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ELCAllowedNot stated in judgment (Record of Appeal dated 23rd February 2024)· [2026] KEELC 3599 (KLR)

Mukawale v Executive, County Government of Vihiga & another (Environment and Land Appeal E027 of 2025) [2026] KEELC 3599 (KLR)

Environment and Land Court
11 June 2026
2,566 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 overturned a magistrate's decision and awarded a landowner compensation after a road project encroached on his land, confirming expert reports properly admitted must be considered.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kisumu against the judgment of the Magistrate's Court at Hamisi delivered on 14th February 2019, which dismissed the appellant's claim for compensation for encroachment upon and damage to land parcels Kakamega/Serem/291, 343 and 347 arising from a road project, with costs to the defendants. The appellant advanced four grounds: the trial court wrongly found that the application to join the 2nd Respondent had been abandoned; it wrongly held the appellant's exhibits inadmissible; it wrongly awarded costs to defendants who did not attend the hearing; and it failed to dispose of the claim on the merits. The court, per E. Asati J, adopting the retrial approach applicable to first appeals, found that a consent order of 22/11/2017 had allowed the joinder application before the suit was transferred, rendering the trial court's contrary finding erroneous. The court held that the surveyor's, Kenya Forest Service and Crop Damage reports had been formally produced and admitted as exhibits without objection, and the trial court was obliged to consider them. On costs, the court held the respondents were properly awarded costs on dismissal since costs follow the event under section 27 of the Civil Procedure Act, but entitlement would ultimately follow the result of the appeal. On the merits, the unchallenged expert reports proved encroachment and quantum of damage. The court allowed the appeal, set aside the trial court's judgment, substituted a judgment allowing the appellant's claim as prayed, and awarded the appellant costs of both the suit and the appeal.

Key legal issues

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01

Joinder of the 2nd Respondent

Holding

The application for joinder was allowed by consent on 22/11/2017 before the transfer of the suit; the trial court's finding that it was abandoned was erroneous

Reasoning

The record contained a consent order dated 22/11/2017 granting the application dated 20/5/2016 allowing joinder of Gango Enterprise Company Limited as 2nd Defendant, made by Hon. Justice Matheka while the suit was still at the ELC Kakamega. The trial court misread the record in deeming the application abandoned.

p. 3
02

Admissibility of exhibits

Holding

The trial court erred in refusing to rely on the documents as inadmissible; they had been formally produced, admitted as exhibits, and the makers were cross-examined

Reasoning

The term exhibit covers documents formally proved and admitted in evidence. The surveyor's, Kenya Forest Service and Crop Damage reports were produced by their makers who were available for cross-examination, and the respondents did not object. Once admitted as exhibits, the court was obliged to consider them.

p. 4
03

Costs against absent defendants

Holding

Having filed defences and attended court on some occasions, the respondents were entitled to costs on dismissal since costs follow the event under section 27 of the Civil Procedure Act

Reasoning

Both respondents had filed defences and attended court on some occasions, though absent on hearing dates. The court found no error in awarding costs on dismissal, but noted that the ultimate entitlement to costs would follow from the finding on the dismissal of the suit itself.

p. 5
04

Merits of the claim

Holding

The evidence on record was sufficient to allow the appellant's claim; the trial court erred in dismissing it

Reasoning

The defences did not deny that the road project was undertaken. The surveyor's report proved encroachment onto the appellant's lands, while the Forest Service and Crop Damage reports proved damage and quantum. The 2nd Respondent's averment of encroachment on a road reserve was unsupported by any evidence.

p. 6

Legal principles established

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  • On a first appeal the court must re-analyse the evidence and draw its own conclusions, though it has neither seen nor heard the witnesses
  • Documents formally produced and admitted as exhibits must be considered by the court in arriving at judgment

Court orders

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  1. 1.The judgment of the trial court dated 14th February 2019 is set aside and replaced with a judgment allowing the Appellant's claim as laid out in the plaint
  2. 2.Costs of the suit and of the appeal are awarded to the Appellant
On appeal from
Magistrate's Court at Hamisi (Hamisi MC E & L Case No. 33 of 2018, transferred from Kakamega ELC Case No. 3 of 2016)
33 of 2018
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court (Environment and Land Court), appeal by way of retrial

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, "Mukawale v Executive, County Government of Vihiga & another (Environment and Land Appeal E027 of 2025) [2026] KEELC 3599 (KLR)", Case Analysis (2026). Not stated in judgment (Record of Appeal dated 23rd February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3599/eng@2026-06-11

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