Sadera v Nabaala & another (Environment and Land Case E028 of 2025) [2026] KEELC 5235 (KLR)

4. It is the Plaintiff’s case that during the period of their occupation, the Defendants cultivated the suit property, grazed livestock thereon, leased portions of the land to third parties and denied him access to and enjoyment of his property, thereby depriving him of its use and economic benefit. 5. The Plaintiff particularized his loss to include; the Defendants’ alleged unlawful occupation of the suit Property without his consent; the leasing of the suit property to third parties and receipt of rental income amounting to Kshs. 7,672,800; the alleged realization of profits from cultivation amounting to Kshs. 74,520,000/=; and the loss of use and enjoyment of the suit property, thereby depriving him of the opportunity to utilize the land and realize its full economic potential. 6. Consequently, the Plaintiff prayed for judgment against the Defendants jointly and severally for: a. Special damages of Kshs. 7,672,800/= for rent collected by the Defendants from NAROK/OLOCHORO OIROWUA/10. b. Mesne profits at a rate of Kshs. 2,760,000/= per annum from the year 1990 till the year 2017 amounting to Kshs. 74,520,000/=. c. General damages. d. Costs and interest of the suit to be awarded to the Plaintiff. NAROK ELC NO. E028 OF 2024 JUDGMENT Page 2 of 23

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7. In response to the Plaint, the Defendants filed their joint Statement of Defence dated 7th March 2025, and denied that the Plaintiff became the registered proprietor of the suit property in 1977, contending that the title deed was issued on 3rd May 1989 as reflected on the title document. 8. They further denied any knowledge of the Plaintiff’s alleged leasing of the suit property to third parties, maintaining that they were not privy to any such arrangements. 9. The Defendants denied that they unlawfully entered or took possession of the suit property in 1990; and that at the material time, the 1st Defendant was approximately 16 years old while the 2nd Defendant was about 5 years old and, as such, they were incapable of invading or taking possession of the Plaintiff’s land. 10.The Defendants averred that they are the biological children of the late MOSES KASAINE OLE NABAALA, the registered proprietor of Land Parcel No. CISMARA/OLCHORO- OIROWUA/9, and that they resided with their parents on the said parcel of land and not on the Plaintiff’s property. 11.The Defendants further denied ever encroaching upon, occupying, cultivating, leasing or otherwise taking possession of the Plaintiff’s land and denied the Plaintiff’s claim for mesne profits and the alleged losses pleaded. They also denied having been served with a demand or notice of intention to sue. NAROK ELC NO. E028 OF 2024 JUDGMENT Page 3 of 23

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12. The Defendants further pleaded that contrary to the Plaintiff’s averment, there had been previous proceedings between the parties, namely Narok Chief Magistrate’s Court MELC No. 110 of 2018, concerning Land Parcel No. CISMARA/OLCHORO-OIROWUA/10. 13. Consequently, the Defendants prayed that the Plaintiff’s suit be dismissed with costs. 14. The Plaintiff filed a Reply to the Defendants’ Statement of Defence dated 25th June 2025, wherein he joined issue with the Defendants and reiterated the averments contained in the Plaint and maintained that he is the lawful proprietor of the suit property. 15. The Plaintiff further maintained that it was the Defendants’ deceased father who had initially interfered with his quiet possession of the suit property and contended that the Defendants subsequently ignored the boundary separating the two parcels of land, NAROK/OLOCHORO encroached OIROWUA/10, onto Land occupied Parcel and No. leased portions thereof to third parties. 16. With regard to the Defendants’ assertion that there had been previous proceedings between the parties, the Plaintiff averred that it was the Defendants who had instituted Narok Chief Magistrate’s Court MCELC No. 110 of 2018, alleging that he had encroached onto their land, but that the court determined the dispute in his favour. NAROK ELC NO. E028 OF 2024 JUDGMENT Page 4 of 23

