Longspur Development Limited v Syokimau Farm Limited & 2 others

I.R. No. 44824 L.R. No. 12715/362 (suit land), was transferred by the 1st defendant to Ngure and Mungai on 13 March 1990, who then transferred it to the plaintiff. 2. The plaintiff claimed to have remained in possession of the land, subdivided it into 36 parcels, and asserted that it had always been vacant. However, on 6 December 2021, the 2 nd and 3rd defendants allegedly trespassed on the land, claiming ownership and beginning construction. Despite reporting the matter to the police and issuing demands to cease, the defendants have continued to occupy and work on the property. The plaintiff contended that these actions amounted to trespass and violated its rights as the registered owner. It also particularised fraud and prayed for the following orders: a. A declaration that the plaintiff is the rightful and legitimate owner of IR No. 44824/1, being L.R. No. 12715/362, and the resultant subdivisions IR numbers 237980 to 238015. b. A declaration that the 3rd defendant's purported title to the land is tainted with fraud and is therefore invalid. c. A declaration that the defendants have, jointly and severally, trespassed onto the plaintiff's property. d. A permanent defendants, ELCC E102 OF 2021 JUDGMENT injunction whether by to restrain the themselves or 2

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through their agents or employees, from entering into, taking possession of, selling, leasing, subdividing, offering as security, or otherwise dealing with or attempting to disposes the plaintiff of all that parcel of land known and registered as IR No. 44824/1 being L.R. No. 12715/362. e. An order through that the themselves, defendants, agents, whether servants or employees, give vacant possession of IR No. 44824/1, being L.R. No. 12715/362, within such time as the court may direct. f. In default of compliance with (d) above, the defendant's structures erected on IR No. 44824/1, being L.R. No. 12715/362 by the defendants or by their agents, servants or employees be demolished at the cost and expense of the defendants and thereby give the plaintiff unhindered ingress and egress to and from IR No. 44824/1, being L.R. No. 12715/362. g. General damages for trespass. h. Costs of the suit. i. Interest on (g) and (h) above at court rates. j. Any other/further relief that this honourable court may deem fit to grant. ELCC E102 OF 2021 JUDGMENT 3

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3. Upon service, the defendants filed a joint statement of defence dated 1 March 2022, which mainly consisted of denials and challenged the plaintiff to provide strict proof of its averments. It also stated that the original parcel, L.R. No. 7149/11/R (mother parcel), belonged to the 1st defendant. The suit land, registered in the 3rd defendant’s name, was a subdivision of this parcel. The 3rd defendant claimed to have bought the suit land as a share from Daudi Mutisya Muisyo (Daudi), who was a member and shareholder of the 1st defendant. 4. It was averred that Daudi held a share certificate no. 607 and an allotment letter for plot no. 577, which was later registered as the suit land. It was alleged that when the purchase took place, Daudi gave the 3rd defendant the original share certificate, allotment letter, and share subscription receipts. The 3rd defendant stated he was in actual possession and occupation of the suit land and was not a trespasser. It was argued that the plaintiff’s title documents were forgeries obtained fraudulently and that there were irregularities in some of the documents supporting the plaintiff’s case. The defendants urged the court to dismiss the plaintiff’s case, award costs and interest, and grant any other relief the court finds appropriate. ELCC E102 OF 2021 JUDGMENT 4

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5. Accordingly, having considered the pleadings, the plaintiff’s evidence presented during the hearing on the merits and issues as outlined in the plaintiff’s written submissions filed by its law firm on record, Ms. Muriu, Mungai & Co. Advocates, dated 24 October 2025, it is the considered view of this court that the issues that arise for determination are: a. Whether Syokimau Farm Limited was wound up as at the time of filing the suit. b. Whether the plaintiff is the owner of the suit land and its resultant subdivisions? c. Whether the plaintiff proved the defendants were trespassers. 6. Imperatively, it is trite that where a party fails to call evidence in support of its case, that mere statements of fact, as party’s such pleadings pleadings are are not substantiated by evidence. In this case, despite the filing of a defence, witness statements, and a list and bundle of documents, the defendants did not testify, and their cases were subsequently closed. Accordingly, and in agreement with the submissions of the plaintiff, the defendants' pleadings remain mere statements of facts. Further, notwithstanding the plaintiff's pleading of fraud and particularising it against the defendants, it did not lead to evidence on this. Accordingly, this court will now summarise the plaintiff’s evidence on the identified issues. ELCC E102 OF 2021 JUDGMENT 5

