I. Preliminaries
1. This Honourable Court was is tasked with the legal mandate to pronounce Judgment pertaining to a civil suit instituted through the Plaint dated 13th September 2024. It was filed by Dr. Frank K. Mwongera, the Plaintiff herein and filed through Messrs. Mungai Kamau & Co. Advocates against Awadh Abdulibast, Mwangira Juma Hamisi, Asha Egga Mweru, Hashim Khalfan Mohame, Salome Mahamfuli Nyawa, Magi Sami, Mwanamvua Juma Bakari, Omari Ali Mohamed, Mwanaharusi Makuru Bakari, Mariam Kame, Mbwana Kondu, Mudimi Musa, Mwanasiti Omar, Musa Shanga Masudi, Mutua, Ali Beto, Ben, Kanisa Kenedi and Fina, the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, and 19th Defendants herein.
2. Despite of service of the pleading and summons to enter appearance, the Defendants never entered appearance nor filed their statement of defence. Indeed, on 23rd January, 2025, the Plaintiff sought and was granted leave to effect service through Substituted way under the provision of Order 5 Rule 17 of the Civil Procedure Rules, 2010 and whereby he published advertisements in two ( 2 ) local newspapers of wide national circulation – “The Daily Nation” and “Taifa Leo” newspapers. There was filed a 5 Paragraphed Affidavit of Service dated 12th February, 2025 and sworn by Mr. George Mungai Kamau, an Advocate of High Court conducting these proceedings on behalf of the Plaintiff herein.
3. Based on the above, the Honourable Court was fully satisfied that there was proper service effected upon the Defendants. Hence the matter proceeded on formal proof pursuant to the provision of Order 10 Rule 4, 5, 6, 7 9 and 10 of the Civil Procedure Rules, 2010.
II. Description of the Parties
4. The Plaintiff, Dr. Frank Kamunde Mwongera, is an adult of sound mind, a physician and kidney specialist practicing at Nairobi Hospital, and the registered proprietor of the suit properties.
5. The Defendants are adults of sound mind residing in Shimoni, Kwale County, alleged to have unlawfully encroached upon the suit properties.
III. Court directions before the hearing
6. On 17th March 2025, after confirming compliance with the provision of Order 11 of the Civil Procedure Rules, 2010, the Court directed that the matter proceed to formal proof.
7. On 25th June 2025, the matter was heard virtually by adducing “Viva Voce” evidence due to national protests in Nairobi which prevented the Plaintiff’s witness from travelling to Kwale. The Plaintiff testified and produced exhibits in support of his case.
IV. The Plaintiff’s case
8. From the filed pleadings, at all material times relevant to this suit, the Plaintiff was the bona fide and registered owner of all those parcels of land registered as Land Reference Numbers KWALE/SHIMONI S.S/752, 753, 754, 755, 760, 761, 762, 763, 764, 765, 766, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779 & 780 (Hereinafter referred to as “The Suit Properties”) situated in Shimoni area within County of Kwale. The Plaintiff averred that he had been in physical possession of the suit properties for over 30 years and there had never been any adverse claims by any person.
9. On or about the year 2022, the Defendants, without any colour of right, justification, authority or lawful cause, invaded, encroached upon and trespassed on the suit properties, developed temporary and permanent structures and as a result denied the Plaintiff access to the suit properties. As a result of the Defendants’ tortious acts, they deprived the Plaintiff of quiet possession and enjoyment of the properties and as a result he suffered great financial loss of use of the property and loss of business opportunities on the suit properties.
10. The Plaintiff averred that he had used all reasonable means, attempts and efforts to have the illegal acts of trespass by the Defendants resolved amicably and to have them vacate the Plaintiff’s suit properties, but these efforts were unsuccessful since the Defendants intentionally refused to vacate. The Plaintiff averred that unless the Defendants were restrained by this Honourable Court from committing further acts of trespass, they would continue trespassing and making illegal claims on the suit properties and developing the suit properties further, thus denying the Plaintiff access and utilization of the suit properties.
11. The Plaintiff’s claim against the Defendants was for Permanent Injunction Orders to issue restraining the Defendants by themselves, their servants, agents or whosoever acting on the Defendants’ instructions from entering upon, passing through, remaining on, trespassing and continuing further clearing and construction on the suit properties. Notwithstanding, a demand notice to vacate the suit properties was given to the Defendants and they failed and/or neglected to meet the Plaintiff’s claim.
12. The cause of action arose within the jurisdiction of this Honourable Court. No other suit was pending in any Court between the same parties over the same subject matter.
13. The Plaintiff sought for Judgment against the Defendants jointly and severally for:-
a) General damages for trespass.
b) A Permanent Injunction restraining the Defendants whether by themselves or by their servants or agents or any of them from trespassing, occupying, constructing, or dealing on all those properties registered as. KWALE/SHIMONI S.S/752, 753, 754,755,760,761,762,763,764,765,766,769,770,771,772,773,774,775,776,777,778,779&780.
c) Demolition Orders of the structures erected on KWALE/SHIMONI S.S/752,753,754,755,760,761,762,763,764,765,766,769,770,771,772,773,774,775,776,777, 778,779 & 780.
d) An order of eviction be issued to evict the Defendants from all those properties known as Title Number KWALE/SHIMONI S.S/752,753,754,755,760,761,762,763,764,765,766,769,770,771,772,773,774,775,776,777,778,779 & 780.
e) Such other or further relief that this Honourable Court may deem fit and just to grant.
f) Costs of the suit.
