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ELCPartially AllowedKyuso Environment and Land Court Appeal (Kyuso MCCC No. 2 of 2019)· [2024] KEELC 3633 (KLR)

Maangi v Kithongo & 3 others (Environment and Land Appeal 14 of 2021) [2024] KEELC 3633 (KLR)

Environment and Land Court
30 April 2024
5,350 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 Kenyan landowner whose boundary was breached won his trespass appeal, but only KES 100,000 of his KES 530,400 claim, because his valuation report was unreliable.

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 Kitui against the judgment of Hon. J. Aringo in Kyuso MCCC No. 2 of 2019, which had dismissed the appellant's claim for trespass to land parcel Kyuso/Ngomeni 'A' 1097 and damages of Kshs. 530,400/=. The appellant, registered owner of parcel 1097, alleged that the defendants encroached, excavated soil and made bricks on his land; the defendants maintained that the brick-making occurred on parcel 1096 belonging to the 1st defendant. The first respondent's appeal was withdrawn as he was deceased, and no case was established against the 2nd and 3rd respondents, who were never mentioned in the appellant's evidence. On the merits, the court, guided by the principles in Selle v Associated Motor Boat Company and Kiruga v Kiruga, re-evaluated the evidence, including the District Surveyor's report and the trial court's site visit. It upheld the trial court's finding that the 4th respondent, John Ndemwa, had encroached on a small portion of parcel 1097 but stopped once the boundary was shown on 13th September 2018. The valuer's report of Kshs. 530,400/= was found not to be an accurate measure of the loss, as it did not identify the land by beacons or sketch maps and valued bricks rather than soil. Proof of trespass nonetheless entitled the appellant to an assessment of damages, which the court fixed at Kshs. 100,000/=. The ground of bias against the trial magistrate was rejected, no real likelihood of bias being demonstrated. The trial judgment was set aside, judgment entered against the 4th respondent for Kshs. 100,000/= with interest, the 4th respondent to pay the costs of the appeal, and each party to bear his own costs of the trial suit.

Key legal issues

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01

Whether the appellant discharged his burden of proof on trespass and damages

Holding

Trespass by the 4th Respondent on a small portion of the appellant's land was proved, but the valuation of Kshs. 530,400/= was not an accurate measure of the loss; general damages of Kshs. 100,000/= awarded instead.

Reasoning

The District Surveyor's report and the site visit confirmed the 4th Respondent had excavated soil on a small portion of parcel 1097 but stopped after the boundary was set on 13th September 2018. The valuer's report did not identify the land by beacons, was not accompanied by sketch maps, and could not establish which portions valued lay on each parcel. The appellant lost soil, not bricks, so the value of bricks made was not an accurate measure. Nevertheless, proof of trespass entitled him to an assessment of compensation, fixed at Kshs. 100,000/= given the small affected area.

p. 7
02

Whether the trial magistrate was biased against the appellant

Holding

No bias established; the trial court gave both sides a hearing, conducted a site visit and considered all evidence including the independent surveyor's report.

Reasoning

Applying the reasonable apprehension of bias test, a real likelihood of bias must be demonstrated and a mere suspicion is insufficient. Nothing in the trial proceedings or judgment suggested bias; the trial court allowed both parties to present their cases, conducted a site visit, and considered evidence from all ends including the independent surveyor's report. The ground of bias therefore failed.

p. 10
03

Liability of the 1st, 2nd and 3rd Respondents

Holding

No case established against the 2nd and 3rd Respondents as they were not mentioned in the plaintiff's evidence; the appeal against the 1st Respondent was withdrawn as deceased.

Reasoning

The court noted the appeal against the 1st Respondent was withdrawn because he is deceased. On the evidence before the trial court, neither the 2nd nor the 3rd Respondent was mentioned by the plaintiff when giving evidence of encroachment, so no case was made out against them. Their appeal was dismissed with no order as to costs since they did not appear in the appeal.

p. 5

Legal principles established

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  • A first appellate court must re-evaluate the evidence afresh while making allowance for the fact that it did not see or hear the witnesses.
  • An appellate court will not interfere with a finding of fact unless it is based on no evidence, a misapprehension of the evidence, or a clear failure to consider material circumstances.
  • A plaintiff who proves trespass is entitled to nominal damages even without actual loss, and to compensatory damages where actual damage is proved.
  • The burden of proof in civil cases lies on the party asserting the facts, discharged on a balance of probabilities.
  • The test for apparent bias is the impression given to reasonable persons; a real likelihood or probability of bias must be demonstrated.

Court orders

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  1. 1.The judgment of the trial court in Kyuso MCCC No. 2 of 2019 delivered on 24th October 2020 is set aside
  2. 2.Judgment entered in favour of the appellant against the 4th Respondent for general damages for trespass in the sum of Kshs. 100,000/= with interest at court rates from the date of the judgment
  3. 3.The 4th Respondent to pay the costs of this appeal
  4. 4.Each party to bear his own costs of the suit before the trial court
On appeal from
Senior Principal Magistrate's Court, Kyuso
Kyuso MCCC No. 2 of 2019
Jurisdiction invoked
First appellate jurisdiction over the trial magistrates' court (appeal against the judgment in Kyuso MCCC No. 2 of 2019)

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, "Maangi v Kithongo & 3 others (Environment and Land Appeal 14 of 2021) [2024] KEELC 3633 (KLR)", Case Analysis (2024). Kyuso Environment and Land Court Appeal (Kyuso MCCC No. 2 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3633/eng@2024-04-30

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