Githinji v Murage

Defendant has not only trespassed onto the land, but has also erected permanent and semi-permanent structures, and engaged in acts of waste to the detriment of the estate of her late husband. The Plainti further asserts that despite numerous demands and eviction notices, the Defendant has refused to vacate the suit land. 5. Consequently, the Plainti prays for judgment against the Defendant for the following reliefs: a. A declaration that the Defendant’s continued occupation of all that parcel of land comprising Title LR Ngong/Ngong/10915 Ole Seg Farm Kiserian Kajiado District is illegal and contravenes the Plainti’s fundamental property rights under Article 40 of the Constitution. b. A declaration that the continued occupation by the Defendant of the Suit Property constitutes an act of trespass. c. A permanent perpetual injunction restraining the Defendant, his agents, and servants from trespassing into, cultivating, cutting trees, grazing, erecting structures, or in any manner interfering with the Plainti’s quiet possession of the Suit Property. d. An order of eviction issuing against the Defendant forthwith. e. General Damages for the Defendant’s acts of waste and trespass. f. Mesne prots at the rate of Kshs. 1,000,000 per year. g. Costs of the suit and interest thereon from the date of ling. h. Any further relief that this Honorable Court may deem just and t to grant. 6. The Defendant opposed the suit by ling a Statement of Defence wherein he denied the Plainti’s claim in its entirety. The Defendant contended that his occupation of the Suit Property was lawful and authorized. The Defendant further denied the allegations of trespass, fraud, and the orchestration of a scheme to deprive the Plainti of the property, putting the Plainti to strict proof regarding the alleged acts of waste and the limitations of his authority over the deceased's estate. 7. In response, the Plainti led a Reply to Defence in which she joined issues with the Defendant. She reiterated the contents of her amended Plaint and vehemently denied the allegations set out in the Defence, particularly those suggesting any form of authorized occupancy or valid claim of right by the Defendant. The Plainti maintained that the Defendant’s defense consisted of mere innuendos and denials without any substantive response to her claims. Consequently, she prayed that the Defence be struck out and judgment be entered in her favor as prayed in her claim. Analysis of Evidence 8. The Plainti, Constance Marie Githinji, testied as PW1 in support of her case. She adopted her witness statement dated 20th January 2022 and her further witness statement dated 24th April 2024 as her evidence-in-chief. Additionally, she produced a List of Documents dated 20th January 2022, which were marked as ‘PE 1 to PE 10’ as listed. Her testimony, as contained in the adopted witness statements and the Amended Plaint, detailed her capacity as the administrator of the estate of the late Solomon Evans Githinji, the nature of the dispute regarding the Suit Property, and the allegations of trespass against the Defendant. 9. On the part of the Defendant, although an Amended Statement of Defence was led denying the Plainti's claim, the Defendant did not call any witnesses to give evidence in support of his pleadings. The Defendant’s case was therefore closed without any oral testimony to substantiate the averments made in his statement of defense. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18597/eng@2025-12-18 2

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10. The Court is therefore called upon to evaluate the evidence on record in light of the Defendant’s failure to tender evidence in support of the allegations in the statement of defence. The legal consequence of such failure has been the subject of various judicial pronouncements. 11. In Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR, Odunga, J. addressed the consequences of a party failing to adduce evidence, citing with approval the decision of Lesiit, J. in Motex Knitwear Limited v . Gopitex Knitwear Mills Limited (Nairobi HCCC No. 834 of 2002). In that case, the court stated that: “ Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plainti’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.” 12. Similarly, in Trust Bank Limited v . Paramount Universal Bank Limited & 2 Others (Nairobi HCCS No. 1243 of 2001), the court reiterated this position, stating: “ ...it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plainti against them is uncontroverted and therefore unchallenged.” 13. Guided by these authorities, the evidentiary position before this Court is that the Plainti’s evidence, comprising her sworn testimony and documentary exhibits, stands uncontroverted on the record. The Defendant’s pleadings, having not been subjected to the test of cross-examination or supported by sworn testimony, remain mere statements/allegations that have not been substantiated by evidence. Analysis of Submissions Plainti ’s Submissions 14. Following the close of the Plainti's case and the Defendant’s failure to adduce evidence, the Plainti led Written Submissions dated 31st October 2025. In her submissions, the Plainti identied three main issues for determination: a. Whether the Defendant has any legal or equitable right over the Suit Property. b. Whether the Defendant’s occupation constitutes trespass. c. Whether the Plainti, as administrator of the deceased’s estate, is entitled to the orders sought. 15. On the rst issue regarding proprietary rights, the Plainti submitted that the Suit Property was lawfully registered in the name of the late Solomon Evans Githinji. Counsel for the Plainti relied on Sections 24(a), 25(1), and 26(1) of the Land Registration Act, No. 3 of 2012, arguing that the registration of a person as proprietor vests absolute ownership and that a Certicate of Title is prima facie evidence of such ownership. 16. To buttress this argument, the Plainti cited the Court of Appeal decision in Munyu Maina v Hiram Gathiha Maina [2013] eKLR, submitting that once a title deed is produced, the burden shifts to the challenger to prove that the title was acquired illegally or through a corrupt scheme. It was the Plainti's submission that the Defendant failed to meet this burden, as he produced no sale agreement, transfer, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18597/eng@2025-12-18 3

