https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3858

Mwa v Onyango & 6 others (Environment and Land Appeal E013 of 2024) [2026] KEELC 3858 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3858 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Appeal E013 of 2024 FO Nyagaka, J June 18, 2026 Between Janes Agola Mwa Appellant and Maurice Odhiambo Onyango 1st Respondent Nicholas Ochieng Onyango 2nd Respondent Richard Onyango Owino 3rd Respondent Joshua Ouma Onyango 4th Respondent Wilfred Onyango 5th Respondent Linet Kisaka 6th Respondent Jennifer Mideva Onyango 7th Respondent (Being an Appeal from the Judgment and Decree of Hon. N. Wairimu in Migori CMELCC No. 39 of 2020 delivered on 6th June 2024) Judgment 1.By way of a Plaint dated 20th July 2020 the Appellant sought the following orders in the trial court;1.An order of permanent injunction against the defendants jointly and severally from trespassing, occupying, putting up any structure or dealing in any way with the suit land and an eviction order to emanate therefrom against the 1st and 6th Defendants.2.Damages.3.Mesne Profits.4.Costs of the suit and interest at court rates.5.Any other suitable relief the honourable court may deem fit and or expedient to grant in the circumstances. 2.The Appellant, then the Plaintiff, contended that he was the registered proprietor of land parcel no. Suna East/Kakrao1605 which was given to him as a gift in the year 1999. That in 2019 he made an application for consent of the Land Board to approve an intended sub division on LR No. Suna East/Kakrao/1605 and on 30th June 2019 the Board issued consent for the sub division which was then undertaken on 30th September 2019. Upon sub division, it was surrendered and the resulting new numbers including Suna East/Kakrao/ 8851, 8852, 8853 and 8854 were duly registered in the name of the Plaintiff. 3.The plaintiff urged that on 8th July 2019 the 1st, 2nd, 3rd, and 4th Defendants forcefully entered his land LR No. Suna East/Kakrao/8851 and illegally and unlawfully erected a semi-permanent structure against the Plaintiff’s consent. He particularised the alleged trespass by the defendants and urged the court to allow the prayer. 4.The defendants filed a statement of defence dated 5th August 2020 where they urged that the court was not seized of the jurisdiction to determine the dispute as the issues raised were the preserve of the Land Registrar. They denied the contents in the plaint and further, averred that the plaintiff undertook development without regard to the proprietary rights and interests of adjacent land owners, particularly the 7th and 1st defendants who are proprietors of LR Nos. Suna East/Kakrao/8704 and 8705. 5.They urged the court to dismiss the suit with costs. Hearing at the trial court 6.PW1 was the Plaintiff, James Agola Mwa, who adopted his witness statement as evidence in chief. He urged that the defendants occupied his land without his permission and sub divided it. Further, that Lucy Kisaka purchased a parcel of land from Maurice Odhiambo, the 1st defendant. He denied having sold the parcel. He produced a title for LR No. Suna East/Kakrao/1605 as P Exhibit 1 and the LCB Consent as Pexh 2. 7.During cross examination, he stated that the 7th defendant does not occupy his land, and further that the 5th defendants’ role was only to accompany the surveyor to his parcel of land. Further, that the 6th defendant encroached on his parcel, and that it was the 1st and 6th defendants who had put structures on the land. 8.PW2 was the surveyor, Omondi Ray Aloo, who testified that he prepared a report dated 30th September 2020 which was in respect to parcel no. Suna East/Kakrao/1605, 1607, and 8798. He gave evidence that parcel No. 1605 was owned by James Agola Mwa, No. 1606 by Agnes Okello and Owande and 8798 was owned by Jennifer Mideva Onyango. 9.He stated that the land registry Migori requested him to visit the parcel. Janes Agola Mwa had reported case of trespass at Migori Police Station. According to Migori Sheet No. 5 of Kakrao Registration Section (P-exhibit 10) there is a road separating LR No. Suna East/Kakrao/1605 and 985. The road exists on the ground and on the map, and was the reference point of the survey. The boundary of No. 1605 and 1606 were still existing on the ground. From the common boundary of LR No. Suna East/Kakrao/1606 and 1605, there is a boundary separating the two parcels from LR No. Suna East/Kakrao/8798. The boundaries are well established on the ground, and the measurements on the ground correspond with what is on the map. 10.He stated that he checked records which show that the boundaries of parcels LR Nos. Suna East/Kakrao/1605 and 1606 and 62 (which produced 8798) were fixed in November 2006 by the Land Registrar, one Mr. Ndungaro. The boundary was still in existence when he visited the parcels and a stream passes through parcel No. 8798 which when measured indicated that the boundary, does not match what is on the ground with LR No. Suna East/Kakrao/1605. He stated that when measured from the stream the measurement will overlap onto LR No. Suna East/Kakrao/1605 by 22M. He adopted the earlier boundary fixed in 2006. 