Introduction
1. Amina Emmy Iminza Juma Ndembi, the plaintiff herein, claims to be the rightful and proprietary owner of all that piece of land known as E/BUNYORE/EBUCHITWA/2491 (herein called the suit land). She pleaded in the plaint dated 12 th July 2024 that she acquired the land as her late husband's inheritance, in the same way her younger brother-in-law acquired parcel numbers E. BUNYORE/EBUCHITWA/2492 and 2493. She pleaded further that her in-laws, the defendants, have unlawfully encroached onto the suit parcel of land and built a matrimonial house and settled thereon for several years with the intention to deprive her of ownership thereof. She therefore seeks the court's intervention to grant her:
a) A mandatory order compelling the Defendants to vacate the Plaintiff's parcel of land reference number E/BUNYORE/EBUCHITWA/2491 and further deterring them from conducting any activity on the said parcel of land;
b) A declaration that the parcel of land E/BUNYORE/EBUCHITWA/2491 legally belongs to the plaintiff;
c) An order for the eviction of the Defendants, their beneficial owners, agents and representatives from the plaintiff's parcel of land, Reference number E/BUNYORE/EBUCHITWA/2491
d) Cost of the suit.
2. In response to the plaintiff's claim, the Defendants filed a document titled Defence Affidavit dated 11 th February 2025, vide which they denied ever trespassing onto the suit land. They averred that the land which they have peacefully and continuously occupied for a period of over 50 years was parcel No. E/BUNYORE/EBUCHITWA/2492 which borders the suit land but have at no time ever encroached onto the suit land. The Defendants also filed a Notice of preliminary objection dated 24 th February 2025 which was heard and dismissed vide the Ruling dated 11 th December 2025.
3. The matter was, by consent of the parties, referred to be handled by way of the Alternative Justice System (AJS) to be presided over by the Deputy County Commissioner, Luanda Subcounty. However, the parties were unable to reach a settlement as there was a stalemate on the issues and, vide his report dated 4 th June 2025, the Deputy County Commissioner returned the matter to court for hearing and disposal.
The evidence.
4. The plaintiff adopted the contents of her witness statement dated 9/9/2024 as her evidence in chief. She had stated in the witness statement that she was the owner of the suit land, that the Defendants had encroached onto the suit land and erected structures thereon. That the Defendants' actions were without any lawful justification and were intended to frustrate her and deny her rights over the suit property. The plaintiff produced a copy of the title deed, certificate of official search, and letter of summons as exhibits. On Cross-examination, the plaintiff admitted having filed another suit over the same dispute, namely Vihiga PMC No. 18 of 2015, which was dismissed. She stated that the Defendant was the wife of her brother-in-law by the name of Jacob, who died in June 2024, and the 2 nd Defendant was the son of the 1 st Defendant. That the houses on the suit land belong to the 1 st and 2 nd Defendants, and were built by Jacob in the lifetime of her late husband. That her husband died in the year 1999.
5. On behalf of the Defendants, the 1st Defendant testified as DW1. She relied on the contents of her witness statement dated 25/2/2026 as her evidence in chief. She produced documents listed in the Defendants' list of documents dated 25/2/2026, namely the Plaintiff’s pleadings in VIHIGA SPMCC NO. 18 OF 2015, Defence pleadings in the same suit, mutation form for LR NO EAST BUNYORE/EBUCHITWA/310, certified copy of the judgment in VIHIGA SPMCC NO. 18 OF 2015, copies of the Defendants’ identity cards, and pictures of the land as exhibits. On cross-examination, DW1 stated that her late husband left her on the land where she lives. She stated that she had lived on that land for a long time. That land parcel No. E/ BUNYORE/EBUCHITWA/2491 belongs to the Plaintiff and that she had no objection to the Plaintiff owning land parcel No. E /BUNYORE/EBUCHITWA/ 2491 because her (1 st Defendant's) land was No. E/ BUNYORE/EBUCHITWA/2492 on which she currently stayed.
