Mwanzia & another v Moses

in particular, are dated after the alleged lease, thereby putting them in doubt. The search is not dated, and the referred payment slip has no nexus to the suit properties. 4. At the hearing, Kennedy Mutuku Mwanzia testied on his own behalf and that of the co-plainti, and relied on his witness statement dated 27/4/2021 as evidence in chief. He produced documents, which were accordingly marked as PEX 1 – 8.. 5. He stated that he and the co-plainti own the suit lands. The defendant trespassed in March 2020. They reported the trespass to the police, but the police ignored it and took no action. Despite his advocates writing demand letters to the defendant to vacate the suit lands, he has simply ignored them. 6. He stated that he obtained the lease certicates as well as receipts conrming clearances from the Embakasi Ranching Company Limited [company]. That they obtained the clearances after surrendering non-member certicates to the company. Upon making payments, they collected the titles from the company's oces. That he obtained ocial searches from the Land Registry conrming that they are the registered owners of the suit lands. 7. Jeremiah Ndurumo testied and reiterated the evidence adduced by PW1. They purchased one of the suit lands from one Mbulu Makau. With respect to the 2nd parcel they acquired it directly from the Company. However, they did not enter into any sale agreement, as the transfer of the certicate of shares from his name to theirs was completed at the Company’s oces. 8. DW1 – Mathew Moses Ongweno testied and relied on his witness statement dated 19/5/22 in evidence in chief. He produced documents marked as DEX NO 1-4 in support of his defence. 9. He stated that he is the legal owner of the suit land and produced copies of the leases and current searches in support of his defense. 10. It was his testimony that he acquired the suit land in 2016 from the company and thereafter constructed his residence. He paid all the requisite charges for the suit land. He is unaware that the plaintis reported him to the police station, and in any event, he has never been charged with any oence in respect of the suit lands. He has been in possession of the suit lands to date. 11. He stated that he has not produced the pink slip from the company which is addressed to the Land Registrar for the registration of the suit lands. The Written Submissions 12. The parties led their written submissions, which I have read and considered. Analysis And Determination 13. The key issue is who, between the Plaintis and the Defendant, owns the suit lands. In other words, have the Plaintis proved ownership of the suit lands, and, secondly, are they entitled to the orders of eviction and mesne prots? Who will meet the cost of the suit in any event? 14. It is not in dispute that the suit lands originate from Embakasi Ranching Company Limited. The Plaintis assert title to the suit lands. They aver that they purchased Plot Nos G184B [now Nairobi Block 136/16990] and V667 [now Nairobi/Block 136/16991] from Mbuli Makau and Embakasi Ranching Co Limited, respectively. Upon payment of the requisite fees, they were issued with titles to the same. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5407/eng@2026-09-07 2

