Wekesa v Wamalwa (Environment and Land Case E046 of 2024) [2026] KEMC 166 (KLR)

The plaintifi ’s evidence 3. The plaintifi proceeded ex-parte and gave evidence in support of her case. She proceeded adopt her witness statement dated 9/5/2024 and produced documents listed in her list of the even date. 4. Essentially, her evidence was that she is the registered owner of the suit land. She explained that she acquired the same by way of purchase from its previous owner one Elizabeth Nanjala Wamalwa who efiectively put her into possession of the same. 5. She added that, the defendant has since unlawfully and illegally trespassed into the same without her knowledge or consent and is now interfering with her rights of possession. That he has not just been sending 3rd parties to harass and threaten her but also, he has gone ahead to construct a semi- permanent structure thereon. 6. Amongst the documents she produced were;A copy of title deed to the suit land.Copies of the sale agreements.A copy of Demand Notice dated 18/3/2024, Issues for determination 7. These are; 1. Whether the plaintifi has demonstrated a case against the defendant of trespass? 2. Whether orders sought should be granted as prayed. Analysis & Determination 8. The plaintifi’s suit is based on allegations of trespass and/ or interference with her rights of user to the suit land. She is indeed the absolute and indefeasible title holder to land parcel No. E. BUKUSU/ N. NALONDO/6118. A title deed she produced on record as exhibit 4 duly bears her name as the proprietor thereof. The land measures 0.38Ha. The Land is registered under The Land Registration Act (No.3 of 2012, section 108) 9. The rights asserted by the plaintifi over her title stem from Section 23(1) of The Registration of Titles Act Cap. 281 and Section 25 and 26 of the Land Registration Act. 10. It is trite that under Section 23(1) of the said The Registration of Titles Act whose provisions are reproduced in Sections 25 and 26 of The Land Registration Act gives a title holder has absolute and indefeasible ownership rights to the land to which it is issued. 11. Section 23 of The Registration of Titles Act provides that; The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.” 12. As seen from the above provision such a title may only be challenged on grounds of fraud or misrepresentation to which the owner is proved to be a party- SEE RASOWA V PAUL (SUED AS THE ADMINISTRATOR OF THE ESTATE OF PAUL OCHIENG AKUKU – DECEASED) & 3 OTHERS (ENVIRONMENT AND LAND APPEAL E006 OF 2025) [2026] KEELC 2762 (KLR) https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/166/eng@2026-06-18 2

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(7 May 2026) (JUDGMENT) and GITWANY INVESTMENT LIMITED v TAJMAL LIMITED & 3 OTHERS [2006] KEHC 2519 (KLR) Herein, the plaintifi as the legal title holder of title to the suit land, is entitled to all the rights of user and occupation of the same without interference by the defendant or any other person for that matter. Considering that interlocutory judgment was entered against the defendant and that during trial the plaintifi’s evidence on the stated trespass and interference by the former were not challenged at all, I would proceed to enter judgment in this case as prayed. 13. Costs have been allowed in his favour because, because although discretionary, as principle, they follow the event. The plaintifi having succeeded in her suit, she is entitled to the same as against the defendant in that event- see Omolo (Suing as the legal representative of the Estate of Charles Omolo Onyango) v Tagot & 3 others (Environment and Land Case 228 of 2017) [2026] KEELC 3526 (KLR) (8 June 2026) (Ruling) and Mlango v Mwandawiro (Civil Case E009 of 2026) [2026] SCC 34 (KLR) (17 March 2026) (Judgment) 14. In the upshot, this suit succeeds in favour of the plaintifi against the defendant as follows; a. The defendant be and is hereby directed to vacate plaintifi’s land parcel No. E. BUKUSU/ N. NALONDO/6118 within 90 days and in default, he be forcefully evicted therefrom upon expiration of the said period. b. A permanent injunction be and is hereby issued restraining the defendant, his servants, representatives, agents, workers and any other person claiming through him from trespassing, encroaching, constructing and/ or interfering with land parcel No. E. BUKUSU/N. NALONDO/6118. c. That the OCS Nalondo Police Station be and is hereby ordered to provide security and oversee the exercise of eviction in the event of the defendant’s failure within the period stipulated in (a) above. d. The plaintifi be and is hereby awarded costs of this suit and interest thereon at court rates from date hereof. DATED & DELIVERED IN OPEN COURT THIS 18TH DAY OF JUNE 2026 In the absence of plaintifi upon notice. R.B.N MALOBA(MS)-SPM https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/166/eng@2026-06-18 3

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