Michelle Caliendo Maurizio & Carlo Besane v Sunreef Limited & 4 Others

3. Thus, when the matter came up before me for hearing on 26 th February 2026, only Mr Ole Kina appeared for the counterclaimants There being no appearance for the plaintiffs, the hearing proceeded at 12:05 p.m., and the plaintiffs in the counterclaim called only one witness, Francisco Veltroni, who is also the 5th defendant in the main suit and the second plaintiff in the counterclaim. For clarity, I will also alternately refer to the Counterclaimants as “the plaintiffs” in the rest of this judgment. 4. PW1 testified that he and his co-plaintiff bought the suit property from the first and second defendants in the counterclaim. He adopted the content of a written witness statement dated 5 th March 2024 as his evidence-in-chief. He produced documents as PEXH 1 to 5. He also adopted the contents of a video recording as his evidence, which was played before the Court on a laptop computer. He stated that the persons in the video who seemed to be taking liberties with the property are not the ones who sold the house to the plaintiffs. He prayed for the orders sought in the counterclaim to be granted as prayed. SUBMISSIONS 5. Counsel for the plaintiffs filed submissions dated 16 th March 2026 on their behalf. I have taken consideration of those submissions in this judgment. ANALYSIS AND DETERMINATION. 6. The claim of the plaintiffs in the Counterclaim is that they purchased the suit property from Sun Reef Limited and the transfer was registered in their favour. However, the transfer was subsequently nullified by the court on grounds of want of capacity on the part of one Mr Kupalia, who prepared the same, to act as an advocate. They aver that consequently, a trust for sale was thereby constituted in their MLDELCC101/11-JDGT/DF-27.07.11/FABM-31.10.24/FH-26.02.26/LH-26.02.26/DJ-24.09.26F. Page 2 of 12

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favour and the first defendant is obliged by law to execute a transfer in their favour, they being purchasers for value without notice of any defect in the title of the first defendant and having been put into possession of the suit premises by the first defendant who was the registered proprietor of the suit premises. The plaintiffs had paid Euros 59,000 as consideration, for purchase of the suit property. They aver that in the event of failure of consideration the money would become payable as money had and received by the first and second defendants, otherwise it will resort in the latter’s unjust enrichment. 7. The plaintiffs also pleaded that the declaration of the transfer in their favor to be void by the court did not have the effect of nullifying the sale but rather the documents of title in the plaintiffs’ name and that the property reverted back to the first defendant who holds the same in trust for the plaintiffs pending the determination of the suit whereafter a transfer of the premises can be drawn by a duly qualified advocate. 8. It was pleaded that the premises were in a serious state of disrepair when they were handed over to the plaintiffs, and the plaintiffs financed the repairs needed by paying to the second defendant the sum of Euros 59,000; that after they were put in possession, they adorned the house with furnishings of their choice and fitted kitchen appliances to their taste. 9. The plaintiffs aver that on 7th November 2013, Maurizio Carlo Besane, the fourth defendant, without any court order, and in the absence of any lawful execution proceedings, wrongfully entered the suit premises and evicted the plaintiffs therefrom despite the latter’s explanation for their presence in the suit property. The defendants also occasioned damage to the property by cutting down the defendant's plants and defacing the gate by painting it green. They also damaged all the locks in the house and evicted the plaintiffs’ employees. They took over the use of the plaintiffs’ house and their personal items of MLDELCC101/11-JDGT/DF-27.07.11/FABM-31.10.24/FH-26.02.26/LH-26.02.26/DJ-24.09.26F. Page 3 of 12

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clothing, jewelry cutlery, and kitchen items. They also invited other persons to occupy the house without the plaintiffs’ permission. The defendants caused to be removed from the plaintiffs’ property all the signage the latter had erected. The value of damage to the plaintiffs’ property and the value of the replacement of the items lost and damaged was Kenya Shillings 1,046,800/- which the plaintiffs claim from the defendants jointly and severally. However, the defendants were finally evicted by the court bailiff under police protection. The plaintiffs state that the defendants’ actions amounted to trespass. By reason of the foregoing, the plaintiffs seek the following orders in their counterclaim dated 2/4/15: a. A declaration that the purported eviction of the plaintiffs by the defendants with the help of the police without a court order to that effect and without the aid of the court bailiff was illegal null and void; b. A declaration that the plaintiffs are the bona fide owners of portion number 2914 (original number 514/53); c. A declaration that after the nullification of the transfer in favour of the plaintiffs a trust for sale was created in favour of the plaintiffs and the first defendant be compelled to execute a transfer in favour of the plaintiff’s failure to which the Deputy Registrar of this court should execute the said the transfer; d. A permanent injunction restraining the third and fourth defendants their servants, agents or anyone of them from trespassing into or evicting the plaintiffs from or in any other manner interfering with the plaintiffs’ quiet possession of portion number 2914 (original number 514/53 Malindi); e. In the alternative and without prejudice to (b) (c) and (d) above, the first and second defendants’ judgment (sic) MLDELCC101/11-JDGT/DF-27.07.11/FABM-31.10.24/FH-26.02.26/LH-26.02.26/DJ-24.09.26F. Page 4 of 12

