Introduction
The Plaintiffs commenced this suit vide an Amended Plaint dated 17th November, 2023 against the Defendant seeking the following orders:
a) An order of permanent injunction restraining the Defendant, their servants and/or agents or any other person whatsoever acting on instructions and authority of the Defendant whether express or implied from taking possession, selling, disposing, alienating, charging, advertising for sale or in any manner dealing with the property known as LONGONOT/KIJABE BLOCK 1/22 (ERERI).
b) An order of eviction of the Defendant from LONGONOT/KIJABE BLOCK 1/22 (ERERI).
c) General damages for trespass on all that parcel of land known as LONGONOT/KIJABE BLOCK 1/22 (ERERI).
d) Costs and interest of the suit.
The Defendant filed his Statement of Defence dated 21st May, 2023 where he denied the allegations in the Amended Plaint.
The Defence case was closed due to non-attendance and the Plaintiff’s case proceeded for hearing.
Plaintiff’s case
Patrick Thuo Chege testified as PW1 where his witness statement dated 6th January, 2023 was adopted as his evidence in chief. It was his testimony that he was the Plaintiff’s younger brother. He also produced his bundle of documents as PEX 1-PEX 7. He testified that he was in court due to invasion on the land by the Defendant. He testified that they had to evict him.
Victor Kiprono Kirui PW2 testified that he was a government surveyor stationed at Naivasha. It was his testimony that they had received a court order to do a joint survey. He did the same and produced the report dated 17th July, 2023 as PEX 8. He further testified that he had a report following a dispute on the suit property dated 12th July, 2022. He added that it was dated prior to PEX 8 and he produced it as PEX 9. It was his testimony that the report was based on a dispute where the disputing parties claimed ownership of Block 1/22. He went on to testify that there was encroachment based on the fact that the property was in KFS land. He added that the developed property fell into Block 1/22.
That marked the close of the Plaintiff’s case.
Submissions
Counsel for the Plaintiff filed his submissions dated 21st March, 2025 where he gave a background of the case and identified two issues for determination. The first issue was whether the Plaintiff is entitled to an order of permanent injunction and eviction against the Defendant for trespassing on the suit property known as LONGONOT/KIJABE BLOCK 1/22 belonging to the Plaintiff. He submits that both PW1 and PW2 evidence were uncontroverted by the Defendant who never appeared during the hearing. He further submits that the Plaintiff proved a prima facie case against the Defendant and is therefore entitled to orders of permanent injunction restraining the Defendant from encroaching, trespassing or interfering with the suit parcel of land and eviction of the Defendant. He relied on the case of Kenya Power & Lighting Co. Ltd Vs Sheriff Molana Habib (2018) eKLR and Section 107 of the Evidence Act. He also relied on Section 24 and 25 of the Land Registration Act. It was his submission that the Plaintiff was the absolute indefeasible proprietor of LONGONOT KIJABE BLOCK 1/22 with all the rights and privileges. He added that the Plaintiff is also entitled to quiet, peaceful enjoyment, and occupation of the suit property.
On the issue of costs, he submits that the Plaintiff proved a prima facie case against the Defendant who is a trespasser. He further submits that the Plaintiff endured untold anxiety, losses and expenses at the hands of the Defendant. He urged the court to grant the Plaintiff general damages as well as costs of this suit.
Analysis and Determination
I have considered the pleadings, evidence on record and submissions and I am of the view that the following issues arise for determination:
a) Who is the registered proprietor of the suit property?
b) Whether there was trespass by the Defendant onto the suit property.
c) Whether the Plaintiff is entitled to the prayers sought.
d) Who should bear the costs of the suit.
Who is the registered proprietor of the suit property?
To begin with, it is noteworthy that the Defendant filed a defence dated 21st May, 2023 but failed to adduce any evidence in support of his claim. It is therefore a fact that the Plaintiff’s evidence remained uncontroverted. In the case of Charterhouse Bank Limited (Under Statutory Management) V Frank N. Kamau [2016] KECA 153 (KLR) the court found as follows:
“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 probabilities 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 by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal 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. The proposition that failure by the defendant to call evidence lessens the burden on the plaintiff to make out his case on a balance of probabilities…”
It was PW1’s evidence that the Defendant had trespassed onto the Plaintiff’s suit parcel LONGONOT/KIJABE 1/22. Section 26 (i) of the Registered Land Act provides that:
“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 and 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.”
It is a fact that the Plaintiff produced a copy of the title deed to the dispute land which confirmed that the deceased was the registered owner of the suit property. I have also confirmed that a grant was issued on 29th October, 2015 to the Plaintiff to administer the deceased estate. It is also a fact that the said title has not been challenged by the Defendant. It is this court’s view that the title being an indefeasible evidence of ownership of land, the Plaintiff is therefore the registered proprietor of the suit property.