11.He stated that a portion of land sold to Linet Kisaka, though sold by owner of LR No. Suna East/Kakrao/8798, is within LR No. Suna East/Kakrao/1605. That the homestead of Maurice Odhiambo Onyango who is son to Joseph Mideva Onyango is within parcel LR No. Suna East/Kakrao/1605. According to him, the disputed portion is within LR No. Suna East/Kakrao/1605. He stated that Parcel No. 1605 is now sub divided and the portion occupied by Kisaka Linet and Maurice Odhiambo Onyango is LR No. Suna East/Kakrao/8851 (A product of No. 1605). No-8851 is still registered in the name of James Agola Mwa. 12.During cross examination, he stated that according to the reported case, the boundary had not been fixed. To prove trespass, one needs to determine boundaries first, and he found the boundaries intact. That the boundaries had been fixed previously, and when a boundary is fixed it is noted in the register. That he adopted the boundaries as existed in the ground. 13.DW1 was the 2nd defendant, Nicholas Ochieng Onyango who stated that his land was parcel No. Suna East/Kakrao/62 which neighbours that of the Plaintiff. During cross examination, he stated that there is no boundary between No. 62 and 63. He urged the court to order the registrar does visit the land and establish the boundaries. 14.DW2 was Linet Makungu Kamadi Kisaka who testified that she bought parcel no. Suna East/Kakrao/8704. She adopted her witness statement as evidence in chief. During cross examination, she stated that she purchased 0.31 Ha after doing due diligence. That she didn’t produce her title deed or the sale agreement. She stated that she purchased the land from Richard Onyango and Jennifer Mideva. 15.Upon considering the testimonies of the witnesses, the trial court dismissed the Plaintiff’s case. 16.Being dissatisfied with the decision of the trial court, the Appellant instituted the present appeal vide a memorandum of Appeal dated 20th June 2024, premised on the following grounds;1.That the learned trial magistrate erred in law and fact when she failed to consider and take into account all the circumstances surrounding the case specifically that the Respondents’ actions did amount to trespass and infringed on the Appellants proprietary rights.2.That the Learned Trial Magistrate was bias towards the Appellants case by failing to consider the magnitude of the dispute herein notwithstanding the Appellants evidence despite the Appellant discharging his evidentiary burden of proof and proving his case on balance of probability.3.That, the Learned Trial Magistrate failed to cumulatively and/or exhaustively evaluate the evidence on record and hence failed to capture and decipher the salient issues and/or features of the suit before her and thus arrived at an erroneous conclusion, contrary to and in contradiction of the uncontroverted evidence.4.That the Learned Trial Magistrate erred in law and in fact by swaying her judgment on side of the Respondents by discrediting the Appellant’s mutation form and the surveyor’s report that indeed established the Respondents had trespassed.5.That the Learned Trial Magistrate erred in law and in fact by raising the bar of burden of proof from a balance of probability to beyond reasonable doubt.6.That the Learned Trial Magistrate erred in law by failing to exercise its discretionary powers under section 3A of the Civil Procedure Act to interrogate the facts leading the leading the surveyor’s findings and seeking another expert evidence to arrive at a just determination.7.That the Learned Trial Magistrate erred in law and in fact by failing to appreciate that the Respondents' never impeached the testimony of the Appellant and the evidence on record.8.That the Learned Trial Magistrate disregarded and/or ignored the totality of the evidence tendered and/or rendered before herself and thereby arrived at a slanted conclusion, contrary to and in contravention of the evidence on record.9.That the Learned Trial Magistrate erred in law and in fact by ignoring express findings of the surveyor that the 1st Respondent had trespassed onto the Appellant’s land.10.That the learned trial magistrate greatly misdirected herself by discerning herself from real facts in issue instigated in the surveyor’s report and finding that a portion of land sold to the 6th Respondent by the 1st Respondent is within the Appellants homestead and even the 1st Respondent homestead is within 1605 now 8851 registered in the name of the Appellant.11.That the Learned Trial Magistrate having heard the case, failed to render herself fully, on all aspects of the suit. Consequently, the judgment is not only inconclusive, but same is omnibus and has therefore occasioned a miscarriage of justice.12.That the Learned Trial Magistrate erred in law and fact by infringing