1. This suit was instituted pursuant to a plaint dated 3 May 2018. The plaint was subsequently amended by the amended plaint dated 8 October 2018. The orders sought are as follows:
a) Ksh. 50,000/= being the cost of the valuation report;
b) A declaration that the defendant is the trespasser on the land comprising parcel L.R. No. 2109 (M20/2);
c) An order of permanent injunction, restraining the Defendant, its agents, servants, employees, successors in title, or anyone acting on its behalf from further trespassing on parcel L.R No. 2109 (M20/2) Malindi, in particular, from excavating and removing soil and rocks from parcel L.R No. 2019 (M20/2) Malindi, causing degradation of the suit land and leaving the land unrehabilitated or otherwise.
d) An order directing that the Defendant restore the suit land to its prior position or pay in lieu thereof the sum assessed as the cost of such restoration.
e) An order to render accountability of all the benefits derived and restitute the same to the Plaintiff.
f) General damages.
g) Exemplary/Punitive damages
h) Interest at court rate
2. The plaintiffs called two witnesses who testified in support of the case, PW1, Kenneth Magema Kimani, and Edwin Odour, a registered practicing valuer.
3. PW1 testified that he is an administrator of the estate of Walter Ndungu Kimani and, together with the 2nd, 3rd, 4th, and 5th plaintiffs, is an administrator of the estates of Joel Njuguna Mbugua, Walter Ndungu Kimani, and Arthur Kabui Ngwiri, the owners of the suit land parcel number LR 2109 (M20/2) Malindi, in which they are jointly registered as proprietors. He stated that, together with the 2nd, 3rd, 4th, and 5th plaintiffs, who are administrators and have authorized him to testify on their behalf, he has been in possession of the suit property.
4. PW1 told the Court that on diverse dates in the years 2016 and 2017, the defendant entered the plaintiffs’ property, carried out excavation, removed soil from the suit property, destroyed trees and vegetation on the property, carried away marram from the said land, left it open and un-rehabilitated, leaving the land bare. The said illegal excavation has resulted in a depreciation of the land's market value, rendering it unsuitable for agricultural activities, development, and occupation. PW1’s prayer to the Court is for judgment to be entered in favor of the plaintiffs as prayed for in the amended plaint.
5. PW2, Mr. Edwin Oduor, testified that he is a valuer by profession working at Basemark Valuers. He informed the Court that he received instructions from the plaintiffs herein to conduct a valuation of the degradation of the suit property following excavation activities undertaken by third parties. He visited the property and confirmed that 10 acres had been excavated to a depth of 21 feet, with soil and stones removed. He produced two reports he had prepared, the first dated 27 October 2017, which is attached to the plaintiffs’ list of documents dated 3 May 2018, and the second dated 2 October 2018, which is attached to the plaintiffs’ supplementary list of documents dated 11 October 2018. In the valuation report dated 2 October 2018, the registered valuer states that the damage to the suit land includes destroyed topsoil, harvested quarry stones, and gaping dug-outs that pose environmental and health hazards.
6. He asserted that the damaged land requires between 1000 and 1500 tons of soil, stones, and concrete per acre to fill the large quarries left after excavation. The report includes photographic evidence of the property's damage. In the report, he values the damaged portion as follows: Current fair market value (10 acres) - 20,000,000; Value of damaged land (10 acres) - 8,000,000; Value of land restoration (10 acres) - 10,000,000. PW2 produced his reports dated 27 October 2017 and 2 October 2018 as evidence before the Court, together with the annexed photos showing the gravity of the excavations and the extent of the damage.
7. The defendant called a witness, Yasin Khan, who holds the position of Human Resources and Administration Manager with the defendant. Mr. Khan testified that the land specified in the suit is L.R. 2109 (M20/2) Malindi, which is allegedly owned by the plaintiffs and is purportedly distinct from the land on which the defendant entered into an agreement with Karisa Mbui Maguo, Katana Mbui Maguo, Kazungu Karisa, and Nzungo Kazungu Kaingu. The latter parcel of land is the site where the defendant has been conducting excavation activities, specifically on Plot No. M20 Quarry 5 MLD-KLF.
8. Further, he avers that at no time did the plaintiffs occupy the property and that the defendant did not see any of the plaintiffs at the site, either during the physical inspection of the site or during the period the site was visited for purposes of excavation. The defendant conducted due diligence to establish ownership of the land, and there was no evidence that the plaintiffs owned the property. Karisa Mbui Maguo, Katana Mbui Maguo, Kazungu Karisa, and Nzungo Kazungu Kaingu had been in continuous possession and occupation of the suit land for a long time. Their grandparents entered into occupation in 1900, a fact confirmed by the area chief.
9. He further asserted that the quotations of Kshs. 50,000 for the valuation report, Kshs. 8 million for the land's market value after depreciation, and Kshs. 10 million for expenses associated with rehabilitating and restoring the land constitutes a significant overestimate.
10. At the close of the cases for both parties, I acknowledge receipt of written submissions from learned counsel for the plaintiffs, Mr. Githinji, and from learned counsel for the defendant, Mr. Gachau, with much appreciation, as the submissions went a long way toward assisting the court in reaching a determination on the issues raised in the matter.
11. Based on the foregoing, I frame the following issues for the court's determination: whether the defendant trespassed on the plaintiffs’ land; whether the plaintiffs are entitled to the orders sought; and who should bear the costs of the suit.
Whether the Defendant Trespassed on the Plaintiff’s Land.
12. Mr. Githinji submits that the plaintiffs have demonstrated that the property on which the defendant undertook quarrying belonged to them, as evidenced by the title document and confirmed by the valuation reports.
13. On the contrary, Mr. Gachau contends that this claim relates to the defendant being sued for trespass. He states there is a fundamental discrepancy in the identification of the property trespassed upon. From the plaintiff’s pleadings, the plaintiff has referred to different properties. Paragraph 4 of their amended plaint refers to parcel L.R. 2109 (M20/2), while paragraph 9 of the amended plaint refers to land parcel L.R. No. 2019 (M202/2), Malindi. In the amended plaint, their prayer under number (iii) mentions parcel L.R. No. 2019 (M20/2).
