REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ELCLC NO. E056 OF 2024 CHARLES WAITHIMA (Suing on Behalf Of And As The Donee Of Power Of Attorney From Edwin Wagura Kimondo) ……..……………….………………..PLAINTIFF VERSUS 1. SAMMY CHEMBE 2. ROBERT KAMWANYI 3. MATANO MUGANGA ………………………………… DEFENDANTS JUDGMENT 1. The plaintiff brought the present suit against the defendants in which he sought the following orders in a plaint dated 14/6/2024: a. A permanent injunction restraining the defendants their agents servants or 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; b. A mandatory injunction compelling the defendants to vacate the suit property known as portion 19869 Malindi; c. General damages for trespass; d. Interest on (b) and (c) above at court rates. 2. The plaintiff’s case is that the donor is the registered and lawful owner of the suit property, that the 1st defendant has since march 2024 been representing that the suit property belongs to him and purported to delineate various portions to the 2nd and 3rd defendants, and that the three have proceeded to establish structures thereon while causing the dumping of solid waste on the property. He accuses the defendants of forcefully entering and establishing structures on the suit property and also injuring the original state of the suit property, and MLDELCLCNOE056/18-JDGT/DF-21.06.24/FH-26.06.25/LH-10.03.26/DJ-16.06.26F. attempting to grab it. Page 1 of 4
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the defendants failed to file and serve their defence in the matter within the prescribed time and they also failed to appear for the hearing which therefore proceeded ex parte on 10/12/2025. The plaintiff filed submissions dated 9/3/2026 but no submissions were filed on behalf of the defendants. 3. Charles Waithima, the plaintiff testified on 10/12/2025 as PW1. He produced his duly registered power of attorney and the documents in the list of documents dated 30/1/2025 as PExh1 - PExh 13 as his evidence. He reiterated the matters in the plaint. According to him the defendants were using the suit land as a sorting area for solid waste that was dumped on adjacent land. 4. Lisper Wairimu Wanjohi, PW2, testified on the same date as PW1 and adopted her witness statement dated 19/2/2025 as her evidence in chief. She is the mother to the donor of the power of attorney granted to the plaintiff. According to her the suit land was a portion of the main parcel which the family patriarch, one Kimondo Wagura, was allocated in 1991. Title to that main portion had been issued in 2019 after the family pursued the process and subsequently it was subdivided to yield, inter alia, the suit property. Title to the suit property was issued to the donor of the power of attorney Edwin Wagura in February 2024. Analysis And Determination 5. The plaintiff’s evidence both oral and documentary was not controverted and this court accepts it as genuine. The evidence adduced has proved that the donor is the registered owner of the suit property, that the defendants have entered and remained and carried on their waste handling business thereon illegally and that they have therefore committed trespass on the property. This court thus finds that the plaintiff has established his claim on a balance of probabilities. Consequently, the plaintiff’s claim is found to have merit and it should be allowed in terms of prayers nos (a), (b) (c) (d) and (e) of the plaint dated 14th June 2024. MLDELCLCNOE056/18-JDGT/DF-21.06.24/FH-26.06.25/LH-10.03.26/DJ-16.06.26F. Page 2 of 4
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6. Regarding general damages, it is the case as per Park Towers Ltd V John Mithamo Njika 2014 eKLR that damages for trespass are awardable once trespass is proved. In that case it was held as follows: “I agree with the learned judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded damages. The Court in such circumstances is under a duty to assess the damages awardable depending on the unique facts and circumstances of each case.” 7. There being no specific evidence or submission made on the quantum expected adduced, but having regard that uncontroverted evidence was given that that the defendants are using the land for unauthorized solid waste disposal, the court finds that the activities on the land are deleterious to the land and the surrounding environment and for the trespass per se and the said environmental degradation that may require environmental restoration hereby finds that the defendants should jointly and severally pay to the plaintiff the sum of Kshs 2,000,000/= as general damages for trespass. For the avoidance of doubt this court thus issues the following final orders: a. 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 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; b. 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; c. 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; d. Interest shall accrue on (b) and (c) above at court rates till settlement in full. Dated, signed and delivered at Malindi on this 16th June 2026. MLDELCLCNOE056/18-JDGT/DF-21.06.24/FH-26.06.25/LH-10.03.26/DJ-16.06.26F. Page 3 of 4
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MWANGI NJOROGE JUDGE, ELC MALINDI. MLDELCLCNOE056/18-JDGT/DF-21.06.24/FH-26.06.25/LH-10.03.26/DJ-16.06.26F. Page 4 of 4
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