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ELCPartially AllowedELC No. 24 of 2021 (formerly Bungoma ELC No. 310 of 2018)· [2025] KEELC 6064 (KLR)

Jiwa v Mombasa & another (Environment and Land Case 1B of 2022) [2025] KEELC 6064 (KLR)

Environment and Land Court
18 September 2025
2,586 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court confirmed that even without a police report, land trespassers can be ordered off and made to pay damages.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of land parcels Malakisi/Township/375, 413 and 419 since 17th August 2016, sued the Defendants for trespass, alleging that on 25th August 2018 they entered the suit properties without permission, ploughed and cultivated them. He sought a permanent injunction, damages, costs and interest. The Defendants admitted the Plaintiff's proprietorship but denied entry or planting, asserting that the suit was meant to harass the First Defendant's family amid a separate dispute between the Plaintiff and the First Defendant's father (DW3), the Plaintiff's former caretaker. The Plaintiff testified and called two caretakers who witnessed the ploughing and cultivation; the Defendants and DW3 testified in denial. The court framed two issues: whether trespass was established and whether the reliefs sought should issue. Finding the Plaintiff's witnesses credible - notably because the Defendants were local residents, the First Defendant's father resided on and worked the land until 2020, and prior litigation concerning the properties was ongoing at the time of the invasion - the court held that trespass was proved on a balance of probabilities from 25th August 2018 until 2021. It held that failure to produce an OB entry was not fatal to the claim. Relying on the rights of a registered proprietor under Article 40 of the Constitution and Sections 24 and 26 of the Land Registration Act, and on the principle that trespass to land is actionable per se, the court issued a permanent injunction against the Defendants and awarded Kshs 500,000 general damages for trespass (reducing the proposed Kshs 2,000,000), with costs of the suit and interest on both costs and damages. Judgment was delivered by D. O. Ohungo, J, on 18th September 2025.

Key legal issues

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01

Whether trespass on the suit properties was established

Holding

Trespass was established; the Defendants entered and cultivated the suit properties without consent from 25th August 2018 until 2021

Reasoning

The court found the Plaintiff and his witnesses credible: the Defendants were local residents and longstanding friends; the First Defendant could not feign not knowing the Plaintiff given his father's employment and residence on the land and prior litigation between the Plaintiff and his parents filed before the invasion; and DW3's departure date aligned with the duration of trespass alleged. On a balance of probabilities trespass was proved despite absence of an OB entry.

p. 4
02

Whether the Plaintiff, as registered proprietor, was entitled to a permanent injunction and damages

Holding

A permanent injunction issued and general damages of Kshs 500,000 awarded, trespass being actionable per se

Reasoning

Registered proprietorship was uncontested and protected under Article 40 of the Constitution and Sections 24 and 26 of the Land Registration Act. Coupled with the finding of trespass, a permanent injunction was warranted. As trespass is actionable per se, damages were payable without proof of loss; the court awarded reasonable damages of Kshs 500,000 for use of the land from 2018 to 2021.

p. 4

Legal principles established

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  • Trespass to land is actionable per se and proof of damage is not required
  • A registered proprietor's title is prima facie evidence of proprietorship and confers absolute ownership
  • Failure to report a trespass to the police or to produce an OB entry is not fatal to a civil claim in trespass

Court orders

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  1. 1.A permanent injunction restraining the Defendants by themselves, their agents and or servants from entering, ploughing, planting and/or interfering in any manner with land parcel numbers Malakisi/Township/375, Malakisi/Township/413 and Malakisi/Township/419
  2. 2.Kshs 500,000 general damages for trespass
  3. 3.Costs of the suit and interest on both costs and the general damages
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution and the Environment and Land Court Act in a claim of trespass to land

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, "Jiwa v Mombasa & another (Environment and Land Case 1B of 2022) [2025] KEELC 6064 (KLR)", Case Analysis (2025). ELC No. 24 of 2021 (formerly Bungoma ELC No. 310 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6064/eng@2025-09-18

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