14. Further, the plaintiffs, in their documents, have produced two Valuation Reports, one dated 27 October 2017 and another dated 2 October 2018. Both valuation reports describe the property alleged to have been trespassed as Portion No. 2109 (Title No. 4507), Malindi, in the Malindi-Sabaki Area, Kilifi County. The valuation reports include a certificate of postal search that describes the property as Plot Number Portion 2109, Malindi, Title Number LT. 36, FOLIO 63, FILE 4507.
15. Based on the foregoing, Mr. Gachau asserts that there is a discrepancy between the description of the land that was valued and the land that the plaintiffs allege the defendant trespassed upon. He contends that the parties are bound by their pleadings, and it is clear that the plaintiffs are unclear as to which property was trespassed upon.
16. It is well settled that parties are bound by their pleadings and may not introduce new facts or evidence at the stage of submissions. See Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others (2014) eKLR, which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002.
17. Counsel submitted that the defendant entered into a lease agreement dated 23 December 2016 with the interested parties, under which the interested parties leased to the defendant the parcel of land known as Plot No. M20 Quarry 5 MLD-KLF, measuring one acre and situated at Kikombetele Village in Sabaki Location within Kilifi County. The defendant’s activities were strictly confined to a different parcel, Plot No. M20 Quarry 5 MLD-KLF, as evidenced by the lease agreement with the interested parties. The interested parties in this matter are the owners of the suit property, Plot No. M20 Quarry 5 MLD-KLF, where the defendant was to excavate soil.
18. Because the property was ancestral and the interested parties lacked title to the land, the Area Chief had to be involved, and his stamp appears on the lease agreement. The Area Chief therefore wrote a letter dated 23 December 2016, certifying and confirming that the interested parties had jointly agreed to allow the defendant to excavate murram on a portion of M20 at Sabaki, where their grandfathers had lived since 1900.
19. Mr. Gachau avers that the plaintiffs have not provided conclusive proof that the parcel leased to the defendant and the one they claim ownership of and trespass to are one and the same. On the contrary, the defendant never entered or conducted any activity on L.R. No. 2109 (M20/2), L.R. No. 2019 (M202/2), Malindi, Plot Number Portion 2109-Malindi Title Number LT. 36, FOLIO 63, FILE 4507.
20. The defendant therefore submits that it is a stranger to the plaintiffs' named parcels in their pleadings and the documents produced in court. The defendant negotiated and executed the lease with the interested parties who were in actual occupation and possession of Plot No. M20 Quarry 5 MLD-KLF and had long-standing ancestral ties to the land. The plaintiffs’ allegations of trespass are misplaced, misconceived, and directed at the wrong party with respect to the land parcel in question.
21. Further, the defendant, in their defense, has clearly stated that the property alluded to in the amended plaint, purportedly belonging to the plaintiffs, is different from the land on which the defendant entered into an agreement with the Interested parties.
22. Equally, the plaintiffs did not file any reply to the defence. Under Order 2 Rule 12(1) of the Civil Procedure Rules, this omission results in a joinder of issue, meaning the plaintiffs are taken to have issued a general denial of the Defence. However, this general denial does not amount to a specific traverse of the defendant’s material averments, particularly the fact that the defendant’s excavation activities were confined to Plot No. M20 Quarry 5 MLD-KLF and not L.R. No. 2109 (M20/2), the parcel claimed by the plaintiffs.
23. Mr. Gachau contends that the plaintiffs have failed to meet the burden of proof required under Section 107 of the Evidence Act. They have neither clearly identified the parcel allegedly trespassed upon nor provided credible evidence linking the defendant’s activities to the land they claim to own—the defendant’s occupation and use of Plot No. M20 Quarry 5 MLD-KLF were lawful, authorized, and unrelated to the plaintiffs' property. As such, the claim for trespass must fail.
24. Furthermore, the plaintiffs’ pleadings are silent on the specific size of the portion allegedly excavated by the defendant. They merely allege trespass without specifying the extent of the affected land. The only mention of size appears in the valuation report, which states that ten (10) acres were allegedly excavated. However, this does not establish which specific part of the land was affected, as the property is approximately 200 acres. No survey map, beacon verification, or expert report has been tendered to assist this Honourable Court in determining the exact location of the alleged excavation within the larger parcel. Without such specificity, the valuation report remains speculative and disconnected from the central question of liability. It cannot, on its own, sustain a claim for trespass or support a monetary award for damage.
25. Mr Gachau further states that the Valuation Reports in relation to this matter primarily address the property’s value, restoration costs, and the value of the alleged damaged land. Valuers are responsible for conducting extensive research, gathering data, and analyzing factors that can affect an asset's value. While the plaintiffs rely on two valuation reports to assert that the defendant trespassed on their land, it must be noted that a land valuer prepared them. Valuers are not mandated by law to determine the precise location, extent, or boundaries of land parcels. These are roles that fall within the purview of a Surveyor. Only a Government Surveyor or a Licensed Surveyor is legally permitted to undertake title surveys, including the demarcation, boundary confirmation, or identification of land for purposes of title and ownership. See Mohammed Kahiya Osman v Abdi Farah; Sahara Hassan Dikir (Interested Party) [2021] eKLR.
26. Regarding what constitutes trespass, I concur with the arguments presented by both parties, which cite relevant legal principles and judicial precedents on the tort of trespass. In Clerk & Lindell on Torts (17th Edition), paragraph 17-01, trespass is defined as follows:
“An unjustifiable entry by one person upon the land in possession of another. Removing any part of the soil of land also constitutes trespass.”
27. Section 3(1) of the Trespass Act (Chapter 294 of the Laws of Kenya) 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.”
40. The tort of trespass to land occurs when a person, without lawful justification, enters another's land and interferes with the possessor's use of it. The essential element of trespass is unlawful entry onto land in another's possession.
