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ELCPartially AllowedEnvironment and Land Appeal E045 of 2022· [2026] KEELC 4242 (KLR)

Njoroge v Rukwaro (Environment and Land Appeal E045 of 2022) [2026] KEELC 4242 (KLR)

Environment and Land Court
9 July 2026
CMC.G. Mbogo
2,603 words in judgment
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The bottom line

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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 against part of the judgment of Hon. D.W Mburu SPM delivered on 6th May, 2022 in Milimani MCELC No. E1495 of 2020, in which the trial court awarded the plaintiff (respondent) Kshs. 5,050,000/- against the 1st defendant (appellant), who is the plaintiff's mother-in-law, on the basis of unjust enrichment arising from deposits into her account. The underlying suit concerned kitchen no. 20 on LR. No. 209/18648 (Nextgen Commercial Centre), with competing claims of ownership, a refund of Kshs. 2,350,000/- and, in the alternative, Kshs. 5,050,000/-. C.Mbogo J. identified two issues: the jurisdiction of the magistrate's court and the burden of proof. The court held that the trial court erred fundamentally by determining a claim of unjust enrichment that was never pleaded nor raised at the hearing, surfacing only in submissions, thereby offending natural justice and assuming jurisdiction beyond the ownership dispute. Further, no nexus was established between the 2014/2015 deposits and the April 2016 purchase; no breakdown of the claimed sum was given; and the 2015 deposits came from a joint account of the respondent and his wife. Applying section 107 of the Evidence Act, the court found the trial court wrongly shifted the burden of proof. The court allowed the appeal, set aside the Kshs. 5,050,000/- award with interest, declared the respondent not entitled to that sum, and awarded the appellant the costs of the appeal.

Key legal issues

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01

Jurisdiction and pleadings

Holding

The trial court decided an unpleaded claim of unjust enrichment, exceeding the jurisdiction invoked (ownership of kitchen no. 20) and offending natural justice

Reasoning

The magistrate's jurisdiction was limited to the ownership dispute over kitchen no. 20. Unjust enrichment was never pleaded in the further amended plaint nor raised at the hearing; it surfaced first in written submissions. By determining that unpleaded issue, the trial court assumed jurisdiction it was not called upon to exercise and denied the appellant fair notice.

p. 5
02

Burden of proof

Holding

The respondent failed to prove the Kshs. 5,050,000/- claim on a balance of probabilities; the trial court wrongly shifted the burden to the appellant

Reasoning

Under section 107 of the Evidence Act, he who alleges must prove. No nexus was established between the 2014/2015 deposits and the April 2016 kitchen purchase; no breakdown of the claimed sum was provided; deposits in 2015 came from a joint account of the respondent and his wife. The trial court wrongly shifted the burden of proof to the appellant.

p. 5

Legal principles established

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  • A court determining a claim must confine itself to the pleadings; deciding an unpleaded issue offends natural justice
  • On a first appeal, the court revisits the evidence and arrives at its own conclusion but will not interfere with findings of fact unless based on no evidence, misapprehension of it, or wrong principles
  • A bank statement alone does not establish unjust enrichment absent proof that the monies are linked to the suit property

Court orders

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  1. 1.The award of Kshs.5,050,000/- being the refund amount with interest at court rate from the date of filing the suit until payment in full by Hon. D.W Mburu (SPM) delivered on 6th May, 2022 in Milimani ELC no. E1495 of 2020 is hereby set aside.
  2. 2.For clarity, the respondent is not entitled to the sum of Kshs.5,050,000/-.
  3. 3.The appellant is awarded the costs of the appeal.

Authorities

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Legislation

  • Evidence ActSection 107

Cases cited (1)

  • Mwanasokoni versus Kenya Bus Service Ltd
    1982 – 88 I KAR 278
On appeal from
Chief Magistrate's Court, Milimani
MCELC No. E1495 of 2020
Jurisdiction invoked
First appeal from the magistrates' court (Environment and Land Court appellate jurisdiction over subordinate court land disputes)

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, "Njoroge v Rukwaro (Environment and Land Appeal E045 of 2022) [2026] KEELC 4242 (KLR)", Case Analysis (2026). Environment and Land Appeal E045 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4242/eng@2026-07-09

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