https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3014

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC APPEAL NO. 14 OF 2023** **PATRICK GITIA KANYEKI………………...…………..............APPELLANT** **-VERSUS-** **AMOS MUTAGE KARIITHI…………………...……………RESPONDENT** ***(Being an appeal against the judgment of the Hon. Principal Magistrate E. Kanyiri at Karatina in CM 36 of 2018, delivered on June 6, 2023)*** **JUDGMENT** 1. The Appellant filed this Appeal against the Judgment of the Hon. Principal Magistrate E. Kanyiri at Karatina in CM 36 of 2018, delivered on June 6, 2023. Their Memorandum of Appeal, dated June 29, 2023, sets out the grounds of appeal as follows: 2. ***THAT the Learned Trial Magistrate erred in law and in fact in finding that the defendant had locus standi to be sued, even though he was not the registered owner of parcel of land No. LR Konyu/Gakuyu/200.*** 3. ***THAT the Learned Trial Magistrate erred in law and in fact by finding that the Plaintiff had proved her case on a balance of probabilities.*** 4. ***THAT the Learned Trial Magistrate erred in law by allowing the deceased Plaintiff’s wife to present or represent the case without the grant of letters of administration ad litem.*** 5. ***THAT the Learned Trial Magistrate erred in law by failing to find that there were inexplicable alterations to the green cards regarding the acreage of LR. No. Konyu/Gakuyu/201 and LR. No. Konyu/Gakuyu/200, and by failing to summon the Land Registrar Nyeri to shed light on the alterations.*** 6. ***THAT the Learned Trial Magistrate erred in law by failing to find that this was an issue of determining an uncertain boundary between LR. No. Konyu/Gakuyu/201 and LR. No. Konyu/Gakuyu/200.*** 7. ***THAT the Learned Trial Magistrate erred in law by ordering the eviction from LR. No. Konyu/Gakuyu/201, even though the defendant had been in occupation of the suit property for over twelve (12) years.*** 8. The Appellant seeks the following orders: 9. **The judgment of the court dated June 6, 2023, be reviewed and/or set aside, and judgment be entered in favor of the Appellant.** 10. **The Appellant be awarded the costs of the suit in the lower court, together with the costs of this appeal*.*** **Summary of the case before the Trial Court** 1. The suit before the trial court was instituted by the Plaintiff, as dated 9th June 2016, in which the Plaintiff, who is the Respondent in this Appeal, averred that he is the absolute proprietor of LR. No. Konyu/Gakuyu/201. 2. He accused the Defendant of trespassing on his parcel of land and refusing to vacate. He therefore sought the Defendant's eviction and the costs of the suit. 3. The Defendant, who is the Appellant in this appeal, filed a statement of defense denying the alleged trespass. He stated that the Plaintiff’s claim against the Defendant is premature because LR. No. Konyu/Gakuyu/200 remains registered in the name of Kanyeki s/o Kanai (Deceased), the Defendant’s father, and that the Defendant is not an administrator of his father’s estate. 4. Further, the Defendant added that there is a pending case, ELC 92 of 2016, between the Plaintiff and the Defendant on the same subject matter before this Honorable Court. 5. The suit was heard on September 26, 2022, when the Plaintiff adopted his witness statement dated June 9, 2016, and a bundle of documents dated the same day, as his evidence in chief. In his witness statement, he stated that the Defendant owns a land parcel LR. No. Konyu/Gakuyu/200 is well known to him. He further stated that the Defendant trespassed onto his land due to a boundary issue and that the County Land Registrar and the District Surveyor visited the suit lands, after which the boundary was adjusted to correspond with the R.I.M. 6. The Defendant was given a grace period of 6 months to remove the structures from the disputed area in the Plaintiff’s, but has not yet done so. 7. On cross-examination, he confirmed that he knew the Defendant. He also clarified that he had not brought the case to court because of the other parcel of land, but because of his own land, which he claimed the Defendant and his son had encroached upon. 8. The Defendant also testified in court that he is a retired civil servant and that he resides in Embu County. He confirmed that he knows the Plaintiff as his neighbor, whose land borders his father’s land. He adopted his November 1, 2015, witness statement and the bundle of documents as his evidence. 9. In his statement, he denied ever encroaching on the Plaintiff’s land. He stated that the Plaintiff brought in the County Land Registrar and the District Surveyor to determine the boundaries between the two parcels of land. Despite his and his family members’ protests that some were not present, the District Surveyor moved the beacons from their original positions. 10. That his niece, Jacqueline Wanjiku Mwangi, appealed the Registrar’s determination, but no response has been received. 11. The Defendant also stated that he is among the sons of the late Kanyeki Kanai (Deceased) and contended that the case should not have been instituted against him and ought to be dismissed. 12. On cross-examination, he stated that his son was living at his father’s house on LR 200, not 201, the suit property. He acknowledged receiving a letter dated April 26, 2016, from the Plaintiff’s Advocates to vacate, but he failed to do so. He also stated that there is no appeal against the said decision. 13. The Trial Court found and mandated the Defendant's eviction in accordance with section 152 of the Land Act within 90 days. **Appellant’s Written Submissions** 1. Counsel for the Appellant first addressed the burden of proof. In civil proceedings, the burden rests on the party alleging a fact; therefore, the Plaintiff must establish the case on a balance of probabilities. Counsel relied on Section 107 of the Evidence Act, Cap. 80, and cited **William Kabogo Gitau v George Thuo & 2 Others [2010] l KLR 526.