'1. The Plaintiff’s claim against the Defendant is as stated in the Plaint dated August 18, 2023. The Plaintiff requests the following reliefs:
a) An order of permanent injunction restraining the Defendant, himself, his agents, employees, servants, or anyone else from entering, trespassing into, or otherwise dealing with or interfering in any manner with the Plaintiff’s occupation, access, use, or peaceful possession of the suit property.
b) General damages for trespass; and
c) The cost of the suit.
2. The Defendant contests the Plaintiff’s suit with his Written Statement of Defense and Counterclaim dated April 18, 2024.
3. This matter went to full trial with each side presenting evidence and producing documents to support their case. In the end, the court directed the parties to file written submissions.
4. I acknowledge with appreciation the submissions from learned counsel for the Plaintiff, Mr. Njuguna, and learned counsel for the Defendant, Ms. Omollo, as they significantly contributed to resolving the issues raised in the suit.
5. Based on the pleadings on record and the evidence presented during the hearing, these are the issues I frame for the court to determine: whether the Plaintiff has proven ownership of the suit property; whether the Plaintiff has demonstrated that the Defendant trespassed on the property; whether the Defendant''s counterclaim is justified; and who should bear the costs of this suit.
6. The Plaintiff’s employee, Mr. Samuel Charo (PW 1), adopted his witness statement dated August 18, 2023, as his primary evidence. He stated that he works on the property as a guard and has been employed since 2015. He also said that he was present when the Defendant and his goons invaded the Plaintiff’s property on July 19, 2023. His testimony was that his statement focused solely on what he witnessed on July 19, 2023, regarding the invasion and the demolition of the perimeter wall, as well as his subsequent report to the police, and did not pertain to property ownership before 2015, when he was employed. Regarding his employment, including through an employment contract and payslips, the witness stated during re-examination that the case is not about his employment but about the Defendant''s acts of trespass, which he observed.
7. Mr. Fedinard Katunda (PW2) adopted his Witness Statement dated June 19, 2024, as part of the Plaintiff’s Supplementary List of Witnesses dated July 10, 2024. The witness confirmed he knew the Defendant because the Defendant’s brother is married to his sister. He also confirmed he was aware that the Defendant sold land to the Plaintiff and that he was the one who took the Defendant to meet the Plaintiff’s Directors to negotiate the sale. Additionally, he testified that the property was sold to the Plaintiff for Kshs. 1,000,000, and the transaction was completed at Sachdeva and Company Advocates in Mombasa. He stated that the Defendant was paid in cash and that he executed the transfer in the Defendant''s favor. A copy of the franked transfer dated January 4, 1992 (Page 25 of the Plaintiff’s supplementary List of Documents dated July 10, 2024) was presented as evidence of the transfer. PW2 further testified that the Defendant later became a shareholder and director of the Plaintiff on February 6, 1993, after acquiring one (1) ordinary share from Ephantus Eustuce Thegetha, while Mr. Giovanni also acquired a share from Beatrice Nduku. Copies of the Share Transfer to the Defendant were shown at pages 14-15 of the Plaintiff’s supplementary List of Documents dated July 10, 2024. The witness stated that Ephantus Eustuce Thegetha and Beatrice Nduku were the promoters and initial shareholders and directors of the Plaintiff, as shown by the Articles and Memorandum of Association at pages 1-12 of the Plaintiff’s supplementary List of Documents. He added that he also became a shareholder of the Plaintiff after the Defendant transferred his one share to him, as shown by the Share Transfer at pages 19-20 of the same documents. The witness explained that he later transferred his share to Mr. Anthony Gross, while Mr. Giovanni transferred his shares to Mr. Jeremy Keegan. He also stated that the company''s registered office has always been the suit property. He confirmed that the Defendant was not a stranger to the Plaintiff, and that the Defendant''s signature on the land transfer form matched those on the share transfer forms between the Defendant and Mr. Thegetha, as well as the transfer from the Defendant to the witness. Regarding the two copies of titles listed by the Defendant, he verified that both show the Plaintiff as the registered owner. The latter title, dated March 29, 2005, was issued after the original title, dated January 9, 1992, was lost and officially gazetted for replacement. The gazette notice of the title replacement, dated October 22, 2004, was exhibited at pages 28-29 of the Plaintiff’s supplementary List of Documents. During cross-examination, he confirmed witnessing the sale and payment of Kshs. 1,000,000 to the Defendant at Sachdeva’s advocates’ office. He also confirmed that the original title showing the Plaintiff as the registered owner is available, but that no notice to produce the original or the sale agreement has been issued. Furthermore, he stated there was no allegation in the Defendant’s counterclaim disputing the sale or the Defendant’s signature on the transfer document. He also confirmed that he found no allegations or details of fraud in the Defendant’s counterclaim disputing the sale or the franked transfer document, which Mr. L.J Manghnani witnessed, then working for Sachdeva & Company Advocates.
8. Mr. Anthony Gross (PW3) adopted his witness statement dated August 18, 2023, as his primary evidence. He stated that he became a shareholder and director of the Plaintiff in 1992 after purchasing shares from PW2. In re-examination, he confirmed that he had the necessary resolution dated August 14, 2023, to act on behalf of the Plaintiff, which was included in the Plaintiff’s List of Documents dated August 18, 2023. He further testified that when he bought the shares from PW2, the Plaintiff owned assets, including the suit property, and that due diligence was conducted on all company assets. He testified that the Plaintiff’s lawsuit against the Defendant concerns the Defendant’s trespass on the suit property belonging to the Plaintiff. He also stated that the Plaintiff’s ownership of the suit property has never been challenged in any court. Regarding the absence of a passport-sized photograph in the transfer, the witness, who has over 30 years of active legal practice, confirmed that the requirement for passport photos in transfers did not exist in 1992. Additionally, he confirmed that the original title bearing the Plaintiff’s name was available and that the Defendant did not allege in his counterclaim that the transfer was forged. He further testified that the Defendant’s signature on the land transfer closely resembled his other signatures on the share transfer forms between him and PW2.
9. Mr. Rory Keegan (PW 4) adopted his Witness Statement dated June 20th, 2024, as his primary evidence. He testified that he became a shareholder of the Plaintiff after inheriting shares from his deceased brother, Mr. Jeremy Keegan, in 2014, and that he also became one of the Plaintiff’s directors. The witness confirmed that he was aware of the location of the suit property, which was fenced with coral stones, and that he was testifying a few yards away from it. During cross-examination, he confirmed that he had not heard of the Defendant until 2017, when the Defendant lodged ownership claims with the NLC, and that the NLC cleared the suit property in favor of the Plaintiff.
