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ELCDismissedKimilili SPM-ELC Appeal (Memorandum of Appeal dated 26th June 2023) arising from Kimilili SPM-ELC Case No. 10 of 2014· [2025] KEELC 3222 (KLR)

Khisa v Lukurito & another (Environment and Land Appeal E026 of 2023) [2025] KEELC 3222 (KLR)

Environment and Land Court
3 April 2025
ECE.C Cherono
2,220 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Owning land is not enough to win a trespass case in Kenya; you must prove someone actually occupied or encroached on it.

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 Bungoma against the decision of the trial magistrate in Kimilili SPM-ELC Case No. 10 of 2014, which had dismissed the appellant's claim. The appellant, registered owner of land parcel Kimilili/Kimilili/2736, had sought a permanent injunction, costs and interest against the respondents, alleging they fenced off his land and destroyed his maize crop in August 2013. The respondents denied the existence of parcel 2736, asserting they occupied parcels 5385 and 5386, subdivisions of Kimilili/Kimilili/695 inherited through a succession cause. At trial the appellant called three witnesses, including his father who purchased and transferred the land to him, while the respondents called no evidence. The trial court ordered an independent survey, whose author confirmed that the boundaries of parcels 5385 and 5386 were intact, that parcel 2736 was a subdivision of parcel 672, and that there was no dispute between the parties' parcels. The appeal raised fifteen grounds, distilled by the court into a single issue: whether the trial magistrate erred in dismissing the appellant's case. Applying the settled standard that a first appellate court re-evaluates evidence but will not disturb findings of fact absent error of principle or misapprehension of evidence, the court held that the appellant proved ownership but not trespass, the surveyor having found no encroachment. The appeal was dismissed with costs on 3 April 2025.

Key legal issues

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01

Whether the trial magistrate erred in dismissing the appellant's trespass claim

Holding

No error was established; the appellant proved ownership but not trespass, so the dismissal was proper

Reasoning

The independent surveyor confirmed the boundaries of both parties' parcels were intact and that parcel 2736 has no dispute with parcels 5385 and 5386. Neither the appellant's evidence nor the surveyor's report showed any encroachment. The appellant's evidence focused on ownership rather than possession and occupation, the true elements of trespass. On the standard of appellate review, no basis existed to disturb the trial court's factual findings.

p. 5
02

Standard of interference by a first appellate court with trial court findings of fact

Holding

The first appellate court must re-evaluate the evidence but will not interfere with findings of fact unless based on no evidence, misapprehension of evidence, or wrong principle

Reasoning

Relying on Seascapes Ltd v Development Finance Company of Kenya Ltd and Ephantus Mwangi & Another v Duncan Mwangi Wambugu, the court restated its duty to reconsider and assess the evidence and draw its own conclusions, while acknowledging it did not see or hear the witnesses, and the constraints on disturbing factual findings.

p. 4

Legal principles established

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  • An appellate court will not interfere with a trial court's finding of fact unless it is based on no evidence, a misapprehension of the evidence, or a wrong principle
  • The burden of proving trespass lies on the person claiming it, and proof of ownership alone does not establish trespass, which centres on possession and occupation

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Evidence ActSections 107 to 109

Cases cited (3)

  • Seascapes Ltd v. Development Finance Company of Kenya Ltd
    [2009] KLR, 384
  • Ephantus Mwangi & Another v Duncan Mwangi Wambugu
    [1982-88] 1 KAR 278
  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
On appeal from
Senior Principal Magistrate's Court, Kimilili
Kimilili SPM-ELC Case No. 10 of 2014
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's court (appeal from Kimilili SPM-ELC Case No. 10 of 2014)

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, "Khisa v Lukurito & another (Environment and Land Appeal E026 of 2023) [2025] KEELC 3222 (KLR)", Case Analysis (2025). Kimilili SPM-ELC Appeal (Memorandum of Appeal dated 26th June 2023) arising from Kimilili SPM-ELC Case No. 10 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3222/eng@2025-04-03

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