14. On 25th June, 2025 at 10.25 am, the Learned Counsel for the Plaintiff, Mr. Mungai Advocate had the following opening remarks: -
A. Opening remarks by the Plaintiff
15. The Learned Counsel averred that the subject matter is regarding all those properties - KWALE/SHIMONI 55/752, 753, 754, 755, 760, 761, 762, 763, 764, 765, 766, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779 and 780 which are registered in the names of the Plaintiff and have been encroached by the 1st to 19th Defendants illegally and who have built structures illegally. They would be seeking for orders of permanent injunction, demolitions and eviction.
16. The Plaintiff called PW - 1 who testified as follows:-
B. Examination in Chief of PW – 1 by Mr. Mungai Advocate:-
17. PW – 1 testified and was sworn on oath in English language. He was called DR. FRANK KAMUNDE MWONGERA, a citizen of Kenya and holder of the national card bearing all the particulars as indicated on it and shown to Court during the hearing session. He stated that he was a medical physician and kidney specialist of long standing, and that he practised medicine at the Nairobi Hospital. He confirmed that he was the Plaintiff in this case and that he had recorded a statement filed together with the Plaint, which he wished to adopt. He further testified that he had filed a list of documents dated 13th September 2024 comprising four documents.
• Plaintiff’s Exhibits Nos. 1 to 4 were produced.
• There was a further list of documents dated 23rd January 2025 consisting of two letters dated 14th October 2024 and 18th October 2024.
• Plaintiff’s Exhibits 5 and 6 were produced in that order.
18. He confirmed that he was the registered owner of the suit properties. He explained that in May 2021, when they had commenced sub‑division, they noted that the Defendants had encroached upon the property. The matter was reported to Shimoni Police and the Defendants were summoned. However, the Defendants were very hostile, and for the sake of peace and tranquillity, he and his associates decided to maintain calmness. The police advised that they first obtain a court order for formal assistance.
19. Prior to that, they had engaged a Land Surveyor who undertook the sub ‑ division of the main land. Consequently, he noted the encroachment by the Defendants. PW ‑ 1 stated that he relied on Plaintiff’s Exhibit 4, the Surveyor’s Report. His testimony was that the report supported demolitions and costs. He further observed that the current status was that there were many squatters on the land.
20. On 25th June, 2025, the Plaintiff closed his case through his Legal Counsel on record Mr. Mungai Kamau Advocate.
V. Submissions
19. On 25th June, 2025, immediately after the closure of the Plaintiff’s case, the Honorable Court directed the Plaint dated 13th September, 2024 be canvassed through written submissions. The Plaintiff obliged.
20. Pursuant to which the Honorable Court reserved a date for delivery of Judgement on notice accordingly.
A. The Written Submissions by the Plaintiff
21. On behalf of the Plaintiff, the Law firm of Messrs. MUNGAI KAMAU & CO. ADVOCATES filed the Written Submissions dated 30th September, 2025. Mr. Mungai Kamau Advocate provided a brief background of the matter. He informed Court that the Plaintiff herein filed the suit against the Defendants seeking the above stated reliefs. Despite service of pleadings by way of substituted service by advertising in “the Daily Nation and Taifa Leo” newspaper, the Defendants have failed and refused to enter an appearance and or defend the suit, and the matter proceeded for hearing as undefended.
22. The Defendants had earlier been served with a demand letter to vacate the suit properties, but they refused to vacate through a letter dated 20th November 2023 from their lower (exhibit No. 3). The Plaintiff adopted his Witness Statement as his evidence in chief and produced the Plaintiff's List of Documents dated 13th September 2024 as his exhibits 1 to 4 and Plaintiff's Further List of Documents dated 23rd January 2024 as exhibits 5 to 6, respectively. The Counsel relied on the provision of Sections 24, 25 & 26 of the Land Registration Act 2012 No.3 of 2012.
23. The Learned Counsel asserted that the Plaintiff had demonstrated and proved ownership of the suit properties and he was entitled to protection by the Law of quiet enjoyment. He relied on the provision of Section 107 of the Evidence Act, Cap. 80. He submitted that the Plaintiff had discharged his duty of burden of proof by proving that he was the registered owner of all those parcels of land registered as Land reference numbers KWALE/SHIMONI S.S/752, 753, 754,755, 760, 761, 762, 763, 764, 765, 766, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779 & 780.
24. He contended that the provision of Article 40 of the Constitution protects and guarantees Citizens' rights to property ownership and to derive a livelihood from the same. The survey report produced as Exhibit No.4 corroborated the Plaintiff's evidence that the Defendants have encroached on the said parcels of land and have developed the same. In the case of “Gateway Insurance Company Limited – Versus - Jamila Suleiman & Another [2018] e KLR, the Court held:-
“it is therefore my finding that based on the only evidence on record, which evidence was not challenged even in cross-examination, it cannot be successfully contended that the Respondents have failed to prove the said factual evidence”
In the famous case of “Giella Cassman Brown (1973), EA 358 laid down the principles for the Grant of Injunction as:
1. The Applicant has established he has a prima facie case with probability of success.
2. The Applicants will suffer irreparable injury which cannot be adequately compensated by way of damages.
3. If the Court is in doubt, it will decide on a balance of probabilities and on the balance of convenience.
In the case of:- “Mrao Limited – Versus - American Bank of Kenya Limited (2003) e KLR”, the Court defined a prima facie case as: “a prima case in Civil application includes but is not confined to a genuine and arguable case, it is a case on the material presented to itself will conclude that that there exists a right which has apparently been infringed by the opposite party as to call for an explanation”. from the later
25. The Learned Counsel submitted that by the Plaintiff proving ownership, which was not contested by the Defendants, he had established a prima facie case with high chances of success. The Plaintiff averred that the Defendants herein had trespassed on the suit properties and developed it extensively; he had been denied access to the suit properties, and despite using the local administration to have the Defendants vacate the suit premises, they had remained adamant in leaving. As a result of being denied access, he has suffered great financial loss due to the loss of business opportunities by not utilising the suit properties. The Defendants’ actions had denied the Plaintiff the right to earn a livelihood from the suit properties by being denied full, uninterrupted possession of the suit property.