10. Mr. Daniel Hare Randu (DW1), the defendant, adopted his witness statement dated August 18, 2024, as his primary evidence, along with his list of documents marked as DEX 1-17. He denied ever selling or trespassing on the property. Contrary to his witness statement claiming that he had occupied the suit property for over 40 years and buried relatives there, he denied making such a statement. The witness confirmed that he lives with his family in Kijiwe Tanga, which is two hours from the suit property. Regarding his claim to be the legal owner of the suit property, he stated that he has no title documents to support this claim. He mentioned that he had given his title to Karisa Dhuri to remove the embargo on parcels of land in the Chembe/Kibabamshe Adjudication area, but this was never done. During further cross-examination, he confirmed that the issues involving Kharisa Duri and the embargo did not matter, as he had pleaded in his counterclaim and had not included them in his witness statement. He also clarified that although he alleged in his witness statement that the Plaintiff acquired the land fraudulently and through forgery, he did not provide any details of the alleged fraud or forgery in his three-paragraph counterclaim. Additionally, he denied that his signature or thumbprint appeared on the verifying affidavit of his counterclaim. When asked about his knowledge of the alleged fraud, he stated he became aware of it in 1978, and he later complained to the NLC in 2017. He confirmed that in 2017, the NLC cleared the land for the Plaintiff, and he never challenged the NLC report in court. Furthermore, despite exhibiting a Charge document in favor of Barclays Bank, he denied ever charging the property. He also denied holding any shares in the Plaintiff. Regarding the rates payment for the suit property, he acknowledged that, according to the Plaintiff’s documents (Pages 37-48 of the Plaintiff’s supplementary List of Documents), the Plaintiff has been paying Kilifi County land rates over the years. However, he could not confirm any rate payments on his part, despite claiming ownership. Concerning the prayers in his counterclaim, he admitted he had not provided specific details to support his requests, such as the reconstruction of the green card, an injunction, or revocation of the Plaintiff’s title.
11. Ms. Rose Dama Randu (DW2) adopted her witness statement dated March 18, 2024, as her primary evidence. She confirmed that DW1 was her father. The witness said she lives in Kijiwe Tanga with DW1 and that, contrary to her earlier statement, they have never occupied the suit property or buried any relatives there. She disowned her previous statement about occupation and cultivation for over 40 years. Regarding the claim that the Defendant forged the title, she stated that Karisa Dhuri was responsible. However, she confirmed she had not mentioned Kharisa Dhuri in her witness statement, and no such details had been included in the Defendant’s counterclaim.
12. Mr. Tsuma Hanjari Dadi (DW 3) adopted his witness statement dated April 18, 2024, as his primary evidence. The witness confirmed that DW1 lives in Kijiwe Tanga. He also testified that he knew NLC had visited the land and recorded it in favor of the Plaintiff. He further confirmed that the Defendant did not challenge the NLC Report and that the court should follow the NLC findings. Regarding his statement that the Kilifi Jimba Committee meeting, chaired by Honourable Gideon Mung’aro, declared the land as belonging to the Defendant, the witness testified that he had no such minutes, and none of the committee members were witnesses to the Defendant’s case. Regarding the Plaintiff''s claim that he obtained the title fraudulently, the witness stated he could not verify it.
13. Mr. Phillip Shikari Kazungu (DW 4) adopted the witness statement dated October 7, 2024. Essentially, the witness aimed to assert his claim over Chembe/Kibabamshe/355 against Karisa Dhuri in the Plaintiff’s suit. However, the facts show that the Defendant did not plead Kharisa Dhuri or his alleged questionable dealings in his counterclaim or in his witness statement
Whether the Plaintiff proved ownership of the suit property
14. Ms. Omollo contends that the Defendant asserts the suit property has been under his occupation and use for over forty years, during which he has undertaken substantial developments, including clearing bush, engaging in farming, and generating income from the land. The Defendant has submitted a charge issued to him in 1983, a copy of the adjudication record dated September 1977, official receipts from the Department of Lands, and a letter from the local land committee dated July 13, 2011. These documents are uncontested and constitute the basis of his claim to the land. The Defendant further states that neither the Plaintiff nor any of its representatives has demonstrated lawful possession, ownership, or title to the suit property.
15. Conversely, Mr. Njuguna, with whom I agree, emphasizes that it is undisputed that the Plaintiff holds the registered title to the suit property, as shown by copies of titles provided by both the Plaintiff and the Defendant. The title copies submitted by the Defendant, which identify the Plaintiff as the registered owner, are authenticated by the Kilifi Registrar as true copies of the original documents. In this context, section 26 of the Land Registration Act states: 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 and the title of that proprietor shall not be subject to challenge, except on the grounds of fraud or misrepresentation to which the person is proved to be a party; or where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme.
16. I also align myself with the judicial authorities cited concerning the effect of registration as cited by Mr. Njuguna, notably Ali Wanje Ziro v Abdulbasit Abeid Said & Another [2022] eKLR, Joseph Arap Ngok v Justice Moijo Ole Keiwa & 5 others eKLR, Nairobi Civil Application No. 60 of 1997, and Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna & Another (2013) eKLR. That all courts shall take a Certificate of Title issued by the Registrar upon registration as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, and the title of that proprietor shall not be subject to challenge except on the ground of fraud or misrepresentation to which the person is proved to be a party; or where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme.
17. Invoking Section 26 of the Land Registration Act and the cases previously cited, it is clear that the title deed for Chembe/Kibabamshe/354 explicitly shows the Plaintiff as the registered owner of the property. As a result, the Plaintiff''s property rights are fully protected under the law. PW2, PW3, and DW1 all confirmed that the copies of titles submitted as evidence correctly identified the Plaintiff as the registered owner. On the other hand, the Defendant did not provide any certificate of title or official search to support his claim that he is the registered owner of the property. Instead, his claim is based on the Kilifi settlement scheme committee letter dated 13 July 2011, which cannot override the Certificate of Title issued in the Plaintiff''s name. The court finds the defendant''s counterclaim unsubstantiated due to a lack of legal evidence supporting ownership or rights over the property.
18. Furthermore, the ownership of the suit property by the Plaintiff was confirmed by the NLC through Gazette Notice No. 6862 of July 17, 2017 (see PEX 2) following the Defendant’s complaint. The Defendant acknowledged in cross-examination that he never challenged that report. DW 3 also confirmed that the NLC''s determination should guide the court. Therefore, the Plaintiff’s title, which provides prima facie evidence of ownership, is indefeasible except in cases such as fraud or misrepresentation. The Gazette Notice''s recognition of the Plaintiff’s ownership further solidifies the legal standing of the Plaintiff’s claim, and the defendant''s failure to challenge this reinforces the court''s conclusion.
