Muturi v Muturi & 3 others (Environment and Land Case E200 of 2024) [2026] KEELC 1164 (KLR)

e. Costs of the suit. f. Any other or further relief this Court may deem fit to grant. 2. The suit is undefended but I will still provide a brief background of the Plaintifi’s case. Since the suit is undefended, the following averments stand uncontroverted before the Court. 3. In summary the case against the 1st, 2nd, 3rd and 4th Defendants is that the dispute concerns a parcel of land known as LR. No. 6782/36 (originally part of LR. No. 6782/16), situated in Kiambu East, Limuru Town. 4. The Plaintifi claims ownership of the land through a transfer from his late father, Joseph Muturi Njoroge, in 1995. That in November 2023, the Plaintifi subdivided the original parcel (LR. No. 6782/16) into several plots, specifically units 6782/31 through 6782/36. 5. The Plaintifi asserts he enjoyed quiet possession of the land until the Defendants interfered. 6. The Plaintifi alleges that in 2019, the Defendants illegally entered and occupied a portion of the property (LR. No. 6782/36). That following the encroachment, the Plaintifi attempted to resolve the matter personally by asking the Defendants to vacate on several occasions, but they refused. 7. In 2022, the matter was reported to the Tigoni Police Station. However, the OCS’s attempts to facilitate an eviction were unsuccessful as the Defendants remained adamant. 8. The Plaintifi maintains that the Defendants' continued presence is illegal and prevents him from carrying out any meaningful development on his land. 9. Because the Defendants have ignored formal demands and notices of intention to sue, the Plaintifi has approached this Honorable Court seeking the prayers made in paragraph one (1) of the plaint. prays for the following from the Court: The Plaintifi ’s Case 10. The matter was scheduled for hearing on 09/12/2025 and the Defendants despite being served did not attend the hearing. Earlier the Plaintifi had made a request for Judgment dated 17/06/2025 but the Court chose to have the matter heard. 11. At the hearing the Plaintifi adopted his witness statement as his evidence in chief dated 20/11/2024 and a list of documents of even date as Plaintifi’s exhibit 1-7. The Plaintifi asked the Court to grant him the suit property. He testified that he inherited the suit property from his late father but that the 4th Defendants have encroached on his land. 12. It was his testimony that the title is in his name and the land is registered under the Government Land Act (repealed). He averred to have filed the Letter of Allotment and that he obtained the land through inheritance and that the land was transferred to him while his father was alive. 13. The Court directed the Plaintifi to file his submissions which were filed dated 19/12/2025. 14. The gist of the submissions is that since the case is undefended, the Plaintifi emphasizes that his evidence remains unchallenged and should be accepted as fact. 15. He submits that the Court needs to consider four issues being: a. Whether the Plaintifi is the lawful registered proprietor of L.R. No. 6782/36. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1164/eng@2026-03-02 2

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b. Whether the Defendants unlawfully trespassed and encroached upon the suit property. c. Whether the Plaintifi is entitled to permanent injunctive and eviction orders. d. Whether the Plaintifi is entitled to damages for trespass. 16. On the first issue the Plaintifi relies on the Land Registration Act, 2012 to anchor his claim and he states that Sections 24, 25 and 26(1) establish that registration of a person as the proprietor of land is conclusive evidence of absolute ownership. As such the Plaintifi submits that his title is indefeasible that it cannot be defeated, as the Defendants have not proven any fraud or illegality to challenge his ownership. 17. The Plaintifi cites three specific cases to support his arguments namely; Elijah Makeri Nyang’wara v Stephen Mungai Njuguna & Another [2013] eKLR, in which case the Court reafirms that a registered owner’s title is absolute and protected by law unless fraud is proved. The second case he refers to is the case of Park Towers Ltd v John Mithamo Njika & 7 Others [2014] eKLR, where the Court in its decision establishes that once ownership is proven, any unauthorized occupation is a trespass that entitles the owner to Court relief. Lastly the case of Philip Aluchio v Crispinus Ngayo [2014] eKLR, from which decision the Court confirms that that trespass is actionable per se. Meaning the Court can award damages simply because the trespass happened, even if the owner didn't prove a specific financial loss. 18. The Plaintifi highlights that the Defendants were served repeatedly, even with police assistance, but chose to ignore the Court. That by failing to file a defense, the Plaintifi argues the Defendants have silently admitted to the trespass or rather that this is a tacit admission to the claim of trespass raised by the Plaintifi against them. 19. Thus, the Plaintifi specifically requests the Court to involve the OCS Tigoni Police Station to ensure the eviction is actually carried out, citing the Defendants' history of defiance. In concluding his submissions, the Plaintifi urges the Court to uphold the sanctity of title and not reward the Defendants' impunity. He prays for Judgment to be entered exactly as requested in his original Plaint. Analysis and Final Orders 20. The Plaintifi moved this Court by way of a Plaint dated 20/11/2024, seeking a permanent injunction, an eviction order and damages for trespass against the four Defendants. Despite being duly served with Summons and the Plaint the Defendants failed to file a Memorandum of Appearance or a Defense. Consequently, this suit proceeded as an undefended matter. 21. Having considered the pleadings and the written submissions, the Court identifies the following issues for determination: 22. i. Whether the Plaintifi holds a valid and indefeasible title to the suit property. ii. Whether the Defendants' entry and continued stay on the property constitutes trespass. iii. Whether the Plaintifi is entitled to the reliefs sought. On the issue of ownership and indefeasibility of title, the Plaintifi testified that he became the registered owner of LR. No 6782/36 (Original No. 6782/16) following a transfer from his late father in 1995. Under Sections 24 and 25 of the Land Registration Act, 2012, registration vests in the proprietor https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1164/eng@2026-03-02 3

