Peter Ooko & Kevin Ooko v Nelson Odhiambo Sweta

Evidence Before the Trial Court The Plaintiff’s (Respondent’s) Evidence [2] PW1, Nelson Odhiambo Sweta, averred that he purchased the suit land in 2011 from Mary Beatrice Ogony Otieno, who had allegedly acquired it from Norbertus Ojunga Oloo, the Appellants’ father (variously alleged to be a grandfather). PW1 stated that, upon taking possession, the land was vacant. To prove ownership, he produced a copy of the Green Card and a Certificate of Official Search. He stated that around 2013, the Appellants trespassed onto the land, fenced it entirely, planted trees, built two permanent houses, and blocked a public access road. However, during cross-examination, PW1 conceded that he did not personally witness the Appellants fencing the land, planting the trees, or erecting the structures, and averred that the fence had been removed after the filing of the case. [3] PW2, Jeremy Brian Orwa, a private surveyor with Opiyo & Associates, testified that he visited the site to confirm the boundaries. According to his report and testimony, the neighbouring parcels 8380 and 8381 had encroached on the suit property and fenced it off. During cross-examination, PW2 confirmed that although there were trees on the suit parcel, there were no structures or buildings on parcel 4741. He further stated that he did not know who had planted the trees or erected the fences. ELCLA E027 OF 2025-JUDGMENT Page 2

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The Defendants’ (Appellants’) Evidence [4] DW1, Kevin Ouma Ooko, testified that he is the registered owner of parcel 8381, a subdivision of his parents’ land, parcel 7281. He maintained that his parcel has clear boundaries established by a surveyor and that he does not share a boundary with the Respondent. He denied trespassing, fencing, or planting trees on the suit land. [5] DW2, Peter Ooko, owner of parcel 8380, corroborated DW1’s testimony. He stated that he resided on his own parcel, did not share a boundary with the Respondent's land, and had never encroached, planted trees, or erected any structures on the suit land. Judgment of the Trial Court [6] After hearing the evidence, the Trial Court found that the Appellants had trespassed on the suit land. The Court ordered the Appellants to vacate the suit property within sixty days, failing which it would issue eviction orders. The Court also awarded the Respondent Kshs. 500,000 in general damages for trespass and mesne profits, together with the costs of the suit. The Memorandum of Appeal ELCLA E027 OF 2025-JUDGMENT Page 3

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[7] Aggrieved by the Trial Court’s judgment, the Appellants filed an Amended Memorandum of Appeal raising several grounds, primarily contending that the Trial Magistrate: i) Grossly misdirected himself by treating the evidence before him superficially and consequently reaching a wrong conclusion on the same. ii) Erred by failing to consider the Appellants’ case and the evidence tendered before him, despite no evidence being tendered to show that the Appellants had any structure, fixture, or fence on the Respondent’s property, parcel 4741. iii) Erred greatly by holding that the Appellants trespassed on property known as parcel 4741, contrary to the evidence on record that they are on properties known as parcels 8380 and 8381, respectively, which three titles are distinct by registration of titles, yet there was no iota of evidence to prove the same as required by law. vi) Failed to apply the law and to evaluate the evidence tendered, thereby reaching a decision that is unsustainable in law. v) Erred in law and fact by granting orders without any analysis of the three titles, despite evidence on the record that parcel 4741 does not exist on the ground. ELCLA E027 OF 2025-JUDGMENT Page 4

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vi) Erred and ignored the basic principles in awarding damages, as the plaintiff did not prove the use of the suit land, yet the trial magistrate awarded mesne profits without any evidence whatsoever. v) Erred in law and fact by holding that the Appellants encroached upon the Respondent’s property, despite the Respondent’s confirmation during the trial that he had neither seen nor experienced any encroachment by the Appellants upon his property. vi) Erred in law and fact by relying on the evidence of a private surveyor whose report confirmed that parcel 4741 does not exist on the ground and has allegedly been consumed by parcels 8380 and 8381. vii) Erred in law and fact by believing that the Respondent bought the land from a person named Mary Beatrice Ogony Otieno, without producing any proof of sale, such as a sale agreement, or calling the alleged seller as a witness. viii) Erred in law and fact by departing from the pleadings presented by the Respondent before him and by making a case therefrom, where the Appellants were strangers to parcel 4741, and by failing to issue summons to the Registrar of Lands and the Government Surveyor, who are the custodians of land titles and maps, to verify the Respondent’s allegations of ownership of parcel 4741. ELCLA E027 OF 2025-JUDGMENT Page 5

