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Case Brief · caselaw.co.ke
ELCAllowedELC Case Number 101 of 2011

Michelle Caliendo Maurizio & Carlo Besane v Sunreef Limited & 4 Others

Environment and Land Court
24 September 2026
3,129 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded land buyers over Kshs 8 million after an illegal eviction, confirming you never need a court order to evict someone.

What this practically means

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Executive summary

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This is an undefended counterclaim heard in the Environment and Land Court at Malindi. The main suit had been dismissed for want of prosecution by Angote J, leaving the counterclaim by the original plaintiffs (buyers of the suit property) against the original defendants. The counterclaim arose after the purchasers' transfer was nullified on the ground that it was prepared by a person without capacity to act as an advocate, and after the third and fourth defendants forcibly re-entered the property in November 2013 without a court order, evicted the purchasers, damaged the property and removed their belongings. Only one witness, Francisco Veltroni, testified for the counterclaimants; no defence was filed. The court held that the uncontroverted evidence established the counterclaimants as registered owners and victims of an illegal self-help eviction. Relying on sections 24, 25 and 26 of the Land Registration Act and precedent that trespass is actionable per se, the court found the eviction a brute-force bypass of legal process undermining the rule of law, justifying both general damages for trespass per se and exemplary damages. It granted declarations that the eviction was illegal, that the counterclaimants are bona fide owners, and that a trust for sale exists in their favour, with a transfer to be executed by the first defendant or the Deputy Registrar; a permanent injunction against the third and fourth defendants; general damages of Kshs 5,000,000; exemplary damages of Kshs 2,000,000; special damages of Kshs 1,046,800; interest at court rates; and costs.

Questions the Court framed

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

  1. 1.Whether the counterclaim, undefended and uncontroverted, is proved
  2. 2.Whether the eviction of the counterclaimants without a court order was illegal
  3. 3.Whether a trust for sale arose in favour of the counterclaimants upon nullification of the transfer
  4. 4.What damages, general and exemplary, are payable for the trespass

Key legal issues

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01

Effect of undefended counterclaim

Holding

The counterclaimants' uncontroverted evidence proved the claim and their ownership of the suit land

Reasoning

No defence or evidence was filed by any defendant to the counterclaim, who were all absent at the hearing. The evidence of PW1, Francisco Veltroni, including documents PEXH 1-5 and a video recording, therefore stood uncontroverted, establishing the counterclaimants as registered owners and victims of an illegal eviction.

p. 1
02

Illegal self-help eviction and damages

Holding

The defendants' entry and eviction without a court order was an illegal eviction attracting general damages for trespass per se and punitive (exemplary) damages

Reasoning

The third and fourth defendants entered and evicted the plaintiffs without court orders or lawful execution, damaging property, evicting employees and taking over the house for some two years and three months before reinstatement. The court held such conduct undermines the rule of law and creates a culture of impunity, justifying both general damages per se and exemplary damages.

p. 8
03

Quantum

Holding

Kshs 5,000,000 general damages, Kshs 2,000,000 exemplary damages and Kshs 1,046,800 special damages awarded jointly and severally against the 3rd and 4th defendants

Reasoning

Guided by comparators where Kshs 5,000,000 and lower nominal sums were awarded, and considering the briefer duration of the trespass against the counterclaimants' plea of Kshs 10,000,000, the court fixed general damages at Kshs 5,000,000 and, for the egregious conduct, exemplary damages at Kshs 2,000,000, plus pleaded and proved special damages.

p. 11
04

Trust for sale and indefeasibility

Holding

Upon nullification of the transfer, a trust for sale arose in favour of the counterclaimants and the first defendant must execute a transfer to them

Reasoning

Relying on sections 24, 25 and 26 of the Land Registration Act on the incidents and conclusiveness of registered title, and the plea that the purchasers were purchasers for value without notice, the court declared the trust for sale in favour of the counterclaimants and ordered execution of a transfer, failing which the Deputy Registrar to execute it.

p. 11

Legal principles established

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  • Trespass to land is actionable per se; no proof of actual damage is needed
  • Self-help eviction bypassing legal process warrants punitive measures

Court orders

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  1. 1.Declaration that the purported eviction of the plaintiffs without a court order was illegal, null and void
  2. 2.Declaration that the plaintiffs are the bona fide owners of portion number 2914 (original number 514/53)
  3. 3.Declaration that a trust for sale was created in favour of the plaintiffs; first defendant compelled to execute a transfer, failing which the Deputy Registrar to execute it
  4. 4.Permanent injunction restraining the third and fourth defendants from trespassing, evicting or interfering with the plaintiffs' quiet possession
  5. 5.General damages for trespass of Kenya Shillings 5,000,000 against the 3rd and 4th defendants to the counterclaim jointly and severally
  6. 6.Exemplary damages of Kenya Shillings 2,000,000 against the 3rd and 4th defendants to the counterclaim jointly and severally
  7. 7.Special damages of Kenya Shillings 1,046,800 against the 3rd and 4th defendants to the counterclaim jointly and severally
  8. 8.Interest at court rates

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over the counterclaim concerning title, trust for sale and trespass to land

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.

Trespass to land is actionable per se; a landowner does not need to prove they suffered any actual damage, physical harm, or financial loss to successfully sue a trespasser.
p. 5Trespass actionable per se
Illegal eviction is not an event to be taken lightly and where it is proved the appropriate punitive measures must be meted out by the court.
p. 9Punitive measures for illegal eviction
I therefore grant prayers number (a) (b)(c) (d) (f), (g), (h), (i) and (j) in the counterclaim dated 2nd April 2015.
p. 11Disposition
I award the plaintiffs Kenya Shillings 5,000,000 (Kenya Shillings Five Million only) in damages for trespass against the 3rd and 4th defendants in the counterclaim jointly and severally
p. 11Final orders - general damages
I award the plaintiffs Kenya Shillings 2,000,000/- (Kenya Shillings Two Million only) as exemplary damages against the 3rd and 4th defendants in the counterclaim jointly and severally for their unlawful conduct
p. 11Final orders - exemplary damages
Interest is awarded at court rates.
p. 11Final orders - interest

Issues in the judgment

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minor

Plaintiff names garbled in caption; 'Michelle Caliendo Maurizio Carlo Besane' presented as two plaintiffs unclearly

minor

Chronology confusion: dismissal stated as 25th February 2025 while the file reference and hearing dates run to 2026

minor

Prayer (e) in the counterclaim is described as sought but the disposition grants only (a)-(d) and (f)-(j); prayer (e) silently dropped

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, "Michelle Caliendo Maurizio & Carlo Besane v Sunreef Limited & 4 Others", Case Analysis (2026). ELC Case Number 101 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5733/eng@2026-09-24

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