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absolute ownership. Furthermore, Section 26(1) provides that a Certificate of Title shall be taken by all Courts as prima facie evidence of ownership. 23. The Court relies on the precedent in Elijah Makeri Nyang’wara v Stephen Mungai Njuguna (supra), which afirms that a title is indefeasible unless fraud or illegality is proven. In this case, the Defendants have ofiered no challenge to the Plaintifi’s title. The Court is also guided by the English principle in Dutton v Manchester City Council [1999], EWCA 844 which underscores that a party with a superior possessory interest is entitled to exclude others who have no legal color of right. 24. On the issue of trespass and unlawful occupation, the law is clear on the issue of trespass and states that trespass to land consists of any unjustifiable intrusion by one person onto land in the possession of another. The Plaintifi’s evidence that the Defendants entered the land in 2019 without his consent remains unchallenged. 25. As held in Park Towers Ltd v John Mithamo Njika [2014] eKLR, once a Plaintifi proves ownership and the Defendant fails to show a license or lease, the Court must find that trespass has occurred. Under the common law principle established in Entick v Carrington (1765) EWHC KB J98, where the Court decreed that; “ … our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave." 26. By staying on the land despite police intervention and formal notices, the Defendants’ actions satisfy the definition of continuing trespass. 27. The Plaintifi seeks a permanent injunction and an eviction order and damages. Equity provides that where a legal right is continuously infringed, an injunction is the most appropriate remedy. Further, regarding damages, the Court notes that trespass is actionable per se meaning that the Plaintifi does not need to prove specific financial loss to be entitled to general damages. The Defendants’ occupation since 2019 has deprived the Plaintifi of the quiet enjoyment and development of his property. Following the reasoning in Philip Aluchio v Crispinus Ngayo (supra), the Court finds that the Plaintifi is entitled to compensation for this interference. Final Disposition 28. In view of the foregoing, this Court finds that the Plaintifi has proved his case on a balance of probabilities. Judgment is hereby entered for the Plaintifi against the Defendants jointly and severally for: a. A permanent injunction is hereby issued restraining the Defendants, their agents, and/or servants from trespassing, encroaching, or in any way interfering with the Plaintifi’s use of Land Reference No. 6782/36 (org No. 6782/16) situated at Kiambu East of Limuru Town. b. An order of eviction is hereby issued against the Defendants from Land Reference No. 6782/36 (org No. 6782/16) situated at Kiambu East of Limuru Town the suit property. c. An order is hereby issued directing the OCS Tigoni Police Station to provide security and assistance in the execution of the eviction order. d. General damages for trespass in the sum of Kesh 1,000,000 is awarded to the Plaintifi to be paid by the Defendants jointly and severally from the date of this Judgment till payment in full including interest at Court rates. e. Costs of this suit to be borne by the Defendants jointly and severally. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1164/eng@2026-03-02 4

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Orders accordingly. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON 2ND MARCH 2026. MOGENI J JUDGE In the presence of:...................for Plaintifi .......1st - 4th Defendants Melita - Court Assistant MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1164/eng@2026-03-02 5

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