasible owner of the suit land as there are no overriding interests and /or encumbrances thereon.
10. As regards trespass, PW1 testified in part, that the defendants trespassed into the suit land and are adamant to move out of it having restrained him from accessing the land. Clerk and Lindsell on Torts (18th Edition) paragraph 18-01, defines the term ‘Trespass’ thus;
‘An unjustifiable entry by one person upon the land in possession of another….’
11. The testimony of PW1 in line with the plaint was that local initiatives such as the involvement of the area chief to resolve the matter, failed to serve the purpose. Also, the court takes into account the three pillars including establishment of the applicant’s case on a prima facie level, irreparable damage and balance of convenience on which rests the foundation of any order of permanent injunction sought in the plaintiff’s pleadings as held in Giella vs Cassman Brown & Co. Ltd (1973) EA 358 and Nguruman Ltd vs Jan Bonde Nielsen & 2 others (2014) eKLR.
12. It is trite law that the burden was always on the plaintiff to prove his case on the balance of probabilities and that such burden is not lessened even if the case was heard by way of formal proof; see Kirugi & another vs Kabiya &3 others (1987) KLR 347, John Kinyanjui Njogu vs Daniel Kimani Maingi (2000) eKLR.
13. Clearly, the plaintiff’s case is not challenged, firm and proved on a balance of probability against the defendants. Thus, the plaintiff deserves orders sought at the foot of the plaint as he has established his case against the defendants on a balance of probabilities. In addition, costs follow the event pursuant to the proviso to section 27 (1) of the Civil Procedure Act Chapter 21 Laws of Kenya and the Supreme Court of the Republic of Kenya decision in the case of Rai & 3 others vs Rai & 4 others {2014} KESC 31 (KLR).
14. Accordingly, judgment is hereby entered for the plaintiff against the defendants for a declaration, eviction, permanent injunction and costs being orders sought in the plaint as stated in paragraphs 1 (a) (b) (c) and (d) respectively hereinabove.
15. In light of Articles 10, 28 and 40 of the Constitution of Kenya 2010, section 3 of the Environment and Land Court Act 2015 (2011) and given the defendants may be in occupation of the suit land, I direct that the respondents remove their structures and hand over vacant possession to the plaintiff within a period of ninety (90) days from this date failing which eviction order to issue against them; see Mohammed Muhiddin (suing for and on behalf of the Estate of Mohammed Muhiddin Mohamed Hatimy vs Jackson Muthama & 168 others (2014) eKLR.
16. It is so ordered.
DATED and DELIVERED at KAPSABET this 27th day JULY 2026.
G M A ONGONDO
JUDGE
Present;
Mr Mwetich learned counsel for the plaintiff
Walter and Emmaculate, Court Assistants