Ohingo v Carmelini Nchoki Tado t/a Temudo School (Environment and Land Appeal E001 of 2022) [2025] KEELC 638 (KLR)
The bottom line
#The Kisumu Land Court dismissed a widow's trespass appeal because she couldn't prove her neighbour's building actually sat on her land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant proved on a balance of probabilities that the Respondent trespassed or encroached on the suit properties
No - the Appellant failed to produce evidence showing the Respondent's construction on Kisumu/Konya/3433 (Map Sheet No. 7) encroached onto the suit properties (Map Sheet No. 10); the parcels were separate and distinct with a road of access between them
The burden lay on the Appellant under section 107 of the Evidence Act. The surveyor's report found the suit properties were subdivisions of Kisumu/Konya/2671 on Map Sheet No. 10 while the Respondent's parcel derived from Kisumu/Konya/2670 on Map Sheet No. 7. The site-visit evidence, exhibits and residents' evidence did not suggest the construction was on the suit properties, and there was no evidence of overlap of the map sheets.
The standard of appellate interference with the trial court's findings of fact
The first appellate court re-evaluates the evidence but will not interfere with findings of fact unless they were not based on evidence, proceeded on misapprehension of the evidence, or wrong principles
Citing Verani t/a Kisumu Beach Resort v. Phoenix of East Africa Assurance Co. Ltd, Selle v. Associated Motor Boat Co. Ltd, Peters v. Sunday Post Ltd and Makube v. Nyamuro, the court restated the classic framework for first appeals, then found itself unable to fault the lower court's judgment.
Legal principles established
#- The duty of a first appellate court is to re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses
- An appellate court will not ordinarily interfere with findings of fact unless they were not based on evidence, were based on misapprehension of the evidence, or the court acted on wrong principles
- Where the evidence leaves the tribunal unable to decide either way, the party bearing the burden of proof loses
Court orders
#- 1.The Appellant's appeal is dismissed
- 2.Costs of the appeal to the Respondent
- On appeal from
- Chief Magistrate's Court, Kisumu (Kisumu CMELC No. 71 of 2019)
- Kisumu CMELC No. 71 of 2019
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from magistrates' courts in land matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ohingo v Carmelini Nchoki Tado t/a Temudo School (Environment and Land Appeal E001 of 2022) [2025] KEELC 638 (KLR)", Case Analysis (2025). Kisumu ELC Appeal (from Kisumu CMELC No. 71 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/638/eng@2025-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.