Byegon & 2 others v Ngeno (Environment and Land Appeal E005 of 2024) [2025] KEELC 6187 (KLR)
The bottom line
#Kericho's Environment and Land Court overturned a trespass judgment, ruling the land dispute was really a boundary issue and that trespass damages and mesne profits cannot both be awarded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Learned Trial Magistrate erred in law and in fact in failing to consider the Surveyor's Report dated 20th November, 2015 which stated that there was no trespass
- 2.Whether the Learned Trial Magistrate erred in law and in fact in awarding the Respondent general damages and mesne profits
- 3.Whether the Learned Trial Magistrate erred in law and in fact in awarding the Respondent costs
- 4.Who should bear costs of the appeal
Key legal issues
#First appellate court's duty
A first appellate court must re-evaluate, re-assess and re-analyse the evidence and draw its own conclusions while making allowances for not having seen or heard the witnesses
Relying on Gitobu Imanyara and Abok James Odera, the Court restated that an appeal from a trial court is by way of retrial; the appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, bearing in mind that it did not see or hear the witnesses.
Surveyor's Report and the finding of trespass
The Trial Magistrate erred in failing to rely on the Surveyor's Report; the dispute was a boundary dispute disguised as trespass, and the finding of wrongful occupation was erroneous
The Surveyor's Report found no distinct boundary defining parcel 3026 and that 3024 was merged with 3025. The Court held the report confirmed that occupation could not properly be characterized as wrongful trespass, and the trial magistrate erred in not relying on it.
Criminal conviction for forcible detainer
Criminal proceedings are not binding on a civil court; an independent civil finding on trespass must be made
Neither party produced the proceedings or judgment in Criminal Case No. 201 of 2013, so the civil court could not establish the facts of the conviction. The trial court should have evaluated the facts and situated them in the law apart from the criminal proceedings.
General damages and mesne profits
The trial court erred in awarding both general damages for trespass and mesne profits; only one can be granted and both awards were set aside
Following Christine Nyanchama Oanda and the authorities therein (Inverugie Investments, Kenya Hotel Properties), the Court held that mesne profits and damages for trespass mean one and the same thing and only one can be awarded. Having found no trespass, both awards also fell away.
Ground on costs of the suit
Ground 5 of the Memorandum of Appeal was deemed abandoned as neither party submitted on it
Relying on Khetshi Dharamshi and Kamonde v Mulonzya, the Court held that a ground not argued in submissions is deemed abandoned; ground 5 (award of costs to the Respondent) was therefore abandoned.
Allegation that Respondent purchased only 0.2 acres
In the absence of a Counterclaim, the Court would not address the Appellants' claim that the Respondent was entitled to only 0.2 acres
The Appellants admitted they filed no Counterclaim. Relying on Koloi v Lokwee, the Court held a defence can only dispute the plaintiff's claims; a defendant seeking remedies must file a Counterclaim.
Legal principles established
#- Where a party claims both mesne profits and damages for trespass, the Court can only grant one and not both
- A ground of appeal not submitted on is deemed abandoned
- A Defendant seeking affirmative relief from the Court must file a Counterclaim
- Costs follow the event under Section 27 of the Civil Procedure Act
Court orders
#- 1.The judgment of Hon. Kimang'a G.O, Senior Resident Magistrate, in Kericho CMCC No. 22 of 2015 dated 29th July, 2021 is set aside
- 2.The Appellants shall have the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kericho (ELC)
- Kericho CM ELC Case No. 22 of 2015 (CMCC No. 22 of 2015)
- Jurisdiction invoked
- First appeal to the Environment and Land Court from the subordinate court
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, I find that the appeal succeeds and I hereby make orders as follows:
The judgement of the Hon. Kimang'a G.O Senior Resident Magistrate at Kericho in Kericho CMCC No. 22 of 2015 dated 29th July, 2021 delivered on 7th January, 2022 is hereby set aside.
The Appellants shall have the costs of the appeal.
It is settled law that where a party claims for both mesne profits and damages for trespass, the Court can only grant one and not both.
In my view the dispute before the trial Court was actually a boundary dispute disguised as a dispute arising from trespass.
While evidence of a conviction on the ofience of forcible detainer is relevant in proving the tort of trespass, an independent finding must be made when investigating a claim of trespass.
Issues in the judgment
#The judgment records the trial judgment as 'dated 29th July, 2021 delivered on 7th January, 2022' - internally inconsistent delivery dates
Memorandum of Appeal dated 3rd May 2024 is said to be against a decision in 'Kericho CM ELC Case No. 22 of 2015' but elsewhere the case is referred to as 'Kericho CMCC No. 22 of 2015'
The parties' full names do not appear anywhere in the judgment; parties are referred to only as Appellants and Respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Byegon & 2 others v Ngeno (Environment and Land Appeal E005 of 2024) [2025] KEELC 6187 (KLR)", Case Analysis (2025). Kericho ELC Appeal (Memorandum of Appeal dated 3rd May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6187/eng@2025-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.