REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISII
ELCC NO. E001 OF 2021
CHRISTOPHER TINEGA ……………………………...……………………….. PLAINTIFF
VERSUS
OCS ETAGO POLICE STATION ………………….…………………….. 1ST DEFENDANT
OCPD ETAGO POLICE STATION ……………………………………… 2ND DEFENDANT
INSPECTOR GENERAL OF POLICE …………….…………………….. 3RD DEFENDANT
THE HON. ATTORNEY GENERAL …………………………………….. 4TH DEFENDANT
JUDGMENT
1. This suit was commenced through a plaint filed on 13 January 2021 vide which the plaintiff sued the OCS Etago Police Station, the OCPD Etago Police Station, the Inspector General of Police, and the Hon. Attorney General as the 1st – 4th defendants respectively. He pleads to be the owner of the land parcel South Mugirango/Nyataaro/2086 (the suit land). He contends that on 25 November 2020, the 1st and 2nd defendants started evicting his tenants, one of whom was a sickly lady who was thrown to the ground and treated in hospital but refused to record an OB at the police station. The plaintiff claims that as a result he has lost rental income. In the suit he seeks the following orders :
(a) A permanent injunction restraining the defendants by themselves, agents, servants and or anyone claiming under them from trespassing onto, interfering or dealing with the suit land.
(b) Payment of lost rent to be calculated by the court.
(c) Costs of the suit.
2. The defendants filed a joint statement of defence through the State Law Office. They pleaded to be strangers to the contents of the plaint. They averred that if any persons were evicted then they were squatting on Government land which has a police station. Liability was otherwise denied.
3. In the course of the case, there was an order issued for survey of the disputed land. Pursuant thereto, the Land Registrar and District Surveyor visited the land on 17 January 2023 and prepared a report dated 6 February 2023. I will refer to the report a little later.
4. To support his case, the plaintiff testified and called one other witness and the surveyor who visited the land. What emerged in their evidence is that the plaintiff is indeed the registered owner of the land parcel South Mugirango/Nyataaro/2086 which is land measuring 0.02 Ha. However, he has made developments on a neighbouring parcel of land , South Mugirango/Nyataaro/2085, which is registered in name of one Charles Bundi Onyancha. In turn, Charles Bundi Onyancha is in occupation of the suit land i.e parcel No. 2086. There is however no issue between the two despite the disparity in occupation. It also emerged that neighbouring these parcels of land is a land parcel South Mugirango/2633 which is the land registered under Etago Police Station. In the survey report, it is observed that the police station land overlaps some parcels No. 2116, 2011, and 2462 and is overlapped by the land parcels No. 2706, 4037, 4038 and 4085. However, these overlapping parcels of land do not belong to the plaintiff and do not interfere with the plaintiff’s registered land parcel No. 2086 nor do they affect the parcel No. 2085 which is the land that the plaintiff has developed. Thus, whatever issues the police station land has, does not affect the plaintiff at all. The police do not claim any part of the land parcel No. 2085 or No. 2086, and the plaintiff does not lay claim to any land occupied by the police station. In fact, there is a vacant parcel of land owned by a third party which separates these parcels of land from the police station land.
5. Regarding the claim that the OCS Etago Police Station and the OCPD Etago Police Station evicted the plaintiff’s tenants on 25 November 2020, the evidence of the plaintiff was that the OCS Etago came to his developments where he had put 10 tenants and evicted them. He testified that he now does not have a single tenant and the only person in occupation is his mother by name of Pascalia. He further testified that the person who evicted his tenants was one Pamela, the then OCS of Etago Police Station. The plaintiff testified that he does not live on the property and was called by his tenants who told him that they were being evicted. PW-2, James Chore Oriango’s evidence was more or less on the ownership of the suit land. So too the evidence of PW-3, Charles Rogito Gori. None of them testified that they were present when the eviction took place. I am afraid that without such evidence, I am unable to find that it has been proved that the OCS Etago Police Station and the OCPD Etago Police Station undertook an eviction of the plaintiff’s tenants. There is simply no evidence to that effect.
6. Moreover, it was necessary, in the circumstances of this case, for the plaintiff to sue the particular person who undertook the eviction, or at least name him or her in his pleadings, so that such person can be given an opportunity to defend himself/herself. This is following the principle of natural justice for you cannot condemn a person unheard.
7. Be that as it may, there is really no evidence of how the eviction took place, for the plaintiff did not call any of his tenants or any eyewitness who witnessed the alleged eviction. For that reason, I am unable to hold that the OCS Etago and or the OCPD Etago evicted the tenants of the plaintiff as alleged.
8. The claim of the plaintiff is that because of this illegal eviction of his tenants he has suffered loss, and in his pleadings he has sought prayers for the rental income that he has lost. I have already found that there is no proof of eviction by the police officers as alleged. But even then, there is no proof of any lost income. Nowhere in his plaint or in his evidence did the plaintiff state what this rental income that he has lost is. Save for stating that he had 10 rooms, he never pleaded and never tendered evidence regarding how much he charged per each room, and how much he has lost. The claim for lost rent is in fact a claim for special damages and/or mesne profits which needed specific pleadings and specific proof of which there is none.
9. Thus, from the evidence, I see no interference from the police with the land or developments of the plaintiff whether you consider the parcel No. 2085 or the parcel No. 2086. As I have mentioned, despite the police station land having some issues of overlap, they do not touch on the plaintiff’s land. All witnesses were in agreement that the police station land does not interfere with the plaintiff’s land or developments, and the National Police Service has not laid claim to any part of the plaintiff’s land or developments. I also do not have any evidence that the OCS Etago or the OCPD Etago evicted any of the plaintiff’s tenants as alleged in the plaint. If at all this happened and the plaintiff suffered loss, the plaintiff has not even made any pleadings to specify this loss and neither has he tabled any evidence of what this loss is.
10. In those circumstances, I have no basis upon which to issue an order of permanent injunction against the defendants, and no basis upon which to order the defendants to pay any lost rent as claimed by the plaintiff. I find no basis for the plaintiff’s claim. I even wonder why he opted to proceed with it despite the issues herein having been taken to mediation. I would have thought that out of that process, the plaintiff would have seen that he has no case worthy of urging. In light of that, I proceed to dismiss the plaintiff’s suit with costs to the defendants.
11. Judgment accordingly.
DATED AND DELIVERED THIS 25 DAY OF FEBRUARY 2026
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT KISII
Delivered in the presence of :
Mr. Ndiritu, for The State Law Office, for the defendants
No appearance on part of M/s S.M Sagwe & Company Advocates for the plaintiff
Court Assistant – Michael Oyuko