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ELCPartially AllowedNot stated in the judgment as extracted

Githinji v Hared; Hared (Counter Claimer); Githinji (Defendant to the Counterclaim) (Environment & Land Case E222 of 2023) [2025] KEELC 2915 (KLR)

Environment and Land Court
24 March 2025
9,036 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner with a clear title won his trespass case, securing eviction, demolition, an injunction, and KES 1 million in damages.

What this practically means

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Executive summary

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The Plaintiff, an advocate and shareholder of Tradeline Investments Limited, sued the Defendant seeking a declaration of ownership of L.R No. 15400/470 (I.R No. 162475), Plot 298, together with eviction, permanent injunction, demolition of structures, mesne profits, general damages for trespass and special damages. The Defendant counterclaimed, asserting that the suit property was illegally excised from L.R No. 11379/3 belonging to Kiambu Dandora Farmers Company Limited, that he owns Plot 212 (renumbered 214/Nairobi Block 173/214), and seeking declarations, injunction, mesne profits and punitive damages. The Plaintiff testified with a surveyor from the Directorate of Survey and a registered surveyor; the Defendant testified with a director of Kiambu Dandora Farmers Company Ltd. The court framed three issues: entitlement to the suit property, trespass, and reliefs. It held the Plaintiff proved a clear, unbroken root of title tracing through Amboseli Court Ltd to Tradeline Investments Ltd to himself, corroborated by survey evidence, while the Defendant's allegations of fraud were unsupported and his claim traced to a different parcel. The Defendant conceded under cross-examination that his construction stands on Plot 298 with no documents relating to it, establishing trespass actionable per se. The court declared the Plaintiff the lawful owner, ordered eviction and demolition within 120 days, issued a permanent injunction, and awarded general damages of Kes. 1,000,000/= as pleaded. Mesne profits and special damages were refused for want of pleading and proof. The counterclaim was dismissed, the Defendant lacking locus standi to claim on behalf of the company. Costs of the suit and counterclaim were awarded to the Plaintiff.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff has demonstrated/proven his entitlement to the suit property or otherwise
  2. 2.Whether the Defendant has trespassed onto the suit property or otherwise
  3. 3.What reliefs (if any) ought to be granted

Key legal issues

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01

Root of title in competing claims over the same land

Holding

The Plaintiff, holding a certificate of title traced through a documented chain from L.R No. 15400/171 (Amboseli Court Ltd) to Tradeline Investments Ltd to himself, proved his entitlement; the Defendant's claim rested on 'equitable pieces of papers' and unfounded allegations of fraud, and the suit property traced to L.R 15400/171, not L.R 11379/3.

Reasoning

The court examined the documentary chain from Amboseli Court Ltd's sale to Tradeline Investments Ltd and the subsequent registration of Plot 298 as L.R No. 15400/470 in the Plaintiff's name, corroborated by a Principal Land Surveyor from the Directorate of Survey. The Defendant alleged illegality and excision from L.R 11379/3 but produced no evidence of fraud and never impleaded Amboseli Court Ltd. Applying Munyu Maina and Hubert L. Martin, the court held the Plaintiff demonstrated a good and unbroken root of title.

p. 9
02

Whether the Defendant trespassed on the suit property

Holding

Yes. The Defendant admitted under cross-examination that his construction stands on Plot 298 (L.R No. 15400/470) and that he has no documents touching that plot, establishing unauthorised entry and construction as trespass under the Trespass Act, Cap 294.

Reasoning

DW1 conceded the sale agreement and share certificate related to Plot 212, not Plot 298, yet the construction stood on Plot 298. His entry and construction were without the Plaintiff's consent. Relying on the Trespass Act and Church Commissioners v Wayuga, the court held any unauthorised entry, whether present or continuous, is trespass and a continuing one gives rise to a fresh cause of action daily.

p. 12
03

Remedies flowing from proven ownership and trespass

Holding

Declaration of ownership, eviction, demolition, permanent injunction and general damages of Kes. 1,000,000/= (as pleaded) granted; mesne profits refused for failure of pleading and proof; special damages refused as never provided; counterclaim dismissed with costs.