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ix) Erred in law and fact by failing to warn himself that three distinct titles, 4741, 8380, and 8381, were being mentioned. x) Erred in law and fact by basing his judgment on plots known as LR. NO. KISUMU/KONYA/5577 and LR. NO. KISUMU/KONYA/9445, respectively, whose owners were neither parties to the pleadings nor called as witnesses at the trial. xi) Erred in law and fact by failing to consider the pleadings as presented to the court, as the Respondent never sought the nullification of parcels 8380 and 8381 on the basis of the alleged surveyor’s finding that parcel 4741 does not exist and may be consumed by the two titles. x) Erred in law and fact by ordering the eviction of the appellants from parcel 4741, which they do not occupy, as they occupy 8380 and 8381, respectively. No order was sought to nullify title numbers 8380 and 8381. xi) Erred in law and fact by ordering the eviction of the Appellants from parcel 4741, which does not exist, and no fraud was alleged in the pleadings before him. xii) Erred in law and fact by basing his judgment on the assumption that parcel 4741 is also known as 8380 and 8381, respectively. Appellants’ Submissions ELCLA E027 OF 2025-JUDGMENT Page 6

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[8] The Appellants, represented by S.J.Nyang, submitted written arguments on 29th June 2026. They argue that the trial court erred in ordering their eviction and in awarding general damages and mesne profits. They claim that the court granted remedies that were neither properly pleaded nor proved, as the Respondent sought only eviction, damages, and costs, without explicitly seeking a declaration of ownership of the land in question. They also argue that the court assumed ownership without a title deed or sale agreement, relying instead on a green card that conflicts significantly with the private surveyor’s report on the land’s size. The Appellants also question the timing of the transaction, noting that although the Respondent states they bought the land in 2013, the green card shows the land was transferred and a title deed issued in 2011. [9] In addition, the Appellants challenge the Trial Court’s reliance on the evidence of a private surveyor. They argue that the surveyor acted ultra vires by conducting a survey pursuant to a court order in KISUMU MCMISC NO. E5 OF 2021, addressed to the Kisumu County Land Registrar and the County Land Surveyor. They maintain that they were never made parties to that miscellaneous application, nor were they invited to witness the survey. [10] The Appellants also highlight a contradiction in the surveyor’s findings: while he claimed that parcel 4741 does not physically exist on the ground because it was ELCLA E027 OF 2025-JUDGMENT Page 7

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consumed by the Appellants’ parcels, he drew a map indicating the title’s existence. Ultimately, the Appellants maintain that they are lawfully occupying their own legal titles. Since the Respondent never sought the nullification of these titles, the eviction orders were misdirected and further complicated by the Trial Court’s erroneous reference to third-party parcels 5577 and 9445, whose owners were not parties to the suit. Respondent’s Submissions [11] Opposing the appeal, Juliet Dima & Associates, for the Respondent, filed submissions dated 29th June 2026. In addressing the appellate court's mandate, the Respondent relied on Selle v Associated Motor Boat Co Ltd [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424 to acknowledge that a first appellate court must re-evaluate the evidence, but cited Mwanasokoni v Kenya Bus Services Ltd [1982-88] 1 KAR 870 and Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982-88] 1 KAR 278 to caution that an appellate court should not readily interfere with factual findings unless they are unsupported by evidence or based on a misapprehension of it. [12] On the issue of proof, counsel argued that under Sections 107, 108, and 109 of the Evidence Act (Cap. 80), the evidential burden shifted to the Appellants once registered ownership and physical interference were established, a burden they ELCLA E027 OF 2025-JUDGMENT Page 8

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failed to discharge by a bare denial. The Respondent also defended the admission and evaluation of the survey report, noting that the Trial Court was to determine its weight under Section 48 of the Evidence Act. [13] The Respondent’s counsel urged that the Trial Court properly evaluated the evidence and correctly applied the law. Counsel argued that the Respondent’s root of title was conclusively established by an uncontested green card, thereby demonstrating an unbroken chain of registration from the original proprietor to the Respondent. [14] Relying on Sections 24, 25, and 26 of the Land Registration Act, the Respondent submitted that registration vests absolute ownership in the proprietor and that a certificate of title is prima facie evidence of indefeasible ownership. Counsel countered the Appellants’ challenge to the absence of a sale agreement by stating that the Appellants failed to plead or prove fraud, illegality, or corrupt acquisition as required under Section 26(1) of the Land Registration Act. [15] To support the principle that fraud must be specifically pleaded and strictly proved by cogent evidence, the Respondent cites the cases of Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR and Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR. ELCLA E027 OF 2025-JUDGMENT Page 9