41. I agree with the holding in Thiribi alias Karinguri v Thimangu & another (Environment and Land Appeal E002 of 2022) [2024] KEELC 1772 (KLR) (20 March 2024) (Judgment), cited by the defendant. The court stated as follows:
“Two elements must be proved for a claim of trespass to be sustained: ownership and illegal intrusion. The manner of the acquisition of land in Kenya is governed by Section 7 of the Land Act, Sections 24 – 26 of the Land Registration Act, and Article 40 of the Constitution. The burden is on he who alleges ownership under Section 107 – 112 of the Evidence Act to prove the fact of ownership. In Park Towers Ltd vs John Mithamo Njika & others (2014) eKLR, the court said that where trespass is proved, a party need not prove any loss or damage, for it is actionable per se.”
42. In this matter, the plaintiffs produced documentation showing ownership of the suit property. As demonstrated, the suit land belonged to Joel Njuguna Mbugua, Walter Ndungu Kimani, and Emlyn James Ngwiri. PW1 visited the land after being alerted by friends and stated that he found the defendant’s machinery on the suit land. He also noted evidence of excavation, as the defendant was excavating and loading soil/murram into their lorries and taking them away.
43. The defendants' justification is that they agreed with the interested parties herein, who claim to possess part of the suit property described as Plot No. M20 Quarry 5 MLD-KLF, stating that an agreement had been entered into at the chief’s office. PW2, a registered valuer engaged by the plaintiffs, went to the suit land and confirmed that excavation had been conducted on the property. He prepared a report to this effect.
44. Based on the evidence and proceedings in this matter, the interested parties applied to join this proceeding and pleaded adverse possession of the portion they allegedly leased to the defendant. The ruling dated 22nd of July 2023, which allowed joinder, reported as Njuguna (Suing as the legal administratrix and personal representative of the Late Joel Njuguna Mbugua) & 4 others v SS Mehta & Sons Limited (Environment and Land Case Civil Suit 166 of 2018) [2023] KEELC 19934 (KLR) (22 September 2023) (Ruling). This court held:
“Looking at the test for joinder, the intended interested parties to have shown that they are real and necessary parties in this suit having been the ones who entered an agreement with the defendant in the harvest of sand on the suit property. They have shown they are proper parties to be joined and their joinder will not be trifling. They have also shown that the orders the plaintiff may obtain from this court directed to the defendant will affect them. They have also further shown that any decree emanating from this court will directly affect them and may not be enforced without their participation. They have also shown that their presence will be necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. This is more so having disclosed they have another parallel suit with this one if not harmonized - will lead to multiplicity and proliferation of suits whose impact will be to slow the determination of the current suit.”
45. In an application for consolidation of this suit with the current one, a ruling dated 7th December 2023 concerning the adverse claim by the interested parties against the plaintiffs, reported as Njuguna (Suing as the legal administrator and personal representative of the Estate of the Late Joel Njuguna Mbuga) & 4 others v SS Mehta & Sons Limited; Maguo & 3 others (Interested Parties) [2023] KEELC 22430 (KLR) this court held as follows:
“The causes of action in the two matters are different. In the present suit, the plaintiff seeks an award of damages and other monetary compensation exemplary /punitive because of the defendant’s acts of wastage and trespass on the plaintiff’s land parcel No. LR 2019 (M 202/2) Malindi. The plaintiff contends to be the registered landowner. While ELC Case No. E5 of 2021 O.S., the plaintiffs are seeking adverse possession allegedly of 20 acres out of a parcel known as Plot No. M20/2. The rights of the plaintiffs seeking adverse possession have not crystallized. The issue of impeachment of title will be core in ELC Case No. E5 of 2021 O.S. In my view mixing the two will convolute issues, let the two files run parallel.”
46. What flows from the foregoing is that the suit property under discussion here is acknowledged to be registered in the names of the plaintiffs. The 20 acres claimed by the interested parties are under adjudication in another matter, as shown by the above proceedings. Elsewhere, the 20 acres form part of the more expansive 200 acres that constitute the title held by the plaintiffs, the registered owners. They hold superior rights over the interested parties, who must await a verdict on whether their rights as adverse possessors have crystallized.
47. The defendant entered the plaintiffs’ property and conducted excavations without their permission, constituting trespass. The defendant’s removal of murram from the land was done without the consent or approval of the plaintiffs or the estate of the deceased registered owners of the land. As previously mentioned, under Section 3(1) of the Trespass Act (Cap. 294) of the Laws of Kenya, any individual who enters or remains on private land without authorization commits trespass. The defendant failed to exercise proper diligence in verifying the land's ownership. A letter from the chief alone cannot be deemed sufficient due diligence for land transactions, particularly given the prevalence of squatters in the coastal region. Additionally, the plot known as Plot No. M20 Quarry 5 MLD-KLF is not registered, nor did the defendant visit the land registry to confirm its registration status, as the interested parties are already in court seeking to be declared adverse possessors of the title held by the plaintiffs, in which the plot described constitutes part of the plaintiffs’ expansive 200-acre land. The interested parties were not the plaintiffs' agents. See also Miaraho Limited v Synohydro Corporation Limited [2019] KEELC 446 (KLR).
48. I therefore make a finding that the defendant was a trespasser on the plaintiff's land.
Measures of Damages and Reliefs
49. Among the reliefs sought by the plaintiff is a permanent injunction to restrain the defendants from further trespass on the suit property in the future. There will be no difficulty in granting this relief to ensure the status of the suit is maintained.
50. Regarding measures of damages for trespass, the court in Philip Ayaya Aluchio v Crispinus Ngayo [2014] KEHC 7055 (KLR), which was cited by the defendants and with which I agree, highlighted:
“It has been held that the measure of damages for trespass is the difference in the value of the plaintiff's property immediately before and immediately after the trespass or the cost of restoration, whichever is less. See Hostler – VS – Green Park Development Co. 986 S. W 2d 500 (No. Ct. App. 1999).”
