JOSEPH KIEMA KASINA VS MOSES MUTUNGA AND THE COUNTY GOVERNMENT OF KITUI

1. This suit was instituted through the amended plaint dated 11th September 2017 and amended on 17th November 2017.  The Plaintiff claims that on or around 1st July 1998, the 3rd Defendant issued a letter of allotment of Plot No. B3 Zone 035, located in Kitui County to one Benjamin Mwanzia Nzetu who paid all the required charges.
2. Vide an Agreement dated 11th April 2012, the said Benjamin Mwanzia Nzetu sold him the suit property and duly informed the 3rd Defendant by completing a transfer form and paying all the required fees on 12th April 2012. An impression was made that the suit property would be transferred to the Plaintiff on 5th July 2012. The Plaintiff then took over paying annual ground rates and rent for the suit property since 24th October 2012.
3. On or around the 28th of June 2017, the Plaintiff discovered that someone had trespassed on the suit property and interfered with the developments he had carried out. Upon inquiry, he found out that the said trespasser, the 2nd defendant, had ordered the 1st defendant to carry on the illegal developments, insisting that he was the legal owner.
4. The Plaintiff lodged a complaint with the 3rd Defendant on 4th July 2017 and 21st August 2017, but received no reply. The 1st Defendant did not substantiate his claim or produce any legal document to prove his claim over the suit property.
5. Despite the Plaintiff’s efforts to pursue and obtain a letter of allotment over the suit property, he states that the same is yet to be issued to him even after it was approved by the said 3rd Defendant’s relevant committee, the Works, Housing and Town Planning Committee. The Plaintiff is thus convinced that the 1st and 2nd defendants have connived to deprive him of the suit property.
6. Despite the Plaintiff’s various notices to the 1st Defendant requiring him to withhold and/or stop any further developments on the said suit land, he has been unwilling/reluctant to do so and the Plaintiff has suffered and continues to suffer substantial loss and damages.
7. The Plaintiff therefore prays for the following orders:
a) A declaration that Plot No.B3 Zone 035, located in Kitui County, lawfully belongs to the Plaintiff.
b) A permanent injunction restraining the Defendants by themselves, their agents, workers, employees, servants and/or any other person(s) whomsoever, acting on their behalf, from alienating, grabbing, constructing, trespassing and/or in any other matter whatsoever from interfering with the Plaintiff’s Plot No.B3 Zone 035 located in Kitui County.
c) A mandatory injunction ordering the 1st Defendant and the 2nd Defendant to pull down, demolish and/or remove all the structures illegally erected, built and/or constructed by the 1st Defendant on the said Plot No.B3 Zone 035, located in Kitui County hereinabove described, failure to which the Plaintiff be at liberty to do so at his own expenses and thereafter recover the same from the 1st Defendant and the 2nd Defendant.
d) General damages for wrongful deprivation of property.
e) Costs of this suit and interest on (d) above at court rates.
f) Any other further relief as this Honourable Court may deem fit to grant.
The 1st Defendant’s Defence
8. The 1st Defendant filed a Statement of Defence denying the allegations in the Plaint. He termed the plaint as misconceived, incompetent, defective, limping and bad in law, stating that it does not disclose any cause of action against the defendant and should be struck out.

The 3rd Defendant’s Statement of Defence
9. The 3rd Defendant filed a Statement of Defence denying the contents of the Plaint. They aver that the quoted plan KTI/29/96/27 was prepared by the physical planning department with the Ministry of Lands on 4th April 1996. Thus, the officer involved should further attest to the authenticity, as it has yet to be approved and covers and accommodates Plot B3 in Zone 035.
10. The 3rd Defendant confirmed the following:
a) Mr. Benjamin M. Nzetu was issued a letter of Allotment No.35832 dated 1st July 1998
b)  He sold the plot to Mr. Joseph Kiema Kasina, the Plaintiff herein on 11th April 2012 vide the sale agreement. The transfer of the plot was approved on 5th June 2012 vide min. RWHTP/26/2012(16)
c) The Property rates statement from the county revenue office indicated that Plaintiff paid his accrued rates on 28th June 2017. The 2018 payment was due by the 31st of March 2018.
11. The 3rd Respondent avers that the Plaintiff is known to them as the owner of the suit plot and that the 1st Defendant is not known.
12. With respect to the 2nd Defendant, the 3rd Defendant avers that she is known to them as the owner of Plot B13 on 035 under plan KTI/29/96/27. Though on the same plan and zone, this property and the suit property are in different locations in the Kitui Municipality.
13. The 3rd Defendant’s suspicion, as per their statement of defence, is that there is a misinterpretation of the plots as to the respective locations on the ground. It is their prayer that the suit be struck out with costs.

