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ELCPartially AllowedNot stated in the judgment

Gacengeci v Kyalo & 11 others (Environment and Land Case E481 of 2024) [2026] KEELC 313 (KLR)

Environment and Land Court
29 January 2026
MKMohammed N. Kullow
1,944 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner won an uncontested trespass case by proving title with a title deed, securing eviction, damages and an injunction.

What this practically means

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Executive summary

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This was an undefended land claim before the Environment and Land Court at Nairobi concerning property known as L.R. No. 15457. The plaintiff, asserting registered ownership evidenced by a certificate of title, sued the defendants for trespass and illegal occupation, seeking a declaration of ownership, a permanent injunction, demolition of illegal structures, eviction, general damages and mesne profits, costs and interest. The defendants were served with summons to enter appearance and a hearing notice, as evidenced by an affidavit of service, but did not enter appearance or participate in the hearing. The matter proceeded by formal proof before Judge Mohammed N. Kullow. The court framed three issues: whether the suit had merit, whether the plaintiff was entitled to the orders sought, and who should bear costs. Relying on Sections 107, 108 and 109 of the Evidence Act and Kirugi v Kabiya, the court reiterated that even in an undefended suit the plaintiff must prove his case on a balance of probabilities. It found that the plaintiff's title, protected by Sections 24, 25 and 26 of the Land Registration Act, was unchallenged, and that evidence of structures on the land established trespass. Applying Giella v Cassman Brown, the court held a prima facie case established and granted a permanent injunction. Citing Maina Kabuchwa v Gachuma Gacheru, it held that only one of mesne profits and damages for trespass could be awarded, and awarded general damages for trespass. Judgment was entered for the plaintiff as prayed, including a declaration of ownership, permanent injunction, eviction of the defendants within 90 days, general damages, and costs and interest of the suit. The demolition order sought was not included in the final orders.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit instituted by the Plaintifi against the Defendants has any merit whatsoever?
  2. 2.Whether the Plaintifi is entitled to the orders sought?
  3. 3.Who bears the costs of suit?

Key legal issues

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01

Whether the Plaintiff proved ownership and trespass despite the suit being undefended

Holding

The Plaintiff proved ownership by production of a title deed under Sections 24, 25 and 26 of the Land Registration Act and proved trespass by evidence of structures erected on the land

Reasoning

Although the suit was undefended, the burden remained on the plaintiff to prove his case on a balance of probabilities under Sections 107, 108 and 109 of the Evidence Act, as reinforced by Kirugi v Kabiya. The plaintiff produced a certificate of title demonstrating absolute registered proprietorship, unchallenged on any ground under Section 26 of the Land Registration Act, and produced evidence of construction showing illegal occupation by the defendants.

p. 3
02

Whether permanent injunction should issue

Holding

Permanent injunction granted on the strength of the Giella v Cassman Brown principles, a prima facie case having been established by the title document

Reasoning

The court applied the Giella v Cassman Brown injunction principles. Having produced a title document and the title not being challenged, the plaintiff established a prima facie case and proved the case to the required threshold, warranting permanent injunctive relief against the defendants and all persons claiming under them.

p. 4
03

Whether mesne profits as well as general damages for trespass were recoverable

Holding

Only one of mesne profits and damages for trespass can be granted; the court granted general damages for trespass

Reasoning

Relying on Maina Kabuchwa v Gachuma Gacheru, the court held that a party claiming both mesne profits and damages for trespass can only be granted one. Since general damages for trespass had been granted, mesne profits were not separately awarded.

p. 5

Legal principles established

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  • An undefended suit must still be formally proved on a balance of probabilities
  • Registration vests absolute ownership and a certificate of title is prima facie evidence of indefeasible ownership

Court orders

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  1. 1.Judgment entered in favour of the Plaintifi against the Defendants as prayed in the filed Plaint dated 14th November 2024
  2. 2.A declaration that the Plaintifi is the right legal owner of the suit property L.R. No. 15457
  3. 3.A permanent injunction restraining the Defendants from carrying on further construction, wasting, alienating, selling, leasing, charging or in any way interfering with the possession and quiet possession of the suit property by the Plaintifi
  4. 4.An order of eviction of the Defendants within 90 days of this judgment
  5. 5.General Damages
  6. 6.Costs and interest of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MK
majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land known as L.R. No. 15457

Relief refused

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Mesne profits

The court held that where a party claims both mesne profits and damages for trespass, only one can be granted, and it granted general damages for trespass

p. 5

Costs

Costs of the suit awarded to the Plaintifi together with interest

Quotable passages

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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 Plaintifi against the Defendants as prayed in the filed Plaint dated 14th November 2024
p. 5disposition - judgment as prayed
A permanent injunction restraining the Defendants from carrying on further construction, wasting, alienating, selling, leasing, charging or in any way interfering with the possession and quiet possession of the suit property by the Plaintifi.
p. 2permanent injunction
An order of eviction of the Defendants within 90 days of this judgment.
p. 5eviction
The burden was always on the Plaintifi to prove his case on a balance of probabilities even if the case was heard as formal proof
p. 3burden of proof in undefended suits

Issues in the judgment

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minor

The plaint date is stated inconsistently - as 22nd November 2024 in the relief paragraph and as 14th November 2024 in the determination and final orders

minor

The case number of the suit is not stated anywhere in the judgment

minor

Relief of demolition of illegal structures was sought but not included in the final orders, without express reasons

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gacengeci v Kyalo & 11 others (Environment and Land Case E481 of 2024) [2026] KEELC 313 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/313/eng@2026-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.