REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC NO. 333 OF1999
KYENGO MUKUSYA........................…………………………....PLAINTIFF
-VERSUS
FRANCIS KATILA KYENGO......... …………………..... 1ST DEFENDANT
DANIEL MAKAU MUNGUTI............................................2ND DEFENDANT
JUDGMENT
Introduction
1. This suit was originally filed by Kyengo Mukusya. Upon the passing away of Kyengo Mukusya on 1st August, 2017, his son Kaunda Kyengo Mukusya took over the case. The reliefs sought vide plaint dated 17th November, 1999 were:
a. Permanent injunction restraining the Defendant from trespassing to parcel No. 1960, Kasunguni Adjudication Section.
b. General damages for trespass.
c. Costs of the suit.
2. The Defendants filed an amended defence and counterclaim in which the 2nd Defendant sought the following reliefs:
a. A declaration that the 2nd Defendant is the lawful owner of portions originally bearing plot Nos. 2053 and 2088.
b. Costs of the suit.
Plaintiff’s case
3. Before the original Plaintiff passed away he had testified on 19th November, 2006. He stated that the Defendants were his nephews. He stated that he had filed a case before the Arbitration Board which ruled in his favour. He stated that though the Defendants stay on their separate parcels, they have been trespassing on to his parcel No. 1960 and cultivating on the same.
4. The Plaintiff called PW2 Josiah Kivandi who confirmed that though the Defendants do not reside on parcel 1960, they have been trespassing on to the same.
5. The Plaintiff also called PW3 Japhet Mutua Mutiso an Adjudication and Settlement Officer who testified that parcel No. 1960 had been recorded in favour of the Plaintiff and a title deed was subsequently issued after the adjudication process was completed. He produced a copy of search for parcel No. Makueni/Kasunguni/1960 which shows that title was issued on 14th November, 2016 after the land had been registered in the name of the Plaintiff on 27th July, 2016. The witness also produced a copy of title for parcel NO. 1960 and a consent which was given to the Plaintiff to file a suit pursuant to the provisions of Section 30 of the Land Adjudication Act.
Defendants’ Case
6. DW1 Daniel Makau Munguti who is the 2nd Defendant testified that the Plaintiff is his uncle. The Plaintiff was a brother to his father Joel Munguti Mukusya and Mutisya Mukusya. The father of the three had land parcel No. 484 which was subdivided into parcel 484 which was given to Joel Munguti Mukusya, parcel 1959 was given to Mutisya Kyengo and parcel 1960 was given to the Plaintiff.
7. The witness further testified that parcel 2053 and 2088 were subject to cases before the adjudication committee. The committee gave parcel No. 2088 to Joel Munguti and parcel No. 2053 was given to the 1st Defendant. It is his evidence that when the Plaintiff obtained title to parcel 1960, he included parcel numbers 2053 and 2088. He stated that when he married in 1958, his father gave him parcel No. 2053 where he cultivates and parcel 2088 is being cultivated by his other brothers.
8. The witness stated that his father purchased parcel 2053 and 2088 between 1939 and 1941. He stated that he would like parcel 2053 and 2088 separated from parcel 1960.
Parties Submissions
9. The parties were directed to file written submissions. The Plaintiff filed his submission dated 4th July, 2025. The Defendants filed submissions dated 9th October, 2025.
Plaintiff’s Submissions
10. The Plaintiff submitted that he had proved a case of trespass against the Defendants. The Plaintiff’s evidence and that of PW2 confirms that there was trespass. The evidence of DW1 goes on to confirm that indeed he is using parcel 2053 which he claims to be part of parcel 1960. He therefore submits that he is entitled to an order for permanent injunction and general damages for trespass.
11. The Plaintiff submitted that trespass is actionable without proof of damage. He relied on the case of Hosea Nyankika Mosagwe & 2 Others –vs- County Government of Nyamira (2021) eKLR where it was held as follows:
“As to general damages for trespass in Park Towers Ltd vs John Mithamo Njika et al (2014) eKLR the court held that:
I agree with the learned judges that where trespass is proved, a party need not prove that he suffered any specific damage or loss to be awarded damage. The court in such circumstances is under duty to assess the damages awardable depending on the unique facts and circumstances of each case”.
12. The Plaintiff submitted that he had been kept off his land for over 25 years. He pleaded for an award of general damages in the sum of Kshs.2,000,000/=.
Defendants’ Submissions
13. The Defendants submitted that the Plaintiff did not prove that there was trespass on to parcel No. 1960 and that the consent which was given on 27th February, 1995 by the Land Adjudication Officer showed that parcel No. 2053 and 2088 had been combined into parcel No. 1960. They submitted that the title to parcel 1960 was unprocedurally issued and should be rectified. They stated that they have been in occupation of parcel No. 1960 since time immemorial.
