https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3034

Nyagah v Lemanyaro & another (Environment and Land Appeal E004 of 2024) [2026] KEELC 3034 (KLR) (13 May 2026) (Judgment) Neutral citation: [2026] KEELC 3034 (KLR) Republic of Kenya In the Environment and Land Court at Nanyuki Environment and Land Appeal E004 of 2024 LN Mbugua, J May 13, 2026 Between James Wagatu Nyagah Appellant and Susan Lemanyaro 1st Respondent County Government of Samburu 2nd Respondent (Being an appeal from the judgement of Hon L. Tamar (S.P.M.) delivered on 22.2.2024 at Maralal Law Courts in S.P.M - ELC No.9 of 2020) Judgment The case before the Trial Court 1.The appellant herein instituted proceedings before the trial court vide a plaint dated 16.7.2020. The parties sued were Susan Lemanyaro and The County Government of Samburu as the 1st and 2nd defendants while the Chief Officer Department of Physical Planning, Lands and Housing, Samburu County was the Interested Party. Through an application dated 21 1.2021 which was allowed on 27.1.2021, the plaint was amended to reflect Elina Jackson Lemanyaro as the 1st defendant replacing Susan Lemanyaro. The case of the plaintiff was that he was the legal owner of the suit parcel plot no. 11 located at Maralal Township, having purchased the same from David Ntitia Loiririo in 1998. The plot was transferred to him and he commenced rate payments as set out at paragraph 9 of the plaint 2.Thereafter, the plaintiff fenced the plot. However, the 1st defendant and owner of plot 10 laid claim to the suit plot of which in year 2015, the 1st defendant occupied the suit plot by force, while on 14.7.2020, she commenced soil excavation and has continued with the trespass. The plaintiff therefore prayed for judgment in the following terms;“a)a) A declaration that the plaintiff is the bona fide and rightful owner of the suit property being a parcel of land known as Plot Number 11 located at Maralal township.b)A mandatory injunction against the 2nd defendant to issue, through the Interested Party, all the title documents in relation to the suit property in the name of the plaintiff.c)A permanent injunction restraining the defendant, their servants, workmen and agents, from entering on and/or from erecting or causing to be erected thereon any structures, or from in any way interfering with the plaintiff’s use and enjoyment of the plaintiff’s said property.d)An order of demolition of any illegal structures constructed by the 1st defendant on the suit property and/or an order of eviction from the suit property.e)Costs of this suitf)Interest on (e) until full payment.” 3.A statement of defence was filed on 8.3.2021 where the 1st defendant claims that she owns plot no.10 in Maralal Town, which plot was issued to her husband through an allotment letter dated 12.3.2012. That the said defendant has been in possession of the said parcel since then. 4.At the trial, the plaintiff testified as PW1. He produced the list of his documents as exhibits 1-9. His case is that he bought the suit plot from an Assistant Chief, one David Ntitia Loiriro on 11.8.1998 who had an allotment letter dated 1.3.1998, only for the 1st defendant to claim the plot. He contends that currently, the 1st defendant is in occupation of the plot. 5.On cross examination, Pw1 stated that his plot is no. 11, but he has no map to show its location, and the seller did not show him the map. He also did not have minutes of the council in which the plot was allocated to David. He has never lived on the suit plot though he fenced it. He avers that plot 10 belongs to Jackson Lemanyaro, deceased. 6.The defence side called three witnesses. DW1 was Elina Lemanyaro, the 1st defendant and she adopted her witness statement dated 17.5.2021 as her evidence. She produced the documents in her list as exhibits 1-11. Her evidence mirrors her pleadings. 7.On cross examination, DW1 reiterated that her husband was allocated the plot no. 10, while David’s plot was 11. She was shown the beacons and the two plots were fenced by the defendant. 8.A witness BEATRICE LENGEWA, stated that she is a surveyor working with the county government of Samburu. She was unable to speak to the matter in question, averring that the issue related to planning. Thus a planner was called as DW2, MOSES OMONDI. He introduced himself as a physical planner with the county government of Samburu. He avers that the suit plots are in Loikas area which is a residential zone. That there was a plan and allocation was done in 1996 of which the plot numbers started from 14-47, however they are mixed up. Thus another version of a plan was developed to represent the reality on the ground. Thus plot 10 is where hope for life church is located next to plot 11. That in the 1996 allotment, Plot 10 would have been 22, Maralal Block 2/299, while plot 11 would have been plot 25, now Maralal Block 2/298. 