https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3104

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC APPEAL NO. E030 OF 2023** **JAPHETH OKOTH OLENDE……………….………………………APPELLANT** **-VERSUS-** **BELDINA ADHIAMBO ONDIEK** **(Sued as Legal Representative of the estate of** **SHADRACK MINYANCHA ONDIEK, deceased)……….1ST RESPONDENT** **MAURICE NGETA….…………………..……………………2ND RESPONDENT** **(Being an appeal from the judgment and decree of Hon. J. Wambilyanga, SPM delivered on 3rd October 2023 in Kisumu CMCELC NO. 343 OF 2018)** **JUDGMENT** This appeal challenges the judgment and decree of Hon. J. Wambilyanga, SPMdelivered on 3rd October 2023, in Kisumu CMCELC No. 343 of 2018 (“the trial court”). The Appellant sued Shadrack Minyancha Ondiek, deceased (“the deceased”) and the 2nd Respondent in the trial court through a plaint dated 16th March 2012 filed on 22nd May 2012. The deceased died while the lower court suit was pending, and was substituted with the present 1st Respondent, Beldina Adhiambo Ondiek. In his claim before the trial court, the Appellant averred that he was an allotee of all that parcel of land situated at Migosi within Kisumu Municipality known as L.R No. 15026/9 (“the suit property”). The Appellant averred that the suit property was allocated to him by the Kisumu County Council (“the County Council”) in 1996. The Appellant averred that in 2011, he discovered that the Respondents had, without his permission, entered and occupied the suit property. The Appellant averred that the Respondents had commenced construction of buildings and other structures on the suit property. The Appellant sought judgment against the Respondents for a permanent injunction restraining the Respondents from entering upon, taking possession of, trespassing on, alienating or interfering in any other manner with the suit property, an order compelling the Respondents to demolish and remove forthwith from the suit property all the buildings and other structures they had constructed on the property, damages for trespass, and the costs of the suit. The Respondents filed separate defences, which they amended on 22nd March 2018. The 1st Respondent averred that he was the owner of all those parcels of land known as Kisumu/Maua/15026/13A and Kisumu/Maua/1506/13B, measuring 0.03 hectares each (“Plot Nos. 13A and 13B”). The 1st Respondent averred that he purchased Plot Nos. 13A and 13B from one Jackline Achieng, to whom the same had been allotted by Kisumu Municipal Council (“Municipal Council”). The 1st Respondent averred that he had erected two-storey buildings and a septic tank on Plot Nos. 13A and 13B, which he had secured with a perimeter wall. The 1st Respondent averred that he was a stranger to the Appellant’s claim and denied that he was a trespasser on the suit property. The 1st Respondent averred that Plot Nos. 13A and 13B, and the suit property were not the same. In his defence, the 2nd Respondent averred that he was the owner of all that parcel of land known as Kisumu/Maua/15026/39 measuring 0.03 hectares (“Plot No. 39”). The 2nd Respondent averred that together with one Beatrice Atieno Asole, they purchased Plot No. 39 from one Jackline Achieng, to whom the land had been allocated. The 2nd Respondent averred that he had commenced construction of a permanent building on the property. The 2nd Respondent averred that he was a stranger to the Appellant’s claim. The 2nd Respondent averred that Pot No. 39 was different from the suit property claimed by the Appellant. The Appellant filed a reply to the 2nd Respondent’s defence in which he joined issue with the 2nd Respondent. The Appellant averred that Plot No. 39 was non-existent. The Appellant averred that the purported Plot No. 39 was fictitious and did not originate from L.R No. 15026, which was owned by Kisumu County Council. The Appellant averred that since L.R No. 15026 was owned by the County Council, the same could not be alienated by the Municipal Council of Kisumu (“Municipal Council”). The Appellant averred that the letter of allotment purportedly issued to Jackline Achieng was fraudulent. **The Judgment of the trial court** The trial court heard the parties and their witnesses. In a judgment delivered on 3rd October 2023, the trial court dismissed the Appellant’s suit with costs. The trial court framed two issues for determination, namely: whether the Appellant was the owner of the suit property and whether the Respondents trespassed on the property. On the first issue, the trial court found that the Appellant owned the suit property and that this was not disputed. The trial court also found that the 1st Respondent owned Plot Nos. 13A and 13B, while the 2nd Respondent owned Plot No. 39, which they acquired from Jackline Achieng. On the second issue, the trial court found that the suit property owned by the Appellant, and Plot Nos. 13A, 13B, and 39 owned by the Respondents were distinct parcels of land which were not situated at the same location. The trial court noted that the evidence of the Appellant’s witness (PW2), who presented himself to the court as the County Government Surveyor, was not helpful. The court stated that PW2, while acknowledging that the disputed parcels of land were separate, did not tell the court the location of each parcel or whether there was any encroachment. The trial court cited Section 107 of the Evidence Act, Chapter 80, Laws of Kenya, and stated that, upon considering the evidence as a whole, the Appellant had failed to prove the Respondents' alleged trespass. The trial court found that the Appellant had not proved his case against the Respondents on a balance of probabilities and dismissed the same with costs. **The Appeal** The Appellant was aggrieved by the trial court's decision and preferred this appeal. In his Memorandum of Appeal dated 31st October 2023, the Appellant challenged the trial court’s judgment on the following grounds: 1. That the learned trial magistrate erred in failing to appreciate the testimony of the Appellant’s witness, PW2. 