Safaricom Investment Co-operative Limited v Kariuki & another (Environment and Land Case Civil Suit E157 of 2022) [2026] KEELC 2633 (KLR)

3. The Court directed on 04/02/2025 that the Defendants should be served via substituted service and on 24/04/2025, vide the Daily Newspaper of even date the Defendants were served with Summons. The Process Server one Stephen Kinuthia swore an Afidavit of Service dated 28/04/2025 where he deponed this fact. 4. From the first appearance in Court on 20/12/2022, the Defendants never entered appearance in Court necessitating the Plaintifi to request Judgment against the Defendants under Order 10 Rule 4 of the Civil Procedure Rules on 10/02/2023 which request was however not granted. 5. On 16/02/2023, however all parties were in Court and the Defendants appeared in person. The Court explained to them the right to legal representation and also encouraged parties to try Alternative Dispute Resolution (ADR). Defendants were given up to 2/05/2023 to file their responses. 6. On 15/05/2023 when the parties appeared in Court and the Defendants who were appearing in person sought for a Kikuyu Interpreter, the Court secured an interpreter for the Defendants. The Defendants sought time to file documents. The Defendants sought for more time to file their responses and documents that they will rely on at trial. 7. At the next appearance in Court on 21/09/2023, the Defendants were represented by Ms. Kinuthia Advocate who had however failed to serve her Notice of Appointment and so the Court directed her to file the notice but also referred the parties to the Deputy Registrar for pre-trial conference (PTC). When the parties next appeared in Court, the Defendants were absent including their Counsel and the Plaintifi requested for a hearing date given the numerous Court appearances where the Defendants were not complying with Court orders which had directed them to file their pleadings. 8. The Court fixed the matter for hearing and directed that the Defendants be served via substituted service and since they never attended the hearing the matter proceeded undefended. Brief Background 9. The Plaintifi claims to be the absolute and registered proprietor of all the parcel of land known as Kiambaa/Ruaka/7133 situated within Garacharage area, Kiambu County. He claims to have acquired nine parcels of land from difierent proprietors, being Title Numbers Kiambaa/Ruaka/1291, 1082,5897, 5898, 1297, 4104, 4105, 4106 and 3484. 10. According to the Plaintifi, the titles were transferred to it and title deeds issued on 1/02/2018. It had the intention of developing low-cost housing project on the nine parcels upon amalgamating the nine parcels into one parcel. That through the mutation registered on 17/03/2022 the nine parcels were amalgamated and a new title issued as Kiambaa/Ruaka/7133 and a change of user approval granted on 14/10/2022. 11. Upon obtaining the approval the Plaintifi entered into a construction contract of 210 units with MC Builders for a contract of Kesh 588,639,058. 12. That at the onset of the construction, the Defendants attacked the workers claiming ownership of an unidentified portion of the property without presenting the Plaintifi nor the administration with any documents of proof of the claim. 13. Following the violent attacks, the Plaintifi claims to have sufiered loss and damage which he lists as follows; Particulars of Loss and Damage a. The Plaintifi has been deprived the quiet enjoyment and use of the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2633/eng@2026-05-04 2

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14. b. The Plaintifi is incurring costs by paying the contractor for idle equipment and machinery on site. c. The Plaintifi has ofiered the units for sale to its members, customers and clients on ofi-plan basis with delivery time of the units being time-bound in the ofier letters/contractors. The Defendants’ conduct will delay the completion of construction. As a consequence, the Plaintifi runs the risk of breaching the terms of sale regarding completion of construction. d. The approvals granted to the Plaintifi limits construction period to three years. With the continued delay in construction, this period is likely to expire before the Plaintifi completes the construction. It is the Plaintifi’s case that despite reporting the Defendants to the Police they could not act without a Court order. Necessitating the filing of this suit. Plaintifi ’s Case 15. 16. The Plaintifi testified as PW1- Jared Osoro Nyabwoka and stated that he worked for SIC Investment Society Limited before it was known as Safaricom Investment Cooperative Limited. He adopted his witness statement as his evidence in chief and he also adopted his list of documents dated 19/12/2022 containing ten (10) documents which are: i. A copy of Title No. Kiambaa/Ruaka/7133. ii. Copies of Title Nos. Kiambaa/Ruaka/1291, 1082. 5897,5898, 4104, 4105, 4106 &3484. iii. The Mutation Form dated 9th March 2022. iv. The Agreement and Conditions of contract for building works dated 8th March 2022. v. The NEMA approval dated 9th June 2022. vi. The construction permit dated 30th June 2022. vii. The letter of authority to commence development dated 30th June 2022. viii. Notification of approval of development permission change of user granted on 14th October 2022. ix. Notice of publication in the Kenya Gazette by NEMA dated 22nd September 2022. x. Gazette Notice No. 12791 dated 21st October 2022. The Court directed the Plaintifi to file written submissions. The submissions filed are dated 15/11/2025 and I have read and considered the same in writing my Judgment. Analysis and Determination 17. The Plaintifi moved this Court by way of a Plaint dated 19/12/2022, seeking a declaratory order of ownership over the suit property known as Kiambaa/Ruaka/7133, an order for permanent injunction against the Defendants, and general damages for trespass. Despite the history of this matter, characterized by the Defendants' initial appearances in person and subsequent representation by Counsel, the Defendants ultimately failed to file any defense or join issue with the Plaintifi’s claim. 18. The matter proceeded to hearing undefended. However, it is a long-standing principle of law that a Plaintifi’s case does not succeed merely because it is unopposed. The burden of proof remains constant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2633/eng@2026-05-04 3

