Nabiswa & another v Onyango (Civil Appeal E57 of 2020) [2026] KECA 328 (KLR)
The bottom line
#The Court of Appeal upheld a Kshs.2 million award against families who occupied land they had no proof of owning, confirming the buyer as lawful owner.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether it was established by way of credible evidence that the respondent is the legal proprietor of the suit land
- 2.whether the appellants had encroached on the suit land
- 3.whether the respondent was entitled to the reliefs granted by the trial court, including the award of Kshs.2,000,000/- as damages
Key legal issues
#Whether the respondent proved ownership of Plot No. 225 (11.26 acres) in Chepkorok Farm
Yes - the sale agreements, evidence of the vendor's widows (PW2 and PW3), the allotment letter of 6/2/1998 and the appellants' own admission that the respondent had a plot in the Farm established lawful ownership on a balance of probability
The Court re-evaluated the whole evidence as on a first appeal. The respondent purchased one share (11.26 acres) from the late Kuna Arap Cheboiboch, took possession in 1988, and the plot number changes were explained by survey. The appellants admitted the respondent had a plot in the Farm. Absent demonstrable misdirection, the trial court's factual findings stood.
Whether the appellants encroached on the respondent's land
Yes - the appellants' own evidence showed they occupied over 22 acres (about two shares) whereas their entitlement was one share of about 11 acres
Both defendants confirmed their late husband held one share equivalent to about 11 acres, yet they occupied over 22 acres. The only logical conclusion was that, beyond their own plot, they encroached on the respondent's 11-acre plot. The Court agreed with the trial court's finding of trespass.
Whether the award of Kshs.2,000,000/- general damages was excessive
No - damages are a matter of discretion and will not be disturbed absent wrong principles or an entirely erroneous estimate; given 25+ years of possession, the award was not excessive
The Court restated the settled principles on interference with damages awards and the law of trespass: actionable per se, nominal damages to vindicate the right, mesne profits for occupation, and higher damages for wanton trespass. Although details of destroyed property were scanty, the long period of unauthorised possession justified the award.
Legal principles established
#- On a first appeal, the whole case is open for rehearing on fact and law, but appellate courts are bound by the factual findings of a trial court unless those findings are clearly wrong, unsupported by evidence, or demonstrate misdirection
- Findings of fact must be firmly rooted in the evidence, not conjecture or speculation
- An appellate court will not disturb an award of damages merely because it would have awarded differently; it must be shown the trial judge acted on wrong principles or the award is an entirely erroneous estimate
- Trespass to land is actionable per se and nominal damages vindicate the right where no actual damage is proved; when a trespasser occupies land, the owner is entitled to mesne profits
Court orders
#- 1.The appeal was dismissed
- 2.Costs of the appeal awarded to the respondent
- 3.The trial court's declarations of ownership and unlawfulness of occupation, eviction order, permanent injunction, general damages of Kshs.2,000,000/- and costs order were left undisturbed (implicitly affirmed)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Kitale
- ELC Case No. 93 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Procedure Act/Court of Appeal Rules not expressly cited); hearing conducted virtually
Relief refused
#Setting aside of the trial court's judgment of 15th July 2019
The appeal was found to be devoid of merit; the trial judge's findings on ownership, trespass and damages were correct
Reduction of the general damages award of Kshs.2,000,000/-
The award was not excessive; the appellants had been in possession for over 25 years at the date of judgment
Costs
Appeal dismissed with costs to the respondent ("we dismiss it with costs to the respondent")
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, it is our finding that this appeal is devoid of merit. Accordingly, we dismiss it with costs to the respondent.
This being a first appeal, the whole case is open for rehearing both on questions of fact and law.
We are persuaded that the trial judge correctly appreciated the totality of the evidence and arrived at the correct finding that the respondent lawfully owned the land in question.
Accordingly, we agree with the trial court that the appellants had encroached into the respondent’s land.
considering the fact that as at the date of the trial court’s judgment, the appellants had been in possession for over 25 years, it is our finding that the damages awarded are not excessive.
Trespass to land is a tortious act involving direct, physical and unauthorized interference with possession of land which is actionable per se.
Issues in the judgment
#The judgment refers to the respondent's amended plaint 'dated 13th February 2023' and the appeal memorandum 'dated 20th April 2020', yet the memorandum is said to fault the judge on the amended plaint; the chronology of pleadings postdating the memorandum is internally inconsistent
The trial court's decree described the land as LR No. 5177/3 (Chepkorok Farm) while the rest of the judgment uses LR No. 5777/3
The appellants' counsel is recorded as arguing that the respondent 'bought 10 acres from Mr. Kuna' while the plaint and judgment state the purchase price covered 11.26 acres; the 10-acre figure is attributed to a portion going to public utilities
The judgment was delivered in 2026 but counsel's submissions are dated 14th November 2023 and the hearing was on 19th January 2025, indicating a long delivery delay; not itself a contradiction but notable
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nabiswa & another v Onyango (Civil Appeal E57 of 2020) [2026] KECA 328 (KLR)", Case Analysis (2026). First appeal from Kitale ELC Case No. 93 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/328/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.