Whether the Plaintiff proved that the Defendant trespassed on the suit property
19. As the legal owner of the suit property, the Plaintiff’s right to protection of private property is guaranteed under Article 40 of the Constitution. See Musau v Mutata & another (Environment & Land Case E102 of 2021) [2023] KEMC 109 (KLR).
20. Section 3(1) of the Trespass Act, Cap 294, enacts that:
“Any person who without reasonable excuse enters, or remains upon or erects any structure on, or cultivates or tilts or grazes stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.”
21. Thus, trespass constitutes an unwarranted intrusion by an individual onto land in lawful possession and ownership of another party, lacking a justifiable reason.
22. The Court of Appeal in Charles Ogejo Ochieng v Geoffrey Okumu [1995] eKLR took a view that:
“Trespass is an injury to the possessory right, and therefore the proper Plaintiff in an action for trespass to land is the person who has title to it, or a person who is deemed to have possession at the time of the trespass.”
23. To succeed in a claim for trespass, the burden initially lies with the Plaintiff to show, on a balance of probabilities, that he is either the bona fide owner or possessor of the suit property, or that he is, or is entitled to be, in immediate possession of the suit property, or both. Additionally, the Plaintiff must prove that the defendant has intruded, occupied, or remained on the suit property without lawful justification. As already demonstrated, the Plaintiff is the registered owner of the suit property, as evidenced by the Certificate of Title. The photographic evidence of the demolished perimeter wall, the police report, and the chief''s letter collectively establish the trespass, addressing any concerns about the sufficiency of evidence.
24. The Plaintiff''s acts of trespass were explicitly alleged in paragraphs 5 through 7 of its Plaint. Additionally, the Plaintiff demonstrated that the trespass complaint was lodged with Kizingo Police Station on July 21, 2023, and documented as OB No. 06/21/07/2023. The complaint was also submitted to the assistant area chief for Chembe Kibabamshe on August 15, 2023, and the chief confirmed through his letter that the Defendant was claiming ownership of the Plaintiff’s property. The Plaintiff also presented photographic evidence of the demolished perimeter wall on the suit property, supported by a certificate of electronic evidence dated August 18, 2023, which the Defendant never challenged.
25. PW 1 testified that he witnessed the acts of trespass on July 19, 2023, at midday, and that the trespass by the Defendant and his servants and/or agents was also reported to the police. His testimony remained unchallenged during cross-examination. The identity of the Defendant as the person who issued instructions for the invasion or trespass of the Plaintiff’s property was also not contested during cross-examination.
26. Conversely, the Defendant only asserted ownership of the disputed property without denying the trespass allegations. It is therefore evident that the Defendant took the law into his own hands by unlawfully invading the property without any valid legal reason and demolishing part of the perimeter wall.
27. I concur with Mr. Njuguna that these were unequivocal acts of trespass warranting legal redress. The defendant’s unlawful actions infringed upon the plaintiff’s right to quiet possession, thereby classifying the defendant as a trespasser without any legal justification to interfere with the plaintiff’s property. Consequently, the plaintiff is entitled to the relief as sought in the plaint.
28. Once trespass to land is established, and supported by judicial authorities with which I concur, as correctly submitted by Mr. Njuguna, it is actionable per se. Furthermore, no proof is required for the court to award damages, as established in the cases of Kenya Power & Lighting Company Ltd v Fleetwood Enterprises Limited [2017] eKLR and Godfrey Julius Ndumba Mbogori & Another v Nairobi City County [2018] eKLR.
29. Concerning the awarding of general damages, although the Plaintiff did not specify a particular amount, the range of general damages awarded by the Environment and Land Court (ELC) for general trespass to land, which is actionable per se, varies significantly. Awards can range from approximately Kshs 100,000 to Kshs 10,000,000 or more, depending on the extent of trespass. These amounts are entirely contingent upon the specific circumstances and evidence of loss presented in each case.
30. The measure of general damages for trespass is typically the difference in the property''s value immediately after the trespass or the cost of restoration, whichever is less. When specific actual damages are not demonstrated, the court may award a nominal amount.
31. The court has reviewed the authority of Nakuru Industries Ltd v S S Mehta & Sons [2016] eKLR, wherein the plaintiff was awarded Kshs 500,000 in damages for land trespass. Furthermore, the court has examined the case of Kennedy J Wamalwa v Rural Electrification Authority [2020] eKLR, in which the plaintiff received Kshs 200,000 following a successful claim of land trespass involving unauthorized entry onto the plaintiff''s land, cutting down trees, erecting an electric post, and removing a fence without permission.
32. The court notes that the defendant in this case enlisted goons to invade and demolish the Plaintiffs'' perimeter wall, which was later halted after reporting to the police. This act involved unauthorized entry and destruction. The court awards the Plaintiff Kshs 500,000 for trespass.
33. In its pursuit of a permanent injunction, the Plaintiff has established that it is the registered owner of the suit property, possessing all rights and privileges, including quiet possession. Established legal principles affirm that a permanent injunction permanently restrains the defendant from engaging in specific acts to safeguard the rights of the Plaintiff.
34. In the case of Free Pentecostal Fellowship in Kenya v the County Government of Nyamira [2021] eKLR, the case cited by the Plaintiff is relevant to the current situation, while also considering the case of Kenya Power & Lighting Company Ltd v Sheriff Molana Habib [2018] eKLR, which delineates the considerations pertinent to a permanent injunction:
“It determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merit of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the Defendant for the rights of the Plaintiff to be protected.”
35. Therefore, the Plaintiff is entitled to the injunction requested in the plaint.
Whether the Defendant''s counterclaim is merited
36. The Defendant, in response to the Plaintiff’s lawsuit, filed his Statement of Defence and Counterclaim dated April 18, 2024. The details of the Defendant’s cross-action through the counterclaim were outlined as follows:
“1. A declaration that the Defendant at all material times incidental to this suit is the legal owner of the disputed land known as Chembe/ Kibabamshe/354 measuring approximately 1.8 Hectares.
