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ELCDismissedKitale ELC No. E016 of 2020· [2026] KEELC 4755 (KLR)

Bipi v Maliambo & another (Environment and Land Appeal E016 of 2025) [2026] KEELC 4755 (KLR)

Environment and Land Court
24 July 2026
4,313 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 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

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Executive summary

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This is a first appeal to the Environment and Land Court at Kitale against the trial court's judgment of 29 April 2025 dismissing the appellant's suit. The appellant, as plaintiff, had sought a permanent injunction restraining the respondents from trespassing on LR No. Trans-Nzoia/Suwerwa/1742, contending he was the absolute and registered owner of parcels 1742 to 1745, subdivisions of his late father's estate. The respondents denied ownership by the appellant, contending parcels 1743 and 1744 were theirs and that parcel 1742 was riparian/wetland public land incapable of private ownership. The court framed four issues: proof of trespass, entitlement to reliefs, the merits of the appeal, and costs. Applying Selle v Associated Motor Boat Co. on the duty of a first appellate court, the court found glaring inconsistencies: the plaint pleaded trespass on parcel 1742 while the memorandum of appeal alleged trespass on parcel 1743, which belonged to the 1st respondent. Although the appellant's certificate of title was prima facie indefeasible under Section 26 of the Land Registration Act, evidence from the County Director of Environment and the 1st respondent showed the suit property was a wetland/riparian land, which under Articles 62(1)(l) and 62(3) of the Constitution is public land held in trust for the people, following Krystalline Salt Ltd v WRMA. The appellant failed to lead evidence of any acts of trespass, so trespass was not proved on a balance of probabilities and no permanent injunction could issue. The court found the trial court's judgment proper and well founded and dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether the appellant pleaded and proved trespass to parcels 1742 and/or 1743

Holding

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

Reasoning

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.

p. 20
02

Status of riparian/wetland land

Holding

Riparian land is public land under Article 62 of the Constitution and cannot be privately owned regardless of adjacency to a registered parcel

Reasoning

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.

p. 19
03

Whether the appeal had merit

Holding

The appeal lacked merit and was dismissed; the trial court's judgment was proper and well founded

Reasoning

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.

p. 22

Legal principles established

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  • 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

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  1. 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

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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, "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.