Evidence at the Trial
14. The trial commenced on 17th July 2019 before the Hon. Justice Angote when this suit was in the ELC Machakos, when the Plaintiff and the 1st Defendant testified. On 21st October 2021, the file was transferred upon the establishment of the ELC Kitui. Further hearing proceeded on 15th February 2024 when the Surveyor Kitui County, Peter Musyoki and the 2nd Defendant testified.
15. PW 1, the Plaintiff herein, testified and adopted his amended witness statement dated 17th November 2017. He produced exhibits on his list of documents dated 11th September 2017. In his statement, the Plaintiff reiterated the contents of his Plaint that he bought the suit property Plot No.B3 Zone 035 located in Kitui County vide Agreement dated 11th April 2012, from Benjamin Mwanzia Nzetu who had a letter of allotment from the 3rd Defendant. He has been paying the annual ground rent and rates since 24th October 2012 to date.
16. The Plaintiff discovered that someone had trespassed onto the suit property on or around 28/6/2017 and found out that the 1st defendant was on the property as ordered by the 2nd defendant to carry out some developments thereon. Despite notice even to the 3rd defendant, no action has been taken against the illegal acts of trespass.
17. On cross-examination, PW 1 stated that he had been paying land rates to the 3rd defendant. The Plaintiff closed his case.
18. DW 1 Dennis Mutunga, the 1st Defendant herein, stated that his sister, Felistus Musangi Mutunga, owns the suit plot, where she has constructed ten rooms. He stated that he was just a contractor. He added that she was not in court because she was very sick. DW 1 stated that he has documents to prove the 2nd defendant’s ownership.
19. The Court directed the Kitui County Surveyor to visit the suit properties and prepare a report on the existence and physical position of Plot No.B3 and B13 Kitui Municipality, given the contestation about Plot No..B3 and B13. The said report was filed in court on 30th October 2019 and is dated 23rd October 2019. On 7th March 2023, the 2nd Defendant informed the court that she was not notified when the court made an order that the County Surveyor was to visit the plots in dispute. She requested that the surveyor revisit the plots. The Court directed that a fresh visit to the suit plots, as earlier directed, be made and a report filed in court.
20. The said report was filed in Court and is dated 15th May 2023, where Peter Musyoki, County Surveyor, made the following observations: that the two plots B3 and B13 exist in the part development plan KTI/29/96/27. They are both developed, with Plot B13 having a storey building and Plot B3 having a building on it (not a storey building). The two plots are located a distance from each other, and the rows where each plot is located are separated by an access road. The County Surveyor, Peter Musyoki, also testified and produced this report as evidence in Court on 15th February 2024.
21. DW 2 Felistus Musangi Mutunga, the 2nd Defendant, testified that the plot in dispute was given to her by the Deputy Commissioner known as Philomena Koech. She was shown the plot by two officers from the defunct Municipal Council of Kitui. She referred to her land as Plot B13 and stated that she had been paying for the same until she was stopped by the plaintiff's claim over the land. She produced her documents as filed in court on 29th September 2022. She also stated to the Court that she had constructed rental rooms on the suit property and that she could not remember visiting the suit property with any surveyors by virtue of a court order.
Site Visit
22. A site visit by the Court was conducted on 9th July 2024, in the presence of all the parties herein as well as the County Surveyor and Physical Planner, Kitui County.
23. The plaintiff pointed out his plot, and so did the 2nd defendant, which was the same plot. The Court noted that as per the Part Development plan, Plot B3 is the third plot from the stadium area and has 8 single rooms plus toilets, with a building on the ground floor. There is also a well dug on the suit property. All parties confirmed that the buildings thereon were constructed by the 2nd defendant.
24. The Court was directed to the location of Plot B13 in the opposite row. The plot is the 2nd plot from the tarmac road. The plot has a two-storey building. The 2nd defendant denied that Plot B13 belonged to her and insisted that her plot was B3.
25. When asked by the Plaintiff’s counsel and the County Surveyor which surveyor showed her the plot, the 2nd defendant stated that she could not remember the said surveyor. She also stated that she was not given a survey report.
26. This was the close of the defence case.
The Plaintiff’s Written Submissions
27. Counsel for the Plaintiff gave a summary of the suit, highlighting that the 3rd Defendant's case was closed without any appearance from them. It is the Plaintiff’s submission that there is no dispute as to the ownership of the two plots in dispute, as they are separate and distinct and that the only dispute is the physical location of the Plaintiff’s and the 2nd defendant’s parcels.
28. According to the evidence and the exhibits, the Plaintiff submits that he owns Plot No.B3 Zone 035 Kitui Town.  He had yet to put up any structures when the 1st and 2nd defendants trespassed and put up residential houses.
29. With reference to the County Surveyor’s report filed on 16th May 2024, prepared pursuant to the orders of the court, the Plaintiff submits that it was confirmed that the disputed Plot is No.B3 Zone 035, which has a single-storey development. With regards to expert evidence, Counsel placed reliance on Stephen Kinini Wang’ondu v. The Ark Limited(2016)eKLR, where it was held that expert evidence should be founded on proven facts.
30. Counsel for the Plaintiff concluded that the evidence points to the 2nd defendant building developments on a plot which does not belong to her, which she has been benefiting from by collecting rent from the tenants as well as depriving the Plaintiff of the use of his plot thereof.
31. Secondly, Counsel for the Plaintiff submitted their prayer for a permanent injunction citing the case of Kenya Power and Lighting Company Limited v. Sheriff Molana Habib(2018)eKLR where it was held that a permanent injunction fully determines the rights of parties over a parcel of land in a suit after the final hearing. They therefore prayed for the grant of the orders as sought in the Plaint.