2. The Defendant accordingly claims against the Plaintiff a permanent injunction order plus costs and interest.
3. The subject property is situated within the jurisdiction of this honourable court.”
37. Ms. Omollo, representing the Defendant, contends that the Defendant is entitled to the reliefs sought in his counterclaim. This Court possesses jurisdiction pursuant to Section 80(1) of the Land Registration Act to rectify or cancel titles procured through fraud. In the case of Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others [2015] eKLR, the Court decreed that titles obtained unprocedurally or via fraudulent means must be cancelled, and the register rectified accordingly. The Defendant requests a permanent injunction, damages for trespass, revocation of the 1st Defendant''s title, and the issuance of a new title in his name, all of which are substantiated on the merits.
38. On the contrary, Mr Njuguna, for the Plaintiff, asserts that as a separate and distinct cause of action, the Defendant’s counterclaim above was devoid of any material particulars to support the prayers sought, such as permanent injunction, revocation of the Plaintiff’s title, or reconstruction of the Green Card.
39. The Plaintiff, in his Reply to Defense and Counterclaim, explicitly stated that he obtained the land from the Plaintiff through a purchase, and submitted the duly franked and registered transfer document. The fact of purchase, as alleged in paragraph 3 of the Defense to Counterclaim, was neither refuted nor denied by the Defendant, either in his pleadings or in his witness statement.
40. As previously established in the first point, Section 26 of the Land Registration Act, 2012, establishes a rebuttable presumption in favor of the Plaintiff that the aforementioned title deed constitutes prima facie evidence indicating that the Plaintiff is the absolute and indefeasible owner of the disputed property.
41. The allegations of fraud were neither pleaded nor proven. In cases where fraud is alleged, it is not enough to infer fraud from the facts alone. It must be shown that the party claiming fraud has explicitly pleaded and supported the alleged fraud in accordance with the required standards.
42. In Ahmed Mohammed Noor v Abdi Aziz Osman [2019] eKLR, the court held that:
“There is no doubt that fraud is a serious accusation. It must be pleaded and proved. Bullen, Leake & Jacobs on Pleadings 13th Edition provides as follows: -Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged. The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that fraud was the cause of the loss complained of.
It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and distinctly proved. ‘General allegations, however strong, may be by words in which they are stated, are insufficient to amount to an averment of fraud of which any Court ought to take notice’.”
43. Concerning the standard of proof, judicial authorities have established that the evidentiary burden required for claims founded on fraud is more stringent than that applicable to ordinary civil disputes. Refer to the court''s decision in the case of Kinyanjui Kamau v George Kamau [2015] eKLR, where it was articulated that:
“It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo [2008]1KLR (G&F) 742 wherein the court stated that: -
‘..We start by saying that it was the Respondent who was alleging that the will was a forgery, and the burden to prove the allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely, proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases.”
44. In this instance, the defendant merely indicated in his witness statement that the plaintiff obtained its title through fraudulent means. Nevertheless, the specifics of the alleged fraud or forgery were neither explicitly pleaded in his counterclaim nor demonstrated to the requisite standards, thereby rendering the counterclaim unsubstantiated. PW 1 affirmed that no particular allegation within the defendant’s defense or counterclaim disputed the fact that he sold land to the plaintiff. The witness further confirmed his inability to observe any allegations or particulars of fraud within the defendant’s counterclaim.
45. Additionally, PW 2 testified to the existence of the original title in the plaintiff''s name and indicated that the defendant did not make any counter-allegation in his counterclaim, asserting that the transfer was a forgery. DW 1, in his turn, verified during cross-examination that although he stated in his witness statement that the plaintiff’s title was acquired unlawfully, he had not pleaded such details of the alleged fraud or forgery in his counterclaim. He also did not refer to Kharisa Dhuri or the embargo issue in either his pleadings or his witness statement.
46. DW 2, on the other hand, stated that it was Kharisa Dhuri who forged the title. She, however, confirmed that she had not mentioned Kharisa Dhuri in her witness statement and that no such details had been pleaded in the Defendant’s counterclaim.
47. As submitted by Mr. Njuguna, with whom I concur, the consequence of failing to plead or specify fraud explicitly is exemplified in the case of Ahmed Mohammed Noor (Supra), wherein the court stated the following:
“In Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR, the Court of Appeal, in dismissing an allegation of fraud, held that: -
We have examined the appellants’ amended defence for any pleading on particulars of fraud or illegality, but there is none. The claims were therefore stillborn, and no evidence could be tendered. Even if it was open to tender evidence on fraud and illegality, the mere allegation that a sale agreement and a consent for transfer cannot be obtained on the same day is well below the standard of proof... We need not belabor this issue, as we are satisfied that it was neither properly pleaded nor strictly proved.
48. In the case of Chemjor v Chepkwony (Environment & Land Case 34 of 2022) [2023] KEELC 16864 (KLR), the Court articulated that:
“…. Being the one who desired judgment on the basis of the alleged wrongfulness and/or fraud, it behooved the defendant not only to specifically plead the alleged wrongfulness/fraud with particulars thereof provided but also prove the alleged wrongfulness on a standard slightly higher than on a balance of probabilities but less than beyond reasonable doubt….
As to whether either of the parties has made up a case for being granted the orders sought, the evidence adduced in this case shows that the plaintiff is the registered proprietor of the suit property and that the defendant has encroached on a portion thereon.
As the registered proprietor of the suit property, and the defendant having failed to demonstrate that the plaintiff acquired the suit property fraudulently, the plaintiff is entitled to the rights and privileges of a registered proprietor of land envisaged under Article 40 of the Constitution of Kenya and Section 25 of the Land Registration Act, 2012.”
49. The Defendant’s claim of fraud and forgery in his witness statements was neither explicitly pleaded as required by law nor convincingly proven to the required standards, and therefore the Plaintiff’s Counterclaim lacks merit.
50. Therefore, the Defendant is not entitled to any of the relief requested in his counterclaim; it is hereby dismissed with costs.
51. In conclusion, the Plaintiff has demonstrated, in accordance with the requisite standard of proof, that it is the registered owner of the disputed property, which the Defendant unlawfully encroached upon without any lawful justification or right. Consequently, the Plaintiff is entitled to all the reliefs requested in the Plaint with costs.
Summary
a) An order of permanent injunction is hereby issued restraining the Defendant, himself, his agents, employees, servants, or anyone else from entering, trespassing into, or otherwise dealing with or interfering in any manner with the Plaintiff’s occupation, access, use, or peaceful possession of the suit property.
b) Kshs 500,000/= for General damages for trespass; and
c) costs of the suit.
d) The counterclaim is hereby dismissed with costs.