26. Even in the event that the Defendants were in a position to compensate the Plaintiff by way of damages (which fact they had not demonstrated), he submitted that this Honourable Court should not sit down and allow the Plaintiff’s rights to be violated on the basis that the Defendants could compensate the Plaintiff by way of damages.
27. In the case of:- “Waithaka – Versus - Industrial and Commercial Development Corporation [2001] e KLR”, the Court held:-
“using the world normally the Court was recognizing that there are instances where an injunction can issue even if damages can be adequate remedy for the injury an Applicant may suffer some of the considerations to be borne in mind is the strength or otherwise of the Applicant’s case for a violation of its legal rights and the conduct of the parties. If the adversary has been shown to be high-handed or oppressive in its dealings with the Applicant, this may move a Court of equity to say money is everything at all times and in all circumstances and don’t think you can violate another citizen’s rights at the prime of damages”
28. Having demonstrated that the Plaintiff had proved the two conditions for the Grant of Orders of Injunction. He submitted that the balance of convenience lied in the favour of the Plaintiff. If the Orders sought herein were not granted, the Plaintiff would continue to suffer irreparable loss that could not be compensated by an award of damages.
29. In the case of:- “Anthony Ndun’gu Maina – Versus - Faith Wanjila (2017) eKLR”, the Court issued an eviction order against the Defendant after the Court had found that the Plaintiff was the owner of the suit property and was entitled to all the rights and privileges thereto as provided by Sections 24 and 25 of the Land Registration Act, No. 3 of 2012.
30. In the case of: “Willy Kipsongok Morogo – Versus - Albert K Morogo (2017) eKLR”, the Court held as follows:
“in the evidence on record shows that the suit parcel of land is registered in the name of the plaintiff and therefore is entitled to the protection under Section 24, 25 and 26 of the Land Registration Act.”
31. On whether the plaintiff is entitled to general damages for trespass. The Learned Counsel averred that from the foregoing, it was clear that the Plaintiff was the absolute, rightful and indefeasible owner of the suit property herein. He argued that the Defendants trespassed onto the Plaintiff’s lands and denied the Plaintiff use, occupation, possession and enjoyment of said lands. It was this loss of use and all the incidental rights that had been infringed by the Defendants that the Plaintiff now sought compensation for.
32. In the case of: “Duncan Nderitu Ndegwa – Versus - KP& LC Limited & Another (2013) eKLR”, where P. Nyamweya J. held that:-
“once a trespass to land is established, it is actionable per se, and indeed no proof of damage is necessary for the court to award general damages. This court accordingly awards an amount of Kshs 100,000/= as compensation for the infringement of the Plaintiff’s right to use and enjoy the suit property occasioned by the 1st and 2nd Defendants' trespass”
33. In Halsbury Laws of England 4th Edition, Vol 45 at para 26, 1503, it is provided as follows: -
a) If the Plaintiff proves the trespass, he is entitled to recover nominal damages, even if he has not suffered any actual loss.
b) If the trespass has caused the Plaintiff actual damage, he is entitled to receive such amount as will compensate him for his loss.
34. Thus, the Counsel averred that an award of Kenya Shillings Five Hundred Thousand (Ksh. 500,000/-) would be adequate compensation for general damages to trespass.
35. In conclusion, from the foregoing, the Plaintiff had demonstrated that he was the absolute registered owner of the suit properties. Further, he had proved that the Defendants had trespassed on the suit properties. He urged Court to allow the suit and the orders pleaded herein as prayed.
VI. Analysis and Determination
36. I have carefully read and analyzed all the pleadings herein, both the oral and all the documentary evidence adduced in court, the written submission, the cited authorities made by the Plaintiff and the relevant provisions of the Constitution of Kenya, 2010 and the statures.
37. From the pleadings filed, evidence adduced by and on behalf of the Plaintiff the issues that arise for this court’s determination is whether the Plaintiff is the registered owner of the suit properties, whether the Defendants trespassed and unlawfully occupied the suit properties and whether the Plaintiff is entitled to the reliefs sought, including damages, injunction, demolition, and eviction.
38. Where a Defendant fails to adduce evidence in support of the Defence and fails to attend court to prosecute the case, the Plaintiff’s evidence escapes the possibility of being controverted by defence evidence. It escapes the scrutiny of cross-examination by the Defendant. It therefore stands unchallenged and uncontroverted. However, the Plaintiff does not escape the burden and standard of proof which he has to satisfy and discharge in accordance with the law in order for his claim to succeed.
39. The provision of Sections 107 (1), 108 & 109 of the Evidence Act, Cap. 21 provides that: -
“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
40. Section 108 provides:
“The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.”
41. And section 109 provides:
“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 for by law that the proof of that fact shall lie on any particular person.”
42. I make reference to the case of:- “Charter House Bank Limited (Under Statutory management – Versus - Frank N. Kamau [2016] eKLR” the court of appeal when discussing the burden of proof on the Plaintiff in a situation where the Defendant failed to adduce evidence stated that: -
“we would therefore venture to suggest that before the trial court can conclude that the Plaintiff’s case is not controverted or is proved on a balance of probability by reason of the Defendant’s failure to call evidence, the court must be satisfied that the Plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence from the Defendant.
…………The Plaintiff must adduce evidence, which in the absence of rebutted evidence by the Defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to Judgement merely because the Defendant has not testified.’’
43. For the Honourable Court to arrive at a reasonable, fair and Equitable decision, it has crafted four (4) key issues for its determination. These are:-
a) Whether the Plaintiff is the registered owner of the suit properties.
b) Whether the Defendants trespassed and unlawfully occupied the suit properties.
c) Whether the Plaintiff is entitled to the reliefs sought, including damages, injunction, demolition, and eviction.
d) Who should bear the costs of the suit.
