Munyasia v Makhanu & 3 others (Environment & Land Case E007 of 2022) [2025] KEELC 3186 (KLR)
The bottom line
#The Bungoma land court restored a landowner's excised portion, ordered beacons reinstated, but refused to remove a caution due to lack of evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction
- 2.Whether the plaintiff has made a case for the orders sought
- 3.Who bears the costs
Key legal issues
#Jurisdiction in light of Section 18 of the Land Registration Act
The court has jurisdiction because the plaintiff sought reinstatement of tampered beacons, injunction and damages for trespass, not a pure boundary determination.
Section 18(2) of the Land Registration Act bars the court from entertaining pure boundary disputes until the Land Registrar determines them. However, the plaintiff's cause of action was founded on trespass, and she sought permanent injunction, damages and reinstatement of tampered beacons. Existing boundaries were established on the mutation form and surveyor's report. Such matters fall within section 13(2) of the Environment and Land Court Act.
Whether the plaintiff proved her title and the encroachment
The certificate of title was prima facie evidence of ownership; unpleaded and unproven fraud allegations could not displace it, and evidence showed 0.38ha was excised to create parcel 13025.
Under Section 26 of the Land Registration Act a title may be challenged only for fraud/misrepresentation or illegality. The 1st defendant did not plead or prove fraud. PW2's survey found the ground acreage at 1.26ha against the registered 1.64ha; the mutation forms and green card showed parcel 13025 was registered after the plaintiff's transferor died, benefiting the 1st defendant. Discrepancies in parcel shapes confirmed the excision.
Permanent injunction
Granted - the plaintiff established a prima facie case and proved her case to the required standard.
Applying the Giella v Cassman Brown principles and evaluating the Land Registrar's and Surveyor's reports plus exhibits, the court found the plaintiff the lawful owner and that boundaries were interfered with, warranting a perpetual restraint against the defendants.
General damages for trespass
Awarded at Kshs. 100,000/= against the 1st defendant, being actionable per se.
Trespass was proved; although the exact loss could not be quantified, trespass is actionable per se, so general damages were awarded following Duncan Nderitu Ndegwa v KP&LC Limited.
Removal of caution
Refused for lack of empirical evidence of the caution's existence.
Official searches dated after the alleged registration of the caution did not disclose it; the court cannot act on the parties' word alone. The plaintiff was referred to Sections 73 and 78 of the Land Registration Act.
Legal principles established
#- Fraud must be specifically pleaded and distinctly proved; it cannot be inferred from facts.
- Trespass to land is actionable per se and no proof of damage is necessary for an award of general damages.
- The ELC retains jurisdiction over suits whose prayers include injunction and damages for trespass, notwithstanding that boundary issues are raised, where the dispute is not purely one of boundary.
Court orders
#- 1.The Bungoma County Land Registrar and County Surveyor to re-survey land parcels E. Bukusu/S.Kanduyi/9471, 13025, 13671 and 13672 and reinstate the curved acreage of 0.36 ha to reflect the acreage of 1.64ha and reinstate the beacons between the parcels in dispute
- 2.Permanent injunction restraining the defendants from encroachment on, demarcating, tilling, wasting, occupying, alienating or claiming ownership of any portion of land parcel no. E.Bukusu/S.Kanduyi/9471
- 3.General damages for trespass of Kshs. 100,000/= to be paid by the 1st defendant to the plaintiff
- 4.Each party to bear their own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 13(2) of the Environment and Land Court Act, 2011
Relief refused
#Removal or vacation of the caution registered on 05/05/2000 by the 1st defendant
No empirical evidence of the existence of the caution; official searches produced did not show any caution
Costs
Each party to bear their own costs of this suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore my considered view that this court is clothed with jurisdiction to determine the issues in question in this case.
The Bungoma County Land Registrar and Bungoma County Surveyor do re-survey land parcel no. E. Bukusu/S.Kanduyi/9471, 13025,13671 and 13672 and reinstate the curved acreage of 0.36 ha
A Permanent injunction is hereby issued restraining the defendants whether by themselves, their agents and/or third parties or anybody acting or claiming through them from encroachment on or demarcating, Tilling, wasting, occupying, alienating, an/or claiming ownership of any portion and/or whole of land parcel no. E.Bukusu/S.Kanduyi/9471.
General damages for trespass of Kshs. 100,000/= to be paid by the 1st Defendant to the plaintifi
Each party to bear their own costs of this suit.
fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.
Issues in the judgment
#The judgment refers to the 1st defendant as 'Appellant' at one point despite being a first-instance suit
The judgment elsewhere refers to the plaintiff as 'Respondent' and to the 1st defendant as '1st Respondent' inconsistently with the plaint/defence roles
The award of general damages contains a gender inconsistency, referring to the plaintiff as 'him'
The damages discussion refers to 'the plaintifi and its members' though the plaintiff is an individual
The plaintiff's pleading states the excised acreage as approximately 0.38ha while prayer (a) seeks reinstatement of 0.36ha
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyasia v Makhanu & 3 others (Environment & Land Case E007 of 2022) [2025] KEELC 3186 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3186/eng@2025-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.