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17. The Plaintiff further contended that the Defence consisted of mere denials, lacked specificity, failed to raise any triable issues and was therefore a sham and an abuse of the court process. Consequently, he prayed for judgment in terms of the Plaint. 18. After pre-trial conference, the matter proceeded for hearing via viva voce, evidence. The Plaintiff gave evidence for himself, and called no witness. The Defendants gave evidence through the 1st Defendant, and did not call any other witness. PLAINTIFF’S CASE 19. PW1: James Enina Sadera, adopted his witness statement dated 16th September 2024, as part of his evidence; produced his list of documents dated 16th September 2024, as Plaintiff’s Exhibits 1 – 3 and his supplementary list of documents as Plaintiff’s Exhibits 4 – 8. 20. PW1 testified that he was the registered proprietor of Land Parcel No. NAROK/OLOCHORO OIROWUA/10, having been registered as its owner in 1977; and that upon registration, he took possession of the suit property, developed it into a habitable state and utilized it for cultivation and grazing livestock. 21. He further testified that the suit property was productive and yielded between 10 and 20 bags per acre, translating to between 1,840 and 3,680 bags annually. According to him, each bag sold at approximately Kshs. 1,500/=, enabling him NAROK ELC NO. E028 OF 2024 JUDGMENT Page 5 of 23

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to earn between Kshs. 2,760,000/= and Kshs. 5,520,000/=, annually depending on the prevailing climatic conditions. He further testified that during the off-season, he utilized the land for grazing his cattle. 22. It was his evidence that although there had been boundary disputes over the years, the Defendants unlawfully entered unto the suit property in 1990, interfered with his possession, occupied a portion of the land, cultivated it and leased it to third parties for their own benefit. 23. He further testified that besides cultivating the land, the Defendants collected rent from third parties and also utilized the land for grazing cattle. He urged the Court to grant him justice on the ground that the Defendants had unlawfully deprived him and his family of the use and benefit of his land while enriching themselves from its proceeds. 24. Upon cross examination, PW1 stated that he used the land peacefully from 1977 until 1990, when the late MOSES KASAINE NABAALA complained about the common boundary of their lands; that they were directed to the Land Registry; and that in 1987, the common boundary was confirmed to be a Ravine. 25. He confirmed that the title deed is dated 3rd May 1989; and that the land has since changed to CIS-MARA/OLCHOROOIROUWA/275. DEFENDANTS’ CASE NAROK ELC NO. E028 OF 2024 JUDGMENT Page 6 of 23

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26. DW1: Charles Ronte Nabaala, adopted his witness statement dated 7th March 2025, as part of his evidence, and further testified that the 2nd Defendant and himself are the biological children of the late MOSES KASAINE OLE NABAALA, who was the registered proprietor of Land Parcel No. CISMARA/OLCHORO-OIROWUA/9; and that they grew up and have always resided on the said parcel of land together with their parents and not on the Plaintiff’s parcel of land. 27. DW1 denied ever trespassing onto, occupying, cultivating, leasing, or encroaching NAROK/OLOCHORO upon Land OIROWUA/10. He Parcel No. maintained that neither he nor the 2nd Defendant had ever dispossessed the Plaintiff of the suit property or deprived him of its use and enjoyment. 28. It was DW1’s further testimony that the Plaintiff had not tendered any evidence to demonstrate that the Defendants had occupied the suit property or leased it to third parties. He maintained that all the Defendants’ activities have at all material times been confined CISMARA/OLCHORO-OIROWUA/9, to Land which they Parcel No. occupy as successors to their late father. 29. Upon cross examination, DW1 testified that he was born on 27th November 1972, while the 2nd Defendant was born on 27th February 1985, to which he produced birth certificates in court as DExhibits 2(a) and 2(b). NAROK ELC NO. E028 OF 2024 JUDGMENT Page 7 of 23

