https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4755

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC CASE NO. E016 OF 2025** **REUBEN KAZAMBELI BIPI-----------------------------------------APPELLANT** **VERSUS** **ALPHONSE MALIAMBO-----------------------------------1ST RESPONDENT** **EVANS MOMANYI-----------------------------------------2ND RESPONDENT** ***(An appeal against the judgment delivered on 29/4/2025 by Hon. C.N. Njalale, Principal Magistrate, in CM ELC No.17 of 2020)*** **JUDGMENT** **A. The Appellant's Case** 1. The appellant,as the plaintiff at the trial court, filed a plaint dated **21/2/2020** in which he sought the following judicial reliefs: 2. **A permanent injunction to restrain the respondents, their family members, servants, agents, or any other persons claiming interest through the respondents, from trespassing onto the land parcel described as LR.No Trans- Nzoia/Suwerwa/1742 (hereinafter the suit property).** 3. **Cost and interests.** 4. **Any other reliefs.** 5. The appellant’s case was that he is the absolute owner of the suit property, measuring **2.092 Ha**, **Trans-Nzoia/Suwerwa/1743,** measuring **0.506 Ha, Trans-Nzoia/Suwerwa/1744** measuring **1.817 Ha** and **Trans-Nzoia/Suwerwa/1745,** measuring **0.194 Ha,** allbeing subdivisions of parcel **Trans-Nzoia/Suwerwa/1084,** his beneficial share from his late father’s estate. 6. Before acquiring title deeds to **Trans-Nzoia/Suwerwa/1743** and **Trans-Nzoia/Suwerwa/1744,** the appellant had already sold the parcels to the respondents, respectively.The appellant expressed willingness to execute transfer documents to transfer the respective entitlements to the respondents, despite the agreements being null and void. 7. The appellant contended that the respondents were trespassing onto the suit property and interfering with his quiet possession, hence the orders sought. **B. The Respondents' Case** 1. The respondents opposed the case through a joint statement of defence dated **20/3/2020.** They contended that they are the rightful owners of the land comprised in land title numbers Trans- Nzoia/Suwerwa/**1743** and Trans-Nzoia/Suwerwa/**1744.** The respondents also denied that the appellant ownsTrans-Nzoia/Suwerwa**/1742,** Trans-Nzoia/Suwerwa/**1743** and Trans-Nzoia/Suwerwa**/1745.** 2. The respondents stated that the suit property is riparian land, which the appellant is not entitled to be registered as the owner of, and is not entitled to occupy. The respondents denied being in occupation of the suit property or having any intention to occupy it. They also stated that the appellant lacked the requisite *locus standi* to bring suit. 3. Further, the respondents averred that the appellant had no cause of action against them and was not deserving of the orders sought. **C. The Evidence.** 1. At the hearing of the suit, the appellant testified as **PW1**. For his evidence-in-chief, PW1 relied on his statement dated **22/2/2020.** He also produced a list of documents of even date and a supplementary list of documents. PW1 produced the Kitale farm - Trans-Nzoia Suwerwa **1084** as PMFI; title deeds for Trans-Nzoia Suwerwa **1742, 1743, 1744** and **1745** as P. Exhibit **No. 2 (a), (b), (c) and (d)**; Kaplamai letters dated **28/11/2018 as PMFI-3(a),** letter dated **9/12/2019, as PMFI-3(b);** letter dated **9/1/2020** as **PMFI-3(c);** letter from County Surveyor, Trans Nzoia dated **15/1/2020**, as **PMFI-4(a);** letter dated **22/1/2020** as **PMFI-4(b);** Area map as **PMFI-5**; report from County Surveyor as **PMFI-6;** report from the Sub-County Agricultural Officer as **PMFI-7**; report from Department of Land Trans-Nzoia County as **PMFI-8.** 2. PWI contended that he sold parcels Trans-Nzoia Suwerwa **1743** and **1744,** but they were now encroaching on the suit property in disregard of the boundary. 3. In cross-examination, PW1 confirmed that he was underage when the succession matter for his late father took place. PW1 also confirmed that the mutation form, **PMFI-1**, was registered in his name. He, however, did not produce the sale agreements for the parcels sold to the respondents, at the purchase price of **Kshs.1,000/=** per acre. 4. Concerning **PMFI-3(a),** PW1 stated that by the time it was written, the land had not been transferred into his name, since the registration occurred in **2019**. 5. Regarding **PMFI-8**, PW1 stated that the boundary was established and the respondents are encroaching on **2.092 Ha** of the suit property. 6. **Samson Kiprop Chepchoi**, the Sub-County Agricultural Engineer at Cherangany Sub-County, testified as **PW2.** He produced the Agricultural Officer's report as **P. Exhibit No. 6** and confirmed visiting the suit property on **25/5/2022.** 7. PW2 stated he left **15** meters, as the width of the river, which was to be left as a riparian area. PW2 stated that the landowner was the only person using the suit property. The other person is on the upper part, and that it ought to be **15** meters on both sides. 