Mukawale v Executive, County Government of Vihiga & another (Environment and Land Appeal E027 of 2025) [2026] KEELC 3599 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Joinder of the 2nd Respondent
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
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.
Admissibility of exhibits
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
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.
Costs against absent defendants
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
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.
Merits of the claim
The evidence on record was sufficient to allow the appellant's claim; the trial court erred in dismissing it
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.