1. By a Plaint dated the 28/10/2015, the Plaintiff prays for Judgment against the Defendants for:
1) A permanent injunction restraining the defendants whether by themselves, their servants, agents, assigns or whomsoever from trespassing, gaining ingress, excavating or in any other manner whatsoever interfering with the Plaintiff’s quiet and peaceful enjoyment and occupation of all that suit property known as C.R No. 29462, sub-division no. 879 (Original No. 284/92) Section III/MN registered at the Mombasa Lands District Registry;
2) An order of mandatory injunction, compelling the defendants, their agents, servants, assigns and or employees to forthwith remove their excavators and fill up the gaping holes left as a result of excavation on all that suit property known as Subdivision No. 879 (Original No. 284/92) CR No. 29462 Mombasa, and vacate the premises forthwith;
3) Damages for trespass;
4) Costs of this suit.
2. Briefly, the Plaintiff’s case was that he was at all material times, the registered owner of all that property known as C.R No. 29462, sub-division no. 879 (Original No. 284/92) Section III/MN registered at the Mombasa Lands District Registry, measuring approximately 0.3466Ha and situate in Kikambala (hereinafter also referred to as “the suit property”), having purchased it for a consideration on 22/12/2014. The Plaintiff averred that on 26/10/2015, the 1st Defendant under the instructions of the 2nd defendant, illegally entered the suit property to excavate construction material, without his consent; that despite his protests, the Defendants have continued with their illegal acts to the detriment of the Plaintiff.
3. Although the Defendants entered appearance, they failed to file any defence, and the matter proceeded as an undefended claim. The Plaintiff testified as PW1, adopting his witness statement dated 29/10/2015 and producing a copy of a Certificate of Title and Valuation Report as Exhibits 1 and 2.
Submissions by the Plaintiff
4. The Plaintiff’s counsel submitted that the Plaintiff’s ownership was not challenged and is therefore protected under Section 26 of the Land Registration Act. For that reason, counsel argued that the Plaintiff is entitled to full enjoyment of all rights and privileges accruing therefrom. He submitted that the continued excavation by the Defendants infringes on the Plaintiff’s rights enshrined in Article 40 of the Constitution of Kenya. To buttress his arguments, counsel relied on the case of Kamoye v Tipango & 2 Others (ELC E011 of 2023) [2024] KEELC 4227 eKLR and Entick v Carrington [1765] 95 ER 807 KB.
5. Counsel argued that the Plaintiff is entitled to the reliefs sought. In assessing damages for trespass, counsel urged the court to be guided by the valuation report and the cases of Duncan Nderitu Ndegwa v KPLC Limited & Another [2013] eKLR; and Philip Ayaya Aluchio v Chrispinus Ngayo [2014] eKLR. Further relying on the case of Orix Oil (K) Limited v Paul Kabeu & 2 Others [2014] eKLR, counsel prayed that the Plaintiff be awarded costs of the suit.
ANALYSIS AND DETERMINATION
6. The Plaintiff has tendered uncontroverted evidence of ownership of the suit property. Under Section 26(1) of the Land Registration Act, the certificate of title is prima facie evidence of proprietorship, which entitles the Plaintiff to the rights and privileges appurtenant thereto, including the right to exclusive use and occupation. That section reads as follows:
“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, except –
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”
7. Section 24(a) of the Land Registration Act further stipulates as follows:
“Subject to this Act, the registration of a person as a proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto...”
8. In the case of Willy Kipsongok Morogo v Albert K. Morogo (2017) eKLR the Court held as follows:
“The evidence on record shows that the suit parcel of land is registered in the names of the Plaintiff and therefore is entitled to the protection under sections 24, 25 and 26 of the Land Registration Act.”
9. It follows therefore that the acts of excavation on the Plaintiff’s land by the Defendants, in the absence of any legal justification or authority, amount to trespass. The Plaintiff is therefore entitled to remedies to protect his proprietary rights, including injunctive reliefs.
10. The prayer for a permanent injunction is merited and is hereby granted. The court is also satisfied that a mandatory injunction is necessary to restore the property to its original state by removal of excavators and refilling of excavated holes, as supported by the valuation report.
11. On the issue of damages, the court is aware that trespass as a tort is actionable per se, hence a claimant does not have to demonstrate particular loss or damage in order to be entitled to general damages.
12. The valuation report exhibited in court reveals that the valuation was conducted before the Defendants entered the suit property. The suit property was valued at Kshs. 4,500,000/= in 2015. No further valuation or expert report was tendered to demonstrate the actual extent of damage caused by the excavation works. Nonetheless, taking notice of the nature of the intrusion, being the unlawful entry and excavation of land by heavy machinery, the court is satisfied that the Plaintiff suffered interference with his proprietary rights. In the circumstances, I award the Plaintiff a nominal amount of general damages for trespass in the sum of Kshs. 500,000/=.
13. In the result, judgment is entered for the Plaintiff against the Defendants jointly and severally as follows:
a) A permanent injunction is hereby issued restraining the Defendants, their agents, employees, servants, or anyone acting under their authority from trespassing or in any manner interfering with the Plaintiff’s quiet possession of the property known as C.R No. 29462, Sub-division No. 879 (Original No. 284/92) Section III/MN;
b) A mandatory injunction is hereby issued compelling the Defendants to forthwith remove their excavators and refill the gaping holes resulting from excavation on the suit property;
c) General damages for trespass in the sum of Kshs. 500,000;
d) The costs of the suit are awarded to the Plaintiff.