8. In cross-examination, PW2 confirmed the appellant as the owner of the suit property and that the **15** metres form part of the land. He also confirmed that he prepared the sketch map, although he did not sign it. 9. PW2, in re-examination, confirmed that the entire suit property is not riparian land, but only to the extent of **15** meters, according to the Agricultural Land Act, **2018.** He stated that the suit property is approximately **11.5** acres. The **15** metres out of the **32.3** metres length. The river measures **323** in length, while its width is **15** metres. 10. Gerald Sharon, the Land Registrar, Trans-Nzoia County, testified as **PW3**. PW3 confirmed making the report dated **24/6/2022,** which she produced as **P. Exhibit No.7.** PW3 stated that there was a boundary issue between the suit property and parcel No. **1743**. She stated that the boundary was overlapping on the lower side. 11. PW3 stated that the surveyor drew up the map, and upon measuring the riparian land as per the beacons, it was **5.02** acres. She confirmed that to access the river from parcels **1743** and **1744**, one has to pass through the suit property, although there is a road leading to the river. 12. In cross-examination, PW3 stated that the parties were absent when she visited the suit property, whose mandate anyway is only to oversee that the process is correct. Regarding the boundaries, PW3 confirmed that the same had already been fixed. She noted that the surveyor used the GPS machine, index map, and a tape measure. 13. **Ezekiel Khatili** testified as **PW4**. As the land surveyor from the Department of Lands, PW4 confirmed that he visited the suit property on **23/6/2022** toestablish the boundaries between parcel numbers **1742, 1743** and **1744.** PW4confirmed that the distances on the ground scaled with the map; in that, the acreage of the suit property was **5.02 acres, 1743** was **1.25 acres, 1744** was **4.50 acres,** and **1745** was **0.5 acres.** 14. In cross-examination, PW4 stated that the suit property borders River Nzoia and the owners of parcels **1743** and **1744** were accessing the river through the suit property, yet there is an access road in between, but they were trespassing through parcel **1743**. 15. PW4 confirmed that the riparian land is **30** metres from the river, having been hived off from the suit property. He added that the suit property measures **5.02** acres on the ground while the registered acreage was **5.016,** which disparity he termed as negligible. 16. **Stanley Ambatia,** the County Director Environment, testified as DW1. DW1 stated that he, together with a Water Resource Officer, visited the suit property for inspection and made the report dated **13/10/2020**, which he produced as **D. Exhibit No.1**. Where they observed that the land borders River Sinyerere. 17. From the report, DW1 stated that the wetland had been subdivided, issued with a title deed, cultivation was ongoing, there were nostructures, and it had been fenced off. 18. Further, DW1 indicated that he consulted with the County Land Commissioner and accompanied him to the suit property. DW1 followed up with a letter dated **3/12/2020**, produced as **D. Exhibit No. 2.** DW1 stated that under the Environmental Management and Co-ordination Act, one is not allowed to either construct, fence off, or cultivate on a wetland**.** 19. According to DW1, there was a road leading to the other side, but there was a challenge, since there was no bridge. He stated that the land is public land and those cultivating it should be charged. 20. In cross-examination, DW1 confirmed having received a complaint from the 1st respondent. He confirmed that he did not measure the land in question, but the matter was reported to the County Commissioner. 21. DW1 could not tell where the wetland was located from the map or from the surveyor's report. However, DW1 confirmed that the wetland formed part of the suit property. 22. DW1 confirmed in re-examination that, from **P. Exhibit No. 6,** only **4** metres had been left by the land user, but he was required to leave about **15** metres as a buffer zone. 23. **DW2 was Alphonce Maliambo**, the 1st respondent. He stated that he was a retired teacher and farmer and a resident of Baraka Village, Trans-Nzoia County. DW2 relied on his statement dated **26/11/2021** and a list of documents as his evidence-in-chief. 24. DW2 produced the title deed for parcel No. **1743** as **D. Exhibit No. 3**; the title deed for parcel No. **1744** for Evans Momanyi as **D. Exhibit No. 4**; the inspection report by the National Environment Management Authority as D; Map of Suwerwa Settlement Scheme **4/5/1968 as MFI-D6** and the authority to plead on behalf of the 2nd respondent as **D. Exhibit No.5.** 25. **DW2** added that since **2000**, when he bought the land from the appellant, he was aware the same was public land measuring **2.5** Ha, which the appellant sold to him to be in charge. DW2 confirmed that there was a boundary between his land and the wetland, which had guinea fowls and a high water mark of **6040** from the map. 26. DW2 denied being the owner of the wetland but a custodian, having bought 11/4 acres from the appellant. DW1 insisted the appellant, in **2019**, when he acquired the title to the wetland, told him of the alleged encroachment. DW2 denied trespassing on parcel **No. 1744** and stated that the appellant planted sugarcane and fenced it off. 27. During cross-examination, DW2 confirmed that he owns parcel **No. 1743**, while the 2nd respondent owns parcel **No. 1744**, while the appellant owns parcels **No. 1742** and **1745.