Gacengeci v Kyalo & 11 others (Environment and Land Case E481 of 2024) [2026] KEELC 313 (KLR) (29 January 2026) (Judgment)

Gacengeci v Kyalo & 11 others (Environment and Land Case E481 of 2024) [2026] KEELC 313 (KLR) (29 January 2026) (Judgment) Neutral citation: [2026] KEELC 313 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E481 of 2024 MN Kullow, J January 29, 2026 Between Joshua Gitau Gacengeci Plaintiff and Sammy Kyalo 1st Defendant Peter Mwangi 2nd Defendant Paul Kiododi 3rd Defendant Leonard Kiarie 4th Defendant Joseph Njuguna 5th Defendant Joseph Kuria 6th Defendant Javan Bukauli 7th Defendant Isaac Ngare 8th Defendant Henry Kamau 9th Defendant Elijah Kinuthia 10th Defendant David Mbithi 11th Defendant Stephen Kimei Ndambuki 12th Defendant Judgment Background 1.This matter is in relation to property known as L.R. No. 15457 2.The plaintiff avers that he is the registered owner of the suit property and produced a certificate of title to establish his ownership claims. 3.That the defendants have been unlawfully occupying the suit property and he has on several occasions served them with eviction notices as per the law but the defendants have continued occupying the said property necessitating the filing of this suit via the plaint dated 22nd November 2024 where he sought for the following ordersa.A declaration that the Plaintiff is the right legal owner of the suit property L.R. No. 15457.b.A permanent injunction restraining the Defendants from carrying on further construction, wasting, alienating, selling, leasing, charging or in any way interfering with the possession and quiet possession of the suit property by the Plaintiff.c.An order of demolition of the illegal structures erected on the suit property L.R. No. 15457d.An order of eviction of the Defendants.e.General Damages and mesne profits.f.Costs of the suitg.Interest of the Suit.h.Any other relief deemed fit to be granted by this honorable court. 4.The defendants were duly served with summons to enter appearance but failed to enter appearance or participate in the hearing despite service of the hearing notice evidenced by the filing of affidavit of service of one Harrison Nzioka. 5.The Matter proceeded for hearing on the 3rd July 2025 where the plaintiff gave his evidence relied on his sworn witness statement dated 14/11/2024 and list of documents. He reiterated the fact that he is the bona fide owner of the suit property and that the defendants had illegally trespassed on the property and put up structures and failed to vacate despite being served with eviction noticesSubmissions by the plaintiffHe submitted that he was the bona fide owner by the existence of the certificate of title produced as evidence which the court ought to treat as prima facie evidence.That the actions of the defendants amounted to trespass and ought to be evicted relying on the case of Igainya Co Ltd Vs Mukuse (Environment & Land Case E02 of 2023 )(2024)KEELCV 4586 (KLR)That by virtue of being the bona fide owner he was entitled to the reliefs as prayed for in the plaint being permanent injunction orders, eviction orders, general damages and costs. Analysis and Determination 6.Having looked at the filed pleadings filed by the Plaintiff herein, the written submissions, the authorities cited, the relevant provisions of [the Constitution](/akn/ke/act/2010/constitution) of Kenya, 2010 and the statures , the following three issues come up for this court’s determinationi.Whether the suit instituted by the Plaintiff against the Defendants has any merit whatsoever?ii.Whether the Plaintiff is entitled to the orders sought?iii.Who bears the costs of suit? Whether the suit instituted by the Plaintiff against the Defendants has any merit whatsoever? 7.The court will endeavour to assess whether the Plaintiff has been able to establish its case based on all the required legal standards. It is instructive to note that although the suit was undefended, the Plaintiff had a duty to formally prove his case on a balance of probabilities as it is required by law. Particularly, on this front, the Court is guided by the doctrine of “the Burden of Proof" which is founded under the provision of Sections 107, 108 and 109 of the [Evidence Act](/akn/ke/act/1963/46), Cap. 80 of the Laws of Kenya whereby it the Plaintiff to prove its case. They provide as follows: -“Section (107); Burden of proof.1.Whoever desires any court to give Judgement as to any legal right or liability dependent on existence of facts which he asserts must prove those facts exists.2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.Section (108); Incidence of burden.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.Section (109); proof of particular fact.The burden of proof as to any particular fact lies in the person who wishes the court to believe in its existence. Unless it is provided by any law that the proof of fact shall lie on any particular person.” 8.I also seek to rely on the case of “Kirugi and Another – Versus - Kabiya & 3 others (1987) KLR 347” the Court of Appeal held that: -“The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a plaintiff of the duty to prove the case to the required standard.” 9.Undoubtedly, the ownership of the suit property has not been an issue before the Court. Indeed, the Plaintiff has produced before court a copy of the title deed to the suit property herein demonstrating that he is and absolute registered proprietor of the suit property with indefeasible right, interest and title vested in law. These are anchored under the provision of Sections 24, 25 and 26 of the [Land Registration Act](/akn/ke/act/2012/3), No. 3 of 2012. The provision of Section 24(a) of the [Land Registration Act](/akn/ke/act/2012/3), No. 3 of 2012 provides for the interest conferred by registration. It provides: -“Subject to this act the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all the rights and privileges belonging or apparent thereto.” 