Koech v Mutai; Koech (Third party) (Environment and Land Case 85 of 2016) [2026] KEELC 3117 (KLR)

The Plaintiff was the registered owner of the suit parcel. Regardless of the circumstances under which the Defendant claimed to have taken possession, he entered without the Plaintiff's consent, expelled the person in possession, placed structures on the land and grazed stock. These acts fall within the definition of trespass in Halsbury's Laws and Section 3(1) of the Trespass Act, Cap 294.

Fraud must be specifically pleaded and distinctly proved. The land sale agreement (Exhibit P1) shows the Plaintiff purchased the suit parcel from Solomon Kipngeno Bett, the allottee, and that the Third Party merely witnessed that sale. No evidence showed the Third Party sold the land to the Plaintiff. The alleged sale to the Defendant post-dated the Plaintiff's purchase, making the alleged non-disclosure practically impossible. No forensic handwriting examiner's evidence was tendered to authenticate Exhibit D1.

Under Sections 107, 108 and 109 of the Evidence Act the burden of proving payment lay on the Defendant. The Third Party denied receiving the money and no evidence was adduced in support of the allegation. Cases are determined on the pleadings and the burden of proof is on a balance of probabilities; a party with the burden who does not support pleaded facts with evidence must fail.

Trespass being proved, the court found it straightforward to grant the permanent injunction. Trespass is actionable per se, so damages were awarded, calibrated to the short duration (two months) of the trespass, informed by comparable awards. Mesne profits, being special damages, failed for want of specific pleading and proof.