The Plaintiff avers that at all material times herein he is the registered proprietor of parcel of land known as LR. No. 12715/146 I.R No. 44487 Survey Plan Number 121315 situate in Syokimau within Machakos County. The Plaintiff avers that on or about the 7th March, 2023, the 1st and 2nd Defendants and or their agents/servants trespassed upon the suit property and brought down part of the boundary wall that was being constructed on the suit property without any colour of right or at all. The Plaintiff avers that he reported the same at the Syokimau Police Station on the same day and was issued with OB. No. 14/7/3/2023. The Plaintiff avers that despite reporting the said illegal actions by the 1st and 2nd Defendants in collusion with the Mlolongo DCI Officers started frustrating the Plaintiff’s contractor on site by arresting workers and forcefully evicting them at gunpoint without any color of right or at all.
The Plaintiff avers that the DCI Officers from Mlolongo have gone ahead and had some of the Plaintiff’s employees charged with trespass yet he is the registered owner and gave consent for them to enter his property which shows direct collusion between the 1st and 2nd Defendants and the DCI Officers from Mlolongo. The Plaintiff avers that the suit property was transferred to him by the 3rd Defendant lawfully after due procedure had been followed. That the Plaintiff avers that he has been made aware of another title deed over the same suit property in the names of the 1st and 2nd Defendants as joint owners yet he is of the knowledge that his title is the authentic/valid one. The Plaintiff avers that the 1st and 2nd Defendants’ title deed was obtained fraudulently and in collision with officers from the 4th Defendant’s office and further assistance from the DCI officers to frustrate the Plaintiff’s quite possession of the suit property.
The Plaintiff prays for Judgment against the Defendants for;
a. A declaration that the Plaintiff is the registered and rightful proprietor of the parcel of land known as LR. No. 12715/146 I.R. No. 44487 Survey Plan Number 121315 situate in Syokimau within Machakos County.
b. A declaration that title number L.R. No. 12715/146 issued to the 1st and 2nd Defendants is null and void for all intents and purposes.
c. An order directing the 4th Defendant to rectify the register by cancellation of the title and entries registered over the title held by the 1st and 2nd Defendants.
d. A permanent injunction restraining the 1st and 2nd Defendants themselves, their agents, assigns, employees and/or any other persons whosoever be restrained from taking physical possession, developing, transferring disposing off and or dealing howsoever with the Plaintiff’s parcel of land known as LR. No. 12715/146 I.R. No. 44487 Survey Plan Number 121315 situate in Syokimau within Machakos County.
e. Costs of the suit.
The Defendants state that the Plaintiff invaded the suit property on 2nd March, 2023 with a gang of men numbering about 40 bearing machetes and other implements. They started to earnestly dig up the land along the perimeter boundaries and were also cleared the shrubbery growing on the property. They then went ahead to dig a trench and build a stone wall around the property at a very fast pace. The acts of trespass by the Plaintiff and the construction of the stone wall are blatant breach of the Defendants constitutional right to property under Article 40 of the constitution. Following the daring criminal activities by Daniel Muoki Munywoki and his “business” partner Michael Omondi, the Defendants have been forced to enhance security personnel on the suit property on 24-hour basis, in addition to the caretaker, which is at a great financial cost to them.
It is in the interest of justice that the 1st and 2nd Defendant in the Counter-claim and/or their agents be restrained from trespassing on the suit property and carrying out any activities on the suit property, purporting to develop, alienate, selling, subletting or in any way dealing with Land Reference No. 12715/146 (I.R. No. 44487) which is registered in the names of the Plaintiffs in the Counter-claim.