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15. The Defendant has also asserted title to the suit lands. He claims to have purchased the suit lands from Embakasi Ranching Limited, made the requisite payments, and to have been issued titles. In addition, he took possession in 2016 and constructed his residence, which he continues to occupy to date. 16. It is trite that the burden of proof in a suit or proceeding lies with the person who would fail if no evidence at all were given on either side. The burden of proof as to any particular fact lies with the person who wishes the court to believe in its existence, unless any law provides that the proof of that fact shall lie with any particular person. 17. According to the provisions of Section 116 of the Evidence Act, the burden of proving that the suit land belongs to the Plaintis has been placed on the shoulders of the claimants. The adage that he who avers must prove applies. Section 116 states as follows; “ When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who arms that he is not the owner. 18. The burden therefore rests with the Plaintis to demonstrate that the suit lands do not belong to the Defendant. 19. In this case, it is undisputed that the parties claim the same parcels of land. Both the Plaintis and the Defendant assert ownership of the suit lands. The Plaintis' documentation of title is evidenced by the titles issued to them, whereas the Defendant holds leases registered in his name for the suit lands. 20. Where two parties claim the same parcel of land, as in this case, the court must look to the root of title to determine which of the two contestants has accounted for the validity of title without any break in the chain of documentation. This was the holding in the case of Mbuthi v Osman & another (ELC E004 of 2022) [2024] KEELC 387 (KLR) the court observed inter alia that:“ Proof of ownership of land is found in documentary evidence which lead to the root of title. There must be shown an unbroken chain of documents showing the true owner. Once proof of ownership is tendered then the holder of the documents is entitled to the protection of the law.” 21. Double titling in Kenya is illegal as each parcel must be identied by one title. In Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR, the Court of Appeal held: “ Where there are two competing titles, the court must investigate the root of each title and determine which one was lawfully acquired.” 22. Over time, judicial authorities in assessing cases concerning the ownership of titles originating from land buying companies have recognised generally consistent procedures employed by these entities in membership enrollment and land acquisition. This approach to land acquisition was common at independence in this nation, when large-scale farm proprietors emigrated to their countries of origin, and land was subsequently procured through land-buying companies for the purpose of settling Kenyans who collectively pooled their resources to acquire it. 23. These procedures encompassed the following: membership application; payment of shares to establish membership; issuance of a membership certicate or share certicate; conduct of a ballotting exercise for the land; payment of survey fees and other associated charges; issuance of a ballot card indicating the land and its boundaries; maintenance of a membership register, which includes details such as https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5407/eng@2026-09-07 3

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the member's name, ballot number, plot number, address, identication card, and other pertinent information; and the issuance of a clearance certicate by the company conrming land ownership details to the Land Registrar, thereby facilitating the issuance of a title. 24. Bearing that in mind, the court will now examine the documentary evidence adduced by the parties to determine which of the two parties has demonstrated the root and legality of their title. In relation to the Plaintis, evidence was led to show that they acquired the suit lands from Embakasi Ranching Co Limited and Mbuli Makau, respectively. 25. The Plaintis adduced a plot ownership certicate No. 035478 for plot No. V6667, veried by the Company on 12/9/2019. On the back of the certicate is an endorsement from the Company stating “NOT ALLOTTED” as at 12/7/2011. The import of this is that this parcel of land was available for allocation to the Plaintis by the Company. Other endorsements conrm that the site was conrmed for title issuance and that it was signed or veried on 12/11/2019 by the Company’s Vice Chair. The Plaintis' evidence was that they purchased this property from the Company, and the documents above conrm the root of the title. 26. The Plaintis further led evidence that Plot No. G184B, now Nairobi Block 136/16990, was purchased from Mbuli Makau. They adduced a share certicate number 005065 in the name of the said Mbuli Makau, dated 10/4/2013; a plot ownership certicate No. 005065 in the name of Makau, dated 7/5/2001, showing payment of survey and engineering fees; and, on the back of the said certicate, an endorsement by the company that the plot is Allocated, dated 1994. It is also endorsed with the following words; “ Transfer plot N0 G184B Map 3 Kamau to Kennedy Mutuku Mwanzia, ID No 2579185, and Jeremiah Ndurumo Nderitu, ID No 7564630” 27. Subsequently, the Plaintis were issued with a non-member certicate of plot ownership No. 027757, which was veried by the company's ocials on 13/2/2011. The Plaintis were then cleared to pay site visit fees. Further receipts were issued in 2019 for parcel 16691 as well for site visits. The Plaintis have produced pink copies dated 12/11/2019, both indicating the company's endorsement of the verications dated 29/10/2019. Equally, they adduced copies of payment of legal fees to the law rm of Ngata Kamau for title processing. 28. The plaintis adduced evidence of leases and titles issued on 29/3/2019. Manual searches dated 14/4/2026 conrm the Plaintis' ownership particulars. In the absence of any adverse evidence impeaching the Plaintis' titles, the court nds no ground to hold otherwise. 29. I shall now turn to the documents produced by the Defendant. As already stated, without adducing any evidence to support it, the Defendant's case is that he purchased the suit lands from Embakasi Ranching Limited in 2016 and constructed a house in which he resides to date. 30. The Defendant adduced a receipt from Embakasi Ranching dated 15 October 2020, showing a payment of Kshs 20,000 for plot No V13672 issued in his name. This plot is dierent from plot Nos G184B and V1667, which later became the suit lands. During cross-examination, the witness acknowledged that the plot numbers on the receipts do not match the plots or lands involved in the suit. He further declared that he possesses no documents conrming the company's land allocation, has not paid for the land, and does not hold a plot certicate of ownership. 31. The witness further adduced leases dated 10/7/2019, which lack ocial titles. A close scrutiny shows that both leases bear the same bar code No. 1582232. It is customary that, for security reasons, lease bar codes dier for each lease document. This evidence further calls into question the authenticity of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5407/eng@2026-09-07 4

