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Court of AppealDismissedCivil Appeal 44 of 2018· [2022] KECA 1037 (KLR)

Adeti v Alexander Oyiolo Odongo T/A Alema Service Station

Court of Appeal
23 September 2022
2,533 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The appellant, registered owner of L.R. No. Samia/Luchululo-Bukhulungu/995, sued the respondent, owner of the adjacent parcel 1050, alleging that from August 2004 the respondent unlawfully entered the suit property and constructed a concrete wall and the Alema Service Station petrol station. He sought eviction, a permanent injunction and mesne profits. The Environment and Land Court at Busia (Kaniaru, J) dismissed the suit with costs on 21 February 2018, finding the appellant had not made a satisfactory case of trespass, encroachment and occupation. On appeal, Kiage, JA, writing the principal judgment with which Kantai and Mumbi Ngugi, JJA agreed, distilled two issues: whether the appellant proved trespass and whether he was entitled to the reliefs sought. The court restated that trespass is a tort against possession, requiring proof of the right to immediate and exclusive possession and an unlawful entry, and that ownership, though not strictly necessary, was in any event evidenced by the appellant's title. The pivotal difficulty was proof of the encroachment: the Land Registrar's report merely confirmed existing boundaries as correctly placed, the surveyor who prepared it did not testify, and his report was not produced, so the exact location of the petrol station could not be established. The appellant therefore failed to discharge the burden under sections 107 and 109 of the Evidence Act on a balance of probabilities; at best he achieved a draw, which is not enough. The claim for mesne profits necessarily failed with the trespass claim. The Court of Appeal found no reason to depart from the learned judge's findings and dismissed the appeal in its entirety with costs to the respondent.

Key legal issues

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01

Elements of trespass to land

Holding

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.

Reasoning

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.

p. 3
02

Whether the appellant proved the petrol station was on the suit property

Holding

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.

Reasoning

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.

p. 4
03

Burden and standard of proof

Holding

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.

Reasoning

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

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  • 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

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Evidence Actsection 107
  • Evidence Actsection 109

Cases cited (7)

  • Selle -vs- Associated Motor Boat Company
    [1968] EA 123

    Duty of a first appellate court to reconsider, re-evaluate the evidence and reach its own conclusion.

  • Palace Investments Limited -vs- Geoffrey Kariuki Mwenda & Another
    [2015] eKLR

    Burden of proof discharged on a balance of probabilities; a draw is not enough.

  • Miller -vs- Minister of Pensions
    [1947] 2 ALL ER 372

    Definition of the balance of probabilities standard.

  • M'mukanya -vs- M'mbijiwe
    (1984) KLR 761

    Trespass is a violation of the right to possession; plaintiff must prove right to immediate and exclusive possession.

  • Thomson v Ward
    (1953) 2 QB 153

    Right to immediate and exclusive possession distinguished from ownership.

  • William Kamunge Gakui -vs- Eustace Gitonga Gakui
    [2016] eKLR

    Trespass to land is a tort against possession requiring entry by the tortfeasor.

  • Samuel Mwangi -vs- Jeremiah M'itobu
    [2012] eKLR

    A person need not be the owner of land to sue in trespass; possession suffices.

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.