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[16] Additionally, counsel clarifies that the Respondent’s claim did not require impleading the Land Registrar for rectification under Section 80 of the Land Registration Act, as the suit was primarily founded on trespass rather than on a challenge to the register. [17] Regarding the award of general damages, the Respondent submitted that an appellate court should not interfere with quantum unless a wrong principle of law was applied or the award is inordinately high or low, relying on Kemfro Africa Ltd t/a Meru Express Services Gathogo Kanini v A.M. Lubia & Olive Lubia [198288] 1 KAR 727 and Butt v Khan [1981] KLR 349. To justify the Kshs. 500,000 award for deprivation of quiet enjoyment, the Respondent relied on Simiyu v Sinino [1985] eKLR and Obadiah K. Macharia v Kenya Power and Lighting Company Limited, while quoting the Court of Appeal in Kenya Power & Lighting Company Ltd v Fleetwood Enterprises Limited [2017] eKLR, which stated: “trespass to land is an actionable tort per se and proof of damage is not necessary or required. In other words, where trespass is proved as in this case, the affected party such as the respondent need not prove that it suffered any damage or loss as a result so as to be awarded damages. The court is under the circumstances bound to award damages, of course depending on the facts of each case’’. ELCLA E027 OF 2025-JUDGMENT Page 10

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[18] Consequently, the Respondent maintains that the eviction order directing the Appellants to vacate the physical encroachment on parcel 4741 is both legally and factually sustainable. Analysis and Determination [19] Before embarking on an analysis of the grounds of appeal, it is imperative to delineate the parameters of this Court’s mandate. The appellate mandate requires this Court to conduct a comprehensive re-evaluation, re-assessment, and reanalysis of all evidence adduced at trial to reach an independent conclusion on the factual and legal issues in contention. This principle was enunciated in Selle and Another v Associated Motor Boat Company Ltd and Others (supra). The Court held as follows: “An appeal to this court from a trial by the High Court is by way of retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judges findings of fact if it appears either that he has clearly failed on some point to take account of particular ELCLA E027 OF 2025-JUDGMENT Page 11

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circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally’’. [20] Guided by this precedent, this Court has examined the record of appeal, which contains the pleadings, the witness statements, the documentary exhibits (including the green card and the official search, and the surveyor’s report), the transcripts of the trial court’s proceedings, and the amended memorandum of appeal. The Court has also read and considered the respective submissions of the parties, and consolidates the various grounds of appeal into four core issues for determination: i) Whether the trial court erred in law and in fact in finding that the Respondent had established valid legal title and ownership of parcel 4741. ii) Whether the trial magistrate erred in law by failing to bind the Respondent to his pleadings, thereby reaching an erroneous conclusion that the Appellants committed trespass to land. iii) Whether the trial magistrate ignored basic principles in awarding general damages for trespass and mesne profits. Indefeasibility of Title and the Root of Ownership ELCLA E027 OF 2025-JUDGMENT Page 12

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[21] In the amended memorandum of appeal, the Appellants argued that the Trial Court erred in accepting the Respondent’s claim to have purchased the land from Mary Beatrice Ogony Otieno without a formal sale agreement, a transfer document, or the calling of the seller as a witness. They also challenged the Respondent’s reliance on a green card, noting the absence of a certificate of title. [22] Section 24 of the Land Registration Act, which outlines the effect of registration, provides that: “(a) The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and (b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease’’. [23] Section 26 of the Land Registration Act sets out the evidentiary standard for proving such absolute ownership in a court of law: “(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be ELCLA E027 OF 2025-JUDGMENT Page 13

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taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except-(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme’’. [24] While the Appellants correctly point out that the Respondent did not produce the certificate of title or a sale agreement during the trial, this Court finds that the omission, though imprudent, is not fatal to the Respondent’s claim of ownership. The Respondent’s production of a certified copy of the green card (Exhibit P1) and a valid certificate of official search (Exhibit P2) provides compelling evidence of the contents of the primary register. The green card provides a historical and current mirror of the active registrable interests affecting the parcel. Under the Torrens system, the land register, whose extract is the green card, is a complete, accurate, and conclusive reflection of all registrable interests affecting a particular parcel of land, unless there are fundamental inquiries in the registration that would require one to go behind the ‘’curtain’’ of registration. ELCLA E027 OF 2025-JUDGMENT Page 14

