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ELCDismissedLand Case Appeal E011 of 2024· [2025] KEELC 4458 (KLR)

Thiritu v Kaburu (Land Case Appeal E011 of 2024) [2025] KEELC 4458 (KLR)

Environment and Land Court
5 June 2025
5,525 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a first appeal to the Environment and Land Court at Isiolo against the judgment of the Chief Magistrate delivered on 15 May 2024 in CMC ELC 86 of 2018 (a suit originally filed at Meru on 15 November 2007). The appellant had sued seeking a permanent injunction restraining interference with plot KAMBI JUU/4X1, compensation for loss and damage, and costs. The respondent counterclaimed for a permanent injunction restraining the appellant from interfering with his plot 60 and its 4-metre access road. The trial magistrate dismissed the appellant's suit and allowed the counterclaim. On appeal, the appellant contended the magistrate failed to appraise the evidence, misapprehended the burden and standard of proof, and relied on unauthenticated documents. The ELC identified two issues: whether the appellant proved his case, and whether the respondent proved the counterclaim. Holding that encroachment can only be proved by a survey report from a qualified surveyor, which the appellant never tendered, and that his photographs were inadmissible for want of a section 106B electronic certificate and lacked dates, the court found the appellant discharged neither the evidential nor the legal burden. Conversely, evidence from DW4 (a government surveyor), DW2, DW5 and DW6, the surveyor's report (Exhibit D7) and the locus in quo proceedings established the existence of the 4-metre access road and the appellant's encroachment of approximately 4.2 metres. The court affirmed the trial judgment, dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether the appellant proved his claim of interference with plot KAMBI JUU/4X1 and demolition of his house

Holding

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

Reasoning

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.

p. 7
02

Whether the respondent proved his counterclaim concerning the 4-metre access road to plot 60

Holding

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

Reasoning

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.

p. 10
03

The scope of the first appellate court's jurisdiction

Holding

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

Reasoning

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

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  • 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

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  1. 1.The Appeal be and is hereby dismissed
  2. 2.Cost of the appeal be and are hereby awarded to the Respondent
  3. 3.The Judgment of the subordinate court (Chief Magistrate) be and is hereby affirmed

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Evidence Act, Chapter 80 Laws of KenyaSections 3(1), 106B, 107, 108, 109

Cases cited (10)

  • Kenya Urban Roads Authority & another v Belgo Holdings Limited
    (Civil Appeal E011 of 2021) [2025] KECA 764 (KLR) (9 May 2025)
  • Peters v Sunday Post Limited
    [1958] EA 424
  • Agnes Nyambura Munga (suing as the Executrix of the Estate of the late William Earl Nelson) v Lita Violet Shepard (sued in her capacity as the Executrix of the of the Late Bryan Walter Shepard)
    [2018] eKLR
  • Daniel Toroitich Arap Moi vs Mwangi Stephen Mureithi
    [2014] eKLR
  • Gwer & 5 others v Kenya Medical Research Institute & 3 others
    [2020] KESC 66 (KLR)
  • County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others
    [2015] eKLR
  • Capital Fish Limited versus Kenya Power and Lighting Company Limited
    [2016] eKLR
  • Superior Homes (Kenya) PLC v Water Resources Authority & 9 others
    (Civil Appeal E330 of 2020) [2024] KECA 1102 (KLR) (19 August 2024)
  • Odinga & another v Independent Electoral and Boundaries Commission & 2 others; Aukot & another (Interested Parties); Attorney General & another (Amicus Curiae)
    (Presidential Election Petition 1 of 2017) [2017] KESC 42 (KLR)
  • Miller vs Minister of Pensions
    (1947)
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

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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, "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.