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or gift instrument to demonstrate lawful acquisition. Regarding the Power of Attorney relied upon by the Defendant, the Plainti cited Peter Ochieng Opiyo v Paul Ochieng Opiyo & another [2021] eKLR, arguing that an attorney’s authority is strictly limited to powers expressly conferred and does not extend to property not mentioned. Consequently, she argued that any dealing with the Suit Property by the Defendant was ultra vires and void ab initio. 17. On the second issue of trespass and intermeddling, the Plainti submitted that the Defendant’s continued possession without her consent violates Section 3(1) of the Trespass Act (Cap 294). Counsel relied on Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & another [2016] eKLR, for the proposition that trespass is actionable per se without proof of damage. Furthermore, the Plainti contended that the Defendant’s actions amount to intermeddling with the estate of a deceased person contrary to Section 45(1) of the Law of Succession Act (Cap 160). Citing Re Estate of M’Mbijiwe M’Itunga (Deceased) [2018] eKLR, the Plainti argued that only a duly appointed administrator may lawfully deal with a deceased’s estate, rendering the Defendant's occupation a usurpation of the Plainti's authority. 18. Regarding trust or equitable ownership, the Plainti submitted that the Defendant neither pleaded nor proved any resulting or constructive trust. Citing Twalib Hatayan Twalib v Said Saggar Ahmed Al-Heidy & others [2015] eKLR, Counsel argued that the onus of proving a trust lies with the person alleging it. Further, relying on Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others [2012] eKLR, the Plainti submitted that mere occupation or familial relationship cannot confer proprietary interest, as rights in property must ow from law, not sympathy or association. 19. Finally, on the reliefs sought, the Plainti submitted that she is entitled to general damages for trespass and mesne prots. She relied on Philip Ayaya Aluchio v Crispinus Ngayo [2014] eKLR, to argue that the measure of damages is the loss suered by the owner or the gain enjoyed by the trespasser. The Plainti also invoked Section 152E of the Land Act, 2012 and the decision in Sammy Mbugua Njuguna v Elijah Mburu Wanyoike [2023] KEELC, to urge the Court to order the eviction of the Defendant, emphasizing that sentimental ties cannot override registered ownership. 20. The Plainti urged the Court to enter judgment in her favor as prayed in the Amended Plaint.. Issues for Determination 21. Having carefully considered the pleadings, the oral and documentary evidence on record, and the written submissions led on behalf of the Plainti, this Court is of the considered view that the following issues crystallize for determination: i. Whether the Plainti is the lawful proprietor of the Suit Property known as Title LR Ngong/ Ngong/10915 (Ole Seg Farm). ii. Whether the Defendant’s occupation of the Suit Property is lawful or amounts to acts of trespass and intermeddling with the deceased’s estate. iii. Whether the Plainti is entitled to the reliefs sought in the Amended Plaint, specically: (a) A permanent injunction and eviction orders; (b) General damages for trespass; and (c) Mesne prots. iv. Who should bear the costs of this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18597/eng@2025-12-18 4

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Analysis and Determination i. Whether the Plainti is the lawful proprietor of the Suit Property known as Title LR Ngong/ Ngong/10915 (Ole Seg Farm) 22. The Plainti’s claim to the Suit Property is founded on both registered ownership and succession law. It is not in dispute that the late Solomon Evans Githinji was, during his lifetime, the registered proprietor of Title No. Ngong/Ngong/10915. The Plainti produced before this Court a copy of the title document together with a Certicate of Conrmation of Grant issued in Nairobi High Court Succession Cause No. 1502 of 2018, by which the Suit Property devolved to her as the administrator and beneciary of the estate. 23. The legal eect of registration is settled. Section 24(a) of the Land Registration Act, No. 3 of 2012 provides that: “ The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.” 24. Section 25(1) of the same Act further stipulates: “ The rights of a proprietor, whether acquired on rst registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act…” 25. Section 26(1) reinforces the sanctity of title in the following terms: “ The certicate of title issued by the Registrar upon registration… shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner…” 26. The Plainti’s evidence on proprietorship was neither impeached nor controverted. The Defendant, despite ling a Defence, failed to adduce any evidence to challenge the title or to demonstrate that the same was acquired fraudulently, illegally, or unprocedurally. 27. The Court of Appeal in Munyu Maina v Hiram Gathiha Maina [2013] eKLR, succinctly stated: “ When a registered proprietor’s root of title is challenged, it is not sucient to dangle the instrument of title as proof of ownership. It is this instrument that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title.” In the present case, no such challenge was mounted. On the contrary, the Plainti explained the chain of ownership through succession, which remains unassailed. 28. Accordingly, this Court nds and holds that the Plainti is the lawful and absolute proprietor of the Suit Property by operation of both land registration law and succession law. ii. Whether the Defendant’s occupation of the Suit Property is lawful or amounts to trespass and intermeddling with the deceased’s estate https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18597/eng@2025-12-18 5

