Ngendu & another v Kithaka & another (Environment and Land Appeal E004 of 2025) [2025] KEELC 8527 (KLR)

3. The 1st Respondent filed a defence and denied the Appellants allegations. He contended that he was the owner of suit land, which was allotted to him and which he had developed. The 2nd Respondents also denied the Appellants’ allegations, or that they have condoned the acts amounting to trespass. 4. The Appellants filed a reply to the 1st Respondents defence and reiterated that the suit plot did not exist on the ground and on the map and averred that what the 1st Respondent claims as the suit land is actually the Appellants’ plot no. 41. They averred that the developments on the suit land are illegal for having been done on their land. They stated that the plots in Ishiara Market are consecutively numbered and put the 1st Respondent to task to demonstrate how he was allotted Plot No. 125 in a consecutively numbered area. They contended that any land rates paid by the 1st Respondent are paid for an imaginary plot. 5. During the hearing, the 1st Appellant testified and reiterated the averments made in the plaint and in the reply to the 1st Respondent defence. On cross examination, he stated that he was allocated the suit plot in 2004 but he did not have the allotment letter even though his allotment was mentioned in Minutes that he tendered in evidence. He stated that the plot belonged to his father in law before he took it over. He stated that the 1st Respondent encroached on the plot in 2014, and that according to the surveyor’s report that was used in Civil Case No. 52 of 2016, it stated that plot No. 125 exists because the beacons marked were between plot numbers 41, 42 and 125 on the ground. However, the report did not talk of any encroachment. 6. He did not have a surveyor’s to prove that there was encroachment. Further, that the issue of encroachment could only have been proved after a ground visit by the court and a Surveyor. He stated that since 2014, the 1st Respondent had encroached on the suit land by erecting buildings. He did not file the suit in 2014 when the encroachment began because he was preparing to file suit. On reexamination, he stated that his application for the plot was approved on 6/10/2004. He produced minutes of the County Council of Mbeere dated 6/9/2012, a copy of a surveyors report and a bundle of receipts. 7. The 1st Respondent maintained that he was the owner of plot No. 125 Ishiara Market which the 2nd Respondent allotted to him. He developed the plot in 2011 after complying with legal processes required by the 2nd Respondent and after obtaining approval from the Works Oficer and Physical Planning Department. He constructed business premises on the land, which were occupied by tenants. He was emphatic that plot numbers 41 and 42 do not exist because they were situated on a septic tank. He maintained that the structures complained of are on his plot no. 125. 8. On cross examination, he stated that he was a defendant in Embu Civil Case No. 52 of 2016. The surveyor went to the ground and found that his land was okay. He explained that County Council plots were allocated through minutes and one would be issued a letter of allotment but he did not have the minutes. He produced a copy of the legalization of a stall by the Mbeere County Council and copies of receipts for rent payment. The 2nd Respondent did not call any witnesses. 9. In its judgment, the trial court found that the surveyor’s report dated 18/7/2017 established the existence of plot numbers 41 and 125 on the ground following the Sub-County Surveyor’s visit on 14/8/2017. The court concluded that plot numbers 41 and 125 existed on the ground. The court noted that the Appellants had only produced minutes of the Mbeere County Council meeting of 6/9/2012 and rent receipts, which could not amount to an allotment letter for plot No. 41. The court also noted that the 1st Respondent did not produce an allotment letter but relied on a letter dated 11/10/2010 legalising his construction of stall no. 125. From this, the court inferred that plot no. 125 belonged to the 1st Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8527/eng@2025-11-20 2

