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ELCPartially AllowedNakuru ELC Appeal ( Memorandum of Appeal dated 15th July, 2024)· [2026] KEELC 358 (KLR)

Sang v Kipkemoi & another (Environment and Land Appeal E035 of 2024) [2026] KEELC 358 (KLR)

Environment and Land Court
31 January 2026
MOM. A. ODENY
1,933 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed a land owner's win but cancelled damages that were never claimed in the lawsuit.

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 Nakuru (M. A. Odeny, J) against the judgment of the Learned Trial Magistrate in Molo ELC No. E21 of 2021 delivered on 27th June 2024, in which the trial court found that the 1st Respondent had proved his claim on a balance of probabilities, granted the prayers in the plaint (including a permanent injunction over land parcel Nakuru/Kuresoi/Saino/1941) and dismissed the Appellant's counterclaim seeking a declaration that he was a bona fide purchaser. The Appellant raised eleven largely repetitive grounds, distilled by the court into two issues: whether the trial court erred in upholding the plaintiff's prayers and dismissing the counterclaim, and whether it applied wrong principles of law. The court reiterated the first-appeal retrial principle from Selle v Associated Motor Boat Co. and Gitobu Imanyara, and the rule in Mwangi v Wambugu that appellate courts do not disturb findings of fact absent absence of evidence or misapprehension. On re-evaluation, the court noted the seller's title was issued during the subsistence of the government caveat over the Mau Forest Complex, entry No. 1 was undisclosed, and there was no official search certificate; neither the seller nor the 2nd Respondent testified. The Appellant failed to demonstrate any basis for interfering with the trial court's findings. However, adopting Bachhaj Nahar v Nilima Mandal, the court held the trial court's award of general damages - neither pleaded nor proved - was erroneous. The appeal partially succeeded only to the extent that the award of general damages was set aside, with each party bearing its own costs.

Key legal issues

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01

Whether the trial court erred in upholding the plaintiff's prayers and dismissing the counterclaim

Holding

The appeal fails on this issue; the trial court considered all issues per the pleadings and evidence, and the appellant did not demonstrate any basis for interference with the findings of fact.

Reasoning

The court, as a first appellate court, re-evaluated the evidence. The title held by the person who purportedly sold to the appellant was issued during the subsistence of the government caveat over the Mau Forest, entry No. 1 was undisclosed, and there was no official search certificate. Neither the seller nor the 2nd Respondent testified. Following Mwangi v Wambugu, an appellate court will not disturb findings of fact absent absence of evidence or misapprehension of the evidence.

p. 5
02

Whether the trial court erred in awarding general damages neither pleaded nor proved

Holding

The award of general damages was erroneous as it was neither pleaded nor prayed for, and it is set aside.

Reasoning

Relying on Bachhaj Nahar v Nilima Mandal, the court held that a court cannot make out a case not pleaded nor grant relief not claimed. General damages was neither pleaded nor assessed nor prayed for in the plaintiff's plaint, so the plaintiff was not entitled to that award. This was the only error identified in the trial judgment.

p. 4

Legal principles established

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  • Courts should determine a case on the issues flowing from the pleadings and cannot grant a relief which is neither claimed nor pleaded
  • A first appellate court must reconsider and evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The award of general damages is set aside
  2. 2.The appeal partially succeeds to that extent only
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 21 Rule 4
  • Evidence ActSection 107

Cases cited (6)

  • Samuel Kipngeno Letting V Ezekiel Tonui
    [2016] eKLR
  • Vivo Energy Kenya Ltd V Maloba Petrol Station Ltd & 3 others
    [2015] eKLR
  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Gitobu Imanyara & 2 Others vs Attorney General
    [2016] eKLR
  • Bachhaj Nahar v Nilima Mandal & Anr.
    (Civil Appeal Nos. 5798-5799 of 2008), (2008) 17 SCC 491
  • Mwangi V Wambugu
    [1984] KLR 453
On appeal from
Principal Magistrate's Court, Molo (Molo ELC No. E21 of 2021)
Molo ELC No. E21 of 2021
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment in a land suit

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, "Sang v Kipkemoi & another (Environment and Land Appeal E035 of 2024) [2026] KEELC 358 (KLR)", Case Analysis (2026). Nakuru ELC Appeal ( Memorandum of Appeal dated 15th July, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/358/eng@2026-01-31

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