The Defendants seek Judgment on the Counter-claim against the Defendants in the Counter-claim for:
a. An order of permanent injunction restraining the Defendants Daniel Muoki Munywoki and Michael Omondi whether by their employees, servants or agents or any of them or otherwise howsoever from trespassing, taking physical possession, developing, alienating, selling, subletting or in any way dealing with Land Reference No. 12715/146 (I.R No. 44487).
b. The OCS Syokimau Police Station to ensure compliance with the orders of this court.
c. General damages for trespass and damage to the suit property.
d. Special damages in regards to costs of guarding the suit premises that has been occasioned by the illegal activities of the Defendants in the Counter-claim.
e. The Defendants in the Counter-claim to meet he cost of demolition of the wall they illegally erected on the suit premises and reinstating the suit property to its original state.
f. Costs of this suit on an Advocate-Client basis and interest thereon at court rates.
The 1st and 2nd Defendants in the main suit pray that the Plaintiff’s suit be dismissed with costs on a full indemnity basis and Judgment be entered for the Plaintiffs in the Counter-claim as prayed in the Counter-claim.
The court has considered the pleadings, evidence presented before it, submissions made as well as the authorities relied upon by the party. The issues for determination are:
1. Who is the lawful proprietor of the land parcel known as LR No. 12715/146 (I.R No. 44487)?
2. What orders should this court issue?
The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows;
“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”
Section 26 (1) of the Land Registration Act states as follows;
“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –
a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or
b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”
The Plaintiffs main suit was dismissed on the 23rd July 2025 for non-attendance when the matter came up for hearing and the matter proceeded with the Counter Claim. The claim against the Michael Omondi the 2nd Defendant in the counter claim was withdrawn by a notice of withdrawal dated 31st October 2023 and filed in court on the 20th November 2023. The 1st Defendant PW1, testified that he purchased the suit property from the estate of the late Nathan Kithuku Mbithi in the year 1999 and has been in actual possession. PW2 testified that he is the son of the late Nathan Kithuku Mbithi and confirmed the transfer of the land to the 1st and 2nd Defendants. The Chief Land Registrar, 4th Defendant filed a defence on the 9th January 2024 confirming that the Plaintiffs in the counterclaim were the registered proprietors of the suit properties. According to the documents available in their custody the suit property LR No. 12715/146 had the first grant registered under IR 44487 to Syokimau Farm Limited on the 17th May 1988 for a term of 99 years from 1st November 1083. The suit was transferred to one Nathan Kithuku Mbithi vide a transfer instrument dated 23rd April 1999. Another transfer to the property was effected vide transfer instrument dated 26th April 1999 in favour of Peter Muniu Mwangi and Lucy Wangare Muhiu who are the current proprietors.
I have carefully perused the documents produced as exhibits and find that the 1st and 2nd Defendants are the registered owners of the suit property. They produced the title and official search of the suit property, transfer documents from the estate of the late Nathan Kithuku Mbithi, transfer documents from the 3rd Defendant to the late Nathan Kithuku Mbithi land rate clearance certificate and late rates clearance certificates and receipts among other documentary evidence which have not been challenged. The Court of Appeal in Munyu Maina vs Hiram Gathiha Maina (2013) eKLR held that;
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”
Section 26 of the Land Registration Act which guarantees the concept of indefeasibility of title does not extend to any property that has been found to have been unlawfully acquired. The Court of Appeal in Attorney General vs Torino Enterprises Limited (Civil Application 84 of 2012) (2022) KECA 78 (KLR) (4 February 2022) (Judgment) held that;
“We have considered the provisions of section 26 of the Land Registration Act (repealed) in light of the provisions of Article 40 of the Constitution which guarantees protection of right to property and it is our considered view that the concept of indefeasibility of title is subject to Article 40 (6) of the Constitution which states that: “The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” Guided by the provisions of Article 40 (6) of the Constitution, we hold that the concept of indefeasibility or conclusive nature of title is inapplicable to the extent that title to the suit land was unlawfully acquired. See Denis Noel Mukhulo & Another v. Elizabeth Murungari & Another [2018] eKLR.”
