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ELCPartially AllowedNot stated in judgment· [2025] KEELC 7105 (KLR)

Kiburu v Gathungu & 5 others (Environment and Land Case E268 of 2022) [2025] KEELC 7105 (KLR)

Environment and Land Court
21 October 2025
COCHRISTINE OCHIENG
3,366 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court cancelled a fraudulently acquired land title, returned the plot to the original allottee, and awarded Kshs. 1 million in trespass damages.

What this practically means

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Executive summary

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The Plaintiff, a member and shareholder of Roysambu Housing Cooperative Society Limited (4th Defendant), sued alleging that land parcel Nairobi/Block 116/404, allotted to him as Plot No. 195, was fraudulently registered in the joint names of the 1st and 2nd Defendants, who sold it to the 3rd Defendant, which erected permanent structures. He sought cancellation of the titles, reversion to him, a permanent injunction, demolition, and damages for trespass or mesne profits. The 1st to 3rd Defendants did not enter appearance despite substituted service. The 4th Defendant admitted the Plaintiff's allotment and blamed the registry; the 5th and 6th Defendants denied fraud. The court framed three issues: ownership, cancellation of the 3rd Defendant's title, and damages for trespass/mesne profits. Relying on Emfil Ltd, Munyu Maina, Wambui v Mwangi and Dina Management, the court held that a proprietor whose root of title is challenged must prove legality of acquisition. The Plaintiff's receipts, allotment records and the Society's 2018 confirmation letter established his root of title; the 1st to 3rd Defendants offered no evidence, and the 3rd Defendant could not be a bona fide purchaser for value without notice. Trespass was established as actionable per se given the continuous construction, and general damages of Kshs. 1,000,000/= were awarded, but mesne profits were refused for lack of proof. The 4th Defendant was exonerated. The court cancelled the 3rd Defendant's certificate of lease, ordered reversion to the Plaintiff, issued a permanent injunction against the 1st to 3rd Defendants, ordered demolition after 90 days, and awarded costs against the 1st, 2nd and 3rd Defendants only.

Key legal issues

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01

Ownership of the suit land and validity of the 3rd Defendant's title

Holding

The Plaintiff proved the root of his title as allottee of Plot No. 195 (LR Nairobi Block 116/404); the title held by the 3rd Defendant was fraudulently acquired and is cancelled

Reasoning

The 4th Defendant confirmed the Plaintiff's membership and allotment; receipts showed the Plaintiff paid for the land. The 1st and 2nd Defendants, who were not members, acquired title in 2006 and quickly charged it; transfer to the 3rd Defendant occurred despite a pending demand letter. The 1st to 3rd Defendants never defended the suit or proved the root of their title, so the title was fettered and the 3rd Defendant could not be a bona fide purchaser for value without notice.

p. 5
02

Damages for trespass/mesne profits

Holding

Trespass by the 3rd Defendant established; general damages of Kshs. 1,000,000/= awarded; mesne profits refused for lack of proof

Reasoning

Continuous erection of a permanent multi-storeyed structure amounted to continuous trespass, actionable per se. However mesne profits are special damages requiring pleading and proof, and no evidence of occupation profits was tendered.

p. 6

Legal principles established

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  • Allegations of fraud must be strictly pleaded and proved to a higher standard than balance of probabilities
  • A registered proprietor whose root of title is challenged must go beyond the title instrument and prove legality of acquisition

Court orders

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  1. 1.Certificate of lease for Nairobi/Block 116/404 issued to the 1st and 2nd Defendants and transferred to the 3rd Defendant be cancelled, annulled or revoked and transferred to the Plaintiff absolutely
  2. 2.Permanent injunction issued against the 1st, 2nd and 3rd Defendants from trespassing, building, alienating, selling, transferring or dealing with Nairobi/Block 116/404
  3. 3.Order of demolition of all structures erected on Nairobi/Block 116/404 by the 3rd Defendant, after ninety (90) days, at his own costs, under supervision of the area OCS or the in-charge provincial administrator
  4. 4.Damages for trespass of Kshs. 1,000,000/= to be borne by the 1st, 2nd and 3rd Defendants
  5. 5.Costs of the suit to be borne by the 1st, 2nd and 3rd Defendants
  6. 6.Interest on damages and costs at court rates until payment in full
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land title and trespass disputes

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, "Kiburu v Gathungu & 5 others (Environment and Land Case E268 of 2022) [2025] KEELC 7105 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7105/eng@2025-10-21

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