https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4192

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLA E037 OF 2025** **JULIUS GIKONYO MWITHI(Suing as the legal administrator of the** **estate of Peter Mwithi Karubu alias Mwithi Karubu)………………..………………..APPELLANT** **VERSUS** **TABITHA WAITHARA MUUGI(Suing as the legal administrator of the** **estate of Edward Mugi Karubu alias Edward Mugi….………………..……………RESPONDENT** ***(Being an appeal from the whole Judgment delivered by Honourable M.E. Analo the Senior Resident Magistrate on 26th day of September 2025)*** **JUDGMENT** 1. In his memorandum of appeal dated 7-10-2025, the Appellant seeks two reliefs. 2. **The appeal be allowed with costs.** 3. **The judgment of the Honourable Senior Resident Magistrate be set aside and this Court be pleased to substitute it with a judgment in favour of the Appellant by allowing the prayers sought in the plaint.** 4. The Appellant has filed seven grounds of appeal which read as follows. The learned Senior Resident Magistrate erred in fact and in law in – 1. **failing to take into consideration the Appellant’s Court pleadings, witness statements and written submissions on record which the learned magistrate relied on when making his judgment;** 2. **failing to consider the evidence adduced and documents produced in court by the Appellant but relied on hearsay as well as his own decisions to make the judgment herein;** 3. **failing to consider the Appellant’s evidence to proof(sic) the claim of trespass by the Respondent on the suit property and totally overruled the Appellant’s case without any justification whatsoever;** 4. **failing in relying on the Government Surveyor’s report dated 14-6-2024 despite the fact that the Appellant was not satisfied with it and sought a second surveyor’s report. The Court allowed for a second surveyor(sic) report and the Appellant acted, instructed a surveyor and paid the requested charges but the report was never filed in court and therefore the learned magistrate decided the matter without the second surveyor report to the prejudice of the Appellant’s interest;** 5. **holding that the Appellants’ claim is based and touch (sic) on boundary demarcation dispute to be first mandated to the Land Registrar, without substantive evidence. The Appellant’s pleadings are very clear on the issue of trespass seeking injunctive restraining orders and damages against the trespasser, which the learned magistrate ignored to grant despite enough evidence being provided;** 6. **failing to uphold that the Respondent is trespassing to the Appellant’s land parcel despite having been granted, given or authorized an access road. The Respondent has unlawfully continued to encroach to the Appellant’s land parcel causing malicious damages, committing acts of waste and breach of peaceful possession thereon and** 7. **failing to consider the facts and truth surrounding the matter and the magistrate dismissed the Appellant’s suit with costs.** 8. The facts of the case according to the Appellant who was the Plaintiff are as follows. One, his father Peter Mwithi Karubu is the registered owner of L.R. No. Loc.8/Theri/785 and 787. Two, the Plaintiff’s father entered into a land sale agreement with Edward Mugi Karubu, the Respondent’s father for L.R No. Loc.8/Theri/785. The Appellant’s father granted the Respondent’s father an easement measuring 6 feet over L.R. No. 787 to facilitate access to the main road of Mukuyu-Kahatia and other public utilities. Instead of taking the 6 feet road, the Respondent took over 6 metres and destroyed the Appellant’s fence without his consent or authority. Three, the Respondent contracted a surveyor without the consent of the Appellant. The surveyor interfered with the original boundaries and destroyed the old ones. He also demolished the Appellant’s barbed wire and iron gate. Four, the Respondent conspired with the local authorities to gain advantage over the Appellant. Five, there was a case No. 33 of 2019 at the Chief Magistrates’ Court which was filed by the Defendant but it was dismissed on 3-8-2022 for want of prosecution. Finally, the Appellant therefore sought a permanent injunction restraining the Respondent, her employees, servants and agents from trespassing onto the Appellant’s land. He also sought damages for trespass and exemplary damages. 9. The facts of the case according to the Respondent are as follows. Firstly, the Appellant’s father is not the registered owner of L.R. No. Loc.8/Theri/785 because he sold it in the year 1972. Secondly, the access road is 20 metres wide and this is reflected in Registry Index Map which was amended when the original parcel No.Loc.8/Theri/785 was subdivided into three(3) parcels. Thirdly, it is the Appellant and his brothers who interfered with the access road by building structures thereon. Fourthly, when the surveyor went to the suit land to demarcate the boundary on 19-1-2021, the Appellant and his brother Stephen Mwangi Mwithi obstructed the exercise. They were arrested and charged in Criminal Case No. 27 of 2021 at Murang’a Law Courts. 