Wanyonyi v Nyongesa & 6 others (Environment and Land Case 2 of 2023) [2025] KEELC 5328 (KLR)

3. At the trial, Henry Mwasame Wanyonyi testified as PW1. He relied on a witness statement dated 23/1/2023 as his evidence-in-chief. His testimony was that he purchased the suit land at a public auction following a default of loan payments by the initial allottees. PW1 said that the sellers of the suit land were the Agricultural Finance Corporation, who executed the transfer documents into his name on 23/12/2011. He blames the defendants for trespassing on the land and infringing on his right to property, as provided under Article 40 of the Constitution. PW1 relied on a copy of his ID Card, certified copies of a certificate of title for L.R No. 8XX4/13 and demand notices dated 10/3/2021 and 18/9/2022 as P. Exhibit Nos. 1, 2, 3, and 4, respectively. 4. Trespass refers to the intrusion into the private property of another, without any justification and the commission of acts of wastage. See Section 3(3) of the Trespass Act. In order to prove trespass, a claimant must prove immediate exclusive occupation of the suit land. A certificate of title issued by the Registrar upon registration under Section 26(1) of the Land Registration Act is to be taken as prima facie proof that the proprietor of the land has an indefeasible title that is not subject to challenge except on account of fraud, misrepresentation or issuance of title through a corrupt scheme. 5. In M'Ikiara M'Mukanya & another -vs- Gilbert Kabere M'Mbijiwe [1983] KECA 121 (KLR), the court held that the respondent had to prove, on a balance of probabilities, that the appellants entered into the plot when it was in his possession and that he had a right to immediate possession. The court said that trespass was a tort of violation of the right to possession. 6. In this suit, the plaintifi has to prove that, he and not the defendants, have the right to immediate and exclusive possession. Trespass is actionable per se. A party need not prove any damage. A claimant has to prove that the defendants intentionally entered his plot with no right of entry. The plaintifi has produced a certificate of title issued to him on 23/12/2011. He has produced letters as P. Exhibit 3(a) and (b). The court is satisfied that the plaintifi has proved his case to the required standards. Prayers No. (a) and (b) are allowed. An eviction order shall issue against the defendants to be enforced by a Court Bailifi in compliance with the law. Costs and expenses of the eviction are to be borne by the defendants. Costs of the suit to the plaintifi. 7. Orders accordingly. JUDGMENT DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 16TH DAY OF JULY 2025. In the presence of: Court Assistant - Dennis Kulowa for Were for the plaintifi present Plaintifi present Defendants absent HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5328/eng@2025-07-16 2

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