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ELCPartially AllowedNot stated in judgment

Munyasia v Makhanu & 3 others (Environment & Land Case E007 of 2022) [2025] KEELC 3186 (KLR)

Environment and Land Court
3 April 2025
4,177 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, registered proprietor of land parcel E.Bukusu/S.Kanduyi/9471 measuring 1.64ha, sued the 1st defendant and state officers (including the Bungoma County Land Registrar and Surveyor) alleging that the 1st defendant unlawfully excised about 0.38ha of her land to create parcel 13025, later sub-divided into parcels 13671 and 13672, tampered with her beacons and placed a caution over her land. She sought resurvey and reinstatement of the acreage and beacons, a permanent injunction, general damages for trespass, removal of the caution and costs. The 1st defendant challenged jurisdiction under Section 18 of the Land Registration Act, alleging a pending appeal and fraud in the plaintiff's title. The court held it had jurisdiction since the claim was founded on trespass and sought injunction and damages, not a pure boundary determination. The plaintiff's certificate of title was prima facie evidence of ownership; the fraud allegation was neither pleaded nor proved. A surveyor's evidence, mutation forms and green card established that a 0.38ha portion was carved out after the plaintiff's transferor died, benefiting the 1st defendant, constituting trespass actionable per se. The court ordered a resurvey and reinstatement of the excised 0.36ha and beacons, issued a permanent injunction against the defendants, and awarded Kshs. 100,000/= general damages against the 1st defendant. The prayer to remove the caution failed for want of empirical evidence. Each party was ordered to bear its own costs. Judgment delivered at Bungoma on 3 April 2025.

Questions the Court framed

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

  1. 1.Whether this court has jurisdiction
  2. 2.Whether the plaintiff has made a case for the orders sought
  3. 3.Who bears the costs

Key legal issues

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01

Jurisdiction in light of Section 18 of the Land Registration Act

Holding

The court has jurisdiction because the plaintiff sought reinstatement of tampered beacons, injunction and damages for trespass, not a pure boundary determination.

Reasoning

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.

p. 4
02

Whether the plaintiff proved her title and the encroachment

Holding

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.

Reasoning

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.

p. 6
03

Permanent injunction

Holding

Granted - the plaintiff established a prima facie case and proved her case to the required standard.

Reasoning

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.

p. 7
04

General damages for trespass

Holding

Awarded at Kshs. 100,000/= against the 1st defendant, being actionable per se.

Reasoning

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.

p. 7
05

Removal of caution

Holding

Refused for lack of empirical evidence of the caution's existence.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 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. 3.General damages for trespass of Kshs. 100,000/= to be paid by the 1st defendant to the plaintiff
  4. 4.Each party to bear their own costs of the suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 13(2) of the Environment and Land Court Act, 2011

Relief refused

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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

p. 8

Costs

Each party to bear their own costs of this suit.

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.

It is therefore my considered view that this court is clothed with jurisdiction to determine the issues in question in this case.
p. 5Jurisdiction
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
p. 8Final orders - resurvey and reinstatement
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.
p. 8Final orders - permanent injunction
General damages for trespass of Kshs. 100,000/= to be paid by the 1st Defendant to the plaintifi
p. 8Final orders - damages
Each party to bear their own costs of this suit.
p. 8Final orders - costs
fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.
p. 6Fraud pleading and proof

Issues in the judgment

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minor

The judgment refers to the 1st defendant as 'Appellant' at one point despite being a first-instance suit

minor

The judgment elsewhere refers to the plaintiff as 'Respondent' and to the 1st defendant as '1st Respondent' inconsistently with the plaint/defence roles

minor

The award of general damages contains a gender inconsistency, referring to the plaintiff as 'him'

minor

The damages discussion refers to 'the plaintifi and its members' though the plaintiff is an individual

minor

The plaintiff's pleading states the excised acreage as approximately 0.38ha while prayer (a) seeks reinstatement of 0.36ha

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, "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.