Fransiscan Sisters St Joseph (Asumbi) Registered Trustees v Onyango (Environment and Land Case E009 of 2023) [2025] KEELC 7526 (KLR)
The bottom line
#A Kenyan court ruled that a registered title deed proves land ownership, awarding Kshs.3 million against a trespasser who must vacate within 60 days.
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 Defendant encroached onto the Plaintiff's land
- 2.Whether the Plaintiff is entitled to the relief sought
Key legal issues
#Whether a defence unproven by evidence can defeat the plaintiff's claim
A defence on which no evidence is called remains mere allegations, but the plaintiff's burden of proof is not lifted.
Relying on Kenya Power & Lighting Co Ltd vs Rassul Nzembe Mwadzaya, Edward Muriga and John Wainaina Kagwe, the court held that assertions in a defence not supported by evidence remain mere allegations and the plaintiff's evidence remains uncontroverted. However, citing Gichinga Kibutha and Mary Wanjiru, the plaintiff must still discharge the burden of proof under sections 107-109 of the Evidence Act; uncontroverted evidence is not automatic proof.
Whether the Plaintiff proved ownership and trespass
The Plaintiff's title was proved by the provisional title deed and the surveyor's report confirmed encroachment of 0.34 Ha; the Defendant is a trespasser.
The Plaintiff produced a provisional title deed showing registration as owner; nothing challenged that title. Under sections 24, 25 and 26 of the Land Registration Act and Article 40 of the Constitution, the registered owner's rights are protected. The surveyor's ground survey established encroachment of 0.34 Ha (0.85 acres), and the Defendant produced no contrary evidence.
Whether loss of use at Kshs.3,000,000/- per year was payable
The claim for loss of use failed as unproven special damages.
Treating the claim as one for special damages, the court held it must be specifically pleaded and proved; no evidence showed how the Kshs.3,000,000/- annual figure was arrived at. The prayer was therefore rejected despite the general success of the suit.
Quantum of general damages for trespass
General damages of Kshs.3,000,000/- awarded as trespass is actionable per se, considering the Defendant ran a school on the encroached portion and deprived the Plaintiff of use.
Because trespass is actionable per se, the court assessed general damages taking into account the Defendant's profitable use (a school) of the encroached premises and the Plaintiff's deprivation of enjoyment as registered owner, settling on Kshs.3,000,000/- as adequate compensation.
Legal principles established
#- A defence not supported by evidence remains mere allegations; uncontroverted evidence still must be interrogated and the plaintiff must discharge the burden of proof.
- A certificate of title is prima facie evidence of ownership of land under section 26 of the Land Registration Act.
- Special damages must be specifically pleaded and proved.
- Trespass to land is actionable per se.
- Costs follow the event under section 27 of the Civil Procedure Act unless there is good reason to order otherwise.
Court orders
#- 1.Declaration that the Plaintiff, as registered proprietor, is entitled to exclusive and unimpeded right of possession and occupation of all that parcel known as L.R. No.15234 LR No.53147/1 including the 0.34 ha portion trespassed on
- 2.Declaration that the Defendant by herself, servants or agents are trespassers wrongfully in occupation of the 0.34 ha portion and should vacate forthwith
- 3.Order that the Defendant and all other trespassers vacate and deliver vacant possession of the 0.34 ha portion within sixty (60) days, and in default an order of eviction is issued
- 4.Mandatory order of injunction directing the Defendant to demolish and remove all illegal structures on the 0.34 ha portion forthwith
- 5.Permanent injunction restraining the Defendant from claiming, occupying or continuing unlawful occupation or development on the 0.34 ha portion
- 6.Kshs.3,000,000/- general damages for trespass with interest thereon at court rates
- 7.Costs of the suit to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over the claim for trespass to land (Environment and Land Court)
Relief refused
#Loss of use of the 0.34 ha at Kshs.3,000,000/- per year for each year of trespass (prayer (f))
This was a claim in the nature of special damages which was not specifically proved; no evidence was placed before court as to how the sum was arrived at.
Costs
Costs of the suit awarded to the Plaintiff (costs follow the event under section 27 of the Civil Procedure Act)
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.
Under section 26 of the Land Registration Act certificate of title is prima facie evidence of ownership of land.
It is not automatic that instances where the evidence is not controverted the claimant shall have his way in Court. He must discharge the burden of proof.
The result is that the court finds that the Plaintifi has proved its case on a balance of probabilities.
Kshs.3,000,000/- being general damages for trespass and interest thereon at court rates.
An order that the Defendant and all other trespassers on the land as agents of the Defendant, do forthwith vacate and deliver vacant possession of the said 0.34 ha portion of the property to the Plaintifi within sixty (60) days of this decision and in default, an order of eviction is hereby issued against the Defendant
Issues in the judgment
#The judgment variously describes the Plaintiff's title as Kisumu IR 53147/1 being L.R. No.15234 and as IR 53234/IR NO.53147/5, with inconsistent parcel references.
The judgment awards prayers '(a) to (e), (g) and (h)' yet the special damages refused is prayer (f) and general damages is listed as prayer (g) in the plaint, with prayer (h) being costs - the final orders only number seven items and the prayer-letter references do not map cleanly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fransiscan Sisters St Joseph (Asumbi) Registered Trustees v Onyango (Environment and Land Case E009 of 2023) [2025] KEELC 7526 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7526/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.