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ELCDismissedEnvironment and Land Appeal E031 of 2022· [2025] KEELC 6724 (KLR)

Kiok v Ogola & 2 others (Environment and Land Appeal E031 of 2022) [2025] KEELC 6724 (KLR)

Environment and Land Court
2 October 2025
LKL. Komingoi
3,783 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Kajiado dismissed a plot owner's trespass appeal because his documents, including a surveyor's sketch, showed his own plot encroaching on his neighbour's land.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kajiado against the judgment of Hon. IM. Kahuya, Principal Magistrate, delivered on 29th June 2022, which dismissed the Appellant's suit seeking declaration of ownership of Plot No. 430 (now Plots A238 and A239) Bulbul Trading Centre and relief for trespass and encroachment by the 1st and 2nd Respondents, owners of Plot No. 425 (now A235). The Appellant, allotted the plot in 2001 and issued fresh allotment letters for A238 and A239 after the 2016/2017 validation exercise, contended the Respondents had encroached on his plot. The trial court, relying on a surveyor's report and sketch, found that plot A239 was larger than A238, with the extension eating into plot A235, meaning the Appellant himself had encroached, and dismissed his suit. The Appellant raised grounds attacking those findings, arguing the survey evidence did not establish plot sizes and that the Respondents' buildings faced the wrong direction. The 1st and 2nd Respondents maintained the Appellant had no valid title, having been shown an alternative site by the county's letter of 20th September 2005, and that his validation was fraudulent and the appeal an abuse of process. Komingoi J, restating the duty of a first appellate court to re-evaluate evidence (Musa v Musa; Selle v Associated Motor Boat Co.), found the allotment letters showed plots A238 and A239 were equal in size, yet the surveyor's sketch showed A239 extending into A235. The court held the Appellant's documents were insufficient to prove encroachment and trespass, found no basis to disturb the trial magistrate's determination, dismissed the appeal with no orders as to costs, and upheld the judgment of 29th June 2022.

Key legal issues

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01

Whether the Appellant proved encroachment and trespass by the 1st and 2nd Respondents onto his plots

Holding

The appeal fails; the documents produced by the Appellant were insufficient to establish encroachment or trespass, and the surveyor's sketch showed plot A239 extending into plot A235.

Reasoning

The appellate court re-evaluated the record. The allotment letters dated 20th May 2017 showed plots A238 and A239 equal in size (0.044478), yet the surveyor's report and sketch of 17th May 2022 showed plot A239 not on a straight line with A238 and its boundary extended into plot A235. The court found the trial magistrate considered all evidence and applied the relevant law properly, so there was no basis to interfere.

p. 7
02

The duty of a first appellate court

Holding

The court must reconsider and re-evaluate the evidence and draw its own conclusions, while according deference to trial court findings on demeanor of witnesses.

Reasoning

Relying on Musa v Musa & 6 others [2025] KECA 1283 (KLR) and Selle vs Associated Motor Boat Co. [1968] EA, the court restated the settled principle governing first appeals: the appellate court re-evaluates the evidence afresh but must exercise caution and respect the trial court's advantage in seeing and hearing witnesses. This principle framed the court's review of the trial magistrate's findings.

p. 4

Legal principles established

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  • On a first appeal, the appellate court is duty-bound to review, reanalyse and reconsider the evidence afresh and reach its own conclusions, while respecting the trial court's findings on witness demeanor.

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.No orders as to costs (each party to bear own costs)
  3. 3.The judgment delivered on 29/6/2022 by Honourable IM. Kahuya is upheld

Authorities

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Cases cited (2)

  • Musa v Musa & 6 others
    [2025] KECA 1283 (KLR)
  • Selle vs. Associated Motor Boat Co.
    [1968] EA
On appeal from
Principal Magistrate's Court
Not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decision (Environment and Land Court appellate jurisdiction)

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, "Kiok v Ogola & 2 others (Environment and Land Appeal E031 of 2022) [2025] KEELC 6724 (KLR)", Case Analysis (2025). Environment and Land Appeal E031 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6724/eng@2025-10-02

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