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ELCPartially AllowedIten SPMC ELC Case No. 27 of 2022 (Appeal)· [2026] KEELC 1844 (KLR)

Biwott v Cheboswony, Ward Administrator Kapcherop & 4 others (Environment and Land Appeal E016 of 2024) [2026] KEELC 1844 (KLR)

Environment and Land Court
19 March 2026
3,632 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a county government must pay Kshs. 350,000 for unlawfully demolishing a man's house, even if it stood on a road reserve.

What this practically means

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Executive summary

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The appellant, Benjamin Biwott, sued the respondents in Iten SPMC ELC Case No. 27 of 2022 claiming that during a road expansion exercise at Kapcherop Centre, the County Government of Elgeyo Marakwet widened a road from 6 metres to 9 metres, encroached on his parcel Cherangany/Kapcherop/1203 and destroyed his house valued at Kshs. 800,000/-. He sought declaratory relief, compensation, monthly subsistence rent of Kshs. 15,000/- and damages. The 1st, 2nd, 4th and 5th respondents admitted the road exercise caused the destruction but contended the house had encroached on the road reserve. The trial magistrate dismissed the suit, finding the plaintiff had not proved his case on a balance of probabilities, chiefly for want of expert proof and failure to witness the demolition. On appeal, Waithaka J re-evaluated the evidence as a first appellate court. The court held that admissions in the defence, together with the unchallenged survey report, established that the 5th respondent's officers carried out the impugned activity, shifting the burden to the 5th respondent to justify the encroachment. Even if the house stood on a road reserve, eviction had to follow the mandatory procedures in sections 152B, 152C, 152F and 152G of the Land Act. Trespass to land being actionable per se, the court assessed general damages at Kshs. 350,000/- but declined the pleaded special damages and rent for lack of proof. The trial judgment was set aside and substituted with judgment against the 5th respondent only, with costs of the suit and appeal awarded to the appellant, payable by the 5th respondent.

Key legal issues

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01

Whether the plaintiff proved that the 5th respondent carried out the demolition

Holding

Yes; the admissions in paragraphs 6, 7, 8 and 9 of the defence combined with unchallenged survey report evidence established the nexus

Reasoning

Although the appellant did not identify specific officers, the defence admitted that the road construction and expansion by the 5th respondent and its officers led to destruction of the house. The survey report was produced without objection and unchallenged by cross-examination. The trial magistrate erred in disregarding this uncontroverted evidence.

p. 6
02

Whether eviction/destruction complied with the Land Act eviction procedure

Holding

No; sections 152B, 152C, 152F and 152G impose mandatory procedures including notice, and the 5th respondent owed a legal duty to evict lawfully

Reasoning

Even assuming the house encroached on a road reserve, an unlawful occupant must be evicted in accordance with the Land Act, with gazetted and newspaper notice at least three months before eviction, and a right to apply to court. No such procedure was followed.

p. 6
03

Whether general damages for trespass were payable

Holding

Yes; trespass to land is actionable per se and the court assessed damages at Kshs. 350,000/-

Reasoning

The appellant proved unlawful encroachment and destruction of his property by the 5th respondent. The claim for trespass was impleaded and canvassed in submissions. Taking into account the circumstances, the respondent's conduct and impact, damages were assessed at Kshs. 350,000/-

p. 7
04

Whether the pleaded special damages were proved

Holding

No; special damages of Kshs. 800,000/- and monthly rent of Kshs. 15,000/- were not proved

Reasoning

The valuation report did not show the value of the damage, and no receipts were availed to prove the alleged monthly rent. The trial magistrate was correct on this aspect and the appellate court agreed.

p. 7

Legal principles established

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  • A first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence, misapprehension of the evidence, or wrong principles
  • Where a defendant admits carrying out an activity resulting in destruction of property, the burden shifts to that defendant to prove justification such as encroachment on a road reserve
  • Even an unlawful occupant of land is entitled to lawful eviction in accordance with the Land Act procedures
  • Trespass to land is actionable per se and acts amounting to criminal offences may also ground civil liability

Court orders

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  1. 1.The judgment of Hon. G. Adhiambo SPM dismissing the suit and any decree or orders pursuant thereto is set aside
  2. 2.Substituted judgment that the appellant proved his case against the 5th defendant on a balance of probabilities
  3. 3.General damages for trespass to land and destruction of property assessed at Kshs. 350,000/- awarded against the 5th respondent
  4. 4.Costs of the suit in the lower court and costs of the appeal awarded to the appellant, payable by the 5th respondent
On appeal from
Principal Magistrate's Court, Iten
Iten SPMC ELC Case No. 27 of 2022
Jurisdiction invoked
First appellate court jurisdiction over appeals from the magistrates' court (Environment and Land Court appeal from Iten SPMC)

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, "Biwott v Cheboswony, Ward Administrator Kapcherop & 4 others (Environment and Land Appeal E016 of 2024) [2026] KEELC 1844 (KLR)", Case Analysis (2026). Iten SPMC ELC Case No. 27 of 2022 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1844/eng@2026-03-19

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