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ELCDismissedAppeal dated 9-7-2024· [2025] KEELC 4885 (KLR)

Kamunyu & another v Murang’A County Government & another (Environment and Land Appeal E029 of 2024) [2025] KEELC 4885 (KLR)

Environment and Land Court
1 July 2025
1,735 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Landowners lost their trespass claim against Kiambu County because they never called a surveyor to prove the damage happened on their 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 Murang'a against a magistrates' court judgment dated 26-6-2024 dismissing the Appellants' suit. The Appellants, owners of parcels L.R. No. Loc. 8/Theri/451 and Loc.8/Theri/419, alleged that the 1st Respondent's agents trespassed on their land between 30th April and 2nd May, widening a road by 3 feet, uprooting fences and trees (including Macadamia), and damaging a slaughterhouse floor. The trial magistrate dismissed the suit for failure to specifically plead trespass, failure to state when the cause of action arose, and failure to plead and prove special damages. M.N. Gicheru J considered the eleven grounds of appeal and dismissed the appeal. He held that ownership of the parcels was undisputed but encroachment was not proved: a surveyor's evidence on the dimensions of the land and the extent of the road was critical and was not called. The site visit by Hon. Wachira CM was unaccompanied by a surveyor and could not assist. Special damages had to be specifically pleaded and proved per Hahn v Singh, but even proof would not have availed absent proof of trespass. Failure to plead the year of the cause of action was immaterial for the same reason. The court held that cases are won on evidence, not submissions, and affirmed that costs follow the event under Section 27 of the Civil Procedure Act. The appeal was dismissed with costs to the Respondents.

Key legal issues

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01

Whether trespass/encroachment was proved

Holding

Not proved; the Appellants failed to call a surveyor to establish that the damage occurred on their land rather than the public road

Reasoning

Ownership of the parcels was not disputed, but the dispute was whether encroachment occurred. Evidence of a surveyor showing the size and dimensions of the land, the extent of the road and proof that the road exceeded its prescribed size was critical. The exhibits, pleadings and site visit report could not substitute for that expert evidence.

p. 3
02

Whether special damages were pleaded and proved

Holding

The trial magistrate correctly required specific pleading and proof of special damages

Reasoning

Following Hahn v Singh, special damages must be specifically pleaded and proved. However, even had they been proved, they could not be awarded without first proving the damage occurred on the Appellants' land. Failure to prove trespass was fatal to the entire claim.

p. 3
03

Whether failure to state the year of the cause of action was fatal

Holding

Immaterial; without proof the property was on the Appellants' land nothing would have saved the case

Reasoning

The plaint did not state the year the cause of action arose, which was mentioned only half-heartedly in the reply to the defence. The court agreed with the trial magistrate but held the omission immaterial because the claim failed on proof of trespass in any event.

p. 4
04

Costs of the suit

Holding

The trial magistrate correctly awarded costs to the Respondents

Reasoning

The Appellants filed the suits and lost; costs follow the event under Section 27 of the Civil Procedure Act. The Respondent incurred costs defending suits that should never have been brought without proof of encroachment.

p. 4

Legal principles established

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  • The most critical evidence to prove trespass/encroachment is that of a surveyor showing dimensions and the extent of encroachment
  • Special damages must be specifically pleaded and proved
  • Cases are won on evidence, not on written submissions
  • Costs follow the event under Section 27 of the Civil Procedure Act

Court orders

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  1. 1.The appeals are dismissed
  2. 2.Costs of the appeal awarded to the Respondents
On appeal from
Magistrates' Court
Jurisdiction invoked
First appeal from the magistrates' court under the court's appellate jurisdiction (statutory appeal; specific provision not stated in the 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, "Kamunyu & another v Murang’A County Government & another (Environment and Land Appeal E029 of 2024) [2025] KEELC 4885 (KLR)", Case Analysis (2025). Appeal dated 9-7-2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4885/eng@2025-07-01

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