Be that as it may, the Plaintiffs have offered no evidence to support their ownership claim. As stated in the plaint this entire case is based on fraud but I find that no evidence of fraud on the part of the 1st and 2nd Defendants has been adduced.
Section 109 of the Evidence Act Cap 80 is clear that;
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
The well-known mantra “he who asserts must prove.” Was well pointed out by the Court of Appeal in Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi (2013) eKLR as follows;
“We have considered the rival submissions on this point and state that Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 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.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”
In James Muigai Thungu vs County Government of Trans-Nzoia & 2 others (2022) eKLR it was held that;
“It is now settled law that whosoever asserts the existence of a legal right or liability is vested with the burden to prove it except in so far as the law may expressly exempt him or her. Section 107 of the Evidence Act Chapter 80 Laws of Kenya succinctly states:
Whosever 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.
Also, further, Section 108 of the Act states thus:
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Again Section 109 of Act refers to the burden of proof of a particular fact. It states that:
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
The Defendants claim for both general for trespass and special damages. The Court of Appeal was of this opinion in Jamal Salim vs Yusuf Abdulahi Abdi & another (2018) eKLR and stated that;
“In the text Clerk & Lindsell on Torts, Sweet & Maxwell, 18th Edition, at page 923, trespass to land is defined as follows :- "Trespass to land consists of any unjustifiable intrusion by one person upon land in the possession of another.
At page 927 of the same text discusses who may sue for trespass and it states as follows:- “Trespass is actionable at the suit of the person in possession of land, who can claim damages or injunction, or both... Similarly, a person in possession can sue although he is neither owner nor derives title from the owner, and indeed may be in possession adverse to the owner.”
It is therefore not necessary for one to establish ownership of land to sustain a claim for trespass. It is enough that the person suing is in possession.”
It has not been disputed that the Plaintiff trespassed on the suit property. The Defendant testified that the Plaintiffs invaded the suit property on 2nd March, 2023 with a gang of men numbering about 40 bearing machetes and other implements. They started to earnestly dig up the land along the perimeter boundaries and were also cleared the shrubbery growing on the property. They then went ahead to dig a trench and build a stone wall around the property.
In Philip Ayaya Aluchio vs Crispinus Ngayo (2014) eKLR the court held that;
“The defendant has constructed on the plaintiff's land. This in itself is damage and wastage of the plaintiff's land. The plaintiff is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage?. It has been held that the measure of damages for trespass is the difference in the value of the plaintiff's property immediately before and immediately after the trespass or the cost of restoration, whichever is less. See Hostler – VS – GreenPark Development Co. 986 S. W 2d 500 (No. ct App. 1999).
The plaintiff herein did not adduce any evidence as to the state of his property before and after the trespass. It therefore becomes difficult to assess general damages for trespass. There was no evidence adduced on the nature of house which the defendant has constructed on the suit land. The court is at a disadvantaged position in reaching at a cost which might be reasonable for restoration of the property to its former state. However as I have found that the plaintiff is entitled to general damages for trespass, I will award a nominal sum of Kshs. 100,000/= as general damages for trespass. This cost will go towards restoration of the suit land to its former state.”
Special damages are those damages which are ascertainable and quantifiable at the date of the action. The distinction between general and special damages was explained by the Court of Appeal in Jogoo Kimakia Bus Services Ltd vs Electrocom International Ltd (1992) KLR 177 where it was stated that;
“The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”
Where proved, a claim for special damages will restitute the claimant to the position he would have been saved for the action complained of, however the documents placed before the court do not entirely do this. Special damages have not been specifically pleaded and proved and the same will not be awarded.
I find that at the time of the trespass by the suit property was vacant. However, the Defendants have not adduced evidence as to the status of their suit land before and after the trespass and as they are entitled to general damages for trespass, the court will award a nominal sum of Kshs 1,000,000/= as damages. I find that the Defendants have proved their Counter Claim on a balance of probabilities and I grant the following orders;
1. An order of permanent injunction restraining the Plaintiffs whether by their employees, servants or agents or any of them or otherwise howsoever from trespassing, taking physical possession, developing, alienating, selling, subletting or in any way dealing with Land Reference No. 12715/146 (I.R No. 44487).