Reasoning

Sections 24 and 25 of the Land Registration Act vest absolute ownership in the registered proprietor, entitling exclusive possession, use and eviction of trespassers (Mohansons; Waas Enterprises). Mesne profits require particularised pleading and strict proof (Karanja Mbogua; Christine Nyanchama Oanda). The counterclaim failed as Plot 212 no longer existed and the Defendant lacked locus standi to sue for the company (Omondi v National Bank; Salmond v Salmond).

p. 15

Legal principles established

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  • Where two parallel claims over the same property arise, each disputant must demonstrate the root of title, tracing the chain of events underpinning the certificate of title; a registered proprietor cannot rely solely on dangling the instrument of title
  • A claim for mesne profits, like special damages, must be particularly pleaded and strictly proved
  • Only a company itself may mount a claim on its behalf; a non-company individual litigating for the company lacks locus standi
  • A permanent injunction cannot issue against the registered owner and proprietor of the designated property
  • Trespass is actionable per se and an established trespasser's continuation constitutes a fresh cause of action day to day

Court orders

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  1. 1.Declaration that the Plaintiff is the lawful and legitimate owner of all that parcel of land known as L.R No. 15400/470 [I.R No. 162475], also known as Plot number 298 Amboseli Court
  2. 2.Defendant ordered to vacate and hand over vacant possession of the suit property within 120 days from the date of judgment
  3. 3.Defendant to undertake the requisite process to remove and/or demolish the offensive construction erected on the suit property within the same 120 days
  4. 4.In default of vacating and handing over vacant possession, the Plaintiff at liberty to evict the Defendant and an eviction order shall issue
  5. 5.Costs of any eviction levied by the Plaintiff to be certified by the Deputy Registrar and recovered from the Defendant
  6. 6.Permanent injunction restraining the Defendant from re-entering upon, remaining on and/or otherwise dealing with the suit property
  7. 7.General damages of Kes. 1,000,000/= awarded to the Plaintiff
  8. 8.Defendant's counterclaim dismissed
  9. 9.Costs of the suit and the counterclaim awarded to the Plaintiff
  10. 10.Any other relief not expressly granted declined

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (environment and land claims), no specific article/provision invoked in the judgment

Relief refused

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Mesne profits at Kshs. 50,000/= per month from November 2022

Claim neither pleaded nor particularised, and no documentary evidence tendered to underpin it; must be specially pleaded and strictly proved

p. 15

Special damages (to be provided)

Suit was heard and concluded before the special damages were provided/particularised

p. 16

General damages of Kes. 5,000,000/= (court's own assessment)

Plaintiff only sought Kes. 1,000,000/=; court awarded the lesser sum sought

p. 15

Defendant's counterclaim reliefs (declarations over L.R No. 11379/3 and Plot 212, injunction, mesne profits, punitive damages)

Defendant failed to establish title to Plot 212 (non-existent), lacked locus standi to claim on behalf of Kiambu Dandora Farmers Company Ltd, and could not obtain injunction against the registered proprietor

p. 16

Costs

Costs of the suit and the counterclaim be and are hereby awarded to the Plaintiff.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the premises, the final orders that commend themselves to the court are as hereunder; i. A declaration be and is hereby issued that the Plaintifi is the lawful and legitimate owner of all that parcel of land known as L.R No. 15400/470 [I.R No. 162475] or better still known as Plot number 298 Amboseli Court.
p. 17Final orders - declaration of ownership
The Defendant be and is hereby ordered to vacate and hand over vacant possession of the suit property within 120 days from the date hereof.
p. 17Final orders - eviction with 120-day timeline
The Plaintifi herein be and is hereby awarded General Damages of Kes. 1, 000, 000/= only.
p. 18Final orders - general damages
The Defendant's counterclaim be and is hereby Dismissed.
p. 18Final orders - dismissal of counterclaim
Costs of the suit and the counterclaim be and are hereby awarded to the Plaintifi.
p. 18Final orders - costs
the Plaintifi herein has tendered and placed before the court plausible, cogent and credible evidence to demonstrate the root of his certiicate of title. Furthermore, it is also important to outline that the Plaintifi has a certiicate of title whereas the Defendant's claim to the suit property is premised on [sic] equitable pieces of papers and not certiicate of title.
p. 9Root of title - evidential burden
even though both DW1 and DW2 contended that the certiicate of title held by and on behalf of the Plaintifi was illegal and unlawful, no evidence was tendered and/or produced to show the foundation of [sic] the fraud alluded to by the Defendant.
p. 9Fraud must be pleaded and proved
the Defendant who is purporting to procure orders on behalf of Kiambu Dondora Company Ltd is devoid of locus standi. In any event same is a busybody.
p. 16Locus standi - claims on behalf of a company

Issues in the judgment

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minor

Judgment contains an internally contradictory statement on the Defendant's contention

minor

Inconsistent reference to source of the survey F/R plan number (described as 383/70 in DW2's evidence but the produced plan is over L.R 15400/470 for Plot 278-Sosian Estate)

minor

PW2's evidence that the certificate of title shows original land as L.R No. 15400/172/289 sits awkwardly with the Plaintiff's own evidence that the original parcel was L.R No. 15400/171

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Githinji v Hared; Hared (Counter Claimer); Githinji (Defendant to the Counterclaim) (Environment & Land Case E222 of 2023) [2025] KEELC 2915 (KLR)", Case Analysis (2025). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2915/eng@2025-03-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.