Dated, signed, and delivered electronically in Malindi on November 26, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Njuguna for the Plaintiff
Ms. Apiyo for the Defendant
Happy: Court Assistant
'
a) An order of permanent injunction restraining the Defendant, himself, his agents, employees, servants, or anyone else from entering, trespassing into, or otherwise dealing with or interfering in any manner with the Plaintiff’s occupation, access, use, or peaceful possession of the suit property.
b) General damages for trespass; and
c) The cost of the suit.
2. The Defendant contests the Plaintiff’s suit with his Written Statement of Defense and Counterclaim dated April 18, 2024.
3. This matter went to full trial with each side presenting evidence and producing documents to support their case. In the end, the court directed the parties to file written submissions.
4. I acknowledge with appreciation the submissions from learned counsel for the Plaintiff, Mr. Njuguna, and learned counsel for the Defendant, Ms. Omollo, as they significantly contributed to resolving the issues raised in the suit.
5. Based on the pleadings on record and the evidence presented during the hearing, these are the issues I frame for the court to determine: whether the Plaintiff has proven ownership of the suit property; whether the Plaintiff has demonstrated that the Defendant trespassed on the property; whether the Defendant''s counterclaim is justified; and who should bear the costs of this suit.
6. The Plaintiff’s employee, Mr. Samuel Charo (PW 1), adopted his witness statement dated August 18, 2023, as his primary evidence. He stated that he works on the property as a guard and has been employed since 2015. He also said that he was present when the Defendant and his goons invaded the Plaintiff’s property on July 19, 2023. His testimony was that his statement focused solely on what he witnessed on July 19, 2023, regarding the invasion and the demolition of the perimeter wall, as well as his subsequent report to the police, and did not pertain to property ownership before 2015, when he was employed. Regarding his employment, including through an employment contract and payslips, the witness stated during re-examination that the case is not about his employment but about the Defendant''s acts of trespass, which he observed.
7. Mr. Fedinard Katunda (PW2) adopted his Witness Statement dated June 19, 2024, as part of the Plaintiff’s Supplementary List of Witnesses dated July 10, 2024. The witness confirmed he knew the Defendant because the Defendant’s brother is married to his sister. He also confirmed he was aware that the Defendant sold land to the Plaintiff and that he was the one who took the Defendant to meet the Plaintiff’s Directors to negotiate the sale. Additionally, he testified that the property was sold to the Plaintiff for Kshs. 1,000,000, and the transaction was completed at Sachdeva and Company Advocates in Mombasa. He stated that the Defendant was paid in cash and that he executed the transfer in the Defendant''s favor. A copy of the franked transfer dated January 4, 1992 (Page 25 of the Plaintiff’s supplementary List of Documents dated July 10, 2024) was presented as evidence of the transfer. PW2 further testified that the Defendant later became a shareholder and director of the Plaintiff on February 6, 1993, after acquiring one (1) ordinary share from Ephantus Eustuce Thegetha, while Mr. Giovanni also acquired a share from Beatrice Nduku. Copies of the Share Transfer to the Defendant were shown at pages 14-15 of the Plaintiff’s supplementary List of Documents dated July 10, 2024. The witness stated that Ephantus Eustuce Thegetha and Beatrice Nduku were the promoters and initial shareholders and directors of the Plaintiff, as shown by the Articles and Memorandum of Association at pages 1-12 of the Plaintiff’s supplementary List of Documents. He added that he also became a shareholder of the Plaintiff after the Defendant transferred his one share to him, as shown by the Share Transfer at pages 19-20 of the same documents. The witness explained that he later transferred his share to Mr. Anthony Gross, while Mr. Giovanni transferred his shares to Mr. Jeremy Keegan. He also stated that the company''s registered office has always been the suit property. He confirmed that the Defendant was not a stranger to the Plaintiff, and that the Defendant''s signature on the land transfer form matched those on the share transfer forms between the Defendant and Mr. Thegetha, as well as the transfer from the Defendant to the witness. Regarding the two copies of titles listed by the Defendant, he verified that both show the Plaintiff as the registered owner. The latter title, dated March 29, 2005, was issued after the original title, dated January 9, 1992, was lost and officially gazetted for replacement. The gazette notice of the title replacement, dated October 22, 2004, was exhibited at pages 28-29 of the Plaintiff’s supplementary List of Documents. During cross-examination, he confirmed witnessing the sale and payment of Kshs. 1,000,000 to the Defendant at Sachdeva’s advocates’ office. He also confirmed that the original title showing the Plaintiff as the registered owner is available, but that no notice to produce the original or the sale agreement has been issued. Furthermore, he stated there was no allegation in the Defendant’s counterclaim disputing the sale or the Defendant’s signature on the transfer document. He also confirmed that he found no allegations or details of fraud in the Defendant’s counterclaim disputing the sale or the franked transfer document, which Mr. L.J Manghnani witnessed, then working for Sachdeva & Company Advocates.
8. Mr. Anthony Gross (PW3) adopted his witness statement dated August 18, 2023, as his primary evidence. He stated that he became a shareholder and director of the Plaintiff in 1992 after purchasing shares from PW2. In re-examination, he confirmed that he had the necessary resolution dated August 14, 2023, to act on behalf of the Plaintiff, which was included in the Plaintiff’s List of Documents dated August 18, 2023. He further testified that when he bought the shares from PW2, the Plaintiff owned assets, including the suit property, and that due diligence was conducted on all company assets. He testified that the Plaintiff’s lawsuit against the Defendant concerns the Defendant’s trespass on the suit property belonging to the Plaintiff. He also stated that the Plaintiff’s ownership of the suit property has never been challenged in any court. Regarding the absence of a passport-sized photograph in the transfer, the witness, who has over 30 years of active legal practice, confirmed that the requirement for passport photos in transfers did not exist in 1992. Additionally, he confirmed that the original title bearing the Plaintiff’s name was available and that the Defendant did not allege in his counterclaim that the transfer was forged. He further testified that the Defendant’s signature on the land transfer closely resembled his other signatures on the share transfer forms between him and PW2.
9. Mr. Rory Keegan (PW 4) adopted his Witness Statement dated June 20th, 2024, as his primary evidence. He testified that he became a shareholder of the Plaintiff after inheriting shares from his deceased brother, Mr. Jeremy Keegan, in 2014, and that he also became one of the Plaintiff’s directors. The witness confirmed that he was aware of the location of the suit property, which was fenced with coral stones, and that he was testifying a few yards away from it. During cross-examination, he confirmed that he had not heard of the Defendant until 2017, when the Defendant lodged ownership claims with the NLC, and that the NLC cleared the suit property in favor of the Plaintiff.
