Owino v Thuranira (Environment and Land Case 365 of 2008) [2026] KEELC 4558 (KLR)

default the Plaintiff be at liberty to demolish the same at the Defendant's cost; e) General damages for loss suffered as enumerated in paragraph 11 of the Plaint and for trespass to the property; f) Interest on (e) above until payment in full; and g) Costs of the suit 2. The Plaintiff averred that he was the lawful owner and proprietor of Plot No. 188 Umoja Inner Core Section V. He pleaded that the suit property had originally been allotted by the City Council of Nairobi to one Nicholas Muriuki, from whom he subsequently purchased the property for valuable consideration in the year 1997. He maintained that following the purchase, he became entitled to exclusive ownership and possession of the suit property and that he had neither sold, transferred nor granted possession or a licence over the property to any other person. 3. The Plaintiff further pleaded that the Defendant had unlawfully entered upon the suit property without any colour of right and had proceeded to erect structures thereon. He averred that the Defendant had no legal or equitable interest in the property and was a trespasser whose continued occupation and construction activities amounted to an infringement of his proprietary rights. He further alleged that the Defendant had substantially altered the suit property through the developments being undertaken thereon. 4. It was the Plaintiff's case that, as a consequence of the Defendant's actions, he had suffered substantial loss and damage. In particular, he pleaded that he had been deprived of the use and quiet possession of the ELCC 365 OF 2008 2 J

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property and that the developments undertaken by the Defendant had diminished the pristine and aesthetic value of the land. He held the Defendant solely responsible for those losses and sought compensation therefor. 5. The Plaintiff further averred that, prior to instituting the present proceedings, he had issued the Defendant with a demand and notice requiring him to cease the construction works and vacate the suit property. However, despite receipt of the demand, the Defendant allegedly continued with the construction and remained in occupation of the property, thereby precipitating the filing of the present suit. The Plaintiff also pleaded that although CMCC No. 2449 of 2008 had previously been filed in relation to the dispute, the same had been withdrawn, and there existed no other suit pending between the parties over the same subject matter. Defence Case & Hearing 6. Despite being duly served with summons to enter appearance, the Defendant neither entered appearance nor filed a statement of defence. Upon compliance with the pre-trial directions, the suit was certified ready for hearing and proceeded as an undefended claim. 7. At the hearing, the Plaintiff, William Ochieng Owino, testified as PW1. He adopted his witness statement as part of his evidence in chief and produced the documents contained in his trial bundle as exhibits. He testified that he purchased the suit property, Plot No. 188 Umoja Inner Core Section V, from the original allottee, Nicholas Muriuki, in 1997 for a purchase price of Kshs. 460,000. He stated that upon completion of the transaction, the original allottee handed over to him the original letter ELCC 365 OF 2008 3 J

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of allotment together with the payment receipt and facilitated the transfer of the plot in his favour at the Nairobi City Council. 8. PW1 further testified that he had remained the lawful owner of the suit property and had never sold, transferred or granted possession thereof to the Defendant or any other person. He stated that he later discovered that the Defendant had unlawfully entered the property and commenced construction of permanent structures thereon without his consent. According to the Plaintiff, despite issuing a demand requiring the Defendant to cease the construction works and vacate the property, the Defendant failed to do so, thereby prompting the institution of the present suit. Upon conclusion of the Plaintiff's testimony, he closed his case. Issues for determination 9. Having considered the pleadings and the evidence adduced by the Plaintiff, the Court finds that the sole issue that arises for determination is: Whether the Plaintiff has proved his case on a balance of probabilities so as to be entitled to the reliefs sought in the Plaint. Analysis and Determination 10. The Plaintiff's claim is predicated upon the assertion that he is the lawful owner of Plot No. 188 Umoja Inner Core Section V and that the Defendant unlawfully entered upon the suit property and commenced construction thereon. It therefore behoved the Plaintiff to establish the root of his claim to the suit property before the Court could determine whether the Defendant's occupation amounted to trespass. In this regard, the burden of proof rests upon the Plaintiff pursuant to Sections 107, 108 ELCC 365 OF 2008 4 J