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30. After the close of the viva voce evidence, parties were directed to file and exchange written submissions, which directions they complied with. Consequently, The Plaintiff filed his written submissions dated 30th April 2026, through Michire & Associates Advocates, and identified the following issues for determination: i. Whether the Plaintiff is the registered proprietor of Land Parcel No. NAROK/OLOCHORO OIROWUA/10. ii. Whether the Defendants unlawfully occupied and leased the Plaintiff's land. iii. Whether the Plaintiff is entitled to mesne profits. iv. Whether the Plaintiff is entitled to general damages. 31. The Defendants filed their submissions dated 3 rd July 2026, through Kamwaro & Co Advocates, and identified two issues for determination being; i) Whether the Plaintiff is entitled to the prayers sought; ii) Who should bear the costs of this suit. 32. On the first issue, the Plaintiff submitted that he had proved his ownership of the suit property by producing a Title Deed dated 3rd May 1989, confirming his registration as the proprietor of Land Parcel No. NAROK/OLOCHORO OIROWUA/10. He relied on Sections 24 and 25 of the Land Registration Act, 2012, NAROK ELC NO. E028 OF 2024 JUDGMENT Page 8 of 23

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submitting that registration vests in a proprietor absolute ownership together with all rights and privileges appurtenant thereto, and protects such title from unlawful interference. 33. He further submitted that the Defendants had unlawfully encroached upon the suit property, ignored the boundary demarcation, leased portions of the land to third parties and cultivated the same for their own benefit. The Plaintiff also relied on the judgment in Narok Chief Magistrate’s Court MCELC No. 110 of 2018, and contended that the court therein found in his favour, thereby affirming both his ownership and occupation of the suit property. 34. Reliance was placed on Ernest Wesonga Kweyu vs Kweyu Omuto [1990] KLR 709, where the Court of Appeal affirmed the indefeasibility of a registered proprietor’s title. 35. On whether the Defendants unlawfully occupied the suit property, the Plaintiff submitted that the evidence on record established that the Defendants remained in occupation of the suit property between 1990 and 2017, during which period they cultivated the land, leased it to third parties and collected rent therefrom. He argued that such occupation amounted to trespass and unlawful deprivation of property contrary to Article 40 of the Constitution, which guarantees every person’s right to acquire and own property and protects against arbitrary deprivation of property. NAROK ELC NO. E028 OF 2024 JUDGMENT Page 9 of 23

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36. On the claim for mesne profits, the Plaintiff submitted that he had proved both the period of unlawful occupation and the income-generating capacity of the suit property. He relied on the definition of mesne profits under Section 2 of the Civil Procedure Act, submitting that he had demonstrated that the land produced between 1,840 and 3,680 bags annually, earning a minimum income of Kshs. 2,760,000/=, per year, and that over a period of 27 years, the mesne profits amounted to Kshs. 74,520,000/=. 37. He argued that the Defendants had unjustly enriched themselves through cultivation, grazing and leasing the suit property while he was deprived of its use and income. In support of this submission, he relied on Attorney General v Halal Meat Products Ltd [2016] eKLR, Mistry Valji v Janendra Raichand & 2 Others [2016] eKLR, Rajput v Barclays Bank of Kenya Ltd [2002] 1 EA 296, and Shell (Kenya) Ltd v Kobil Petroleum Ltd [2006] eKLR, which he submitted recognize that mesne profits are recoverable where unlawful occupation has been established and must be assessed based on the proven income or value derived from the land. 38. On the claim for General damages, the Plaintiff submitted that as a result of the Defendants’ unlawful occupation, he suffered embarrassment, ridicule, trauma, social stigma and loss of livelihood, all arising from the violation of his constitutional right to property under Article 40 of the Constitution. He relied NAROK ELC NO. E028 OF 2024 JUDGMENT Page 10 of 23