2. That the learned trial magistrate erred in fact and law in finding, on no evidence at all, that the Respondents’ properties, Plot Nos. 13A, 13B, and 39 were the same as Plot Nos. 15026/13 and 15026/39 on the Part Development Plan for L.R No. 15026, Migosi, produced by the Plaintiff as Exhibit B-3, and as such were far apart from the suit property. 3. The learned trial magistrate erred in law by completely ignoring the evidence tendered for the Appellant showing the process of allotment of the suit property by the County Council of Kisumu, which owned L.R No. 15026, Migosi, and the payment of the requisite fees and charges. 4. That the learned trial magistrate erred in law in accepting as authentic the documents which were produced by the Respondents in proof of their ownership of Plot Nos. 13A, 13B, and 39, while the law is settled that a letter of allotment is not a document of title and is not transferable, so as to confer an interest in land on the transferee. The Appellant prayed that the appeal be allowed and the judgment of the trial court be set aside, and substituted with a judgment in favour of the Appellant as prayed in the plaint in the lower court. The Appellant also prayed for the costs of the appeal and the lower court suit. The appeal was heard by way of written submissions. The Appellant filed submissions dated 4th September 2025, while the Respondents filed submissions dated 9th September 2025. **Analysis and Determination** I have considered the pleadings and proceedings of the trial court, the judgment of the court, the Appellant's memorandum of appeal, and the parties' submissions. As this is a first appeal, this court must reconsider and re-evaluate the evidence on record and draw its conclusions on the issues which were raised for determination before the trial court. In Gitobu Imanyara & 2 Others *v*. Attorney General [2016] KECA 557 (KLR), the Court of Appeal stated as follows on the mandate of the court on a first appeal: **“...this Court is not bound necessarily to accept the findings of fact by the court below and that 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. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.L.** **As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters –vs- Sunday Post Ltd [1958] EA 424. In its own words: -** **“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.””** In Kenya Ports Authority *v*. Kuston (Kenya) Limited [2009] 2EA 212, the Court of Appeal stated that: **“On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”** I am of the view that the Appellant’s four grounds of appeal raise only two issues for determination, namely, whether the lower court erred in its finding that the Appellant had failed to prove his case against the Respondents on the balance of probabilities, and in dismissing the Appellant’s case. In Halsbury’s Laws of England, 4th Edition, Volume 17, at paras 13 and 14, the authors have stated as follows on the burden of proof: **“13. The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose.** **14. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.”** The Appellant’s case against the Respondents was based on trespass. Trespass is any intrusion by a person on the land in the possession of another without any justifiable cause. See, Clerk & Lindsell on Torts, 18th Edition, page 923, paragraph 18-01. In Gitwany Investments Limited *v.* Tajmal Limited & 3 others [2006] eKLR, it was held that title to land carries with it legal possession. Trespass is defined as follows in Halsbury’s Laws of England, 3rd edition, Volume 38, at page 739, paragraph 1205: **“A person trespasses upon land if he wrongfully sets foot on, or rides or drives over it, or takes possession of it, or expels the person in possession of pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it, or it seems if he erects or suffers to continue on his own land anything which invades the air space of another, or if he discharges water upon another’s land, or sends filth or any injurious substance which has been collected by him on his own land to another’s land.”** In the Court of Appeal, Fourth District, Division 1, California, in Ralphs Grocery Co. *v*. Victory Consultants Inc. (2017) 17Cal. App.5th 245, 261; CACI No. 2000, the court stated that: **“In the instant action, Appellants have sued Respondents for trespass. “Trespass is unlawful interference with possession of property.” (Staples v. Hoefke (1987)189 Cal.App. 3d 1397,1406). The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was substantial factor in causing the harm. (See CACI No. 2000).”