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[25] To challenge this prima facie evidence of title, the burden shifted to the Appellants. Under Section 26(1) of the Land Registration Act, a title can be impeached only on the strict statutory exceptions of fraud, misrepresentation, or corrupt acquisition. It is a trite principle of civil procedure that fraud and misrepresentation must be specifically pleaded in the defence and strictly proved by the party alleging them to a standard above a mere balance of probabilities, albeit below the criminal standard of beyond reasonable doubt (see the Vijay Morjaria and Arthi Highway cases, supra). The Appellants did not plead fraud, misrepresentation, or corrupt acquisition against the Respondent in their Statement of Defence dated 7 November 2022. Without such specific pleadings, the Respondent’s registered interest remains unimpeachable. [26] In any event, any lingering ambiguity as to the parcel’s existence and the Respondent’s proprietary interest is unequivocally resolved by the Appellants’ confirmation in the oral evidence. DW1 (Kevin Ouma Ooko), in his witness statement, which he adopted as his evidence-in-chief, expressly acknowledged the Respondent’s ownership history: “One Nelson Sweta states that he is the registered owner of parcel no. Kisumu/Konya/4741. Initially the said parcel was registered under my late grandfather’s name one Norbetus Ojunga Oloo... However, without my knowledge and that of the entire family one Nelson ELCLA E027 OF 2025-JUDGMENT Page 15

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Odhiambo Sweta acquired the same through Mary Beatrice Ogony Otieno who alleges to have bought the same from my grandfather’’. [27] By this statement, the Appellants conceded the historical chain of title from their grandfather to Mary Beatrice Ogony Otieno and ultimately to the Respondent. Therefore, the trial court cannot be faulted for recognising the Respondent’s proprietary interest in parcel 4741 on the basis of the unimpugned registry records and the Appellants’ own testimony. The Respondent successfully established the existence of the land and his ownership of it. The Court now turns to whether the Appellants committed the tort of trespass upon that specific land. Proof of Trespass to Land [28] The core of this appeal turns on whether the Appellants proved trespass to the required standard. Black’s Law Dictionary, 8th Edition, defines trespass as: “An unlawful act committed against the person or property of another; esp., wrongful entry on another’s real property.’’ [29] Section 3(1) of the Trespass Act Cap 297 provides that: “Any person who without reasonable excuse enters, is or remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock ELCLA E027 OF 2025-JUDGMENT Page 16

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to be on private land without the consent of the occupier thereof shall be guilty of an offence.’’ [30] This simply means that trespass is an unjustifiable and unlawful interference with possession of land. To succeed in an action for trespass, a plaintiff must prove, on the balance of probabilities, two distinct elements: first, that they are the registered owner or in exclusive possession of the land; and second, that the defendant physically intruded upon the land without lawful justification or consent. [31] As stated above, the Respondent proved the existence of the suit land and lawful ownership. The question that then arises is whether the trial court correctly found, as a fact, that the Appellants committed acts of trespass, bearing in mind that Section 107 of the Evidence Act places the burden of proof on the party asserting a fact. “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist’’. [32] In the context of the present appeal, the Respondent carried the overarching legal burden (under Section 107) of proving that the Appellants unlawfully entered parcel 4741. Because the Appellants filed a defence denying trespass and asserting ELCLA E027 OF 2025-JUDGMENT Page 17

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their own lawful boundaries, the burden remained squarely on the Respondent throughout the trial; he would fail if he tendered no evidence. [33] According to the plaint and the Respondent’s witness statement, there were three acts of trespass: the construction of houses, the erection of a fence, and the planting of trees. Although paragraph 8 of the Plaint explicitly averred that the Appellants built two permanent houses on Parcel 4741, the surveyor (PW2) entirely discredited this claim, confirming in his report and testimony that no structures or fences existed on the suit land and that the buildings in question were squarely located on the Appellants’ land. To quote PW2 on cross-examination, ‘’The buildings on 8380 and 8381 do not encroach into the parcel No 4741.’’ [34] If the structures were not on the suit land, the only remaining alleged acts of trespass were the presence of trees and a fence. Here, the evidential burden required the Respondent to adduce sufficient evidence to prove that the Appellants planted those trees and erected that fence. Regarding the fence, the surveyor confirmed that none existed on the land. The Respondent admitted during crossexamination that he had not seen the Appellants fence the land and claimed that the fence had been removed after the filing of this case. ELCLA E027 OF 2025-JUDGMENT Page 18

