Kariuki & 3 others v Kariuki & another (Environment & Land Case 723 of 2017) [2022] KEELC 3364 (KLR)

2. The Plaintifis’ case is as follows. They are the registered proprietors of the suit land which comprises of rental house units. The Defendants have trespassed at the said premises and collected rent illegally from 17 of the house units. They have also chased away the Plaintifis’ employees who man the gate to the premises and ofier security to the tenants. They have replaced them with their own goons. Further to the above, the Defendants have threated the Plaintifis with dire consequences if they get near the suit premises. They have also threatened to evict all the tenants who do not pay rent to them. 3. 4. In support of their case, the Plaintifis have filed the following documents; (a) Certificate of lease for the suit land in their names and dated 27/3/2013. (b) A copy of certificate of confirmation of grant in Succession Cause No. 1380 of 2011 at the High Court at Nairobi showing that the Plaintifis inherited the suit land while the Defendants and other inherited Title Numbers 2432 and 2433 Nyandarua/Lesirko. (c) Copy of ruling in the Succession Cause in (b) above dated 29/1/2016 and 1/2/2016 dismissing an application which sought to change the ownership of the suit land from the Plaintifis. (d) Other documents. (e) Witness statement by Joyce Nyokabi Waweru dated 30/9/2019. The Defendants filed a defence on 26/8/2019 in which they accuse the Plaintifis of fraudulently transferring the suit land to themselves without the consent of the rightful owners. They also aver that they erected buildings on the suit land and they and their wives and children depend on the rent from the suit premises. They also go on to deny all the averments in the plaint and claim ownership of the suit premises. 5. In support of their case, the Defendants filed the following evidence; (a) 6. Witness statement by the two Defendants, Jacinta Wairimu Kariuki; Livingstone Kuria Kariuki and Joyce Nyokabi Waweru. At the trial on December 16, 2021, the first Plaintifi and the first Defendant testified. Each of them adopted the evidence that they had filed. The Plaintifis’ counsel filed written submissions on 28th January, 2022 in which she identified three issues namely; 7. (i) Whether the Plaintifis have proved that they acquired proprietary interest over the suit land? (ii) Whether the actions of the Defendants amount to trespass and interference with the ownership of the suit property? (iii) Whether the Plaintifis are entitled to the prayers sought? I have carefully considered all the evidence adduced in this case by both sides including the witness statements, the documents and the oral testimony in Court on 16/12/2021. I have also considered the submissions by the Plaintifis’ counsel and I agree that the issues as identified by her will resolve the dispute. On the first issue, I find that the Plaintifis are the registered owners of the suit land. They have exhibited before this Court a copy of Certificate of Lease dated 27/3/2013 in their names. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3364/eng@2022-05-19 2

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The Defendants on the other hand have nothing to prove that they own the suit land or that they are entitled to any interest over the same. Section 26 of the Land Registration Act (Revised 2020) provides as follows; i. The Certificate of Title issued by the Registrar upon registration … shall be taken by all Courts as prima evidence that the person names as proprietor of the land is the absolute and indefeasible owner…” The Plaintifis being the ones with the title document are the owners because the Defendants have not adduced any evidence to the contrary. The Plaintifis have also proved that they acquired ownership through a lawful process which even after being challenged in Court was confirmed by the High Court and there has been no reversal of the High Court decision by a higher Court. On the second issue, I find that the Defendants action amounts to trespass. The Defendants have no right to enter the suit land without the permission of the Plaintifis and any entry without permission is unlawful. For the above stated reasons, I find that the Plaintifis have proved their case against the Defendants on a balance of probabilities. Consequently, I enter judgment for the Plaintifis against the Defendants as prayed for in the plaint. Order accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 19TH DAY OF MAY, 2022. M.N. GICHERU JUDGE .......................................... https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3364/eng@2022-05-19 3

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