Otipi v Koros & another (Environment and Land Appeal E001 of 2024) [2026] KEELC 4633 (KLR)

possession of the portion they bought in 2008 and that they had no knowledge or anything to do with the parcel of land known as L.R No. Bukhayo/Lupida/1775. 4. The defendants/respondents further contended that it is the plaintifi/appellant who had encroached on their portion of land by planting trees thereon. 5. By way of counterclaim, the defendants/respondents reiterated their claim that they bought one (1) acre of land comprised in the parcel of land known as L.R No.Bukhayo/Lupida/352B from the plaintifi; that they paid the purchase price of the portion they bought being Kshs. 54, 500/-, took possession of the portion sold to them and began cultivating thereon. 6. It is the defendants/respondents’ further pleaded case that in 2008, the defendants leased the portion he had sold to them to another person and relocated them to another portion of his land where they built their home and had been living ever since. 7. The defendants/respondents lamented that despite having relocated them to another portion of his land, the plaintifi/appellant had on several occasions interferred with their use and occupation of the portion he gave them and averred that they reported the dispute between them and the plaintifi/ appellant to the area chief and the police. 8. Through the Counterclaim, the defendants/respondents sought judgment against the plaintifi/ appellant for an order compelling the plaintifi/appellant to give them one (1) acre of land from the parcel of land known as Bukhayo/Lupida/352B or to refund the purchase price at the current market price of the one (1) acre of land they purchased; damages for destruction of their crops; costs of the suit and the Counterclaim. 9. The appellant filed a reply to defence and defence to Counterclaim dated 7th June 2022, in which he merely reiterated the averments in his amended plaint and sought judgment in his favour. 10. When the suit came up for hearing, the plaintifi (now) appellant who testified as PW1 led evidence as follows:“ ...The 1st defendant uprooted trees in my land. The trees were valued at Kshs.630,000. A valuation was done. The report is in court. I wish to have my witness statement as the order of the Court. Exhibit 1 and 2, exhibits 3, 4, 5 and 6. Defendant had never paid the money.” 11. In cross examination, the plaintifi PW1, stated as follows:“ You uprooted the trees from my land. I have never sold land to you. I do not know where you stay. I could not have given you notice because I did not sell my land to you. I am not aware of having requested you to forgive me.’’ 12. Alex Onyiko, PW2 relied on his written statement after it was adopted as his evidence in chief. 13. In cross examination, PW2 stated that he saw the defendant uprooting the trees. 14. Like PW2, Juvenalis Owade who testified as PW3, informed the Court that he found the defendant and another person, Kennedy, uprooting trees from the plaintifi’s land. 15. The 2nd defendant/respondent, who testified as DW1, informed the court that on 8th August 2007, she bought 4 acres of land from the plaintifi and began carrying farming activities thereon; that in 2014 or thereabout, the plaintifi encroached on the portion of land he had sold to her, planted trees thereon and mobilized youths to chase her away from the suit property. She made a report to the area Assistant Chief, the Police and the District Oficer (D.O); that although she had no title deed for the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4633/eng@2026-07-13 2

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suit property, she had a sale agreement; that the plaintifi was arrested and confessed to having harrased her and asked her for forgiveness. 16. Maintaining that she had bought the suit property, the 2nd defendant denied having uprooted the plaintifi’s trees. 17. In cross examination, DW1 stated as follows:“ The plaintifi planted trees in the land after I had bought the land. He went to the police and the police directed that the trees be uprooted. I did not conduct a search. Dickson sold land to me. He did not tell me that the land belonged to his father. In 2014 Dickson promised to refund the money to me. He did not refund the money to me. The land is 353B. When I bought the land there were no trees. I made a report to the police. Dickson planted the trees in 2015.” 18. Roseline Nabututu DW2, informed the court that PW2, who is her neighbour, bought land from Dickson (the plaintifi); that DW1 informed her that the plaintifi had trespassed on the land by planting trees. She advised DW1 to make a report to the Assistant Chief. 19. In cross examination, DW2 stated that she received a report from the defendants that trees had been planted on the land. DW2 informed the court that the trees are no longer on the land. 20. Upon considering the evidence adduced before her, the learned trial magistrate entered judgment for both parties in the following terms:“ From the evidence on record the 2nd defendant purchased land from the plaintifi in 2007 and she took possession of the land by staying and farming on the land. From the documents on record, the plaintifi was not the administrator of the Estate when he purported to sell the land to the defendant. The defendant was entitled to a portion of the land she purchased from the plaintifi after succession. I am satisfied that the defendant has proved her case against the plaintifi on a balance of probability. The forest oficer estimated the value of the plaintifi’s trees at Kshs. 630,000/-. I am satisfied that the plaintifi has proved his case against the defendant on a balance of probability. The plaintifi is awarded Kshs. 630,000/- being the cost of his trees. The court makes the following orders:i. The plaintifi to compensate the defendant with one acre of land or Kshs. 2,000,000/- being the cost of one acre of land and damages for searching an alternative land. ii. Each party to bear their own costs.” The Appeal 21. Dissatisfied with the judgment of the trial court, the plaintifi appealed to this court on the grounds that:i. The learned trial magistrate erred in law and fact in making an award of Kshs. 2,000,000/- in favour of the defendants/respondents against the plaintifi when such claim was never pleaded nor proved; https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4633/eng@2026-07-13 3

