Kahara v Waweru & 3 others

4. The Plainti contends that attempts to have the Defendants vacate the suit property have been futile. 5. The Plainti avers that she engaged the services of a surveyor who conrmed that the defendants had encroached onto the suit property. 6. The Plainti now beseeches the court to intervene and order the Defendants to vacate the suit property. 7. The Defendants led their Statement of Defence dated 4th December 2017. They denied encroaching upon or trespassing onto the Plainti’s land, maintaining that their activities were conned to their own parcel, known as Land Parcel No. Dagoretti/Uthiru/568, measuring 0.06 hectares with the title issued in 1979. 8. The Defendants aver that they developed their parcel in 1983 by constructing rental units and have since remained in occupation thereof, together with their tenants. 9. The Defendants further denied having been served with any demand or notice of intention to institute suit. They consequently prayed that the suit be dismissed with costs. Plainti ’s Case 10. The Plainti testied as PW1 and adopted her witness statement dated 24th January 2024 as her evidence in chief. The Plainti’s list and bundle of documents were adopted as Plainti’s exhibits 1-8. 11. The Plainti testied that she acquired the suit property from her late husband, Leonard Khara Mukuri (deceased). The Plainti avers that her late husband died on 22nd August 1986 and one Simon Mukuri Kiara and herself petitioned the Honourable Court in Nairobi High Court Succession Cause 2319 of 2022 and obtained letters of administration. 12. The Plainti further testied that prior to her late husband’s death he was the registered owner of Land Parcel Number Dagoretti/Uthiru/107 which was subsequently subdivided into two parcels namely Land Parcel Number Dagoretti/Uthiru/568 and 569 with an access road demarcated for Land Parcel Number Dagoretti/Uthiru/569. 13. It was PW1’s testimony that on or about 16th April 1986 Land Parcel Number Dagoretti/Uthiru/569 was subdivided into Land Parcel Number Dagoretti/Uthiru/580 and 581 and on 18th January 2005 Land Parcel Number Dagoretti/Uthiru/580 was transferred to her and a title deed issued. 14. PW1 testied that Peter Titi Waweru (deceased) who was the registered proprietor of Dagoretti/ Uthiru/568 encroached onto the suit property and unilaterally erected a fence and wooden structures. PW1 states that she tried to seek assistance to resolve the land dispute from area chief in vain. 15. PW1 testied that she instructed a surveyor to establish and demarcate the boundaries of Land Parcel Number Dagoretti/Uthiru/568 and 580 and the surveyor generated a report on 11th November 2017 indicating that the wooden structure from Land Parcel Number Dagoretti/Uthiru/568 had encroached onto the suit property by approximately 12 meters. 16. PW1 testied that despite the revelations made by the report the Defendants have refused and/ or failed to remove the wooden structures from the suit property. 17. According to PW1, the Defendants are all blood relatives. She stated that the 2nd and 3rd Defendants are deceased, while the 1st and 4th Defendants remain in possession and occupation of Land Parcel Number Dagoretti/Uthiru/568, upon which the wooden structures alleged to have encroached onto the suit property have been erected. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5838/eng@2026-09-23 2

