Gaku & 3 others v Kiai (Environment and Land Appeal E015 of 2025) [2026] KEELC 1142 (KLR)

The Respondent adopted his witness statement and pleaded ownership in the plaint. Section 62 of the Evidence Act permits facts to be proved by oral evidence. He was not cross-examined on ownership and the defence never pleaded the plots were not his, so the point was not a trial issue.

The damages were specifically pleaded and broken down in paragraph 7 of the plaint. The Respondent was cross-examined on them and not shaken; the court was satisfied of the special damages even absent receipts.

Although the record of appeal omitted the first page containing the case number, the original file showed the judgment between Mwangi Kamau and Charles Kiai Maina. Under Section 60(1)(a) of the Evidence Act the court must take judicial notice of rules and principles having the force of law; the judgment formed part of the lower court record.

The court held that any party affected by encroachment has locus standi. The Respondent showed he was directly affected by the Appellants' encroachment on the road reserve, which blocked access to his plots.

The 1st Appellant swore he did not intend to sell the plot, so he could not blow hot and cold; section 120 of the Evidence Act estopped him from raising third-party ownership. Further, the judgment was directed against the suit property (in rem) not the owner. A transfer in breach of a court order was null and void.

The surveyor's report dated 11-2-2025 gave the plot as 35 by 80 feet (2,800 sq ft) while the valuation report gave 45 by 90 feet (4,050 sq ft), an excess of 1,250 square feet encroaching on the road reserve. The implementation mechanism is demolition of everything outside the allocated size.

There was overwhelming evidence from the District Commissioner and the County Government of Murang'a and its predecessor that the Appellants were repeatedly ordered to demolish the encroaching building and ignored lawful orders. The defence was a mere denial that evaded the truth.