Labatt v Oganda & another (Environment and Land Case E034 of 2025) [2026] KEELC 3536 (KLR)

Evidence Of The Plaintifi 3. PW1, Esther Labatt testified that she was the registered owner of the suit parcel Miti Mingi/Mbaruk/ BlockNO3/521 (Barut) having been issued with the title deed on 30th January, 1992. 4. She testified that despite having been ploughing the land, she never ploughed in the year 2024. It was her statement that she did not plough in that year as she had to look after her ailing husband at Eldama Ravine. 5. She further testified that when she visited the land in 2025 in preparation for planting, she found persons on the land and when questioned, they ran away.It was also her statement that she found that her shamba had been paddocked, erected beacons and fenced in small plots. 6. It was her testimony that she found two houses where one was still under construction while the other was complete. She stated that the two persons constructing the houses were the 1st and 2nd Defendants. 7. PW1 testified that the land had been subdivided and that there was a signage on it stating that the land was for sale. She denied having sold the land to any persons including the Defendants. 8. She went on to testify that she reported the incident at Rhonda Police Station where she was issued with an OB No. 22/14/02/2025. 9. She produced her witness statement dated 18th March, 2025 which was adopted as her evidence in chief. She also produced her list of documents dated 1st April, 2025 which was marked as P1 to P8. 10. She urged the court to issue eviction orders against the Defendants. Plaintifi ’s Submissions 11. Counsel for the Plaintifi filed her submissions dated 23rd February, 2026 where she submitted that the Plaintifi was the registered owner of the suit property. She further submitted that the Plaintifi provided a clear account of her possession. 12. It was her submission that the Plaintifi’s evidence was not rebutted. She cited the case of Edward Mwangi V Mary Wanjiru (2014) eKLR. 13. Counsel submitted that the Plaintifi produced her Title Deed as evidence of ownership. She relied on Section 26(1) of the Land Registration Act and the case of Arthi Highway Developers Limited V Westlands 330 Limited & Others (2015) eKLR. 14. She submitted that the Plaintifi discovered on 14th February, 2025 that her land hand been paddocked and two houses were under construction by the Defendants. 15. It was her submission that the Plaintifi never sold the land to the Defendants or any other person. She cited the case of Philip Aluchio V Augustine Mate Aluchio (2015) eKLR and Article 40 of the Constitution. 16. Counsel submitted that the Plaintifi provided photographic evidence of the illegal structures and that the Defendants had no right to occupy the land. She relied on the case of Maathai V Kenya Times Media Trust Ltd (1989) KLR. 17. It was her submission that the Plaintifi’s case was watertight and has proved her ownership to the suit parcel. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3536/eng@2026-06-11 2

page 2 of 5

Analysis And Determination 18. This court has considered the pleadings, evidence on record and submissions and the issues for determination are: i. Whether the Plaintifi is the proprietor of the suit property ii. Whether there was trespass by the Defendants onto the suit property. iii. Whether the Plaintifi is entitled to the prayers sought. iv. Who should bear the costs of the suit. i. Whether the Plaintifi is the proprietor of the suit property. 19. It was the Plaintifi’s case that she was the lawful registered owner of Miti Mingi/Mbaruk/ BlockNO3/521 (Barut). It was her testimony that the Defendants have since trespassed onto her land and constructed houses. 20. It is not in dispute that the Defendants did not enter appearance nor filed any defence, thus the Plaintifi’s evidence remained uncontroverted. 21. In the case of Charterhouse Bank Limited (Under Statutory Management) V Frank N. Kamau [2016] KECA 153 (KLR) the court found as follows: “ We would therefore venture to suggest that before the trial court can conclude that the plaintifi’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintifi has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintifi or his witnesses to crossexamination and the evidence adduced by the plaintifi is thereby thoroughly discredited, judgment cannot be entered for the plaintifi merely because the defendant has not testified. The plaintifi must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintifi is not entitled to judgement merely because the defendant has not testified. The proposition that failure by the defendant to call evidence lessens the burden on the plaintifi to make out his case on a balance of probabilities…” 22. In the Court of Appeal case of Palace Investments Limited V Geofirey Kariuki Mwenda & another [2015] eKLR, the court held as follows: Denning J, in Miller V Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say; “ That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not. This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties...are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3536/eng@2026-06-11 3

page 3 of 5

23. It was PW1’s evidence that the Defendants had trespassed onto his suit parcel Miti Mingi/Mbaruk/ Block NO3/521 (Barut). Section 26 (i) of the Registered Land Act provides that: “ The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor 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, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge.” 24. It is a fact that the Plaintifi produced a copy of the title deed issued to her on 30th January, 1992. It is this court’s view that she is therefore the registered owner of the suit property. It is also a fact that the said title has not been challenged by the Defendants. It is my opinion that the title being an indefeasible evidence of ownership of land, the Plaintifi is therefore the registered proprietor of the suit property. ii Whether there was trespass by the Defendants onto the suit property. 25. The Plaintifi produced photographs which she testified that they were photos of the Defendants’ construction on the suit parcel. 26. The photographs were adopted as the Plaintifi’s exhibit in support of her case and thus the same remains unchallenged. This court therefore finds that the Defendants have trespassed into the Plaintifi’s land parcel. SUBPARA iii. Whether the Plaintifi is entitled to the prayers sought. 27. Having found that the Defendants trespassed onto the Plaintifi’s land, the Plaintifi has proved her case on a balance of probabilities and is therefore entitled to the prayers sought in her plaint dated 18th March, 2025. 28. Accordingly, Judgment is entered for the Plaintifi as against the Defendant’s jointly and severally as follows: a. That an order of Permanent injunction is hereby issued restraining the 1st and 2nd Defendants and any person acting on their behalf, agents, employees or contractor to be restrained from trespassing, demolishing, erecting or constructing structures or building on the suit property known as Miti Mingi Mbaruk Block No 3/521 (Barut) situated at Rhonda area, Nakuru County. b. Eviction order do issue against the 1st and 2nd Defendants and any other party claiming under them or any other interested person claiming interest of whole or part of all that land known as Miti Mingi/Mbaruk/BlockNo3/521 (Barut) situated at Rhonda area, Nakuru County. c. An order that the oficer in charge (OCS) Rhonda Police Station, Nakuru do supervise the eviction exercise and provide security. d. Costs of this suit. Judgment dated, signed and delivered virtually at Nakuru this 11th day of June 2026. L KOMINGOI JUDGE In the presence of :- https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3536/eng@2026-06-11 4

page 4 of 5

Ms Chesaro for the Plaintifi No appearance for the Defendants Court Assistant: Derrick / Irene https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3536/eng@2026-06-11 5

page 5 of 5