10. Mr. Daniel Hare Randu (DW1), the defendant, adopted his witness statement dated August 18, 2024, as his primary evidence, along with his list of documents marked as DEX 1-17. He denied ever selling or trespassing on the property. Contrary to his witness statement claiming that he had occupied the suit property for over 40 years and buried relatives there, he denied making such a statement. The witness confirmed that he lives with his family in Kijiwe Tanga, which is two hours from the suit property. Regarding his claim to be the legal owner of the suit property, he stated that he has no title documents to support this claim. He mentioned that he had given his title to Karisa Dhuri to remove the embargo on parcels of land in the Chembe/Kibabamshe Adjudication area, but this was never done. During further cross-examination, he confirmed that the issues involving Kharisa Duri and the embargo did not matter, as he had pleaded in his counterclaim and had not included them in his witness statement. He also clarified that although he alleged in his witness statement that the Plaintiff acquired the land fraudulently and through forgery, he did not provide any details of the alleged fraud or forgery in his three-paragraph counterclaim. Additionally, he denied that his signature or thumbprint appeared on the verifying affidavit of his counterclaim. When asked about his knowledge of the alleged fraud, he stated he became aware of it in 1978, and he later complained to the NLC in 2017. He confirmed that in 2017, the NLC cleared the land for the Plaintiff, and he never challenged the NLC report in court. Furthermore, despite exhibiting a Charge document in favor of Barclays Bank, he denied ever charging the property. He also denied holding any shares in the Plaintiff. Regarding the rates payment for the suit property, he acknowledged that, according to the Plaintiff’s documents (Pages 37-48 of the Plaintiff’s supplementary List of Documents), the Plaintiff has been paying Kilifi County land rates over the years. However, he could not confirm any rate payments on his part, despite claiming ownership. Concerning the prayers in his counterclaim, he admitted he had not provided specific details to support his requests, such as the reconstruction of the green card, an injunction, or revocation of the Plaintiff’s title.
11. Ms. Rose Dama Randu (DW2) adopted her witness statement dated March 18, 2024, as her primary evidence. She confirmed that DW1 was her father. The witness said she lives in Kijiwe Tanga with DW1 and that, contrary to her earlier statement, they have never occupied the suit property or buried any relatives there. She disowned her previous statement about occupation and cultivation for over 40 years. Regarding the claim that the Defendant forged the title, she stated that Karisa Dhuri was responsible. However, she confirmed she had not mentioned Kharisa Dhuri in her witness statement, and no such details had been included in the Defendant’s counterclaim.
12. Mr. Tsuma Hanjari Dadi (DW 3) adopted his witness statement dated April 18, 2024, as his primary evidence. The witness confirmed that DW1 lives in Kijiwe Tanga. He also testified that he knew NLC had visited the land and recorded it in favor of the Plaintiff. He further confirmed that the Defendant did not challenge the NLC Report and that the court should follow the NLC findings. Regarding his statement that the Kilifi Jimba Committee meeting, chaired by Honourable Gideon Mung’aro, declared the land as belonging to the Defendant, the witness testified that he had no such minutes, and none of the committee members were witnesses to the Defendant’s case. Regarding the Plaintiff''s claim that he obtained the title fraudulently, the witness stated he could not verify it.
13. Mr. Phillip Shikari Kazungu (DW 4) adopted the witness statement dated October 7, 2024. Essentially, the witness aimed to assert his claim over Chembe/Kibabamshe/355 against Karisa Dhuri in the Plaintiff’s suit. However, the facts show that the Defendant did not plead Kharisa Dhuri or his alleged questionable dealings in his counterclaim or in his witness statement
Whether the Plaintiff proved ownership of the suit property
14. Ms. Omollo contends that the Defendant asserts the suit property has been under his occupation and use for over forty years, during which he has undertaken substantial developments, including clearing bush, engaging in farming, and generating income from the land. The Defendant has submitted a charge issued to him in 1983, a copy of the adjudication record dated September 1977, official receipts from the Department of Lands, and a letter from the local land committee dated July 13, 2011. These documents are uncontested and constitute the basis of his claim to the land. The Defendant further states that neither the Plaintiff nor any of its representatives has demonstrated lawful possession, ownership, or title to the suit property.
15. Conversely, Mr. Njuguna, with whom I agree, emphasizes that it is undisputed that the Plaintiff holds the registered title to the suit property, as shown by copies of titles provided by both the Plaintiff and the Defendant. The title copies submitted by the Defendant, which identify the Plaintiff as the registered owner, are authenticated by the Kilifi Registrar as true copies of the original documents. In this context, section 26 of the Land Registration Act states: 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 and the title of that proprietor shall not be subject to challenge, except on the grounds of fraud or misrepresentation to which the person is proved to be a party; or where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme.
16. I also align myself with the judicial authorities cited concerning the effect of registration as cited by Mr. Njuguna, notably Ali Wanje Ziro v Abdulbasit Abeid Said & Another [2022] eKLR, Joseph Arap Ngok v Justice Moijo Ole Keiwa & 5 others eKLR, Nairobi Civil Application No. 60 of 1997, and Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna & Another (2013) eKLR. That all courts shall take a Certificate of Title issued by the Registrar upon registration as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, and the title of that proprietor shall not be subject to challenge except on the ground of fraud or misrepresentation to which the person is proved to be a party; or where the certificate of title has been acquired illegally, unprocedurally, or through a corrupt scheme.
17. Invoking Section 26 of the Land Registration Act and the cases previously cited, it is clear that the title deed for Chembe/Kibabamshe/354 explicitly shows the Plaintiff as the registered owner of the property. As a result, the Plaintiff''s property rights are fully protected under the law. PW2, PW3, and DW1 all confirmed that the copies of titles submitted as evidence correctly identified the Plaintiff as the registered owner. On the other hand, the Defendant did not provide any certificate of title or official search to support his claim that he is the registered owner of the property. Instead, his claim is based on the Kilifi settlement scheme committee letter dated 13 July 2011, which cannot override the Certificate of Title issued in the Plaintiff''s name. The court finds the defendant''s counterclaim unsubstantiated due to a lack of legal evidence supporting ownership or rights over the property.
18. Furthermore, the ownership of the suit property by the Plaintiff was confirmed by the NLC through Gazette Notice No. 6862 of July 17, 2017 (see PEX 2) following the Defendant’s complaint. The Defendant acknowledged in cross-examination that he never challenged that report. DW 3 also confirmed that the NLC''s determination should guide the court. Therefore, the Plaintiff’s title, which provides prima facie evidence of ownership, is indefeasible except in cases such as fraud or misrepresentation. The Gazette Notice''s recognition of the Plaintiff’s ownership further solidifies the legal standing of the Plaintiff’s claim, and the defendant''s failure to challenge this reinforces the court''s conclusion.