2. The OCS Syokimau Police Station to ensure compliance with the orders of this court.
3. Kshs 1,000,000/= General damages for trespass.
4. Costs of this suit to the Defendants.
It is so ordered.
The Plaintiff avers that the DCI Officers from Mlolongo have gone ahead and had some of the Plaintiff’s employees charged with trespass yet he is the registered owner and gave consent for them to enter his property which shows direct collusion between the 1st and 2nd Defendants and the DCI Officers from Mlolongo. The Plaintiff avers that the suit property was transferred to him by the 3rd Defendant lawfully after due procedure had been followed. That the Plaintiff avers that he has been made aware of another title deed over the same suit property in the names of the 1st and 2nd Defendants as joint owners yet he is of the knowledge that his title is the authentic/valid one. The Plaintiff avers that the 1st and 2nd Defendants’ title deed was obtained fraudulently and in collision with officers from the 4th Defendant’s office and further assistance from the DCI officers to frustrate the Plaintiff’s quite possession of the suit property.
The Plaintiff prays for Judgment against the Defendants for;
a. A declaration that the Plaintiff is the registered and rightful proprietor of the parcel of land known as LR. No. 12715/146 I.R. No. 44487 Survey Plan Number 121315 situate in Syokimau within Machakos County.
b. A declaration that title number L.R. No. 12715/146 issued to the 1st and 2nd Defendants is null and void for all intents and purposes.
c. An order directing the 4th Defendant to rectify the register by cancellation of the title and entries registered over the title held by the 1st and 2nd Defendants.
d. A permanent injunction restraining the 1st and 2nd Defendants themselves, their agents, assigns, employees and/or any other persons whosoever be restrained from taking physical possession, developing, transferring disposing off and or dealing howsoever with the Plaintiff’s parcel of land known as LR. No. 12715/146 I.R. No. 44487 Survey Plan Number 121315 situate in Syokimau within Machakos County.
e. Costs of the suit.
The Defendants state that the Plaintiff invaded the suit property on 2nd March, 2023 with a gang of men numbering about 40 bearing machetes and other implements. They started to earnestly dig up the land along the perimeter boundaries and were also cleared the shrubbery growing on the property. They then went ahead to dig a trench and build a stone wall around the property at a very fast pace. The acts of trespass by the Plaintiff and the construction of the stone wall are blatant breach of the Defendants constitutional right to property under Article 40 of the constitution. Following the daring criminal activities by Daniel Muoki Munywoki and his “business” partner Michael Omondi, the Defendants have been forced to enhance security personnel on the suit property on 24-hour basis, in addition to the caretaker, which is at a great financial cost to them.
It is in the interest of justice that the 1st and 2nd Defendant in the Counter-claim and/or their agents be restrained from trespassing on the suit property and carrying out any activities on the suit property, purporting to develop, alienate, selling, subletting or in any way dealing with Land Reference No. 12715/146 (I.R. No. 44487) which is registered in the names of the Plaintiffs in the Counter-claim.
The Defendants seek Judgment on the Counter-claim against the Defendants in the Counter-claim for:
a. An order of permanent injunction restraining the Defendants Daniel Muoki Munywoki and Michael Omondi whether by their employees, servants or agents or any of them or otherwise howsoever from trespassing, taking physical possession, developing, alienating, selling, subletting or in any way dealing with Land Reference No. 12715/146 (I.R No. 44487).
b. The OCS Syokimau Police Station to ensure compliance with the orders of this court.
c. General damages for trespass and damage to the suit property.
d. Special damages in regards to costs of guarding the suit premises that has been occasioned by the illegal activities of the Defendants in the Counter-claim.
e. The Defendants in the Counter-claim to meet he cost of demolition of the wall they illegally erected on the suit premises and reinstating the suit property to its original state.
f. Costs of this suit on an Advocate-Client basis and interest thereon at court rates.