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10. The court held that the Appellants had not proved trespass and opined that the main problem was that the Appellants are not able to demonstrate and identify the exact position where their plot is situated on the ground. The court observed that the Appellants had taken unreasonably long to file suit case noting that the 1st Respondent’s claim dated back to 2010 while the suit was filed in 2022 and therefore they were guilty of laches. 11. Being aggrieved by those findings, the Appellant raised ten grounds of appeal in the memorandum of appeal. They urged that the trial court ignored their evidence that the 1st Respondent had trespassed on their plot by constructing thereon without their consent. They faulted the trial court for failing to appreciate that the 1st Respondent was authorized to construct a stall, being stall no. 125 and not a plot. 12. They also faulted the trial court for failing to appreciate that the 1st Respondent had no ownership documents for plot no. 125 unlike the Appellants who had minutes issued by the 2nd Respondent. They faulted the trial court for finding that plot numbers 41 and 125 existed on the ground while relying on the surveyor’s report and in the same judgment finding that the Appellants do not know the exact position of plot no. 41. 13. They also faulted the trial court for failing to conduct a site visit despite an application being made and for failing to find that there was trespass. They invited the court to set aside the judgment of the trial court and allow their claim. 14. The appeal was canvassed through written submissions. The Appellants submitted that the trial court wrongly found that they did not have an allotment letter to prove ownership in violation of legal precedent that recognizes that plots or land allotted through minutes by County Governments or the former County Council are superior to allotment letters issued by the National Land Commission (NLC). They cited Malonza and 2 others v Nairobi County (formerly Nairobi City Council and 2 others (2023) KEELC 16630(KLR) to support that position. 15. They contended that the trial court made inconsistent findings on the existence and location of Plot 41 and improperly equated the 1st Respondent’s stall with a plot. They argued that the trial court unfairly cancelled a scheduled site visit thereby disadvantaging them in the case. 16. The 1st Respondent submitted that the Appellants did not produce an allotment letter to prove that they were allotted plot no. 41 and they could not therefore claim it was encroached by the 1st Respondent. He submitted that the Appellants could not suficiently explain why there was unreasonable delay in bringing the suit despite claiming that they discovered the 1st Respondent’s encroachment in 2014. He averred that the surveyor’s report was not of value to the Appellant’s case, as it did not have any information on the issue of encroachment. That the report confirmed the existence of plot numbers 41, 42 and 125 contrary to the allegations of the Appellants that plot no. 125 does not exist. 17. It was urged that the receipts for rent payment for plot no. 41 produced by the Appellants did not prove ownership of the plot and added that payment was made by Peter Gakuya and Partners. On cross-examination, the Appellants admitted that the issue of encroachment could not be determined without a site visit and the surveyor’s report. He argued that the Appellants failed to prove their case on a balance of probabilities. 18. The 2nd Respondent submitted that the burden was on the Appellants to prove that they are the lawful owners of plot no. 41. They averred that the documents the Appellants relied on including the allocation committee minutes and land rates receipts do not satisfy the requirements for ownership https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8527/eng@2025-11-20 3

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under Section 26 of the Land Registration Act and cannot demonstrate enforceable legal rights over a parcel of land. 19. The 2nd Respondent maintained that the Appellants did not prove trespass. They argued that under Order 18 Rule 11 of the Civil procedure Rules, the court retains discretion to determine whether a site visit is necessary and the failure to do so does not render a judgment invalid or unjust. 20. They associated themselves with the trial court’s finding that the Appellants were guilty of laches having waited eight years to bring their claim. Further, they submitted that the Appellants claim that they condoned trespass were not substantiated since the 2nd Respondent’s only interaction with the 1st Respondent was to issue him with a stall license and not plot allocation. They urged that the appeal be dismissed. 21. The issue for determination is whether the appeal has merit. The Appellants’ main argument is that they own plot no. 41 Ishiara Market. The Appellants relied primarily on extracts of minutes of the defunct Mbeere County Council dated 6/10/2004 and 6/9/2012 showing they were allocated plot no. 41. They also relied on receipts of payment of rent for plot no. 41 made by Peter Gakuya and Partners. Looking at these documents, it can be said that the Appellants are the owners of the said plot. 22. The 1st Respondent produced the document titled “Legalisation of Stall” authorising him to construct a stall in accordance with the type of plan obtainable from the County Council ofices. He also produced receipts for payment of rent for stall no. 125. It is not clear whether the stall is on plot no. 125. However, as the trial court observed, from the survey report, it is evident that plot no. 125 exists on the ground. 23. In the absence of evidence showing that the 1st Respondent’s developments are on plot no. 41, and given that the survey report produced did not show any encroachment on plot no. 41, the Appellants did not discharge the burden of proving trespass and the trial court did not err in finding so. 24. The court notes from the trial court’s proceedings that the site visit was frustrated by the parties’ own conduct. In any event, it is the surveyor as an expert that would guide the court on whether or not a specific parcel of land existed on the ground and its size. 25. The appeal fails. The Respondents will have the costs of the appeal. DELIVERED VIRTUALLY AT EMBU THIS 20TH DAY OF NOVEMBER 2025. K. BOR JUDGE In the presence of: Ms. Doreen Ojienda for the 2nd Respondent Diana Kemboi-Court Assistant No appearance for the Appellant and 1st Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8527/eng@2025-11-20 4

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