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ELCAllowedEnvironment and Land Case E322 of 2025

Winchester Farm Limited v Maingi & 36 others

Environment and Land Court
24 September 2026
1,753 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Nairobi court ordered 37 people to demolish structures encroaching on private land within 14 days, confirming that registered title wins in trespass disputes.

What this practically means

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Executive summary

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Winchester Farm Limited, the registered proprietor of LR No. 1160/801, sued 37 defendants alleging that the 1st to 6th Defendants had, without lawful cause, erected structures encroaching on the front face and perimeter fence of its property, and that the 7th to 37th Defendants were unlawfully carrying on businesses on those structures. The plaintiff sought cessation of encroachment, removal or demolition of the structures within 14 days with default warrants of eviction, a permanent injunction, and costs. Despite due service, the defendants neither entered appearance nor participated; the matter proceeded undefended with one witness, Rose Yebei, the plaintiff's Chief Accountant, who produced the title, demand letters, affidavit of service and photographs. The court framed two issues: whether trespass/encroachment interfering with the plaintiff's peaceful enjoyment was proved, and whether the plaintiff was entitled to the orders sought. Relying on Section 24 of the Land Registration Act and Article 40 of the Constitution, and on Court of Appeal authorities on trespass, the court held that the Certificate of Title confirmed absolute ownership and that PW1's testimony proved encroachment. Applying the principle from Gichinga Kibutha v Caroline Nduku that an undefended claimant must still discharge the burden of proof, the court found the case proved on a balance of probability. Judgment was entered for the plaintiff in the terms prayed, including a permanent injunction, an order for removal/demolition of the structures within 14 days with default eviction, and costs of the suit.

Questions the Court framed

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

  1. 1.Whether the Plaintiff has proved trespass/encroachment which has interfered with its peaceful enjoyment of LR No. 1160/801.
  2. 2.Whether the Plaintiff is entitled to the Orders as sought in the Plaint.

Key legal issues

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01

Whether the plaintiff proved trespass/encroachment on LR No. 1160/801

Holding

Yes - the plaintiff produced its Certificate of Title and PW1's uncontroverted testimony proved encroachment by the Defendants.

Reasoning

The plaintiff produced its Certificate of Title confirming it as absolute proprietor, protected under Section 24 of the Land Registration Act and Article 40 of the Constitution. PW1 testified that the 1st to 6th Defendants erected structures encroaching on the parcel and rented them to the 7th to 37th Defendants. Although the suit was undefended, the court applied the principle that an uncontroverted claimant must still discharge the burden of proof, and found the encroachment proved on a balance of probability.

02

Whether the plaintiff is entitled to the orders sought in the Plaint

Holding

Yes - judgment entered as prayed: cessation of encroachment, removal/demolition of structures within 14 days with default eviction, permanent injunction, and costs.

Reasoning

Having proved title and encroachment, and noting demand letters dated 14th April 2025 which the Defendants declined to heed, the court held the plaintiff entitled to removal/demolition of the illegal structures and a permanent injunction restraining further encroachment or interference with the suit property. Judgment was entered against the Defendants jointly and severally in the terms prayed in the Plaint, with costs to the plaintiff.

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership rights in them.
  • In an undefended claim, the claimant must still discharge the burden of proof.
  • Trespass is a violation of the right to possession; the proper plaintiff is the person with title or immediate and exclusive possession.

Court orders

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  1. 1.An order directing the Defendants, each and every one of them, their servants or agents to cease further encroachment on LR No. 1160/801 and or carrying on business operations on the perimeter fence of the suit property.
  2. 2.An order directing the Defendants to forthwith remove and or demolish all structures erected and encroached onto LR No. 1160/801 within fourteen (14) days from the date of the order and in default warrants of eviction to issue.
  3. 3.An order of permanent injunction restraining the Defendants from abating a nuisance, encroaching and or trespassing onto LR No. 1160/801, erecting structures on the fence, demarcating the property, carrying on business or trade, destroying the Plaintiff's fence or otherwise interfering with its use and peaceful occupation.
  4. 4.Costs of the suit awarded to the Plaintiff.

The bench

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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 (Article 162(2)(b) Constitution; ELC Act) - not expressly stated in the judgment

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.

It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof.
p. 4burden of proof in undefended suits
It is trite that registration of a person as proprietor of land vests in them absolute ownership rights pursuant to Section 24 of the Land Registration Act.
p. 4effect of registration
An order be and is hereby issued directing the Defendants, each and every one of them, their servants or agents to forthwith remove and or demolish all structures that have been erected and encroached onto the Plaintiff’s parcel of land known as Land Reference Number 1160/801 within fourteen (14) days from the date of the order and in default warrants of eviction to issue.
p. 5final orders - removal of structures and default eviction
Costs of the suit is awarded to the Plaintiff.
p. 5costs

Issues in the judgment

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minor

Coram initials 'CA OCHIENG, J' differ from signature 'CHRISTINE OCHIENG'; caption lists 37 defendants though case title says 36 others.

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, "Winchester Farm Limited v Maingi & 36 others", Case Analysis (2026). Environment and Land Case E322 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5718/eng@2026-09-24

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