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on Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & Another [2016] eKLR and Gitobu Imanyara & 2 Others proposition v Attorney that General general [2016] damages are eKLR, for the awardable for inconvenience, suffering and violation of constitutional rights. 39. In conclusion, the Plaintiff submitted that he had discharged the burden of proof by producing documentary evidence of his ownership, the Defendants’ unlawful occupation and the income generated from the suit property. He argued that he had proved his claim for special damages of Kshs. 7,672,800/=, mesne profits of Kshs. 74,520,000/=, and General damages. 40. He further relied on Kenya Hotel Properties Ltd v Willesden Investments Ltd [2009] eKLR for the proposition that mesne profits must be based on evidence of income or rental value and are not speculative. He urged the Court to enter judgment in his favour as prayed in the Plaint dated 16th September 2024. 41. On their part, the Defendants submitted as follows; it is trite that he who alleges must proof, and the standard of proof is on the balance of probabilities. Reliance was sought in the case of Palace Investment ltd vs Geoffrey Kariuki Mwenda & Another ( 2015) eKLR. 42. On evidential burden, reliance was sought in these cases; Mbuthia Macharia vs Annah Mutua & Another ( 2017) eklr; Gichinga Kibutha vs Caroline Nduku ( 2018) eklr NAROK ELC NO. E028 OF 2024 JUDGMENT Page 11 of 23

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and Raila Amolo Odinga & Another vs IEBC & 2 OTHERS ( 2017) KESC 42 (KLR). 43. It was the Defebdants submissions that though the Plaintiff has sought for special damages alleging that the Defendants took possession of his land, and leased it to third parties, no lease agreements were produced , and thus the said allegation was not proved, Reliance was sought in the case of Capital Fish Kenya Ltd vs Kenya Power & Lighting Co Ltd ( 2016) eKLR, where the court held that special damages must not only be specifically pleaded , but they must be strictly proved. 44. On mesne profit, the Defendants submitted that they are like special damages, which are payable by the person who is in wrongful occupation of ones parcel of land. It was the Defendants submissions, that in this case the Plaintiffs just threw figures of ksh 74, 520, 000/=at the court, and they did not lay the basis of this amount. Reliance was sought in the case of Attorney General Vs Halal Meat Products Ltd (2016) eKLR, where the Court of Appeal held that mesne profits are profits accrued during the time rightful owner was excluded from his land. 45. Further reliance was sought in the cases of Peter Mwangi Mbuthia vs Samow Edin Osman (2014) eKLR; Gathungu & 2 others vs Karanja (2022) KEELC 155560(KLR), and submitted that there was no basis upon which mesne profits can be granted to the Defendants. NAROK ELC NO. E028 OF 2024 JUDGMENT Page 12 of 23

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46. On trespass, the Defendants relies on section 3(1) of Trespass Act, Cap 294, and on the case of Hellen Wangari Wangeshi vs Carumera Muthini Gathua (2005) eKLR, an submitted that the Plaintiff did not discharge the burden of proof for trespass, as the boundary between the two parcels of land were not ascertained, and no evidence of encroachment was adduced. 47. Further reliance was sought in the case of Antony Francis Wareham t/a AF Wareham & 2 others vs Kenya Post Office Savings Bank (2004) eKLR, and submitted that there was no conclusive of professional evidence to substantiate the allegations of trespass. 48. On the issue of costs, the Defendants relied on Black Law Dictionary definition of costs, which means expenses of litigation, prosecution or other legal transactions especially those allowed in favor of one party against the other. They also relied on section 27 of the Civil Procedure Act, and urged the court to award them costs. 49. The Court has carefully considered the pleadings filed by the parties, the oral and documentary evidence tendered at the trial, the written submissions together with the cited authorities in support thereof. The court has also considered the applicable constitutional and statutory provisions governing the dispute. It is settled that parties are bound by their pleadings and that a court’s determination must be confined to the issues arising NAROK ELC NO. E028 OF 2024 JUDGMENT Page 13 of 23

