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ELCDismissedKerugoya ELC Appeal (Memorandum of Appeal dated 19th September 2023) arising from Kerugoya CM ELC No. E039 of 2022· [2025] KEELC 6268 (KLR)

Kirinyaga Water & Sanitation Company v Mwangi & another (Environment and Land Appeal E019 of 2023) [2025] KEELC 6268 (KLR)

Environment and Land Court
24 September 2025
3,516 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Kerugoya (J. M. Mutungi, ELC Judge) against the judgment of Hon. Cheruto C. Kipkorir (PM) delivered on 23rd August 2023 in Kerugoya CM ELC No. E039 of 2022. The trial court had held that the 1st Respondent, registered owner of Mutira/Kaguyu/6220, proved trespass after a public road was carved out of her land and the Appellant laid water pipes without a valid wayleave or her consent, awarding a permanent injunction, a declaration of trespass, damages of Kshs. 384,000/- against each defendant, and mesne profits of Kshs. 70,000/- per month from 2016 with interest and costs. The Appellant raised six grounds, principally that the suit was time-barred under Section 4(2) of the Limitation of Actions Act, barred by the exhaustion doctrine under Section 5 of the Wayleaves Act, and unsupported by proof of trespass or quantum. The ELC framed three issues: limitation, existence of a valid wayleave, and the sustainability of the trespass findings and awards. The Court held the trespass was continuing - the pipes remained in situ and were periodically repaired - so fresh causes of action arose daily and the suit was not time-barred, following Eliud Njoroge Gachiri. No wayleave agreement was produced; the Appellant's own witness conceded none existed, its inconsistent timelines and later negotiations undermined its plea, and the burden of proving the wayleave was not discharged. The trial court's findings on trespass, damages and mesne profits were upheld as neither based on wrong principles nor excessive. The appeal was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Limitation - whether the claim was time-barred under Section 4(2) of the Limitation of Actions Act

Holding

The claim was not time-barred because the laying and maintenance of the pipes constituted a continuing trespass generating fresh causes of action

Reasoning

The pipes remained in situ and were repaired from time to time, requiring access to the land. The act was not isolated but a continuous deprivation of the owner's exclusive possession. Applying Eliud Njoroge Gachiri, every continuance of a trespass is a fresh trespass, so the 2022 suit was competent for causes of action arising within three years of filing and for ongoing injury. The limitation defence failed.

p. 5
02

Whether the Appellant had a valid wayleave or other lawful authority

Holding

No valid wayleave was proved; no agreement was produced and the Appellant's later attempts to negotiate a fresh wayleave contradicted its claim

Reasoning

The Appellant pleaded a wayleave granted by the 1st Respondent's late husband in 2007 but produced no documentary evidence. Its own witness conceded no wayleave agreement was produced and admitted encroachment could not be ruled out. The land was co-owned and the husband could not lawfully have granted a wayleave alone. Section 148(1) of the Land Act entitles the proprietor to compensation, and none was paid.

p. 6
03

Whether trespass was proved and whether damages and mesne profits were sustainable

Holding

Trespass was proved and the awards of Kshs. 384,000/- damages against each defendant and mesne profits of Kshs. 70,000/- per month from 2016 were justified and not excessive

Reasoning

As registered owner, the 1st Respondent was entitled to exclusive possession under Sections 24 and 25 of the Land Registration Act and protection under Article 40 of the Constitution. Trespass is actionable per se. The surveyor confirmed an unauthorised road and the valuer assessed the encroached portion at Kshs. 384,000/-. Mesne profits compensated loss of use from thwarted development plans; there was no double recovery.

p. 6

Legal principles established

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  • A continuing trespass gives rise to a fresh cause of action from day to day, so a claim founded on continuing trespass is not time-barred under Section 4(2) of the Limitation of Actions Act
  • The party asserting a wayleave bears the burden of proving its existence; failure to produce a wayleave agreement defeats the assertion
  • A first appellate court must re-evaluate the evidence and reach its own conclusions but will not disturb findings of fact unless based on no evidence, misapprehension of the evidence, or wrong principles

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st Respondent
  2. 2.Judgment of the trial court (permanent injunction, declaration of trespass, damages of Kshs. 384,000/- against each defendant, mesne profits of Kshs. 70,000/- per month from 2016 with interest and costs) remains undisturbed

Authorities

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Legislation

  • Limitation of Actions ActSection 4(2)
  • Wayleaves ActSection 5
  • Constitution of KenyaArticle 40(3); Article 40
  • Land Registration ActSection 148(1); Sections 24 and 25
  • Land ActSections 143-148; Section 148(1)
  • Water Actnull
  • Trespass ActCap 403

Cases cited (13)

  • Simon Ndwiga Murage v Embu Water & Sanitation Co. Ltd
    [2020] eKLR
  • Speaker of the National Assembly v Karume
    [1992] KLR 21
  • Geoffrey Muthinja Kabiru & Others v Samuel Munga Henry & 1756 Others
    [2015] eKLR
  • Serah Njeri Mwobi v John Kimani Njoroge
    [2013] eKLR
  • Mursal & Another v Manase
    CA No. E20 of 2021
  • Stanley Munga Githunguri v National Land Commission & Another
    [2015] eKLR
  • Machareus Obaga Anunda v Kenya Electricity Transmission Co. Ltd
    [2015] eKLR
  • Eliud Njoroge Gachiri v Stephen Kamau Ng'ang'a
    [2018] eKLR
  • Selle & Another v Associated Motor Boat Co. Ltd
    (1968) EA 123
  • Mwanasokoni v Kenya Bus Service Ltd.
    (1982-88) 1 KAR 278
  • Kiruga v Kiruga & Another
    (1988) KLR 348
  • Bosire Ongero v Royal Media Services
    [2015] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
On appeal from
Chief Magistrate's Court, Kerugoya
CM ELC No. E039 of 2022
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in land matters

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, "Kirinyaga Water & Sanitation Company v Mwangi & another (Environment and Land Appeal E019 of 2023) [2025] KEELC 6268 (KLR)", Case Analysis (2025). Kerugoya ELC Appeal (Memorandum of Appeal dated 19th September 2023) arising from Kerugoya CM ELC No. E039 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6268/eng@2025-09-24

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