Sawani & 2 others v Targok & 2 others (Civil Suit 196 of 2016) [2026] KEMC 222 (KLR)

Mbaruk Block 3/807. They aver that the Defendants are the owners and/or occupiers of the adjacent parcel Miti Mingi/Mbaruk Block 3/806. 4. It is their contention that from the year 2012 to date, the Defendants have unlawfully encroached upon their parcels by removing boundary beacons, destroying fences, and annexing portions of their land. The Plaintifis further aver that despite intervention by the local administration and the District Land Registrar, including multiple surveys conducted by government surveyors, the Defendants persistently destroyed the reinstated boundary markers. 5. As a result, the Plaintifis claim to have sufiered loss and damage, including costs of legal fees, survey fees, destruction of their fence, and interruption of development activities on the land. 6. They seek judicial intervention to compel the fixing and enforcement of the boundary and to restrain the Defendants from further interference. The Defendants’ Case 7. The Defendants did not enter appearance nor file any statement of defence despite service of summons. Consequently, the Plaintifis' evidence remains uncontroverted and unchallenged. The Plaintifis’ Submissions 8. The Plaintifis submit that they are bona fide owners of their respective parcels of land and that the Defendants have unlawfully encroached upon the same. They contend that the matter has previously been handled administratively by the Land Registrar, who caused surveys to be conducted and the boundary to be fixed. 9. They further submit that the Defendants failed to challenge the Land Registrar’s determination and instead resorted to acts of defiance by destroying boundary beacons. 10. It is submitted that the continued disobedience by the Defendants justifies recourse to this Court for enforcement. The Plaintifis urge that this Court has jurisdiction to determine the matter and grant the reliefs sought, including mesne profits. Issues For Determination 1. Whether this Court has jurisdiction to hear and determine the dispute. 2. Whether the Defendants have unlawfully trespassed upon and encroached onto the Plaintifis’ land. 3. Whether the Plaintifis are entitled to the orders sought in the Further Amended Plaint. Analysis 1. Whether this Court has jurisdiction Jurisdiction is foundational and fiows from statute. Under Section 9(a) of the Magistrates’ Courts Act, 2015, magistrates’ courts have jurisdiction to hear and determine disputes relating to land and environment where the value falls within the pecuniary limits prescribed. Further, Section 18 and Section 19 of the Land Registration Act, 2012 vest the Land Registrar with the mandate to determine and fix boundaries. However, Section 86 of the same Act provides for recourse to the Court where a party is aggrieved by the Registrar’s decision or where enforcement is necessary. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/222/eng@2026-06-09 2

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In the present case, the Land Registrar had already intervened by causing surveys to be conducted and the boundary fixed. The dispute has therefore moved beyond mere ascertainment of boundaries to enforcement, following the Defendants’ persistent acts of defiance. The Court of Appeal in Azzuri Limited v Pink Properties Limited [2018] eKLR held that where a boundary has been ascertained by the Land Registrar and a party fails to comply, the Court has jurisdiction to enforce the determination. Similarly, in Wamutu v Kiarie [1982] KLR 480, it was held that courts retain jurisdiction to adjudicate disputes where administrative mechanisms have been exhausted or frustrated. Accordingly, this Court is properly seized of jurisdiction. 2. Whether there was trespass and encroachment Trespass to land is any unjustifiable intrusion upon land in the possession of another. The Plaintifis have adduced evidence that the Defendants uprooted boundary beacons, destroyed fences, and annexed portions of their land. In Park Towers Ltd v John Mithamo Njika & 7 Others [2014] eKLR, the Court held that once trespass is proved, liability follows automatically regardless of whether damage is proved. The Plaintifis’ evidence, including reference to survey reports and administrative interventions, has not been rebutted. The Defendants’ failure to participate in the proceedings leaves the Plaintifis’ claims uncontroverted. I therefore find that the Defendants unlawfully encroached upon the Plaintifis’ land. 3. Whether the Plaintifis are entitled to the reliefs sought On the prayer for an order compelling the Defendants to allow the fixing of the boundary, Section 19 of the Land Registration Act empowers the Land Registrar to fix boundaries, and this Court may issue orders to facilitate enforcement. Given the Defendants’ past conduct in frustrating the Registrar’s work, such an order is justified. On mesne profits, these are recoverable under Section 2 of the Civil Procedure Act as profits which the person in wrongful possession actually received or might with ordinary diligence have received. The Plaintifis have pleaded but not strictly proved the quantum of mesne profits. As held in Attorney General v Halal Meat Products Ltd [2016] eKLR, mesne profits must be specifically pleaded and strictly proved. In the absence of such proof, the Court cannot award a specific sum under this head. On special damages, the law is settled that they must be specifically pleaded and strictly proved, as held in Hahn v Singh [1985] KLR 716. While the Plaintifis have listed the items, there is no documentary evidence tendered to strictly prove the same. The claim under this head therefore fails. The Plaintifis are however entitled to costs of the suit. Disposition .11 The upshot is that judgment is entered in favour of the Plaintifis against the Defendants jointly and severally in the following terms: 1. An order is hereby issued compelling the Defendants to allow the District Land Registrar, Nakuru, and the District Surveyor to fix and re-establish the boundary between parcel numbers Miti Mingi/Mbaruk Block 3/806 and Miti Mingi/Mbaruk Block 3/807. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/222/eng@2026-06-09 3

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2. The Defendants shall bear the costs of the survey exercise and all incidental expenses thereto. 3. A permanent injunction is hereby issued restraining the Defendants, whether by themselves, their agents, servants, or otherwise, from interfering with the boundary as fixed by the District Land Registrar and Surveyor. 4. The claim for mesne profits is declined for want of proof. 5. The Plaintifis shall have the costs of this suit together with interest. It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED AT NAKURU THIS 9TH DAY OF JUNE 2026 V. O. ADET SENIOR PRINCIPAL MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/222/eng@2026-06-09 4

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