Rono & 3 others (Suing as the personal representatives of the Estate of Chumo Arap Chabas alias Chumo Chebas - Deceased) v Langat (Sued as the legal representative of the Estate of Joel Kimetet Langat) & another (Environment and Land Case 40 of 2017) [2026] KEELC 3435 (KLR)
The bottom line
#A Kericho land court dismissed both a trespass suit and a counterclaim because neither side proved their claims with actual evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Defendant trespassed on Plot No. 7 Kapkurgwet Market
No trespass was proved; possession was by consent of some family members and the 1st Defendant vacated in 2014
The court applied the definition of trespass in Halsbury's Laws of England and Section 3(1) of the Trespass Act. PW1's own evidence was that the 1st Defendant entered with the consent of some family members and paid rent, and vacated in 2014 without interfering thereafter. The claim that he continued to access locked structures was made only in submissions, not in evidence, and submissions cannot take the place of evidence. Under Sections 107-109 of the Evidence Act the burden lay on the plaintiffs.
Whether the prayers in the Amended Plaint (eviction and permanent injunction) should be granted
They could not be granted given the failure to prove trespass
Since the foundational finding on trespass went against the plaintiffs, the consequential prayers of eviction and permanent injunction could not issue. The court reiterated the principle from Antony Francis Wareham that cases are determined on the pleadings and that a court should not grant relief unsupported by proved facts.
Whether the 1st Defendant's Counterclaim for a declaration of ownership by prescription should be granted
Dismissed; the 1st Defendant, though substituted, never adduced evidence in support of the Counterclaim
None of the Defendants participated in the hearing. Relying on Attorney General v James Alfred Koroso, which approved Edward Muriga v Nathaniel D. Schulter, the court held that a statement of defence and counterclaim without evidence remains mere allegations. The burden under Sections 107 and 108 of the Evidence Act lies on the party who asserts or pleads, and the counterclaim therefore failed.
Whether the suit against the deceased 2nd Defendant survived her death
The suit against her had abated
The court was informed that the 2nd Defendant died; although her death certificate was not availed, her death was not disputed, and no application for substitution of her estate was filed. The court therefore found that the suit against her had abated by the time of judgment, and her claimed prescriptive rights were not determined.
Costs of the suit
Although costs normally follow the event under Section 27 of the Civil Procedure Act, each party was to bear own costs
The court acknowledged the general rule that costs follow the event and that a successful party should ordinarily be awarded costs unless the court directs otherwise for good reason. Because both the plaintiffs' suit and the 1st Defendant's counterclaim were dismissed - neither side succeeded - the court exercised its discretion to order that each party bear its own costs.
Legal principles established
#- A party who asserts a fact, whether plaintiff or defendant, bears the burden of proving it by evidence; pleadings and submissions without evidence are mere allegations
- Where a suit is undefended, the court still has an obligation to interrogate the plaintiff's evidence; uncontroverted evidence is not automatic proof of a case on a balance of probabilities
- Submissions are not evidence and cannot take the place of evidence on which a case is decided
- Cases are tried and determined on the basis of the pleadings; a court should not make findings on unpleaded matters or grant relief not sought in the pleadings
Court orders
#- 1.The Plaintiffs' suit is hereby dismissed
- 2.The 1st Defendant's counterclaim is hereby dismissed
- 3.Each party shall bear own costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a claim relating to Plot No. 7 Kapkurgwet Market (land use, occupation and trespass); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rono & 3 others (Suing as the personal representatives of the Estate of Chumo Arap Chabas alias Chumo Chebas - Deceased) v Langat (Sued as the legal representative of the Estate of Joel Kimetet Langat) & another (Environment and Land Case 40 of 2017) [2026] KEELC 3435 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 10th April, 2017, amended 30th June, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3435/eng@2026-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.