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for the purchase price and the cost of development as money had and received on account of a consideration that failed; f. General damages for trespass; g. Punitive and exemplary damages for the unlawful conduct on the part of the 3rd and 4th defendants; h. Special damages; i. Cost of the suit; j. Interest on all pecuniary awards. 10. The counterclaimants’ case has not been opposed by any of the defendants by way of any defence or evidence. The counterclaimants’ evidence stands uncontroverted. They are the registered owners of the suit land. This court has noted that the plaintiffs’ evidence is that they were reinstated back into possession on or about 18 th November 2013. Trespass to land is actionable per se; a landowner does not need to prove they suffered any actual damage, physical harm, or financial loss to successfully sue a trespasser. 11. In the case of Kamoye v Tipango & 2 others (Environment & Land Case E011 of 2023) [2024] KEELC 4227 (KLR) (14 May 2024) (Judgment) Neutral citation: [2024] KEELC 4227 (KLR) the court held as follows: “…In the case of Duncan Nderitu Ndegwa v KP & LC Limited & Another (2013) eKLR, P. Nyamweya, J held 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 general damages. This court accordingly awards an amount of Kshs 100,000/= as compensation of the infringement of the Plaintiff’s right to use and enjoy the suit MLDELCC101/11-JDGT/DF-27.07.11/FABM-31.10.24/FH-26.02.26/LH-26.02.26/DJ-24.09.26F. Page 5 of 12

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property occasioned by the 1st and 2nd Defendants’ trespass”.” 12. In the case of Leon Island International Ltd v Sang [2026] KEELC 3964 (KLR) the court held as follows: 27. On general damages, it is trite that trespass is actionable per se, that is, without the need to lead evidence in support. Guided by the above precedents, I allow a nominal sum of Kshs 65,000/- as general damages for trespass, having considered that the period of trespass lasted for 7 days, that is, from 20/2/25 to 27/2/25” 13. Section 24 of the Land Registration Act provides as follows: 24. Interest conferred by registration 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. 14. Section 25 of the Land Registration Act provides as follows: 25. Rights of a proprietor (1) The rights of a proprietor, whether acquired on first 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 MLDELCC101/11-JDGT/DF-27.07.11/FABM-31.10.24/FH-26.02.26/LH-26.02.26/DJ-24.09.26F. with all privileges and Page 6 of 12

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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 affect 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. 15. Section 26 of the Land Registration Act provides as follows: 26. Certificate of title to be held as conclusive evidence of proprietorship (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. (2)A certified copy of any registered instrument, signed by the Registrar and sealed MLDELCC101/11-JDGT/DF-27.07.11/FABM-31.10.24/FH-26.02.26/LH-26.02.26/DJ-24.09.26F. with the Seal of the Page 7 of 12

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Registrar, shall be received in evidence in the same manner as the original. 16. I think it was incumbent upon the defendants to first institute proceedings in some real cause of action that could accrue as against the counterclaimants and secure the twin orders of cancellation of title and eviction if they intended to conduct themselves in the right manner but they never did so. Instead, they effected an illegal eviction. 17. Evidence in this case is that the Counterclaimants in the present case were reinstated back into possession on or about 18 th November 2013, having been dispossessed of the premises, according to their Statement of Defence and Counterclaim, in or around July or early August 2011; it is thus not in dispute that the reinstatement occurred some two years and three months after the trespass first occurred. Besides physical trespass by their persons into the premises, the counterclaimants’ evidence is that the defendants also occasioned damage to the property by cutting down the plaintiffs’ plants and defacing the gate by painting it a different colour other than that painted by the plaintiffs; that they also damaged all the locks in the house and evicted the plaintiffs’ employees; that they took over the use of the plaintiffs’ house and their personal items of clothing, jewelry cutlery, and kitchen items; that they also invited other persons to occupy the house without the plaintiffs’ permission. Further, the defendants caused to be removed from the plaintiffs’ property all the signage the latter had erected. The counterclaimants have placed the value of damage to the plaintiffs’ property and the value of the replacement of the items lost and damaged was Kenya Shillings 1,046,800/-. All this is evidence of an intention on the part of the defendants to interfere with the property of the counterclaimants. It was not accidental. It was the exercise of brute force by the defendants despite the existence of legal machinery within this country for the ventilation of their grievance, if any, against the MLDELCC101/11-JDGT/DF-27.07.11/FABM-31.10.24/FH-26.02.26/LH-26.02.26/DJ-24.09.26F. Page 8 of 12

