Ndaru v Eustas (Environment and Land Appeal E069 of 2025) [2026] KEELC 4824 (KLR) (23 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC APPEAL NO. E069 OF 2025** **JULITA IRIMA NDARU........................................................APPELLANT** **VERSUS** **ALFRED NGARI EUSTAS.................................……….......RESPONDENT** ***(Being an appeal from the Judgement of Hon. Njoki Kahara (PM) delivered on 27/08/2025 in Siakago ELC Case No. E029 of 2024)*** **JUDGMENT** 1. The Appellant herein was the Plaintiff before the trial court wherein she had sued the Respondent vide a Plaint dated 25/03/2024 seeking interalia, a permanent injunction restraining the Respondent either by himself or through his servants, agents and or anyone claiming under him from trespassing, cutting trees, removing and/or shifting the beacons placed on the boundary of the subject properties and/or in any other manner dealing with the Appellants quiet possession of land parcel Mbeti/Gachuriri/4591; that the OCS Gachoka Police Station to provide security during the execution of the order above; special damages of Kshs. 67,587.50/= and costs of the suit and interest. 2. The Appellant's case was that she is the registered proprietor of Land Parcel No. Mbeti/Gachuriri/4591, measuring approximately 1.41 Ha, which was excised from the original Land Parcel No. Mbeti/Gachuriri/830, measuring 2.00 hectares and registered in the name of her biological father, Bernard Githu Ndaru. She averred that the Respondent is the registered proprietor of Land Parcel No. Mbeti/Gachuriri/4590, which was allegedly purchased from her father. She further averred that, in or about December 2023, without any colour of right, the Respondent unlawfully entered the portion of her land bordering the Respondent's land and cut down indigenous trees and caused waste and damage to her property. 3. The Appellant stated that on 29/12/2023, she and the Respondent mutually agreed to engage the services of a surveyor to establish the acreage and boundaries of their respective parcels of land. According to the surveyor's findings, the Respondent's parcel exceeded its registered acreage by 0.0348Ha, contrary to the measurements reflected in the mutation form. She averred that the Respondent was dissatisfied with the surveyor's findings and consequently engaged another independent surveyor, who visited the suit properties on 24/01/2024. The second survey yielded findings similar to those of the first survey conducted on 29/12/2023, confirming the alleged encroachment. 4. The Appellant averred that the Respondent has since subdivided Land Parcel No. Mbeti/Gachuriri/4590 into seven (7) portions. She stated that although she was willing to resolve the dispute amicably, the Respondent continued to dispute the findings of the second survey. Consequently, she reported the matter to Gachoka Police Station. It was her case that the Respondent's actions have interfered with, and continue to interfere with, her right to the peaceful use and quiet enjoyment of Land Parcel No. Mbeti/Gachuriri/4591, thereby constituting trespass. She set out particulars of trespass and damage against the Respondent. She further averred that, as a result of the Respondent's actions, she suffered loss and damage, which were assessed by the Kenya Forest Service at Kshs. 67,587.50. 5. The Respondent filed a statement of defence dated 02/05/2024 and denied the Appellants allegations of trespass and encroachment and maintained that the survey findings did not support the Appellant's claim. 6. When the former suit came up for directions, the parties agreed to proceed with the hearing by way of viva voce evidence. 7. PW1, Julita Irima Ndaru adopted her written statement dated 25/3/2024 as her evidence in chief. In her statement, she reiterated the averments in her Plaint. She produced in evidence a copy of the title deed to land parcel 4591, a certificate of official search for land parcel 4591, a mutation form for land parcel 830, a copy of a demand letter, a report from the Kenya Forest Services dated 22/01/2024 and photographs of the damage on land parcel 4591. On cross-examination, she stated that she was called and informed the Respondent had cut down her trees. That he had engaged people to cut the trees. She reported the matter to the police and on arrival at the scene found the Respondent and his employees had left. She reported the matter to the forest office. She admitted that she did not have the surveyors report showing the encroachment. 8. PW2, Eric Maina a sub-county Forest Oficer from Mbeere North testified that his colleague one Benson Nzeki did a report dated 22/01/2024 in relation to land parcel 4591 which he produced in evidence. He also produced photographs alongside the report. On cross-examination, he stated that there were about 70 trees approximately ten years old that were allegedly cut down. He stated that only the Appellant and the Forest Officer visited the scene and the officer was shown the title deed to the suit land. He also stated that the presence of the land Surveyor was not necessary. 