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the leases. A search conducted on 3/3/26 reveals that the defendant has not yet been issued with a title deed despite holding a lease since 2019. 32. Section 2 of the Land Registration Act denes a lease or sublease, whether registered or unregistered, of land, as well as short-term leases or agreements to lease. A more comprehensive description is provided under the Land Act. Specically, a lease is dened as the grant, with or without consideration, by the proprietor of land of the right to exclusive possession of that land. This denition includes the rights conferred, the instrument granting these rights, and sub-leases; however, it excludes agreements for lease. 33. A lease is not the end of the title process. The lease clears the way for title preparation and issuance. The lease is therefore the foundational document for the issuance of title. It contains the covenants or conditions under which the title is held. In the case of Republic v. County Land Registrar Trans Nzoia County and another (Environment and Land Judicial Review case No. 1 of 2023), where the court observed inter alia that:“ …a lease document was not proof of ownership of a parcel of land but a Certicate of Lease [ title] issued against the lease” 34. In the case of the Defendant, it is clear that he holds no title to the land. This may be because a title had already been issued to the Plaintis for the same suit lands, thereby precluding any further issuance of titles to the Defendant. I say so because the lease issued to the Plaintis is dated 29/3/2019, whereas that of the Defendant is dated 10/7/2019. The court nds that the rst in time prevails in the circumstances. 35. Having failed to prove any evidence of acquisition of the suit lands, particularly the discrepancy between the plot he purported to purchase and the suit lands in the leases he purports to hold, the court nds that the defendant has failed to show the root of title and consequently nds that the Defendant holds no title interest in the suit lands. 36. This court is mandated under section 80 of the Land Registration Act to cancel the lease held by the Defendant on grounds of illegality, in respect of which the Defendant is certainly actively involved. For whatever it is worth, the same is hereby cancelled. 37. In the end, and on a balance of probabilities and the evidence adduced before the court, the court nds that the suit lands belong to the Plaintis. Eviction 38. The Plaintis assert that they are the registered proprietors of the subject land, and that the defendant illegally encroached upon the property without their authorization. Despite repeated demands for the defendant to vacate the premises, they have continued to trespass. The Plaintis further informed the court that they have reported the matter to Ruai Police Station; however, their eorts have been unsuccessful, as the defendant remains on the land. Conversely, the defendant denies the act of trespass. 39. Section 3 (1) of the Trespass Act, Cap 294 stipulates provides that: “ Any person who without reasonable 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 oence.” 40. Section 24 and 25 of the Land Registrations Act provides as follows; 24. Interest conferred by registration https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5407/eng@2026-09-07 5