51. Additionally, Donaldson J. outlined the basic principle for evaluating general damages of this kind in Dodd Properties (Kent) Limited and others v Canterbury City Council and others [1980] 1 All ER 928, stating:
“The general object underlying the rules for the assessment of damages is, so far as possible by means of monetary award, to place the plaintiff in the position which he would have occupied if he had not suffered the wrong complained of be that wrong a tort or a breach of contract. In the case of a tort causing damage to real property, this object is achieved by the application of one or other of two quite different measures of damage, or occasionally, a combination of the two. The first is to take the capital value of the property in an undamaged state and to compare it with its value in a damaged state. The second is to take the cost of repair or reinstatement. Which is appropriate will depend on a number of factors, such as the plaintiff’s future intentions as to the use of the property and the reasonableness of those intentions. If he reasonably intends to sell the property in its damaged state, clearly the diminution in capital value is the true measure of damage. If he reasonably intends to continue to occupy it to repair the damage, clearly the cost of repairs is the true measure. And there may be in between situations.”
52. Confronted with a question analogous to the current matter, Nyamweya J reaffirmed the aforementioned approach in Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & Another [2013] eKLLR, asserting as follows:
“The general principles as regards the measure of damages to be awarded in cases of trespass to land where damage has been occasioned to the land is the amount of diminution in value or the cost of reinstatement of the land, and not both. The overriding principle is to put the claimant in the position he was prior to the infliction of the harm. The test that guides the court in deciding which of the two measures of damages to employ is the reasonableness of the said reinstatement in light of the extra costs that may be incurred by the defendant in this regard.”
53. The valuation reports prepared by Basemark Valuers, dated 27 October 2017 and 2 October 2018, assess the extent of damage and the costs associated with restoration. Any other contrary report never challenged these reports. The Basemark Valuation Report dated 2 October 2018 estimates that between 1,000 and 1,500 tonnes of soil, stones, and concrete per acre would be necessary to restore the excavated land. Furthermore, the report indicates that the transportation cost for one lorry of material to the site would range between Kshs. 3,000 and Kshs. 7,000.
54. In conclusion, these reports demonstrate that the 10-acre portion of the property, which was trespassed upon by the defendant, was rendered unusable due to the extent of excavation activities; the area had not been rehabilitated by the persons responsible for the excavation. According to PW2’s assessment, the property's market value in 2017 was appraised at KShs. 20,000,000, and the value of the land destroyed was estimated at KShs. 8,000,000. The diminution in the property's value is therefore Kshs 12,000,000, which this court awards as general damages.
55. I agree with the defendant that, for punitive damages, the case of Stelco Properties Limited & Another v Njugo Ventures Limited & Another (2021) eKLR is applicable, with which I align, where the court relied on the case of Godfrey Julius Ndumba Mbogori & Another v Nairobi City County (2018) eKLR, which set out the principles that should guide the court in awarding exemplary and punitive damages as follows:
“The appellants claimed for exemplary and punitive damages. Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. We are guided by the case of Rookes V Barnard [1964] AC 1129 where Lord Devlin set out the categories of case in which exemplary damages may be awarded which are: i) in cases of oppressive, arbitrary or unconstitutional action by the servants of the government, ii) cases in which the defendant’s conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the plaintiff and iii) where exemplary damages are expressly authorized by statute.
Lord Devlin also gave expression to 3 considerations which must be borne in mind in any case in which an award of exemplary damages is being claimed. The first category is that the plaintiff himself must be the victim of the punishable behaviour; the second category is that the power to award exemplary damages must be used with restraint for it constitutes a weapon and can be used either in defence of liberty or against liberty and thirdly, the means of the defendant, irrelevant in the assessment of compensation, are material in the assessment of exemplary damages.”
56. See also Abdalla & 2 others v County Government of Kilifi & 2 others [2023] KEELC 19898 (KLR) where this court held:
“The next head is whether this court should order exemplary damages or aggravated damages for the continued trespass given the total disrespect of the orders issued by this court in 2017, which gave injunctive relief in the interim, and that the first defendant was to desist from further dumping waste at the suit land until the current suit was heard and determined. In addition, the first defendant has failed to follow the procedure for the establishment of a dumpsite as provided by law – by seeking an EIA Report from the second defendant and obtaining the necessary licence thereto. The first defendant has been in flagrant disrespect of the law of the land to the detriment of the plaintiffs who have all along brought their grievances to the attention of the first defendant. Lord Devlin’s principle in Loudon v. Ryder [1953] 2 QB 202, has been cited by the plaintiff as a persuasive authority to be applied in this case where it was observed that ‘punitive damages could be awarded based on a ‘fine which has to hit the defendant hard if he has disregarded the rights of others and to show that that sort of conduct does not pay’. That could be germane, in this case, but from the prayers sought there is no plea for exemplary or punitive damages.”
57. In the present case, none of the conditions justifying an award of exemplary damages have been met. The defendant entered into a lease agreement with the interested parties regarding a property for which they had no good title to pass. There is no evidence that the defendant’s conduct was oppressive, arbitrary, or unconstitutional, nor was any malice or intentional wrongdoing proved.
58. The other prayers namely: an order directing the defendant to restore the suit land to its prior condition or, in lieu thereof, pay the sum assessed as the cost of such restoration; and an order requiring the defendant to render an account of all benefits derived and to restitute the same to the plaintiff will be a duplication in view of the general damages already awarded.
59. As noted in the proceedings, the defense and counterclaim by the interested parties fell by the wayside after the court directed that they proceed in another forum and that their inclusion in this matter was vexing. I need not comment further.
60. This will constitute the final orders of this court:
a) A declaration is hereby issued that the defendants' acts of excavation on land comprised of Parcel LR No. 2109 (M20/2), Malindi, constituted trespass.
b) An order of permanent injunction does issue, restraining the defendant, its agents, employees, successors in title, or anyone acting on its behalf from further trespassing on parcel number LR No. 2109(M20/2) and, in particular, from excavating and removing soil and rocks from parcel LR No. 2109(M20/2), Malindi.
c) The Plaintiffs are awarded General Damages. Kshs. 12,000,000/- to be borne by the defendant.
d) The Plaintiffs are also awarded Costs and Interest at the court rate.
