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ELCDismissedELC Appeal No. 19 of 2020· [2022] KEELC 1705 (KLR)

Eliud Waweru Karokwa v Irene Wanjiku Githendui [2022] KEELC 1705 (KLR)

Environment and Land Court
8 February 2022
LGL. GACHERU
5,091 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A landowner lost his trespass case in Kenya because he could not prove which plot the other person was actually occupying — surveyor evidence matters.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Murang'a from the judgment and decree of Hon. E. Wambo (RM) in Murang'a CMCC 288 of 2014, delivered on 19th September 2018, dismissing the Appellant's claim. The Appellant had sued the Respondent for trespass, seeking an order to vacate Plot No. D122, Sagana Town, eviction if necessary, damages of Kshs. 13,500, and costs, asserting he purchased Plot D122 from John Gitau Kangethe in 2011. The Respondent asserted she occupied Plot No. 262, Sagana Town, purchased by her brother Isaac Njau Githendui from Njogu P. Nganga in 2014, and that Plot D122 did not exist. The trial court dismissed the suit, finding the claim unproven. On appeal, the Court framed four issues: its jurisdiction, trespass, the merits of the appeal, and costs. It found it had appellate jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, noting the jurisdiction objection had not been raised at trial. On trespass, the Court held that although the Appellant's ownership of Plot D122 was uncontroverted, he failed to prove on a balance of probabilities that the land the Respondent occupied was Plot D122 and not Plot 262; neither party called surveyor evidence on the plots' locations, which appeared subject to double allocation and/or reallocation. The trial magistrate's determination was found proper and not plainly wrong. The appeal was dismissed entirely, the trial court's judgment and decree upheld, and costs of the appeal awarded to the Respondent, borne by the Appellant. Judgment dated 8th February 2022, delivered virtually by L. Gacheru J.

Key legal issues

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01

Whether the ELC at Murang'a had jurisdiction over the appeal given the situs of the suit property

Holding

The Court had jurisdiction, being seized of the matter on appeal and the dispute relating to title to land under Article 162(2)(b) and Section 13 of the ELC Act; the jurisdiction objection had not been raised in the court of first instance

Reasoning

The Respondent argued the cause of action arose in Kirinyaga County and the suit should have been filed at Baricho or Kerugoya. The Court noted the objection was not raised at trial and that it was curious to raise it on appeal. Relying on the Constitution and the ELC Act, the Court held it had appellate jurisdiction over disputes relating to title, use and occupation of land.

p. 5
02

Whether the Respondent trespassed on the Appellant's Plot No. D122, Sagana Town

Holding

The Appellant failed to prove on a balance of probabilities that the land the Respondent occupied was Plot No. D122 rather than Plot No. 262; no surveyor's evidence fixed the locations of the plots, which appeared subject to double allocation and/or reallocation

Reasoning

Both parties claimed different plots. Ownership of D122 was corroborated by the Appellant's witnesses, but the critical gap was proof that the Respondent's occupation was of D122 and not Plot 262. Neither party led expert evidence of location. Where the evidence is equally unconvincing, the party bearing the burden fails. Trespass could therefore not be established.

p. 7
03

Whether the appeal was merited

Holding

The appeal was not merited; the trial magistrate did not misapprehend the law or facts and arrived at a proper determination

Reasoning

Applying the first-appeal standard, the Court re-evaluated the evidence and reached the same conclusion as the trial court: the Appellant did not discharge the burden of proof. The discretion of the trial court would not be disturbed as the decision was neither plainly wrong nor based on misapprehension of law or fact.

Legal principles established

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  • On a first appeal, the appellate court must analyze and re-assess the evidence and reach its own independent decision, while making allowance for not having seen or heard the witnesses
  • Jurisdiction is everything and must be determined at the first instance; a court without jurisdiction must down its tools
  • The Environment and Land Court has appellate jurisdiction to hear and determine all disputes relating to environment and the use, occupation of, and title to land
  • To establish trespass, a plaintiff must prove ownership or possession of the land and that the defendant intruded without authority
  • The legal burden of proof lies on the party who invokes the aid of the law and asserts the affirmative of the issue, to be discharged on a balance of probabilities
  • Where parties lay claim to different plots and neither is a surveyor, only a surveyor and an official from the relevant County office could aid in determining the real issues in controversy

Court orders

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  1. 1.The Appeal is disallowed and dismissed entirely
  2. 2.The Judgment and Decree of the trial Court is upheld
  3. 3.The Respondent will have the costs of this Appeal to be borne by the Appellant

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b) and 162(3)
  • Environment and Land Court ActSection 13
  • Civil Procedure ActSection 78
  • Trespass ActSection 3(1)
  • Evidence Act, Chapter 80 Laws of KenyaSections 107(1), 108, 109, 112
  • Magistrates Court Actnull

Cases cited (11)

  • Kenya Ports Authority versus Kusthon (Kenya) Limited
    (2009) 2EA 212
  • Ephantus Mwangi and Another vs. Duncan Mwangi
    Civil Appeal No. 77 of 1982 [1982-1988] 1KAR 278
  • Mbogo vs Shah
    (1968) EA at Page 93
  • The Owners of the Motor Vessel 'Lillian S'…Vs…Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • Ndimu…Vs…Ndimu & Another
    (2007)1EA 269
  • Lydia Nyambura Mbugua …vs…Diamond Trust Bank Kenya Limited & another
    [2018] eKLR
  • John Kiragu Kimani vs Rural Electrification Authority
    [2018] eKLR
  • Evans Nyakwana vs. Cleophas Bwana Ongaro
    (2015) eKLR
  • William Kabogo Gitau vs. George Thuo & 2 Others
    [2010] 1 KLR 526
  • Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another
    (2015) eKLR
  • Miller Vs Minister of Pensions
    (1947) 2 ALL ER 372
On appeal from
Murang'a Chief Magistrates Court
Civil Suit 288 of 2014
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act (appellate jurisdiction from subordinate court)

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, "Eliud Waweru Karokwa v Irene Wanjiku Githendui [2022] KEELC 1705 (KLR)", Case Analysis (2022). ELC Appeal No. 19 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1705/eng@2022-02-08

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