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ELCAllowedBusia ELC Appeal No. E017 of 2022· [2026] KEELC 3122 (KLR)

Emomeri v Emurudu & another (Civil Appeal E017 of 2022) [2026] KEELC 3122 (KLR)

Environment and Land Court
18 May 2026
LWL. N. Waithaka
4,852 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiffs (respondents) sued the defendant (appellant) in Busia CMCC ELC No. E53 of 2020 for removal of a restriction over LR No. South/Teso/Asinge/1719, eviction, a permanent injunction, damages and mesne profits, alleging the defendant forceably entered and occupied their registered land in August 2020. The defendant, who had occupied since 2011 pursuant to a 2010 purchase from Moses Ekamuran Emuse, filed a defence and counterclaim seeking de-registration of the plaintiffs and registration of himself as proprietor, contending the registration of the plaintiffs resulted from map/mutation disorientation. The trial magistrate (Hon. Lucy Ambasi CM) entered judgment for the plaintiffs: eviction, general damages for trespass of Kshs. 50,000, costs and interest, and struck out the counterclaim. On first appeal, L. N. Waithaka J re-evaluated the evidence under the Selle principles. The court found the appellant's long occupation predating the alleged trespass uncontested, and that his entry rested on a sale agreement acknowledged by DW2 Okiboko Nyamori, the administrator of the estate who had subdivided the original parcel, and who testified he was misled into transferring the land to the 1st respondent. Since the respondents never pleaded want of capacity or intermeddling with the estate, they could not rely on those grounds. The court held the respondents failed to prove the pleaded forcible entry of August 2020. The appeal was allowed, the trial judgment set aside and substituted with dismissal of the respondents' suit, the counterclaim allowed, and costs of the suit, counterclaim and appeal awarded to the appellant.

Key legal issues

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01

Proof of trespass

Holding

The respondents did not prove the pleaded trespass of August 2020; the appellant's entry was pursuant to a sale agreement acknowledged by the administrator of the estate

Reasoning

The court re-evaluated the evidence as a first appellate court and found, uncontested, that the appellant was in occupation long before August 2020, on account of a purchase from the beneficial owners. The respondents' case was premised solely on a forcible entry in August 2020, which was not proven. Since the respondents did not plead want of capacity of the sellers, they could not rely on it to defeat the appellant's interest.

p. 30
02

Credibility of the respondents' title

Holding

The evidence of DW2 that he was misled into signing transfer documents in favour of the 1st respondent was believed

Reasoning

DW2, the administrator who transferred the land, testified that the 1st respondent misled him into signing transfer documents and that under the family arrangement each member was entitled to only one 2-acre portion. The respondents' inaction while the appellant occupied, cultivated and buried his relative on the land led the court to have no basis for disbelieving DW2.

p. 28

Legal principles established

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  • A party who did not plead lack of capacity or intermeddling cannot rely on those grounds to defeat another party's interest

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the trial court in Busia CMC ELC No. E53 of 2020 set aside and substituted with judgment dismissing the respondents' case
  3. 3.Appellant's counterclaim allowed
  4. 4.Costs of the suit, the counterclaim and the appeal awarded to the appellant

Authorities

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Legislation

  • Evidence ActSections 107, 108, 109
  • Land Registration ActSection 28(b)

Cases cited (12)

  • Munyu Maina v Hiram Gathiha Maina
    (2013) eKLR
  • Attorney General v Torino Enterprises Ltd
    (2022) KECA 78 (KLR)
  • Wambugu v Njuguna
    (1983) KLR 172
  • Public Trustee v Wanduru
    1984 (KLR) 314
  • Peter v Sunday Post Ltd
    (1958) EA 424
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira
    (2013) eKLR
  • Macharia Mwangi Maina & 84 others v Davidson Mwangi Kagiri
    (2014) eKLR
  • Samuel Kamere v Land Registrar, Kajiado
    (2023) eKLR
  • IEBC v Stephen Mule & 3 others
    (2014) eKLR
  • Selle & Another v Associated Motor Boat Co. Ltd
    (1968) E.A 123
  • Mwanasokoni v Kenya Bus Service Ltd
    (1982-88) 1 KAR
  • Kiruga v Kiruga & Another
    (1988) KLR 348
On appeal from
Chief Magistrate's Court, Busia
Busia CMCC ELC No. E53 of 2020
Jurisdiction invoked
First appellate jurisdiction over decisions of the magistrates' court in environment and land matters

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, "Emomeri v Emurudu & another (Civil Appeal E017 of 2022) [2026] KEELC 3122 (KLR)", Case Analysis (2026). Busia ELC Appeal No. E017 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3122/eng@2026-05-18

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