Dated, signed, and delivered electronically in Malindi on December 11, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Githinji for the Plaintiffs
Mr. Gachau for the Defendants
Jill: Court Assistant
a) Ksh. 50,000/= being the cost of the valuation report;
b) A declaration that the defendant is the trespasser on the land comprising parcel L.R. No. 2109 (M20/2);
c) An order of permanent injunction, restraining the Defendant, its agents, servants, employees, successors in title, or anyone acting on its behalf from further trespassing on parcel L.R No. 2109 (M20/2) Malindi, in particular, from excavating and removing soil and rocks from parcel L.R No. 2019 (M20/2) Malindi, causing degradation of the suit land and leaving the land unrehabilitated or otherwise.
d) An order directing that the Defendant restore the suit land to its prior position or pay in lieu thereof the sum assessed as the cost of such restoration.
e) An order to render accountability of all the benefits derived and restitute the same to the Plaintiff.
f) General damages.
g) Exemplary/Punitive damages
h) Interest at court rate
2. The plaintiffs called two witnesses who testified in support of the case, PW1, Kenneth Magema Kimani, and Edwin Odour, a registered practicing valuer.
3. PW1 testified that he is an administrator of the estate of Walter Ndungu Kimani and, together with the 2nd, 3rd, 4th, and 5th plaintiffs, is an administrator of the estates of Joel Njuguna Mbugua, Walter Ndungu Kimani, and Arthur Kabui Ngwiri, the owners of the suit land parcel number LR 2109 (M20/2) Malindi, in which they are jointly registered as proprietors. He stated that, together with the 2nd, 3rd, 4th, and 5th plaintiffs, who are administrators and have authorized him to testify on their behalf, he has been in possession of the suit property.
4. PW1 told the Court that on diverse dates in the years 2016 and 2017, the defendant entered the plaintiffs’ property, carried out excavation, removed soil from the suit property, destroyed trees and vegetation on the property, carried away marram from the said land, left it open and un-rehabilitated, leaving the land bare. The said illegal excavation has resulted in a depreciation of the land's market value, rendering it unsuitable for agricultural activities, development, and occupation. PW1’s prayer to the Court is for judgment to be entered in favor of the plaintiffs as prayed for in the amended plaint.
5. PW2, Mr. Edwin Oduor, testified that he is a valuer by profession working at Basemark Valuers. He informed the Court that he received instructions from the plaintiffs herein to conduct a valuation of the degradation of the suit property following excavation activities undertaken by third parties. He visited the property and confirmed that 10 acres had been excavated to a depth of 21 feet, with soil and stones removed. He produced two reports he had prepared, the first dated 27 October 2017, which is attached to the plaintiffs’ list of documents dated 3 May 2018, and the second dated 2 October 2018, which is attached to the plaintiffs’ supplementary list of documents dated 11 October 2018. In the valuation report dated 2 October 2018, the registered valuer states that the damage to the suit land includes destroyed topsoil, harvested quarry stones, and gaping dug-outs that pose environmental and health hazards.
6. He asserted that the damaged land requires between 1000 and 1500 tons of soil, stones, and concrete per acre to fill the large quarries left after excavation. The report includes photographic evidence of the property's damage. In the report, he values the damaged portion as follows: Current fair market value (10 acres) - 20,000,000; Value of damaged land (10 acres) - 8,000,000; Value of land restoration (10 acres) - 10,000,000. PW2 produced his reports dated 27 October 2017 and 2 October 2018 as evidence before the Court, together with the annexed photos showing the gravity of the excavations and the extent of the damage.
7. The defendant called a witness, Yasin Khan, who holds the position of Human Resources and Administration Manager with the defendant. Mr. Khan testified that the land specified in the suit is L.R. 2109 (M20/2) Malindi, which is allegedly owned by the plaintiffs and is purportedly distinct from the land on which the defendant entered into an agreement with Karisa Mbui Maguo, Katana Mbui Maguo, Kazungu Karisa, and Nzungo Kazungu Kaingu. The latter parcel of land is the site where the defendant has been conducting excavation activities, specifically on Plot No. M20 Quarry 5 MLD-KLF.
8. Further, he avers that at no time did the plaintiffs occupy the property and that the defendant did not see any of the plaintiffs at the site, either during the physical inspection of the site or during the period the site was visited for purposes of excavation. The defendant conducted due diligence to establish ownership of the land, and there was no evidence that the plaintiffs owned the property. Karisa Mbui Maguo, Katana Mbui Maguo, Kazungu Karisa, and Nzungo Kazungu Kaingu had been in continuous possession and occupation of the suit land for a long time. Their grandparents entered into occupation in 1900, a fact confirmed by the area chief.
9. He further asserted that the quotations of Kshs. 50,000 for the valuation report, Kshs. 8 million for the land's market value after depreciation, and Kshs. 10 million for expenses associated with rehabilitating and restoring the land constitutes a significant overestimate.
10. At the close of the cases for both parties, I acknowledge receipt of written submissions from learned counsel for the plaintiffs, Mr. Githinji, and from learned counsel for the defendant, Mr. Gachau, with much appreciation, as the submissions went a long way toward assisting the court in reaching a determination on the issues raised in the matter.
11. Based on the foregoing, I frame the following issues for the court's determination: whether the defendant trespassed on the plaintiffs’ land; whether the plaintiffs are entitled to the orders sought; and who should bear the costs of the suit.
Whether the Defendant Trespassed on the Plaintiff’s Land.
12. Mr. Githinji submits that the plaintiffs have demonstrated that the property on which the defendant undertook quarrying belonged to them, as evidenced by the title document and confirmed by the valuation reports.
13. On the contrary, Mr. Gachau contends that this claim relates to the defendant being sued for trespass. He states there is a fundamental discrepancy in the identification of the property trespassed upon. From the plaintiff’s pleadings, the plaintiff has referred to different properties. Paragraph 4 of their amended plaint refers to parcel L.R. 2109 (M20/2), while paragraph 9 of the amended plaint refers to land parcel L.R. No. 2019 (M202/2), Malindi. In the amended plaint, their prayer under number (iii) mentions parcel L.R. No. 2019 (M20/2).
