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ELCPartially AllowedELC Appeal from Bondo PM ELC No. 3 of 2018· [2019] KEELC 11 (KLR)

Monica Anyona Dongi v Richard Otieno Okumu [2019] KEELC 11 (KLR)

Environment and Land Court
20 December 2019
1,877 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court from the judgment of the Principal Magistrate's Court at Bondo (Hon. Obiero) in ELC No. 3 of 2018 delivered on 19 October 2018. The Appellant, administrator of her father's estate, had sued the Respondent for eviction, a permanent injunction, mesne profits and costs, claiming that the Respondent had trespassed and developed structures on South Sakwa/Barkowino/3249, registered to her deceased father. The Respondent claimed ownership of a leasehold Parcel 'C' allotted to him by the Town Council of Bondo. The trial court found the two parcels distinct but sharing a common boundary, held that the Siaya County Surveyor's report of 23 July 2018 did not demonstrate encroachment, and dismissed the suit. On appeal, Ombwayo J held that the Trial Magistrate misapprehended the Surveyor's Report and attached map, which expressly identified the area 'Developed by the defendant' as extending beyond Parcel 'C' into a significant portion of the Appellant's land, and that the report was sufficient evidence on a balance of probability to prove encroachment. The appeal was allowed, the judgment and orders of the lower court set aside, and the prayers for eviction and permanent injunction granted. However, the claim for mesne profits was refused for failure to specifically plead and prove it, mesne profits being special damages. No explicit costs order appears in the extracted judgment.

Key legal issues

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01

Whether the Trial Magistrate misapprehended the Surveyor's Report and map

Holding

Yes; the report went beyond fixing boundaries and identified the extent of the Respondent's development extending into the Appellant's land

Reasoning

The surveyor's report and attached map marked with a green line the area 'Developed by the defendant', which was clearly shown to extend beyond Parcel 'C' into a significant portion of South Sakwa/Barkowino/3249. Construing 'developed' per Black's Law Dictionary, the Trial Magistrate erred in holding that the report did not point to encroachment.

p. 2
02

Whether the Respondent encroached on the Appellant's land

Holding

Yes; the Surveyor's Report was sufficient evidence on a balance of probability to prove encroachment and development on the Appellant's land

Reasoning

The report included findings on the boundary between the freehold and leasehold parcels established by identifying beacons, and marked the extent to which the Respondent's development extended into the Appellant's land. The Trial Magistrate therefore erred in finding no evidence of encroachment.

p. 2
03

Whether mesne profits should be awarded

Holding

No; not specifically pleaded and proved

Reasoning

Mesne profits are special damages requiring both pleading and proof; the claimant bears the onus of proving what mesne profits might with due diligence have been received. The Appellant implied only at hearing that they could be assessed at Kshs. 150,000 per month without tendering proof.

p. 3

Legal principles established

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  • An appellate court will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, misapprehension of the evidence, or a failure to take account of material circumstances
  • Mesne profits, being special damages, must be specifically pleaded and proved; the onus of proving them lies on the party claiming them

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and orders of the lower court set aside
  3. 3.Appellant's prayers for eviction orders granted
  4. 4.Appellant's prayer for permanent injunction granted
  5. 5.Claim for mesne profits refused for failure to plead and prove
On appeal from
Principal Magistrate's Court at Bondo
ELC No. 3 of 2018
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the Principal Magistrate's Court

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, "Monica Anyona Dongi v Richard Otieno Okumu [2019] KEELC 11 (KLR)", Case Analysis (2019). ELC Appeal from Bondo PM ELC No. 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/11/eng@2019-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.