https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4342

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELCLA NO. E023 OF 2023** **PURITY WAMBETI..............................................................APPELLANT** **VERSUS** **CRISPIN GICHOVI KERITU.....................................................RESPONDENT** (***Being an Appeal from the Judgment of Hon. J.A. Otieno (SRM) delivered on 12th October 2023 in Embu CM-ELC No. 81 of 2019)*** **JUDGMENT** This is a first appeal arising from the judgment of the Senior Resident Magistrate delivered on 12th October 2023 in Embu CM-ELC No. 81 of 2019. The Respondent, who was the Plaintiff before the trial court, instituted the suit seeking orders for demolition of the Appellant's building alleged to have encroached onto land parcel No. GATURI/GITHIMU/4517, a permanent injunction, refund of Kshs. 97,200/=, mesne profits at Kshs.24,000/= per month from May 2015 and costs. The Respondent's case was that he is the registered proprietor of land parcel No. GATURI/GITHIMU/ 4517 having been registered on 27th May 1991. He testified that the Appellant, his niece and proprietor of the neighbouring parcel No. GATURI/GITHIMU/6775, commenced construction in 2015 and unlawfully encroached onto his land. Despite several warnings from the County Government and subsequent intervention by the Land Registrar and County Surveyor, the Appellant continued with the construction. Following investigations, the Land Registrar prepared a report dated 15th November 2018 confirming that the Appellant's building had encroached onto the Respondent's land. The Appellant denied trespassing onto the Respondent's land. She maintained that before commencing construction she consulted the Respondent who allegedly pointed out the boundary. She contended that she constructed within her parcel and questioned why the Respondent only raised the complaint after the death of her father. She nevertheless expressed willingness to resolve the matter amicably should the court find that any encroachment had occurred. Upon considering the evidence, the learned trial magistrate entered judgment in favour of the Respondent substantially as prayed, prompting the present appeal founded on five grounds challenging the findings on trespass, mesne profits, demolition, failure to consider amicable settlement and rejection of the Appellant's defence. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the entire evidence on record and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was succinctly stated in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and reaffirmed in Peters v Sunday Post Ltd [1958] EA 424. 1 Having considered the record of appeal, the submissions of counsel and the applicable law, in my view the appeal raises four broad issues for determination namely whether the Respondent proved trespass; whether the award of mesne profits was justified; whether the demolition order was proper; and whether there is any basis for interfering with the judgment of the trial court. The Respondent produced a title deed confirming his ownership of parcel No. GATURI/GITHIMU/4517. Under Sections 24, 25 and 26 of the Land Registration Act, registration vests in the registered proprietor absolute ownership together with all rights and privileges appurtenant thereto unless the title is challenged on legally recognised grounds. The Appellant never disputed the Respondent's ownership of the suit property. The principal dispute concerns whether the Appellant encroached onto the Respondent's land. The evidence before the trial court included the Land Registrar's report dated 15th November 2018 prepared after a joint visit to the suit properties by the Land Registrar and County Surveyor. The report concluded that the Appellant's permanent building had encroached onto parcel No. GATURI/GITHIMU/ 4517. That report was produced in evidence without objection and formed part of the evidentiary record upon which the trial court was entitled to rely. The Appellant has argued that since the Land Registrar observed that there were no visible boundary features on the ground and measurements were undertaken using the Registry Index Map, the report could not conclusively establish trespass. I do not agree. Although Registry Index Maps depict approximate boundaries, Sections 18 and 19 of the Land Registration Act expressly confer upon the Land Registrar jurisdiction to ascertain and determine disputed boundaries after hearing the parties and carrying out the necessary investigations. The report before the court was not merely a map interpretation but the product of a statutory boundary determination exercise undertaken jointly by the Land Registrar and the Survey Department after visiting the suit properties. Importantly, the Appellant neither challenged the report before the Land Registrar, sought its review nor requested a fresh survey. During trial she merely disagreed with its conclusions without tendering any expert evidence to displace the findings contained therein. In Azzuri Limited v Pink Properties Limited [2017] eKLR, the court recognised that Registry Index Maps alone cannot conclusively establish fixed boundaries. However, that authority is distinguishable because in the present case there was a formal determination by the Land Registrar after a site visit, which determination remained unchallenged. The learned trial magistrate therefore cannot be faulted for relying upon it. The Appellant also relied on the allegation that the Respondent had pointed out the boundary before construction commenced. Even assuming that to be true, such representation could not override the statutory rights flowing from registered ownership or defeat the findings subsequently made by the Land Registrar. Indeed, the evidence shows that once concerns regarding encroachment arose, the Appellant continued with construction notwithstanding repeated warnings from both the County Government and the Land Registrar. The doctrine of estoppel cannot be invoked to validate continued occupation of another person's land after notice of encroachment. I therefore find no error in the trial court's conclusion that the Appellant had unlawfully encroached onto the Respondent's parcel of land and thereby committed trespass. On mesne profits, the law is now settled that mesne profits constitute special damages and must not only be specifically pleaded but must also be strictly proved. The principles were discussed by the Court of Appeal in Attorney General v Halal Meat Products Ltd [2016] eKLR. Although the Respondent pleaded mesne profits at the rate of Kshs.24,000/= per month, there was no satisfactory evidence 2 demonstrating how that figure was arrived at, the actual rental income earned by the Appellant or the market rental value of the portion occupied. The valuation report principally addressed the value of the land encroached upon and not the quantification of mesne profits. The evidential threshold required for an award of mesne profits was therefore not met. To that extent, I find that the learned trial magistrate fell into error in awarding mesne profits without strict proof. The award under that head cannot therefore stand. The Appellant further contends that the trial court ought to have adopted a less drastic remedy than demolition because the parties are close relatives and she had expressed willingness to compensate the Respondent. While courts are always encouraged to promote amicable settlement, particularly where disputes involve family members, a court cannot compel a proprietor to surrender part of his land merely because the encroaching party subsequently offers compensation. Article 40 of the Constitution protects the right to property while Sections 24 and 25 of the Land Registration Act protect the sanctity of registered title. The evidence demonstrates that the Appellant proceeded with construction despite several warnings to stop pending resolution of the boundary dispute. Having consciously taken that risk, she cannot now invoke equity to defeat the Respondent's proprietary rights. Equity aids the vigilant, not those who knowingly disregard lawful warnings. The demolition order was therefore an appropriate remedy to restore the Respondent's proprietary rights. Having independently re-evaluated the entire record, I am satisfied that the learned trial magistrate properly analysed the evidence and correctly found that the Respondent had proved trespass and was entitled to injunctive relief together with removal of the encroaching structure. The only error relates to the award of mesne profits which was not supported by sufficient evidence. Accordingly, the appeal succeeds only to the limited extent that the award of mesne profits is hereby set aside. In all other respects, the judgment of the trial court is upheld, including the declarations on trespass, the permanent injunction, the order directing the Appellant to remove the encroaching structure and the award of costs in the subordinate court. As the Appellant has only succeeded on a limited aspect of the appeal while the Respondent has substantially succeeded, each party shall bear his or her own costs of this appeal. It is so ordered. **DATED, SIGNED AND DELIVERED AT EMBU THIS 09TH DAY OF JULY, 2026.** **E.C. CHERONO** **E.L.C. JUDGE** In the presence of; 1. Muthoni Ndege for the Appellant 2. Respondent/Advocate-absent 3. Ruth – Court Assistant