2nd Defendant’s Submissions
32. The 2nd Defendant submitted that the 1st Defendant is her brother and that Plot No.035 is her property that she was allocated by the 3rd Defendant, the County Government of Kitui. She submitted that she has been paying rates and that she has developed the said plot on one side and gave her brother the other side of the plot, after having the developments fully approved by the physical planner of the Kitui County Government.
33. It was also submitted by the 2nd defendant that she called the surveyor to her plot, who also confirmed that it belongs to her and that is the reason she began developments in the year 2017.
34. The 2nd defendant’s submission is that the plaintiff wants to grab her plot of land and that the Plaintiff should claim his land from the 3rd defendant since they are the ones with the authority to allocate land in the county and that she should not be condemned as she was an innocent developer and pleaded with.

Analysis and Determination

35. Having considered all the pleadings, evidence tendered and documents produced by the parties, I opine that the following issues arise for determination:
a) Who is the owner of the suit property, plot number B3 Zone 035 located in Kitui County?
b) Have the 1st and 2nd Defendants trespassed onto the suit property?
c) What orders should the Court make?

(a) Who is the owner of the suit property plot number B3 Zone 035 located in Kitui County?

36.  The suit property is Plot No. B3 Zone 035, located in Kitui County. The Plaintiff stated that he acquired it through purchase from one Benjamin Mwanzia Nzetu, vide Agreement dated 11th April 2012, the said Benjamin Mwanzia Nzetu was the original allottee. The transfer was effected, and the plaintiff paid all the charges required.
37. The Plaintiff produced the Agreement for sale between himself and Benjamin Mwanzia Nzetu. He also produced a receipt for payment of transfer fees to the defunct Municipal Council of Kitui, paid in the name of Benjamin Mwanzia Nzetu, dated 12th April 2012, as well as the application for transfer form and a receipt for rates clearance certificate dated 24th October 2012. He also produced various receipts for payment of ground rent and land rates, dating up to the year 2017.
38. The 2nd defendant lays claim to the disputed suit land, but she has made it clear that the land she was allotted is referred to as Plot No.B13 Zone 035 Kitui Municipality. This is evidenced by her letter of allotment dated 7th August 1999, falling under part development plan KTI/29/96/27. The 2nd Defendant also produced in court a notification of plot allotment of plot B13 dated 7th August 1997 issued to her by the defunct Municipal Council of Kitui.
39. From the evidence adduced in court, it is an agreed fact that it is the 2nd defendant who has made developments on the disputed land and built rental rooms thereon.
40. From the documents adduced in evidence, the Plaintiff is the owner of plot number B3 Zone 035 under plan KTI/29/96/27 Kitui County, while the 2nd Defendant has documents for plot B13 Zone 035.
41. The greater dispute between the parties is the location of the suit plot vis-à-vis plot number B13.