9.On cross examination, Dw2 stated that he cannot tell the measurements of plot 1-10. He avers that those planning trends were inaccurate as they had errors. That in the 1994 maps, plot 10 and 11 were next to each other. That in the current 2020 version plan, plot 10 is no. 696 measuring 0.076 Ha. while plot and 11 is no.697 measuring 0.072 ha. and they are next to each other. 10.In re- examination, DW2 stated that the numbers of 1994-1996 changed, but he doesn’t know when the same happened. However, by the time the parties came to court, the plots were known as 10 and 11. He avers that planning comes before survey for demarcation and beaconing. 11.The analysis made by the trial court and the decision thereof is short, hence I find it expedient to reproduce the same as follows;“The dispute as framed by the plaintiff revolves around the ownership of plot No. 11 which the plaintiff claims is illegally occupied by the 1st defendant and who has gone ahead to deposit construction material in total disregard to the rights of the plaintiff. Both the parties have elaborately presented their respective case and produced documentary evidence to prove their claim to the ownership of the disputed plot. All the documents produced by the plaintiff including the allotment letter relate to plot No. 11, whereas the 1st defendant produced documents relating to plot No. 10. The plaintiff averred in paragraph 10 of the amended plaint that plot No. 10 is owned by the 1st defendant and he lays no claim to the said plot whatsoever. That it is the 1st defendant who had interfered with his plot No. 11.The evidence of Moses Omondi, the Physical Planner in the County Government of Samburu puts the matter to rest. He produced the maps and the plans for the entire Loikas residential Zones and told the court that the plot in dispute which the plaintiff describes as plot No. 11 is on the ground plot No 10 measuring approximately 0.076 Ha contrary to the plaintiff assertion and that plot No. 11 which the plaintiff claims to belong to him exist on the ground and is adjacent to that of the 1st defendant and measures approximately 0.724Ha.In view of the evidence by the Physical Planner, the expert in the matter, and the documents by both parties on their respective cases, I find that the plaintiff suit fails and the same is hereby dismissed with cost” 12.Aggrieved by the aforesaid decision, the appellant filed his Memorandum of Appeal dated 21.3.2024 where he raises the following grounds;i.That the learned magistrate erred in fact and law in disregarding and failing to take into account credible and reliable evidence presented by the appellant which, if carefully analysed in light of the legal provisions applicable, would have led to a different conclusion. The legal provisions applicable in the circumstances of the case were:-a.Constitutional enactment (Article 62, Constitution of Kenya) vesting all Public Land on the County Governments and which provisions do not feature anywhere in the judgment.b.The Magistrate did not appreciate that the process of regularization (Pursuant to the dictates of the Physical Planning Act, Cap 286) was ongoing and that none of the litigating parties could be considered to have an interest capable of enforcement as a land claim in a court of law.c.New parcel numbers were still being processed (pursuant to the regularization process hinted to by PW3) in the pendency of the suit and therefore it was erroneous to maintain the suit until and unless the witness PW3 had compiled the final Survey Plan and an Officer from the County Department of Survey confirmed to the litigating parties the location of their respective parcels on the ground.ii.The Learned Trial Magistrate erred in law and fact by dismissing the plaintiff’s suit as he did by failing to take account to the evidence tendered by PW3 to the effect that the suit land (plot 11) adjoins the 1st respondent’s land (plot 10). Basically, the Learned Trial Magistrate took a tangent by deviating from the matters presented before him by the plaintiff and went ahead to affirm the 1st defendant’s ownership of plot 10 which was raised by the plaintiff.iii.The Learned Trial Magistrate erred in law and fact by dismissing the plaintiff’s suit as he did by failing to call evidence of the County Surveyor who was instrumental in locating the potential position of the litigating parties’ land on the ground as well as the measurements.iv.All in all, the Learned Magistrate so misdirected on matters of both law and fact as to occasion a miscarriage of justice against the appellant. 