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)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who is the bona fide recorded owner of the suit land, subject to the alleged trespass, encroachment, and commission of acts of excavation, destruction and damage
- 2.Whether the plaintiffs have proved any loss, damage and or denial of use, occupation and proceeds from the suit land
- 3.Whether the 1st defendant had laid any rights or interests to confer on the 2nd defendant to enter, possess and utilise murram or stones from the suit land
- 4.If the 1st defendant had rights or interests to use, cut, collect and deny the plaintiff's rights or interests over the suit land
- 5.Whether the plaintiffs are entitled to the reliefs sought
- 6.What is the order as to costs
Key legal issues
#Ownership of the suit land
The late Lokoriongor Lokere, member No. 187, was the recorded owner of the parcel; the 1st defendant failed to plead or prove ownership of a distinct parcel No. 220 at the excavation site
The plaintiffs produced a certified register of members and the group ranch chairman confirmed plot 187 belonged to their late father, distinct from plot 220. The 1st defendant never pleaded the particulars of plot 220 in his amended defence; the membership number appeared only in a witness statement and exhibits. The father DW2 was found evasive and to have vacated the disputed land in compliance with a 2017 award.
Trespass and joint liability
Both defendants were jointly and severally liable for trespass and encroachment
The 1st defendant had no title to pass, having derived rights from a father ordered to vacate, and leased the land to the 2nd defendant. The 2nd defendant claimed due diligence but its key documents were disowned by the group ranch chairman, unsigned, and lacked plot particulars; its lease documents contradicted its claim of having vacated. Both acted in concert and assumed the risk.
Due diligence by the 2nd defendant
The 2nd defendant's alleged due diligence failed; documents relied on were unreliable and the true owner was not a signatory to the leases
The certificate of ownership and sketch map were disowned by PW3, lacked authorship, signature, dates and plot particulars. The lease agreements omitted plot numbers, were not signed by the recorded owner, and the 2nd defendant's signatories were not called. Curiosity as to why it dealt with the 1st defendant rather than the recorded owner supported liability.
Quantum of damages
General damages of Kshs. 5,000,000/= against the 2nd defendant and Kshs. 200,000/= per year of occupation against the 1st defendant
Trespass is actionable per se; general damages compensate infringement of possession even without specific proof of loss. The site was left with deep gullies with no restoration clause in the leases, engaging Articles 69 and 70. Judicial notice was taken of tipper truckload costs under the Kenya Roads Board Cost Estimation Manual.
Legal principles established
#- Parties are bound by their pleadings; issues flow from the pleadings, and a defendant who fails to plead particulars of ownership cannot rely on unpleaded documents or submissions
- Trespass requires proof of immediate exclusive possession and is actionable per se
- A person without good title cannot pass title to another; a lessee must conduct genuine due diligence and cannot feign ignorance after acting carelessly
- Written submissions cannot amount to evidence or replace pleadings
Court orders
#- 1.Permanent injunction against the 1st defendant restraining further trespass
- 2.Kshs. 200,000/= for every year the 1st defendant has been on the land, awarded against him
- 3.Kshs. 5,000,000/= general damages awarded against the 2nd defendant
- 4.Costs of the suit to the plaintiffs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 69 and 70 of the Constitution; Environment and Land Court first-instance jurisdiction over land trespass
Relief refused
#Special damages for the illegally harvested trees (Kshs. 150,000/= per valuation) against the 1st defendant as separately pleaded
No specific award expressly made on that head; general damages for trespass awarded instead
Costs
Costs of the suit to the plaintiffs.
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.
Both defendants, in my view, appear to have acted in cohorts and assumed the risk, hence are found jointly and severally liable for trespass and encroachment.
He who has no good title to pass in the first instance gives none to his son.
A party that acts carelessly, negligently or recklessly before entering into a suit transaction cannot come to court to feign ignorance of the law and insist that it was mistaken
Written submissions cannot amount to evidence or replace pleadings.
Costs of the suit to the plaintifis.
Issues in the judgment
#Date of death of the deceased stated inconsistently within the judgment
Membership number of the 1st defendant's father inconsistently recorded as 220, 230 and the plot as 547/455 in various places
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "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)", Case Analysis (2025). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6092/eng@2025-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.