10.The provision of Section 26 (1) of the [Land Registration Act](/akn/ke/act/2012/3), No. 3 provides as follows:“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer shall be taken by all the courts as prima facie evidence that the person named as the proprietor of the land is absolute and indefeasible owner and the title of that proprietor shall not be subject to challenge excepta.On the ground of fraud or misrepresentation to which the person is proved to be a party or;b.Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.“Section 26 (2) provides that: -“certified copy of only registered instrument signed by the registrar, shall be received in evidence in the same manner as the original” 11.There is no doubt that the Plaintiff is the registered proprietor of the suit property as is evidenced by the title deed. The Plaintiff’s title to the suit property has not been challenged in any way by the DefendantS on any of the grounds enumerated in Section 26 of the [Land Registration Act](/akn/ke/act/2012/3). 12.The plaintiff has also produced evidence of construction on the suit property in the form of residential houses which indicates that the defendants have been in possession of the suit property illegally and benefiting from the same at the detriment of the plaintiff. Whether the Plaintiff is entitled to the relief sought 13.From the filed pleadings, the Plaintiff has also sought for mesne profits and damages for trespass from the Defendants. The provision of Section 2 of the [Civil Procedure Act](/akn/ke/act/1924/3) Cap. 21 Laws of Kenya defines Mesne Profits as follows:-Mesne Profits”, in relation to property, means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession; 14.Mesne profits is defined as the profit of an estate received by a tenant in wrongful possession between the dates. It must be pleaded and proved.In the case of “Attorney General – Versus - Halal Meat Products Limited [2016] eKLR” considered when mesne profits could be awarded. The court stated as follows:-It follows therefore that where a person is wrongfully deprived of his property he/she is entitled to damages known as mesne profits for loss suffered as a result of the wrongful period of occupation of his/her property by another. See McGregor on Damages, 18th Ed. para 34-42.” 15.On the issue of whether there was trespass by the Defendants in the Plaint dated 14th November 2024 and if an Order of Permanent Injunction should Issue, this Honourable Court has held that the title by the Plaintiff has not been challenged. Further, the Plaintiff has proved that the Defendants trespassed into the Plaintiff’s land, the next issue is whether as a result of the same; the Defendants should be permanently restrained. 16.To respond to this, the Principles on Injunction were established in the celebrated case of “Giella – Versus - Cassman Brown & Co. Limited (1973) EA 358”. I reiterate that the Plaintiff having produced a title document, I hold that the Plaintiff has indeed established a prima facie case and proved its case to the required threshold to warrant the grant of permanent injunctive orders sought. Consequently, I will proceed to find that the Defendants either by themselves, agents, servants and /or anyone claiming under the Defendants should be permanently restrained from constructing, wasting, alienating, selling, leasing, charging or in any way interfering with the possession and quiet possession of the suit property LR NO 15457 17.On the issue of whether the Plaintiff is entitled to General Damages as sought. From the foregoing, it is clear that the Plaintiff is the absolute, rightful and indefeasible owner of the suit property herein, having held that the Defendants are guilty of encroaching and trespassing onto the Plaintiff’s land. The said trespass denied the Plaintiff use, occupation, possession and enjoyment of said land. The Defendants on the other side have been using and enjoying the use of the unlawful actions. It is this loss of use and all the incidental rights that have been infringed by the Defendants that the Plaintiff now seeks compensation for. 18.Where a party claims for both mesne profits and damages for trespass, the Court can only grant one this was captured in the case of “Maina Kabuchwa – Versus - Gachuma Gacheru (2018) eKLR” where the Court held that: -‘’Where a party claims for both mesne profits and damages for trespass, the Court can only grant one.’’In this instant as the Court has already granted the request for general damages for trespass. 19.In the instant case, the Plaintiff having successfully managed to establish its case. Thus, it entitled to the costs of the suit. Conclusion 20.The upshot of the foregoing, the Court proceeds to grant the following orders:-a.That Judgment be and is hereby entered in favour of the Plaintiff against the Defendants as prayed in the filed Plaint dated 14th November 2024b.That A declaration that the Plaintiff is the right legal owner of the suit property L.R. No. 15457.c.A permanent injunction restraining the Defendants from carrying on further construction, wasting, alienating, selling, leasing, charging or in any way interfering with the possession and quiet possession of the suit property by the Plaintiff.d.An order of eviction of the Defendants within 90 days of this judgment.e.General Damagesf.Costs and interest of the suit It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 29 TH DAY OF JANUARY 2026.****MOHAMMED N. KULLOW****JUDGE** Judgment delivered in the presence of: -Mr. Ochola for the PlaintiffNo appearance for DefendantsPhilomena W. Court Assistant