County Government of Kisii v Nyakeyo (Suing on Behalf of Samwel Nyakeyo Ayega) (Environment and Land Appeal E028 of 2024) [2026] KEELC 1795 (KLR)

The Appellant never pleaded locus standi in its defence, witness statements or oral evidence, raising it only in submissions. The record showed presentation of the power of attorney for registration and payment, and the Appellant did not produce an official search to prove non-registration. A limited grant under Section 54 of the Law of Succession Act authorised the Respondent to continue the suit after her father's death, and its authenticity was never challenged.

The burden under Sections 107-109 of the Evidence Act lay on the Appellant to prove the road was constructed as per the PDP and not on the Respondent's land. DW2, the surveyor, could not identify the suit parcel or confirm whether the road passed through it. A survey report showing ground positions would have been more useful than the PDP itself. The trial magistrate summarised the evidence; although she gave no reasons for her trespass finding, this court, on re-evaluation, was not convinced to reach a contrary verdict.

The amended plaint pleaded demolished rental houses as the deceased's sole source of income. Although the rental amount was not specified in the plaint, the Respondent filed and served receipts evidencing rental income, and both parties' valuation reports confirmed the rental income, so the Appellant was not taken by surprise under Order 2 rule 4(1)(b). The Appellant's authorities concerned damages in conversion and road traffic accidents and were distinguished.

The variance between the trial award and the Appellant's valuer's figure of Kshs. 4.5 million plus 15% disturbance allowance arose because the Appellant's report excluded the value of the land. As the court could not conclude the road was constructed through the Respondent's land, compensation for the land was not justified. Applying the Kemfro Africa principles, the award was varied to cover only the demolished buildings at the Appellant's valuer's assessment.

Although the Appellant's witnesses referred to a public sensitisation meeting of 3.6.2019, none produced minutes showing the Respondent was personally put on notice to remove the structures. Article 47(2) guarantees written reasons where administrative action adversely affects a person. The public meeting did not constitute notice, so the demolition was carried out without valid notice and the Respondent is entitled to compensation for loss of rent pending determination of the suit.