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ii. That the learned trial magistrate erred in law and in fact in awarding the 1st defendant/ respondent one acre in land comprised in L.R No.Bukhayo/Lupita/325B and in alternative Kshs. 2,000,000/- despite the fact that the 1st defendant never testified nor did he file a letter of authority nor donate powers of attorney to the second defendant to give evidence on his behalf. iii. That the learned trial magistrate erred in law and in fact in failing to find that there was no basis for the claim of Kshs. 2,000,000/- in favour of the defendants. 22. The appellant prays that the award in favour of the first and 2nd defendants in the lower court against him be set aside and that the 1st and 2nd defendant’s counterclaim be dismissed; costs of the appeal and of the suits in the lower court be awarded to him. 23. The appeal was disposed of by way of written submissions. SUBMISSONS Appellant’s submissions 24. In his written submissions dated 3rd March 2026, the appellant submits/addresses the Court as follows:“ ...The appellant is aggrieved by the last bit of the judgment in the sense that:a. There is no justification for the court to award the defendants 1 acre of land when the transaction between the parties had been overtaken by Limitation of Actions Act; it was over 6 years old. The land sale agreement had been contracted in the year 2008. This evidence is found in paragraph 3 of the defendant’s joint statement of defence. It states as follows:“ ...that the defendants purchased 1 acre of land parcel No. Bukhayo/ Lupida/352B and occupied the same in the year 2008...” ...Any contractual obligation between the parties sufiered efiuxion six years after 2008, that is to say the year 2014; the defence and counterclaim was filed on 24/5/2022. By the time the court was rendering its judgment on 14/11/2023 the contract between the parties had died and was obsolete. The lower court had no business giving life to the same by purporting to compensate the defendants with 1 acre or by an alternative land. Similarly, by awarding the defendants Kshs. 2,000,000/- being the cost of 1 acre of land the Honourable Court fell in error. ...The sum of Kshs. 2,000,000/- was never pleaded in the counterclaim, it was never alluded to in evidence by the defendants and it was never proved at all. The easiest form of prove would have been for the defendants to call a valuer to value the I acre and for the court to have been furnished with such exhibit. No evidence was tendered by the 1st defendant, the beneficiary of the Kshs. 2,000,000/- award. In the defendants pleadings and evidence furnished in court and their testimony there is no indication that they went looking for https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4633/eng@2026-07-13 4