6. The 2 nd Defendant testified as DW2. He relied on his witness statement dated 25/2/2026 and stated that he stays on the land of Jacob Ndembi, deceased. On cross-examination, DW2 stated that the Plaintiff owns land parcel No. 2491. That when the Deputy County Commissioner visited the land, he saw that the Plaintiff's land was on the upper side, which was overgrown. That the remains of the house demolished by the Plaintiff were still on the land.
Submissions
7. Written submissions dated 10 th April 2026 were filed by Atemo & Associates Advocates on behalf of the Plaintiff. Counsel submitted that the Plaintiff had demonstrated that she was the lawful owner of the suit property, holding a valid title deed. That under section 26 of the Land Registration Act, registration of a person as a proprietor of land vests in that person absolute and indefeasible ownership. Reliance was placed on the cases of Avugi vs Lodogoli (2026) KEELC 487, where it was held that a registered owner is entitled to exclusive occupation and possession of their land and that a defendant must justify their presence on the land; otherwise, the occupation is unlawful, and the case of Mbuthia Macharia vs Annah Mutua & Another (2017) eKLR.
8. Counsel submitted further that the right to property and the right to seek protection from unlawful deprivation of the property was provided for in Article 40 of the Constitution of Kenya 2010. Counsel invited the court to consider the report by the Deputy County Commissioner in which observations were made that the disputed parcel number 2491 was occupied by Florence Ndembi and Joram Ndembi, the Defendants, that Plaintiff had nowhere to build her house and that Florence Ndembi and Jacob Ndembi had their own parcel number 2492. Counsel submitted that the report by the Deputy County Commissioner was prima facie evidence that the Defendants were in occupation of parcel No. 2491.
9. Counsel submitted that the Plaintiff was therefore entitled to the relief sought. Reliance was placed on the case of Park Towers Limited vs John Muthamo Njika & 7 Others (2014) where it was held that once trespass is proved, the Plaintiff does not need to prove special damages. That the Plaintiff is entitled to regain possession of her property. Counsel urged the court to allow the claim with costs.
10. On behalf of the Defendants, written submissions dated 12 th May 2026 were filed by Chege Kibathi & Co. Advocates LLP. Counsel submitted that the suit was a blatant attempt to re-litigate a matter that was finally heard and decided by a competent court. Counsel relied on the provisions of section 7 of the Civil Procedure Act on the doctrine of res judicata and the Court of Appeal decision in IEBC vs Maina Kiai and 5 Others [2017]eKLR and submitted that the suit land herein was the subject matter in VIHIGA SPMCC NO 18 OF 2015 (the former suit), and that the plaintiff in this suit and the former suit is the same person, while the Defendants herein are the legal heirs and privies to Jacob Ndembi, who was the Defendant in the former suit. That the issues in both suits are the same and that the judgment in the former suit was a final determination on merit after a full trial. Counsel relied on the case of John Florence Maritime Services Ltd vs Cabinet Secretary for Transport & Infrastructure and Another (2021)KLR and urged the court to find that the suit was res judicata and dismiss it with costs.
11. Counsel submitted further that the Plaintiff had failed to prove the essential elements of her claim. That the tort of trespass to land is a violation of possession. That the Plaintiff must prove that she had the right to immediate and exclusive possession of the suit land and that the Defendants intentionally entered the land without any justifiable cause. Counsel relied on the cases of M’Mukanya vs M’Mbijiwe [1984] KLR and Ochako Obinchu vs Zachary Oyoti Nyamongo (2018) eKLR and submitted that the crux of the Plaintiff’s case was trespass; hence, she had to prove encroachment. That the plaintiff had no credible evidence whatsoever.
12. Counsel submitted further that although the Plaintiff placed heavy reliance on the Deputy County Commissioner’s report dated 4 th June 2025, the report does not constitute proof of trespass. That the report did not determine boundaries or locate structures on the ground through a professional survey. Counsel submitted that without a surveyor’s report, photographs or independent witnesses, the Plaintiff’s allegations remain allegations.
