Jiwa v Mombasa & another (Environment and Land Case 1B of 2022) [2025] KEELC 6064 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether trespass on the suit properties was established
Trespass was established; the Defendants entered and cultivated the suit properties without consent from 25th August 2018 until 2021
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.
Whether the Plaintiff, as registered proprietor, was entitled to a permanent injunction and damages
A permanent injunction issued and general damages of Kshs 500,000 awarded, trespass being actionable per se
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.
Legal principles established
#- 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
#- 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.Kshs 500,000 general damages for trespass
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.