9. DW1, Alfred Ngari Eustas adopted his written statement dated 05/05/2025 as his evidence in chief. He stated that he acquired his parcel of land from the Appellant’s father in 2018 for valuable consideration and that they followed due process. He averred that the dispute arises from family squabbles as the Appellants father insists that he voluntarily transferred the suit land to him. He denied trespassing on the Appellants land and denied ever being summoned by the police for illegally cutting down trees. He also denied being summoned by a Forest Officer. On cross-examination, he stated that he was not aware that the Appellant reported him to the police or that a valuation was done on her land. On re-examination he stated that he was not aware of any trespass. 10. He produced in evidence, a title deed for land parcel 4590 and a mutation form, a mutation form for land parcel 830, a requisition for stamp duty, transfer forms, copies of receipts, Identity Card and KRA Pin Certificate for the Respondent, an application for consent of the Land Control Board, a letter of consent, Identity Card and KRA Pin Certificate of the vendor, a certificate of official search for land parcel 4590 and a copy of a stamp duty payment receipt. 11. DW2 Asunta Mugo, the Respondents wife adopted her statement dated 05/05/2025 as her evidence in chief. She denied that the Respondent trespassed on the Appellants land. She averred that the Appellants claim was a fabrication with the intention to illegally alienate the Respondents land. 12. DW3, Robert Ndwiga Nthiga a surveyor adopted his written statement dated 05/05/2025 as his evidence in chief. In his statement, he stated that he was engaged by the vendor to do his survey and subdivision of land parcel 830 and the vendor subsequently transferred once acre out of the land to the Respondent. He stated that the boundaries had been marked and that he subsequently visited the suit land at the invitation of three adjoining landowners, including the Appellant. According to him, there was no trespass onto the Appellant's land or any damage. He maintained that the only activity undertaken was the clearing of shrubs within the road reserve. He further described the Appellant as being stubborn and uncooperative. On cross-examination, he stated he was not a licensed surveyor. 13. The trial in its judgement found that although the Appellant had proved ownership of the suit property, she failed to discharge the burden of proving that the Respondent had trespassed onto the land and cut down the alleged trees. The court held that no mutation or surveyor's report was produced to confirm the extent of the Respondents acts of trespass nor was there any evidence to prove that it was the Respondent who cut down the trees. The Court found that the Appellant had not proved the Respondent trespassed into her land and cut down the alleged trees. The suit was dismissed with costs to the Respondent. 14. The Appellant was aggrieved by the impugned decision and preferred the present Appeal on the following grounds; 15. That the learned trial Magistrate misapprehended and/or misconceived the tenor, effect and consequences of the evidence tendered in court on behalf of the Appellant and thereby arrived at an erroneous, unlawful and an unjust decision in dismissing the Appellant's claim. 16. That the learned trial Magistrate erred in fact and in law in failing to properly analyze, evaluate and consider, the totality of the uncontroverted evidence adduced by the Appellant. Consequently, the trial court arrived at a biased conclusion contrary to the evidence on record. 17. That the learned trial Magistrate erred in law and in fact by disregarding the Appellant's duly filed written submissions and the binding authorities made on behalf of the Appellant without any proper reasons to do so thereby failing to apply established principles of law to the facts before the court. 18. That the learned trial Magistrate erred in law and in fact by exercising her discretion capriciously and not judiciously. 19. The Appellant sought to have the appeal allowed, the judgement of the trial Court set aside and substituted with an order granting the prayers sough in the Plaint, and that costs of the appeal and of the lower court case be borne by the Respondent. 