ISSUE No. a). Whether the Plaintiff is the registered owner of the suit properties.
44. Under this sub – title, the Honourable Court deciphers that the main substratum in this matter is based on the claim of legal ownership to the suit property. Flowing from that, whether there were any acts of encroachment and/or trespass and the consequential damages thereof. The main substratum in this matter is singular in nature in which the Honourable Court examines the question of whether the Plaintiff, Dr. Frank Kamunde Mwongera, has sufficiently proved ownership of the parcels of land listed as KWALE/SHIMONI S.S/752, 753, 754, 755, 760, 761, 762, 763, 764, 765, 766, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779, and 780 (Hereinafter referred to as “The suit parcels”) under Kenyan law. The Plaintiff has produced copies of title deeds and testified under oath that he is the registered proprietor.
45. As already indicated, despite of service, the Defendants have not entered appearance or filed a defence. The analysis is structured to address the statutory effect of registration, the evidential value of title deeds, the legal standard of proof, the effect of non-appearance by the Defendants, and the relevant judicial precedents, culminating in a determination of whether the Plaintiff has discharged the burden of proof required for a declaration of ownership.
46. The Land Registration Act, No. 3 of 2012 is the principal statute governing the registration of interests in land in Kenya. Section 7 of the LRA mandates the maintenance of a land registry in each registration unit, which includes a land register, parcel files, and supporting documents for each parcel of land. Registration is effected by an entry in the register, and the register contains a property section, proprietorship section, and encumbrance section, among others. The process of registration is designed to ensure that the register reflects the true state of ownership and interests in land. The Registrar is empowered to make information in the land registry accessible to any person upon payment of the prescribed fee, and certified copies of documents or register entries are admissible as evidence in court.
27. The Land Registration Act confers significant legal consequences upon registration. The effect and efficacy of the registration of land is well governed under the provisions of Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012. The provision of Section 24 of the Land Registration Act 2012 No. 3 of 2012 provides as follows:
“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.”
28. While the provisions of Section 25 (1) of the said Act further provides that:
“the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of the court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject to any lawful encumbrances, set out in this section.”
29. The starting point is Section 26 (1) of the Land Registration Act, No. 3 of 2012, which provides:
“The Certificate of Title issued by the Registrar upon registration, or to a purchaser of land upon transfer, shall be taken by all courts as prima facie evidence that the person named therein is the absolute and indefeasible owner, subject to encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, 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.”
47. To cap it up, it is evident that the right to own and acquire property in Kenya is premised under the provision of Article 40 of the Constitution of Kenya, 2010. The said Article provides as follows:-
“(1)Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—
(a) of any description; and
(b) in any part of Kenya.
(2) Parliament shall not enact a law that permits the State or any person-
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).
(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation-
(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or
(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that
(i) requires prompt payment in full, of just compensation to the person; and
(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.…”
48. Thus, once a party produces a duly registered title, the burden shifts to the challenger to demonstrate fraud, illegality, or procedural impropriety.
49. These provisions collectively establish the principle of indefeasibility of title, subject to statutory exceptions. It will be seen from the provision of Section 26 above, that the certificate of title is to be taken as prima facie evidence that the person named therein is the proprietor of that land. The provisions of Sections 24 and 25 above, in essence, do provide that it is the title holder who is entitled to the proprietary rights comprised in the subject land. A certificate of title is conclusive evidence of ownership and is prima facie evidence that the registered proprietor is the owner. Whereas Section 24 of the Land Registration Act gives the registered proprietor absolute rights over the registered land, Section 26 gives sanctity to title and makes provisions of when such title can be cancelled or revoked.
50. In civil proceedings, including land disputes, the standard of proof is on a balance of probabilities. The burden of proof lies on the party asserting a fact, as codified in the provision of Sections 107–109 of the Evidence Act, Cap 80. The Plaintiff must satisfy the court that it is more probable than not that he is the registered proprietor of the suit parcels. I have already provided for in this Judgment the evidentiary burden of proof in a formal proof matter hence I shall not diverge more into the issue.
51. The provision of Section 26 (1) of the Land Registration Act provides that a certificate of title is prima facie evidence of ownership. Section 35 further provides that certified copies of registered instruments, signed and sealed by the Registrar, are admissible in evidence as if they were originals. Section 34 entitles any person to obtain an official search and certified copies of register entries.
52. The courts have consistently held that production of a title deed or certified copy is sufficient to establish a prima facie case of ownership, unless there is evidence to the contrary, such as fraud, illegality, or procedural irregularity.
53. I have opined before in the case of:- “Said & 3 others – Versus - Kenya Rural Roads Authority (Environment & Land Case 198 of 2020) [2024] KEELC 4662 (KLR) (4 June 2024) (Judgment)” that: -
58. Under this sub – title, the Honourable Court deciphers that the main substratum in this matter is based on the claim of legal ownership to the suit property. Flowing from that, whether there were any acts of encroachment and/or trespass and the consequential damages thereof. It is trite law that for a person to prove legal ownership of land they must bear a prima facie conclusive evidence in form of documentation for instance a Certificate of Title. The proprietor and/or absolute owner ought to have it registered in his/her name. have a title for one to have acquired indefeasible title, interest and title on the land as vested in law. Ideally, the legal effect and efficacy of registration of the documentation is provided for under the provision of Section 24 of the Land Registration Act, No. 3 of 2012 which provides as follows:-
“ 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.”
59. Section 25 (1) of the said Act further provides that:-
“ the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of the court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject to any lawful encumbrances, set out in this section.”