Whether the Plaintiff proved that the Defendant trespassed on the suit property
19. As the legal owner of the suit property, the Plaintiff’s right to protection of private property is guaranteed under Article 40 of the Constitution. See Musau v Mutata & another (Environment & Land Case E102 of 2021) [2023] KEMC 109 (KLR).
20. Section 3(1) of the Trespass Act, Cap 294, enacts that:
“Any person who without reasonable excuse enters, or remains upon or erects any structure on, or cultivates or tilts or grazes stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.”
21. Thus, trespass constitutes an unwarranted intrusion by an individual onto land in lawful possession and ownership of another party, lacking a justifiable reason.
22. The Court of Appeal in Charles Ogejo Ochieng v Geoffrey Okumu [1995] eKLR took a view that:
“Trespass is an injury to the possessory right, and therefore the proper Plaintiff in an action for trespass to land is the person who has title to it, or a person who is deemed to have possession at the time of the trespass.”
23. To succeed in a claim for trespass, the burden initially lies with the Plaintiff to show, on a balance of probabilities, that he is either the bona fide owner or possessor of the suit property, or that he is, or is entitled to be, in immediate possession of the suit property, or both. Additionally, the Plaintiff must prove that the defendant has intruded, occupied, or remained on the suit property without lawful justification. As already demonstrated, the Plaintiff is the registered owner of the suit property, as evidenced by the Certificate of Title. The photographic evidence of the demolished perimeter wall, the police report, and the chief''s letter collectively establish the trespass, addressing any concerns about the sufficiency of evidence.
24. The Plaintiff''s acts of trespass were explicitly alleged in paragraphs 5 through 7 of its Plaint. Additionally, the Plaintiff demonstrated that the trespass complaint was lodged with Kizingo Police Station on July 21, 2023, and documented as OB No. 06/21/07/2023. The complaint was also submitted to the assistant area chief for Chembe Kibabamshe on August 15, 2023, and the chief confirmed through his letter that the Defendant was claiming ownership of the Plaintiff’s property. The Plaintiff also presented photographic evidence of the demolished perimeter wall on the suit property, supported by a certificate of electronic evidence dated August 18, 2023, which the Defendant never challenged.
25. PW 1 testified that he witnessed the acts of trespass on July 19, 2023, at midday, and that the trespass by the Defendant and his servants and/or agents was also reported to the police. His testimony remained unchallenged during cross-examination. The identity of the Defendant as the person who issued instructions for the invasion or trespass of the Plaintiff’s property was also not contested during cross-examination.
26. Conversely, the Defendant only asserted ownership of the disputed property without denying the trespass allegations. It is therefore evident that the Defendant took the law into his own hands by unlawfully invading the property without any valid legal reason and demolishing part of the perimeter wall.
27. I concur with Mr. Njuguna that these were unequivocal acts of trespass warranting legal redress. The defendant’s unlawful actions infringed upon the plaintiff’s right to quiet possession, thereby classifying the defendant as a trespasser without any legal justification to interfere with the plaintiff’s property. Consequently, the plaintiff is entitled to the relief as sought in the plaint.
28. Once trespass to land is established, and supported by judicial authorities with which I concur, as correctly submitted by Mr. Njuguna, it is actionable per se. Furthermore, no proof is required for the court to award damages, as established in the cases of Kenya Power & Lighting Company Ltd v Fleetwood Enterprises Limited [2017] eKLR and Godfrey Julius Ndumba Mbogori & Another v Nairobi City County [2018] eKLR.
29. Concerning the awarding of general damages, although the Plaintiff did not specify a particular amount, the range of general damages awarded by the Environment and Land Court (ELC) for general trespass to land, which is actionable per se, varies significantly. Awards can range from approximately Kshs 100,000 to Kshs 10,000,000 or more, depending on the extent of trespass. These amounts are entirely contingent upon the specific circumstances and evidence of loss presented in each case.
30. The measure of general damages for trespass is typically the difference in the property''s value immediately after the trespass or the cost of restoration, whichever is less. When specific actual damages are not demonstrated, the court may award a nominal amount.
31. The court has reviewed the authority of Nakuru Industries Ltd v S S Mehta & Sons [2016] eKLR, wherein the plaintiff was awarded Kshs 500,000 in damages for land trespass. Furthermore, the court has examined the case of Kennedy J Wamalwa v Rural Electrification Authority [2020] eKLR, in which the plaintiff received Kshs 200,000 following a successful claim of land trespass involving unauthorized entry onto the plaintiff''s land, cutting down trees, erecting an electric post, and removing a fence without permission.
32. The court notes that the defendant in this case enlisted goons to invade and demolish the Plaintiffs'' perimeter wall, which was later halted after reporting to the police. This act involved unauthorized entry and destruction. The court awards the Plaintiff Kshs 500,000 for trespass.
33. In its pursuit of a permanent injunction, the Plaintiff has established that it is the registered owner of the suit property, possessing all rights and privileges, including quiet possession. Established legal principles affirm that a permanent injunction permanently restrains the defendant from engaging in specific acts to safeguard the rights of the Plaintiff.
34. In the case of Free Pentecostal Fellowship in Kenya v the County Government of Nyamira [2021] eKLR, the case cited by the Plaintiff is relevant to the current situation, while also considering the case of Kenya Power & Lighting Company Ltd v Sheriff Molana Habib [2018] eKLR, which delineates the considerations pertinent to a permanent injunction:
“It determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merit of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the Defendant for the rights of the Plaintiff to be protected.”
35. Therefore, the Plaintiff is entitled to the injunction requested in the plaint.
Whether the Defendant''s counterclaim is merited
36. The Defendant, in response to the Plaintiff’s lawsuit, filed his Statement of Defence and Counterclaim dated April 18, 2024. The details of the Defendant’s cross-action through the counterclaim were outlined as follows:
“1. A declaration that the Defendant at all material times incidental to this suit is the legal owner of the disputed land known as Chembe/ Kibabamshe/354 measuring approximately 1.8 Hectares.