13. Counsel submitted further that the Defendants were in lawful occupation of land parcel No. 2492 and that the Plaintiff was not entitled to the relief sought as the Plaintiff has not proved that the Defendants were on her land and that no damage to land parcel No. 2491 was proved. Counsel urged the court to dismiss the suit with costs.
Issues for determination
14. From the pleadings, the evidence and the submissions, the following emerge as the issues for determination herein:
(i) whether or not the Defendants trespassed onto the Plaintiff's land
(ii) whether or not the Plaintiff is entitled to the relief sought.
(iii) Costs of the suit.
Analysis and determination
15. The issue of whether or not the suit was res judicata had been raised as a preliminary point, and vide its ruling dated 11 th December 2025, the court found that the Defendants had not exhibited sufficient material, namely the pleadings, proceedings and decision of the former suit, to enable the court to determine the issue. The court therefore dismissed the preliminary objection for those reasons. In the proceedings herein, the Plaintiff admitted to having filed the former suit but contended that the parties were not the same, as the Defendant in the former suit was one Jacob Ndembi, the husband to the 1 st Defendant and father to the 2 nd Defendant. Having perused the plaint, defence and judgment in case No. Vihiga SPMCC NO 18 OF 2015, which were produced as exhibits herein by the Defendants, I find that the subject matter of the two suits and the issues that were decided on in the judgment were the same as in the present suit. The judgment delivered on 27/8/2015 in the said suit was a final judgment arrived at after a full hearing. The suit is therefore res judicata as described in section 7 of the Civil Procedure Act.
16. If the court were to decide on the merits of the case, the Plaintiff's claim is based on the tort of trespass. She claims to be the rightful and proprietary owner of the suit land and that the Defendants have unlawfully and illegally encroached onto the suit land, built their house and resided thereon for a long time. That there was no dispute that the suit land belongs to the Plaintiff. The Plaintiff produced a copy of the title deed and a copy of the certificate of official search in respect of the suit land, both showing that the suit land was registered in the name of the Plaintiff on 30.03.2010 and the title deed issued to her on the same date. Both Defendants readily admitted on cross-examination that the suit land belonged to the Plaintiff.
17. It was also not disputed that the Defendants, who are the widow and son of one Jacob Ndembi, a brother-in-law of the Plaintiff, are entitled to land parcel NO. EAST BUNYORE/EBUCHITWA/2492 which borders the suit land. The Defendants testified and maintained that the land they occupy is parcel No. AST BUNYORE/EBUCHITWA/2492 belonging to them because they are the family of Jacob Ndembi.
18. The evidence available from both parties was that the Defendants have occupied the piece of land that they currently occupy for a long time. The Plaintiff pleaded and testified that the Defendants had been on the land for a long time and that the structures or houses thereon were constructed by Jacob Ndembi in the lifetime of her (Plaintiff's) husband. The 1 st Defendant testified that she had lived on the land for over 50 years.
19. Trespass to land is constituted by an unjustified interference with the possession of land. In Black’s Law Dictionary, 11 th Edition, it is defined as;
“a person’s unlawful entry on another’s land that is visibly enclosed. This tort consists of doing any of the following without lawful justification: (1) entering on to land in the possession of another, (2) remaining on the land, or (3) placing or projecting any object on it.”
Winfield and Jolowicz on Tort, 12 th edition, at page 359, states that:
“trespass to land is the name given to that form of trespass which is constituted by unjustifiable interference with possession of land……it consists of interference with possession.”
Section 3 of the Trespass Act, Cap 294 Laws of Kenya provides;
“any person who without reasonable excuse enters or remains upon or erects any structure on or cultivates, tills or grazes or permits stock to be on private land without the consent of the occupier thereof shall be guilty of an offence.”
The elements of the tort of trespass thus include: unauthorized entry onto another’s land, remaining on another’s land without permission, carrying out activities such as cultivating, tilling or even grazing animals, or construction on another’s land without permission or placing /projecting an object over someone’s land without permission.