10. In his judgement dated 26-9-2025, the learned trial magistrate found that the Appellant had failed to prove his case to the required standard. He also found that the Respondent had not trespassed into the Appellant’s land. He dismissed the Appellant’s suit with costs. 11. The Appellant and the Respondent’s counsel filed written submissions dated 13-4-2026 and 7-5-2026. In the submissions, no issues have been framed. In the absence of any issues in the submissions, I will treat the grounds of appeal as the issues. 12. **Whether the learned trial magistrate failed to consider the Appellant’s evidence and submissions.** 13. **Whether it was wrong for the trial court to rely on the surveyor’s report when the Appellant did not agree with it.** 14. **Whether the Appellant’s claim was based on trespass or a boundary dispute.** 15. **Whether the access road is 6 feet, 6 metres or 20 metres wide.** 16. This being a first appeal, this Court has a duty to reconsider and re-evaluate all the evidence on record, draw its own independent conclusions, still bearing in mind that it did not see or hear the witnesses testify and give due allowance for this disadvantage. See **Selle and another vs. Associated Motor Boat Co. Ltd and Others [1968] EA. 123.** 17. Regarding the first issue, I find that the learned trial magistrate considered the Appellant’s evidence and submissions. His evidence is considered at pages 1,4,7,8 and 9 of the judgement dated 26-9-2025 and found wanting. His submissions are also considered at page 3 of the same judgment. His evidence was simply that the road was 6 feet wide. The Plaintiff had no documentary or expert evidence to support his averment on the width of the road. His evidence was contradicted by the expert evidence which showed that there was no decrease in size of L.R. No. Loc.8/Theri/787. 18. The learned trial magistrate did not err by relying on the Surveyor’s report even when the Appellant did not agree with it. The Court was determining the dispute irrespective of whether one party agreed with its findings or not. The Appellant was given adequate opportunity to challenge the surveyor’s report but he failed to do so. He and his brother Stephen Mwangi Mwithi resorted to violence on the day the surveyor visited the land. This use of violence is an indication that he did not want the truth of his encroachment onto the access road to come out. The learned magistrate was impartial and relied on good, scientific evidence of the size of the three land parcels and arrived at the correct determination. 1. It is my finding in regard to the third issue, that a claim of trespass can only be resolved by first determining the boundaries of the parcels in question. Without first determining the boundaries, it is not possible to establish if there is trespass. There is no other method of establishing trespass that I can think of. The Appellant himself has not suggested any either in his evidence or the written submissions. While the Appellant claimed that the access road was 6 feet, the Respondent alleged that it was 20 metres. The only way to resolve the dispute was through measurement using the available official maps. That is what happened in this case. 2. The correct size of the road is 6 metres which is approximately 20 feet. The report of the surveyor which is dated 6-8-2023 states as follows at page 9. **“This area is attained even with a provision of a 6 metre road. In the event that the road boundary is taken to the mark of 1.83 metres (6 feet) road path, the parcel No. Loc.8/Theri/787 would increase to 2.85 Ha which is above the registered area. This indication suggests that the 6m road amended on the maps and marked with a barbed wire fence on the ground does not affect the registered area for land parcel Loc.8/Theri/787.”** In the following paragraph the report continues, **“…Apparently in survey practice, there are no roads of such width. Standard road categories are 6m, 9m, 12m, 18m, 25m, 40m, 60m and 100m wide…”** 1. In conclusion and for the reasons already given, I find no merit in the Appellants’ appeal which I dismiss with costs. The Respondent will also have the costs of the lower Court. **It is so ordered**. **Dated, Signed and Delivered virtually at Murang’a this 7th day of July, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant - Jackline** **Appellant – Present in person** **Respondent’s Counsel – Miss Kimani**