Manua v Momanyi (Land Case E015 of 2025) [2026] KEELC 3962 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEELC 3962 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KISII LAND CASE E015 OF 2025 AA OMOLLO, J JUNE 25, 2026 BETWEEN SAMUEL MANUA ...................................................................................... PLAINTIFF AND KENNEDY MOMANYI ......................................................................... DEFENDANT JUDGMENT 1. The plaintifi instituted this suit against the defendant by a plaint dated 24th April, 2025, claiming that he is the registered owner of the land Nyaribari Chache/B/B/Boburia 16779. The plaintifi pleads that the land was registered in his name on 14th October, 2024, by way of transmission. He further states that the defendant is his neighbour, who has decided to take the law into his own hands by trespassing on land that belonged to his parents and has been cultivating it without his permission. 2. The plaintifi avers that by virtue of being the registered owner, he is entitled to exclusive rights over the suit parcel to the exclusion of all and sundry. He continued to state that the certificate of beacon clearly shows his land is surrounded by access roads and separated from his parents portion of land at the top. 3. He pleaded that the defendant’s actions has deprived him of the usage of the land and opportunity to develop it. Therefore, he prays for general damages for trespass and mesne profits. The Plaintifi also prays for orders: a. Declaration that the Plaintifi is the legal registered proprietor or lawful owner of L.R. No. Nyaribari Chache/B/B/Boburia/16779. b. An order of eviction directed against the defendant, his agents, servants and or anyone claiming under the defendant from L.R. No. Nyaribari Chache/B/B/Boburia/16779. c. An order of provision of security by the OCS Kisii Central Police station during the eviction of the defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3962/eng@2026-06-25 1
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d. General damages e. Interest on (d) at court rates f. Costs of this suit be borne by the Defendant. 4. The defendant was served but failed to enter appearance. Thus, the suit proceeded as undefended. 5. The Plaintifi testified in court on 23rd April, 2026 introducing himself as a resident of Nyaribari Chache sub-county. The witness stated that the Defendant was cultivating the suit land by force. That he has tried to stop the defendant but he continues to till the land. It was his further evidence that during partition, the surveyors came and showed them their boundaries. 6. He wants the court to issue him with an order declaring him as the sole owner of the land Nyaribari Chache/B/B/Boburia 16779. He also wants eviction orders to issue against the Defendant. In support of his case, the plaintifi produced copies of the title deed and green card of the suit land. He also produced letters of administration appointing him the administrator of his father’s estate. 7. The plaintifi was unrepresented; hence, he did not file any written submissions. However, it is trite law that even in undefended claims, the plaintifi still has a duty to prove his case. In this case, the plaintifi alleges that the defendant trespassed on his parcel of land. Section 3 (1) of the Trespass Act defines trespass as: “ any person who without unreasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on private land without the consent of the occupier thereof shall be guilty of an ofience. 8. In Mwangi v Njaria [2022] KEELC 13564 [KLR] (19th October 2022) (Judgment), the court observed that what underlies the issue of trespass is ownership of the land. The court cited Winfield and Jolowicz on Tort, Sweet and Maxwell, 19th Edition, page 428, that, “ Trespass to land constitutes interference with possession, and that mere presence on the land does not necessarily amount to possession suficient to bring an action for trespass. The court also noted that the claimant should have some legal interests in the land, and that, in the absence of evidence to the contrary, the owner of land with a proper title is deemed to own the land.” 9. In this case, the plaintifi has not adduced any evidence to show that the defendant is cultivating and/or in occupation of the suit land Nyaribari Chache/B/B/Boburia 16779. He spoke of a surveyor visiting the land to partition it, but no details are disclosed as to which land was being partitioned. There was no document explaining which boundaries were being marked, nor did he produce any survey report and/or beacon certificate he mentioned in his evidence to support his case. 10. Further, his evidence does not indicate whether the defendant occupies the entire land or whether the matter is a boundary dispute. He contended that the defendant has been using the land for a long time, meaning even before he acquired title to the suit land. If the defendant is indeed in use of the land, there is a lacuna in the evidence on record as to how the defendant came onto this land and why his occupation from October, 2024 now constitutes trespass. 11. In summary, I find that the plaintifi has not proved his case on the balance of probabilities, because the production of a title deed alone does not establish that someone is unlawfully on his land. He could https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3962/eng@2026-06-25 2
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have gone further by calling the local administration to corroborate his evidence. I have no choice but to dismiss the suit. Since the suit is undefended, I award no costs. JUDGMENT DATED, SIGNED AND DELIVERED AT KISII THIS 25TH DAY OF JUNE, 2026. A. OMOLLO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3962/eng@2026-06-25 3
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