the Appellant propriety lights in total disregard of article 40 of the constitution of Kenya.13.That the Learned Trial Magistrate erred in law and fact that the 6th Defendant acquired a good title and dismissing the Appellant claim.14.That, the Learned Trial Magistrate erred in her findings by basing her judgment on mere technicalities that the Land Registrar must be present and failing to appreciate the confides of Article 159 of the Constitution of Kenya and further misinterpreting section 18(3) of the LRA in favour of the Respondents.15.That the Learned Trial Magistrate erred in law and in fact in not according/appreciating the function of the land surveyor is to determine boundary and not the Registrar.16.That, the findings of the Learned Trial Magistrate were against the weight of the evidence adduced by the Appellant.17.That, the Learned Trial Magistrate greatly misdirected herself in treating the submissions of the Appellant very superficially thereby erroneously arriving at a wrong conclusion.18.That, the Learned Trial Magistrate erred in law and in findings that the Appellant was not worthy of the prayers sought.19.That, the Learned Trial Magistrate’s judgment has brought with it animosity on the ground and is unjust in all circumstances of the case. 17.The parties filed submissions on the Appeal. Appellants’ Submissions 18.On whether the Appellant’s appeal is merited and should be allowed, learned counsel urged that the Appellant produced copy of title to LR. No. Suna East/Kakrao/1605, Certificates of Official Search for LR. Nos. Suna East/Kakrao/8851/8852, 8853 and 8854, and the titles held by the Appellant were never challenged in the trial court by the Respondents. Counsel urged that the registration of the Appellant as the proprietor of the parcels of land, grants him the absolute proprietorship for those parcels. Such absolute proprietorship can only be subject to certain rights and privileges as are known to law. He cited Section 25 of the Land Act in this regard. 19.Counsel submitted that the Respondents did not come forward to say what their claim on the suit land was. The Appellant produced Title Deeds as evidence of ownership and in terms of Section 26 (1) of the Act. He cited Section 24 (a) of Land Registration (Act No.3 of 2012) and placed reliance on the case of Jolas Nicholas Manyasi v Benson Masini Timbwa [2018) eKLR. 20.Counsel urged that it was the Appellants claim against the Respondents forcefully encroached onto his parcel of land LR NO. Suna East/Kakrao/8851. He urged that the Black's Law dictionary, 9th Edition defines trespass as follows, “An unlawful act committed against the person or property of another; especially wrongful entry on another’s real property.” 21.Further, that The Trespass Act defines it as an act wherewith,“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 to be on, private land without the consent of the occupier thereof shall be guilty of an offence.” 22.He argued further that the Appellant testified that the Respondents trespassed onto the suit land and furthered unlawful actions by putting up structures, erecting a fence and denying the Appellant access to the suit land. The Respondents failed to challenge the rights of the Appellant as a title holder on the suit land. In view of section 26(1) (a) & (b) (supra) the Respondents actions are in obvious violation of the Appellants proprietorship rights as evident on the face of facts and evidence presented to court. 23.Counsel urged that the Appellant produced photographs (PExh.1a-d), Demand letters (PExh. 12a-c) and a Surveyor’s Report (PExh.9), During the trial there was no evidence tendered by the Respondents to controvert or impeach the findings in the Surveyor’s report, and no expert witness was called by the Respondents to impeach the testimony of the Surveyor (PW-2). That the Respondents did not specifically deny the findings in the report or the pictures and that the Defence and testimonies given were mere denials with no solid proof. 24.Counsel urged that the Appellant proved trespass against the Respondents going by the weight of evidence provided by the Appellant which is was uncontroverted. Reliance was placed on the case of Mohamed Riaz Shoukat & another v Vasin Abubakar Argwings Kodhek & 3 others [2017] eKLR. Counsel urged that on the strength of the evidence presented to court vis a vis the relevant law as highlighted the balance of convenience is in favour of the Appellant. 25.Counsel urged the court to allow the Appeal. Issue, Analysis And Determination 26.The duty of this court clear as the Supreme Court, the Court of Appeal, this one and others of equal status have restated time and again: being an appellate court of first instance this court must evaluate the evidence afresh and draw its own conclusion even though it did not see the witnesses testify so as to form an opinion on their demeanor, unless specifically recorded. This was stated in PIL Kenya Limited v Oppong [2009] KLR 442, where it was held that:“It is the duty…of a first appellate court to analyze and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses and their demeanour and giving allowance for that”. 