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counterclaimants. It is conduct that undermines the rule of law. It sends a signal to other persons in the community who come to know of it that one can bypass the legal process in seizure of property. It creates a culture of impunity among citizenry. It renders many people’s constitutional rights to property and to the due process to be under threat due to copycat effects. It denudes individuals and families of shelter, basic security, and adversely impacts on their economic foundation. Illegal eviction is not an event to be taken lightly and where it is proved the appropriate punitive measures must be meted out by the court. In the circumstances of the present case, the court finds that the counterclaimants are entitled to both general damages for trespass per se and also punitive damages. 18. As to the quantum of such damages, this court notes that in the case of Atemba (Suing as a trustee and overseer Pastor of Embassy of Faith Worldwide Church) v Damani Drums Limited & another (Environment & Land Case E245 of 2021) [2024] KEELC 5915 (KLR) (16 September 2024) (Judgment) Neutral citation: [2024] KEELC 5915 (KLR), the court awarded the sum of Kshs 5, 000, 000/= only is awarded to and in favour of the each of the two Defendants as general damages for trespass. In the judgment dated 16 th Day of September 2024 that case the court stated as follows: “Despite the prayer by the Defendants to be awarded the sum of Kshs 10 million on account of general damages, I wish to highlight that the trespass beforehand appear to have arisen on or about the year 2021 and hence the activities complained of have not lasted for long.” 19. In the case of Mohammed v Idow Trading Co Ltd & 2 others (Civil Appeal E936 of 2023) [2026] KECA 1106 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1106 (KLR) the court of appeal held as follows: MLDELCC101/11-JDGT/DF-27.07.11/FABM-31.10.24/FH-26.02.26/LH-26.02.26/DJ-24.09.26F. Page 9 of 12

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“In the present case, the evidence shows that the appellant remained in occupation of the suit property for over two decades and continued to use it for commercial purposes, despite an express court order requiring him to vacate, thereby effectively disenfranchising the 1st respondent of the use and enjoyment of its property over that prolonged period. This Court, in the case of Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55, set out the circumstances under which an appellate court can interfere with an award of damages in the following terms: “It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.” 55. In those circumstances, we cannot say that the award of Kshs.8,000,000/- was inordinately high or based on wrong principles so as to warrant interference.” MLDELCC101/11-JDGT/DF-27.07.11/FABM-31.10.24/FH-26.02.26/LH-26.02.26/DJ-24.09.26F. Page 10 of 12

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20. In their submissions dated 16/3/2026, the counterclaimants have urged the court to award them Kshs 10,000,000/- in damages “collectively”. However, this court is of the view that owing to the briefer duration of the trespass, an award to the counterclaimants against the 3rd and 4th defendants to the counterclaim in the sum of Kshs 5,000,000/= is adequate as damages for trespass. However, owing to the egregious conduct of the 3rd and 4th defendants to the counterclaim, this court hereby awards the counterclaimants the sum of Kshs 2,000,000/- as exemplary damages. 21. I therefore grant prayers number (a) (b)(c) (d) (f), (g), (h), (i) and (j) in the counterclaim dated 2nd April 2015. 22. I also hereby clarify for the purposes of good order and to avert confusion that the Trust for Sale referred to in prayer no (c) of the counterclaim is in favour of the counterclaimants. 23. As for particulars of quantum awarded the counterclaimants, I order as follows: a. With regard to prayer number (f), I award the plaintiffs Kenya Shillings 5,000,000 (Kenya Shillings Five Million only) in damages for trespass against the 3 rd and 4th defendants in the counterclaim jointly and severally; b. With regard to prayer number (g) I award the plaintiffs Kenya Shillings 2,000,000/- (Kenya Shillings Two Million only) as exemplary damages against the 3rd and 4th defendants in the counterclaim jointly and severally for their unlawful conduct; c. With regard to prayer number (h) I award the plaintiffs Kenya Shillings 1,046,800/- (Kenya Shillings one Million, fourty six thousand eight hundred only) as special against the 3rd and 4th defendants in the counterclaim jointly and severally; d. Interest is awarded at court rates. It is so ordered. MLDELCC101/11-JDGT/DF-27.07.11/FABM-31.10.24/FH-26.02.26/LH-26.02.26/DJ-24.09.26F. Page 11 of 12

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Dated, signed and delivered at Malindi on this 24th September 2026. HON. JUSTICE MWANGI NJOROGE JUDGE, ENVIRONMENT AND LAND COURT, MALINDI. MLDELCC101/11-JDGT/DF-27.07.11/FABM-31.10.24/FH-26.02.26/LH-26.02.26/DJ-24.09.26F. Page 12 of 12

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