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ELCAllowedNot stated in the judgment as provided (Plaint dated 1st July, 2021, filed 5th July, 2021)· [2025] KEELC 5549 (KLR)

Salesians of Don Bosco Registered Trustees v David & 4 others (Civil Case 127 of 2021) [2025] KEELC 5549 (KLR)

Environment and Land Court
25 July 2025
6,457 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a registered title holder can evict squatters, demolish their structures, and win damages even without proving actual loss.

What this practically means

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Executive summary

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This was an Environment and Land Court suit at Mombasa arising from a Plaint dated 1st July, 2021 by The Salesians of Don Bosco Registered Trustees against five Defendants over Plot Number L.R. 1866/I Mainland North. The Defendants, despite substituted service by advertisement in The Standard newspaper of 22nd October, 2021, never entered appearance or filed a defence, and the suit proceeded by formal proof. The Plaintiff's evidence, given through Father Erustus Nduati Chege (PW-1) and the Land Registrar, Mombasa, Sheila Nasambu Soita (PW-2), established that the property was transferred to the Plaintiff as a gift by Antony Praxedes D'Costa, with registration on 24th August, 2011, and that the Defendants encroached from around 2012, erecting structures and conducting business. Framing four issues, the court held that the Plaintiff was the legal and absolute registered owner whose indefeasible title under Articles 40 of the Constitution and Sections 24, 25 and 26 of the Land Registration Act was unchallenged; that the Defendants' unauthorised entry, occupation and erection of structures constituted trespass actionable per se; and that the Plaintiff was entitled to the reliefs sought. The court found no evidence quantifying actual loss but, relying on established authorities on damages for trespass, awarded Kshs. 3,500,000/- as general damages, exceeding the Kshs. 3,000,000/- proposed. Judgment was entered in the Plaintiff's favour in its entirety: a declaration of trespass, a permanent injunction, eviction and demolition of illegal structures under Section 152E of the Land Act, damages, and costs to the Plaintiff. Judgment was delivered virtually at Mombasa on 25th July, 2025 by L.L. Naikuni, J.

Key legal issues

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01

Whether the Plaintiff proved ownership of the suit property

Holding

Yes. The Plaintiff produced a Provisional Certificate of Title, transfer documents and an official search, corroborated by the Land Registrar; the Defendants never filed a defence, so title was unchallenged

Reasoning

The court applied Articles 40, 61-64 of the Constitution and Sections 24, 25 and 26 of the Land Registration Act. Registration confers absolute and indefeasible title challengeable only on proof of fraud, misrepresentation or illegality, none of which was demonstrated. The Land Registrar's testimony confirmed registration on 24th August 2011 pursuant to a gift transfer from Antony Praxedes D'Costa.

p. 7
02

Whether the Defendants trespassed without the Plaintiff's authority

Holding

Yes. Their entry, occupation and erection of structures without consent amounted to trespass, and their failure to enter appearance left the plaintiff's evidence uncontroverted

Reasoning

Relying on Sections 107-109 and 112 of the Evidence Act, the plaintiff bore the burden on a balance of probability and discharged it. Trespass was defined per the Trespass Act, Black's Law Dictionary and Clerk & Lindsell as unjustifiable entry upon land in another's possession. The uncontroverted evidence established unlawful entry in or around August 2012.

p. 10
03

Whether the Plaintiff was entitled to the orders sought, including general damages

Holding

Yes. The court granted the declaration, permanent injunction, eviction and demolition, and awarded Kshs. 3,500,000/- as general damages for trespass

Reasoning

Applying Giella v Cassman Brown principles, the plaintiff established a prima facie case to warrant permanent injunctive relief. On damages, although there was no evidence quantifying actual loss, trespass being actionable per se, the court relied on Philip Ayaya Aluchio, Duncan Nderitu Ndegwa and Halsbury's Laws to award a global sum of Kshs. 3,500,000/-, exceeding the Kshs. 3,000,000/- proposed by the plaintiff.

p. 12

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership, and a certificate of title is prima facie evidence of absolute and indefeasible ownership challengeable only on fraud, misrepresentation or illegality
  • Trespass is any unjustifiable intrusion upon land in the possession of another, actionable per se once proved
  • Costs follow the event and the successful party is ordinarily entitled to costs

Court orders

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  1. 1.Judgment entered in favour of the Plaintiff as per the Plaint dated 1st July, 2021 and filed on 5th July, 2021 in its entirety with costs
  2. 2.A declaration that the Defendants' actions of unauthorised entry into, continued occupation of, and constructing permanent structures on Plot Number L.R. 1866/I Mainland North amounts to trespass, therefore illegal, null and void
  3. 3.An order of permanent injunction restraining the Defendants from remaining on or continuing in occupation of Plot Number L.R. 1866/I Mainland North
  4. 4.An order of eviction and/or ejectment of the Defendants from the suit property and demolition of any or all illegal structures on the suit property pursuant to Section 152E of the Land Act, No. 6 of 2012
  5. 5.General damages of Kshs. 3,500,000/- awarded for trespass to and/or illegal conversion of the suit property
  6. 6.Costs of litigation of the Plaint awarded to the Plaintiff
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land situated in Mombasa County (Plaint dated 1st July, 2021); Constitution of Kenya, 2010 Article 40; Land Registration Act No. 3 of 2012

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, "Salesians of Don Bosco Registered Trustees v David & 4 others (Civil Case 127 of 2021) [2025] KEELC 5549 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (Plaint dated 1st July, 2021, filed 5th July, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5549/eng@2025-07-25

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