Mount Robbin Limited v Toza (Environment and Land Case 51 of 2020) [2025] KEELC 5854 (KLR)
The bottom line
#A Kenyan landowner won a permanent injunction and KSh 1 million after proving trespass, but could not recover both damages and mesne profits.
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 suit instituted by the Plaintiff against the Defendant has any merit whatsoever
- 2.Whether the Plaintiff is entitled to the orders sought
- 3.Who bears the costs of suit
Key legal issues
#Whether the plaintiff proved ownership of and trespass on the suit property in an undefended suit
Yes. The plaintiff produced its certificate of title, and the Kwale County Council engineering site visit report confirmed the defendant's quarrying activities and trespass. Title was never challenged under Section 26 of the Land Registration Act.
Although the suit was undefended, the plaintiff was still required to prove its case on a balance of probabilities. The plaintiff testified through its Managing Director, produced the original title deed, and tendered a site visit report by the then County Council of Kwale identifying the defendant's excavation and trespass on the suit parcel. The defendant filed no defence and adduced no evidence to controvert this evidence or impugn the title under the two grounds in Section 26.
Whether the plaintiff was entitled to a permanent injunction
Yes. The plaintiff established a prima facie case by production of its title, justifying a permanent injunction against the defendant.
Applying the Giella v Cassman Brown principles, the court found that the plaintiff, having produced a title document and proved trespass, established a prima facie case and met the threshold for permanent injunctive relief restraining the defendant from entering, excavating or otherwise interfering with the suit land.
Whether the plaintiff was entitled to general damages for trespass and mesne profits
General damages of Kshs. 1,000,000/- awarded for trespass; the mesne profits claim declined as duplicative of the damages award.
Trespass being actionable per se, general damages required no proof of loss. Given the value of quarried blocks and the duration of trespass, the court awarded Kshs. 1,000,000/-. Because mesne profits and damages for trespass cannot both be granted, and damages had already been awarded, the mesne profits prayer was refused.
Legal principles established
#- Even in an undefended suit, the plaintiff bears the burden of proving its case on a balance of probabilities
- A registered proprietor's title is prima facie and indefeasible under Sections 24, 25 and 26 of the Land Registration Act
- Trespass to land is actionable per se and no proof of damage is necessary to award general damages
- A claimant cannot recover both mesne profits and damages for trespass; only one remedy is available
Court orders
#- 1.Judgment entered in favour of the Plaintiff against the Defendant as prayed in the Plaint dated 15th December 2020
- 2.Permanent injunction restraining the Defendant by itself, agents, servants or anybody acting on its behalf from trespassing on and continuing to excavate and remove coral blocks and or any other item from Kwale/Tiwi Beach/13441 CR No 19516
- 3.Defendant to pay the Plaintiff Kshs. 1,000,000/= as general damages for trespass
- 4.Plaintiff's prayer for mesne profits declined
- 5.Costs of the suit awarded to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act); suit concerning land parcel LR Kwale/Tiwi Beach/13441
Relief refused
#Mesne profits of Kshs. 2,000,000/-
Where a party claims both mesne profits and damages for trespass, the court can only grant one; general damages for trespass were already granted
Costs
The costs of the suit be awarded to the Plaintiff.
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 an order of a permanent injunction be and is hereby issued restraining the Defendant by itself, agents, servants or anybody acting on its behalf from trespassing on and continuing to excavate and remove coral blocks and or any other item from the Plaintifi's property Kwale/ Tiwi Beach/13441 CR No 19516.
That an order made to have the Defendant pay the Plaintifi a sum of Kenya Shillings One Million (Kshs. 1,000,000/=) as general damages for trespass.
That the Plaintifi's prayer for mesne profits be and is hereby declined.
failure by the Defendant to contest the case does not absolve a plaintifi of the duty to prove the case to the required standard.
Where a party claims for both mesne profits and damages for trespass, the Court can only grant one.
That the costs of the suit be awarded to the Plaintifi.
Issues in the judgment
#Defendant's name is not given anywhere in the judgment text; the party is referred to only as 'the Defendant'
Inconsistent dates: submissions dated 20th March 2025 but directions said to have been given on 6th March 2024
Suit property referenced as 'Kwale/ Tiwi Beach/13441 CR No 19516' though CR number format suggests it is the register map sheet rather than part of the parcel number
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mount Robbin Limited v Toza (Environment and Land Case 51 of 2020) [2025] KEELC 5854 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5854/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.