60. Further, a certificate of title is prima facie held to be evidence of ownership of the stated land. This is provided for in Section 26(1) of the Land Registration Act which provides; -
“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge except
a. on grounds of fraud, or misrepresentation to which 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.”
54. The Supreme Court of Kenya, in the case of:- “Sehmi & another – Versus - Tarabana Company Limited & 5 others [2025] KESC 21 (KLR)”, clarified that a title deed is prima facie evidence of ownership, not conclusive proof. The court stated:
“Under the Land Registration Act, a certificate of title was to be regarded by courts as prima facie evidence that the person named therein was the absolute and indefeasible owner of the land. It was therefore no longer possible for a title holder to erect the certificate of title as a barrier to an inquiry into its legality or otherwise.”
55. This position is consistent with earlier Court of Appeal decisions, such as “Munyu Maina – Versus - Hiram Gathiha Maina [2013] eKLR” and “Arthi Highway Developers Limited – Versus - West End Butchery Limited & Others [2015] eKLR”, which held that once a title is challenged, the registered owner must go beyond producing the document and demonstrate how the land was lawfully acquired.
56. On the root of title and unlawful acquisition, the courts have emphasized the need to interrogate the root of title. In “Dina Management Limited – Versus - County Government of Mombasa & 5 others [2023] KESC 30 (KLR)”, the Supreme Court held:
“To establish whether the appellant is a bona fide purchaser for value, we must first go to the root of the title, right from the first allotment, as this is the bone of contention in this matter.”
57. Thus, the Plaintiff must not only produce the title deed but also, if challenged, demonstrate that the process leading to its issuance was lawful. Section 26 (1)(a) and (b) of the Land Registration Act provide that a certificate of title may be challenged on grounds of fraud or misrepresentation to which the proprietor is proved to be a party, or where the certificate was acquired illegally, unprocedurally, or through a corrupt scheme. The burden of proving fraud or illegality lies on the party alleging it, and the standard of proof is higher than a balance of probabilities, though not as high as beyond reasonable doubt.
58. Now turning to the instant case and applying these legal principles to the case. The Plaintiff, Dr. Frank Kamunde Mwongera, has produced copies of title deeds for the suit parcels and testified under oath that he is the registered proprietor. There is no evidence before the court to suggest that the titles were obtained fraudulently, illegally, or unprocedurally. From his filed pleadings and evidence adduced in Court, the Plaintiff has alleged that the Defendants have illegally trespassed onto his land. The Defendants have not entered appearance or filed a defence, and thus have not challenged the Plaintiff’s evidence.
59. The Land Registration Act provides that any person may conduct an official search at the land registry to verify the current registered proprietor of a parcel of land. The Plaintiff’s production of title deeds, which are presumed to be issued by the Registrar, is prima facie evidence of ownership. In practice, courts have accepted certified copies of title deeds, supported by official searches, as sufficient proof of registration in the absence of contrary evidence.
60. There is no suggestion on the record of any competing titles, allegations of fraud, or irregularity in the issuance of the Plaintiff’s titles. The Defendants’ failure to appear or file a defence means that no challenge has been raised to the Plaintiff’s root of title, nor has any evidence been adduced to suggest that the titles were acquired in breach of the law.
61. The Environment and Land Court has repeatedly held that in the absence of a defence, the Plaintiff’s uncontroverted evidence, particularly documentary evidence of registration, is sufficient to discharge the burden of proof. The court in the case of:- “Kimaru – Versus - Land Registrar Kilifi & 2 others [2024] KEELC 14055 (KLR)” stated:
“Once proof of ownership is tendered then the holder of the documents showing the entitled to the protection of the law. There is no doubt that such proof will be on a balance of probabilities, but the court must be left in no doubt that the holder of the documents proved is entitled to the property.”
62. Section 26(1)(a) of the Land Registration Act provides that a certificate of title may be challenged on the ground of fraud or misrepresentation to which the proprietor is proved to be a party. The courts have held that fraud must be specifically pleaded and strictly proved, the burden lying on the party alleging it. Section 26(1)(b) allows for challenge where the certificate of title was acquired illegally, unprocedurally, or through a corrupt scheme. The Supreme Court in “Dina Management (supra)” and “Sehmi (supra)” clarified that even an innocent purchaser is not protected if the root of title is tainted by illegality or irregularity.
63. Where there are competing titles or allegations of forgery, the registered proprietor must go beyond producing the title deed and demonstrate the lawfulness of the acquisition, tracing the root of title to its lawful origin. However, in the absence of any such challenge, the production of the title deed suffices.
64. On Adverse Possession, Section 38 of the Limitation of Actions Act, Cap. 22 provides that a person who has been in adverse possession of land for at least 12 years may apply to be registered as proprietor. The right to claim adverse possession accrues when the registered owner omits or neglects to take action against the possessor for the statutory period. Adverse possession operates as an exception to the indefeasibility of title. However, in the present case, there is no evidence or claim of adverse possession against the Plaintiff’s registered titles. The Defendants have not raised any such claim, nor is there evidence of occupation adverse to the Plaintiff’s interests.
65. On transmission and succession, where titles are issued following succession or transmission, the Plaintiff must demonstrate compliance with the Law of Succession Act, including confirmation of grant and lawful transfer to the beneficiary. In the present case, there is no suggestion that the Plaintiff’s titles were acquired through transmission or succession, nor is there any challenge to the process by which the titles were issued.
66. The courts require that, if challenged, the Plaintiff must demonstrate the root of title, tracing the chain of ownership from the original allocation or first registration to the present. In the absence of a challenge, the production of the title deed is sufficient.