42.  As mentioned earlier in this judgment, on 17th July 2019, the Hon. Justice Angote, while hearing this suit, directed the Kitui County Surveyor to visit the suit properties and prepare a report on the existence and physical position of Plot No.B3 and B13, Kitui Municipality. The said report was filed in court on 30th October 2019. On 7th March 2023, on the application of the 2nd Defendant, the court directed a 2nd visit to the suit plot for the determination of the location of the two plots. A report was filed in Court dated 15th May 2023, where Peter Musyoki, County Surveyor and the County Physical Planner made observations that: the two plots B3 and B13 exist in the part development plan KTI/29/96/27. They are both developed, with Plot B13 having a storey building on it and Plot B3 having a building (not a storey building). The two plots are located a distance from each other, and the rows where each plot is located are separated by an access road. The County Surveyor, Peter Musyoki, also testified and produced this report as evidence in Court on 15th February 2024.
43.  The County Surveyor, Peter Musyoki, testified and confirmed the findings made in the report. The court further made a site visit as summarised elsewhere in this judgment in the presence of the County Surveyor, the Physical planner and all the parties to the suit.
44. During the site visit, the court confirmed that the plot shown by the plaintiff and the 1st defendant is the same one identified by the 2nd defendant and which is claimed by the Plaintiff and the 2nd Defendant. The court further confirmed that as per the PDP – Plot No. B3 is the 3rd plot from the stadium area.  The plot is in the position shown by the plaintiff and defendant. The court observed that Plot No. B3 had 8 single rooms, plus toilets and an open space at the front of the plot where there is also a well. The plots adjacent to the plot are built up with ground floor buildings, and Plot B3 has a ground floor building.  The parties confirmed that the building on B3 was constructed by the 2nd defendant. 
45. The Court visited the location of Plot No. B13. The plot is on the opposite row and is the 2nd plot from the tarmac road.  The tarmac road is on the opposite side as one comes to plot B3.
46. As per the evidence adduced in court by the parties, the expert report of the County Surveyor and the County Physical Planner and the observations during the site visit, the Court is satisfied that the suit parcel of land No. B3 Kitui Municipality belongs to and was allocated to the Plaintiff herein. From the pleadings and the evidence adduced in Court, the Plaintiff does not claim plot number B13, Kitui Municipality. The 2nd Defendant denied being the owner of the plot identified by the County Surveyor as plot number B13 Zone 035. She further denied being the owner of the buildings constructed on the said plot number B13.  From the Part Development Plan, reports by the County Surveyor and the Physical Planner and observations made during the site visit, the two parcels of land are located on opposite sides of the access road that runs across.
47. The court of appeal sitting at Nyeri found in Stephen Kinini Wang'ondu v The Ark Limited [2016] eKLR
“… Secondly, a judge must not consider expert evidence in a vacuum. It should not, therefore, be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.
Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case, which they accept in order to decide which expert evidence is to be preferred.
Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones. (emphasis supplied)
As far back as 1995, the Court of Appeal had stated in Dhalay vs. Republic (1995 – 1998) EA 29 as follows:
“Where the expert who is properly qualified in his field gives an opinion and gives reasons upon which his opinion is based, and there is no other evidence in conflict with such opinion, we cannot see any basis upon which such opinion could ever be rejected.  But if a court is satisfied on good and cogent ground(s) that the opinion, though it be that of an expert, is not soundly based, then a court is not only entitled but would be under a duty to reject it.” (Emphasis added).”

