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ELCAllowedMemorandum of Appeal dated 8/5/2024· [2025] KEELC 4666 (KLR)

Lokoel v Aberun & another (Environment and Land Appeal E001 of 2024) [2025] KEELC 4666 (KLR)

Environment and Land Court
18 June 2025
1,369 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed you don't need to prove actual loss to win a trespass case—just ownership, possession, and the intruder's entry.

What this practically means

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Executive summary

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This is a first appeal from a magistrates' court judgment delivered on 16/4/2024 dismissing the appellant's claim. The appellant had sued the respondents by plaint dated 8/2/2022 seeking a permanent injunction over Plot No. 5X7 and removal of a container blocking its frontage. Interlocutory judgment was entered on 20/12/2022 after the defendants failed to file a defence, and applications by the 1st defendant to be allowed to defend, and for review, were dismissed. At trial the appellant, Wilson Ekale, testified that he bought the plot in 2006 from the 1st defendant's father, took possession, and produced a sale agreement, allotment letter, surveyor's letter and county notices. In May 2018 the respondents placed a metal container on the plot's frontage and the 1st respondent occupied houses the appellant had built. The trial court nonetheless dismissed the suit. C.K. Nzili J restated the duty of a first appellate court to re-hear and re-appraise the record, held that trespass is actionable per se and requires only proof of possession, ownership and entry, and found the appellant's official ownership documents unimpeached and his evidence uncontroverted. The court allowed the appeal with costs and granted prayers (a) and (b): a permanent injunction restraining interference with the appellant's possession, occupation and use of Plot No. 5X7, and an order directing the respondents to remove the container. Judgment was delivered at Kitale on 18 June 2025, the appellant appearing in person and the respondents absent.

Key legal issues

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01

Standard of proof of trespass

Holding

The appellant discharged the burden by proving possession, ownership and entry by the intruder through official documents.

Reasoning

The court reiterated that trespass is actionable per se and requires proof of possession, ownership and entry. The appellant produced a sale agreement, allotment letter, surveyor's letter, and county notices, none of which were impeached. Ownership was not under contest, and the County Physical Planner's letter confirmed the container blocked access, so the trial court's dismissal was unjustified.

p. 3
02

Evidentiary status of uncontroverted official documents

Holding

The appellant's ownership documents fit the description of official documents under Sections 79 and 80 of the Evidence Act and were not impeached.

Reasoning

The sale agreement, allotment letter, District Surveyor's letter, county notices and demand letter were produced and never challenged by the defendants, who took no active part. The court treated them as official documents proving title and possession, and found the appellant's evidence wholly uncontroverted.

p. 3
03

Role of a first appellate court

Holding

The first appellate court must re-hear and re-appraise the record and reach independent findings while giving credit to the trial court's advantage of seeing witnesses.

Reasoning

Relying on Gitobu Imanyara and Peters v Sunday Post, the court framed its duty as re-hearing and re-appraisal of the lower court record. Applying that duty, it found the trial court's dismissal unmerited because the appellant's trespass evidence stood uncontradicted.

p. 2

Legal principles established

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  • Trespass is actionable per se and the affected party need not prove suffering, loss or damage.
  • To prove trespass, a claimant need only prove possession, ownership and entry by an intruder.
  • An owner of land has the right of access and use under Section 25(1) of the Land Registration Act.

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.Permanent injunction restraining the respondents from charging, leasing, transferring, or in any way interfering with the appellant's possession, occupation, and use of Plot No. 5X7
  3. 3.Order directing the respondents to remove the container placed in front of Plot No. 5X7

Authorities

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Legislation

  • Trespass Act (Cap 394)Section 3(3)
  • Evidence ActSections 79 and 80
  • Land Registration ActSection 25(1)

Cases cited (6)

  • Gitobu Imanyara & Others -vs- Attorney General
    [2016] eKLR
  • Peters -vs- Sunday Post Limited
    [1958] EA 424
  • Kenya Power & Lighting Company Limited -vs- Fleetwood Enterprises Limited
    [2017] KECA 358 (KLR)
  • Aster Holdings Ltd -vs- City Council of Nairobi
    [2017] eKLR
  • Caroget Investment Limited -vs- Aster Holdings Limited & 4 others
    [2019] KECA 79 (KLR)
  • Mellen Mbera -vs- James Theuri Wambugu
    [2020] KECA 832 (KLR)
On appeal from
Magistrates' Court
null
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over the magistrates' court judgment

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, "Lokoel v Aberun & another (Environment and Land Appeal E001 of 2024) [2025] KEELC 4666 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 8/5/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4666/eng@2025-06-18

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