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ELCDismissedNot stated in the judgment· [2026] KEELC 1498 (KLR)

Nkorongo v Rioba & 2 others (Environment and Land Appeal E002 of 2024) [2026] KEELC 1498 (KLR)

High Court of Kenya (Appellate jurisdiction over the trial magistrates' court; suit property LR Nyabasi/Bomerani/814)
11 March 2026
FNF. Nyagaka
3,366 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A landowner lost his trespass claim because he couldn't prove who built the road or support his photos with the required evidence certificate.

What this practically means

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Executive summary

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The Appellant, registered owner of LR Nyabasi/Bomerani/814, sued in the trial court claiming that in May 2021 the Defendants encroached on his land and constructed a road, seeking declarations of ownership, permanent and mandatory injunctions, compensation of Kshs. 496,883, general and aggravated damages for trespass, costs and interest. He alleged the 1st Respondent, an MCA, procured a Migori County tractor which cut the road, causing damage assessed by a valuer, an agricultural officer and a forester. The 2nd and 3rd Respondents denied the claim; their witness, the County Secretary, testified that the County never constructed a road on the land, the project was never tendered and did not feature in the County's project list. The trial court dismissed the suit with costs. On appeal, the court restated the duty of a first appellate court to re-evaluate the evidence afresh and the civil standard of proof on a balance of probabilities under Sections 107, 109 and 112 of the Evidence Act. It found that only PW1 spoke to the presence of County workers, there was no independent corroboration, the photographs were inadmissible for want of a Section 106B certificate, no evidence linked the 1st Respondent to the County Government, and the appellant did not establish the County's mandate over the road in question. Holding that the plaintiff failed to establish the nexus between the cause of action and the Respondents, the court upheld the trial magistrate's decision and dismissed the appeal with costs to the Respondents on 11th March 2026.

Key legal issues

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01

Whether the Appellant proved that the Respondents constructed the road on his land and caused the damage complained of

Holding

The Appellant failed to prove his case on a balance of probabilities

Reasoning

Only PW1 testified to the presence and actions of alleged agents of the 3rd Respondent; there was no independent corroboration. The photographs were inadmissible for want of a Section 106B certificate. No evidence linked the 1st Respondent's alleged involvement to the County Government, and no proof showed the tractor belonged to the County. The court could not tell whether the County Government or another roads authority had the mandate over the area.

p. 7
02

Whether the trial court erred in dismissing the suit

Holding

The trial court did not err; its decision was upheld and the appeal dismissed

Reasoning

The court re-evaluated the record, found no evidence linking the Respondents to the road construction, found the photographic evidence inadmissible, and agreed with the trial magistrate's finding that the burden and standard of proof were not met. The duty of a first appellate court to re-assess evidence afresh was observed, and the same conclusion was reached.

p. 7

Legal principles established

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  • The duty of a first appellate court is to re-evaluate the evidence and reach its own independent conclusions
  • The burden of proof in civil claims lies on the party who alleges, and the standard is the balance of probabilities
  • Photographs produced as evidence without a certificate under Section 106B of the Evidence Act are inadmissible

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The Respondents are awarded costs of the appeal
On appeal from
Trial court (magistrates' court, station not stated)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the decision of the trial magistrate (Memorandum of Appeal dated 22nd February 2024)

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, "Nkorongo v Rioba & 2 others (Environment and Land Appeal E002 of 2024) [2026] KEELC 1498 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1498/eng@2026-03-11

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