Rioba & 4 others v Saimo (Environment and Land Appeal E033 of 2024) [2025] KEELC 8575 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that simply living on someone's registered land, without proof of a legal right, is trespass that justifies eviction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred in ordering an eviction of the Appellants from the suit land
- 2.Whether the Appellants were trespassers on the suit land
- 3.Whether the court could on appeal consider an unpleaded claim that the Respondent holds the suit land in trust for the Appellants
Key legal issues
#Whether the Appellants were trespassers on land registered in the Respondent's name
Yes - their admitted occupation without proof of any lawful right or consent constituted trespass
It was not disputed that the suit land was registered in the Respondent's name. The Appellants admitted in their defence and evidence that they had lived on the land for years. The burden lay on them to show they were lawfully on the land; by admitting occupation they failed to discharge that burden, and with title registered in the Respondent's name the trial court rightly found trespass. Occupation alone confers no interest recognised in law.
Whether an unpleaded claim of trust (customary/constructive trust) could be entertained on appeal
No - the trust claim was not pleaded by way of counterclaim and arose only in submissions and on appeal, so it could not be considered
The court held that parties are bound by their pleadings and that submissions are merely persuasive arguments, not pleadings or evidence. Citing Kenya Hotels Limited v Oriental Commercial Bank, a new point not pleaded or canvassed at trial should not be allowed on appeal unless the evidence establishes beyond reasonable doubt that fully investigated facts would support it. The trust claim was therefore an afterthought and could not ground the appeal.
Whether the trial court erred in ordering eviction
No - the trial court arrived at the correct conclusion and the appellate court declined to interfere
Applying the settled principles governing a first appeal, the judge reconsidered and analysed the pleadings, evidence and the trial court's reasoning. Having found that trespass was proved by the Appellants' own admission of occupation and that the trust defence could not be entertained as unpleaded, the court found no basis to disturb the eviction order and dismissed the appeal.
Legal principles established
#- Parties are bound by their pleadings; submissions are not pleadings or evidence and a court cannot base its determination on unpleaded issues raised only in submissions
- A new point not pleaded or canvassed at trial should not be allowed to be taken on appeal unless the evidence establishes beyond reasonable doubt that the facts before the trial court would support the point
- Occupying land without legal title or a recognised right is an admission of trespass
- A first appellate court must re-evaluate, re-assess and reanalyse the evidence and determine whether the trial court's conclusions stand
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (trial court)
- null
- Jurisdiction invoked
- First appeal from the trial magistrates' court (statutory appeal; specific provision not stated in the judgment)
Relief refused
#The Appellants' appeal against the judgment and decree of the trial court ordering their eviction
The Appellants admitted occupation of the suit land registered in the Respondent's name, failing to discharge the burden of showing they were not trespassers, and the trust claim was not pleaded and cannot be raised for the first time on appeal
Costs
The appeal is dismissed with no order as to costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the premises, I find no reason to interfere with the decision of the trial court. In the premises, the Appeal is dismissed with no order as to costs to the respondents.
It is worth recalling that the cardinal rule of law is that parties are bound by their pleadings. Further, that submissions do not qualify to be pleadings or evidence but rather persuasive arguments for each party in trying to convince the court to decide a matter in its favour.
a new point which has not been pleaded or canvassed in the trial court should not be allowed to be taken on appeal, unless the evidence establishes beyond reasonable doubt that the facts before the trial court, if fully investigated, would support the point
His allegation that he lives on it does not confer any interest or right upon him over it. Rather, it is an admission of trespass unless it can be shown that he is lawfully there either because he has the consent of the plaintifi to be on it or has some other right recognized by law.
Issues in the judgment
#Witness chronology inconsistency: DW2 stated his father died in 1989 and that he himself was born in 1992
Typographical and naming inconsistencies throughout, e.g. 'Plaintifi' for 'Plaintiff' and 'Menganyi Nyaminga' versus 'Menganyi Nyamugiri Saimo' in the search exhibit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rioba & 4 others v Saimo (Environment and Land Appeal E033 of 2024) [2025] KEELC 8575 (KLR)", Case Analysis (2025). Not stated in the judgment (Memorandum of Appeal dated 4th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8575/eng@2025-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.