Githinji v Kamau (Environment and Land Appeal E014 of 2025) [2026] KEELC 4921 (KLR) (30 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA** **ELCA NO E014 OF 2025** **PAUL MAINA GITHINJI..................................................APPELLANT** **VERSUS** **JOEL MWAURA KAMAU................................................RESPONDENT** **JUDGMENT:** In the Senior Resident Magistrate’s Court Engineer ELC case No. E005 of 2024 the Respondent herein filed a suit vide the Plaint dated 8/2/2024 and amended on 5/11/2024 in which he prayed for the following orders against the Appellant: 1. An order of permanent injunction restraining the Appellant from Trespassing, digging trenches, occasioning damage and/or in whatsoever way from interfering with the Appellant’s suit property known as NYANDARUA/MKUNGI/677. 2. Mandatory order directing the Appellant to remove the building under construction on the Respondent’s suit property NYANDARUA/MKUNGI/677 in order to clear the original path for rain. 3. Mandatory order compelling the Appellant to back fill the 3 unlawfully dug trenches on NYANDARUA/MKUNGI/677. 4. An order that prayers (a) and (b) above be supervised by the Ministry of Agriculture, livestock and Fisheries. 5. Special Damages assessed at Kshs. 49,994/-. 6. General Damages for Trespass. 7. Costs of this suit and interests. 8. Any other and further relief that the Court may deem fit and just to grant. In the said Plaint, the Respondent averred that the Respondent was the registered owner of NYANDARUA/MKUNGI/677 and that sometime in January 2024, the Appellant unlawfully Trespassed onto the Respondent’s subject suit property and that after the Respondent lodged a complaint with the police, the Appellant was charged with and convicted and sentenced of the offence of Trespass for a period of 6 months parole probation in Engineer SPM Criminal Case No. 2071 of 2024. The Trespass occasioned the Respondent loss and damage and an assessment of 2024 by the sub-county forest office, North Kinangop gave the Damage as totaling Kshs. 49,994/-. In the Defence dated 21/3/2024, the Appellant denied the contents of the Plaint and particularly the fact that the Respondent was the owner of suit property No. NYANDARUA /MKUNGI/677 as well as the Trespass complained of together with its particulars. He even denied that he was ever charged with and/or convicted of the offence of Trespass. The case was heard from 20/3/2025 when the Respondent took to the witness box and adopted his statement dated 8/2/2024 in which the contents of the Plaint were repeated about word for word. He also gave the particulars of the Trespass as: - 1. Unlawfully entering the suit property. 2. Unlawfully causing damage on the suit property. 3. Unlawfully digging trenches. 4. Unlawfully causing rain water to enter the suit property consequently destroying bee flowers on the suit land. 5. Constructing a permanent structure causing blockage of rain water. He then produced the following documents to support his case 1. Copy of Title Deed for NYANDARUA/MKUNGI/677 issued on 5/7/2013 in his name, Joel Mwaura Kamau of ID. Card No. 8706227. 2. Judgment proceedings in Engineer Criminal Case No. E71 of 2024 where the Appellant pleaded guilty and was sentenced on 7/2/2024. 3. The sub-county office assessment Report dated 26/1/2024. 4. The Ministry of Agriculture, livestock and Fisheries recommendation letter dated 30/1/2024. But documents Nos. 3,4, and 5 were marked as PMFI for lack of Certificate under section 106 of the Evidence Act. He said he had planted on the suit land trees where he was living. The flowers were food for bees for production of honey. He said that the blocking of the drainage water and the felling of his trees swept away his flowers and caused soil erosion. The Appellant pleaded guilty for Trespass and causing malicious damage to property. Even after the conviction, the Appellant had not made good the loss and damage to the Respondent and that the Respondent was still incurring losses. On cross-examination by Mr Gathumbi for the Appellant, the Respondent said that the Appellant was his neighbor and that the Appellant’s land is L.R No NYANDARUA/MKUNGI/4797 and that the construction was on the Appellant’s side and that part of the Appellant’s wall had trespassed on the Respondent’s side. He said that the Appellant had built where there was a trench which covered his trench and that he dug another trench on the Respondent’s land. he further said that the roots of his trees were cut. On re-examination, the Respondent said that the wall blocked drainage directly to his land which caused damage. After the close of the Respondent’s case, the Appellant took the stand and adopted his recorded statement dated 22/5/2024. In the said statement, the Appellant said that in the year 2016 he bought ¼ of an Acre piece of land from one Veronicah Wangui Kihoro which land was to be hived off from NYANDARUA/MKUNGI/4797. He immediately upon purchase started developing the land and made massive construction where he and his family resides to date. He said that the Respondent is his immediate neighbor but that he does not live on his suit land but has planted trees thereon. He said that the criminal case against him had been heard and determined but he denied having trespassed on the Respondent’s land nor constructed thereon save that the two had a boundary dispute. He then said his land, ¼ of an Acre does not have a Title Deed but which is being processed. He then produced a sale agreement for the purchase of his land that was executed on 5/4/2017. On cross-examination by Mr. Chuma Mburu for the Respondent, the Appellant said he did not have a Title Deed for his land over which he took possession in 2018 but did not find any existing drainage passing in other farms. But only one on the Respondent’s land and he has never dug a