Winchester Farm Limited v Maingi & 36 others

MIRIAM LIMEDIMI ..................................................................... 18TH DEFENDANT PRISCILLAH WANJIRU .............................................................. 19TH DEFENDANT LUCY MWANGI ............................................................................ 20TH DEFENDANT PHILISIA GABRIEL ....................................................................... 21ST DEFENDANT ANTHONY KIMANI .................................................................... 22ND DEFENDANT SHEILA KASAYA ........................................................................... 23RD DEFENDANT SUSAN MACHARIA ..................................................................... 24TH DEFENDANT ANN WARUGURU ....................................................................... 25TH DEFENDANT SYLVIA WAMBUI NJOROGE ...................................................... 26TH DEFENDANT ISELA COLLINS ............................................................................. 27TH DEFENDANT SALOME MATHENGE .................................................................. 28TH DEFENDANT JUSTUS MUSYOKA ...................................................................... 29TH DEFENDANT FELISTUS NDUNG’U ................................................................... 30TH DEFENDANT DIANA AWUOR ............................................................................ 31ST DEFENDANT KOKI KIMATHI ............................................................................ 32ND DEFENDANT ESTHER KAMENE ........................................................................ 33RD DEFENDANT GRACE AKOTH ............................................................................ 34TH DEFENDANT EZNAH KWAMBOKA .................................................................. 35TH DEFENDANT AMOS MIRERI .............................................................................. 36TH DEFENDANT JEMIMA BOSIBORI ...................................................................... 37TH DEFENDANT JUDGMENT 1. The Plainti commenced this suit vide a Plaint dated 9th June 2025. It contended that it is the registered proprietor of LR No.1160/801 hereinafter referred to as the ‘suit property’. It is its case that the 1st to 6th Defendants have without lawful cause erected structures on the front face of its property while the 7th to 37th Defendants are unlawfully carrying on businesses on the said structures. 2. It prays for judgement to be entered against the Defendants jointly and severally for: a. An order directing the Defendants, each and every one of them, their servants or agents to cease further encroachment on the Plainti’s parcel of land known as Land Reference Number 1160/801 and or carrying on business operations on the perimeter fence of the Plainti’s parcel of land known as Land Reference Number 1160/801. b. An order 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 Plainti’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. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5718/eng@2026-09-24 2

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3. c. An order of permanent injunction restraining the Defendants, each and every one of them, their servants or agents from abating a nuisance, encroaching and or trespassing onto the Plainti’s parcel of land known as Land Reference Number 1160/801, erecting structures on the fence, demarcating the said property, carrying on business or trade, destroying the Plainti’s fence and or in any manner interfering with the Plainti’s use and peaceful occupation of Land Reference Number 1160/801. d. Costs of the suit. Despite being duly served, the Defendants neither entered appearance nor participated in this suit. The matter proceeded for hearing where the Plainti called one witness. Plainti ’s Evidence 4. The Plainti’s Chief Accountant, Rose Yebei testied as PW1. It was her testimony that the 1st to 6th Defendants have erected structures which have encroached on the Plainti’s parcel, LR No. 1160/801 thereby causing a security risk including posing a public health hazard. Further, that they have also illegally rented out the said structures to the 7th to 37th Defendants who are carrying out unlicensed businesses, occasioning a nuisance to the Plainti. She testied that as a result of the Defendant’s actions, the Plainti’s use of its land has been downgraded and it has been forced to hire more security guards, incurring needless costs and expenses. She produced the Plainti’s list and bundle of documents dated 9th June 2025, which includes; copy of title for LR No. 1160/801, correspondences dated 14th April 2025 from Kale Maina & Bundotich Advocates LLP addressed to some of the Defendants, adavit of service sworn by Benedict Mutuku Musembi, and photographs of the structures as P. Exhibit 1-5. 5. The Plainti thereafter led written submissions. Submissions 6. The Plainti in its submissions reiterated the evidence tendered and urged the Court to enter judgement against the Defendants, contending that it had proved its case on a balance of probabilities. Analysis and Determination 7. 8. I have considered the Plaint, testimony of the witness, exhibits including submissions and the following are issues for determination: a. Whether the Plainti has proved trespass/encroachment which has interfered with its peaceful enjoyment of LR No. 1160/801. b. Whether the Plainti is entitled to the Orders as sought in the Plaint. The Plainti's case is that the 1st to 6th Defendants have encroached and erected structures on the front face and along the fence of its property, LR No. 1160/801. Further, that the said structures have created security and public health risks and interfered with its enjoyment of the said property. The Plainti also alleges that the 1st to 6th Defendants unlawfully rented out the said structures to the 7th to 37th Defendants, who are carrying on business thereon without any licence /permission, compelling it to incur additional security expenses. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5718/eng@2026-09-24 3