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therefrom. Equally, he who alleges bears the burden of proving his case on a balance of probabilities in accordance with Sections 107, 108 and 109 of the Evidence Act, Cap. 80 Laws of Kenya. 50. From the pleadings, the evidence adduced and the rival submissions, it is common ground that the Plaintiff is the registered proprietor of the suit property known as Land Parcel No. NAROK/OLOCHORO OIROWUA/10, CIS-MARA/OLCHORO-OIROUWA/275, and that now there previously existed a boundary dispute between the Plaintiff and the Defendants’ late father. The parties are, however, sharply divided on whether the Defendants unlawfully entered, occupied, cultivated and leased the suit property between 1990 and 2017, thereby depriving the Plaintiff of the use and enjoyment of his land and rendering themselves liable for special damages, mesne profits and general damages. 51. It is the court’s considered view, the following issues arise for determination: i. Whether the Plaintiff proved that the Defendants unlawfully entered, trespassed upon occupied Land or otherwise Parcel No. NAROK/OLOCHORO OIROWUA/10. ii. Whether the Plaintiff has proved his claim for special damages and mesne profits. iii. Whether the Plaintiff is entitled to an award of general damages. NAROK ELC NO. E028 OF 2024 JUDGMENT Page 14 of 23

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iv. Who should bear the costs of the suit. 52. The Plaintiff’s case is that he is the registered proprietor of Land Parcel No. NAROK/OLOCHORO OIROWUA/10, having acquired title thereto in 1977, although the title deed was issued on 3rd May 1989. He contends that he remained in peaceful occupation of the suit property until the year 1990, when the Defendants unlawfully entered unto the land, dispossessed him, cultivated the land, grazed livestock thereon, leased portions thereof to third parties and remained in occupation until the year 2017. 53. On the other hand, the Defendants categorically denied ever trespassing upon or occupying the suit property. Their evidence was that they are the biological children of the late Moses Kasaine Ole Nabaala, the registered proprietor of Land Parcel No. CISMARA/OLCHORO-OIROWUA/9, where they have always resided. They maintained that they neither cultivated nor leased the Plaintiff's parcel of land and denied depriving the Plaintiff of possession or enjoyment thereof. 54. From the evidence on record, there is no dispute that the Plaintiff is the registered proprietor of the suit property. Indeed, the Defendants did not challenge the Plaintiff’s title. Their only contention was that the title deed was issued on 3rd May 1989, and not in 1977, as pleaded. However, that discrepancy does not affect the Plaintiff’s proprietary rights over the suit property. By virtue of Sections 24 and 25 of the Land Registration NAROK ELC NO. E028 OF 2024 JUDGMENT Page 15 of 23

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Act, registration confers upon a proprietor absolute ownership of land together with all rights and privileges appurtenant thereto, unless the title is challenged on the grounds set out under Section 26 of the Act. 55. The law on the sanctity and indefeasibility of title is now settled. In Joseph N.K. Arap Ng’ok v Justice Moijo Ole Keiwua & 4 Others [1997] eKLR, the Court of Appeal held that title to landed property can only be acquired through the process prescribed by law and that once issued, such title is protected by statute. Similarly, in Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna & Another [2013] eKLR, the Court held that a certificate of title is prima facie evidence of ownership and can only be impeached on the grounds stipulated under Section 26(1) of the Land Registration Act. 56. However, proof of ownership alone does not automatically establish trespass or unlawful occupation by the Defendants. The burden remained upon the Plaintiff to prove, on a balance of probabilities, that it was these Defendants who entered the suit property, occupied it, cultivated it, leased it to third parties and derived the income now claimed. Sections 107, 108 and 109 of the Evidence Act place that burden squarely upon the Plaintiff. 57. Although the Plaintiff testified that the Defendants entered the suit property in 1990, and remained thereon until 2017, his evidence reveals that the dispute initially arose with the Defendants’ late father, Moses Kasaine Ole Nabaala, over NAROK ELC NO. E028 OF 2024 JUDGMENT Page 16 of 23

