Mukundi v Muchiri (Environment and Land Appeal E001 of 2023) [2026] KEELC 1232 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a title alone cannot prove land encroachment — you need a surveyor's technical evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent discharged the burden of proving trespass on Plot No. C348 Wang'uru Market
The respondent failed to discharge the burden; the trial court determined a technical boundary dispute without the necessary technical evidence
Under Section 107 of the Evidence Act, the burden lay on the respondent to prove trespass. No original layout plan, revised layout plan, survey report or surveyor's testimony was produced, and no boundary re-establishment exercise was conducted. The 3rd defendant admitted that replanning caused overlapping of plots but adduced no evidence reconciling them. In the absence of such evidence, any finding of encroachment rested on conjecture.
The duty of the first appellate court
The court is obliged to re-evaluate the evidence afresh and draw its own conclusions while allowing for the fact that it neither saw nor heard the witnesses
The court invoked the classic statement in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, that an appeal is by way of retrial and the appellate court must reconsider and evaluate the evidence itself, making due allowance for not having seen or heard the witnesses.
The evidentiary obligation of the planning authority that caused plot overlaps
The 3rd defendant, as planning authority whose replanning caused the admitted overlaps, was obliged to demonstrate how the overlaps were resolved, but did not
The 3rd defendant admitted in its defence that the reduction of plot sizes to create access roads caused overlapping of plots. Being the custodian of the planning records and best placed to provide maps and survey documentation, its admission imposed an obligation to show how the overlaps were addressed. Its failure meant the trial court's finding was a misdirection.
Costs on appeal
Although costs follow the event under Section 27(1) of the Civil Procedure Act, this was an appropriate case for each party to bear their own costs
Section 27(1) of the Civil Procedure Act provides that costs follow the event unless the court for good reason otherwise orders. Since the trial court's judgment was set aside for misdirection and the dispute was remitted for a survey-based determination, the court found it fair that each party bear its own costs.
Legal principles established
#- This being a first appeal, the court is duty-bound to re-evaluate the evidence afresh and draw its own conclusions while bearing in mind that it did not see or hear the witnesses
- Trespass in a boundary dispute cannot be established by merely producing a title or beacon certificate; survey or mapping evidence is required
- Ownership on paper does not automatically translate into physical positioning on the ground; technical evidence is indispensable in encroachment disputes following replanning
Court orders
#- 1.The appeal has merit and succeeds
- 2.The judgment and decree of the learned trial magistrate delivered on 8th June 2023 in Kerugoya CMCC No. 15 of 2006 is hereby set aside
- 3.The question of the physical ground position, boundaries, and extent of Plot No. C348 Wang'uru Market vis-à-vis the adjoining plots to be determined through a joint boundary re-establishment exercise by the County Surveyor, Kirinyaga County
- 4.The Respondent shall, within sixty (60) days, formally apply to the County Surveyor, Kirinyaga County, for a boundary re-establishment exercise
- 5.The County Surveyor shall visit the site in the presence of the parties, a representative of the 3rd defendant and the adjoining plot owners to reconcile the original plan, the revised plan and the actual ground position, and prepare a report
- 6.The County Surveyor's report shall be filed before the trial [lower] court within four (4) months from the date of the judgment
- 7.Upon filing of the report, the matter shall be mentioned before the trial [lower] court for directions and determination strictly on the basis of the surveyor's findings
- 8.In default of the Respondent moving the County Surveyor within the stipulated sixty (60) days, or in default of the report being filed within four (4) months, the suit shall stand struck out without further reference to the trial court
- 9.Each party shall bear their own costs in this appeal
- On appeal from
- Chief Magistrate's Court, Kerugoya
- Kerugoya CMCC No. 15 of 2006
- Jurisdiction invoked
- First appeal to the Environment and Land Court under Article 159(2)(b) & (d) of the Constitution 2010, sections 1A & 1B of the Civil Procedure Act and section 19(1) of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukundi v Muchiri (Environment and Land Appeal E001 of 2023) [2026] KEELC 1232 (KLR)", Case Analysis (2026). Kerugoya ELC Appeal arising from Kerugoya CMCC No. 15 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1232/eng@2026-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.