Atambo v Ojiambo & another (Environment and Land Case 19 of 2023) [2026] KEELC 277 (KLR)

5. The defendants averred that the plaintifi was under investigation for ofiences including threatening to kill, malicious damage to property, assault, and misuse of state agencies, hence was not entitled to the reliefs sought. The defendants termed the suit as made in bad faith, a waste of the court’s time, and filed to settle the score. 6. At the trial, George Amenya Atambo testified as PW1. He relied on a witness statement dated 14/12/2023 as his evidence-in- chief. PW1 told the court that he was the registered owner of the suit land. In 2022, PW1 said that the defendants jointly and severally, without any consent or authority, trespassed into his land and planted sugarcane, to which, despite notice and intention to sue, they have declined to vacate, hence this suit. 7. PW1 relied on copies of a demand letter dated 26/9/2023, reply dated 3/10/2024, photographs, and a copy of the title for Kapkoi/Mabonde Block 1/Ex-Prison/114 as P. Exhibit Nos. 1, 2, 3(a), (b), and (c), and 4, respectively. 8. PW1 told the court that he obtained the title on 14/6/2022 and took possession of the land, which was vacant at the time. PW1 said that he was surprised later to find a sugarcane plantation on the land, as per the photographs before the court. 9. PW1 said that he then approached the defendant, who promised to vacate the land, and he gave the notice to vacate, which he declined to adhere to. PW1 said that the defendants are still on his land, which he bought to plant maize, but has now been unable to do so. PW1 said that the suit land is about 15 acres in size, with an estimated income per acre of 30 bags. PW1 said that since 2022 to date, he has been unable to utilise his land, resulting in a loss of estimated income of Kshs. 3,700.= per bag. 10. Regarding the 1st defendant’s witness statement dated 14/1/2024, attaching two lease agreements, PW1 said that he was not privy to the same, and that it was not true that the title was under joint ownership when he bought the land. 11. PW1 said that the alleged lease agreements do not refiect the parcel number of the suit land; they relate to a land measuring 40 acres, as opposed to the suit land, which is 6.35 Ha. PW1 asked the court to grant him the reliefs sought by the plaintifi, in terms of general damages and mesne profits. 12. Jared Sharon was called as PW2. Her testimony was that, from the custodian of land records, as per Section 4 of the Land Registration Act, L.R. No. Kapkoi/Mabonde Block 1/Ex-Prison/114 belongs to the plaintifis with efiect from 14/6/2022, as per entries No. 6 and 7. PW2 told the court that the subject block was closed for investigation at the instance of the Ethics and Anti-Corruption Commission as per the Principal Secretary’s letters dated 14/9/2022 and 27/2/2023, seeking the maintenance of the status quo. 13. PW2 produced the letters as P. Exhibit Nos. 5, 6, and 7. PW2 said that the current status is that there can be no transaction on the title in view of the restriction, though the plaintifi’s title remains valid or intact. 14. In the absence of attendance at the hearing, despite notice, together with an afidavit of service, the defendant's statement of defence dated 14/7/2024 was marked as closed. Mr. Onyancha, learned counsel for the plaintifi, submitted that the plaintifi has proved his suit on a balance of probabilities. Notwithstanding P. Exhibit Nos. 5, 6, and 7, the plaintifi submitted that he remains the sole legal proprietor of the suit land. 15. It was submitted that there has been no valid court order cancelling the plaintifi’s title. Further, the plaintifi submitted that the statement of defence on record remains unsubstantiated. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/277/eng@2026-01-28 2

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16. Learned counsel for the plaintifi submitted that P. Exhibit No. 3(a) and (b) show the economic activities by the defendants on the land, which have denied the plaintifi's entry into and use of the land. Learned counsel submitted that the plaintifi is entitled to damages, guided by Park Towers Ltd -vsJohn Mithamo Njika & Others [2014] eKLR, without proof of damage, since trespass is actionable per se. 17. Learned counsel submitted that the circumstances of this case require that the denial of the use of the land since 2022 todate for the plaintifi to be awarded Kshs.500,000/=. 18. In Kenya Power and Lighting Company -vs- Ringera & Others [2022] KECA 104 [KLR[ (4th February 2022) (Judgment), the court said trespass to land is governed by Section 3(1) of the Trespass Act, which defines it as entry into, or upon private property in the possession or occupation of another without justification, and commission of acts inconsistent with his use of the land. 19. In M’Mukunya -vs- M’Mbijiwe (1984) eKLR, trespass was defined as a violation of a right to possession, and the plaintifi must prove that he had a right to immediate and exclusive possession of the land. 20. To prove trespass, the plaintifi herein has to show that there was wrongful entry and a violation of his right to possession. See Margaret Iminza Luyayi -vs- Moses Opudo Mudaka [2014] eKLR. 21. In this suit, the plaintifi has discharged the burden that he is the owner of the suit land as per the title deed produced as P. Exhibit No. 4. See Ochako Obinchu -vs- Zachary Oyoti Nyamongo [2018] eKLR. The title deed has not been challenged as irregularly or unprocedurally obtained by the defendants, through pleaded and proved particulars of the fraud, illegality, or issuance through corrupt means. 22. In a case of trespass, the intruder must show justification for entry and occupation on the land without the consent or authority of the registered owner. Even though the 1st defendant alleges adverse possession on the land by way of a statement of defence, there was no counterclaim or proof that the plaintifi’s title was subject to any overriding interest granted to the 1st defendant by the predecessor in title. 23. Even if that was the case, the 1st defendant has attached to his reply to the demand notice lease agreements. Permissive entry or use of land cannot amount to adverse possession in law, as held in M’Riria & Others -vs- Muthomi Civil Appeal No. 253 of 2019 [2025] KECA 951 [KLR]. Moreover, the failure to attend the defence hearing and ventilate the contents of the statement of defence left the contents as mere statements, with no probative value to rebut the proprietary rights of the registered owner of the land. 24. Trespass to land once proved is actionable per se. In Park Towers Ltd (supra), the court said that where trespass is proved, a party need not prove that he sufiered any specific damage or loss to be awarded damages, and that all that a court should do is to assess the damages awarded to the defendant on the unique circumstances of the case. 25. The plaintifi has submitted for Kshs.500,000/=, based on the expected income of Kshs. 3,700/= per bag, for an estimated 30 bags per acre, in the 15 acres of the suit land. In Stanley Maore -vs- Geofirey Mwenda [2004] eKLR, the court held that damages should be assessed comparable to the injuries or loss, as far as possible, and to similar cases. See also Municipal Council of Eldoret -vs- Titus Gatitu Njau [2021] KECA 782 [KLR] and in Attorney General -vs- Zinji Ltd [2021] KESC 23 [KLR] (30th December 2021) (Judgment). In the circumstances of this case, I find the figure of Kshs. 500,000/= for general damages, reasonable. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/277/eng@2026-01-28 3

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26. As to eviction, for the same to be sanctioned by the court, it has to comply with the law on execution of court decree or order as per Section 152(B), (C), and (F) and 152(1) of the Land Act, Section 38 of the Civil Procedure Act, and Order 22 of the Civil Procedure Rules. Consequently, the defendants shall deliver the suit land to the plaintifi after 3 months from the date hereof, in default, to be evicted therefrom at their costs and expenses. 27. The general damages shall attract interest at court rates from the date of filing the suit to the date of delivery of vacant possession. Costs to the plaintifi. 28. Orders accordingly. JUDGMENT DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 28TH DAY OF JANUARY 2026. In the presence of: Court Assistant - Dennis Onyancha for plaintifi- present Sow for the defendants- absent HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/277/eng@2026-01-28 4

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