https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3110

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC APPEAL NO. E011 OF 2023** **FREDRICK O. OGUTTU** **(Suing as the legal representative of the estate of** **RACHEL OLINGO, Deceased)………………………….…………APPELLANT** **-VERSUS-** **RICHARD KOBARE…………………………………….……….RESPONDENT** **(Being an appeal from the judgment and decree of Hon. W. K. Onkunya, SRM, delivered on 15TH February 2023 in Kisumu CMCELC NO. E27 OF 2020)** **JUDGMENT** Rachel Atieno Olingo, deceased (the deceased), was at all material times the registered proprietor of all that parcel of land known as Kisumu/Kogony/4466 (Plot No. 4466) measuring 0.2 hectares. On 24th October 2012, the deceased entered into an agreement with the Respondent to sell to the Respondent a portion of Plot No. 4466 measuring approximately 0.10 hectares at a consideration of Kshs. 1,250,000/- Following that agreement, the deceased subdivided Plot No. 4466 into two portions, Kisumu/Kogony/6476 (Plot No. 6476) measuring 0.12 hectares and Kisumu/Kogony/6477 (Plot No. 6477) measuring 0.06 hectares. The deceased retained Plot No. 6476 measuring 0.12 hectares in her name, and transferred Plot No. 6477 measuring 0.06 hectares to the Respondent on 15th February 2013. In 2018, the deceased subdivided Plot No. 6476 into three portions, namely, Kisumu/Kogony/7767 measuring 0.03 hectares (Plot No. 7767), Kisumu/Kogony/7768 measuring 0.04 hectares (Plot No. 7768), and Kisumu/Kogony/7769 measuring 0.05 hectares (the suit property). The deceased died on 16th March 2019, and the Appellant was issued with a Grant of Letters of Administration Ad Litem in respect of the deceased’s estate on 15th October 2020. On 5th November 2020, the Appellant brought a suit against the Respondent at the Chief Magistrate’s Court at Kisumu, namely Kisumu CMCELC No. E27 of 2020 (the trial court). The Appellant averred that the deceased was at all material times the registered owner of all that parcel of land known as Kisumu/Kogony/7769 (the suit property). The Appellant averred that without the authority or consent of the Appellant as the administrator of the estate of the deceased, the Respondent entered the suit property and commenced construction thereon and fencing of the same. The Appellant averred that the Respondent’s activities on the suit property were unlawful and amounted to trespass. The Appellant averred that as a result of the Respondent’s acts of trespass, the Appellant had suffered loss. The Appellant sought judgment against the Respondent for a permanent injunction restraining the Respondent from trespassing on, selling, wasting, alienating or otherwise interfering with or dealing with the suit property, an order of eviction of the Respondent from the suit property, general damages for trespass, and costs of the suit. The Respondent filed a statement of defence at the trial court on 15th December 2020. The Respondent denied the Appellant’s claim in its entirety. The Respondent averred that he was the owner of Plot No. 6477 measuring 0.06 hectares, which shared a common boundary with land parcels, Kisumu/Kogony 6476, 7014 and 1451 (Plot No. 6476, Plot No. 7014 and Plot No.1451). The Respondent averred that the boundaries of Plot No. 6477 and Plot Nos. 6476, 7014 and 1451 had not been fixed in accordance with the provisions of Section 18 of the Land Registration Act, 2012, and as such, the trial court lacked jurisdiction to hear and determine the Appellant’s suit. The Respondent averred that when he purchased Plot No. 6477 from the deceased, he was shown the boundaries thereof, and he had been in continuous and uninterrupted possession of the said plot from 2012. The Respondent averred that he had been openly utilising and exercising all other rights of use over the property with the full knowledge of the Appellant. The Respondent averred that the Applicant’s suit was vexatious, bad in law and an abuse of the process of the court. **The Judgment of the trial court** The trial court heard the parties and their witnesses and delivered a judgment on 15th February 2023. The trial court dismissed the Appellant’s suit with costs. The trial court framed two issues for determination, namely, whether the Respondent had trespassed on the suit property, and whether the Appellant was entitled to the reliefs sought against the Respondent. The trial court found that the Appellant had not discharged the burden of proof on his trespass claim. The trial court stated that the surveyor’s report produced by the Appellant did not explicitly say that the Respondent had trespassed on the suit property. The trial court held that the Appellant had not proved his case on a balance of probabilities, and as such, he was not entitled to the orders sought in the plaint. **The Appeal** The Appellant was aggrieved by the trial court's decision and preferred this appeal. In his Memorandum of Appeal dated 27th February 2023, the Appellant challenged the trial court’s judgment on the following grounds; 1. That the learned trial magistrate erred in law and fact by holding that the Appellant had failed to prove the trespass by the Respondent on the suit property. 2. That the learned trial magistrate erred in law and fact by granting prayers which were not pleaded. 3. The learned trial magistrate erred in law and fact in failing to appreciate the testimony of the Appellant that the Respondent had constructed structures on the suit property. 