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As provided under Sections 107 and 108 of the Evidence Act (Cap 80), he who alleges must prove. The Plaintifi bears the legal burden to lead evidence that will convince the Court on a balance of probabilities that they are entitled to the reliefs sought. 19. In light of the pleadings, the witness testimony, and the documentary evidence placed before this Court, to efiectively resolve this dispute, the Court identifies the following issues for determination: i. Whether the Plaintifi is the lawful registered proprietor of the suit property; ii. Whether the Defendants’ actions amount to trespass; iii. Whether the Plaintifi is entitled to the reliefs sought; iv. Who should bear the costs of the suit? 20. On ownership and indefeasibility of title, the Plaintifi’s case is anchored on the sanctity of title. PW1 produced the original Certificate of Title for Kiambaa/Ruaka/7133 and a history of the constituent parcels (Kiambaa/Ruaka/1291, 1082, 5897, 5898, 1297, 4104, 4105, 4106 and 3484). 21. Under Section 24(a) of the Land Registration Act, registration vests absolute ownership in the proprietor. Section 26(1) further mandates that such title shall be prima facie evidence of absolute ownership. This principle was echoed by the Court of Appeal in Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR where the Court emphasized: “ The registration of a person as the proprietor of land is a solemn act of state. The title issued thereafter is an indefeasible document that can only be challenged on the grounds of fraud or misrepresentation to which the person is proved to be a party." 22. The Plaintifi has demonstrated a seamless transition from individual parcels to an amalgamated title, backed by a registered Mutation Form and change of user. In the absence of any defense or evidence of fraud, this Court finds the Plaintifi’s title to be valid and absolute. 23. While the Supreme Court in the case of Dina Management Limited v County Government of Mombasa & 5 Others [2023] KLR discusses the limits of indefeasibility, if the land was public land originally, it acknowledges the solemnity of the registration process. 24. Trespass is an injury to possession. Halsbury’s Laws of England (4th Edition, Vol 45) notes that any entry upon land in the possession of another without a legal right is a trespass. Here, the Plaintifi has established both ownership and possession through its contractor, MC Builders Limited. 25. The Defendants, despite being given ample opportunity to file their defense and even being provided with a Kikuyu interpreter to ensure they understood the proceedings, chose to stay away. In Park Tower Limited v Moses Chege & 7 Others [2014] eKLR the Court held: “ Where a party is the registered owner of land, any person who enters the land without the owner's permission or a Court order is a trespasser, and the law will protect the registered owner's right to quiet enjoyment." The violent interference with the Plaintifi’s workers, as testified by PW1, constitutes a clear act of trespass. 26. The Plaintifi seeks a permanent injunction. The test for such an order is whether the Plaintifi has a legal right and whether that right is being continuously infringed upon. Given the substantial investment of Kshs 588,639,058, the Plaintifi risks irreparable loss if the Defendants are not restrained. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2633/eng@2026-05-04 4

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27. Regarding damages, Black’s Law Dictionary (10th Edition) defines general damages as those that the law presumes to fiow from a wrong. While the suit is undefended, the Plaintifi must prove the loss. The delay in a time-bound project for 210 units clearly causes financial strain and loss of use. Final Determination 28. The Plaintifi has proved its case on a balance of probabilities. Although the Defendants failed to defend the suit, the Plaintifi presented a sound case supported by verifiable documentary evidence. 29. Accordingly, I enter Judgment for the Plaintifi against the Defendants for: a. A declaration that the Plaintifi is the registered and absolute owner of Kiambaa/Ruaka/7133. b. A declaration that the Plaintifi is entitled to the exclusive and unimpeded right of possession, occupation, and development of the suit property. c. An order of permanent injunction restraining the Defendants, their agents, or representatives from entering, trespassing, or interfering with the Plaintifi’s use and construction works on the suit property. d. General damages for trespass awarded at Kshs 1,500,000/-. e. Costs of this suit. Orders Accordingly. DATED, SIGNED AND DELIVERED IN THIKA VIA MICROSOFT TEAMS THIS 4TH DAY OF MAY, 2026. ……………………… MOGENI J JUDGE In the presence of: Mr. Muturi holding brief for Mr. Wanjohi for the Plaintifi 1st and 2nd Defendants – Absent Mr. Melita - Court Assistant ……………………… MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2633/eng@2026-05-04 5

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