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ELCDismissedNot stated in the judgment as provided· [2022] KEELC 315 (KLR)

Joseph Mithika M’ithula v Jacob Mung’athia Munoru [2022] KEELC 315 (KLR)

Environment and Land Court
30 March 2022
2,758 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his trespass claim because he had no survey evidence proving where his boundary actually was.

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 (C.K. Nzili, ELC Judge) against a magistrate's court decision in a trespass dispute between the owners of Plot No. 7 (appellant) and Plots No. 106 and 133 (respondent) in Maua Municipality. The appellant alleged the respondent encroached on approximately 40ft by 55ft of his plot, first with a stone wall in 1998 and later with commercial construction in 2011, and sought a declaration of ownership, mesne profits, general damages, demolition and a permanent injunction. The respondent, by defence and counterclaim, asserted lawful allocation by the defunct Maua Municipal Council, occupation and development since 1981, and claimed re-compensation and loss of rental income of Kshs. 130,000 per month; he adduced no evidence. The court, re-evaluating the record under Section 78 of the Civil Procedure Act, framed five issues. It held the claim was one of continuous trespass beginning in 1998, not time barred. It found the appellant estopped from disowning the surveyor and physical planner's report dated 2.2.2016 since he had himself requested the scene visit, and he produced no contrary expert evidence. The appellant failed to prove the exact measurements and boundaries or the encroachment to the required standard, so none of the reliefs sought were available. The respondent's counterclaim also failed for want of evidence. The appeal, which in substance challenged the trial court's dismissal of the suit, was dismissed with costs on 30 March 2022.

Key legal issues

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01

Whether the claim was time barred and the nature of the trespass alleged

Holding

The appellant's claim was one of continuous trespass commencing in 1998, with each continuation giving a fresh cause of action; the claim was not time barred

Reasoning

The court found the appellant's pleadings and exhibits showed the trespass began in 1998 with the stone wall and continued thereafter. Relying on Muthiora and Isaack Ben Mulwa, the court held continuous trespass generates fresh causes of action daily. Even as a claim for recovery of land, twelve years had not lapsed under the Limitation of Actions Act.

p. 3
02

Whether the surveyor's report dated 2.2.2016 could be relied upon notwithstanding the appellant's objection

Holding

The appellant was estopped from denying the report since he himself requested the scene visit, and he failed to produce a contrary expert report

Reasoning

The record showed the appellant personally requested that the Maua Municipal surveyor and Igembe South District physical planner visit the scene. Having requested the exercise, he could not disown the resulting report. Having adduced no rebuttal survey evidence, his attack on the report could not stand.

p. 3
03

Whether the appellant proved encroachment of his plot

Holding

The appellant failed to prove encroachment to the required standard and was not entitled to any of the reliefs sought

Reasoning

It was incumbent on the appellant to prove the exact measurements and boundaries of Plot No. 7 vis-à-vis Plots 106 and 133. He alleged trespass without producing expert reports. The burden of proof lay on him to establish his complaint and ownership through documentary evidence, which he failed to do.

p. 3
04

Whether the respondent's counterclaim was proved

Holding

The counterclaim failed because the respondent tendered no evidence in support of it

Reasoning

Apart from pleadings, the respondent called no evidence. It is trite law that pleadings unsupported by evidence remain unsubstantiated, following Trust Bank Ltd v Paramount Universal Bank Ltd. The counterclaim for re-compensation and loss of rental income therefore collapsed.

p. 4

Legal principles established

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  • On a first appeal, the court must re-evaluate the evidence and reach its own conclusions while giving due allowance to the trial court's advantage of assessing witness demeanour
  • Every continuous trespass is a fresh trespass giving rise to a new cause of action from day to day as long as the trespass continues
  • Pleadings bind the parties and issues flow from the pleadings
  • A party who alleges trespass must prove the exact measurements and boundaries, normally through expert survey evidence, and expert evidence must be considered alongside all other evidence
  • Where a party fails to call evidence in support of its case, its pleadings remain unsubstantiated

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 16
  • Civil Procedure ActSection 78
  • Trespass Act (Cap 403)Section 3
  • Limitation of Actions ActSections 4 and 7
  • Survey ActNot specified (and the Rules made thereunder)

Cases cited (12)

  • Peter -vs- Sunday Post
    [1958] E.A. 424
  • Stephen Mutinda Mule –vs- Independent Electoral and Boundaries Commission & Another
    [2014] eKLR
  • Muthiora –vs- Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara - Deceased)
    (Civil Appeal 43 of 2017) [2022] KECA 28 (KLR) (4 February 2022)
  • Eliud Njoroge Gachiri –vs- Stephen Kamau Ng'ang'a
    [2018] eKLR
  • Isaack Ben Mulwa –vs- Jonathan Mutunga Mweke
    [2016] eKLR
  • Mtana Lewa –vs- Kahindi Ngala Mwagandi
    [2015] eKLR
  • Amosam Builders Developers Ltd –vs- Betty Ngendo Gachie & 2 others
    [2009] eKLR
  • Stephen Kanini Wangondu –vs- The Ark Limited
    (2016) eKLR
  • Azzuri Limited –vs- Pink Properties Limited
    [2018] eKLR
  • Josephat Mburugu –vs- Silas Mwiti Mugwika
    [2022] eKLR
  • Elizabeth Wambui Githinji & 29 Others –vs- Kenya Urban Boards Authority & 4 Others
    [2019] eKLR
  • Trust Bank Ltd -vs- Paramount Universal Bank Ltd and 2 others
    Milimani HCCC Civil Suit No. 1243 of 2001
On appeal from
Chief Magistrate's Court (Meru)
Not stated
Jurisdiction invoked
First appeal under Section 78 of the Civil Procedure Act read with Order 42 Rule 16 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Mithika M’ithula v Jacob Mung’athia Munoru [2022] KEELC 315 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/315/eng@2022-03-30

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