Thiritu v Kaburu (Land Case Appeal E011 of 2024) [2025] KEELC 4458 (KLR)
The bottom line
#The Environment and Land Court in Isiolo dismissed a landowner's appeal because he proved an encroachment claim without a surveyor's report or certified photos.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant proved his claim of interference with plot KAMBI JUU/4X1 and demolition of his house
The appellant failed to prove his case; he adduced no survey report to establish encroachment and his photographs lacked the section 106B electronic certificate, rendering them of no probative value
The appellant bore the legal and evidential burden under sections 107, 108 and 109 of the Evidence Act. Encroachment can only be discerned through a survey report by a qualified surveyor, which was never tendered. The photographs of the alleged demolition were undated and unaccompanied by an electronic certificate, so the court could not rely on them. Locus in quo proceedings in fact confirmed the appellant's own encroachment. The claim therefore failed on the balance of probabilities.
Whether the respondent proved his counterclaim concerning the 4-metre access road to plot 60
The respondent proved the counterclaim; testimony of DW2, DW4, DW5 and DW6, the government surveyor's report (Exhibit D7) and locus in quo proceedings confirmed the existence of the 4-metre access road and the appellant's encroachment upon it
The respondent contended that a 4-metre access road had existed long before the appellant purchased the suit property. DW4, a government surveyor, prepared a report dated 14 April 2011 confirming the road and the encroachment. The County Physical Planner's observations at the locus in quo showed the appellant had constructed beyond his 10-metre frontage by 4.2 metres. The court found the respondent discharged both the evidential and legal burden.
The scope of the first appellate court's jurisdiction
As a first appeal, the court was obliged to re-evaluate the entirety of the evidence and reach its own conclusions, departing from trial findings only where they were unsupported by evidence, perverse, or based on an error of principle
Relying on Kenya Urban Roads Authority v Belgo Holdings and Peters v Sunday Post, the court restated that a first appellate court must subject the whole evidence to fresh and exhaustive examination, making allowance for not having seen or heard the witnesses, and may only overturn trial findings that lack evidential support or rest on misapprehension of the law or evidence. Applying that standard, the magistrate's findings were correct.
Legal principles established
#- A plea of encroachment or interference with land can only be proved by a survey report prepared by a qualified and licensed surveyor; absent such a report, the plea remains speculative
- Photographs produced in evidence must be accompanied by an electronic certificate under section 106B of the Evidence Act; absent the certificate they are devoid of probative value
- A first appellate court must subject the entire evidence to a fresh and exhaustive examination and reach its own conclusions, while bearing in mind the trial court's advantage of seeing and hearing the witnesses
- A party claiming loss and damages must quantify, plead and particularise the loss and strictly prove it
Court orders
#- 1.The Appeal be and is hereby dismissed
- 2.Cost of the appeal be and are hereby awarded to the Respondent
- 3.The Judgment of the subordinate court (Chief Magistrate) be and is hereby affirmed
- On appeal from
- Chief Magistrate's Court, Isiolo
- CMC ELC 86 of 2018 (originally filed at Meru as a plaint dated 15 November 2007)
- Jurisdiction invoked
- First appeal under section 78 of the Civil Procedure Act (re-evaluation of evidence by first appellate court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thiritu v Kaburu (Land Case Appeal E011 of 2024) [2025] KEELC 4458 (KLR)", Case Analysis (2025). Land Case Appeal E011 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4458/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.