Whether there was trespass by the Defendant onto the suit property.
On 15th June, 2023 Lady Justice L. A. Omollo issued orders and directed the District Surveyor, Naivasha, to conduct a joint survey in order to establish the extent of the Plaintiff’s parcel LONGONOT/KIJABE 1/22 and land parcel L.R NO 12762. PW2 the government surveyor produced the report dated 17th July, 2023 (PEX 8). In his conclusion, he made the following finding:
“That the disputed area is under occupation with an existing temporary residential home and existing cultivation marked by live hedge defining the extent…”
The report was adopted as the Plaintiff’s exhibit in support of his case and thus the report remains unchallenged. This court therefore associates itself with the said findings and conclusions arrived at by the Surveyor Naivasha and finds that the Defendant has encroached and trespassed into the Plaintiff’s land parcel.
Whether the Plaintiff is entitled to the prayers sought.
Having found that the Defendants trespassed into the Plaintiff’s land, the Plaintiff is therefore entitled to the prayers sought in his amended plaint dated 17th April, 2023. In the case of Duncan Nderitu Ndegwa v. KP& LC Limited & Another (2013) eKLR the court held as follows:
“…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 of the infringement of the Plaintiff’s right to use and enjoy the suit property occasioned by the 1st and 2nd Defendants trespass”
Who should bear the costs of the suit.
Costs generally follow the event, and in the present case, since the Plaintiff has been inconvenienced, I find that he is entitled to costs of the suit.
The upshot of the above is that the Plaintiff has proved his case on a balance of probabilities. I therefore enter judgement for the Plaintiff against the Defendant in the following terms: -
a) A Declaration that the Plaintiff is the lawful and/or registered proprietor of the suit land, LONGONOT/KIJABE BLOCK 1/22 (ERERI).
b) A Permanent Injunction is hereby issued restraining the Defendant, their servants and/or agents or any other person whatsoever acting on instructions and authority of the Defendant whether express or implied from taking possession, selling, disposing, alienating, charging, advertising for sale or in any manner dealing with the property known as LONGONOT/KIJABE BLOCK 1/22 (ERERI).
c) An order of vacant possession on LONGONOT/KIJABE BLOCK 1/22 (ERERI) be and is hereby issued.
c) Kshs. 200,000/= being General Damages for trespass.
d) Costs of the suit
It is so ordered.
The Plaintiffs commenced this suit vide an Amended Plaint dated 17th November, 2023 against the Defendant seeking the following orders:
a) An order of permanent injunction restraining the Defendant, their servants and/or agents or any other person whatsoever acting on instructions and authority of the Defendant whether express or implied from taking possession, selling, disposing, alienating, charging, advertising for sale or in any manner dealing with the property known as LONGONOT/KIJABE BLOCK 1/22 (ERERI).
b) An order of eviction of the Defendant from LONGONOT/KIJABE BLOCK 1/22 (ERERI).
c) General damages for trespass on all that parcel of land known as LONGONOT/KIJABE BLOCK 1/22 (ERERI).
d) Costs and interest of the suit.
The Defendant filed his Statement of Defence dated 21st May, 2023 where he denied the allegations in the Amended Plaint.
The Defence case was closed due to non-attendance and the Plaintiff’s case proceeded for hearing.
Plaintiff’s case
Patrick Thuo Chege testified as PW1 where his witness statement dated 6th January, 2023 was adopted as his evidence in chief. It was his testimony that he was the Plaintiff’s younger brother. He also produced his bundle of documents as PEX 1-PEX 7. He testified that he was in court due to invasion on the land by the Defendant. He testified that they had to evict him.
Victor Kiprono Kirui PW2 testified that he was a government surveyor stationed at Naivasha. It was his testimony that they had received a court order to do a joint survey. He did the same and produced the report dated 17th July, 2023 as PEX 8. He further testified that he had a report following a dispute on the suit property dated 12th July, 2022. He added that it was dated prior to PEX 8 and he produced it as PEX 9. It was his testimony that the report was based on a dispute where the disputing parties claimed ownership of Block 1/22. He went on to testify that there was encroachment based on the fact that the property was in KFS land. He added that the developed property fell into Block 1/22.
That marked the close of the Plaintiff’s case.