4. That the learned trial magistrate erred in law and fact by failing to appreciate the contents of the Land Registrar’s report. 5. That the learned trial magistrate erred in law and fact by failing to appreciate Appellant’s submissions and the authorities cited in support thereof. 6. That the judgment of the trial magistrate was against the weight of evidence offered before the court. The Appellant prayed that the appeal be allowed and the judgment of the trial court be set aside. The Appellant also prayed for the costs of the appeal and the lower court suit. The appeal was heard through written submissions. The Appellant filed submissions dated 19th May 2025, while the Respondent filed submissions dated 29th September 2025. The Appellant submitted that the surveyor’s report dated 6th June 2018, produced in evidence by the Appellant, established that the respondent had trespassed on the suit property. The Appellant submitted that the surveyor stated in his report that the suit property and Plot No. 6477 owned by the Respondent were separate parcels of land, both on the ground and on the survey maps, and that the Respondent was claiming the whole of the suit property. The Appellants submitted that the Respondent had erected structures on the suit property, a fact he admitted. The Appellant submitted that he proved the Respondent’s trespass on the suit property. The Appellant submitted that the Respondent admitted that Plot No. 6477, owned by him, measured 0.06 hectares. The Appellant submitted that since there was no amendment or rectification to the titled deed for Plot No. 6477, the Respondent could not claim land measuring 0.10 hectares, which he alleged to have purchased from the deceased. The Appellant submitted that the Respondent neither applied to the Land Registrar to rectify the register of Plot No. 6477 under Section 79 of the Land Registration Act 2012, nor did he file a counterclaim for the rectification of the register of the property by the court. The Appellant submitted that as things stood before the trial court, there was no mistake as regards the measurement of Plot No. 6477 registered in the name of the Respondent. The Appellant submitted that there was no evidence placed before the court showing that there was an error in the measurement of Plot No. 6477. The Appellant submitted that the evidence adduced before the trial court showed that the Respondent claimed the suit property and had erected structures thereon. The Appellant submitted that he proved his case before the trial court and was entitled to the orders sought in the plaint. The Appellant submitted that, having proved that the Respondent had trespassed on the suit property, he was entitled to damages. The Appellant submitted that he was not under a duty to prove that he had suffered specific damage or loss to be entitled to damages. The Appellant submitted that the trial court should have assessed the damages payable to the Appellant, having regard to the fact that the Appellant was unable to develop the suit property owing to the Respondent’s acts of trespass. The Appellant submitted that an award of Kshs. 500,000/- would have been sufficient to compensate him for his loss. In reply, the Respondent submitted that the Grant of Letters of Administration Ad Litem issued to the Appellant on 5th October 2020, on the basis of which the trial court’s suit was instituted, expired within 90 days from the date of issuance, and as such, the Appellant had no *locus standi* to represent the deceased, Rachel Atieno Olingo. The Respondent submitted that the subdivision of Plot No. 4466 gave rise to Plot No. 6476 and Plot No. 6477, each measuring 0.10 hectares. The Respondent submitted that when Plot No. 6476 was subsequently subdivided to give rise to Plot Nos. 7767, 7768 and 7769, the total acreage of the subdivisions came to 0.12 hectares, giving a notable increase of 0.02 hectares, which the Appellant could not account for. The Respondent submitted that this 0.02 hectares of land must have been taken from the Respondent’s parcel of land, Plot No. 6477. The Respondent submitted that it was the deceased who maliciously and fraudulently trespassed into the Respondent’s Plot No. 6477 during the subdivision of Plot No. 6476. The Respondent submitted that although he purchased land measuring 0.10 hectares, his title indicates the land as measuring 0.06 hectares. The Respondent submitted that his application for a resurvey to correct the error was pending. The Respondent submitted that the Appellant had taken advantage of the error in his title to encroach on his property, Plot No. 6477. The Respondent reiterated that the dispute, which was before the trial court, was a boundary dispute and that the court had no jurisdiction to hear and determine it. The Respondent supported the trial court’s finding that the Appellant did not prove his trespass claim against the Respondent. The Respondent submitted that the evidence before the court showed that it was the Appellant who had trespassed on the Respondent’s land to the extent of 0.02 hectares. The Respondent submitted that he should be awarded damages in the sum of Kshs. 1,000,000/- for the Appellant’s acts of trespass. The Respondent submitted that the Appellant did not prove his case and, as such, was not entitled to the orders he had sought in the plaint. **Analysis and Determination** I have considered the pleadings and the proceedings of the trial court, the judgment of the court, the grounds of appeal put forward by the Appellant, and the submissions by the parties. 