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ELCDismissedKisumu ELC Appeal (from Kisumu CMELC No. 71 of 2019)· [2025] KEELC 638 (KLR)

Ohingo v Carmelini Nchoki Tado t/a Temudo School (Environment and Land Appeal E001 of 2022) [2025] KEELC 638 (KLR)

Environment and Land Court
17 February 2025
2,791 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal to the Environment and Land Court at Kisumu against the judgment of Hon. W.K. Onkunya SRM delivered on 14th December 2021 in Kisumu CMELC No. 71 of 2019. The Appellant, widow and administratrix of the estate of Solomon Wadoyi Ohingo, had sued the Respondent claiming permanent injunction, eviction and costs over alleged trespass and encroachment on three parcels of land, Kisumu/Konya/4760, 4761 and 4762. The Respondent denied the claim, contending her construction was on Kisumu/Konya/3433, a parcel on Registry Index Map Sheet No. 7 derived from Kisumu/Konya/2670, whereas the Appellant's parcels were subdivisions of Kisumu/Konya/2671 on Map Sheet No. 10, and the two parcels did not share a boundary. The trial court dismissed the suit with costs. On appeal, S. Okong'o J identified a single issue: whether the trial court erred in finding the Appellant had failed to prove trespass on a balance of probabilities. Restating the duty of a first appellate court and the burden of proof under section 107 of the Evidence Act, the court found the surveyor's report and evidence showed the parcels were separate and distinct, with a road of access between them, and no evidence of overlap of the map sheets. The appeal was dismissed with costs to the Respondent, and the request for an order for re-survey was refused.

Key legal issues

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01

Whether the Appellant proved on a balance of probabilities that the Respondent trespassed or encroached on the suit properties

Holding

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

Reasoning

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.

p. 5
02

The standard of appellate interference with the trial court's findings of fact

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Appellant's appeal is dismissed
  2. 2.Costs of the appeal to the Respondent

Authorities

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Legislation

  • Evidence Actsection 107

Cases cited (6)

  • Verani t/a Kisumu Beach Resort v. Phoenix of East Africa Assurance Co. Ltd
    [2004] 2 KLR 269
  • Selle v. Associated Motor Boat Co. Ltd.
    [1968] E.A 123
  • Peter v. Sunday Post Ltd.
    [1958] E.A 424
  • Makube v. Nyamuro
    [1983] KLR 403
  • Kurshed Begum Mirza v. Jackson Kaibunga
    [2017] eKLR
  • Miller v. Minister of Pensions
    [1947] 2 All ER 372
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

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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, "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.