Adeti v Alexander Oyiolo Odongo T/A Alema Service Station
The bottom line
#The Court of Appeal dismissed a landowner's trespass claim because he could not prove the petrol station was actually built on his land.
What this practically means
#Executive summary
#Key legal issues
#Elements of trespass to land
Trespass requires proof of the right to immediate and exclusive possession and an unlawful entry by the tortfeasor; a claimant need not be the legitimate owner.
The court drew on M'mukanya v M'mbijiwe, William Kamunge Gakui and Samuel Mwangi to establish that trespass is a tort against possession, not ownership. Even a wrongful possessor such as a squatter may maintain trespass except against the true owner. Accordingly, the challenge to the appellant's title was immaterial; what mattered was occupation and unlawful entry.
Whether the appellant proved the petrol station was on the suit property
He did not. The Land Registrar's report confirmed existing boundaries as correctly placed but did not fix the boundaries, and the surveyor neither testified nor produced his report, leaving the location of the petrol station unestablished.
The Registrar's report merely stated existing boundaries were confirmed as correctly placed and did not resolve the disputed boundary. The surveyor who prepared it did not testify and his report was not produced, so the expert evidence needed to locate the petrol station was absent. The trial judge was therefore entitled to find the trespass case unsatisfactory.
Burden and standard of proof
The appellant bore the burden under sections 107 and 109 of the Evidence Act to prove his case on a balance of probabilities and failed; at best he achieved a draw, which is insufficient.
Applying Palace Investments and Miller v Minister of Pensions, the court held that proof on a balance of probabilities requires a win, however narrow; a draw is not enough. Since the appellant could not show the petrol station stood on his parcel, the claim of trespass and the consequential claim for mesne profits necessarily failed.
Legal principles established
#- A claimant in trespass must prove the right to immediate and exclusive possession of the land and an unlawful entry by the tortfeasor; ownership is not strictly required, as even a possessor (including a wrongful possessor) may sue in trespass except against the lawful owner.
- On a first appeal the Court of Appeal must reconsider and re-evaluate the evidence and reach its own independent conclusion.
- Where the evidence leaves the probabilities equal, the party bearing the burden of proof loses; a draw is not enough.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Environment and Land Court of Kenya at Busia
- ELC No. 180 of 2014
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court (Court of Appeal, Civil Appeal 44 of 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shelly Engineering Works Ltd v Maruru & 4 others (Civil Appeal E163 of 2023) [2026] KECA 1573 (KLR)[2026] KECA 1573 (KLR)31 Jul 2026applied
- Bux v Athi Works Development Agency (Land Case E132 of 2023) [2026] KEELC 4705 (KLR)[2026] KEELC 4705 (KLR)22 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Adeti v Alexander Oyiolo Odongo T/A Alema Service Station", Case Analysis (2022). Civil Appeal 44 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1037/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.