Ngendu & another v Kithaka & another (Environment and Land Appeal E004 of 2025) [2025] KEELC 8527 (KLR)
The bottom line
#The Environment and Land Court dismissed a trespass claim because a survey report showed no encroachment, confirming you must prove trespass with survey evidence.
What this practically means
#Executive summary
#Key legal issues
#Ownership of plot no. 41 Ishiara Market
The minutes of the defunct Mbeere County Council and rent receipts indicated the Appellants were owners of plot no. 41
The Appellants relied on extracts of minutes of the defunct Mbeere County Council dated 6/10/2004 and 6/9/2012 and rent receipts paid by Peter Gakuya and Partners. The court accepted that these documents, taken together, could indicate ownership of plot no. 41, even though no allotment letter was produced.
Whether the 1st Respondent trespassed on plot no. 41
No trespass was proved; the survey report did not show any encroachment on plot no. 41
The surveyor's report established that plots 41 and 125 existed on the ground but made no finding of encroachment. The Appellants admitted that encroachment could only be proved by a site visit and surveyor's report. Absent evidence placing the 1st Respondent's developments on plot no. 41, the burden of proving trespass was not discharged.
Failure to conduct a site visit
The site visit was frustrated by the parties' own conduct and the court retains discretion on site visits; expert surveyor evidence suffices
The court noted the trial proceedings showed the site visit was frustrated by the parties' conduct. It further held that the surveyor, as an expert, would guide the court on whether a parcel exists on the ground and its size, so absence of a site visit did not vitiate the judgment.
Existence of plot no. 125 and the 1st Respondent's entitlement
Plot no. 125 exists on the ground per the survey report, and the trial court properly inferred it belonged to the 1st Respondent from the legalisation letter and rent receipts
The 1st Respondent produced a 'Legalisation of Stall' letter authorising construction of stall no. 125 and rent receipts. Although unclear whether the stall sits on plot no. 125, the survey report confirmed plot no. 125 exists on the ground, supporting the trial court's inference of his ownership.
Legal principles established
#- A party alleging trespass must prove it on a balance of probabilities, including the location of the land allegedly encroached upon
- A court retains discretion whether to conduct a site visit; a surveyor's expert evidence may guide the court on the existence and size of a parcel on the ground
Court orders
#- 1.Appeal dismissed
- 2.Respondents to have the costs of the appeal
- On appeal from
- Siakago Magistrate's Court (MCELC)
- E082 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's decision in Siakago MCELC Case No. E082 of 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngendu & another v Kithaka & another (Environment and Land Appeal E004 of 2025) [2025] KEELC 8527 (KLR)", Case Analysis (2025). Siakago MCELC Case No. E082 of 2022 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8527/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.