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 lower 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 six (6) grounds of appeal raise only two issues for determination, namely, whether the trial court erred in its finding that the Appellant had failed to prove his trespass claim against the Respondent to the required standard and whether the trial court erred in dismissing the Appellant’s case. The Respondent has raised in his submissions several issues that were not raised before the trial court, and in respect of which the court did not pronounce itself. Since the issues have not been raised either in the grounds of appeal before me, I will not consider them. 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 Respondent was based on trespass. 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: **“… “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 was in lawful possession thereof, and that the Respondent had, without his permission, entered the suit property. From the evidence on record, I am satisfied that the Appellant proved that the deceased, on whose behalf he had brought the suit, was the registered owner of the suit property. The deceased was registered as the owner of the suit property on 5th April 2018 and was issued with a title deed on 6th April 2018. The suit property measured 0.05 hectares. There was no evidence placed before the trial court showing that the Respondent had at any time, in any forum, challenged the deceased’s title to the suit property or the measurement of the property. The suit before the trial court was for trespass. The Respondent did not bring a counterclaim against the deceased regarding the validity of her title to the suit property. The deceased’s title to the suit property was therefore not challenged before the trial court. From the evidence on record, the Respondent’s parcel of land measured 0.06 hectares. The Respondent admitted that fact in his defence before the trial court. It is on record that the Respondent purchased from the deceased land whose description was given in the heading of the agreement between the parties as a portion of Plot No. 4466 measuring approximately 0.10 hectares. When Plot No. 4466 was ultimately subdivided by the deceased, the portion that had been sold to the Respondent, Plot No. 6477, measured 0.06 hectares. This is what was transferred and registered in the name of the Respondent. The portion that remained in the name of the deceased, Plot No. 6476, measured 0.12 hectares. It is this portion which was subsequently subdivided into three portions, namely, Kisumu/Kogony/7767 measuring 0.03 hectares (Plot No. 7767), Kisumu/Kogony/7768 measuring 0.04 hectares (Plot No. 7768), and Kisumu/Kogony/7769 measuring 0.05 hectares (the suit property). The three subdivisions of Plot No. 6476 measured a total of 0.12 hectares. This was the measurement of Plot No. 6476 from which the subdivisions originated, and is supported by a copy of the title deed for the property, which was produced in evidence as P.EXH. 2 and the Mutation Form for the subdivision of the said parcel of land which was produced by the Respondent in evidence as D.EXH.5. I did not understand the Respondent’s argument that Plot No. 4466 which measured 0.20 hectares was subdivided equally between the deceased and the Respondent. The Respondent argued that Plot No. 6476, which remained in the name of the deceased, measured 0.10 hectares and Plot No. 6477, which was transferred to the Respondent, also measured 0.10 hectares. This argument is not supported by any evidence on record. Plot No. 4466 measured 0.20 hectares. Upon subdivision, the deceased retained Plot No. 6476 measuring 0.12 hectares; the Respondent acquired Plot No. 6477 measuring 0.06 hectares; and the portion of Plot No. 4466 measuring 0.02 hectares was reserved for an access road to the Respondents' Plot No. 6477. It was not disputed that the Respondent purchased a portion of an undivided land. The portion sold to him measured approximately 0.10 hectares. However, upon subdivision of Plot No. 4466, the portion thereof that was transferred to the Respondent by the deceased measured 0.06 hectares and not 0.10 hectares. This was what the Respondent received and accepted way back in 2013. The Respondent’s title deed showed clearly that Plot No. 6477 measured 0.06 hectares. Although the Respondent claimed that the subdivision of Plot No. 4466 was carried out fraudulently, there was no evidence before the trial court that the Respondent had raised the issue of the deceased having transferred to him land that measured less than what was agreed by the parties. Even in his defence, he never raised the issue. He also did not raise a counterclaim against the Appellant for the alleged fraudulent subdivision or breach of contract. The upshot of the foregoing is that the Respondent’s parcel of land, Plot No. 6477, measured 0.06 hectares and no more. The Appellant produced in evidence a report dated 6th June 2018 (P.EXH.8) from a surveyor, Mbok G.O., who was an acting Director of Surveys, County Government of Kisumu, who