Gakuria & another v Mwangi & 4 others (Environment & Land Case 134 of 2021) [2025] KEELC 1014 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a registered title holder wins against occupiers who have no documents proving any claim to the land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Defendants trespassed onto the suit property?
- 2.Whether there should be a permanent injunction issued against the Defendants?
- 3.Whether the Plaintiffs are entitled to the orders sought in the Plaint?
- 4.Who bears the costs of the suit?
Key legal issues
#Ownership of the suit property
The Plaintiffs are the rightful, absolute and indefeasible registered proprietors, holding a Certificate of Lease since 8th April 1997 for 99 years; the Defendants produced no documentary proof of any right, interest or title and never challenged the Plaintiffs' title under Section 26(1)(a) and (b) of the Land Registration Act.
The court applied Sections 24, 25(1) and 26(1) of the Land Registration Act, which vest absolute ownership in the registered proprietor and make the certificate of title prima facie evidence of indefeasible ownership. The Plaintiffs produced the original Certificate of Lease. DW-2 claimed ownership through inheritance from his father but held no title, no Letters of Administration, and had never applied for allocation. The Defendants' title challenge provisions under Section 26 were not invoked.
Whether the Defendants committed trespass
Yes. The Defendants entered the suit property without the Plaintiffs' consent; it is common ground they entered without permission, and unauthorized entry, whether present or continuous, is trespass.
Applying Section 3(1) of the Trespass Act, Cap 294, and the definition of continuing trespass in Jowitt's Dictionary and Clerk & Lindsell on Torts, the court held that every continuance of a trespass is a fresh trespass giving rise to a new cause of action. DW-1 admitted constructing a toilet on the land engaged by DW-2, who admitted having no title. Entry without the consent of the registered occupier constituted trespass.
Whether a permanent injunction should issue
Yes. The Plaintiffs demonstrated their case and met the fundamental threshold for the grant of a permanent injunction, which fully determines the rights of the parties and is granted upon the merits after evidence.
The court distinguished prohibitory from mandatory injunctions, citing Shepherd Homes v Sandham and Kenya Power & Lighting Co. Ltd v Sherifi Molana Habib on the nature of permanent injunctions. Since trespass was established and the Plaintiffs' indefeasible title proved, the Plaintiffs met the threshold; the court has power under Sections 1A, 3 and 3A of the Civil Procedure Code to grant a permanent injunction where a party's right has been infringed or threatened.
Defendants' res sub judice / res judicata objection
The objection that the suit offended Section 6 of the Civil Procedure Act as res sub judice given ELC No. 178 of 2020 did not defeat the claim; the Plaintiffs were entitled to sue the persons actually trespassing, and the adverse possession suit remained undetermined.
The Defendants argued the suit was res sub judice and forum shopping, relying on E.T. v Attorney General and Republic v Paul Kihara Kariuki ex parte Law Society of Kenya. The court did not sustain the objection: the Plaintiffs were the registered owners suing the persons on the ground, while ELC No. 178 of 2020 was an adverse possession claim yet to be heard and determined, raising different issues from trespass on private land.
Legal principles established
#- Registration vests absolute ownership of land in the registered proprietor
- A certificate of title is prima facie evidence of absolute and indefeasible ownership
- Trespass to land is actionable per se and general damages may be awarded once trespass is proved without proof of specific loss
Court orders
#- 1.Judgment entered in favour of the Plaintiffs in respect to the Plaint dated 13th July, 2021 in its entirety with costs
- 2.A permanent injunction restraining the Defendants and/or their agents, servants or employees from entering into, trespassing, constructing and/or continuing with any construction, erecting any other structures and/or doing any acts of waste or in any way interfering with the suit property being plot No. Mombasa/Mainland South/Block 1/1808
- 3.An order of eviction against the Defendants, their servants, agents and or employees and demolition and/or removal of all the structures and debris erected by the Defendants on the suit property
- 4.The Plaintiffs to have the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Article 162(2) of the Constitution over disputes relating to land (suit property in Mombasa County); jurisdiction acknowledged in the pleadings
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That Judgment be and is hereby entered in favour of the Plaintifis in respect to the Plaint dated 13th July, 2021 in its entirety with costs.
That a Permanent injunction do and is hereby issued restraining the Defendants and or their agents, servants or employees or otherwise howsoever from entering into, trespassing, constructing and or continuing with any construction
That an order of eviction do and is hereby entered against the Defendants, their servants, agents and or employees or otherwise howsoever and demolition and or removal of all the structures and debris erected by the Defendants on the suit property.
It is trite law that a Title Deed is a conclusive and an indefeasible evidence of the ownership of land.
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 ofience.
Issues in the judgment
#The site visit report is headed 'ELC Case No. 178 of 2020 & 134 of 2021' and lists Mohammed Mohammed Mwabugare as Plaintiff, yet this judgment is in ELC No. 134 of 2021 where the Plaintiffs are Gakuroa and Mohamed; the report also refers to the parties' roles inconsistently with the main suit
Judgment states the Plaintiffs' witnesses testified on 14th October, 2022 but later records PW-1, PW-2 and PW-3 testifying on 4th June, 2024
Judgment records PW-1 telling the court he filed this suit in 2021 'after his suit had been dismissed' while elsewhere recording that the Plaintiffs' injunction application in ELC No. 178 of 2020 was denied and the suit itself was not determined
No general damages for trespass were claimed in the Plaint yet the Plaintiffs' submissions sought Kshs. 7,000,000 general damages; the court did not award any damages in its final orders
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kakuzi PLC v Kituamba Kaloleni IDPs & 2 others (Environment and Land Appeal E064 of 2024) [2026] KEELC 5165 (KLR)[2026] KEELC 5165 (KLR)30 Jul 2026applied
- Maringa v Kamau & 4 others (Environment and Land Case 53"B" of 2022) [2026] KEELC 4250 (KLR)[2026] KEELC 4250 (KLR)14 May 2026
- Mwang’ome v Dhahabu Land Limited (Environment and Land Case E062 of 2022) [2026] KEELC 2100 (KLR)[2026] KEELC 2100 (KLR)9 Apr 2026applied
- Otuni & another v Kashu (Environment and Land Appeal E005 of 2024) [2025] KEELC 7615 (KLR)[2025] KEELC 7615 (KLR)6 Nov 2025applied
- Lokere & another (Suing as Executor of the Will of Lokoriongor Lokere) v Tong’kwang & another (Environment and Land Case 37 of 2022) [2025] KEELC 6092 (KLR)[2025] KEELC 6092 (KLR)17 Sept 2025followed
Cite this brief
#Cite this brief
Caselaw, "Gakuria & another v Mwangi & 4 others (Environment & Land Case 134 of 2021) [2025] KEELC 1014 (KLR)", Case Analysis (2025). ELC Case No. 134 of 2021 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1014/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.