20. The Plaintiff produced no surveyor's report to confirm encroachment. She relied on the report by the Deputy County Commissioner, which was, by consent of the parties, admitted as an exhibit in the case. The report dated 4/6/2025 was filed on 10/6/2025 in compliance with the court order referring the matter to the Deputy County Commissioner for resolution under the Alternative Justice System. Although the report shows that it was observed that the disputed parcel number 2491 was occupied by Florence Ndembi and Joram Ndembi (Defendants), there was no indication or evidence of how the observations were arrived at: whether a surveyor was involved, whether maps or mutation forms were referred to or relied on.
21. The burden of proof under section 107 of the Evidence Act was with the Plaintiff to prove the elements of trespass. I find that this burden has not been discharged. The facts placed before the Court present a case of mistaken position of the suit land on the ground. This can only be resolved by a land surveyor. In the absence of a surveyor's report, I find that Plaintiff has failed to prove trespass.
The next issue for determination is whether or not the Plaintiff is entitled to the relief sought.
22. Having failed to prove the cause of action, that is to say the tort of trespass, the Plaintiff has not proved that she is entitled to the relief sought. The relief sought is a mandatory order compelling the Defendants to vacate the Plaintiff's parcel of land, a declaration that the parcel of land E/BUNYORE/EBUCHITWA/2491 legally belongs to the Plaintiff, an order for the eviction of the Defendants from the suit land, and costs of the suit. These are orders only available to a claimant who has proved that her property has been encroached upon. I find no basis for holding that the Plaintiff is entitled to the relief sought.
23. On costs, under the provisions of section 27 of the Civil Procedure Act, costs follow the event. The Plaintiff filed a suit that was heard and decided, and yet she again filed the present suit on the same issues and subject matter. The Defendants are entitled to costs.
24. The upshot is that the plaintiff has failed to prove her claim on a balance of probabilities. The suit is dismissed. Costs are awarded to the Defendants.
Orders accordingly.
Judgment dated and signed at Vihiga and delivered virtually this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang - Court Assistant.
No appearance for the Plaintiff.
Wanda for the 1 st and 2 nd Defendants.
ELLCLC NO E012 OF 20242
1. Amina Emmy Iminza Juma Ndembi, the plaintiff herein, claims to be the rightful and proprietary owner of all that piece of land known as E/BUNYORE/EBUCHITWA/2491 (herein called the suit land). She pleaded in the plaint dated 12 th July 2024 that she acquired the land as her late husband's inheritance, in the same way her younger brother-in-law acquired parcel numbers E. BUNYORE/EBUCHITWA/2492 and 2493. She pleaded further that her in-laws, the defendants, have unlawfully encroached onto the suit parcel of land and built a matrimonial house and settled thereon for several years with the intention to deprive her of ownership thereof. She therefore seeks the court's intervention to grant her:
a) A mandatory order compelling the Defendants to vacate the Plaintiff's parcel of land reference number E/BUNYORE/EBUCHITWA/2491 and further deterring them from conducting any activity on the said parcel of land;
b) A declaration that the parcel of land E/BUNYORE/EBUCHITWA/2491 legally belongs to the plaintiff;
c) An order for the eviction of the Defendants, their beneficial owners, agents and representatives from the plaintiff's parcel of land, Reference number E/BUNYORE/EBUCHITWA/2491
d) Cost of the suit.
2. In response to the plaintiff's claim, the Defendants filed a document titled Defence Affidavit dated 11 th February 2025, vide which they denied ever trespassing onto the suit land. They averred that the land which they have peacefully and continuously occupied for a period of over 50 years was parcel No. E/BUNYORE/EBUCHITWA/2492 which borders the suit land but have at no time ever encroached onto the suit land. The Defendants also filed a Notice of preliminary objection dated 24 th February 2025 which was heard and dismissed vide the Ruling dated 11 th December 2025.
3. The matter was, by consent of the parties, referred to be handled by way of the Alternative Justice System (AJS) to be presided over by the Deputy County Commissioner, Luanda Subcounty. However, the parties were unable to reach a settlement as there was a stalemate on the issues and, vide his report dated 4 th June 2025, the Deputy County Commissioner returned the matter to court for hearing and disposal.
