Otuni & another v Kashu (Environment and Land Appeal E005 of 2024) [2025] KEELC 7615 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that landowners claiming trespass must prove it with solid evidence like official ground reports, not just photographs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellants proved trespass on their land by the Respondent
The appeal was not merited; the trial court's dismissal was affirmed because the Appellants failed to discharge the burden of proving trespass
The Appellants alleged trespass but only produced photographs of structures with no evidence tying them to their parcel or to the Respondent's occupation. The Land Registrar's ground report did not capture the Respondent's parcel 174. For trespass they needed to prove entry without consent, ideally through the Land Registrar or Surveyor. The chief who arbitrated was not called as a witness. The evidence remained mere allegations insufficient on the balance of probabilities.
Costs of the appeal
Costs awarded to the Respondent as the successful litigant
Costs are discretionary under Section 27 of the Civil Procedure Act and follow the event unless special circumstances warrant departure. No such circumstances existed, so the Respondent, as the successful party, was awarded costs of the appeal.
Legal principles established
#- Trespass must be proved by demonstrating entry upon land in the plaintiff's possession without lawful justification
- The burden of proof lies on the plaintiff on the balance of probabilities
- A first appellate court must reconsider and evaluate the evidence afresh while allowing for the fact it neither saw nor heard the witnesses
Court orders
#- 1.The instant Appeal is dismissed entirely
- 2.Costs of the Appeal awarded to the Respondent
- On appeal from
- Chief Magistrate's Court, Narok
- Narok CMELC No. 10 of 2019
- Jurisdiction invoked
- Section 65 of the Civil Procedure Act (first appeal from magistrates' court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otuni & another v Kashu (Environment and Land Appeal E005 of 2024) [2025] KEELC 7615 (KLR)", Case Analysis (2025). Narok CMELC No. 10 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7615/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.