Kihara Kiunjuri v Harrisson Macharia Waithaka & 2 others [2021] KEELC 659 (KLR)
The bottom line
#A landowner's appeal failed because his surveyor gave opinion evidence without taking measurements, reinforcing the need for credible expert proof in Kenyan boundary disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether the disputed corridor lies on Plot 10A (57) or Plot 10B (58)
The Appellant failed to prove on a balance of probabilities that the corridor belonged to Plot 10B; the credible survey evidence showed Plot 57 was the bigger plot and that part of the corridor lay on Plot 57
The Appellant's expert surveyor admitted she took no measurements at the scene and conceded on the index map that Plot 57 was bigger. The Respondents' survey evidence, including measurements and beacons, showed Plot 57 was larger and that a portion of the corridor and the Appellant's structure encroached on it by about 600cm. The Appellant, not being a surveyor and with a sale agreement that did not indicate the plot area, did not rebut this evidence.
Whether trespass, demolition and injunction were established against the Appellant
Yes - the Appellant continuously trespassed on a portion of the Respondents' Plot 10A (57) and denied them access to it
Having found Plot 57 the bigger of the two plots and that a portion of the corridor lies within it, the court held the Appellant's occupation of that portion and erection of a steel door denying the Respondents access amounted to a continuing trespass, actionable per se, justifying general damages, demolition of the encroaching structures and injunctive relief as ordered by the trial court.
Whether the appeal is merited
No - the appeal was dismissed and the trial court's judgment and decree upheld
Applying the standard for interference with the trial court's findings, the court concluded that the trial magistrate properly evaluated the evidence and correctly found the Appellant had not discharged his burden of proof on a balance of probabilities, so there was no basis for upsetting the determination dismissing the Plaint and allowing the counterclaim.
Legal principles established
#- On a first appeal, the court must analyse and re-assess the evidence and reach its own independent decision, while making allowance for not having seen or heard the witnesses
- An appellate court will not interfere with the discretion of a trial court unless the discretion was exercised contrary to law, the trial magistrate misapprehended the law, failed to consider a relevant factor or considered an irrelevant factor, or the decision is plainly wrong
- Once trespass to land is established, it is actionable per se and no proof of damage is necessary for the court to award general damages
Court orders
#- 1.The Appellant's appeal is dismissed entirely
- 2.The Judgment and Decree of the trial court (Kangema CMCC 18 of 2014) are upheld
- 3.The Respondents are awarded the costs of this Appeal
- On appeal from
- Kangema Chief Magistrate's Court
- Civil Suit 18 of 2014
- Jurisdiction invoked
- First appeal under Section 78 of the Civil Procedure Act (ELC appellate jurisdiction over the magistrates' court judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihara Kiunjuri v Harrisson Macharia Waithaka & 2 others [2021] KEELC 659 (KLR)", Case Analysis (2021). ELC Appeal No. 17 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/659/eng@2021-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.