Peter Ndungu Kariuki v Muteti Nguyа

2. The plaintiff avers that he is the registered owner of land parcel number Trans Nzoia/Kapkoi/367 measuring approximately 2.10 Ha, having settled thereon since 1998. 3. The plaintiff further states that the defendant, who is his immediate neighbor, has planted Eucalyptus (Blue gum) trees along their common boundary, and which trees have been planted contrary to the provisions of the Environment and Management and Co-ordination (Amendment) Act, 2015 that bans the planting of Eucalyptus trees below six meters from road reserves or common boundaries. 4. According to the plaintiff, the trees are creating a nuisance by emitting chemicals and by their protruding roots and stems. The particulars of the nuisance are outlined as: a)Rendered the plaintiff's parcel of land along the boundary of no agricultural use. b)Damage to crops planted several times. c) The roots of the trees grow several meters from the stem and spread into the plaintiff's land. d)Create a negative effect on the land. 5. The plaintiff asserts that he sought the intervention of the County Forest Conservator, JUDGMENT: KITALE ELCPCC NO. E003 OF 2026 -D.O.D25/9/2026 the Ward 2

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Agricultural Officer and the Chief Kapkoi Location, who advised that the trees had been planted illegally. Despite this advice, the defendant has, without any justification, neglected or refused to cut down the trees. 6. The summons was served upon the defendant, and a return of service has been filed dated 23/6/2025. 7. The suit proceeded for formal proof on 23/7/2026. Peter Ndungu Kariuki testified as PW1. He relied on his witness statement dated 24/4/2025 as his evidence-in-chief. He also produced copies of the title, assessment letter dated 26/6/2024, report dated 2/7/2020, crop evaluation report dated 2/7/2024, report dated 24/4/2024, and photographs as P. Exhibit Nos. 1 - 6. 8. Further, PWI stated that the defendant had been summoned several times to the Chief's office and by the forest officials, but he had ignored the summons. PW1 referred to the damage caused by the trees to his land and prayed for compensation for the damaged trees and his land. 9. I have carefully considered the evidence on record by the plaintiff as well as the applicable law. It is not in dispute that the parties are adjacent neighbours. The JUDGMENT: KITALE ELCPCC NO. E003 OF 2026 -D.O.D25/9/2026 3

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plaintiff alleges that the defendant's trees on the boundary are causing immense harm to his land and his crops. According to the plaintiff, he has tried to resolve the dispute through the chief and the forest officials, but the defendant has declined to honor the summons. 10. The plaintiff’s contention is that, as it stands, the trees are still on the boundary of their properties and continue to cause harm and loss of user to the plaintiff's land due to the alleged emission of chemicals and their protruding roots. 11. From the particulars of the nuisance, the plaintiff contends that he has suffered substantial loss and damage. The plaintiff accuses the defendant of violating the Environmental Management and Coordination Act. 12. Even though there is evidence of service of the court process, the defendant did not enter appearance nor file any statement of defence. This matter thus proceeded as an undefended suit for formal proof hearing 13. At the said hearing, the plaintiff relied on the reports from the agricultural office and the county forest conservator. JUDGMENT: KITALE ELCPCC NO. E003 OF 2026 -D.O.D25/9/2026 4

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14. Turning to the plaintiff’s claim for general damages for loss of user, the plaintiff claims that due to the chemical and the roots of the defendant's eucalyptus trees, he has suffered loss and damage, and should be compensated. From the crop evaluation and damage reports, the damage is not quantified. There is no explanation of how the agricultural officer arrived at the figure of Kshs.100,000/=. Ideally, the officer would have, under the section titled technical valuation in his report dated 2/7/2024, indicated the costs incurred by the plaintiff to buy the seedlings destroyed, transport, fertilizers, pesticides and labour. The officer would then calculate the loss suffered by the plaintiff over a specific period of time. 15. The burden of proof lay with the plaintiff to prove loss of user and seek compensation from the defendant. It does not matter that the suit is undefended. The import of Section 108 of the Evidence Act is that the plaintiff is bound by the law to lead evidence to support the existence of the facts he pleaded. 16. In the case of Moi -vs- Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment), the court held that; JUDGMENT: KITALE ELCPCC NO. E003 OF 2026 -D.O.D25/9/2026 5

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“It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.” 17. My finding on the plaintiff's claim for damages is that the same has not been proved to the standards required by law. The plaintiff failed to prove on a balance of probabilities that damage had, by real or apparent observation, occurred. He only produced photographs of bare land where one cannot tell if any crops had been planted. 18. Further, the alleged occurrence of damage over the years was not established. For instance, the plaintiff failed to establish that he lost income on account of the crop failure, due to the existence of the defendants' eucalyptus trees. JUDGMENT: KITALE ELCPCC NO. E003 OF 2026 -D.O.D25/9/2026 6

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19. On the second claim by the plaintiff that the defendant has violated provisions of the Environmental Management and Coordination Act. The plaintiff states that the Act prohibits planting of eucalyptus trees below 6 meters from road reserves or common boundaries. It is worth mentioning that Article 69(2) of the Constitution places a duty on every person to co-operate with state organs and other persons to protect and conserve the environment and ensure ecologically sustainable development and use of natural resources. 20. The planting of eucalyptus trees not only at the boundary of the plaintiff's land but also in the defendant’s own land can not be said to be intended to protect and conserve the environment. I am therefore persuaded to allow the plaintiff’s suit in terms of prayers (a), (b) and (c). The defendant is ordered to cut down all the eucalyptus trees along the common boundary with the plaintiff within 45 days of this judgment and, in their place, plant ecologically friendly trees within the same period. 21. The Forest Conservator and the Area Chief shall ensure compliance and report to this court upon the expiry of 45 days JUDGMENT: KITALE ELCPCC NO. E003 OF 2026 -D.O.D25/9/2026 7

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22. Turning to the issue of costs, the general principle of law is that costs follow the event. (See Section 27 of the Civil Procedure Act). The plaintiff’s suit having partially succeeded, I award him costs as prayed. 23. It is so ordered. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 25th day of September, 2026. In the presence of: Court Assistant: Matui/Nancy Ms. Walker for the plaintiff No appearance for the defendant HON. G.M. GITONGA JUDGE, ELC KITALE JUDGMENT: KITALE ELCPCC NO. E003 OF 2026 -D.O.D25/9/2026 8

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