** 2. Secondly, the Appellant submits that the Defendant lacked *locus standi* to be sued because the Defendant was not the registered owner of the parcel of land Konyu/Gakuyu/200. The Appellant further submits that the deceased's wife was allowed to sue even though she had not obtained a grant of letters of administration *ad litem*; and that there were alterations to the green cards regarding the acreage of L.R. No. Konyu/Gakuyu/201 and L.R. No. Konyu/Gakuyu/200, and that the Plaintiff or the Land Registrar gave no good reasons for determining the boundaries. 3. Further to this, regarding the boundary issue, not trespasses *per se*, the Plaintiff failed to prove her case to the requisite standard of proof on a balance of probabilities. Accordingly, this court should allow the appeal. They relied on the holding of this Court by Olola J in **ELC Case No. 231 of 201, Penolophy Wambui Gitigi & Another v Watetu Kinyua & 4 Others**. The Appellant prayed for the Court to dismiss the Plaintiff’s case in the trial court. 4. I did not see the Respondent’s submissions on record. **Analysis and Determination** 1. The role of an appellate court was articulated in the case **Mwangi v Wambugu [1984] KLR,** cited by the Appellants, where the court observed that: ***“This is a first appeal, so this court is obliged to reconsider the evidence, assess it and make appropriate conclusions about it, remembering we have not seen or heard the witnesses and making due allowance for this: Selle & another v Associated Motor Boat Company Ltd & others [1968] EA 123, 126 (CA-Z) and Williamson Diamonds Ltd v Brown [1970] EA 1, 12 16 (CA-T).”*** 1. This was a suit in which the Plaintiff accused the Defendant of encroaching and trespassing onto his land, LR. No. Konyu/Gakuyu/201. The two parties are neighbors, with the Defendant’s father’s land being LR. No. Konyu/Gakuyu/200. The Plaintiff reported the boundary dispute to the Land Registrar, and the boundaries were established, and beacons were put up. The Plaintiff stated that even after he notified the Defendant to move from his portion of the land, the Defendant did not move, a fact the Defendant admitted during the hearing. 2. The Plaintiff produced the determination by the County Land Registrar following a visit on October 22, 2015, to determine the uncertain boundary between LR. No. Konyu/Gakuyu/200 and LR. No. Konyu/Gakuyu/201. The determination found that the boundary was corrected by moving the beacon 109 meters into parcel number 200 and that the encroachment measured 0.7 ha. The parties were informed of their right to appeal, and they agreed that the defendant would be given a 6-month grace period to move his structures, but he failed to do so. 3. Section 18 of the Land Registration Act already establishes that the determination of land boundary disputes is the exclusive preserve of the Land Registrar. That section provides as follows: ***“(1) Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.*** ***(2) The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.*** ***(3) Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary: Provided that where all the boundaries are defined under section 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, (Cap. 299).”*** 1. In **Reuben Kioko Mutyaene v Hellen Kiunga Miriti & 4 others; Ntalala Eric Mutura & another (Interested Parties) [2021] eKLR**, the Court held that: ***“Section 18(2) of the Land Registration Act provides in mandatory terms that the dispute should be submitted to the Land Registrar. It is manifestly clear that the entity that has the statutory mandate to provide an accurate plan of defined boundaries is the Land Registrar. This is also the entity which has the requisite expertise to undertake the aforementioned task.”*** 1. The Trial Court correctly found that the Plaintiff had proven their case on a balance of probabilities, as they produced the determination by the Land Registrar, which the Defendant admitted he had not adhered to and had not appealed against. 2. The Appellant has contended that he is not an administrator of his late father, Kanyeki s/o Kanai (Deceased), the registered owner of LR. No. Konyu/Gakuyu/200. However, the Respondent did not sue him based on his father’s parcel of land, but rather for trespass by the Appellant onto the Respondent’s registered parcel of land, LR. No. Konyu/Gakuyu/201. LR. No. Konyu/Gakuyu/200 was not the basis of the suit; therefore, the matter of the Appellant being sued as a personal representative of his late father’s land did not apply. 3. The only issue I note with the Trial Court’s judgment is that the Court stated that the Respondent had not proved that he deserved General Damages for trespass. In contrast, trespass, once proved, does not need further proof for damages and is actionable *per se*. In the case of **Duncan Nderitu Ndegwa v KP& LC Limited & Another (2013) eKLR,** the Court held that: ***“……...once a trespass to land is established it is actionable per se, and indeed no proof of damage is necessary for the court to award general damages. This court accordingly awards an amount of Kshs 100,000/= as compensation of the infringement of the Plaintiff’s right to use and enjoy the suit property occasioned by the 1st and 2nd Defendants trespass.”*** 1. However, it is noted that the Respondent did not seek General Damages in his Plaint. It is well-settled law that parties are bound by their pleadings. Therefore, I find nothing sufficient to overturn the Trial Magistrate's findings, and the Appeal is hereby dismissed with costs. **Judgment Dated, Signed, and Delivered at Nyeri** **This 13th day of May 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **E. K. MAKORI** **JUDGE** **Ruling Dated, Signed, and Delivered at Nyeri** **This 13th day of May 2026.** **In the presence of:** **Mr.Gori for the Appellant** **Kendi: Court Assistant** **In the absence of:** **Mr.Kingori for the Respondent**