Mwaura & another v Naserian (Legal representative of the Estate of Josephine Asiagi Kasembe) (Environment and Land Appeal E035 of 2023) [2025] KEELC 482 (KLR)
The bottom line
#The Environment and Land Court in Nakuru dismissed the appeal, confirming buyers who never produced their sale agreements in evidence must vacate and pay damages for trespass.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was statute barred
The ground fails because limitation was never specifically pleaded in the defence, as required by Order 2 Rule 4(1) of the Civil Procedure Rules
Order 2 Rule 4(1) requires matters such as limitation to be specifically pleaded. The purpose is to avoid ambush and give the plaintiff notice and an opportunity to plead facts bringing the claim within exceptions to the Limitation of Actions Act. The Appellants' defence contained only general denials, with no plea of limitation and no counterclaim, so the issue could not be litigated for the first time on appeal.
Whether the trial Magistrate erred in ignoring the sale agreements
The ground fails because the agreements were only marked for identification and were never produced and proved as exhibits
Marking a document for identification does not prove its contents. Once marked, a document must be produced, tendered as an exhibit and a foundation laid for its authenticity and relevance. Documents not formally produced remain unproven allegations equivalent to hearsay, so the trial court correctly declined to rely on them.
Whether the Respondent proved trespass
Yes - the Respondent held an allocation letter from ADC and the Appellants, having entered as tenants and stopped paying rent after notice to vacate, became trespassers
It was not disputed that the Respondent held an allocation letter issued on 30th January 2006. Her testimony that the Appellants were tenants who refused to pay rent when issued notices to vacate was uncontroverted. Continuing trespass accrues afresh daily, so the trespass claim was not defeated and the trial court's finding stood.
Whether the general damages award was excessive
No - trespass is actionable per se and the award was reasonable, so the appellate court would not interfere
An appellate court will not substitute an award merely because it would have awarded a different figure; interference is justified only where wrong principles were applied or irrelevant factors considered. Trespass being actionable per se, no proof of actual damage is required, and the trial court considered relevant factors including inflation.
Legal principles established
#- A party who wishes to rely on a defence of limitation must specifically plead it in the defence or a subsequent pleading
- A document marked for identification but never produced and proved as an exhibit is not evidence and cannot be relied upon
- Continuing trespass gives rise to a fresh cause of action from day to day
- Trespass to land is actionable per se and no proof of actual damage is required
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- 2.The judgment and orders of the trial Magistrate dated 27th October 2023 (injunction, declaration of entitlement to possession, vacant possession, general damages for trespass, costs and interests) are upheld
- On appeal from
- Chief Magistrate's Court, Nakuru (CMELC)
- Nakuru CMELC No. 1003 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's judgment (appeal against judgment and orders in Nakuru CMELC No. 1003 of 2013)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaura & another v Naserian (Legal representative of the Estate of Josephine Asiagi Kasembe) (Environment and Land Appeal E035 of 2023) [2025] KEELC 482 (KLR)", Case Analysis (2025). Nakuru CMELC Appeal arising from Nakuru CMELC No. 1003 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/482/eng@2025-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.