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7. The case proceeded to a hearing on 30 September 2025, at which William Ngure Mungai (PW1), a director of the plaintiff, gave evidence comprising a witness statement, oral testimony, and produced documents. 8. PW1 informed the court that Kiletu, a shareholder of the 1st defendant, was issued with a share certificate on 3 November 1980 and allotted plot number 579 on 10 June 1983, as evidenced by the share certificate and allotment letter (Pex. 3 & 4). He contended that Kiletu then sold the shares and the consequential suit land to Ngure and Margaret, his parents, as evidenced by the agreement for the sale of shares dated 2 March 1985, the payments made to Kiletu, and the transfer of shares (Pex. 5, 6, 7 & 8). 9. Subsequently, plot no. 579 was registered in the 1st defendant's name, as shown by the title document for the suit land (Pex. 9), which was transferred to Ngure and Margaret on 13 March 1990 as joint tenants. After the original title document was misplaced [notably, it was later recovered], Ngure and Margaret applied for a provisional title, which was gazetted, as shown by the provisional certificate of title for the suit land (Pex. 11) and the gazette notice (Pex. 10). Ngure and Margaret then transferred the suit land to the plaintiff, in which they are directors, as per the entries in the title ELCC E102 OF 2021 JUDGMENT 6

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document and the CR12 of the plaintiff (Pex. 9 and 12). Thereafter, the plaintiff excised the suit land into 36 parcels, each now having an individual title document (Pex. 12). However, the defendants trespassed on the suit land, claiming to be registered owners, as evidenced by the photographs (Pex. 14). 10. We now proceed to address the issues for determination in sequence; however, because the outcome of issue (b) directly affects the outcome of issue (c), these two issues shall be handled together. a. Issue (a) 11. This issue was neither addressed in the plaintiff’s submissions nor, understandably, could it have been, given that they allegedly acquired shares therein several years ago and obtained their title document from it eons ago; thereby, they may not be privy to the 1st defendant’s current status. Nevertheless, this court takes judicial notice that the 1st defendant is a defunct company, having been wound up on 26th July 2013, prior to the institution of this suit. This position was determined by A. Nyukuri J in Makau & 2 others & 2 others (Suing as the Administrators of the Estate of the Late Thomas Makau Musyoki - Deceased) v Syokimau Farm Limited & 2 others [2024] KEELC 3981 (KLR), where the honourable judge stated: - ELCC E102 OF 2021 JUDGMENT 7

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“It is therefore my finding that Syokimau Farm Limited stopped to exist after 26th July 2013, and Paul Masila Kimeu has never been and neither is he now the administrator or liquidator or caretaker of Syokimau Farm Limited.” 12. Therefore, this court finds that the plaintiff sued a nonexistent entity. It also finds that the suit against the 1 st defendant is incompetent. b. Issues (b) and (c) 13. In dealing with the first limb of this issue, it is essential to delineate the pertinent legal and jurisprudential framework on trespass. Article 40 of the Constitution recognises that every person has the right to acquire and own property of any kind and in any location within Kenya. The protections and limitations governing such land rights are set out in Sections 24, 25, and 26 of the Land Registration Act, which define land rights, privileges, appurtenances, liabilities, and interests. Section 26(1) thereof the indefeasibility of title provides to for the immovable sanctity property, and which subsists only in the absence of fraud, misrepresentation or other unlawful conduct in its acquisition. 14. Notwithstanding that the plaintiff’s evidence was uncontroverted and unchallenged, and thus credible, the ELCC E102 OF 2021 JUDGMENT 8

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plaintiff still bore the burden of proving that it owned the suit land and the subdivisions thereof, and that the 1st and 2nd defendants had committed acts of trespass. Sections 107 and 109 of the Evidence Act delineate the burden of proof as follows: “107. Burden of proof. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 109. Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 15. When addressing the burden of proof, the Court of Appeal in Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR) cited with approval the decision of Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372, as follows: ELCC E102 OF 2021 JUDGMENT 9

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“Denning J. in Miller –vs- 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 the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof 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’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” ‘ 16. In the course of adducing his evidence, PW1 not only submitted a copies of the title documents relating to the suit land and resultant subdivisions but also provided the tendered evidence on the root of title. From these documents, it was clearly demonstrated that Ngure and Margaret acquired the property by purchase from Kiletu, a shareholder and allottee of ELCC E102 OF 2021 JUDGMENT 10

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plot number 579, from the 1st defendant. Following this acquisition, Ngure and Margaret became shareholders of the 1st defendant. 17. Subsequently, the 1st defendant divided the mother parcel, creating subdivided parcels, including the suit land, which was initially registered in the 1st defendant’s name and was later transferred to Ngure and Margaret in their capacity as shareholders. Thereafter, Ngure and Margaret transferred the land to the plaintiff, a company they formed, of which they are shareholders and co-directors, with PW1, their son, also serving as a co-director. The suit land was further subdivided into 36 portions, all of which are registered in the plaintiff's name. Accordingly, this court finds that the plaintiff is the lawful owner of the suit land and its resultant subdivisions. 18. Concerning the tort of trespass, which is the 2 nd limb, the relevant provisions of the law are contained in the Land Act and the Trespass Act, which specifically stipulate: Section 152A of the Land Act: “A person shall not unlawfully occupy Private, Community or Public Land.” Section 3 (1) of the Trespass Act: ELCC E102 OF 2021 JUDGMENT 11

