Irina v Muinde & 4 others (Environment and Land Case 45 of 2017) [2026] KEELC 2493 (KLR)

Section 26 of the Land Registration Act makes a certificate of title conclusive proof of ownership absent fraud. Under section 107 of the Evidence Act, the burden lay on the Defendants to displace the title. They merely asserted occupation of public utility land with permission of the defunct Municipal Council and invited revocation of the title, but adduced no evidence of fraud, having failed to attend court or give evidence. The 5th Defendant gave a bare denial. The title therefore stood.

Relying on Kuria Kiarie & 2 Others v Sammy Magera, the court noted the Court of Appeal's restatement that a party alleging fraud bears a heavier burden than in ordinary civil cases, though not beyond reasonable doubt, and that fraud cannot simply be inferred from the facts. The Defendants adduced no evidence at all, so this burden was never discharged.

Citing Jamal Salim v Yusuf Abdulahi Abdi, the court adopted Clerk & Lindsell's definition of trespass as any unjustifiable intrusion upon land in another's possession, and confirmed that possession, not ownership, is what matters for suing. The Plaintiff's unchallenged testimony established repeated trespasses in July 2010, March 2011, October 2013 and January 2014 with destruction of the fence and caretaker's house.

Following Philip Ayaya Aluchio v Crispinus Ngayo, the measure of damages is the difference in property value immediately before and after the trespass or the cost of restoration, whichever is less. The Plaintiff led no evidence on the property's condition or the nature of the destroyed structures, leaving the court unable to assess restoration costs, so a nominal sum was granted to aid restoration.