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18. On cross-examination, PW1 stated that the suit property belonged to her late husband, who died in 1986, while the Defendants’ father, the late Peter Waweru Titi (deceased), died in 2012. PW1 conceded that PEX 7 depicted structures erected by the late Peter Waweru Titi and, signicantly, that those structures had been put up during her late husband’s lifetime. She further acknowledged that her late husband raised no complaint when the houses were constructed. PW1 maintained, that her late husband had sold the late Peter Waweru Titi his parcel of land. She admitted that she had no documentary evidence showing that she had reported the alleged trespass or encroachment to the Chief. PW1 stated that the encroachment came to her attention following a private survey, but conceded that she had not engaged a government surveyor. She also accepted that the houses presently standing on the suit property were constructed by the Defendants’ late father and that the Defendants themselves had erected no new structures thereon. 19. Upon re-examination, PW1 stated that she knew all the Defendants and that they resided on Land Parcel Number Dagoretti/Uthiru/568. She reiterated that they were the children of the late Peter Waweru Titi. PW1 further conrmed that her late husband had never sued the late Peter Waweru Titi. PW1 maintained that she was the rst to raise a complaint concerning the suit property and stated that her parcel shared a boundary with that of the Defendants. 20. That, in essence, was the complaint that brought the Plainti before this Court. Defendant’s Case 21. Lucy Margaret Wambui Waweru testied as DW1 and adopted her witness statement dated 4th December 2017 as her evidence in chief. DW1’s list and bundle of documents were adopted as Defence Exhibits 1,2 and 3. 22. The Defendants took the preliminary position that the suit was fatally defective, incompetent, misconceived and bad in law. DW1 testied that the 3rd Defendant is deceased and maintained that the suit property was distinct and separate from the Defendants’ parcel, Land Parcel Number Dagoretti/ Uthiru/568, in respect of which a title deed had been issued in 1979. 23. DW1 further stated that the 3rd Defendant (deceased) had erected permanent developments, including rental units, on the Defendants’ parcel and that the Defendants continued to reside there together with their tenants. 24. DW1 was emphatic that the structures standing on the Defendants’ land had no bearing on the Plainti’s property and that none of them encroached upon the suit property. 25. On cross examination, DW1 reiterated that she resides on Land Parcel Number Dagoretti/Uthiru/568 which is registered in the name of Michael Peter Waweru Titi who is her father. DW1 acknowledged that Alex Waweru (deceased), Monica Wairimo Waweru and David Tito Titi (deceased) are her siblings. 26. DW1 testied that their parcel was purchased by her father from Leonard Khara Mukuri who was the Plainti’s husband. 27. DW1 stated that the suit property was excised from Land Parcel Number Dagoretti/Uthiru/107 and after the subdivision, several parcels emerged including parcel 568 where the Defendants reside. 28. DW1 testied that the suit property and Land Parcel Number Dagoretti/Uthiru/568 shared a common boundary. She conrmed that various developments stood on Land Parcel Number Dagoretti/Uthiru/568, which she stated had been constructed by her father. DW1 disputed the ndings of the survey report that Land Parcel Number Dagoretti/Uthiru/568 had encroached upon the suit property by 12 metres. She nevertheless acknowledged that she had not produced any evidence https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5838/eng@2026-09-23 3

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to controvert the allegation that the developments on their parcel had encroached upon the suit property. 29. Upon re-examination, DW1 explained that she had no authority to deal with Land Parcel Number Dagoretti/Uthiru/568, which remained registered in the name of her deceased father. She further stated that the parcel was charged to Absa Bank and that an outstanding loan remained due. According to DW1, she had been unable to obtain a grant of representation without the title deed. 30. That brought the Defendants’ case to a close. Issues for Determination 31. Having considered the pleadings, the evidence adduced by the parties, the rival submissions and the applicable law, I distil the following issues for determination: i. Whether the Defendants encroached upon the suit property. ii. Whether the Plainti is entitled to the reliefs sought. Analysis and Determination 32. The allegation of encroachment is the fulcrum upon which the Plainti’s case turns. It is not enough to assert that the Defendants’ structures stand upon the Plainti’s land; the assertion must be proved. 33. A Court determines disputes on the evidence placed before it, not on the strength of the assertions made by the parties. The law therefore places the burden upon the party who asks the Court to nd a fact in its favour. Sections 107 and 108 of the Evidence Act, Cap 80, embody that principle. 34. Section 107 of the Evidence Act provides that: “ Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.” 35. Section 108, in similar vein provides that: “ The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 36. The position is further particularized by Section 109 of the Act which provides: “ The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 37. Section 112 of the Act complements this general rule by recognising that, where a fact is especially within the knowledge of a party, the burden of proving or disproving that fact lies upon that party. It provides: “ In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 38. These provisions must, however, be understood together. The law begins with the person who makes the allegation. He must prove it. That does not mean that the evidential burden cannot move during https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5838/eng@2026-09-23 4

