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Court of AppealDismissedFirst appeal from Kitale ELC Case No. 93 of 1997

Nabiswa & another v Onyango (Civil Appeal E57 of 2020) [2026] KECA 328 (KLR)

Court of Appeal of Kenya
27 February 2026
3,895 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal to the Court of Appeal at Nakuru against the judgment of Yano, J delivered on 15th July 2019 in Kitale ELC Case No. 93 of 1997. The respondent claimed to have purchased one share (11.26 acres) in Chepkorok Farm from the late Kuna Arap Cheboiboch under four sale agreements, took possession in 1988, and that the appellants - widows and legal representatives of the late Johnson Juma Nabiswa - trespassed and occupied his plot from 1994/1995. The trial court declared the respondent owner of Plot No. 225 (previously Plot No. 46 or 232), declared the appellants' occupation unlawful trespass, ordered eviction, granted a permanent injunction, and awarded general damages of Kshs.2,000,000/- plus costs. The appellants raised numerous grounds, principally that the land was un-surveyed, the claim relied on unpleaded issues, evidence lacked corroboration, and the damages award was excessive. The respondent did not appear despite service. The Court rehearsed the first-appeal standard (rehearing on fact and law, deference to trial court findings absent misdirection) and the approach to mutually destructive evidence, including the Stellenbosch Farmers Winery criteria. It found the trial judge correctly held that the respondent lawfully owned the land, agreed that the appellants - occupying over 22 acres against an entitlement of one share of about 11 acres - had encroached, and held the damages award was not excessive given over 25 years of possession. The appeal was dismissed with costs to the respondent. The trial court's judgment was affirmed in full; no dissent was recorded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether it was established by way of credible evidence that the respondent is the legal proprietor of the suit land
  2. 2.whether the appellants had encroached on the suit land
  3. 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

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01

Whether the respondent proved ownership of Plot No. 225 (11.26 acres) in Chepkorok Farm

Holding

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

Reasoning

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.

02

Whether the appellants encroached on the respondent's land

Holding

Yes - the appellants' own evidence showed they occupied over 22 acres (about two shares) whereas their entitlement was one share of about 11 acres

Reasoning

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.

p. 7
03

Whether the award of Kshs.2,000,000/- general damages was excessive

Holding

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

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The appeal was dismissed
  2. 2.Costs of the appeal awarded to the respondent
  3. 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

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
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

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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

p. 7

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

p. 7

Costs

Appeal dismissed with costs to the respondent ("we dismiss it with costs to the respondent")

Quotable passages

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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.
p. 7Disposition - appeal dismissed
This being a first appeal, the whole case is open for rehearing both on questions of fact and law.
p. 3Duty of first appellate court
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.
Affirmation of ownership finding
Accordingly, we agree with the trial court that the appellants had encroached into the respondent’s land.
p. 7Trespass/encroachment finding
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.
p. 7Damages award upheld
Trespass to land is a tortious act involving direct, physical and unauthorized interference with possession of land which is actionable per se.
p. 7Nature of trespass

Issues in the judgment

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minor

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

minor

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

minor

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

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.