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ELCDismissedEnvironment & Land Case 139 of 2015· [2023] KEELC 16093 (KLR)

Rono v Mosonik

Environment and Land Court
2 March 2023
MOM.C. Oundo
5,237 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A landowner lost his trespass case because he sued for the wrong thing and never proved the neighbour entered his land.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant for trespass onto land parcel LR Kericho/Kaitet/577, seeking eviction, a permanent injunction, mesne profits, costs and interest. The Defendant denied trespass, asserting occupation of his own parcel (formerly 412, now 662) and that the Plaintiff's claim was unpleaded and an abuse of process. By consent, the Land Registrar and District Surveyor visited the site and filed reports. The Plaintiff called the Bomet District Surveyor, the Land Registrar and a neighbour; the Defendant testified with three witnesses including a professional surveyor. Notably, the Plaintiff himself never testified. The evidence established that although a 10-metre strip on the ground had been used as a road to a water point, it did not appear on the Registry Index Map, and the strip lay on parcel 633 owned by Justina Chelangat Chelule, not on the Defendant's land. At trial the Plaintiff's case shifted from trespass to blockage of a road of access, without amending the pleadings. The court framed a single issue: whether the Plaintiff had proved his case on a balance of probability. Applying the principle that parties are bound by their pleadings (IEBC v Mutinda Mule; Joseph Mbuta Nziu; DEN v PNN), the court held that the unpleaded road-of-access claim could not be determined and that no evidence established trespass by the Defendant. The suit was dismissed with costs on 2 March 2023.

Key legal issues

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01

Whether the Plaintiff proved trespass onto parcel Kericho/Kaitet/577

Holding

Not proved; the evidence showed the disputed 10-metre strip was on parcel 633 owned by Justina Chelangat Chelule, not the Defendant's land

Reasoning

The surveyor's evidence was that the 10-metre strip used as a road to the water point lay on parcel 633 owned by Justina Chelangat Chelule, and that parcel 662 did not border parcel 577. No witness or expert confirmed that the Defendant entered or occupied the Plaintiff's parcel. The dispute actually concerned use or blockage of a road, not trespass.

p. 8
02

Whether the court can determine an unpleaded claim of blockage of a road of access

Holding

No; the claim litigated at trial (blockage of a road of access) did not flow from the pleadings and could not be determined

Reasoning

The Plaint pleaded trespass, but at trial the Plaintiff and his witnesses litigated blockage of a road of access without amending the pleadings. Relying on IEBC v Mutinda Mule, Joseph Mbuta Nziu and DEN v PNN, the court held parties are bound by their pleadings and a court cannot pronounce judgment on issues not arising from them.

p. 9

Legal principles established

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  • Parties are bound by their pleadings; evidence at variance with the pleadings goes to no issue and must be disregarded
  • A court cannot make determinations on issues not pleaded or grant relief not sought

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs

Authorities

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Legislation

  • Land Registration ActSection 24(a), Section 25(1)
  • Trespass ActSection 3(1)
  • Civil Procedure RulesOrder 2 Rule 4

Cases cited (15)

  • Mcllkenny vs Chief Constable of West Midlands
    [1980] All ER 227

    Evolution of the doctrine of estoppel; estoppel by conduct and by election

  • Banning vs Wright
    (1972) 2 All ER 987

    Estoppel by election or waiver as intentional relinquishment of a known right

  • Kenya Power & Lighting Co. Limited v Sheriff Molana Habib
    [2018] eKLR

    Restraint of continuing trespass

  • Vijay Marjoria vs. Naimising Madhusing Darbar
    Civil Appeal No. 106/2000

    A point not pleaded, even if canvassed at hearing, cannot be a basis of determination

  • John Njenga vs. Bata Shoe Company Ltd
    Nairobi High Court Civil Case No. 2332

    Court cannot determine issues not pleaded

  • Galaxy Paints Company Limited vs. Falcon Guards Ltd
    Civil Appeal No. 219 of 1998 (2000) 2 EA 385

    Issues for determination flow from the pleadings

  • Independent Electoral and Boundaries Commission & another vs. Stephen Mutinda Mule & 3 others
    [2014] eKLR

    Parties bound by their pleadings; court adjudicates only matters raised by pleadings

  • Malawi Railways Limited vs. Nyasulu
    [1998] MWSC 3

    Quoted in IEBC v Mutinda Mule on the importance of pleadings

  • Joseph Mbuta Nziu v Kenya Orient Insurance Company Ltd
    [2015] eKLR

    Evidence at variance with pleadings goes to no issue and must be disregarded

  • In Adetoun Oladeji (NIG) Limited vs. Nigerian Breweries PLC
    S.C. 91/2002

    Parties are bound by their pleadings

  • DEN vs PNN
    [2015] eKLR

    Courts determine cases on issues flowing from pleadings; parties confined to pleadings

  • Chalicha FCS Ltd Vs Odhiambo & 9 Others
    [1987] KLR 182

    Cases must be decided on the issues on the record

  • Anthony Francis Wareham & Others Vs Kenya Post Office Savings Bank
    C.A 5 and 48 of 2002

    Court should not make findings on matters not pleaded or grant relief not sought

  • Greenfield Investment Limited Vs Baber Alibhai Mainji
    Civil Appeal No. 155 of 2004

    A court cannot pluck issues from the air; pleadings determine the issues

  • John Kiragu Kimani vs Rural Electrification Authority
    [2018] eKLR

    Definition of trespass from Clark & Lindsell on Torts

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (Article 162(2)(b) Constitution; ELC Act) - not expressly stated in the judgment

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, "Rono v Mosonik", Case Analysis (2023). Environment & Land Case 139 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16093/eng@2023-03-02

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