The evidence.
4. The plaintiff adopted the contents of her witness statement dated 9/9/2024 as her evidence in chief. She had stated in the witness statement that she was the owner of the suit land, that the Defendants had encroached onto the suit land and erected structures thereon. That the Defendants' actions were without any lawful justification and were intended to frustrate her and deny her rights over the suit property. The plaintiff produced a copy of the title deed, certificate of official search, and letter of summons as exhibits. On Cross-examination, the plaintiff admitted having filed another suit over the same dispute, namely Vihiga PMC No. 18 of 2015, which was dismissed. She stated that the Defendant was the wife of her brother-in-law by the name of Jacob, who died in June 2024, and the 2 nd Defendant was the son of the 1 st Defendant. That the houses on the suit land belong to the 1 st and 2 nd Defendants, and were built by Jacob in the lifetime of her late husband. That her husband died in the year 1999.
5. On behalf of the Defendants, the 1st Defendant testified as DW1. She relied on the contents of her witness statement dated 25/2/2026 as her evidence in chief. She produced documents listed in the Defendants' list of documents dated 25/2/2026, namely the Plaintiff’s pleadings in VIHIGA SPMCC NO. 18 OF 2015, Defence pleadings in the same suit, mutation form for LR NO EAST BUNYORE/EBUCHITWA/310, certified copy of the judgment in VIHIGA SPMCC NO. 18 OF 2015, copies of the Defendants’ identity cards, and pictures of the land as exhibits. On cross-examination, DW1 stated that her late husband left her on the land where she lives. She stated that she had lived on that land for a long time. That land parcel No. E/ BUNYORE/EBUCHITWA/2491 belongs to the Plaintiff and that she had no objection to the Plaintiff owning land parcel No. E /BUNYORE/EBUCHITWA/ 2491 because her (1 st Defendant's) land was No. E/ BUNYORE/EBUCHITWA/2492 on which she currently stayed.
6. The 2 nd Defendant testified as DW2. He relied on his witness statement dated 25/2/2026 and stated that he stays on the land of Jacob Ndembi, deceased. On cross-examination, DW2 stated that the Plaintiff owns land parcel No. 2491. That when the Deputy County Commissioner visited the land, he saw that the Plaintiff's land was on the upper side, which was overgrown. That the remains of the house demolished by the Plaintiff were still on the land.
Submissions
7. Written submissions dated 10 th April 2026 were filed by Atemo & Associates Advocates on behalf of the Plaintiff. Counsel submitted that the Plaintiff had demonstrated that she was the lawful owner of the suit property, holding a valid title deed. That under section 26 of the Land Registration Act, registration of a person as a proprietor of land vests in that person absolute and indefeasible ownership. Reliance was placed on the cases of Avugi vs Lodogoli (2026) KEELC 487, where it was held that a registered owner is entitled to exclusive occupation and possession of their land and that a defendant must justify their presence on the land; otherwise, the occupation is unlawful, and the case of Mbuthia Macharia vs Annah Mutua & Another (2017) eKLR.
8. Counsel submitted further that the right to property and the right to seek protection from unlawful deprivation of the property was provided for in Article 40 of the Constitution of Kenya 2010. Counsel invited the court to consider the report by the Deputy County Commissioner in which observations were made that the disputed parcel number 2491 was occupied by Florence Ndembi and Joram Ndembi, the Defendants, that Plaintiff had nowhere to build her house and that Florence Ndembi and Jacob Ndembi had their own parcel number 2492. Counsel submitted that the report by the Deputy County Commissioner was prima facie evidence that the Defendants were in occupation of parcel No. 2491.
9. Counsel submitted that the Plaintiff was therefore entitled to the relief sought. Reliance was placed on the case of Park Towers Limited vs John Muthamo Njika & 7 Others (2014) where it was held that once trespass is proved, the Plaintiff does not need to prove special damages. That the Plaintiff is entitled to regain possession of her property. Counsel urged the court to allow the claim with costs.