(b) Have the 1st and 2nd  Defendants trespassed onto the suit property
48. 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.”
49. 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.
50. 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.”
51. Having established without doubt that the Plaintiff is the owner of the plot in dispute, it then follows that the 1st and 2nd Defendants entered the plot unlawfully and conducted developments thereon. The Plaintiff has a right to quiet and peaceful enjoyment of his property.
52. It is, however, noted that the 1st Defendant trespassed onto the Plaintiff’s plot acting on the instructions of the 2nd Defendant as her contractor and for that reason, the said 2nd Defendant is liable for his acts.
53. With regard to the 3rd Defendant, the defence clearly indicated that they recognized the Plaintiff as the legal owner of the suit plot. They were, however a necessary party to this suit as the party that allocated the two properties in controversy and was the keeper of the records of allocation of land within the county.

C) What orders should the Court make?
54. In the case of Ajit Bhogal vs Kenya Power and Lighting Co.Ltd(2020) eKLR, the court held that where trespass is proved, a party need not prove that he/she suffered any specific damage or loss to be awarded damages. The 2nd defendant developed and/or commercialised the land in dispute by constructing rental houses without the Plaintiff’s consent.
55. The Court of Appeal made the following considerations for the award of general and compensatory damages in the case of Kenya Power & Lighting Company Ltd v 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 crystallised or restated by this Court, which we find prudent to distil and replicate as hereunder: i)
i) Harlsbury 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 vs. 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 before the infliction of harm.
iii) Philip Ayaya Aluchio vs. Crispinus Ngayo [2014] eKLR, - 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.
iv) Ephantus Mwangi & Another vs. 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 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 vs. Rhoda Njeri & 30 Others [2018] eKLR, - the extent 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 vs. 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.
56. From the foregoing authority, it is clear that the Plaintiff is entitled to general damages for the offence of trespass to his land by the 2nd Defendant, and it is only the quantum of such compensation that remains for determination. As per the evidence of the parties, there are tenants on the suit land who pay rent to the 2nd defendant, and there were no prior developments on the suit land.
57. It was held in the case of Duncan Nderitu Ndegwa vs. 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.”
58. The court is required to consider such evidence as would show the state of the land before the trespass and after, and the amount of compensation that would adequately put the Plaintiff in the position he was in before the trespass. An evaluation of case law shows as follows concerning compensation for trespass to land;
59. In the case of Philip Ayaya Aluchio v Crispinus Ngayo [2014] eKLR, where the defendant had erected a house on the plaintiff's land, the court observed that “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....” The court awarded a nominal sum of Kshs 100,000/- for trespass.
60. In the present case, the Plaintiff indicated that he had not made any developments on the suit property prior to the trespass. He also did not indicate the value of the benefit accruing to the 2nd Defendant due to her possession and occupation of the land, especially the amount of rental income obtained from the property.
61. Doing the best that the court can in the circumstances of this case, the court awards the Plaintiff general damages in the sum of Kshs 1,000,000.
62. The court finds that the Plaintiff’s suit has merit as against the 2nd Defendant and the following orders are made;

a) A declaration is hereby made that Plot No.B3 Zone 035, located in Kitui County, lawfully belongs to the Plaintiff.
b) A permanent injunction is hereby issued restraining the 2nd Defendant by herself, her agents, workers, employees, servants and/or any other person(s) whomsoever, acting on her behalf, from alienating, grabbing, constructing, trespassing and/or in any other manner whatsoever from interfering with the Plaintiff’s Plot No.B3 Zone 035 located in Kitui County.
c) A mandatory injunction is hereby issued ordering the 2nd Defendant to pull down, demolish and/or remove all the structures illegally erected, built and/or constructed by the 1st  and 2nd Defendants on the said Plot No.B3 Zone 035, located in Kitui County hereinabove described, failure to which the Plaintiff be at liberty to do so at his own expense and thereafter recover the cost from the 2nd  Defendant.
d) General damages are awarded to the Plaintiff against the 2nd Defendant for trespass and wrongful deprivation of property in the sum of Kshs 1,000,000 together with interest at court rates from the date of judgment till the date of payment in full.
e) Costs of this suit are awarded to the Plaintiff to be paid by the 2nd Defendant.
f) The suit against the 1st and 3rd Defendants is hereby dismissed.
g) The 1st and 3rd Defendants to bear their costs of the suit.
Delivered, Dated and Signed at Kitui this 30th day of May 2025