67. The Plaintiff in this case was required to produce the original or certified copy of the title deed, supported by an official search or certified copy of the register entry; the Court may also require evidence of payment of rates, land rent, and compliance with statutory requirements for transfer. The Plaintiff’s sworn testimony as to ownership, supported by documentary evidence, is admissible and sufficient in the absence of contrary evidence. The court may, in appropriate cases, direct the Land Registrar to produce the parcel file or green card for the suit parcels to confirm the registered proprietor. In the present case, the Plaintiff’s production of title deeds, unchallenged by the Defendants, is sufficient.
68. In that case being that the Plaintiff has proved registration and possession of the suit properties a makes a declaration of ownership. The Plaintiff, Dr. Frank Kamunde Mwongera, has sufficiently proved, on a balance of probabilities, that he is the registered proprietor of the parcels of land listed as KWALE/SHIMONI S.S/752, 753, 754, 755, 760, 761, 762, 763, 764, 765, 766, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779, and 780.
69. This finding is based on the fact that the Plaintiff has produced title deeds for the suit parcels and testified under oath as to his registration as proprietor. There is no evidence of fraud, illegality, or procedural irregularity in the acquisition of the titles. The Defendants have not entered appearance or filed a defence, and thus have not challenged the Plaintiff’s evidence. The statutory and judicial framework establishes that, in the absence of a challenge, the production of a title deed is sufficient to prove ownership.
ISSUE No. B: Whether the Defendants trespassed and unlawfully occupied the suit properties.
70. Under this sub‑title we examine whether the Defendants, as alleged by the Plaintiff, unlawfully entered, occupied, and constructed structures on the suit properties without any colour of right or lawful justification.
71. The Plaintiff testified that in or about the year 2022, the Defendants invaded the parcels of land registered in his name, erected both temporary and permanent structures, and thereby denied him access and quiet enjoyment. This testimony was supported by the Surveyor’s Report dated 20th June 2024 (produced as Plaintiff Exhibit Number 4), which confirmed the encroachment and illegal developments.
72. Trespass to land is defined under the provision of Section 3 (1) of the Trespass Act, Cap 294 Laws of Kenya as unlawful entry upon land in possession of another. It is actionable per se, meaning that proof of entry without consent is sufficient to establish liability, regardless of whether actual damage is shown. The Court of Appeal in the case of:- “M’Mukanya – Versus - M’Mbijiwe [1984] eKLR” emphasized that any unauthorized entry upon another’s land constitutes trespass.
73. In the present case, the Defendants failed to enter appearance or file any defence despite proper service, including service by advertisement published in two local newspapers - “the Daily Nation” and “Taifa Leo”. Their silence left the Plaintiff’s evidence uncontroverted. The Court is therefore entitled to accept the Plaintiff’s testimony and documentary evidence as credible and sufficient proof of trespass.
74. The Plaintiff further testified that he reported the matter to Shimoni Police, who advised him to first obtain a court order before enforcement could be undertaken. This sequence of events demonstrates that the Defendants’ occupation was hostile, deliberate, and without lawful justification.
75. Accordingly, the Court finds that the Defendants unlawfully entered, occupied, and constructed structures on the Plaintiff’s land, thereby committing acts of trespass. Their continued presence amounted to a violation of the Plaintiff’s proprietary rights under Article 40 of the Constitution of Kenya, 2010, which guarantees the right to property.
ISSUE No. C: Whether the Plaintiff is entitled to the reliefs sought, including damages, injunction, demolition, and eviction
76. Under this sub‑title we examine whether, having proved ownership and trespass, the Plaintiff was entitled to the remedies prayed for in the Plaint, namely: permanent injunction, demolition orders, eviction, general damages for trespass. The Plaintiff’s evidence demonstrated that the Defendants unlawfully entered and occupied the suit properties, erected structures, and denied him quiet enjoyment. The Defendants failed to contest the claim despite proper service. In such circumstances, the Court is empowered under the provision of Section 13 (7)(a) of the Environment and Land Court Act, 2011 to grant appropriate reliefs including injunctions, demolition, eviction, damages, and costs.
77. On the Permanent injunction, a permanent injunction is an equitable remedy granted to protect proprietary rights where trespass or unlawful interference has been proved. The statutory foundation lies in Section 13(7)(a) of the Environment and Land Court Act, 2011, which empowers the Court to grant “interim or permanent preservation orders including injunctions.” Further, Order 40 of the Civil Procedure Rules, 2010 provides the procedural framework for injunctions, while Article 40 of the Constitution of Kenya, 2010 guarantees the right to property and obliges the Court to protect it against arbitrary deprivation.
78. In the case of:- “Lesh La Investments Limited – Versus - Halima Hassan & 106 Others [2016] KEELC 775 (KLR)”, the Environment and Land Court held that where unlawful occupation and trespass are proved, a permanent injunction must issue to restrain the Defendants from interfering with the Plaintiff’s proprietary rights. Further in the case of “Kaingu Kalume Mwanongo – Versus - Boniface Wanje Kenga [2020] eKLR”, the Court granted a permanent injunction after finding that the Defendant had unlawfully occupied the Plaintiff’s land, emphasizing that trespass is actionable per se and the registered owner is entitled to quiet possession. More recently, in the case of:- “Walia – Versus - County Government of Nakuru [2024] KEELC 5070 (KLR)”, the Court reiterated that an injunction is necessary to protect registered proprietors from unlawful encroachment and to preserve the sanctity of title.
79. The Plaintiff produced title deeds proving ownership and a surveyor’s report confirming encroachment. His testimony established that the Defendants had erected structures and denied him access. The Defendants failed to contest the claim despite proper service. In these circumstances, the Court is satisfied that the Plaintiff’s proprietary rights were infringed and that damages alone would not suffice to protect him from continuing trespass.
