https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5309

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELCA NO. E012 OF 2023** **PAUL MAINA NJEGE…………………………………….………..…APPELLANT** **VERSUS** **ERASTUS WANJAMA NGOCHINE………………………………RESPONDENT** ***This is an appeal from the judgment delivered in the Principal Magistrate's Court at Mukurweini, CM ELC E006 of 2022, by the Hon. D.K. Matutu on the 29th day of August 2023.*** **JUDGMENT** 1. This is an appeal from the judgment delivered in the Principal Magistrate's Court at Mukurweini, in **CM ELC E006 of 2022**, by the Hon. D.K. Matutu, on 29 August 2023. Their Memorandum of Appeal, dated 27 September 2023, delineates the following grounds of appeal. 2. **The Learned Magistrate erred in fact and in law by making a finding that was not supported by evidence adduced at the trial, namely;** 3. **That the plaintiff had not proved his case to warrant an order of permanent injunction.** 4. **That the Plaintiff had failed to prove trespass and was therefore not entitled to the orders.** 5. **The Learned Magistrate erred in law and fact by misinterpreting the law on permanent injunctions.** 6. **The Learned Magistrate erred in law and in fact by misinterpreting the law on trespass.** 7. **The Learned Magistrate misdirected himself by considering facts that were extraneous and never pleaded before the Court in reaching the final determination of the suit.** 8. The Appellant respectfully requests that: 9. **This appeal is allowed.** 10. **The judgment of the Lower Court dated 29th August 2023 be set aside and be substituted by orders that;** 11. **A permanent injunction restraining the defendant, his servants, workers and agents from entering onto or erecting or causing to be erected thereon any structures or from interfering with the plaintiff's use and enjoyment of LR NO. GITHI/MUTHAMBI 780** 12. **General damages for trespass** 13. **Costs of the appeal** **Summary of the suit before the Trial Court.** 1. The lawsuit in the Trial Court was filed through the Plaint dated 16th June 2022, wherein the Plaintiff, who is the Appellant in this case, stated that he is the registered owner of the parcel of land identified as LR Number Githi/Muthambi 780, measuring approximately 0.56 hectares. 2. It was stated that the Plaintiff and Defendant have a longstanding boundary dispute concerning the property of the Plaintiff and the property of the Defendant, identified as LR No. Githi/ Muthambi/2079, in which the Defendant asserts a claim to a section of the Plaintiff’s land adjacent to the natural waterway as his own. 3. The boundary dispute was resolved by the Land Registrar, Nyeri, who, upon establishing the beacons on the affected land, ascertained that the Defendant had encroached onto the Plaintiff’s land and occupied a portion measuring 34 metres wide and 8 metres long. 4. Despite the Land Registrar’s resolution, the Defendant was accused of continued unlawful trespass onto the Plaintiff’s land and of disregarding all protests by the Plaintiff to cease such trespassing and interference with the said property. 5. The Plaintiff asserted a claim for general damages due to the trespass committed by the Defendant onto the Plaintiff’s aforementioned parcel of land. Additionally, the Plaintiff sought a permanent injunction to prohibit the Defendant, along with his servants, workers, and agents, from entering the said property, engaging in farming activities thereon, or otherwise interfering with the Plaintiff’s use and enjoyment of the property. 6. The Defendant, who is the Respondent herein, submitted his statement of Defence, denying any act of trespass. He indicated that the Land Registrar of Nyeri had previously resolved this dispute, determining that the boundaries were misaligned; however, the issue impacted all parcels of land within the Githi Muthambi area. The final ruling was that both parties should maintain the status quo, as any modification of the boundaries would have negatively affected the boundaries of the entire village. Consequently, the new beacons merely confirmed the existing situation as maintained by the parties. 7. The suit was heard on 20 December 2022, and PW 1, the Plaintiff, adopted his witness statement and bundle of documents as his evidence in chief. In his statement, he reiterated that he had a long-standing boundary dispute with the Defendant and that they sought the assistance of the Land Registrar, Nyeri, who established the beacons on the land and ascertained that the Defendant had encroached onto his land and occupied a portion measuring 24 metres wide and 6 metres long. 8. Notwithstanding this resolution, the Plaintiff asserted that the Defendant has persisted in unlawfully trespassing onto his land and has disregarded all his protests to cease such trespass and interference with his property. Consequently, he sought general damages for trespass, along with a permanent injunction prohibiting the Defendant from further trespassing on his land. 9. However, during cross-examination, he affirmed that the Land Registrar determined that the current boundaries should be maintained as they are, and that private surveyors had previously examined the lands, concluding that the Defendant had encroached upon his property. 