Moses Digo v Joseph Hongo Olweny (Sued as a legal representative of the estate of Moses Olweny Digo, Deceased) & 5 others
The bottom line
#The Environment and Land Court in Kisumu dismissed a land appeal, confirming that once permission to occupy land is revoked, staying on makes you a trespasser.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant, originally a permissive occupant, became a trespasser after revocation of the licence
Yes. The demand for possession revoked the licence; continued occupation without permission made the appellant a trespasser notwithstanding the trial court's contrary finding.
It was common ground the appellant entered with the deceased's permission. The 1st respondent's 2017 demand for possession amounted to revocation of the licence. The appellant did not deny his continued occupation was without permission. Having no legal or beneficial interest, he had no justifiable cause to remain, so he was a trespasser.
Whether a constructive trust arose in favour of the appellant's family from long occupation
The court could not entertain the claim: constructive trust was not pleaded and was raised for the first time on appeal, though it accepted it could have been a valid defence had it been pleaded.
The appellant only advanced the constructive trust argument in submissions on appeal after realising he had claimed no legally recognised interest at trial. Parties are bound by their pleadings; a first appellate court cannot decide issues the trial court never had occasion to determine.
Whether the alleged gift of the suit property to the appellant's mother was proved
No evidence established a gift; the appellant's claim over the property was vague as to basis and capacity in which it was made.
The appellant admitted title was registered in the deceased's name. His claim was vague - unclear whether he claimed in his own right, for his mother, father or family, or on what basis. No evidence of a gift was produced, and no counterclaim was lodged based on the long occupation.
The mandate of a first appellate court
The court must reconsider and evaluate the evidence and draw its own conclusions, but will not interfere with findings of fact unless they were not based on evidence, were based on misapprehension of the evidence, or the court acted on wrong principles.
Relying on Gitobu Imanyara, Kenya Ports Authority v Kuston, Peters v Sunday Post and Makube v Nyamuro, the court restated the retrial nature of a first appeal and the limited grounds for disturbing trial court findings of fact.
Legal principles established
#- A licensee whose permission to occupy land has been revoked and who has no legal or beneficial interest in the land becomes a trespasser upon continued occupation.
- An appellate court cannot determine issues that were not pleaded and decided at trial, even if they could have been a valid defence.
- On a first appeal the court must reconsider and evaluate the evidence afresh and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.The appeal is dismissed with costs to the 1st respondent
- On appeal from
- Chief Magistrate's Court at Kisumu (Environment and Land)
- Kisumu CMCELC No. E14 of 2021
- Jurisdiction invoked
- First appeal from the magistrates' court to the Environment and Land Court under the ELC's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Digo v Joseph Hongo Olweny (Sued as a legal representative of the estate of Moses Olweny Digo, Deceased) & 5 others", Case Analysis (2026). ELC Appeal No. E033 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5852/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.