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alternative land and that they spent any money on the exercise and therefore their efiorts should be rewarded in the colossal sum of Kshs. 2,000,000/-. We are at a loss as to where the learned trial magistrate got this figure from. It is trite law that where and when a party seeks for special damages that party must specifically plead the same in the plaint or counterclaim and that the party must prove the monetary figures and as how they arrived at the same and how the damages were sufiered. These requires documentary evidence. Several authorities in this issue abound.... In the case of David Bagine v Martin Bundi (1997) e KLR the Court of Appeal stated as follows:“It has been held time and again by this Court that special damages must be pleaded and strictly proved... we pray that our appeal be allowed with costs...” 25. Despite being given time to file submissions, the respondent did not file any. Analysis and determination 26. In exercise of the duty vested in this court as the first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard, see Selle & another vs. Associated Motor Boat Co. Ltd (1968)E.A 123 and Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348. 27. What I gather from the grounds taken up in support of the appeal and the submissions by the appellant is that the plaintifi/appellant challenges the judgment entered in favour of the defendants/respondents on two grounds:- 28. i. The contract for sale on which the judgment is premised was time barred hence could not form a basis of the award or judgment made in favour of the defendants/respondents; and ii. The alternative award of Kshs. 2,000,000/- made in favour of the defendants/respondents is in the nature of special damages hence could not be awarded in favour of the defendants/ respondents because it was not specifically pleaded and strictly proved as by law required. By operation of law, in particular Order 2 Rule 4 of the Civil Procedure Rules and decided authorities, for the appellant to succeed in challenging the decision of the learned trial magistrate based on his claim that the Counterclaim was statute barred, the appellant must have in his defence to the Counterclaim, specifically pleaded that the defendants claim was statute barred. In that regard, see the case of Silvana Corsaro v Luigi Formica & another [2010] KEHC 3562 (KLR), where the Court stated/held:“ Limitation of Action was not specifically pleaded by the defendant. I am guided by the Court of Appeal decision in Achola & another v Hongo & another in finding that the issue not having been pleaded cannot now be raised as preliminary objection.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4633/eng@2026-07-13 5

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29. In Achola & Another -vs- Hongo & Another LLR NO.4007 (CAK) the Court stated/held: “ The defendant must in his defense plead specifically any matter which he alleges makes the action not maintainable or which, if not specifically pleaded might take, the plaintifi by surprise or which raises issue of fact not arising out of the statement of claim. Examples of such matters are performance, release, and any relevant statute of limitation, fraud or any act showing illegality." 30. I have perused the Record of Appeal filed in this suit and also the pleadings filed in the lower court and established that the appellants did not file a defence to the defendants/respondents Counterclaim. That being the case, the claim that the suit by the defendants/respondents was time barred does not arise from their pleaded case. 31. It’s trite law that parties are bound by their pleadings. It is also trite law that any issue not arising from the pleading cannot be considered by the court or form a basis of any determination by the Court. In that regard, see Raila Amollo Odinga & Another vs Independent Electoral & Boundaries Commission & 2 others (2017) e KLR where the Supreme Court stated:“ In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is afirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.” 32. Also see the case of Elizabeth O. Odhiambo v. South Nyanza Sugar Co. Ltd (2019) e KLR where the court inter alia held:“ The court, on its part, is itself bound by the pleadings of the parties. The duty of the court is to adjudicate ,upon the specific matters in dispute, which the parties themselves have raised by their pleadings. The court would be out of character were it to pronounce any claim or defence not made by the parties as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing parties and leads to denial of justice.” 33. There being no pleading on which the appellant’s claim that the respondents’ counterclaim was time barred, I find the alleged time bar to be incapable of forming the basis of interference with the trial court decision. 34. As to whether the trial court erred by awarding the respondent Kshs. 2,000,000/- when the same was not specifically pleaded and proven, I note from the respondents’ pleadings that the respondent’s prayed that the plaintifi/appellant be compelled to give them the one acre they purchased comprised in L.R No.Bukhayo/Lupida/352B, failing which he be compelled to refund the purchase price based on the current market price of the 1 acre. 35. Whereas it is true that the defendants did not specifically plead the current market price of the one 1 acre of land, I note from the judgment of the Court, that the learned trial magistrate did not fashion https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4633/eng@2026-07-13 6

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the award of the Kshs. 2,000,000/- as an award for special damages but what she considered to be the cost of one acre of land and damages for searching for alternative land. Considering that the appellant has the option of giving the respondents the one acre he voluntarily sold to her, before he changed his mind, or buying for the respondents one acre at the locality, I have no reason for interferring with the decision of the learned trial magistrate, in the circumstances of this case. 36. The upshot of the foregoing is that I find the appeal to be lacking in merit and dismiss it with costs to the respondents. 37. Orders accordingly. JUDGEMENT DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 13TH DAY OF JULY, 2026 THROUGH MICROSOFT TEAMS. L. N. WAITHAKA JUDGE In the presence of;Mr. Ashioya for the Appellant. N/A the Respondents. Court Assistant: Bedan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4633/eng@2026-07-13 7

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