80. Accordingly, the Court finds that the Plaintiff was entitled to a permanent injunction restraining the Defendants, their servants, agents, or anyone acting under their instructions from entering upon, occupying, constructing, or otherwise interfering with the suit properties. This remedy is necessary to secure the Plaintiff’s constitutional right to property and to prevent further unlawful acts.
81. On whether the Court should issue demolition and eviction orders, the Honourable Court shall examine whether the Plaintiff was entitled to demolition and eviction orders against the Defendants, having proved ownership and trespass. The Court is empowered under the provision of Section 13(7)(a) of the Environment and Land Court Act, 2011 to grant “orders for demolition, eviction, or any other relief as it deems fit.”
82. Further, the Land Laws (Amendment) Act, 2016, through Sections 152A–152I of the Land Act, No. 6 of 2012 introduced a clear statutory framework for eviction of unlawful occupants. Section 152A provides that “a person shall not unlawfully occupy private, community or public land.” Section 152B empowers the registered owner to apply for eviction orders, while Section 152E – 152F outline the procedure for lawful eviction, including notice and enforcement.
83. These provisions were enacted to ensure that eviction is carried out lawfully, with respect for due process, while protecting the rights of registered proprietors. Kenyan courts have consistently upheld demolition and eviction orders where unlawful occupation is proved. In the case of:- “Shiramba & another – Versus - Odwogo & another [2025] KEELC 4167 (KLR)”, the Environment and Land Court at Kakamega granted demolition and eviction orders after finding that the Defendants had erected illegal structures on the Plaintiff’s land, holding that the sanctity of title must be preserved.
84. In the case of:- “Kisinzi – Versus - Kisinzi [2023] KEELC 15732 (KLR)”, the Court emphasized that once a valid judgment is obtained confirming trespass, eviction orders are the natural remedy to restore possession to the rightful owner. Further in the case of “Kiarie – Versus - Thiongo & another [2024] KEELC 4948 (KLR)”, the Court ordered demolition of structures erected on land without the consent of the registered proprietor, reiterating that unlawful occupation cannot be allowed to subsist.
85. The Plaintiff produced title deeds proving ownership and a surveyor’s report confirming encroachment and illegal structures. His testimony established that the Defendants had erected both temporary and permanent structures and denied him access. The Defendants failed to contest the claim despite proper service. In these circumstances, demolition and eviction orders are necessary to restore the Plaintiff’s proprietary rights, remove unlawful structures, and prevent continued occupation. The Court is satisfied that such orders are consistent with the statutory framework under the Land Act and the jurisprudence of the Environment and Land Court.
86. Accordingly, the Court finds that the Plaintiff was entitled to demolition orders directing removal of all structures erected by the Defendants on the suit properties, and eviction orders directing the Defendants to vacate the suit properties forthwith, failing which enforcement shall be undertaken with the assistance of the Court bailiff and the Officer Commanding Station (OCS) Shimoni Police Station.
87. On the general damages for trespass. Section 24 (a) of the Land Registration Act No. 2 of 2012 provides for the interests a person acquires upon registration of land and states;
“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; and”
88. Section 25 provides for the rights of such a proprietor and states that;
“The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject-
89. Section 152 A of the Land Act No. 6 of 2012 prohibits unlawful occupation of land and states that “A person shall not unlawfully occupy private, community or public land.”
90. The above rights, interests and privileges accorded to a registered proprietor of land apply to the Plaintiff in this case having established that he is the proprietor of the suit properties. Black’s Law Dictionary 10th Edition at pg. 1642 defines trespass as unlawful acts committed against the person or property of another especially wrongful entry of another's land.
91. Trespass is actionable per se under 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.”
92. Further, the provision of Article 40 of the Constitution of Kenya, 2010 guarantees the right to property and obliges the Court to protect it against arbitrary deprivation. Where trespass is established, damages serve both compensatory and deterrent purposes.
93. The Court of Appeal dealt exhaustively with considerations for the award of general and compensatory damages. In the case of “Kenya Power & Lighting Company Ltd – Versus - Ringera & 2 others (Civil Appeal E247 & E248 of 2020 (Consolidated)) [2022] KECA 104 (KLR) (4 February 2022) (Judgment)” where the Court stated as follows;
The principles both parties have relied upon in their invitation for the Court to decide either way are those enunciated by the predecessor of this Court and either crystallized or restated by this Court which we find prudent to distill and replicate as hereunder:
i) Harlsburys Laws of England 4th Edition Vol. 45 at para 26 pg 1503, namely, the owner of the land is entitled to nominal damages where there is no actual damage occasioned to the owner by the trespass, such amounts as will compensate the owner for loss of use resulting from the damage caused by the trespass, reasonable damages are payable where the trespasser has made use of the owner’s land, exemplary damages are payable where the trespassers conduct towards the owner is not only oppressive but also cynical and carried out in deliberate disregard of the right of the owner of the land with the object of making a gain by his/her unlawful conduct, general damages may be increased where the trespass is accompanied by aggravating circumstances to the detriment of the owner of the land.
ii) Duncan Nderitu Ndegwa – Versus - Kenya Pipeline Company limited & Another [2013] eKLR - damages payable for trespass are the amount of diminution in value or the loss of reinstatement of the land with the overriding principle being to put the claimant in the position he was in prior to the infliction of harm.
iii) Philip Ayaya Aluchio – Versus - Crispinus Ngayo [2014] eKLR, - the measure of damages for trespass is the difference in the value of the plaintiffs’ property immediately before and immediately after the trespass or the cost of restoration whichever is less.
iv) Ephantus Mwangi & Another – Versus -Duncan Mwangi [1981 – 1988] I KAR 278, - an appellate court is not bound to accept and act on the trial court’s findings of fact if it appears clearly that the trial court failed to take account of particular circumstances or probabilities material to an estimate of evidence. b) a Court of Appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.
v) Kiambu Dairy, Farmers Co-operative Society Limited – Versus - Rhoda Njeri & 30 Others [2018] eKLR, - the extend of an award of compensatory damages lies in the discretion of the trial court and interference therewith on appeal must be approached with a measure of circumspection and well settled principles.
vi) Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited – Versus - Janevans Limited [2015] eKLR, - whether the claim is in contract or tort, the only damages to which an aggrieved party is entitled to is the pecuniary loss;(b) the accruing awardable damages is aimed at putting the aggrieved party into as good a position as if there had been no such breach or interference. In other words, in the position it/he/she was in with regard to the object trespassed upon before the onset of such a trespass;(c) it is meant to cushion the aggrieved party against the expenses caused as a result of the trespass and loss of benefit over the period of the duration of the trespass.