Analysis and Determination
14. I have considered the evidence adduced by the Plaintiff and his witnesses as well as that of the Defendants and their witnesses. I have also considered the submissions by the parties. The issues which emerge for determination are firstly, whether parcel No. 1960 is a combination of parcel No. 2053 and 2088 or whether it is an independent parcel. Secondly, whether the Defendants have trespassed on to parcel No. 1960. Thirdly, are the Plaintiff and Defendants entitled to their respective claims. Fourthly, which order should be made on costs.
Whether parcel 1960 is a combination of parcel 2053 and 2088 or whether it is an independent parcel
15. There is no contention that parcel No. 1960 is registered in the name of the Plaintiff as parcel No. Makueni/Kasunguni/1960 which measures 1.74 hectares. The Defendants contend that parcel No. 2053 and 2088 were unprocedurally included in parcel 1960 and that they should be separated from parcel No. 1960.
16. The evidence which was adduced by DW4 Catherine Makau is that according to the adjudication records, parcel No. 2053 is registered as Makueni/Kasunguni/2053 in the name of Nathan Mbatha Kilundo and its size is 0.96 hectares. Parcel No. 2088 is registered in the name of Andrew Mwendwa Wambua and its size is 0.74 hectares. Parcel No. 1960 is registered in the name of the Plaintiff and its size is 1.74 hectares. All the three parcels were registered as independent parcels on 27th July, 2016.
17. The Defendants did not adduce any evidence to show that parcel No. 2053 and 2088 are part of parcel 1960 as they allege. The Plaintiff on the other hand adduced evidence to show that he had title for parcel No. 1960 which was issued 14th November, 2016 and its size is 1.74 hectares. There is therefore no basis upon which the Defendants can claim that title No. Makueni/Kasunguni/1960 encompasses parcel No. 2053 and 2088. They cannot therefore rely on the consent of 27th February, 1995 to claim that the two parcels are combined with parcel 1960.
18. The 1st Defendant and the 2nd Defendant’s father had sued the Plaintiff before the adjudication committee over the suit properties. They succeeded at the committee stage but when the Plaintiff went before the Arbitration Board, the committee’s decision was overturned and this was confirmed by the 2nd Defendant during cross examination.
Whether the Defendants have trespassed into the Plaintiff’s parcel No. 1960.
19. The Plaintiff testified that the Defendants have been cultivating on his land. He called PW2 his neighbor who also confirmed the trespass. During the hearing, DW1 who is the 2nd Defendant who claims that parcel 2053 is within parcel 1960, stated during the hearing that parcel 2053 was given to him by his father in 1958 when he married. He confirmed that he has been using parcel 2053 since then. This confirms the trespass being raised by the Plaintiff.
20. The 1st Defendant did not adduce any evidence in this case. His claim to part of parcel 1960 was defeated during the Arbitration Board stage but that notwithstanding he has been trespassing on to the Plaintiff’s land. I therefore find that the two Defendants have indeed trespassed on to Makueni/Kasunguni/1960 which is registered in the Plaintiff’s name.
Whether the Plaintiff and 2nd Defendant are entitled to their respective claims
21. The Plaintiff is seeking a permanent injunction against the Defendants and general damages for trespass. The Plaintiff has proved that he is the registered owner of Makueni/Kasunguni/1960. He has adduced evidence to show that the two Defendants have trespassed into his land where they have successfully been cultivating over the years. He is therefore entitled to a permanent injunction to stop the trespass.
22. As was stated in the case of Hosea Nyandika Mosagwe & 2 Others (Supra), trespass is actionable per se. The trespass to the Plaintiff’s land has been going on for over 25 years. The Defendants have been benefiting from land which is not theirs. Given the period which has passed with the trespass continuing, I will assess general damages in the sum of Kshs.1,000,000/=.
23. The 2nd Defendant is seeking a declaration that he is entitled to parcel 2053 and 2088. These two parcels do not even belong to him according to the evidence adduced before this court by DW4 a Land Registrar from Makueni Lands Office. The 2nd Defendant cannot therefore be granted a declaration in the manner prayed for.
Disposition
24. From the analysis above, I find that the Plaintiff has proved his case on a balance of probabilities. I enter judgment in his favour as follows:
a. A permanent injunction restraining the Defendants from trespassing to parcel No. Makueni/Kasunguni/1960.
b. General damages for trespass in the sum of Kshs.1,000,000/=
c. Costs of the suit.
d. Interest on (b) and (c) from the date of this judgment.
The 2nd Defendant’s counterclaim is dismissed with costs.
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HON. E. O. OBAGA
JUDGE
JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 25TH DAY OF MAY, 2026.
IN THE PRESENCE OF:
Mr. Wainaina for Plaintiff.
Mr. Mbindyo for Defendants.
Court assistants – Kilonzo and Musyoki
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