13.The appellant therefore prays for judgment in the following terms;“ 1.The appeal be allowed and the matter be reverted to the Learned Trial Magistrate for further directions in line with the Survey Plan (Upon compilation). 2.In the further result, the judgment and orders made by the Learned Trial Magistrate be set aside and/or quashed in their entirety. 3.Any further or better relief deemed just and fit by this Honourable Court.” The Appeal 14.This court directed the parties to canvass the appeal through written submissions, of which both parties have duly complied. The appellant submits that the evidence of Dw2, the planner which the trial court relied on demonstrates administrative flux and not finality, yet the trial court treated the provisional plans as conclusive evidence since no witness testified that regularization process of the plots had been completed. The cumulative effect is a judgment which does not flow from the evidence on record. 15.In her submissions the 1st respondent argues that the system of litigation is adversarial in nature where litigants have a duty to present evidence where a trial court is a neutral arbiter who should not be calling witnesses, adding that litigation has to come to an end, thus the issue of a retrial does not arise. 16.I have considered the record before the trial court as well as the rival submissions proffered herein and the Grounds of Appeal. 17.This being a first appeal, this court reminds itself of its primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the evidence and then determine whether the conclusions reached by the learned magistrate are to stand and give reasons either way. That was the pronouncement of the court in the case of Abok James Odera t/a A.J Odera & Associates Vs John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR. 18.A perusal of the analysis made by the trial court reveals glaring gaps. In particular, the court found that the dispute at hand was put to rest through the evidence of of the planner ( Moses Omondi). However, this is far from the truth. For the said evidence can only be considered as messy. This witness is the one who stated that in the 1996 plans, the plots started from 14-47. He went on to give an account of how the plot numbers mutated where plot 10 also bore numbers 22, block 2/299 and 696, while plot 11 was No. 25, Block 2/298 and 697 with no clarity as to when and why the changes occurred. Of great concern is his evidence that plot 10 on the map is where a church known as Hope for Life is situated, then next is plot No. 11. 19.Planning is anchored in law encompassing regulatory framework which speaks to permissible land use, clarity of land use and orderly development. This in turn guides other regulatory procedure on land rights including survey. The evidence of DW2 is a far cry from what the definition of planning is all about. 20.What more, the trial court refers to maps and plans produced by the planer, but nowhere in the evidence of the said witness does Dw2 state that he produced these documents. In essence, there are glaring discrepancies in the manner in which the evidence was analysed by the trial court which amounted to an unfair trial. 21.In the case SM v HGE [2019] KEHC 4160 (KLR), the court stated that“Where a trial process is wholly deficient or unsatisfactory, the appellate court should declare a mistrial, and order a retrial. An appellate court can order a retrial where the hearing and the judgment of the trial court were so unsatisfactory as to amount to a complete mistrial” 22.The unsatisfactory nature of the analysis conducted by the trial court warrants a retrial in this case. Thus the appeal is allowed, the suit file is remitted back to the trial court to be heard by any magistrate other than Hon. Tamar. Each party is to bear their own costs at the appeal and before the trial court. DATED, SIGNED AND DELIVERED AT NANYUKI THIS 13TH DAY OF MAY 2026 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Mbugua D. W. – AppellantKihara Kimai – RespondentNancy Mwangi C/A