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the common boundary between the two parcels of land. Indeed, during cross-examination, the Plaintiff stated that it was the late Moses Kasaine Ole Nabaala who complained about the common boundary and that the parties were referred to the Land Registry where, in 1987, the boundary was confirmed to be a ravine. This evidence is consistent with the Defendants’ case that any historical boundary dispute involved their late father and not themselves. 58. The Court also takes judicial notice of the ages of the Defendants at the time the alleged trespass commenced. The Plaintiff alleged that the unlawful occupation began in 1990. Yet the evidence of DW1, supported by birth certificates produced in evidence, was that the 1st Defendant was born on 27th November 1972, while the 2nd Defendant was born on 27th February 1985. Consequently, the 1st Defendant was about 17 years old, while the 2nd Defendant was approximately 5 years old in 1990. The Plaintiff did not lead any evidence demonstrating that these Defendants, as opposed to their late father, were the persons who took possession of the suit property at that time. 59. More importantly, apart from his own testimony, the Plaintiff did not call any independent witness nor produce documentary evidence linking the Defendants to the alleged occupation, cultivation or leasing of the suit property. There was no lease agreement, rent records, photographs, valuation report, survey evidence, witness testimony from alleged tenants, or any other NAROK ELC NO. E028 OF 2024 JUDGMENT Page 17 of 23

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documentary evidence showing that the Defendants personally occupied or exploited the suit property during the period claimed. 60. The Plaintiff placed considerable reliance on Narok Chief Magistrate’s Court MCELC No. 110 of 2018, as proof that the Defendants had unlawfully occupied the suit property. However, from the evidence placed before this Court, that judgment merely demonstrates that there had been previous litigation between the parties concerning the adjoining parcels of land. It does not, without more, establish that these Defendants occupied the suit property continuously between 1990 and 2017, or that they collected rent or derived the profits now claimed. The previous judgment cannot substitute the evidential burden resting upon the Plaintiff in the present proceedings. 61. Having carefully evaluated the entire evidence, this court finds and holds that whereas the Plaintiff successfully established his ownership of the suit property, he did not prove, on a balance of probabilities, that the Defendants personally trespassed upon, occupied, cultivated or leased the suit property between 1990 and 2017. 62. The evidence instead points to a historical boundary dispute involving the Defendants’ late father, but falls short of demonstrating that liability for the alleged occupation can be NAROK ELC NO. E028 OF 2024 JUDGMENT Page 18 of 23

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attributed to these Defendants. Accordingly, the first issue is answered in the negative. 63. The Plaintiff seeks special damages of Kshs. 7,672,800/= being alleged rent collected by the Defendants from the suit property and mesne profits of Kshs. 74,520,000/=, calculated at the rate of Kshs. 2,760,000/=, per annum for the period between 1990 and 2017. The plaintiff contends that the Defendants cultivated the suit property, leased it to third parties and unjustly enriched themselves while depriving him of the use and enjoyment of his land. 64. The Defendants denied collecting any rent, cultivating the Plaintiff's land or deriving any income therefrom. They maintained that they have at all material times occupied Land Parcel No. CISMARA/OLCHORO-OIROWUA/9, and denied liability for the sums claimed. 65. The law is settled that special damages must not only be specifically pleaded, but must also be strictly proved. Likewise, mesne profits, being a species of special damages, must be specifically pleaded and proved by credible evidence. In Attorney General v Halal Meat Products Limited [2016] eKLR, the Court of Appeal held that mesne profits are awarded to compensate a proprietor who has been unlawfully deprived of possession of land and must be proved by evidence. Similarly, in Kenya Hotel Properties Limited v Willesden Investments Limited [2009] eKLR, the Court NAROK ELC NO. E028 OF 2024 JUDGMENT Page 19 of 23

