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ELCDismissedE.L.C. Appeal No. 11 of 2016· [2019] KEELC 593 (KLR)

Cyprian Ngari Machaki Samburu v Ngari Mwereca & another [2019] KEELC 593 (KLR)

Environment and Land Court
17 October 2019
3,154 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who claims trespass must prove it with solid evidence, ideally a surveyor's report, or the court will dismiss the case.

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 at Embu against the judgment of Hon. A.N. Makau (SRM) of 8 March 2016 in Siakago RMCC No. 24 of 2012, which had dismissed the Appellant's suit for trespass to parcel Nthawa/Gitiburi/1788 with costs. The Appellant had alleged that the 1st Respondent unlawfully leased a portion of his parcel to the 2nd Respondent, who cut trees and damaged the land. The trial court preferred the evidence of the District Land Registrar and District Surveyor, whose report showed the 2nd Respondent's activities were confined to the adjacent parcel 1789. Y.M. Angima, J. re-evaluated the evidence as required of a first appellate court, applying Selle v Associated Motor Boat Co, Peters v Sunday Post and Watt v Thomas. The court held that the burden of proving trespass lay on the Appellant, who called only lay witnesses and produced no surveyor's report, and that the Respondents were not obliged to prove anything. The complaint about non-compliance with section 19(1) of the Land Registration Act was held irrelevant since no boundary dispute was pleaded and the owner of parcel 1789 was not joined; a trespass claim does not require conclusive boundary determination. The disputed Land Registrar's report did not lose probative value merely because the Appellant disputed it. A prayer for fresh boundary determination introduced in submissions was rejected as not predicated on the pleadings, citing Odd Jobs v Mubia. The appeal was dismissed with costs to the Respondents on the higher scale.

Key legal issues

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01

Whether the Appellant proved trespass on a balance of probabilities

Holding

The Appellant failed to prove trespass; the burden lay on him and he tendered no expert evidence of encroachment

Reasoning

The Appellant instituted the suit and alleged trespass and damage, so the burden of proving the essential facts lay on him. The Land Registrar and District Surveyor visited both parcels and their report showed the 2nd Respondent's activities were confined to parcel 1789, not even close to the common boundary. The Appellant called only lay witnesses with no expertise in boundary determination and produced no surveyor's report. The Respondents were not obliged to prove anything.

p. 3
02

Whether section 19(1) of the Land Registration Act compliance was necessary

Holding

Compliance with section 19 was irrelevant to the trespass suit; no boundary dispute was pleaded and the owner of parcel 1789 was not a party

Reasoning

The plaint was a straightforward trespass claim; it never mentioned parcel 1789 or pleaded a boundary dispute, and the owner of parcel 1789 was not joined. The consent to have the Land Registrar and Surveyor establish boundaries did not alter the character of the suit. The Appellant could have called his own licensed surveyor. There is no legal requirement that a trespass claim be resolved with reference to section 19(1).

p. 3
03

Whether the trial court's reliance on the disputed Land Registrar's report was erroneous

Holding

The report did not lose probative value because it was disputed; it was the Appellant's duty to present contrary evidence

Reasoning

A court-ordered government report remains admissible and probative despite a party's dissatisfaction. The trial court was entitled to believe the Registrar's evidence that the Respondents' activities were confined to parcel 1789. The Appellant abandoned his attempt at a second visit with private surveyors and presented no contrary report. The first appellate court, re-evaluating the evidence, found no basis to overturn the credibility findings.

p. 3
04

Whether a boundary determination was a prerequisite to the trespass claim

Holding

No; a trespasser need not come from the neighbouring land and the boundary dispute was never pleaded

Reasoning

The plaint did not plead any boundary dispute and parcel 1789 was never mentioned in it. Resolving an unpleaded boundary dispute could not have assisted in proving trespass against the Respondents. A trespasser does not have to emerge from your neighbour's land, so conclusive boundary determination was not a condition precedent to the suit.

p. 4

Legal principles established

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  • The burden of proof in a civil suit lies on the plaintiff who must prove the essential facts of his cause of action
  • A report by a government official prepared pursuant to a court order does not become inadmissible merely because a party disputes it
  • Parties are bound by their pleadings; relief not predicated on pleadings cannot be granted
  • A claim of trespass to land can be resolved without conclusively establishing the boundaries of adjacent parcels

Court orders

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  1. 1.The 1st and 5th grounds of appeal are dismissed
  2. 2.The 3rd ground of appeal is dismissed
  3. 3.The appeal is dismissed with costs to the 1st and 2nd Respondents
  4. 4.Costs shall be on the higher scale

Authorities

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Legislation

  • Land Registration ActSection 19(1)
  • Evidence ActSection 107
  • Evidence ActSection 108

Cases cited (4)

  • Selle & Another Vs Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Peters Vs Sunday Post Ltd
    [1958] EA 424
  • Watt Vs Thomas
    [1947] A.C 424
  • Odd Jobs V Mubia
    [1970] EA 476
On appeal from
Senior Resident Magistrate's Court at Siakago
Siakago RMCC No. 24 of 2012
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act over an appeal from the Resident 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, "Cyprian Ngari Machaki Samburu v Ngari Mwereca & another [2019] KEELC 593 (KLR)", Case Analysis (2019). E.L.C. Appeal No. 11 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/593/eng@2019-10-17

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