keelc-2026-00656

pleaded that sometime in June 2024 the defendants forcibly entered and trespassed upon the suit properties and erected some semi-permanent structures thereon without lawful justification or excuse. 3. The plaintifis pleaded that although the defendants were evicted from the suit properties in July 2024 with the assistance of police oficers they had again forcibly entered and re-occupied the suit properties thereby denying them their right to use and enjoy the properties. 4. It was the plaintifis’ case that despite issuance of a demand and notice of intention to sue the defendants had failed to vacate the suit properties thereby rendering the suit necessary. 5. The material on record shows that the defendants were served through the substituted service pursuant to leave of the court. The record shows that although service of summons was efiected through publication of a notice in the Daily Nation newspaper, the defendants neither entered appearance nor filed any defences to the action. 6. At the trial hereof, the plaintifis called 2 witnesses and closed their case. The first witness was Hassan Mzee Khamis who was a director of the 1st plaintifi. He adopted the contents of his witness statement dated 29.07.2024 as his evidence in chief. He also adopted the contents of his supporting afidavits sworn on 29.07.2024 and 27.08.2025 as part of his evidence in chief. He also produced the documents in the plaintifis’ list of documents as exhibits P1-P6. 7. The second witness was Rehema Haji Iddi who is the 5th plaintifi herein. She adopted the contents of her witness statement dated 29.07.2024 as her evidence in chief. The evidence of the plaintifis essentially mirrored the contents of their plaint. They asserted their ownership of the suit properties and contended that the defendants had forcibly entered and occupied the same without their consent and without any lawful justification or excuse. 8. The court is of the view that the main issue for determination is whether or not the plaintifis have proved their claim against the defendants to the required standard. The certificates of oficial search produced by the plaintifis show that the 1st plaintifi is the registered proprietor of Plot Nos. 2 0953/ I/MN and 20959/I/MN whereas the 2nd – 5th plaintifis are the joint proprietors of Plot No. 20960/ I/MN. The defendants did not tender any evidence at the trial to demonstrate their right, claim, or interest over the suit properties. The plaintifis also produced photographs of the temporary structures the defendants had erected on the suit properties. The defendants did not attend court to dispute the plaintifis’ evidence and photographs on the invasion and occupation of the suit properties. 9. The court is thus satisfied on a balance of probabilities that the plaintifis are the registered proprietors of the suit properties hence entitled to immediate possession and enjoyment thereof. The court is also satisfied that the defendants have wrongfully entered and occupied the suit properties without the consent of the plaintifis and without any lawful justification or excuse. The court is satisfied that the defendants are trespassers and law breakers in the eyes of the law who ought to be evicted through a judicial process. 10. It is evident from the plaint that apart from the declarations, permanent injunction, and order for vacant possession, the plaintifis have also sought general damages for trespass against the defendants. The plaintifis have sought general damages in the sum of Kshs. 500,000. They have cited the cases of Kamoye v Tipango & 2 Others (Environment & Land Case E011 of 2023) (2024)KEELC 4227 (KLR) (14 May 2024) (Judgment) and Hebron Orucho Gisebe & 2 Others v Joseph Ombura Gisebe & Another [2022] KEELC 1348 (KLR) in support of their claim. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/656/eng@2026-02-12 2

page 2 of 4

11. In the case of Kamoye v Tipango & 2 Others (supra) the award of general damages was considered as follows; “ 17. On the issue of general damages for trespass, the issue that arises is the measure of it. In the case of Philip Ayaya Aluchio v Crispinus Ngayo [2014] eKLR, it was held as follows: “The plaintifi is entitled to general damages for trespass. The issue which arises is as to what is the measure of such damage? It has been held that the measure of damages for trespass is the difierence in the value of the plaintifi’s property immediately after the trespass or the costs of restoration, whichever is less See Hostler v Green Park Development Co. 986 S. W 2d 500 (No. App. 1999).” 18. In the case of Duncan Nderitu Ndegwa v KP & LC Limited & Another (2013) eKLR, P. Nyamweya, J held that: “ …once a trespass to land is established it is actionable per se, and indeed no proof of damage is necessary for the court to award general damages. This court accordingly awards an amount of Kshs 100,000/= as compensation of the infringement of the Plaintifi’s right to use and enjoy the suit property occasioned by the 1st and 2nd Defendants trespass” 19. From the evidence on record, there is nothing that can be used to enable this court determine the actual damage and/or measure of the damage or loss that the plaintifi sufiered for him to be compensated for the loss. However, in relying on the above authorities, I find the plaintifi has sufiered damages as a result of the defendants’ unlawful acts of trespass and award him Kshs. 200,000/= as general damages.” 12. The court agrees that trespass to land is a tort which is actionable per se. The claimant does not have to demonstrate that he has sufiered any particular damage in order to be awarded damages. In this case, the plaintifis did not tender any evidence to demonstrate any particular damage or injury they had sufiered other than a violation of their property rights. The court is thus of the view that an award of Kshs. 200,000/= as general damages for trespass would be suficient compensation to the plaintifis for violation of their property rights. 13. The upshot of the foregoing is that the court is satisfied that the plaintifis have proved their claim against the defendants on a balance of probabilities. As a consequence, judgment is hereby entered for the plaintifis against the defendants in the following terms; a. A declaration be and is hereby made that the 1st plaintifi Green Vine Heights Limited is the absolute owner of Plot No. 20953/I/MN and 20959/I/MN. b. A declaration be and is hereby made that Maimuna Mzee Khamis, Khamis Mzee Khamis, Salama Khamis Mzee and Rehema Haji Iddi are abosolute owers of Plot No. 20960/I/MN. c. An order be and is hereby made for the eviction of the defendants from Plot Nos. 20953/I/ MN, 20959/I/MN and 20960/I/MN. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/656/eng@2026-02-12 3

page 3 of 4

d. A permanent injunction to issue restraining the defendants upon their eviction from reentering, occupying or in any manner interfering with the plaintifis’ peaceful use and enjoyment of the suit properties. e. The plaintifis are hereby awarded general damages of Kshs. 200,000/= for trespass against the defendants jointly and severally. f. The plaintifis are hereby awarded costs of the suit. It is so ordered. JUDGMENT DATED AND SIGNED AT MOMBASA AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS ON THIS 12TH DAY OF FEBRUARY, 2026. …………………… Y. M. ANGIMA JUDGE In the presence of: Gillian - Court assistant Mr. Maundu for plaintifis No appearance for defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/656/eng@2026-02-12 4

page 4 of 4