20. When the appeal came up for directions, the parties agreed to canvass the appeal by way of written submissions. The Appellant filed submissions dated 24/03/2026 through the firm of Mugendi Karigi & Company Advocates. She submitted that the cause of action arose on or about December 2023 when the Respondent unlawfully trespassed into a portion of the Appellants land and fell seventy trees belonging to the Appellant. She submitted that the report by the Kenya Forest service emanated from a request from Gachoka Police Station following the Appellants complaint and that the trial court having no expertise in matters valuation was bound to be guided by the report and award the damages assessed thereon as the findings of officer were not rebutted by the Respondent. 21. She submitted further that she proved her case on a balance of probabilities as she proved she is the registered proprietor of land parcel 4591, established unlawful trespass and encroachment by the Respondent and that she produced credible independent evidence of destruction of her trees valued at Kssh. 67,587.50/=. She submitted that she had also demonstrated that she was entitled to an order of permanent injunction. She urged that the appeal be allowed. 22. The Respondent filed submissions dated 04/05/2026 through the firm of Njeru R. Ngari and Company Advocates. He submitted that the trial Court analyzed the evidence tendered and correctly found that the Appellant failed to prove that the Respondent entered her land without authority and damaged her property. He averred that it was also not surprising that the police report and or OB number was not acted upon on criminal trespass because there was no evidence. He submitted that the Appellant failed to comply with the threshold required of section 107 of the evidence Act and to prove her case on a balance of probability. The Court was urged to dismiss the appeal with costs to the Respondent. 23. I have considered the record of appeal and the parties’ submissions. I find that the issue for determination is whether the appeal has merit. 24. It is not in dispute that the Appellant is the registered proprietor of land parcel No. Mbeti/Gachuriri/4591. The dispute is whether the Respondent was responsible for the alleged trespass and destruction of trees on that parcel. The burden of proving those allegations rested squarely upon the Appellant in accordance with Sections 107 and 109 of the Evidence Act. 25. Upon re-evaluating the evidence, I am unable to fault the finding of the trial court that the Appellant failed to discharge that burden. Although the Appellant testified that she was informed that the Respondent had cut down her trees, she admitted during cross-examination that she did not witness the Respondent committing the alleged acts. By the time she arrived at the scene, the persons alleged to have cut the trees had already left. There was also no independent witness called to confirm that it was indeed the Respondent who cut down the trees. Consequently, the Appellants testimony did not directly link the Respondent to the alleged trespass or destruction. 26. Further, despite the Appellant's alleging that two survey exercises had established that the Respondent had encroached onto her land, neither of the alleged survey reports was produced in evidence. In the absence of such evidence, there was no objective proof that the Respondent had encroached into the Appellant's land parcel. 27. I have also considered the valuation report prepared by the Kenya Forest Service. That report established that the Appellants trees had been cut and assessed the value of the damage at Kshs. 67,587.50/=. However, the report did not identify the person responsible for cutting down the trees or attribute liability to the Respondent. It was therefore evidence of damage only, and not evidence that the Respondent caused that damage. I find that the evidence established that damage occurred on the Appellant's land but fell short of proving, on a balance of probabilities, that the Respondent was the person who committed the alleged acts of trespass or destruction. In the absence of proof of liability, the Respondent could not be condemned to pay the special damages of Kshs. 67,587.50/=. 28. Similarly, the prayer for a permanent injunction was predicated upon proof that the Respondent had trespassed onto the Appellant's land or had threatened to continue interfering with her quiet possession thereof. Having failed to establish that the Respondent was responsible for the alleged trespass or destruction of the trees, the Appellant did not demonstrate any infringement or threatened infringement of her proprietary rights capable of warranting the grant of a permanent injunction. The trial court therefore cannot be faulted for declining to grant that relief. 29. Consequently, I find that the appeal is without merit and it is hereby dismissed with costs to the Respondent. **DATED, SIGNED AND DELIVERED AT EMBU THIS 23RD DAY OF JULY, 2026.** **………………………** **HON. E.C CHERONO** **ELC JUDGE** In the presence of; 1. Mr. Ngari for the Respondent 2. Mr. Mugane for the Appellant 3. Ruth C/A