Koech v Cheruiyot (Environment and Land Case 78 of 2017) [2025] KEELC 8037 (KLR)
The bottom line
#A landowner lost his trespass case because his own surveyor confirmed there was no encroachment, proving that owning land alone is not enough—you must prove interference.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant trespassed onto the Plaintiff's parcel
Trespass was not proved; the Plaintiff failed to discharge his burden of proof
Although the Defendant filed a defence, he adduced no evidence, leaving it as mere allegations. The Plaintiff nonetheless bore the burden of proving trespass on a balance of probabilities. His own witness, the District Surveyor (PW4), confirmed in cross-examination and in the survey report dated 27th May 2019 that there was no trespass on parcel 262, and that the boundary between parcels 262 and 267 could not be conclusively re-established because the map distance did not conform with the Plaintiff's claim.
Whether the prayers in the Amended Plaint should be granted
Prayers (a) and (c) fail for want of proof of trespass; prayer (b) is unnecessary because the boundary-establishment order had already been made and executed
Given the finding that trespass was not proved, the permanent injunction and damages could not issue. On the prayer for an order to the District Surveyor to restore the boundary, the Court found it had already issued such orders on 14th February 2018 and 9th April 2019, resulting in the survey report of 27th May 2019, so a further order would be unnecessary.
Costs
Each side bears own costs - dismissal with no order as to costs
While the general rule is that costs follow the event under Section 27 of the Civil Procedure Act, the Court, in dismissing the suit, made no order as to costs, effectively departing from awarding costs to either party.
Legal principles established
#- A defendant who files a statement of defence but does not adduce evidence leaves the defence as mere allegations
- Uncontroverted evidence does not automatically carry the day; the burden of proof must still be discharged
- Costs follow the event under Section 27 of the Civil Procedure Act
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land (claim of trespass on Kericho/Kunyak/S.S/262)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koech v Cheruiyot (Environment and Land Case 78 of 2017) [2025] KEELC 8037 (KLR)", Case Analysis (2025). Environment and Land Case 78 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8037/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.