Charles Waithima (Suing on Behalf of and as the Donee of Power of Attorney From Edwin Wagura Kimondo) v Chembe & 2 others (Environment and Land Case E056 of 2024) [2026] KEELC 3720 (KLR)
The bottom line
#Kenya's Environment and Land Court in Malindi ordered trespassers off private land and to pay Kshs 2 million, confirming landowners can win trespass damages without proving specific losses.
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 plaintiff proved that the donor of his power of attorney is the registered owner of the suit property
- 2.Whether the defendants entered and remained on the suit property without lawful excuse, thereby committing trespass
- 3.Whether the plaintiff is entitled to permanent and mandatory injunctions and general damages for trespass
Key legal issues
#Proof of ownership and trespass
The plaintiff proved through uncontroverted oral and documentary evidence that the donor is the registered owner and that the defendants illegally entered, remained and carried on a waste-handling business on the land, committing trespass.
The plaintiff testified as PW1 and produced his registered power of attorney and thirteen documents. PW2, mother of the donor, traced the root of title from the 1991 allocation to the family patriarch, subdivision and issuance of title in February 2024. The defendants never filed a defence nor appeared at the hearing, so the ex parte evidence was uncontroverted and accepted as genuine, establishing the claim on a balance of probabilities.
Quantum of general damages for trespass
Damages for trespass are awardable once trespass is proved without proof of specific loss; applying Park Towers Ltd v John Mithamo Njika, the court awarded Kshs 2,000,000 jointly and severally against the defendants for trespass per se and environmental degradation requiring restoration.
Relying on the Park Towers authority, the court held that no proof of specific damage is required once trespass is proved. Though no specific evidence on quantum was adduced, the uncontroverted evidence showed unauthorised solid waste disposal that was deleterious to the land and surrounding environment, justifying a global award covering trespass per se and potential environmental restoration costs.
Legal principles established
#- Where trespass is proved, a party need not prove specific damage or loss to be awarded damages; the court assesses damages on the unique facts of each case
- Uncontroverted evidence presented ex parte may be accepted as genuine where it establishes the plaintiff's claim on a balance of probabilities
Court orders
#- 1.A permanent injunction restraining the defendants, their agents, servants, employees, assigns or otherwise howsoever from trespassing into and/or interfering in any way with the plaintiff's quiet enjoyment possession and use of the suit property and/or from offering for sale, selling, transferring, alienating, squatting, allocating or in any way disposing of the suit property known as Portion No 19869 Malindi situate within Malindi township
- 2.A mandatory injunction compelling the defendants, their agents, servants, employees or assigns to vacate the suit property known as Portion No 19869 Malindi
- 3.The 1st, 2nd and 3rd defendants shall jointly and severally pay to the plaintiff the sum of Kenya Shillings Two Million (Kshs 2,000,000/-) being general damages for trespass
- 4.Interest shall accrue on the mandatory injunction and general damages at court rates till settlement in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to title, possession and use of land (suit property Portion No 19869 Malindi)
Relief refused
#General damages at a higher/unspecified quantum tied to specific evidence of loss
No specific evidence or submission was made on quantum; the court awarded a global sum of Kshs 2,000,000 based on trespass per se and environmental degradation
Costs
No costs order appears in the judgment.
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.
A permanent injunction is hereby issued restraining the defendants, their agents, servants, employees, assigns or otherwise howsoever from trespassing into and/or interfering in any way with the plaintiff's quiet enjoyment possession and use of the suit property
A mandatory injunction order is hereby issued compelling the defendants, their agents, servants, employees or assigns to vacate the suit property known as Portion No 19869 Malindi
The 1st 2nd and 3rd defendants shall pay to the plaintiff the sum of Kenya Shillings Two Million (Kshs 2,000,000/-) being general damages for trespass
where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded damages
Issues in the judgment
#The judgment allows the claim 'in terms of prayers nos (a), (b) (c) (d) and (e) of the plaint', but the plaint as reproduced sets out only four prayers (a)-(d); prayer (e) is not disclosed in the judgment.
The judgment makes no order as to costs despite the suit being allowed.
The case number as printed on the file references E056 of 2018 while the plaint is dated 14/6/2024 and the title was issued in February 2024, suggesting a discrepancy in the year of filing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Waithima (Suing on Behalf of and as the Donee of Power of Attorney From Edwin Wagura Kimondo) v Chembe & 2 others (Environment and Land Case E056 of 2024) [2026] KEELC 3720 (KLR)", Case Analysis (2026). MLDELCLC NO. E056 of 2018 (as marked on the file: MLDELCLCNOE056/18). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3720/eng@2026-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.