The 1st and 2nd Defendants in the main suit pray that the Plaintiff’s suit be dismissed with costs on a full indemnity basis and Judgment be entered for the Plaintiffs in the Counter-claim as prayed in the Counter-claim.
The court has considered the pleadings, evidence presented before it, submissions made as well as the authorities relied upon by the party. The issues for determination are:
1. Who is the lawful proprietor of the land parcel known as LR No. 12715/146 (I.R No. 44487)?
2. What orders should this court issue?
The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows;
“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”
Section 26 (1) of the Land Registration Act states as follows;
“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –
a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or
b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”
The Plaintiffs main suit was dismissed on the 23rd July 2025 for non-attendance when the matter came up for hearing and the matter proceeded with the Counter Claim. The claim against the Michael Omondi the 2nd Defendant in the counter claim was withdrawn by a notice of withdrawal dated 31st October 2023 and filed in court on the 20th November 2023. The 1st Defendant PW1, testified that he purchased the suit property from the estate of the late Nathan Kithuku Mbithi in the year 1999 and has been in actual possession. PW2 testified that he is the son of the late Nathan Kithuku Mbithi and confirmed the transfer of the land to the 1st and 2nd Defendants. The Chief Land Registrar, 4th Defendant filed a defence on the 9th January 2024 confirming that the Plaintiffs in the counterclaim were the registered proprietors of the suit properties. According to the documents available in their custody the suit property LR No. 12715/146 had the first grant registered under IR 44487 to Syokimau Farm Limited on the 17th May 1988 for a term of 99 years from 1st November 1083. The suit was transferred to one Nathan Kithuku Mbithi vide a transfer instrument dated 23rd April 1999. Another transfer to the property was effected vide transfer instrument dated 26th April 1999 in favour of Peter Muniu Mwangi and Lucy Wangare Muhiu who are the current proprietors.
I have carefully perused the documents produced as exhibits and find that the 1st and 2nd Defendants are the registered owners of the suit property. They produced the title and official search of the suit property, transfer documents from the estate of the late Nathan Kithuku Mbithi, transfer documents from the 3rd Defendant to the late Nathan Kithuku Mbithi land rate clearance certificate and late rates clearance certificates and receipts among other documentary evidence which have not been challenged. The Court of Appeal in Munyu Maina vs Hiram Gathiha Maina (2013) eKLR held that;
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”
Section 26 of the Land Registration Act which guarantees the concept of indefeasibility of title does not extend to any property that has been found to have been unlawfully acquired. The Court of Appeal in Attorney General vs Torino Enterprises Limited (Civil Application 84 of 2012) (2022) KECA 78 (KLR) (4 February 2022) (Judgment) held that;
“We have considered the provisions of section 26 of the Land Registration Act (repealed) in light of the provisions of Article 40 of the Constitution which guarantees protection of right to property and it is our considered view that the concept of indefeasibility of title is subject to Article 40 (6) of the Constitution which states that: “The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” Guided by the provisions of Article 40 (6) of the Constitution, we hold that the concept of indefeasibility or conclusive nature of title is inapplicable to the extent that title to the suit land was unlawfully acquired. See Denis Noel Mukhulo & Another v. Elizabeth Murungari & Another [2018] eKLR.”
Be that as it may, the Plaintiffs have offered no evidence to support their ownership claim. As stated in the plaint this entire case is based on fraud but I find that no evidence of fraud on the part of the 1st and 2nd Defendants has been adduced.