10. PW 2 Andrew Wachira adopted his witness statement dated 31st October 2022, whereby he affirms that he is the registered proprietor of the parcel of land known as LR. No Githi/Muthambi/779, which shares a boundary with the Plaintiff’s parcel of land. He also confirmed that he serves as the custodian of the Plaintiff’s land, as he does not reside on the suit property. 11. PW 2 stated that on 18th May 2022, he was present when the District Surveyor inspected the Plaintiff’s land to delineate the boundary between the Plaintiff and the Defendant, in the company of the area chief and two police officers. Additionally, the Defendant and Mr. Maina Githinji, acting as the Plaintiff’s representative, were also present during this procedure. 12. Following the surveyor's delineation of the boundary line between the two sections, it was determined that the Defendant had encroached upon the Plaintiff’s property beyond the established boundaries. Consequently, the surveyor redefined the boundary line. Nonetheless, despite the boundary being clearly delineated, the Defendant has persisted in cultivating that portion of land and leasing it to third parties, activities of which he informed the Plaintiff. 13. Upon cross-examination, PW 2 stated that the boundaries have never changed, but the Defendant has encroached upon the Plaintiff’s land by 8 metres. 14. On DW 1, the Defendant also gave evidence in his own case. He adopted his witness statement dated 19th December 2022, in which he stated that he is the registered owner of all that property known as LR. NO. Githi/Muthambi/2079 and that the Plaintiff is his neighbour. 15. He acknowledged that there has been a long-standing boundary dispute between them over the boundary adjacent to a waterway that affects several other properties, which was reported to the Land Registrar in Nyeri. 16. However, he noted that the Plaintiff was not present at the hearing and determination of the boundary dispute by the registrar, despite being the alleged aggrieved party. 17. According to the Defendant, the Land Registrar noted that the dispute involved several other properties and therefore changing the beacons would not have been advisable. He states that, as a result, the beacons were not changed, that he has continued to use his property as before, and that he is satisfied with the Land Registrar's conclusion and determination in Nyeri. 18. Judgment was delivered by the Trial Court on the 29th of August 2023, finding that the Plaintiff had not proven his case to warrant an injunction or general damages. It is this decision that the Appellant is aggrieved by and seeks to appeal. 19. The parties submitted written submissions for the Appeal, which the Court has thoroughly reviewed and taken into consideration. **Analysis and determination.** 1. The Appellant claims that the Respondent has encroached upon his land, known as LR No. Githi/ Muthambi/2079. The Appellant raised several grounds of appeal in his Memorandum of Appeal, which I believe can be condensed into 2 issues as follows: 2. **Whether the learned magistrate erred in law and in fact in finding that the Respondent had not trespassed onto Land Parcel No. Githi/Muthambi/780.** 3. **Whether the learned magistrate erred in law and in fact in declining to grant a permanent injunction and general damages for trespass.** 4. The parties have explicitly indicated that they have a longstanding boundary dispute concerning their neighbouring parcels of land. Section 18 of the Land Registration Act Cap 300 states 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. Section 19 of the Act states that: ***(1) If the Registrar considers it desirable to indicate on a filed plan approved by the office or authority responsible for the survey of land, or otherwise to define in the register, the precise position of the boundaries of a parcel or any parts thereof, or if an interested person has made an application to the Registrar, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and fix the boundaries.*** ***(2) The Registrar shall, after giving all persons appearing in the register an opportunity of being heard, cause to be defined by survey the precise position of the boundaries in question, file a plan containing the necessary particulars and make a note in the register that the boundaries have been fixed, and the plan shall be deemed to accurately define the boundaries of the parcel.*** ***(3) Where the dimensions and boundaries of a parcel are defined by reference to a plan verified by the office or authority responsible for the survey of land, a note shall be made in the register, and the parcel shall be deemed to have had its boundaries fixed under this section.”*** 1. It is clear that only the Land Registrar has the mandate to determine boundary disputes. In this case, the determination was made on 18 May 2022, and the findings of M.M Mwigire, Land Registrar Nyeri, were that the boundaries were not aligned. The same problem arose with other parcels of land that were measured, and it was clear that it would affect almost the entire Githi Muthambi area and some of its neighbours. 