** The burden was upon the Appellant to establish before the trial court that he was the owner of the suit property or in lawful possession thereof, and that the Respondents had, without his permission, entered the suit property. From the evidence on record, the Appellant established that he purchased the suit property from the Kisumu County Council (the Council) on 1st October 1996 at a consideration of Kshs. 110,000/-. The trial court indeed found that the Appellant had proved his ownership of the suit property, which the Respondents did not challenge. The trial court, however, found that the Appellant did not demonstrate that the Respondents had entered the suit property. According to the trial court, the Appellant did not prove that the parcels of land which were occupied by the Respondents and which the Respondents claimed ownership of, and the suit property, were the same. This, in my view, was the crux of the dispute; the Appellant’s claim stood or fell by it. From the evidence on record, the Appellant merely claimed ownership of the suit property, whose existence, in my view, was represented only by a land reference, “L.R 15026/9”. Although the Appellant claimed to have purchased the suit property from the Council, the Appellant did not place before the trial court any agreement of sale, letter of allotment or a title issued to the Appellant with the particulars of the property, more particularly its measurement, which would have been one of its cardinal distinguishing features. The Appellant produced in evidence what he referred to as “a sketch map”, and Part Development Plan (PDP) Reference No. N9/86 to show the location of the suit property. The sketch map and the PDP merely showed that Plot No. 9 (the suit property) existed within Land Reference No. 15026, which was planned for Kisumu County Council housing. The Appellant needed to have established the measurement of the suit property and the fact that Plot Nos. 13A, 13B, and 39, which the Respondents claimed to own, were within the suit property. It is important to point out that the Appellant had no title to the suit property and was not in possession thereof, while the Respondents had letters of allotment which provided the particulars of the parcels of land which they occupied, including the measurements of such land, and furthermore, they were in possession. The Respondents denied that the parcels of land which they were occupying and had developed were part of the suit property owned by the Appellant. The burden was on the Appellant to prove that the parcels of land occupied by the Respondents were within the suit property. I am unable to fault the trial court’s finding that the Appellant failed to prove that the Respondents had trespassed on the suit property. I agree with the trial court that the evidence of PW2, Valentine Obonyo Owino did not establish that the Respondents had trespassed on the Appellant’s parcel of land. PW2 merely produced documents which, in my view, he did not relate to the dispute before the court. PW2 produced the said documents without the authority of the County Government of Kisumu. He told the court that he was giving evidence in his private capacity and not on behalf of the County Government. PW2 should have come up with a survey report showing the location and measurement of the Appellant’s parcel of land, and the portion or portions thereof alleged to be occupied by the Respondents. The fact that the Respondents were allocated the parcels of land they were occupying by the Municipal Council of Kisumu, while the said parcels of land, according to the Appellant, were owned by the Kisumu County Council (the Council), was not proof that the Respondents were occupying the Appellant’s land. In Kurshed Begum Mirza *v*. Jackson Kaibunga [2017] eKLR, the court stated as follows: **“(16) …according to section 107 of the** [**Evidence Act**](https://new.kenyalaw.org/akn/ke/act/1963/46)**, the burden of proof in any case lies with the party who desires any court to give judgment as to any legal right or liability. It is for that party to show that the facts which he alleges his case depends upon exist. This is known as the legal burden.”** The majority of the Supreme Court in Presidential Election Petition No. 1 of 2017, Raila Amolo Odinga & Another *v*. IEBC & 2 Others [2017] eKLR stated as follows in paragraphs 132 and 133 of the judgment on the evidential burden of proof, which keeps shifting during the trial: **“[132] Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and remains constant through a trial with the plaintiff, however, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.** **[133] It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behooves the respondent to adduce evidence to prove compliance with the law…”** The Appellant has submitted at length on the roots of the Respondents’ titles to the parcels of land they claimed to own. The legal burden of proof of the Appellant’s case rested throughout with him. It was after the Appellant had proved his title to the suit property, and that the Respondents had trespassed thereon, that the evidentiary burden of proof would have shifted to the Respondents to justify their occupation of the Appellant’s land. It was at that stage that the Respondents would have been called upon to establish the root of the titles that they held for Plot Nos. 13A, 13B, and 39. The Appellant having failed to establish on a prima facie basis that Plot Nos. 13A, 13B, and 39 claimed and occupied by the Respondents were within his parcel of land, L.R No. 15026/9, Migosi (the suit property); the evidentiary burden of proof did not shift to the Respondents to prove that their acquisition of Plot Nos. 13A, 13B, and 39 and the occupation thereof was lawful. **Conclusion** In conclusion, I agree with the trial court that the Appellant did not prove his case to the required standard. I therefore find no merit in all the grounds of appeal put forward by the Appellant against the trial court’s judgment. The appeal is dismissed. Each party shall bear its own costs of the appeal. **Written and signed at Nairobi by**  **S. OKONG’O** **JUDGE** **Delivered, dated and countersigned at Kisumu this 21st day of May 2026** **E.ASATI** **JUDGE** Judgment delivered virtually through Microsoft Teams Platform in the presence of: No appearance for the Appellant Oyuko for the Respondents Atika - Court Assistant