trench to divert water on the Respondent’s land to the river. He admitted he had been convicted by the Criminal Court and that on the Respondent’s land there were no trees growing up nor has he ever seen beehives on the Respondent’s property. On re-examination, the Appellant said that his building that neighbours the Respondent’s land is in his farm and that since his conviction, he has never gone back to the Respondent’s land. After this re-examination, the Appellant closed his case. This was followed by the Judgment of the Court whose Decree read as follows: - a) An order of permanent injunction is hereby granted restraining the defendant himself, agents, servants and/or employees or whoever claiming under him from Trespassing, digging trenches, occasion damage and or in whatsoever way from interfering with the plaintiffs' suit property known as NYANDARUA/MKUNGI/677. b) A mandatory order is hereby granted directing the defendant to remove the building under construction on the plaintiff's suit property NYANDARUA/MKUNGI/677 boundary in order to clear the original path for rain. c) A mandatory order is hereby granted compelling the defendant to back fill the three unlawfully /dug trenches on NYANDARUA/ MKUNGI/677. d) Orders (a) (b) and (c) above in the interest of justice to be supervised by the ministry of Agriculture, livestock and fisheries and other national and county relevant authorities like surveyor, planners and NEMA where applicable. e) The claim for special damages is dismissed since it was not specifically proved as required by law. f) Kshs. 400,000/-general damages for Trespass. g) The plaintiff is awarded costs of the suit. l) Interest on (f) and (g) above at court rates from the date of judgment till payment in full. The learned Trial magistrate observed in her Judgment that:- “…………..In the current case the actual loss and damage caused by the defendant's acts of Trespass have not been quantified but be that as it may, guided by the cited cases above, the plaintiff is entitled to nominal damages since the defendant's acts of Trespass against his suit parcel that led to loss and damage as pleaded albeit not quantified. I therefore find that an award of Kshs. 400,000/= in general damages for the tort of Trespass would suffice in this matter. From the evidence on record on a balance of probabilities I find that due to the defendant's acts of constructing on the boundary and digging some trenches he interfered with a long existing water way which according to the plaintiff has existed during the colonial period, the result of which is that during the rainy season the water was diverted to the plaintiff's suit land and caused flooding, soil erosion and damage to flowers and beehives and trees in the plaintiff's suit land on this issue. I am guided by the below case I find that parties herein would do well to seek proper expert advice from requisite authorities like the national and county surveyor, county planners and NEMA regarding the restoration of the water way and how and where the defendant ought to construct so that he does not interfere with the water way to avert loss and damage being suffered by the plaintiff………….” The Appellant having not been satisfied with the Trial magistrate’s Court appealed to this Court for the following prayers: - 1. The Judgment, Decree and/or orders made on 19/6/2025 be set aside. 2. Costs of this Appeal and costs in the lower Court be awarded to the Appellant. He based his Appeal on the following grounds: - 1. The Learned trial magistrate erred in law and in fact, in finding that the respondent proved his case following a conviction on a plea of guilty and sentence in a charge of Trespass in Engineer Criminal Case No. E071 OF 2024. 2. The Learned trial Magistrate erred in law and in fact in failing to consider the evidence tendered by the defence independently, in the case, and thus failed to consider the case on a balance of probabilities, hence finding the case in favour of the respondent. 3. The Learned trial Magistrate erred in law and in fact in failing to consider that the case was mainly a boundary dispute spilling to other issues and thus a report from the County Land Surveyor was crucial in properly determining the issue of Trespass on an alleged boundary between the appellant's land L.R. NYANDARUA/MKUNGI/4797 and the respondent's land, L.R. NYANDARUA/MKUNGI/677. 4. The Learned trial Magistrate erred in law and in fact, in finding that parties in the case would do well to seek proper expert advice from requisite authorities like the national and county surveyor, county planners and NEMA regarding the restoration of the water way and how and where them appellant ought to construct, which advice came late in the final judgment instead of calling for such expert advice prior to enable a proper determination of the case. 5. The Learned trial Magistrate erred in law in fact and in failing to consider that the amended plaint was defective for not being accompanied by an affidavit of verification of its amended contents. 6. The Learned trial Magistrate erred in law and in fact in failing to consider the evidence tendered by the Defence and their final submission, thus awarding Ksh. 400,000/= as general damages for Trespass to the respondent. I find that since the General Damages were meant to be nominal and the Respondent should also have mitigated his loss which he failed to and which he can still do I will reduce the nominal Damages to Kshs. 50,000/=. Further, the parties should endeavor to call the County Surveyor to mark the boundaries within the next 45 Days. I also order that each party meets his own costs Judgment read**, signed and delivered at Nyandarua this 30th Day of July, 2026.** **MUGO KAMAU** **JUDGE** **In the Presence of: -** **Court Assistant: Samson** **Appellant’s Counsel: .** **Respondent’s Counsel: .**