10. On behalf of the Defendants, written submissions dated 12 th May 2026 were filed by Chege Kibathi & Co. Advocates LLP. Counsel submitted that the suit was a blatant attempt to re-litigate a matter that was finally heard and decided by a competent court. Counsel relied on the provisions of section 7 of the Civil Procedure Act on the doctrine of res judicata and the Court of Appeal decision in IEBC vs Maina Kiai and 5 Others [2017]eKLR and submitted that the suit land herein was the subject matter in VIHIGA SPMCC NO 18 OF 2015 (the former suit), and that the plaintiff in this suit and the former suit is the same person, while the Defendants herein are the legal heirs and privies to Jacob Ndembi, who was the Defendant in the former suit. That the issues in both suits are the same and that the judgment in the former suit was a final determination on merit after a full trial. Counsel relied on the case of John Florence Maritime Services Ltd vs Cabinet Secretary for Transport & Infrastructure and Another (2021)KLR and urged the court to find that the suit was res judicata and dismiss it with costs.
11. Counsel submitted further that the Plaintiff had failed to prove the essential elements of her claim. That the tort of trespass to land is a violation of possession. That the Plaintiff must prove that she had the right to immediate and exclusive possession of the suit land and that the Defendants intentionally entered the land without any justifiable cause. Counsel relied on the cases of M’Mukanya vs M’Mbijiwe [1984] KLR and Ochako Obinchu vs Zachary Oyoti Nyamongo (2018) eKLR and submitted that the crux of the Plaintiff’s case was trespass; hence, she had to prove encroachment. That the plaintiff had no credible evidence whatsoever.
12. Counsel submitted further that although the Plaintiff placed heavy reliance on the Deputy County Commissioner’s report dated 4 th June 2025, the report does not constitute proof of trespass. That the report did not determine boundaries or locate structures on the ground through a professional survey. Counsel submitted that without a surveyor’s report, photographs or independent witnesses, the Plaintiff’s allegations remain allegations.
13. Counsel submitted further that the Defendants were in lawful occupation of land parcel No. 2492 and that the Plaintiff was not entitled to the relief sought as the Plaintiff has not proved that the Defendants were on her land and that no damage to land parcel No. 2491 was proved. Counsel urged the court to dismiss the suit with costs.
Issues for determination
14. From the pleadings, the evidence and the submissions, the following emerge as the issues for determination herein:
(i) whether or not the Defendants trespassed onto the Plaintiff's land
(ii) whether or not the Plaintiff is entitled to the relief sought.
(iii) Costs of the suit.
Analysis and determination
15. The issue of whether or not the suit was res judicata had been raised as a preliminary point, and vide its ruling dated 11 th December 2025, the court found that the Defendants had not exhibited sufficient material, namely the pleadings, proceedings and decision of the former suit, to enable the court to determine the issue. The court therefore dismissed the preliminary objection for those reasons. In the proceedings herein, the Plaintiff admitted to having filed the former suit but contended that the parties were not the same, as the Defendant in the former suit was one Jacob Ndembi, the husband to the 1 st Defendant and father to the 2 nd Defendant. Having perused the plaint, defence and judgment in case No. Vihiga SPMCC NO 18 OF 2015, which were produced as exhibits herein by the Defendants, I find that the subject matter of the two suits and the issues that were decided on in the judgment were the same as in the present suit. The judgment delivered on 27/8/2015 in the said suit was a final judgment arrived at after a full hearing. The suit is therefore res judicata as described in section 7 of the Civil Procedure Act.
16. If the court were to decide on the merits of the case, the Plaintiff's claim is based on the tort of trespass. She claims to be the rightful and proprietary owner of the suit land and that the Defendants have unlawfully and illegally encroached onto the suit land, built their house and resided thereon for a long time. That there was no dispute that the suit land belongs to the Plaintiff. The Plaintiff produced a copy of the title deed and a copy of the certificate of official search in respect of the suit land, both showing that the suit land was registered in the name of the Plaintiff on 30.03.2010 and the title deed issued to her on the same date. Both Defendants readily admitted on cross-examination that the suit land belonged to the Plaintiff.