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9. As earlier noted, the suit is not opposed. However, the Plainti still retains the burden of proving its case. In Gichinga Kibutha v Caroline Nduku [2018] eKLR, the Court stated as follows in relation to an undefended claim; “ 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. He must proof his case however much the opponent has not made a presence in the contest.” 10. PW1 in her testimony conrmed that the Plainti is the registered proprietor of the suit property. I note the Plainti produced the Certicate of Title in respect to the suit property which indeed conrmed that it is indeed the absolute proprietor of the said property, 11. 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. A registered proprietor is also protected under Article 40 of the Constitution. The Plainti alleges encroachment/trespass which fact is not disputed by the Defendants. 12. In the case of Church Commissioners for Kenya of the Anglican Church of Kenya v Wayuga [2024] KECA 1048 (KLR), the Court of Appeal stated as follows: “ Trespass is described under the Trespass Act Cap 294 to mean “any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof…” 13. Further, in the case of Doshi v Chemutut & 7 others [2025] KECA 776 (KLR), the Court of Appeal stated as follows: “ Trespass, as stated by this Court in the case of Charles Ogejo Ochieng v Georey Okumu [1995] KECA 169(KLR), is an injury to a possessory right, and therefore the proper plainti in an action of trespass to land is the person who has title to it, or a person who is deemed to have been in possession at the time of the trespass. As for the ingredients of trespass, the Court in William Kamunge Gakui v Eustace Gitonga Gakui (Civil Appeal 16 of 2013) [2014] KECA 39 (KLR) stated that trespass is a violation of the right to possession, and that a plainti must prove that he has the right to immediate and exclusive possession of the land.” 14. From the facts before this Court, while relying on the legal provisions cited and associating myself with the decisions quoted, I nd that the Plainti is indeed the absolute proprietor of the suit property and hence entitled to protection of the law. Further, from PW1’s testimony, I nd that the Plainti has indeed proved encroachment on its parcel of land by the Defendants. Since the Plainti has proved that the Defendants have encroached on the suit property, interfered with its peaceful enjoyment of the same, noting that the Plainti had sent them demand letters dated the 14th April, 2025 demanding that they cease encroaching on the suit property and vacate but they declined to heed, I opine that the Plainti is indeed entitled to the Orders for removal/demolition of the Defendants’ illegal structures, which are on the suit property. I further nd that a permanent injunction should indeed issue restraining the Defendants from encroaching including interfering with the suit property. 15. In the foregoing, I nd that the Plainti has indeed proved its case on a balance of probability and will proceed to enter judgement in its favour as against the Defendants in the following terms: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5718/eng@2026-09-24 4

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a. An order be and is hereby issued directing the Defendants, each and every one of them, their servants or agents to cease further encroachment on the Plainti’s parcel of land known as Land Reference Number 1160/801 and or carrying on business operations on the perimeter fence of the Plainti’s parcel of land known as Land Reference Number 1160/801. b. 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 Plainti’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. c. An order of permanent injunction be and is hereby issued restraining the Defendants, each and every one of them, their servants or agents from abating a nuisance, encroaching and or trespassing onto the Plainti’s parcel of land known as Land Reference Number 1160/801, erecting structures on the fence, demarcating the said property, carrying on business or trade, destroying the Plainti’s fence and or in any manner interfering with the Plainti’s use and peaceful occupation of Land Reference Number 1160/801. d. Costs of the suit is awarded to the Plainti. DATED SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Bundotich for Plainti Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5718/eng@2026-09-24 5

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