Bipi v Maliambo & another (Environment and Land Appeal E016 of 2025) [2026] KEELC 4755 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's trespass claim because he couldn't prove trespass and the land was legally public wetland, not privately ownable.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant pleaded and proved trespass to parcels 1742 and/or 1743
Trespass was not proved; the pleadings were inconsistent (the plaint pleaded trespass on parcel 1742 while the appeal alleged trespass on parcel 1743), and no evidence of the acts of trespass was led
The court noted glaring discrepancies between the plaint, which pleaded trespass on parcel No. 1742, and the memorandum of appeal, which alleged trespass on parcel No. 1743. The appellant's own evidence and that of DW2 showed parcel No. 1743 belonged to the 1st respondent, who could not trespass on his own land. The appellant also failed to lead evidence of the actual acts of trespass, so the tort was not proved on a balance of probabilities.
Status of riparian/wetland land
Riparian land is public land under Article 62 of the Constitution and cannot be privately owned regardless of adjacency to a registered parcel
Relying on the evidence of DW1 and DW2 that the suit property was a wetland, and on Krystalline Salt Ltd v WRMA, the court held that riparian land within 6 to 30 metres of the river bank is public land vested in the national government in trust for the people and managed by the National Land Commission, and cannot be privately owned. The appellant bore the burden of proving the property was not a wetland and failed to discharge it.
Whether the appeal had merit
The appeal lacked merit and was dismissed; the trial court's judgment was proper and well founded
Having subjected the entire evidence to fresh scrutiny as required on a first appeal, the court found no misapprehension of the evidence or wrong principles in the trial court's dismissal. The appellant's inconsistent pleadings, failure to prove trespass, and failure to rebut the wetland character of the land meant the permanent injunction could not issue and the appeal failed.
Legal principles established
#- A certificate of title under Section 26 of the Land Registration Act is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation or illegality
- Land between the high and low water marks is public land vested in the national government in trust for the people of Kenya
- An appellate court must subject the whole evidence to fresh and exhaustive scrutiny while bearing in mind it did not see or hear the witnesses
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Trial court (magistrates'/trial court record not specified)
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's dismissal of the appellant's suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bipi v Maliambo & another (Environment and Land Appeal E016 of 2025) [2026] KEELC 4755 (KLR)", Case Analysis (2026). Kitale ELC No. E016 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4755/eng@2026-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.