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[35] The other alleged encroachment was the presence of trees. However, PW2 stated that he did not know who planted them, and PW1 admitted that he had never seen the Appellants plant them or use the land. [36] The mere physical presence of trees on a vacant parcel of land does not automatically impute tortious liability for trespass onto adjacent landowners’ land. Liability in tort requires causation; there must be a direct evidentiary nexus between the actor (the Appellants) and the unlawful act (the planting of the trees or the erection of the fence). Without any witness testimony that the Appellants planted the trees, erected the temporary fence, or actively utilised the suit land, the evidential burden was never discharged. The Trial Magistrate’s finding that the Appellants trespassed on the suit land was therefore erroneous. Remedies (Mesne Profits and General Damages) [37] The final point for determination concerns the trial court’s award of monetary remedies. The Court awarded the Respondent a consolidated Ksh 500,000/= general damages for trespass and mesne profits. To begin with, the collapse of the finding of liability for trespass automatically collapses the damages award. However, even assuming the evidence established the tort of trespass, the trial court’s consolidation of mesne profits and general damages into a single monetary award constitutes an error that warrants this Court’s clarification. ELCLA E027 OF 2025-JUDGMENT Page 19

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[38] The distinction between general damages for trespass and mesne profits is well settled in jurisprudence. Trespass to land is actionable per se; that is, the law presumes damage from the mere act of unlawful entry. Consequently, a court may award general damages to vindicate the plaintiff’s right to exclusive possession, even if no actual physical or financial harm occurred. General damages are at the court's discretion and are intended to compensate for the infringement of a right. [39] Conversely, Section 2 of the Civil Procedure Act defines mesne profits as follows: “ Profits in relation to property, means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession.’’ [40] As this definition makes clear, mesne profits fall within the category of special damages. They represent the actual financial benefit, or rental value, that a trespasser has earned, or could reasonably have earned, during the period of unlawful occupation. Because they are special damages, they must be specifically pleaded and strictly proved by cogent documentary or expert evidence, such as valuation reports demonstrating the commercial rental value of the land in that ELCLA E027 OF 2025-JUDGMENT Page 20

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locality, evidence of crops harvested and sold, or evidence of the defendant’s financial enrichment. [41] Courts have repeatedly cautioned against conflating these two distinct remedies, as awarding both for the same period of unlawful occupation would amount to unjustified double compensation. In Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] eKLR, the Court of Appeal set out the legal position on this matter: “It is settled law that where a party claims for both mesne profits and damages for trespass, the court can only grant one and not both. Mesne profits is defined as the profit of an estate received by a tenant in wrongful possession between the dates when he entered the suit property and when he leaves. Our understanding of the above persuasive authority is that once the learned Judge made the award under the subhead ‘mesne profits’ there was no justification for him awarding a further Kshs.10 million under the subhead 'trespass' since both mean one and the same thing...’’. [42] Similarly, in Luva v Kimbio & 3 others [2023] KEELC 16462 (KLR), the court reiterated the strict requirement for proof: ELCLA E027 OF 2025-JUDGMENT Page 21

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“The Court has considered the pleadings and the evidence on record. Mense (sic) profits are in the category of special damages. They must be specifically pleaded and proved. The 1 st Defendant did not set out the particulars of mense (sic) profits in her Counter Claim. She did not furnish the Court with any evidence on the period the Plaintiff has been on the suit property and the loss she has suffered. I therefore find that she is not entitled to mesne profits’’. [43] In the present case, the Respondent’s plaint contained only a blanket, unparticularised prayer for ‘general damages for trespass and mesne profit’. The Respondent failed to provide any mathematical particulars, valuations, or financial formulae to quantify the alleged mesne profits in his pleadings. During the trial, neither PW1 nor PW2 offered any evidence regarding the rental value of the vacant land, the economic benefit allegedly gained by the Appellants, or any specific financial loss suffered by the Respondent. As such, the consolidated damages award is legally unsound and offends the principles of special damages. Final Orders [44] For the reasons set out in the body of the judgment, this Court concludes that this Appeal is meritorious and issues the following final orders: ELCLA E027 OF 2025-JUDGMENT Page 22

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i) The Appeal is hereby allowed. ii) The Judgment delivered on 27th November 2024 in Winam MCELC No. E027 of 2022, together with the consequential orders, is hereby set aside. iii) The Respondent’s (Plaintiff’s) suit in the Trial Court (Winam MCELC No. E027 of 2022) is hereby dismissed. iv) The costs of this Appeal and the costs of the suit before the Trial Court are hereby awarded to the Appellants. Delivered virtually, signed and dated this 24th day of September 2026. C.C. Oluoch Judge In the presence of: Ms Nyang for the Appellant Ms Atieno for the Respondent ELCLA E027 OF 2025-JUDGMENT Page 23

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