14. Further, the plaintiffs, in their documents, have produced two Valuation Reports, one dated 27 October 2017 and another dated 2 October 2018. Both valuation reports describe the property alleged to have been trespassed as Portion No. 2109 (Title No. 4507), Malindi, in the Malindi-Sabaki Area, Kilifi County. The valuation reports include a certificate of postal search that describes the property as Plot Number Portion 2109, Malindi, Title Number LT. 36, FOLIO 63, FILE 4507.
15. Based on the foregoing, Mr. Gachau asserts that there is a discrepancy between the description of the land that was valued and the land that the plaintiffs allege the defendant trespassed upon. He contends that the parties are bound by their pleadings, and it is clear that the plaintiffs are unclear as to which property was trespassed upon.
16. It is well settled that parties are bound by their pleadings and may not introduce new facts or evidence at the stage of submissions. See Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 others (2014) eKLR, which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002.
17. Counsel submitted that the defendant entered into a lease agreement dated 23 December 2016 with the interested parties, under which the interested parties leased to the defendant the parcel of land known as Plot No. M20 Quarry 5 MLD-KLF, measuring one acre and situated at Kikombetele Village in Sabaki Location within Kilifi County. The defendant’s activities were strictly confined to a different parcel, Plot No. M20 Quarry 5 MLD-KLF, as evidenced by the lease agreement with the interested parties. The interested parties in this matter are the owners of the suit property, Plot No. M20 Quarry 5 MLD-KLF, where the defendant was to excavate soil.
18. Because the property was ancestral and the interested parties lacked title to the land, the Area Chief had to be involved, and his stamp appears on the lease agreement. The Area Chief therefore wrote a letter dated 23 December 2016, certifying and confirming that the interested parties had jointly agreed to allow the defendant to excavate murram on a portion of M20 at Sabaki, where their grandfathers had lived since 1900.
19. Mr. Gachau avers that the plaintiffs have not provided conclusive proof that the parcel leased to the defendant and the one they claim ownership of and trespass to are one and the same. On the contrary, the defendant never entered or conducted any activity on L.R. No. 2109 (M20/2), L.R. No. 2019 (M202/2), Malindi, Plot Number Portion 2109-Malindi Title Number LT. 36, FOLIO 63, FILE 4507.
20. The defendant therefore submits that it is a stranger to the plaintiffs' named parcels in their pleadings and the documents produced in court. The defendant negotiated and executed the lease with the interested parties who were in actual occupation and possession of Plot No. M20 Quarry 5 MLD-KLF and had long-standing ancestral ties to the land. The plaintiffs’ allegations of trespass are misplaced, misconceived, and directed at the wrong party with respect to the land parcel in question.
21. Further, the defendant, in their defense, has clearly stated that the property alluded to in the amended plaint, purportedly belonging to the plaintiffs, is different from the land on which the defendant entered into an agreement with the Interested parties.
22. Equally, the plaintiffs did not file any reply to the defence. Under Order 2 Rule 12(1) of the Civil Procedure Rules, this omission results in a joinder of issue, meaning the plaintiffs are taken to have issued a general denial of the Defence. However, this general denial does not amount to a specific traverse of the defendant’s material averments, particularly the fact that the defendant’s excavation activities were confined to Plot No. M20 Quarry 5 MLD-KLF and not L.R. No. 2109 (M20/2), the parcel claimed by the plaintiffs.
23. Mr. Gachau contends that the plaintiffs have failed to meet the burden of proof required under Section 107 of the Evidence Act. They have neither clearly identified the parcel allegedly trespassed upon nor provided credible evidence linking the defendant’s activities to the land they claim to own—the defendant’s occupation and use of Plot No. M20 Quarry 5 MLD-KLF were lawful, authorized, and unrelated to the plaintiffs' property. As such, the claim for trespass must fail.
24. Furthermore, the plaintiffs’ pleadings are silent on the specific size of the portion allegedly excavated by the defendant. They merely allege trespass without specifying the extent of the affected land. The only mention of size appears in the valuation report, which states that ten (10) acres were allegedly excavated. However, this does not establish which specific part of the land was affected, as the property is approximately 200 acres. No survey map, beacon verification, or expert report has been tendered to assist this Honourable Court in determining the exact location of the alleged excavation within the larger parcel. Without such specificity, the valuation report remains speculative and disconnected from the central question of liability. It cannot, on its own, sustain a claim for trespass or support a monetary award for damage.
25. Mr Gachau further states that the Valuation Reports in relation to this matter primarily address the property’s value, restoration costs, and the value of the alleged damaged land. Valuers are responsible for conducting extensive research, gathering data, and analyzing factors that can affect an asset's value. While the plaintiffs rely on two valuation reports to assert that the defendant trespassed on their land, it must be noted that a land valuer prepared them. Valuers are not mandated by law to determine the precise location, extent, or boundaries of land parcels. These are roles that fall within the purview of a Surveyor. Only a Government Surveyor or a Licensed Surveyor is legally permitted to undertake title surveys, including the demarcation, boundary confirmation, or identification of land for purposes of title and ownership. See Mohammed Kahiya Osman v Abdi Farah; Sahara Hassan Dikir (Interested Party) [2021] eKLR.
26. Regarding what constitutes trespass, I concur with the arguments presented by both parties, which cite relevant legal principles and judicial precedents on the tort of trespass. In Clerk & Lindell on Torts (17th Edition), paragraph 17-01, trespass is defined as follows:
“An unjustifiable entry by one person upon the land in possession of another. Removing any part of the soil of land also constitutes trespass.”
27. Section 3(1) of the Trespass Act (Chapter 294 of the Laws of Kenya) 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.”
40. The tort of trespass to land occurs when a person, without lawful justification, enters another's land and interferes with the possessor's use of it. The essential element of trespass is unlawful entry onto land in another's possession.