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29. The Defendant’s occupation of the Suit Property is admitted. What is in contest is whether such occupation is lawful. 30. The Defendant sought refuge in a Power of Attorney dated 14th April 2011. However, the Plainti’s uncontroverted evidence was that the said Power of Attorney was limited to Nairobi/Block 106/20 and Nairobi/Block 32/287, and expressly excluded the Suit Property. 31. The law on the scope of a Power of Attorney is settled. In Peter Ochieng Opiyo v Paul Ochieng Opiyo & another [2021] eKLR, the Court held that: “ A Power of Attorney is an instrument of delegation and the donee can only act within the four corners of the authority donated by the donor. Any act done outside the scope of the authority is ultra vires and therefore null and void.” 32. The Defendant produced no evidence demonstrating that his occupation of the Suit Property was authorized either by the deceased during his lifetime or by the Plainti as the administrator. 33. Under Section 3(1) of the Trespass Act (Cap 294): “ Any person who without reasonable excuse enters, is or remains upon or erects any structure on land without the consent of the occupier thereof shall be guilty of an oence.” 34. Civil trespass is actionable per se. In Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & another [2016] eKLR, the Court stated: “ Trespass is actionable per se and a claimant need not prove that he suered any damage or loss.” 35. Beyond trespass, the Defendant’s conduct also amounts to intermeddling with the estate of a deceased person. Section 45(1) of the Law of Succession Act (Cap 160) provides: “ Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation… no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.” 36. In Re Estate of M’Mbijiwe M’Itunga (Deceased) [2018] eKLR, the Court emphasized: “ Any dealings with a deceased’s estate without a grant of representation amounts to intermeddling and is unlawful, irrespective of the relationship between the intermeddler and the deceased.” 37. The Defendant neither pleaded nor proved the existence of any trust, benecial interest, or equitable entitlement. In Twalib Hatayan Twalib v Said Saggar Ahmed Al-Heidy & others [2015] eKLR, the Court of Appeal held: “ The onus of proving a trust rests upon the person asserting it and such proof must be on a balance of probabilities.” This burden was not discharged. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18597/eng@2025-12-18 6

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38. The Court therefore nds that the Defendant’s occupation of the Suit Property is unlawful and constitutes both trespass and intermeddling with the estate of the deceased. iii. Whether the Plainti is entitled to the reliefs sought 39. Having established lawful proprietorship and unlawful occupation, the Plainti is entitled to protection of her proprietary rights under Article 40 of the Constitution. 40. Section 152E of the Land Act, 2012 empowers the Court to issue eviction orders against unlawful occupants. In Sammy Mbugua Njuguna v Elijah Mburu Wanyoike [2023] KEELC, the Court held: “ Where a person is found to be in unlawful occupation of private land, the Court has a duty to grant eviction orders so as to vindicate the registered owner’s constitutional and statutory rights.” 41. This Court is satised that a permanent injunction and eviction order are warranted. 42. Damages for trespass are discretionary. In Philip Ayaya Aluchio v Crispinus Ngayo [2014] eKLR, the Court stated: “ The measure of damages for trespass is the extent of the injury done to the land, or the loss suered by the plainti, or the gain made by the trespasser.” 43. Given the prolonged and deliberate nature of the trespass, and the erection of structures thereon, this Court nds the Plainti entitled to general damages for trespass which the court assesses at Kshs. 1,000,000/- 44. Mesne prots on the other hand must be specically pleaded and strictly proved. While the Plainti pleaded mesne prots at Kshs. 1,000,000 per year, no valuation or documentary evidence was tendered to support that gure. 45. Accordingly, while the Court recognizes the Plainti’s entitlement in principle, mesne prots are declined for want of strict proof. 46. Costs follow the event. The Defendant’s unlawful occupation necessitated this litigation. There exists no justication to deny the Plainti costs. 47. In the premises, judgment is hereby entered for the Plainti against the Defendant, and the Court makes the following orders: a. A declaration is hereby issued that the Plainti is the lawful and absolute proprietor of Title LR Ngong/Ngong/10915 (Ole Seg Farm). b) A declaration is hereby issued that the Defendant’s occupation of the Suit Property is illegal and constitutes trespass and intermeddling with the estate of the deceased. b. A permanent injunction is hereby issued restraining the Defendant, his agents, servants, or anyone claiming under him from entering upon, remaining on, or in any manner interfering with the Suit Property. c. An eviction order is hereby issued against the Defendant forthwith, to be executed in accordance with the law. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18597/eng@2025-12-18 7

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d. The Plainti is awarded general damages for trespass in the sum of Kshs. 1,000,000/with interest at court rates from the date of this judgement until payment in full. e. The claim for mesne prots is declined for want of proof. f. The Plainti is awarded the costs of the suit with interest at court rates from the date of this judgement until payment in full. It is so ordered. DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 18TH DAY OF DECEMBER 2025. M.D. MWANGI JUDGE In the virtual presence of: Mr. Kamau for the Plainti N/A by the Defendant Court Assistant: Mpoye https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18597/eng@2025-12-18 8

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