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“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 offence.” 19. Section 2 of the Trespass Act clarifies that private land includes land owned or occupied by anyone under a freehold title, a certificate of ownership, or a lease. Concerning prevailing jurisprudence, the recent Court of Appeal decision in Mohamed v Board of Management Pentrose Community School & another [2026] KECA 501 (KLR) affirms the definition of trespass as follows: “24.The textbook Clerk & Lindsell on Torts (21st Edition) at page 1345, specifies that trespass occurs where there is entry onto another person’s land without the consent of the owner or without lawful justification. So that, for trespass to be established, there must be a physical entry onto the land of another, and such entry must be without the permission of the landowner or without any reasonable or lawful excuse. ELCC E102 OF 2021 JUDGMENT 12

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25.In the case of Church Commissioners for Kenya of the Anglican Church of Kenya vs Wayuga (Civil Appeal 111 of 2018) [2024] KECA 1048 (KLR), this Court held that;“Trespass is described under the Trespass Act Cap 294 to mean “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…” 20. The plaintiff’s allegation that the 2nd and 3rd defendants unlawfully entered the suit land and its resultant subdivisions without permission was not contested. Furthermore, the 3rd defendant admitted in paragraph 9 of the defence that he was in occupation. PW1 testified that the defendants had only recently commenced construction, and photographs submitted indicate minimal construction activity, with some defendants planning to erect a wall on the suit land. Consequently, in circumstances where the 2nd and 3rd defendants are not lawful owners of the suit land or its subdivisions and are in occupation without permission from the plaintiff, this court hereby finds that they are trespassers. 21. As submitted by the plaintiff, trespass is actionable per se. Having considered the size and location of the land and the ELCC E102 OF 2021 JUDGMENT 13

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extent of the interference, this court awards the plaintiff general damages of Kshs. 1,500,000/- payable by the 2nd and 3rd defendants. 22. In the end, guided by law and judicial precedents and anchored in the foregoing findings and reasons, this court finds that the plaintiff has proved its case on the balance of probabilities. It finds that it is entitled to the reliefs sought and hereby grants the following final orders: a. The suit against the 1st defendant is hereby struck out with no orders as to costs. b. A declaration is hereby made that the plaintiff is the rightful and legitimate owner of IR No. 44824/1, being L.R. No. 12715/362, and the resultant subdivisions IR numbers 237980 to 238015. c. A declaration is hereby made that the 2nd and 3rd defendants have, jointly and severally, trespassed onto IR No. 44824/1, being L.R. No. 12715/362, and the resultant subdivisions IR numbers 237980 to 238015. d. A permanent injunction is hereby issued to restrain the 2nd and 3rd defendants, whether by themselves or through their agents or employees, from entering into, taking ELCC E102 OF 2021 JUDGMENT possession of, selling, leasing, 14

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subdividing, offering as security, or otherwise dealing with or attempting to dispose of the plaintiff of all that parcel of land known as IR No. 44824/1, being L.R. No. 12715/362, and the resultant subdivisions IR numbers 237980 to 238015. e. The 2nd and 3rd defendants are hereby granted 90 days from the date of service of this court's orders to remove themselves, their servants, agents, or anyone claiming through them, together with their developments on land known as IR No. 44824/1, being L.R. No. 12715/362, and the resultant subdivisions, IR numbers 237980 to 238015 therein, and to give the plaintiff vacant possession. f. In default of compliance with (e) above, the structures erected by the 2nd and 3rd defendants or by their agents, servants or employees on land known as IR No. 44824/1, being L.R. No. 12715/362, and the resultant subdivisions, IR numbers 237980 to 238015, shall be demolished by the plaintiff, who shall recover the cost and expense of such demolition and removal of debris as a civil debt. ELCC E102 OF 2021 JUDGMENT 15

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g. General damages of Kshs. 1, 500,000/- is awarded to the plaintiff. h. Costs of the suit are awarded to the plaintiff and shall be borne by the 2nd and 3rd defendants. Judgment accordingly. Delivered and Dated at Machakos this 22nd day of September, 2026. HON. A. Y. KOROSS JUDGE 22.09.2026 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform; In the presence of; Ms. Kanja Court Assistant. Ms Muthee for the plaintiff/respondent. Miss Mbua for Mr. Masake for the defendant. ELCC E102 OF 2021 JUDGMENT 16

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