Okumu v County Government of Kisumu & another (Environment and Land Case E019 of 2025) [2026] KEELC 4029 (KLR)
The bottom line
#The Environment and Land Court in Kisumu ordered the County Government of Kisumu off private land, awarded KShs. 500,000, and cancelled an EACC restriction placed without notice.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit properties
The Plaintiff is the registered, absolute, and lawful owner of Kisumu Municipality/Block 5/559 and 5/561, protected under Article 40
The Plaintiff produced lease certificates, beacon certificates and certified register entries confirming registration as proprietor since 21 September 2001. Under Section 26(1) of the Land Registration Act a certificate of title is prima facie evidence of absolute ownership. The 1st Defendant denied ownership in its defence but neither attended court nor led evidence, and the 2nd Defendant filed no defence, so the root of title was unimpeached.
Trespass by the 1st Defendant
The 1st Defendant is a trespasser liable for encroachment and continuous trespass
The unchallenged evidence showed that the 1st Defendant entered without consent, built a concrete wall excising approximately 0.025 hectares of Block 5/559, and settled market traders who pay fees to it. A Government Surveyor's Beacon Certificate dated 3rd November 2022 confirmed the boundaries and encroachment. The 1st Defendant produced no lease, licence, or compulsory acquisition order to justify its actions.
Validity of the 2nd Defendant's restriction
The restriction was registered unprocedurally, made by mistake of law, and must be cancelled
Section 76(1) of the Land Registration Act permits the Registrar to place a restriction for sufficient cause, but Section 77(1) requires written notice to the affected proprietor. No notice was issued or served. The 2nd Defendant filed no defence and did not appear to demonstrate any lawful basis for the restriction. Under Section 80(1) the court may order rectification of the register where a registration was made by fraud or mistake.
Damages for trespass and mesne profits
Nominal general damages of KShs. 500,000 awarded; mesne profits disallowed for lack of proof
Trespass is actionable per se and specific damage need not be proved, but the Plaintiff proposed no figure, so the court awarded nominal damages. Mesne profits, being special damages in nature, must be specifically pleaded and strictly proved under Section 107 of the Evidence Act; no evidence of rental value or actual profits was led. Further, a court cannot award both general damages for trespass and mesne profits in the same suit.
Legal principles established
#- A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, or illegality
- Where trespass is proved, a party need not prove specific damage or loss to be awarded general damages
- A claimant cannot recover both general damages for trespass and mesne profits in the same suit; only one may be granted
- A restriction on the register must be preceded by written notice to the affected proprietor under Section 77(1) of the Land Registration Act; a restriction registered without notice is unprocedural and must be cancelled
- The court may order rectification of the register where a registration was obtained, made, or omitted by fraud or mistake
- Where a registered proprietor's root of title is challenged, the proprietor must prove the legality of the acquisition beyond merely exhibiting the title instrument
Court orders
#- 1.Declaration that the Plaintiff is the lawful and registered proprietor of Kisumu Municipality/Block 5/559 and Kisumu Municipality/Block 5/561, and that the 1st Defendant's entry, excision of 0.025 hectares, and settlement of market traders constitute unlawful trespass and encroachment
- 2.Eviction order directing the 1st Defendant to demolish and remove, at its own cost, the concrete fence wall and all structures on the suit properties and relocate all market traders within sixty (60) days of the judgment
- 3.Liberty to the Plaintiff to carry out the eviction or demolition after issuing appropriate notices to third parties in occupation, in default of compliance
- 4.Permanent injunction restraining the 1st Defendant, its employees, agents, and/or servants from entering upon, taking possession of, trespassing upon, or interfering with the Plaintiff's quiet possession of the suit properties
- 5.General damages for trespass of KShs. 500,000/= against the 1st Defendant with interest at court rates from the date of judgment until full payment
- 6.The Plaintiff's claim for mesne profits disallowed and dismissed in its entirety for lack of proof
- 7.Order directing the Land Registrar, Kisumu, to remove the restriction registered against the titles of the suit properties at the instance of the 2nd Defendant
- 8.Permanent injunction restraining the 2nd Defendant from placing any further restrictions or otherwise interfering with the Plaintiff's registered proprietorship
- 9.The 1st Defendant to bear the costs of the suit with interest at court rates from the date of judgment until payment in full
- Jurisdiction invoked
- First-instance claim under the Land Registration Act, 2012 and Article 40 of the Constitution of Kenya, 2010 (Environment and Land Court jurisdiction over land disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okumu v County Government of Kisumu & another (Environment and Land Case E019 of 2025) [2026] KEELC 4029 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4029/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.