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ELCDismissedAmended Plaint dated 9th February 2024 (suit over L.R. No. MN/III/8746)· [2025] KEELC 596 (KLR)

Dubai Business Park Limited v County Government of Kilifi & 2 others (Environment & Land Case E057 of 2021) [2025] KEELC 596 (KLR)

Environment and Land Court
12 February 2025
EME. K. Makori
2,359 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A landowner claiming KES 70 million from Kilifi County lost because no survey evidence proved where the boundary actually was.

What this practically means

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Executive summary

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The Plaintiff, claiming to be the registered proprietor of L.R. No. MN/III/8746 (Grant No. C.R. 58326), approximately 1.571 acres at Shariani Trading Centre, Kilifi, purchased in 2018 from the original allottees Francis Karisa Mwambogo and George Kaiza Kautela, sued the 1st and 2nd Defendants for encroachment and trespass, alleging that they erected Kilifi South Sub-County offices on the suit property. It sought compensation of Kshs. 70,000,000/-, a declaration of proprietorship, a mandatory injunction to remove structures, general and exemplary damages, mesne profits, and costs. The Defendants denied trespass, asserting that the offices stand on unsurveyed public land within Shariani Camp, occupied by road sector departments since before 1994 and covered by PDP No. 845/KLF/2018-1 prepared in 2018. The court framed four issues: ownership, encroachment, entitlement to reliefs, and costs. Relying on Section 107 of the Evidence Act and following Doset Wanjala v Wandera and Peter Njuguna Gitau, the court held that encroachment on registered land is a technical issue requiring expert survey evidence to fix boundaries, which the Plaintiff failed to produce. The Defendants' evidence that the offices occupy separate unsurveyed public land was uncontroverted, and the burden never shifted. The suit was dismissed with costs to the Defendants, the court advising the Plaintiff to ascertain the location of its land.

Key legal issues

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01

Whether encroachment/trespass on registered land can be proved without survey evidence

Holding

No - encroachment is a technical issue requiring expert survey evidence; the Plaintiff produced none

Reasoning

The court adopted authority holding that where the boundary of registered land has not been fixed, a title deed alone does not establish the boundary, and a claimant alleging encroachment must produce a Survey Report or survey plan to establish the identity of the parcel, its boundaries and the location of the developments. Photographic and valuation evidence was insufficient to fix the position of the Sub-County offices relative to the suit property's boundary.

p. 4
02

Whether the burden shifted to the Defendants to show they were on separate land

Holding

It did not; the Plaintiff, who asserted trespass, bore and failed to discharge the burden

Reasoning

Citing Sections 107(1) and (2) of the Evidence Act, the court held that the party asserting facts must prove them. The Defendants adduced evidence that the Sub-County offices sit on unsurveyed public land under PDP No. 845/KLF/2018-1, separate from the suit property, which the Plaintiff did not controvert with evidence.

p. 5

Legal principles established

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  • A litigant alleging encroachment on registered land must prove it through detailed expert survey evidence and cannot rely on lay assertions
  • The burden of proving the facts a party asserts lies on that party under Section 107 of the Evidence Act and does not shift to the defendant

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs to the Defendants

Authorities

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Legislation

  • Evidence ActSection 107(1) and (2)
  • Land Registration ActSection 18(1)
  • Kenya Roads Actestablishment of KeNHA, KURA, KeRRA (2007)

Cases cited (3)

  • Doset Wanjala t/a Blessed International Ministries Church v Wandera
    [2024] KEELC 4789 (KLR)
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR
  • Peter Njuguna Gitau v Board of Management Uhuru Primary School
    [2023] KEELC 20185 (KLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over ownership, encroachment and trespass relating to land (Articles 162(2)(b) and 165(2) framework; not expressly cited in the extract)

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, "Dubai Business Park Limited v County Government of Kilifi & 2 others (Environment & Land Case E057 of 2021) [2025] KEELC 596 (KLR)", Case Analysis (2025). Amended Plaint dated 9th February 2024 (suit over L.R. No. MN/III/8746). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/596/eng@2025-02-12

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