27.Also, it was restated in in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123 wherein the Court of Appeal held:“…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 judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...” 28.It was also restated in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 29.Additionally, the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows:“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions” 30.Also, in Williamson Diamonds Ltd and another v Brown [1970] EA 1, it held that:“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.” 31.Lastly, in Gitobu Imanyara & 2 others Vs Attorney General [2016] eKLR 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 allowances in this respect.” 32.Having already recalleddd the testimonies during the hearing, the next port of call is the analysis and determination of the appeal. Having considered the record of appeal, submissions and testimonies, the sole issue for determination is; Whether the trial court erred in dismissing the Appellants’ suit. 33.The crux of the Appellants’ suit was that the Respondents encroached onto his and, specifically parcel number 8851 and that they erected structures and planted sisal boundaries. Additionally, that there were instances of trespass and encroachment. 34.It cannot be gainsaid that the burden of proof is on he who alleges. This position is succinctly captured in Sections 107, 109 and 112 of the Evidence Act. Section 107 provides as follows:“(1)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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 35.Sections 109 and 112 of the same Act states as follows:“ 109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 112.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 36.In discussing the standard of proof in civil liability claims in this jurisdiction, the Court of Appeal in Mumbi M'Nabea vs David M. Wachira [2016] eKLR stated as follows:“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not.” 37.As the Appellants’ suit was premised on allegations of trespass and encroachment, it was upon him to produce evidence in this regard. He produced the title for parcel no. Suna East/Kakrao/1605, from which the suit land was sub divided, as evidence of proprietorship. However, on the issue of encroachment and trespass, there was no evidence tendered in this regard. He relied on the evidence of PW2 who stated that the 1st and 6th Respondents had trespassed by encroaching on part of LR Nos. Suna East/Kakrao/1605 while at the same time stating that they occupied both part of LR Nos. Suna East/Kakrao/1605 and 8851. Other than his report, which was prepared in the absence of the Land Registrar, and had no fixed boundaries, no other evidence was tendered issue of encroachment and trespass. 38.Additionally, I note that the trial court found that the 6th Defendant had acquired good title which was not in issue. She also did not produce the title or sale agreement which then begs the question as to how this issue arose. It is my considered view that this was an erroneous finding as this issue was never pleaded by any party. Further, despite claiming that the 1st respondent sold the suit and to the 6th defendant, there was no evidence tendered in this regard which once again shows that the Appellant failed to prove his case as he could not prove the allegations pleaded. 39.The learned trial magistrate went on to identify the sole issue for determination as the point from which land belonging to the 1st to 6th Respondents was to be measured, yet the Appellants’ claim was primarily based on an alleged trespass and encroachment. Suffice it to say, the report that was produced in court had not been prepared in the presence of the Land registrar and further, merely stated that the Respondents were trespassing on parcel number Suna East/Kakrao/ 1605, which the Appellant stated did not exist due to the sub divisions that arose therefrom. 40.Upon re evaluating the evidence of PW2, I note that he failed to produce the register or extract or the fixing of the boundaries or confirming that the boundaries had been fixed. I am of the humble view the evidence did not help the Appellants’ case in any way. In the absence of the proper establishment of the fixed boundaries, coupled with the lack of cogent evidence of trespass or encroachment, it is my considered view that the Appellant failed to prove his case on a balance of probabilities. 41.The upshot of the foregoing is that the Appeal is dismissed with no order as to costs. 42.It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 18TH DAY OF JUNE 2026.HON. DR. IUR NYAGAKAJUDGEIn the presence of,Mr. Owino for Abisai for the AppellantMr. Oseno for the 1st to 5th RespondentsE. Awino for the 7th Respondent (absent)