17. It was also not disputed that the Defendants, who are the widow and son of one Jacob Ndembi, a brother-in-law of the Plaintiff, are entitled to land parcel NO. EAST BUNYORE/EBUCHITWA/2492 which borders the suit land. The Defendants testified and maintained that the land they occupy is parcel No. AST BUNYORE/EBUCHITWA/2492 belonging to them because they are the family of Jacob Ndembi.
18. The evidence available from both parties was that the Defendants have occupied the piece of land that they currently occupy for a long time. The Plaintiff pleaded and testified that the Defendants had been on the land for a long time and that the structures or houses thereon were constructed by Jacob Ndembi in the lifetime of her (Plaintiff's) husband. The 1 st Defendant testified that she had lived on the land for over 50 years.
19. Trespass to land is constituted by an unjustified interference with the possession of land. In Black’s Law Dictionary, 11 th Edition, it is defined as;
“a person’s unlawful entry on another’s land that is visibly enclosed. This tort consists of doing any of the following without lawful justification: (1) entering on to land in the possession of another, (2) remaining on the land, or (3) placing or projecting any object on it.”
Winfield and Jolowicz on Tort, 12 th edition, at page 359, states that:
“trespass to land is the name given to that form of trespass which is constituted by unjustifiable interference with possession of land……it consists of interference with possession.”
Section 3 of the Trespass Act, Cap 294 Laws of Kenya provides;
“any person who without reasonable excuse enters or remains upon or erects any structure on or cultivates, tills or grazes or permits stock to be on private land without the consent of the occupier thereof shall be guilty of an offence.”
The elements of the tort of trespass thus include: unauthorized entry onto another’s land, remaining on another’s land without permission, carrying out activities such as cultivating, tilling or even grazing animals, or construction on another’s land without permission or placing /projecting an object over someone’s land without permission.
20. The Plaintiff produced no surveyor's report to confirm encroachment. She relied on the report by the Deputy County Commissioner, which was, by consent of the parties, admitted as an exhibit in the case. The report dated 4/6/2025 was filed on 10/6/2025 in compliance with the court order referring the matter to the Deputy County Commissioner for resolution under the Alternative Justice System. Although the report shows that it was observed that the disputed parcel number 2491 was occupied by Florence Ndembi and Joram Ndembi (Defendants), there was no indication or evidence of how the observations were arrived at: whether a surveyor was involved, whether maps or mutation forms were referred to or relied on.
21. The burden of proof under section 107 of the Evidence Act was with the Plaintiff to prove the elements of trespass. I find that this burden has not been discharged. The facts placed before the Court present a case of mistaken position of the suit land on the ground. This can only be resolved by a land surveyor. In the absence of a surveyor's report, I find that Plaintiff has failed to prove trespass.
The next issue for determination is whether or not the Plaintiff is entitled to the relief sought.
22. Having failed to prove the cause of action, that is to say the tort of trespass, the Plaintiff has not proved that she is entitled to the relief sought. The relief sought is a mandatory order compelling the Defendants to vacate the Plaintiff's parcel of land, a declaration that the parcel of land E/BUNYORE/EBUCHITWA/2491 legally belongs to the Plaintiff, an order for the eviction of the Defendants from the suit land, and costs of the suit. These are orders only available to a claimant who has proved that her property has been encroached upon. I find no basis for holding that the Plaintiff is entitled to the relief sought.
23. On costs, under the provisions of section 27 of the Civil Procedure Act, costs follow the event. The Plaintiff filed a suit that was heard and decided, and yet she again filed the present suit on the same issues and subject matter. The Defendants are entitled to costs.
24. The upshot is that the plaintiff has failed to prove her claim on a balance of probabilities. The suit is dismissed. Costs are awarded to the Defendants.
Orders accordingly.
Judgment dated and signed at Vihiga and delivered virtually this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang - Court Assistant.
No appearance for the Plaintiff.
Wanda for the 1 st and 2 nd Defendants.
ELLCLC NO E012 OF 20242