41. I agree with the holding in Thiribi alias Karinguri v Thimangu & another (Environment and Land Appeal E002 of 2022) [2024] KEELC 1772 (KLR) (20 March 2024) (Judgment), cited by the defendant. The court stated as follows:
“Two elements must be proved for a claim of trespass to be sustained: ownership and illegal intrusion. The manner of the acquisition of land in Kenya is governed by Section 7 of the Land Act, Sections 24 – 26 of the Land Registration Act, and Article 40 of the Constitution. The burden is on he who alleges ownership under Section 107 – 112 of the Evidence Act to prove the fact of ownership. In Park Towers Ltd vs John Mithamo Njika & others (2014) eKLR, the court said that where trespass is proved, a party need not prove any loss or damage, for it is actionable per se.”
42. In this matter, the plaintiffs produced documentation showing ownership of the suit property. As demonstrated, the suit land belonged to Joel Njuguna Mbugua, Walter Ndungu Kimani, and Emlyn James Ngwiri. PW1 visited the land after being alerted by friends and stated that he found the defendant’s machinery on the suit land. He also noted evidence of excavation, as the defendant was excavating and loading soil/murram into their lorries and taking them away.
43. The defendants' justification is that they agreed with the interested parties herein, who claim to possess part of the suit property described as Plot No. M20 Quarry 5 MLD-KLF, stating that an agreement had been entered into at the chief’s office. PW2, a registered valuer engaged by the plaintiffs, went to the suit land and confirmed that excavation had been conducted on the property. He prepared a report to this effect.
44. Based on the evidence and proceedings in this matter, the interested parties applied to join this proceeding and pleaded adverse possession of the portion they allegedly leased to the defendant. The ruling dated 22nd of July 2023, which allowed joinder, reported as Njuguna (Suing as the legal administratrix and personal representative of the Late Joel Njuguna Mbugua) & 4 others v SS Mehta & Sons Limited (Environment and Land Case Civil Suit 166 of 2018) [2023] KEELC 19934 (KLR) (22 September 2023) (Ruling). This court held:
“Looking at the test for joinder, the intended interested parties to have shown that they are real and necessary parties in this suit having been the ones who entered an agreement with the defendant in the harvest of sand on the suit property. They have shown they are proper parties to be joined and their joinder will not be trifling. They have also shown that the orders the plaintiff may obtain from this court directed to the defendant will affect them. They have also further shown that any decree emanating from this court will directly affect them and may not be enforced without their participation. They have also shown that their presence will be necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. This is more so having disclosed they have another parallel suit with this one if not harmonized - will lead to multiplicity and proliferation of suits whose impact will be to slow the determination of the current suit.”
45. In an application for consolidation of this suit with the current one, a ruling dated 7th December 2023 concerning the adverse claim by the interested parties against the plaintiffs, reported as Njuguna (Suing as the legal administrator and personal representative of the Estate of the Late Joel Njuguna Mbuga) & 4 others v SS Mehta & Sons Limited; Maguo & 3 others (Interested Parties) [2023] KEELC 22430 (KLR) this court held as follows:
“The causes of action in the two matters are different. In the present suit, the plaintiff seeks an award of damages and other monetary compensation exemplary /punitive because of the defendant’s acts of wastage and trespass on the plaintiff’s land parcel No. LR 2019 (M 202/2) Malindi. The plaintiff contends to be the registered landowner. While ELC Case No. E5 of 2021 O.S., the plaintiffs are seeking adverse possession allegedly of 20 acres out of a parcel known as Plot No. M20/2. The rights of the plaintiffs seeking adverse possession have not crystallized. The issue of impeachment of title will be core in ELC Case No. E5 of 2021 O.S. In my view mixing the two will convolute issues, let the two files run parallel.”
46. What flows from the foregoing is that the suit property under discussion here is acknowledged to be registered in the names of the plaintiffs. The 20 acres claimed by the interested parties are under adjudication in another matter, as shown by the above proceedings. Elsewhere, the 20 acres form part of the more expansive 200 acres that constitute the title held by the plaintiffs, the registered owners. They hold superior rights over the interested parties, who must await a verdict on whether their rights as adverse possessors have crystallized.
47. The defendant entered the plaintiffs’ property and conducted excavations without their permission, constituting trespass. The defendant’s removal of murram from the land was done without the consent or approval of the plaintiffs or the estate of the deceased registered owners of the land. As previously mentioned, under Section 3(1) of the Trespass Act (Cap. 294) of the Laws of Kenya, any individual who enters or remains on private land without authorization commits trespass. The defendant failed to exercise proper diligence in verifying the land's ownership. A letter from the chief alone cannot be deemed sufficient due diligence for land transactions, particularly given the prevalence of squatters in the coastal region. Additionally, the plot known as Plot No. M20 Quarry 5 MLD-KLF is not registered, nor did the defendant visit the land registry to confirm its registration status, as the interested parties are already in court seeking to be declared adverse possessors of the title held by the plaintiffs, in which the plot described constitutes part of the plaintiffs’ expansive 200-acre land. The interested parties were not the plaintiffs' agents. See also Miaraho Limited v Synohydro Corporation Limited [2019] KEELC 446 (KLR).
48. I therefore make a finding that the defendant was a trespasser on the plaintiff's land.
Measures of Damages and Reliefs
49. Among the reliefs sought by the plaintiff is a permanent injunction to restrain the defendants from further trespass on the suit property in the future. There will be no difficulty in granting this relief to ensure the status of the suit is maintained.
50. Regarding measures of damages for trespass, the court in Philip Ayaya Aluchio v Crispinus Ngayo [2014] KEHC 7055 (KLR), which was cited by the defendants and with which I agree, highlighted:
“It has been held that the measure of damages for trespass is the difference in the value of the plaintiff's property immediately before and immediately after the trespass or the cost of restoration, whichever is less. See Hostler – VS – Green Park Development Co. 986 S. W 2d 500 (No. Ct. App. 1999).”