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and 109 of the Evidence Act. 11. The Plaintiff testified that the suit property was originally allotted by the City Council of Nairobi to one Nicholas Muriuki. According to the Plaintiff, he thereafter purchased the suit property from the said Nicholas Muriuki in 1997 for a consideration of Kshs. 460,000. In support of that testimony, the Plaintiff produced the Letter of Allotment issued in favour of Nicholas Muriuki together with an affidavit sworn by the said Nicholas Muriuki confirming that he was the original allottee, that he complied with the conditions contained in the letter of allotment, and that he subsequently sold the suit property to the Plaintiff. The affidavit further confirms that upon completion of the transaction, the original allotment documents and payment receipts were handed over to the Plaintiff and that the necessary documents to facilitate the transfer were executed. 12. Beyond demonstrating how he acquired the suit property, the Plaintiff also tendered evidence relating to the alleged acts of trespass. He testified that he had never transferred the suit property nor granted the Defendant any authority to enter or occupy it. He stated that he later discovered that the Defendant had entered upon the land and commenced the construction of permanent structures thereon. To support that assertion, the Plaintiff produced photographs depicting the developments on the suit property together with a demand letter issued to the Defendant requiring him to cease the construction works and surrender vacant possession. The Plaintiff also produced the response to the demand letter exchanged before the institution of these proceedings. 13. It is now settled that a party asserting ownership of land must demonstrate the root of his title or interest. The Court of Appeal in Maina v Maina [2013] KECA 94 (KLR) held that where ownership is in issue, it ELCC 365 OF 2008 5 J

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is not sufficient for a party merely to wave documents of title; such a party must go beyond the instrument and demonstrate the legality of how the interest was acquired. Although that decision concerned registered title, the underlying principle equally applies to interests founded upon allotment and subsequent transfer. 14. Applying the foregoing principles to the evidence before the Court, it is evident that the Plaintiff did more than merely assert ownership of the suit property. He traced the root of his interest from the original allottee through the sale transaction and produced the Letter of Allotment, the affidavit of the original allottee confirming the sale, together with the accompanying documents evidencing the transfer of the allottee's interest. That evidence establishes a coherent and uninterrupted chain through which the Plaintiff derived his interest in the suit property. 15. In the absence of any evidence demonstrating that the Plaintiff's interest in the suit property was ever lawfully extinguished or that the Defendant acquired a superior interest thereto, I find that the Plaintiff has discharged the burden placed upon him under Sections 107, 108 and 109 of the Evidence Act. Consequently, I am satisfied that the Plaintiff has proved his case on a balance of probabilities and is entitled to the appropriate reliefs. Final Disposition 16. In the result, I find that the Plaintiff has proved his case on a balance of probabilities. Judgment is therefore entered in favour of the Plaintiff against the Defendant in the following terms: a) A permanent injunction be and is hereby issued restraining the Defendant, whether by himself, his agents, servants or employees, from interfering with the Plaintiff's quiet possession of Plot No. ELCC 365 OF 2008 6 J

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188 Umoja Inner Core Section V. b) A permanent injunction be and is hereby issued restraining the Defendant, whether by himself, his agents, servants or employees, from constructing upon, remaining on or in any manner whatsoever dealing with Plot No. 188 Umoja Inner Core Section V. c) An order is hereby issued directing the Defendant to vacate the suit property and deliver vacant possession thereof to the Plaintiff within ninety (90) days from the date hereof, failing which an eviction order shall issue. d) The Defendant shall demolish and remove all structures erected on the suit property within the said period, failing which the Plaintiff shall be at liberty to remove the same at the Defendant's cost. e) The prayer for general damages is declined. f) The Plaintiff shall have the costs of the suit together with interest thereon at court rates. It is so ordered. DATED, SIGNED and DELIVERED via e-mail at NAIROBI on this 16th day of July, 2026. MOHAMMED N. KULLOW JUDGE ELCC 365 OF 2008 7 J

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