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ELCDismissedConstitutional Petition dated 2nd May, 2019 (cross petition dated 22nd July, 2019)· [2026] KEELC 1205 (KLR)

Kinguta & 3 others v Ndisya & 4 others (Environment and Land Petition 3 of 2019) [2026] KEELC 1205 (KLR)

Environment and Land Court
26 February 2026
EOE. O. Obaga
936 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost a trespass claim because he had no surveyor's report proving where his neighbour's building stood—photographs alone don't win trespass cases.

What this practically means

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Executive summary

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The petitioners filed a constitutional petition on 2nd May, 2019 alleging that the 2nd Respondent wrongfully arrested and confined the 1st and 4th Petitioners, subjected petitioners to psychological and physical torture, deprived the 3rd petitioner of family care, and threatened her in default of vacating LR No. Makueni/Kitundu/4957, contravening their fundamental rights. They sought declarations, general damages, a permanent prohibition order and costs. The 1st and 2nd Respondents filed a cross petition on 22nd July, 2019 seeking declarations that the 1st cross petitioner is sole registered owner of LR No. Makueni/Kitundu/5291, that the petitioners trespassed on it, an order to demolish structures erected by the 3rd Respondent/petitioner, a permanent injunction and costs. On 19th April, 2023 the petitioners were allowed to withdraw their petition with costs agreed or to be taxed, and the cross petition proceeded. The 2nd cross petitioner, a retired chief and brother of the 1st cross petitioner, testified that the suit property was purchased from Robert Mutua Kitungu; that on 10th March, 2016 the 1st and 4th petitioners uprooted the sisal boundary, which they admitted and reinstated; and that the 3rd petitioner had since commenced construction on the suit property, the withdrawn petition being a cover-up for the trespass. The court found no contention over the respective registrations of the bordering parcels. The remaining issues were whether the 3rd petitioner trespassed and costs. Apart from a photograph of an incomplete house, no surveyor's evidence fixed the structure on the suit property, and no acts of trespass after the reinstated boundary were shown. The court held the cross petition unproved, dismissed it, and awarded costs to the petitioners. Judgment dated, signed and delivered via Microsoft Teams on 26th February, 2026.

Key legal issues

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01

Proof of trespass to land

Holding

Trespass must be proved by evidence, particularly surveyor's evidence, that the structure or encroachment is actually on the plaintiff's land; a photograph of an incomplete house does not suffice

Reasoning

The cross petitioner owned the suit property and the 3rd petitioner owned the bordering parcel. The only evidence of construction was a photograph of an incomplete house. No surveyor testified to fix the structure's location on the suit property. The court held it could not find trespass without such evidence, and the 1st and 4th petitioners had reinstated the uprooted sisal boundary with no subsequent acts of trespass shown.

p. 3
02

Burden of proof on the cross petition

Holding

The party asserting trespass bears the burden of proving it, and failure to adduce surveyor's evidence means the cross petition fails

Reasoning

The cross petitioners filed submissions asserting they had proved ownership and trespass, but no submissions or evidence overcame the evidentiary gap on the location of the structures. The court found the cross petition unproved and dismissed it with costs to the petitioners.

p. 3

Legal principles established

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  • A claim of trespass or encroachment on land requires surveyor's evidence to establish the location of the alleged encroachment; a mere photograph is insufficient

Court orders

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  1. 1.The cross petition is dismissed
  2. 2.Costs of the cross petition to the petitioners
Jurisdiction invoked
Article 22 and 23 of the Constitution of Kenya, 2010 (constitutional petition for enforcement of fundamental rights and freedoms); cross petition on land ownership and trespass

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, "Kinguta & 3 others v Ndisya & 4 others (Environment and Land Petition 3 of 2019) [2026] KEELC 1205 (KLR)", Case Analysis (2026). Constitutional Petition dated 2nd May, 2019 (cross petition dated 22nd July, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1205/eng@2026-02-26

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