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the course of a case. As evidence emerges, one party may be called upon to answer what the other has shown. But the ultimate burden remains where the law has placed it. 39. The question is therefore a simple one. Has the Plainti shown, on a balance of probabilities, that the Defendants’ developments crossed onto the suit property? 40. The Court of Appeal in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 drew the distinction between the legal and evidential burdens as follows: “ As a general proposition under section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the armative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 41. The application of that burden is governed by the civil standard of proof. In Mumbi M’Nabea v David M. Wachira [2016] eKLR, the Court of Appeal stated: “ In our jurisdiction, the Standard of Proof is Civil Liability Claims is that the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it in another way, on the evidence, which occurrence was more likely to happen than not…” 42. The question, then, is not whether encroachment has been alleged, but whether the evidence establishes that proposition as more probable than not. 43. The evidence adduced must locate the Defendants’ developments in relation to the boundary between the two parcels and, ultimately, establish whether they crossed it. 44. The existence of the structures is not in dispute. What is disputed is the ground upon which they stand. 45. The principal evidence relied upon by the Plainti to establish their claim is the survey report dated 11th November 2017. The survey report is in relation to the adjacent parcels comprising of the suit property and Dagoretti/Uthiru/568. The ndings of the survey report reads as follows: “ Results Property 568 has two rows of permanent structure fronting the 9 meters road and two rows of temporary structures towards it’s the southern boundary. The dimension of property 568 along the 3.5 meter lane should be approximately 38 meters. A temporary structure owned by proprietor of property 568 extends pas the 38 meters mark, encroaching property 580 by approximately 12 meters.” 46. The Court notes that the survey report was placed before the Court as PEX8 and admitted without objection. Its ndings were not challenged in cross-examination nor was a competing survey produced by the Defendants to controvert its ndings. Indeed, DW1 acknowledged that she had not produced evidence to rebut the alleged encroachment. 47. The only qualication raised during cross examination of PW1 was that the survey had been undertaken by a private surveyor rather than a government surveyor. The Defendants nevertheless denied the encroachment. DW1 maintained that the structures stood on Land Parcel Number Dagoretti/Uthiru/568 and that the two parcels, though adjoining, were distinct. She conrmed that the developments had been put up by her late father. However, that evidence did not controvert the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5838/eng@2026-09-23 5

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Plainti’s surveyor’s nding as to the location of the temporary structure or the extent of the alleged encroachment. 48. The Plainti’s evidence on that question therefore stands unanswered. I nd, on a balance of probabilities, that the temporary structure on Land Parcel Number Dagoretti/Uthiru/568 extends beyond its boundary and encroaches upon the suit property by approximately 12 metres. 49. What, then, is the Plainti entitled to? 50. The answer is clear in respect of the injunction and eviction. The Defendants’ structure is upon the Plainti’s land. They cannot be allowed to continue occupying that portion. A permanent injunction and an order of eviction are therefore appropriate. 51. The trespass having been established, the Plainti is entitled to general damages of for the invasion of her property, notwithstanding the absence of proof of specic loss. Having regard to the extent of the encroachment and the absence of evidence of actual loss, I assess those damages at Kshs. 300,000/-. The Plainti’s claim for loss of user is another matter. That is a claim for a particular consequence of the trespass, and it required evidence from which the loss alleged, and its extent, could be ascertained. No such evidence was adduced. The claim for loss of user therefore fails. See: Trishcon Construction Company v Landmark Holdings Ltd [2016] eKLR. 52. Accordingly, judgment is entered for the Plainti against the Defendants as follows: a. A permanent injunction is hereby issued restraining the 1st and 4th Defendants, their agents and/or servants from interfering with Land Parcel Number Dagoretti/uthiru/580. b. The 1st and 4th Defendants shall be evicted from the portion of Land Parcel No. Dagoretti/uthiru/580 encroached upon by their structures, and the structures standing thereon shall be demolished and removed within 90 days. c. The Plainti is awarded Kshs. 300,000/- as general damages for trespass. d. The claim for for loss of user is dismissed. e. The Plainti shall have the costs of the suit. DATED, SIGNED AND DELIVERED, AT MALINDI THIS 23RD DAY OF SEPTEMBER 2026 …………………….. J. M. ONYANGO JUDGE In the presence of: Mr. Kori for Mr. Githui for the Plainti No appearance for the Defendants Court Assistant: Happy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5838/eng@2026-09-23 6

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