2. The Defendant accordingly claims against the Plaintiff a permanent injunction order plus costs and interest.
3. The subject property is situated within the jurisdiction of this honourable court.”
37. Ms. Omollo, representing the Defendant, contends that the Defendant is entitled to the reliefs sought in his counterclaim. This Court possesses jurisdiction pursuant to Section 80(1) of the Land Registration Act to rectify or cancel titles procured through fraud. In the case of Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others [2015] eKLR, the Court decreed that titles obtained unprocedurally or via fraudulent means must be cancelled, and the register rectified accordingly. The Defendant requests a permanent injunction, damages for trespass, revocation of the 1st Defendant''s title, and the issuance of a new title in his name, all of which are substantiated on the merits.
38. On the contrary, Mr Njuguna, for the Plaintiff, asserts that as a separate and distinct cause of action, the Defendant’s counterclaim above was devoid of any material particulars to support the prayers sought, such as permanent injunction, revocation of the Plaintiff’s title, or reconstruction of the Green Card.
39. The Plaintiff, in his Reply to Defense and Counterclaim, explicitly stated that he obtained the land from the Plaintiff through a purchase, and submitted the duly franked and registered transfer document. The fact of purchase, as alleged in paragraph 3 of the Defense to Counterclaim, was neither refuted nor denied by the Defendant, either in his pleadings or in his witness statement.
40. As previously established in the first point, Section 26 of the Land Registration Act, 2012, establishes a rebuttable presumption in favor of the Plaintiff that the aforementioned title deed constitutes prima facie evidence indicating that the Plaintiff is the absolute and indefeasible owner of the disputed property.
41. The allegations of fraud were neither pleaded nor proven. In cases where fraud is alleged, it is not enough to infer fraud from the facts alone. It must be shown that the party claiming fraud has explicitly pleaded and supported the alleged fraud in accordance with the required standards.
42. In Ahmed Mohammed Noor v Abdi Aziz Osman [2019] eKLR, the court held that:
“There is no doubt that fraud is a serious accusation. It must be pleaded and proved. Bullen, Leake & Jacobs on Pleadings 13th Edition provides as follows: -Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged. The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that fraud was the cause of the loss complained of.
It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and distinctly proved. ‘General allegations, however strong, may be by words in which they are stated, are insufficient to amount to an averment of fraud of which any Court ought to take notice’.”
43. Concerning the standard of proof, judicial authorities have established that the evidentiary burden required for claims founded on fraud is more stringent than that applicable to ordinary civil disputes. Refer to the court''s decision in the case of Kinyanjui Kamau v George Kamau [2015] eKLR, where it was articulated that:
“It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo [2008]1KLR (G&F) 742 wherein the court stated that: -
‘..We start by saying that it was the Respondent who was alleging that the will was a forgery, and the burden to prove the allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely, proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases.”
44. In this instance, the defendant merely indicated in his witness statement that the plaintiff obtained its title through fraudulent means. Nevertheless, the specifics of the alleged fraud or forgery were neither explicitly pleaded in his counterclaim nor demonstrated to the requisite standards, thereby rendering the counterclaim unsubstantiated. PW 1 affirmed that no particular allegation within the defendant’s defense or counterclaim disputed the fact that he sold land to the plaintiff. The witness further confirmed his inability to observe any allegations or particulars of fraud within the defendant’s counterclaim.
45. Additionally, PW 2 testified to the existence of the original title in the plaintiff''s name and indicated that the defendant did not make any counter-allegation in his counterclaim, asserting that the transfer was a forgery. DW 1, in his turn, verified during cross-examination that although he stated in his witness statement that the plaintiff’s title was acquired unlawfully, he had not pleaded such details of the alleged fraud or forgery in his counterclaim. He also did not refer to Kharisa Dhuri or the embargo issue in either his pleadings or his witness statement.
46. DW 2, on the other hand, stated that it was Kharisa Dhuri who forged the title. She, however, confirmed that she had not mentioned Kharisa Dhuri in her witness statement and that no such details had been pleaded in the Defendant’s counterclaim.
47. As submitted by Mr. Njuguna, with whom I concur, the consequence of failing to plead or specify fraud explicitly is exemplified in the case of Ahmed Mohammed Noor (Supra), wherein the court stated the following:
“In Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR, the Court of Appeal, in dismissing an allegation of fraud, held that: -
We have examined the appellants’ amended defence for any pleading on particulars of fraud or illegality, but there is none. The claims were therefore stillborn, and no evidence could be tendered. Even if it was open to tender evidence on fraud and illegality, the mere allegation that a sale agreement and a consent for transfer cannot be obtained on the same day is well below the standard of proof... We need not belabor this issue, as we are satisfied that it was neither properly pleaded nor strictly proved.
48. In the case of Chemjor v Chepkwony (Environment & Land Case 34 of 2022) [2023] KEELC 16864 (KLR), the Court articulated that:
“…. Being the one who desired judgment on the basis of the alleged wrongfulness and/or fraud, it behooved the defendant not only to specifically plead the alleged wrongfulness/fraud with particulars thereof provided but also prove the alleged wrongfulness on a standard slightly higher than on a balance of probabilities but less than beyond reasonable doubt….
As to whether either of the parties has made up a case for being granted the orders sought, the evidence adduced in this case shows that the plaintiff is the registered proprietor of the suit property and that the defendant has encroached on a portion thereon.
As the registered proprietor of the suit property, and the defendant having failed to demonstrate that the plaintiff acquired the suit property fraudulently, the plaintiff is entitled to the rights and privileges of a registered proprietor of land envisaged under Article 40 of the Constitution of Kenya and Section 25 of the Land Registration Act, 2012.”
49. The Defendant’s claim of fraud and forgery in his witness statements was neither explicitly pleaded as required by law nor convincingly proven to the required standards, and therefore the Plaintiff’s Counterclaim lacks merit.
50. Therefore, the Defendant is not entitled to any of the relief requested in his counterclaim; it is hereby dismissed with costs.
51. In conclusion, the Plaintiff has demonstrated, in accordance with the requisite standard of proof, that it is the registered owner of the disputed property, which the Defendant unlawfully encroached upon without any lawful justification or right. Consequently, the Plaintiff is entitled to all the reliefs requested in the Plaint with costs.
Summary
a) An order of permanent injunction is hereby issued restraining the Defendant, himself, his agents, employees, servants, or anyone else from entering, trespassing into, or otherwise dealing with or interfering in any manner with the Plaintiff’s occupation, access, use, or peaceful possession of the suit property.
b) Kshs 500,000/= for General damages for trespass; and
c) costs of the suit.
d) The counterclaim is hereby dismissed with costs.
Dated, signed, and delivered electronically in Malindi on November 26, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Njuguna for the Plaintiff
Ms. Apiyo for the Defendant
Happy: Court Assistant
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