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Subject to this Act—(a)the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and(b)the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. 25. Rights of a proprietor (1)The rights of a proprietor, whether acquired on rst registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—(a)to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and(b)to such liabilities, rights and interests as aect the same and are declared by Section 28 not to require noting on the register, unless the contrary is expressed in the register.(2)Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.” 41. It therefore follows that a land owner is entitled to protection as to quiet enjoyment of title unless any interference is permitted by law. 42. The defendant has adduced evidence to show a house constructed on the suit land in support of the Plaintis claim of trespass. He stated that he entered the land in 2016 and still resides therein to date. The court nds that in the absence of any consent and or any justiable reason to remain on the land, the defendant is a trespasser. 43. The Court of Appeal decision in the case of Kenya Power & Lightig Company Limited vs Fleetwood Enterprises Limited [2007] eKLR armed inter alia that where trespass is proven the aected party need not prove that it suered damages or loss as a result of the trespass so as to be awarded damages because once the trespass is proved, the court is bound to assess and award damages on a case to case basis. 44. Additionally, I adopt the decision in the case of Duncan Nderitu Ndegwa vs KP& LC Limited & Another (2013) eKLR for the holding, inter alia, that once a trespass to land is established, it is actionable per se and indeed no proof of damage is necessary for the court to award damages. 45. In the circumstances of this case, the court nds that the Plainti is entitled to general damages for trespass. Considering the number of years of trespass since 2019, the court nds the sum of Kshs 500,000/= [Kenya Shillings Five Hundred Thousand only] adequate damages for the trespass. Mesne Prots 46. Section 2 of the Civil Procedure Act denes mesne prots as “ "mesne prots", in relation to property, means those prots which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such prots, but does not include prots due to improvements made by the person in wrongful possession” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5407/eng@2026-09-07 6

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47. The Plaintis have sought an order of mesne prots for trespass. Section 2 of the Civil Procedure Act Cap 21 of the Laws of Kenya denes mesne prots as follows:“ mesne prots”, in relation to property, means those prots which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such prots, but does not include prots due to improvements made by the person in wrongful possession; 47. The Court of Appeal in the case of Attorney General v Halal Meat Products Limited [2016] eKLR considered when mesne prots could be awarded. The court stated as follows:“ It follows therefore that where a person is wrongfully deprived of his property he/she is entitled to damages known as mesne prots for loss suered as a result of the wrongful period of occupation of his/her property by another” 48. Order 21 Rule 13 of the Civil Procedure Rules Provides as follows; “ Where a suit is for the recovery of possession of immovable property and for rent or mesne prots, the court may pass a decree—(a)for the possession of the property;(b)for the rent or mesne prots which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne prots;(c)directing an inquiry as to rent or mesne prots from the institution of such suit until—(i)the delivery of possession to the decree-holder;(ii)the relinquishment of possession by the judgment- debtor with notice to the decree-holder through the court; or(iii)the expiration of three years from the date of the decree, whichever event rst occurs.(2)Where an inquiry is directed under subrule (1)(b) or (1)(c), a nal decree in respect of the rent and mesne prots shall be passed in accordance with the result of such inquiry. 49. With respect to mesne prots, it is trite that mesne prots are treated in the same way as special damages and must be pleaded and proved. The appellant failed to lead evidence in support of this claim, and the court nds that, being unsupported, it fails. 50. In the end the court enters judgment in favour of the Plaintis as follows; 51. a. A declaration that the suit lands belong to the Plaintis. b. The leases in the name of the Defendant are illegal, and the Land Registrar be and is hereby mandated to cancel them from the land register [if any]. c. It is hereby declared that the Defendant has trespassed onto the lands of the Plaintis without their consent. He is ordered to vacate the suit land within the next 90 days; in default, eviction shall ensue. d. General damages in favour of the Plaintis of Kshs 500,000/= [Kenya Shillings Five Hundred Thousand only] be and are hereby allowed e. That the OCS Ruai Police Station do oversee the execution of orders of this court. f. The prayer for mesne prots is disallowed g. Costs of suit shall be in favour of the Plaintis. Orders accordingly https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5407/eng@2026-09-07 7

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DELIVERED, DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS. J. G. KEMEI JUDGE Delivered virtually in the presence of: Ms. Wanjiru for the Plaintis Ms. Kageha for the Defendant CA- Mr Amos https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5407/eng@2026-09-07 8

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