2. The Land Registrar noted that, however, they placed visible beacons between the two disputed parcels of land in the presence of the area chief, which merely confirmed how they were already living. Despite this finding, the Plaintiff claimed that the Defendant had encroached on his property, a claim the Land Registrar's finding did not support. 3. The Appellant sought a permanent injunction, and in his submissions, he relied on the Court of Appeal case of **Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR**, in which the Court found that: ***“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;*** ***(a) establish his case only at a prima facie level,*** ***(b) demonstrate irreparable injury if a temporary injunction is not granted, and*** ***(c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. Kenya Commercial Finance Co. Ltd v. Afraha Education Society*** ***These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.”*** 1. If the Defendant indeed bypassed the set beacons and encroached onto the Plaintiff’s land, the Appellant/Plaintiff had the burden of proving this by way of a report, which was not presented to the Trial Court. In my view, the Appellant failed to establish a *prima facie* case against the Respondent. 2. It is well-established law that trespass must be proven, and the Appellant did not demonstrate that he possessed the exclusive right to the portion of land alleged to have been encroached upon by the Defendant. The photographs submitted in his collection of documents cannot serve as evidence of encroachment beyond the referenced beacons, as the Court is unable to ascertain from these images the precise location of the beacons or whether any party has encroached. The Court of Appeal sitting at Eldoret in **Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR** cited with approval the references provided below: ***“In M’Mukanya v M’Mbijiwe (1984) KLR 761, the ingredients of the tort of trespass were revisited by this Court and restated as follows:*** ***“trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land which is different from ownership (See Thomson v Ward, (1953) 2QB 153.”*** ***Further, in Winfield & Jolowicz on Tort, Sweet & Maxwell, 19th Edition at page 428 states as follows:*** ***“Trespass to land, like the tort of trespass to goods, consists of interference with possession. Mere physical presence on the land does not necessarily amount to possession sufficient to bring an action for trespass. It is not necessary that the claimant should have some lawful interest in the land. This is not to say that legal title is irrelevant, for where the facts leave it uncertain which of several competing claimants has possession, it is in him who can prove title that can prove he has the right to possession. More generally, in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land.” [Emphasis supplied].*** 1. In his submissions, the Appellant relied on the finding of the ELC in **Muchiri v Wachira; Mhasibu Runda Welfare Association (Interested Party) (Environment & Land Case 55 of 2020) [2023] KEELC 19257 (KLR) (25 July 2023) (Judgment)**, in which the learned judge found that: ***“During the hearing of the suit the Plaintiff informed the Court that he was not present when the Defendant interfered with the workers on site. That he was called by one of his workers. He failed to present any evidence from an eye witness or the workers who were allegedly intimidated and threatened by the Defendant. He stated that he recorded a statement at the Police Station but failed to present the same in Court. In the absence of any evidence linking the Defendant to the trespass and interference of the works on site the Court finds that the Plaintiff failed to adduce cogent evidence and on a balance of probabilities, the Court holds that the Plaintiff has failed to proof trespass on the land.*** ***Having failed to prove trespass, then the general damages sought on trespass are not awardable.”*** 1. In the Kenyan adversarial legal system, the burden of proof resides with the party requesting the Court to establish the facts it is endeavoring to persuade the Court to accept. Section 107(1) of the Evidence Act, Cap. 80 states that: ***“whoever is desirous any court to give Judgment to any legal right or liability dependent of the existence of facts which he asserts must prove those facts exists.”*** 1. Further, Section 109 of the Evidence Act provides that: ***“the burden of proving any fact necessary to be proved in order to enable person to give evidence of any other fact is on the person who wishes to give such evidence.”*** 1. The Court of Appeal in **Mumbi M'Nabea v David M.Wachira [2016] eKLR** stated as follows while commenting on the burden of proof in the Kenyan context: ***“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not”*** 1. Having failed to discharge his burden of proof on his claim that the Respondent trespassed onto his land, the Trial Court did not err in dismissing the suit. 2. Consequently, this appeal has no merit and is dismissed with costs. **Dated, signed, and delivered virtually at Nyeri on this 5th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Gitonga for the Respondent** **Denis - Court Assistant** **In the Absence of:** **Mr. Gichuki for the Respondent**