94. The Plaintiff testified that the Defendants’ unlawful occupation deprived him of quiet possession and enjoyment of the suit properties, causing financial loss and denial of business opportunities. The trespass was prolonged, hostile, and deliberate, as confirmed by the surveyor’s report and uncontroverted testimony. In these circumstances, damages are necessary to compensate the Plaintiff for loss of use and to deter the Defendants and others from similar unlawful conduct. Considering the scale of encroachment, the number of parcels affected, and the duration of occupation, the Court finds that an award of a sum of Kenya Shillings Five Million (Kshs. 5,000,000/) is just and reasonable.
95. Accordingly, the Court finds that the Plaintiff was entitled to general damages for trespass, assessed at a sum of Kenya Shillings Five Million (Kshs. 5,000,000/=), payable by the Defendants jointly and severally.
ISSUE No. d). Who should bear the costs of the suit
96. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that a party is granted at the conclusion of any legal process or proceedings in any litigation. The Black Law Dictionary defines cost to means:-
“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.
97. The provision of Section 27 of the Civil Procedure Act, Cap, 21 grants the High Court discretionary power in the award of costs which ordinarily follow the event unless the Court for good reasons orders otherwise. Section 27 (1) of the Civil Procedure Act provides as follows;-
“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”
98. Additionally, the provision provides for ‘costs of and incidental to all suit or application’ which expression includes not only costs of suit but also costs of application in suit as described by Mulla (supra) at 536. Furthermore, Rtd. Justice Richard Kuloba in his book Judicial Hints on Civil Procedure, 2nd Edition, 2005 at 95 notes that the words ‘the event’ means the result of all the proceedings incidental to the litigation. Accordingly, the event means the result of the entire litigation. The order as to costs as provided for under Section 27 remains at the discretion of the court.
99. The award of costs is therefore not cast in stone but courts have ultimate discretion. In exercising this discretion, courts must not only look at the outcome of the suit but also the circumstances of each case. In the case of: “Morgan Air Cargo Limited – Versus - Everest Enterprises Limited [2014] eKLR” the court noted that;
“The exercise of the discretion, however, depends on the circumstances of each case. Therefore, the law in designing the legal phrase that ‘’Cost follow the event’’ was driven by the fact that there could be no ‘’one-size-fit-all’’ situation on the matter. That is why section 27(1) of the Civil Procedure Act is couched the way it appears in the statute; and even all literally works and judicial decisions on costs have recognized this fact and were guided by and decided on the facts of the case respectively. Needless to state, circumstances differ from case to case.”
100. In this case, as this Honourable Court has opined above, the Plaintiff has proved his claim against the Defendants herein and therefore shall have the costs of the suit.
VII. Conclusion and Disposition
101. In the end, having caused such an in-depth analysis to the framed issues herein, the Honourable Court on the preponderance of probabilities finds that the Plaintiff has established their case against the Defendants herein. Accordingly and for avoidance of any doubts, the Honourable Court makes the following orders for disposal thereof:-
a) THAT Judgment be and is hereby entered in favour of the Plaintiff as per the Plaint dated 13th September 2024 in its entirety.
b) THAT a Permanent Injunction be and is hereby issued restraining the Defendants, their servants, agents, or anyone acting under their instructions from entering upon, occupying, constructing, or otherwise interfering with the suit properties known as KWALE/SHIMONI S.S/752, 753, 754, 755, 760, 761, 762, 763, 764, 765, 766, 769, 770, 771, 772, 773, 774, 775, 776, 777, 778, 779 & 780.
c) THAT an order of demolition be and is hereby issued directing removal of all structures erected by the Defendants on the suit properties. In default, the Plaintiff shall be at liberty to enforce demolition with the assistance of the Court bailiff and the Officer Commanding Station (OCS) Shimoni Police Station.
d) THAT an order of eviction be and is hereby issued directing the Defendants to vacate the suit properties forthwith. In default, eviction shall be carried out under the supervision of the Court bailiff and the OCS Shimoni Police Station in accordance with the provision of Sections 152A, B, C, D, E & F where applicable of the Land Act, No. 6 of 2012 (as amended by the Land Laws Amendment Act, 2016).
e) THAT General Damages for trespass be and are hereby awarded to the Plaintiff in the sum of Kenya Shillings Five Million (Kshs. 5,000,000/=), payable by the Defendants jointly and severally.
f) THAT interest on (e) from the date of filing the suit until payment in full.
g) THAT the Plaintiff is granted liberty to apply for any further orders necessary for enforcement of this judgment.
h) THAT the costs of the suit shall be in favour of the Plaintiff, together with interest at court rates from the date of judgment until payment in full.
IT IS SO ORDERED ACCORDINGLY.
JUDGMENT DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS SIGNED AND DATED AT KWALE THIS……16TH ….………DAY OF ………MARCH…….……..2026.
Judgement delivered in the presence of:
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Mungai Kamau Advocate for the Plaintiff.
c) No appearance for the 1st to 19th Defendants.