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ELCDismissedBusia ELC NO. 171 OF 2017· [2026] KEELC 1942 (KLR)

Ogweno v Wafula (Environment and Land Case 171 of 2017) [2026] KEELC 1942 (KLR)

Environment and Land Court
9 April 2026
BOBoaz N. Olao
2,817 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner lost his trespass case because he offered no evidence—like photos—that the neighbour actually invaded his land.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of land parcel Bukhayo/Mundika/12880, sued the Defendant seeking a permanent injunction, eviction, and an order that the County Surveyor determine the boundaries of the parcel. He claimed the Defendant had trespassed by excavating and cultivating the land, and in his evidence claimed he had purchased part of Bukhayo/Mundika/1284 in 1969 from the Defendant's late father but received only 1.725 acres instead of 3.5 acres, alternatively seeking Kshs.21,000,000. The Defendant denied the claim, stating he owned parcel 11941 and that the suit land arose from parcel 11940, whose boundaries were fixed in the parties' presence. At the commencement of trial before A. Omollo J on 25th July 2022, the Plaintiff requested a boundary survey; a joint report by the Land Registrar and County Surveyor filed on 19th March 2024 established that the boundary of the suit land was planted and marked. The Land Registrar, Violet Lamu, was cross-examined and clarified an error in the report (1264 instead of 1284). The Court, per Boaz N. Olao J, held that the prayer for boundary determination was spent, that the Plaintiff had produced no evidence of trespass such as photographs of excavation or cultivation, and that the Plaintiff failed to discharge his burden under Section 107(1) of the Evidence Act, having been on a fishing expedition. The suit was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the prayer for boundary determination remained live

Holding

The prayer was spent because the surveyor's report of 19th March 2024 established and marked the boundary of the suit land

Reasoning

The Plaintiff himself requested the survey on 25th July 2022; A. Omollo J ordered it; the joint report by the Land Registrar and County Surveyor recorded that the 0.09ha portion representing No. 12880 was curved out, marked and its boundary planted. The Plaintiff's later request for a re-survey was accommodated by cross-examination of the Land Registrar, whose testimony did not derogate from the report. The Court concluded the Plaintiff objected only because the report did not support his case.

p. 11
02

Whether the Defendant trespassed on the suit land

Holding

Trespass was not proved; the Plaintiff failed to produce visible evidence such as photographs of excavation or cultivation

Reasoning

The Plaintiff pleaded excavation and cultivation of the suit land but produced no photographs or other corroborative evidence of these visible activities. His own testimony that 'the boundaries are still intact but the Defendant is cultivating my portion' was unsupported. Counsel's attack on the Land Registrar's confusion of parcel 1264 and 1284 was answered by her clarification that 1264 was an error for 1284, which did not prejudice the parties.

p. 12
03

Whether the Plaintiff met the burden of proof

Holding

The Plaintiff failed to discharge the burden under Section 107(1) of the Evidence Act and his claim was a fishing expedition

Reasoning

The Court applied Section 107(1) of the Evidence Act and the decision in Evans Nyakwa v Cleophas Bwana Ongaro (2015) eKLR, holding that the party who invokes the aid of the law and asserts the affirmative of the issue bears the legal burden. Having approached the Court seeking injunction and eviction, the Plaintiff had to prove the pleaded allegations, which he failed to do.

p. 16

Legal principles established

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  • The legal burden of proof lies on the party who asserts the facts upon which their claim depends

Court orders

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.The Plaintiff shall bear the Defendant's costs agreed or taxed
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court, Busia)

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, "Ogweno v Wafula (Environment and Land Case 171 of 2017) [2026] KEELC 1942 (KLR)", Case Analysis (2026). Busia ELC NO. 171 OF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1942/eng@2026-04-09

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