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emphasized that mesne profits are not speculative but must be based on evidence of the income or rental value of the property. 66. The starting point in a claim for mesne profits is proof of wrongful occupation by the person against whom the claim is made. Without establishing unlawful possession or trespass, a claim for mesne profits cannot stand. This is because mesne profits are compensation for the loss occasioned by a defendant’s wrongful possession of another person’s land. 67. Although the Plaintiff testified that the suit property yielded between 1,840 and 3,680 bags annually and that each bag sold for approximately Kshs. 1,500/= thereby generating a minimum annual income of Kshs. 2,760,000/= no documentary evidence was produced to substantiate those figures. The Plaintiff did not produce farm records, sales receipts, delivery notes, accounts, valuation reports, expert agricultural assessments or any independent evidence demonstrating the acreage under cultivation, the actual yield of the land or the prevailing market prices during the period in question. 68. Equally, the Plaintiff did not produce any evidence to establish that the Defendants leased the suit property to third parties or collected rental income amounting to Kshs. 7,672,800/= as pleaded. No lease agreements, tenancy records, rent schedules, receipts, acknowledgements of payment or testimony from any NAROK ELC NO. E028 OF 2024 JUDGMENT Page 20 of 23

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alleged tenants were tendered before the Court. The claim therefore remained a bare assertion unsupported by evidence. 69. More fundamentally, this Court has already found that the Plaintiff failed to establish, on a balance of probabilities, that the Defendants unlawfully occupied the suit property between 1990 and 2017. In the absence of proof of wrongful occupation by the Defendants, the foundation upon which the claims for special damages and mesne profits rest collapses. 70. Consequently, after careful consideration of the available evidence, the court finds and holds that the Plaintiff has failed to strictly prove his claim for special damages of Kshs. 7,672,800/= and mesne profits of Kshs. 74,520,000/=. The said claims therefore fail. 71. The Plaintiff also seeks an award of General damages for the alleged unlawful occupation of the suit property. He submitted that the Defendants’ actions deprived him of the use and enjoyment of his land, occasioned him embarrassment, trauma, ridicule, social stigma and loss of livelihood, thereby violating his constitutional right to property under Article 40 of the Constitution. 72. The law is settled that an award of General damages is intended to compensate a party for loss or injury suffered as a result of a wrongful act. Such an award is, however, dependent upon proof of the wrongful conduct complained of. Where NAROK ELC NO. E028 OF 2024 JUDGMENT Page 21 of 23

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liability is not established, the basis for awarding general damages does not arise. 73. The Court herein has found and held that the Plaintiff has failed to prove, on a balance of probabilities, that the Defendants unlawfully entered, occupied or trespassed upon the suit property between 1990 and 2017. Consequently, the alleged deprivation of the Plaintiff’s use and enjoyment of the suit property has not been shown to have been occasioned by the Defendants herein. 74. Further, although the Plaintiff pleaded that he suffered embarrassment, trauma, ridicule, social stigma and loss of livelihood, no independent evidence was tendered to demonstrate the nature or extent of the alleged injury. More importantly, such claims cannot succeed in the absence of proof that the Defendants committed the wrongful acts complained of. 75. In the circumstances, the court also finds and holds that the Plaintiff has failed to establish any legal basis upon which an award of General damages can be made against the Defendants. 76. On the issue of costs, it is trite that costs ordinarily follow the event pursuant to Section 27 of the Civil Procedure Act. The Plaintiff having failed to prove his case against the Defendants on the required standard of balance of probabilities, there is no reason for this Court to depart from the general rule. NAROK ELC NO. E028 OF 2024 JUDGMENT Page 22 of 23

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77. Consequently, in the final analysis this court finds and holds that the Plaintiff has failed to prove his case on the required standard of balance of probabilities, and for the said reasons, his suit is found to be devoid of merit and is hereby dismissed in its entirety with costs to the Defendants. It is so ordered. Dated, Signed and Delivered Virtually this 6 th Day of August 2026. L. GACHERU JUDGE 06/08/2026 Delivered online in the presence of: Boniface Maluki – Court Assistant Ms Rotiken holding brief for the Plaintiff. Mr. Kamwaro for the Defendants. L. GACHERU JUDGE 06/08/2026 NAROK ELC NO. E028 OF 2024 JUDGMENT Page 23 of 23

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