51. Additionally, Donaldson J. outlined the basic principle for evaluating general damages of this kind in Dodd Properties (Kent) Limited and others v Canterbury City Council and others [1980] 1 All ER 928, stating:
“The general object underlying the rules for the assessment of damages is, so far as possible by means of monetary award, to place the plaintiff in the position which he would have occupied if he had not suffered the wrong complained of be that wrong a tort or a breach of contract. In the case of a tort causing damage to real property, this object is achieved by the application of one or other of two quite different measures of damage, or occasionally, a combination of the two. The first is to take the capital value of the property in an undamaged state and to compare it with its value in a damaged state. The second is to take the cost of repair or reinstatement. Which is appropriate will depend on a number of factors, such as the plaintiff’s future intentions as to the use of the property and the reasonableness of those intentions. If he reasonably intends to sell the property in its damaged state, clearly the diminution in capital value is the true measure of damage. If he reasonably intends to continue to occupy it to repair the damage, clearly the cost of repairs is the true measure. And there may be in between situations.”
52. Confronted with a question analogous to the current matter, Nyamweya J reaffirmed the aforementioned approach in Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & Another [2013] eKLLR, asserting as follows:
“The general principles as regards the measure of damages to be awarded in cases of trespass to land where damage has been occasioned to the land is the amount of diminution in value or the cost of reinstatement of the land, and not both. The overriding principle is to put the claimant in the position he was prior to the infliction of the harm. The test that guides the court in deciding which of the two measures of damages to employ is the reasonableness of the said reinstatement in light of the extra costs that may be incurred by the defendant in this regard.”
53. The valuation reports prepared by Basemark Valuers, dated 27 October 2017 and 2 October 2018, assess the extent of damage and the costs associated with restoration. Any other contrary report never challenged these reports. The Basemark Valuation Report dated 2 October 2018 estimates that between 1,000 and 1,500 tonnes of soil, stones, and concrete per acre would be necessary to restore the excavated land. Furthermore, the report indicates that the transportation cost for one lorry of material to the site would range between Kshs. 3,000 and Kshs. 7,000.
54. In conclusion, these reports demonstrate that the 10-acre portion of the property, which was trespassed upon by the defendant, was rendered unusable due to the extent of excavation activities; the area had not been rehabilitated by the persons responsible for the excavation. According to PW2’s assessment, the property's market value in 2017 was appraised at KShs. 20,000,000, and the value of the land destroyed was estimated at KShs. 8,000,000. The diminution in the property's value is therefore Kshs 12,000,000, which this court awards as general damages.
55. I agree with the defendant that, for punitive damages, the case of Stelco Properties Limited & Another v Njugo Ventures Limited & Another (2021) eKLR is applicable, with which I align, where the court relied on the case of Godfrey Julius Ndumba Mbogori & Another v Nairobi City County (2018) eKLR, which set out the principles that should guide the court in awarding exemplary and punitive damages as follows:
“The appellants claimed for exemplary and punitive damages. Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. We are guided by the case of Rookes V Barnard [1964] AC 1129 where Lord Devlin set out the categories of case in which exemplary damages may be awarded which are: i) in cases of oppressive, arbitrary or unconstitutional action by the servants of the government, ii) cases in which the defendant’s conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the plaintiff and iii) where exemplary damages are expressly authorized by statute.
Lord Devlin also gave expression to 3 considerations which must be borne in mind in any case in which an award of exemplary damages is being claimed. The first category is that the plaintiff himself must be the victim of the punishable behaviour; the second category is that the power to award exemplary damages must be used with restraint for it constitutes a weapon and can be used either in defence of liberty or against liberty and thirdly, the means of the defendant, irrelevant in the assessment of compensation, are material in the assessment of exemplary damages.”
56. See also Abdalla & 2 others v County Government of Kilifi & 2 others [2023] KEELC 19898 (KLR) where this court held:
“The next head is whether this court should order exemplary damages or aggravated damages for the continued trespass given the total disrespect of the orders issued by this court in 2017, which gave injunctive relief in the interim, and that the first defendant was to desist from further dumping waste at the suit land until the current suit was heard and determined. In addition, the first defendant has failed to follow the procedure for the establishment of a dumpsite as provided by law – by seeking an EIA Report from the second defendant and obtaining the necessary licence thereto. The first defendant has been in flagrant disrespect of the law of the land to the detriment of the plaintiffs who have all along brought their grievances to the attention of the first defendant. Lord Devlin’s principle in Loudon v. Ryder [1953] 2 QB 202, has been cited by the plaintiff as a persuasive authority to be applied in this case where it was observed that ‘punitive damages could be awarded based on a ‘fine which has to hit the defendant hard if he has disregarded the rights of others and to show that that sort of conduct does not pay’. That could be germane, in this case, but from the prayers sought there is no plea for exemplary or punitive damages.”
57. In the present case, none of the conditions justifying an award of exemplary damages have been met. The defendant entered into a lease agreement with the interested parties regarding a property for which they had no good title to pass. There is no evidence that the defendant’s conduct was oppressive, arbitrary, or unconstitutional, nor was any malice or intentional wrongdoing proved.
58. The other prayers namely: an order directing the defendant to restore the suit land to its prior condition or, in lieu thereof, pay the sum assessed as the cost of such restoration; and an order requiring the defendant to render an account of all benefits derived and to restitute the same to the plaintiff will be a duplication in view of the general damages already awarded.
59. As noted in the proceedings, the defense and counterclaim by the interested parties fell by the wayside after the court directed that they proceed in another forum and that their inclusion in this matter was vexing. I need not comment further.
60. This will constitute the final orders of this court:
a) A declaration is hereby issued that the defendants' acts of excavation on land comprised of Parcel LR No. 2109 (M20/2), Malindi, constituted trespass.
b) An order of permanent injunction does issue, restraining the defendant, its agents, employees, successors in title, or anyone acting on its behalf from further trespassing on parcel number LR No. 2109(M20/2) and, in particular, from excavating and removing soil and rocks from parcel LR No. 2109(M20/2), Malindi.
c) The Plaintiffs are awarded General Damages. Kshs. 12,000,000/- to be borne by the defendant.
d) The Plaintiffs are also awarded Costs and Interest at the court rate.
Dated, signed, and delivered electronically in Malindi on December 11, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Githinji for the Plaintiffs
Mr. Gachau for the Defendants
Jill: Court Assistant