visited the suit property, Plot No. 7769 and the Respondent’s parcel of land, Plot No. 6477, on 31st May 2018 in an attempt to determine their boundary. There was no objection to the production of this report by the Appellant. The surveyor, upon carrying out a survey using Kisumu/Kogony Survey Map No. 9, made a finding that the suit property and the Respondent’s parcel of land existed as separate plots on the map and on the ground, and that the Respondent had “exclusively fenced off” the suit property and had made it “inaccessible by the rightful owner”. The surveyor concluded that, since the Respondent claimed to own the whole of the suit property, the dispute between the Appellant and the Respondent was not a boundary dispute but a claim over land to be determined by the court. I disagree with the trial court's finding that the said survey report was not explicit about the Respondent's trespass on the suit property. The surveyor stated that the Respondent had fenced off the whole of the suit property and had denied the Appellant access to the same. How explicit could the surveyor be on the issue of whether the Respondent had trespassed on the suit property? It is my finding that the Appellant had proved that the Respondent had trespassed on the suit property. The trial court was wrong in its finding that the Appellant’s case was not proved to the required standard. I agree with the finding in the survey report produced before the trial court that the dispute between the parties was not a boundary dispute but a land claim. The trial court, therefore, had jurisdiction to determine the same. On the issue that the trial court suit was prosecuted with an expired Grant of Letters of Administration Ad Litem, my view is that the Grant of Letters of Administration Ad Litem was issued to the Appellant for the purposes of “filing and prosecuting suit”. The Grant was not happily worded, but my view is that the 90-day limitation period in the Grant applied to the filing of the suit. It could not have been the intention of the probate and administration court to expect the Appellant to file and conclude a suit within 90 days. The Appellant cannot be faulted if it took the trial court more than 90 days to conclude the suit before it. Having found that the Appellant proved his case before the trial court, it follows that the trial court erred in dismissing his case. It is my finding that the Appellant was entitled to the reliefs sought in his plaint dated 30th October 2020. The Appellant was entitled to an injunction to restrain the Respondent’s acts of trespass on the suit property, an order for the Respondent’s eviction from the property and general damages for trespass. In Park Towers Ltd. *v.* John Mithamo Njika and 7 Others 2014 eKLR, the court stated that: **“I agree with the learned judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded general damages. The court in such circumstances is under a duty to assess the damages awardable depending on the unique circumstances of each case.”** In Halsbury’s Laws of England 4th Edition Volume 45 para. 26 1503, the authors have stated as follows on assessment of damages for trespass: **“a) If the Plaintiff proves the trespass, he is entitled to recover nominal damages even if he has not suffered any actual loss.** **b) If the trespass has caused the Plaintiff actual damage, he is entitled to receive such amount as will compensate him for his loss.** **c) Where the Defendant has made use of the Plaintiff’s land, the Plaintiff is entitled to receive by way of damages such an amount as would reasonably be paid for that use.** **d) Where there is an oppressive, arbitrary or unconstitutional trespass by a Government official or where the Defendant cynically disregards the rights of the Plaintiff in the land with the object of making a gain by his unlawful conduct, exemplary damages may be awarded.** **e) If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, general damages may be increased.”** The Appellant claimed that he suffered loss due to his inability to develop the suit property. The Appellant, in his submission, proposed an award of Kshs. 500,000/-. He had sought a similar award before the trial court. I will award the Appellant nominal damages of Kshs. 200,000/- for trespass. **Conclusion** In conclusion, I allow the Appellant’s appeal, set aside the judgment and orders made by the trial court on 15th February 2023 dismissing the Appellant’s suit with costs, and substitute it with a judgment in favour of the Appellant against the Respondent for: 1. A permanent injunction restraining the Respondent by himself or through his employees, agents, servants and/or whomsoever from trespassing on, selling, wasting, alienating or otherwise interfering or dealing with all that parcel of land known as Kisumu/Kogony/7769. 2. The Respondent shall vacate and hand over possession of all that parcel of land known as Kisumu/Kogony/7769 to the Appellant within sixty (60) days from the date of delivery of this judgment, in default of which the Appellant shall be at liberty to apply to the court for warrants for his forceful eviction. 3. Kshs. 200,000/- as general damages for trespass. 4. The costs of the appeal and the trial court suit. **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: Yogo for the Appellant No appearance for the Respondent Atika Court Assistant