Submissions
Counsel for the Plaintiff filed his submissions dated 21st March, 2025 where he gave a background of the case and identified two issues for determination. The first issue was whether the Plaintiff is entitled to an order of permanent injunction and eviction against the Defendant for trespassing on the suit property known as LONGONOT/KIJABE BLOCK 1/22 belonging to the Plaintiff. He submits that both PW1 and PW2 evidence were uncontroverted by the Defendant who never appeared during the hearing. He further submits that the Plaintiff proved a prima facie case against the Defendant and is therefore entitled to orders of permanent injunction restraining the Defendant from encroaching, trespassing or interfering with the suit parcel of land and eviction of the Defendant. He relied on the case of Kenya Power & Lighting Co. Ltd Vs Sheriff Molana Habib (2018) eKLR and Section 107 of the Evidence Act. He also relied on Section 24 and 25 of the Land Registration Act. It was his submission that the Plaintiff was the absolute indefeasible proprietor of LONGONOT KIJABE BLOCK 1/22 with all the rights and privileges. He added that the Plaintiff is also entitled to quiet, peaceful enjoyment, and occupation of the suit property.
On the issue of costs, he submits that the Plaintiff proved a prima facie case against the Defendant who is a trespasser. He further submits that the Plaintiff endured untold anxiety, losses and expenses at the hands of the Defendant. He urged the court to grant the Plaintiff general damages as well as costs of this suit.
Analysis and Determination
I have considered the pleadings, evidence on record and submissions and I am of the view that the following issues arise for determination:
a) Who is the registered proprietor of the suit property?
b) Whether there was trespass by the Defendant onto the suit property.
c) Whether the Plaintiff is entitled to the prayers sought.
d) Who should bear the costs of the suit.
Who is the registered proprietor of the suit property?
To begin with, it is noteworthy that the Defendant filed a defence dated 21st May, 2023 but failed to adduce any evidence in support of his claim. It is therefore a fact that the Plaintiff’s evidence remained uncontroverted. In the case of Charterhouse Bank Limited (Under Statutory Management) V Frank N. Kamau [2016] KECA 153 (KLR) the court found as follows:
“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 probabilities 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 by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal 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. The proposition that failure by the defendant to call evidence lessens the burden on the plaintiff to make out his case on a balance of probabilities…”
It was PW1’s evidence that the Defendant had trespassed onto the Plaintiff’s suit parcel LONGONOT/KIJABE 1/22. Section 26 (i) of the Registered Land Act provides that:
“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 and 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.”
It is a fact that the Plaintiff produced a copy of the title deed to the dispute land which confirmed that the deceased was the registered owner of the suit property. I have also confirmed that a grant was issued on 29th October, 2015 to the Plaintiff to administer the deceased estate. It is also a fact that the said title has not been challenged by the Defendant. It is this court’s view that the title being an indefeasible evidence of ownership of land, the Plaintiff is therefore the registered proprietor of the suit property.
Whether there was trespass by the Defendant onto the suit property.
On 15th June, 2023 Lady Justice L. A. Omollo issued orders and directed the District Surveyor, Naivasha, to conduct a joint survey in order to establish the extent of the Plaintiff’s parcel LONGONOT/KIJABE 1/22 and land parcel L.R NO 12762. PW2 the government surveyor produced the report dated 17th July, 2023 (PEX 8). In his conclusion, he made the following finding:
“That the disputed area is under occupation with an existing temporary residential home and existing cultivation marked by live hedge defining the extent…”
The report was adopted as the Plaintiff’s exhibit in support of his case and thus the report remains unchallenged. This court therefore associates itself with the said findings and conclusions arrived at by the Surveyor Naivasha and finds that the Defendant has encroached and trespassed into the Plaintiff’s land parcel.
Whether the Plaintiff is entitled to the prayers sought.
Having found that the Defendants trespassed into the Plaintiff’s land, the Plaintiff is therefore entitled to the prayers sought in his amended plaint dated 17th April, 2023. In the case of Duncan Nderitu Ndegwa v. KP& LC Limited & Another (2013) eKLR the court held as follows:
“…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 of the infringement of the Plaintiff’s right to use and enjoy the suit property occasioned by the 1st and 2nd Defendants trespass”
Who should bear the costs of the suit.
Costs generally follow the event, and in the present case, since the Plaintiff has been inconvenienced, I find that he is entitled to costs of the suit.
The upshot of the above is that the Plaintiff has proved his case on a balance of probabilities. I therefore enter judgement for the Plaintiff against the Defendant in the following terms: -
a) A Declaration that the Plaintiff is the lawful and/or registered proprietor of the suit land, LONGONOT/KIJABE BLOCK 1/22 (ERERI).
b) A Permanent Injunction is hereby issued restraining the Defendant, their servants and/or agents or any other person whatsoever acting on instructions and authority of the Defendant whether express or implied from taking possession, selling, disposing, alienating, charging, advertising for sale or in any manner dealing with the property known as LONGONOT/KIJABE BLOCK 1/22 (ERERI).
c) An order of vacant possession on LONGONOT/KIJABE BLOCK 1/22 (ERERI) be and is hereby issued.
c) Kshs. 200,000/= being General Damages for trespass.
d) Costs of the suit
It is so ordered.