https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4296

**REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT AT BUNGOMA** **ELC APPEAL NO. EO03 OF 2025** **MONICAH OMUKOKO KHANG’ATI...........................APPELLANT** **VERSUS** **VINCENT WANYONYI………..................................RESPONDENT** **JUDGMENT** 1. At first glance, this matter does not appear to fall within the jurisdiction of the Environment and Land Court (ELC). The plaintiff filed suit before the Chief Magistrate’s Court in Bungoma, claiming that the Respondent had trespassed on her late husband’s land known as East Bukusu/West Sanga’lo/1938 (the suit land) and was grazing his livestock on the Appellant’s pasture and crops occasioning her great loss and damage. 2. Through the plaint dated 26/10/2018, the Appellant sought a permanent injunction to restrain the Respondent from grazing on the suit land or interfering with the Appellant’s peaceful occupation and enjoyment of the suit land. The matter proceeded ex parte and judgment was entered against the Respondent. The Appellant instructed auctioneers to execute for the costs. The auctioneer attached the Respondent’s livestock and sold them. 3. The Respondent filed the application dated 16/6/2016 seeking to set aside the ex parte judgment. The judgment was set aside and the Respondent was granted time to file his pleadings. 4. Subsequently, the Respondent filed the application dated 8/1/2024 seeking restitution of the value of his livestock which was auctioned and loss of income from milk, ploughing and mating. He sought the sum of Kshs. 510,000/=. 5. In the ruling delivered on 14/2/2024, the Learned Magistrate allowed the application and awarded the Respondent Kshs. 510,000/- plus costs. Being aggrieved by that decision, the Appellant lodged this appeal. The grounds of appeal are their Learned Magistrate ignored the evidence in the Appellant’s replying affidavit dated 22/1/2024 and arrived at an unjustified decision. 6. Further, that the trial court failed to consider that the value of the attached property given by the auctioneer as Kshs. 95,000/=. The Learned Magistrate was therefore faulted for awarding the Respondent special damages of Kshs. 410,000/= as the value of two alleged Friesian oxen, 2 in calf Friesian cows and Kshs. 100,000/= for loss of income without any substantial evidence. The trial court was also faulted for relying on the valuation of the veterinary officer when awarding the sum of Kshs. 510,000/= without confirming whether the report was authentic. 7. The appeal was canvassed through written submissions. The Appellant submitted that the trial court based its ruling on a report prepared by a veterinary officer who did not see the cattle that had already been attached and sold on 19/6/2023 at Siritany market. She submitted that the sale realized Kshs. 55,000/= out of which the auctioneers retained Kshs. 22,900/= as their costs and remitted Kshs. 32,100/= to the Appellant’s advocate. The Appellant faulted the Learned Magistrate for not taking into account the auctioneer’s report and instead going by the report of the veterinary officer. She pointed out that the veterinary officer never saw the cattle and the income from milk and mating was not corroborated. 8. The Appellant argued that under Section 91 of the Civil Procedure Act, the Respondent was only entitled to what was realized by the auctioneer after the sale of the proclaimed animals. Further, that the Respondent did not complain that the auctioneer had undervalued his animals. 9. The Appellant explained that she was forced to pay Kshs. 600,000/= to save her property from being auctioned by the Respondent. She urged the court to order that the amount she had paid be refunded to her less Kshs. 55,000 stated in Lufree Auctioneer’s report. 10. The Respondent submitted that he filed the application dated 16/6/2023 and after hearing, the *ex parte* judgment was set aside and he was granted a chance to defend the suit. He obtained an order for stay of execution but the auctioneer indicated that the matter had been overtaken by events because the attached livestock had already been sold. 11. The Respondent submitted that the record of appeal was incomplete and did not have the proceedings from the trial court as well as the ruling which is the subject of the appeal. He invited the court to strike it out for violating Order 42 of the Civil Procedure Rules. 12. He argued that under Section 91 of the Civil Procedure Act, the court was empowered to order for restitution when a decree is reversed with a view to restoring the parties to the original position. The Respondent maintained that he successfully moved the trial court, which reversed the decree in favour of the Appellant and gave orders for restitution. He explained that in its ruling, the trial court relied on the report from the professional veterinary officer who had been treating the livestock prior to the attachment and sale. 13. He argued that the Appellant’s submission that the trial court should have relied on the auctioneer’s assessment was baseless because an auctioneer would most likely have undervalued the livestock. He argued that the valuation by the veterinary officer who assessed the age, breed and health of the livestock was more accurate than the forced sale value which the auctioneer placed on the livestock. He added that the auctioneer hurriedly sold the animals after attaching them thereby rendering the orders for stay of execution superfluous. The Respondent was emphatic that the trial court did not err when it relied on the report by the veterinary officer. 14. The Respondent denied that the Appellant had paid him Kshs. 510,000= or that Kshs. 90,000/= was paid to the auctioneers. 15. The issue for determination is whether this court should allow the appeal. It is apparent from the proceedings that took place that after the ex parte judgment was set aside and the Respondent was granted leave to file his defence and participate in the suit, the matter did not proceed to trial. Instead, the Respondent filed an application seeking compensation for his livestock which had been sold and the trial court entered judgement based on the value that the veterinary officer gave in his report. 16. That report was not challenged and tested through cross-examination. In this court’s view it was necessary for the evidence of the veterinary officer to be tested through cross-examination especially on the value ascribed to the livestock sold and the loss of income. 17. What is apparent is that the suit before the trial court was never heard and determined on merit after the *ex parte* judgment was set aside. Instead, the Respondent was awarded the figure given by the veterinary officer through the application filed by the Respondent. The Respondent should have filed a defence and a counterclaim seeking to recover the value of his livestock, which was attached and sold. The proceedings were therefore unprocedural and a nullity. 18. The court agrees with the Respondent that the record of appeal could have been prepared in a tidier manner. As it is, the documents are jumbled and mixed up and were not filed in any particular order. The supplementary affidavit contains the impugned ruling. 19. The ruling of Hon. T. M Olando, Principal magistrate of 14/2/2024 is set aside. The suit is remitted back to the Chief Magistrate’s court for hearing on merit by another magistrate with the requisite jurisdiction other than Hon. Olando. The Appellant is awarded the costs of the appeal. Delivered virtually at Bungoma this 2nd day of July 2026. **K. BOR** **JUDGE** **In the presence of: -** Ms. Elizabeth Chunge for the Appellant Mr. Omundi Bw’onchiri for the Respondent Court Assistants-Bett & Metrine