Dated, signed and delivered at Malindi via electronic mail on this 27th day of June 2025.
1) A permanent injunction restraining the defendants whether by themselves, their servants, agents, assigns or whomsoever from trespassing, gaining ingress, excavating or in any other manner whatsoever interfering with the Plaintiff’s quiet and peaceful enjoyment and occupation of all that suit property known as C.R No. 29462, sub-division no. 879 (Original No. 284/92) Section III/MN registered at the Mombasa Lands District Registry;
2) An order of mandatory injunction, compelling the defendants, their agents, servants, assigns and or employees to forthwith remove their excavators and fill up the gaping holes left as a result of excavation on all that suit property known as Subdivision No. 879 (Original No. 284/92) CR No. 29462 Mombasa, and vacate the premises forthwith;
3) Damages for trespass;
4) Costs of this suit.
2. Briefly, the Plaintiff’s case was that he was at all material times, the registered owner of all that property known as C.R No. 29462, sub-division no. 879 (Original No. 284/92) Section III/MN registered at the Mombasa Lands District Registry, measuring approximately 0.3466Ha and situate in Kikambala (hereinafter also referred to as “the suit property”), having purchased it for a consideration on 22/12/2014. The Plaintiff averred that on 26/10/2015, the 1st Defendant under the instructions of the 2nd defendant, illegally entered the suit property to excavate construction material, without his consent; that despite his protests, the Defendants have continued with their illegal acts to the detriment of the Plaintiff.
3. Although the Defendants entered appearance, they failed to file any defence, and the matter proceeded as an undefended claim. The Plaintiff testified as PW1, adopting his witness statement dated 29/10/2015 and producing a copy of a Certificate of Title and Valuation Report as Exhibits 1 and 2.
Submissions by the Plaintiff
4. The Plaintiff’s counsel submitted that the Plaintiff’s ownership was not challenged and is therefore protected under Section 26 of the Land Registration Act. For that reason, counsel argued that the Plaintiff is entitled to full enjoyment of all rights and privileges accruing therefrom. He submitted that the continued excavation by the Defendants infringes on the Plaintiff’s rights enshrined in Article 40 of the Constitution of Kenya. To buttress his arguments, counsel relied on the case of Kamoye v Tipango & 2 Others (ELC E011 of 2023) [2024] KEELC 4227 eKLR and Entick v Carrington [1765] 95 ER 807 KB.
5. Counsel argued that the Plaintiff is entitled to the reliefs sought. In assessing damages for trespass, counsel urged the court to be guided by the valuation report and the cases of Duncan Nderitu Ndegwa v KPLC Limited & Another [2013] eKLR; and Philip Ayaya Aluchio v Chrispinus Ngayo [2014] eKLR. Further relying on the case of Orix Oil (K) Limited v Paul Kabeu & 2 Others [2014] eKLR, counsel prayed that the Plaintiff be awarded costs of the suit.
ANALYSIS AND DETERMINATION
6. The Plaintiff has tendered uncontroverted evidence of ownership of the suit property. Under Section 26(1) of the Land Registration Act, the certificate of title is prima facie evidence of proprietorship, which entitles the Plaintiff to the rights and privileges appurtenant thereto, including the right to exclusive use and occupation. That section reads as follows:
“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, except –
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”
7. Section 24(a) of the Land Registration Act further stipulates as follows:
“Subject to this Act, the registration of a person as a proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto...”
8. In the case of Willy Kipsongok Morogo v Albert K. Morogo (2017) eKLR the Court held as follows:
“The evidence on record shows that the suit parcel of land is registered in the names of the Plaintiff and therefore is entitled to the protection under sections 24, 25 and 26 of the Land Registration Act.”
9. It follows therefore that the acts of excavation on the Plaintiff’s land by the Defendants, in the absence of any legal justification or authority, amount to trespass. The Plaintiff is therefore entitled to remedies to protect his proprietary rights, including injunctive reliefs.
10. The prayer for a permanent injunction is merited and is hereby granted. The court is also satisfied that a mandatory injunction is necessary to restore the property to its original state by removal of excavators and refilling of excavated holes, as supported by the valuation report.
11. On the issue of damages, the court is aware that trespass as a tort is actionable per se, hence a claimant does not have to demonstrate particular loss or damage in order to be entitled to general damages.
12. The valuation report exhibited in court reveals that the valuation was conducted before the Defendants entered the suit property. The suit property was valued at Kshs. 4,500,000/= in 2015. No further valuation or expert report was tendered to demonstrate the actual extent of damage caused by the excavation works. Nonetheless, taking notice of the nature of the intrusion, being the unlawful entry and excavation of land by heavy machinery, the court is satisfied that the Plaintiff suffered interference with his proprietary rights. In the circumstances, I award the Plaintiff a nominal amount of general damages for trespass in the sum of Kshs. 500,000/=.
13. In the result, judgment is entered for the Plaintiff against the Defendants jointly and severally as follows:
a) A permanent injunction is hereby issued restraining the Defendants, their agents, employees, servants, or anyone acting under their authority from trespassing or in any manner interfering with the Plaintiff’s quiet possession of the property known as C.R No. 29462, Sub-division No. 879 (Original No. 284/92) Section III/MN;
b) A mandatory injunction is hereby issued compelling the Defendants to forthwith remove their excavators and refill the gaping holes resulting from excavation on the suit property;
c) General damages for trespass in the sum of Kshs. 500,000;
d) The costs of the suit are awarded to the Plaintiff.
Dated, signed and delivered at Malindi via electronic mail on this 27th day of June 2025.