Section 109 of the Evidence Act Cap 80 is clear that;
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
The well-known mantra “he who asserts must prove.” Was well pointed out by the Court of Appeal in Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi (2013) eKLR as follows;
“We have considered the rival submissions on this point and state that Section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 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.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”
In James Muigai Thungu vs County Government of Trans-Nzoia & 2 others (2022) eKLR it was held that;
“It is now settled law that whosoever asserts the existence of a legal right or liability is vested with the burden to prove it except in so far as the law may expressly exempt him or her. Section 107 of the Evidence Act Chapter 80 Laws of Kenya succinctly states:
Whosever 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.
Also, further, Section 108 of the Act states thus:
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Again Section 109 of Act refers to the burden of proof of a particular fact. It states that:
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
The Defendants claim for both general for trespass and special damages. The Court of Appeal was of this opinion in Jamal Salim vs Yusuf Abdulahi Abdi & another (2018) eKLR and stated that;
“In the text Clerk & Lindsell on Torts, Sweet & Maxwell, 18th Edition, at page 923, trespass to land is defined as follows :- "Trespass to land consists of any unjustifiable intrusion by one person upon land in the possession of another.
At page 927 of the same text discusses who may sue for trespass and it states as follows:- “Trespass is actionable at the suit of the person in possession of land, who can claim damages or injunction, or both... Similarly, a person in possession can sue although he is neither owner nor derives title from the owner, and indeed may be in possession adverse to the owner.”
It is therefore not necessary for one to establish ownership of land to sustain a claim for trespass. It is enough that the person suing is in possession.”
It has not been disputed that the Plaintiff trespassed on the suit property. The Defendant testified that the Plaintiffs invaded the suit property on 2nd March, 2023 with a gang of men numbering about 40 bearing machetes and other implements. They started to earnestly dig up the land along the perimeter boundaries and were also cleared the shrubbery growing on the property. They then went ahead to dig a trench and build a stone wall around the property.
In Philip Ayaya Aluchio vs Crispinus Ngayo (2014) eKLR the court held that;
“The defendant has constructed on the plaintiff's land. This in itself is damage and wastage of the plaintiff's land. The plaintiff is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage?. It has been held that the measure of damages for trespass is the difference in the value of the plaintiff's property immediately before and immediately after the trespass or the cost of restoration, whichever is less. See Hostler – VS – GreenPark Development Co. 986 S. W 2d 500 (No. ct App. 1999).
The plaintiff herein did not adduce any evidence as to the state of his property before and after the trespass. It therefore becomes difficult to assess general damages for trespass. There was no evidence adduced on the nature of house which the defendant has constructed on the suit land. The court is at a disadvantaged position in reaching at a cost which might be reasonable for restoration of the property to its former state. However as I have found that the plaintiff is entitled to general damages for trespass, I will award a nominal sum of Kshs. 100,000/= as general damages for trespass. This cost will go towards restoration of the suit land to its former state.”
Special damages are those damages which are ascertainable and quantifiable at the date of the action. The distinction between general and special damages was explained by the Court of Appeal in Jogoo Kimakia Bus Services Ltd vs Electrocom International Ltd (1992) KLR 177 where it was stated that;
“The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”
Where proved, a claim for special damages will restitute the claimant to the position he would have been saved for the action complained of, however the documents placed before the court do not entirely do this. Special damages have not been specifically pleaded and proved and the same will not be awarded.
I find that at the time of the trespass by the suit property was vacant. However, the Defendants have not adduced evidence as to the status of their suit land before and after the trespass and as they are entitled to general damages for trespass, the court will award a nominal sum of Kshs 1,000,000/= as damages. I find that the Defendants have proved their Counter Claim on a balance of probabilities and I grant the following orders;
1. An order of permanent injunction restraining the Plaintiffs whether by their employees, servants or agents or any of them or otherwise howsoever from trespassing, taking physical possession, developing, alienating, selling, subletting or in any way dealing with Land Reference No. 12715/146 (I.R No. 44487).
2. The OCS Syokimau Police Station to ensure compliance with the orders of this court.
3. Kshs 1,000,000/= General damages for trespass.
4. Costs of this suit to the Defendants.
It is so ordered.