** 28. DW1 denied the contents of the surveyor's report and the map and insisted that he was not involved in the title process as the matter was already in court. He confirmed there were irregularities with the title deed but had not filed any case in court over the said issues. 29. Nonetheless, DW2 confirmed that his land borders two roads but has no access road, though the 2nd respondent can access the road with a junction to the river. DW2 stated that one David, a surveyor, confirmed their parcels and indicated that parcel No. **1742** was a wetland. He also confirmed that the NEMA officers visited the land, but the 2nd respondent and he were not part of the process. 30. In re-examination, DW2 confirmed that from **P. Exhibit No. 6**, a recommendation was made that there ought to be a 5-metre width left to the river bank. As to **P. Exhibit No. 8**, DW2 stated that the surveyor had indicated that parcel No**. 1742** borders River Nzoia on the lower side. 31. The trial court dismissed the appellant's suit vide the judgment delivered on **29/4/2025**, leading to this appeal. **D. The Appeal** 1. The appellant filed this appeal through a memorandum of appeal dated **2/5/2025**. He faults the trial court on four grounds; 2. *That the trial court erred in law and in fact in finding and holding that the appellant had not proved trespass against the respondents on Land parcel number Trans Nzoia/Suwerwa/****1743*** *when, in fact, the respondents had admitted such trespass, justifying it on the ground that the land in question was riparian.* 3. *That the trial court erred in law and in fact in finding and holding that rectification of the boundary between land parcel Number Trans-Nzoia/Suwerwa/****1742*** *and Trans Nzoia/Suwerwa/****1743*** *was executed after filing of the suit and, therefore, evidence of trespass by the respondents onto land parcel number Trans Nzoia/Suwerwa/****1743****.* 4. *That the trial court erred in law and in fact for not finding and holding that the respondents have encroached onto the Land Parcel Number Trans Nzoia/Suwerwa/****1743****.* 5. *That the trial court erred in law and in fact in finding and holding that the appellant did not prove his case on a balance of probabilities and by dismissing the appellant’s suit.* 6. The appellant prays that; 7. **The appellant's appeal be allowed, and the findings of the trial court be set aside.** 8. **The court does find and hold that the appellant proved his case on a balance of probabilities at the trial.** 9. **Costs of this appeal and of the suit before the trial court.** 10. From the record, this appeal came up on **7/5/2026**, and the parties were directed to canvass the same through written submissions. **E. Written Submissions.** 1. The appellant filed written submissions dated **16/6/2026**. He submits on three issues for determination. The first issue is whether the trial court erred by holding that a claim of trespass fails if the exact date of commencement and precise acreage of encroachment are not specified, despite conclusive proof of unauthorized entry and encroachment. 2. On this issue, the appellant has submitted that despite correctly analyzing **Section 26(1)** of the Land Registration Act, **2012** and holding that the appellant is the absolute, lawful and registered owner of the suit land, Title No. Trans Nzoia/Suwerwa/**1742**. The court found that the respondents had failed to raise any substantive reasons or prove fraud to challenge this title. 3. The appellant submitted that the court misdirected itself on the law governing the tort of trespass to land for the trial court to find the specific date and the extent in acreage of the trespass. The appellant submitted that trespass to land is an injury to a possessory or proprietary right and is actionable *per se*. No proof of actual damage or specific acreage is required to sustain the claim, nor is the precision of a calendar date a prerequisite to establishing a tort. 4. The appellant directed the court to the meaning of trespass under Black's Law Dictionary and **Section 3**(1) of the Trespass Act. Further, the appellant submitted that, establishing that the Respondent entered and crossed the appellant’s private parcel without consent, the tort was completed. 5. The appellant insists that trespass to land is a continuous tort and it is impossible to state the exact date an ongoing encroachment began, especially where boundaries overlap. The appellant submitted that this would impose an extra-legal burden of proof not supported by statutory or common law. 6. The second issue was whether the trial erred in not finding that trespass and encroachment were established, ignoring the expert evidence of **PW3** and **PW4**. The appellant submitted that the trial court erred in applying the holding in ***William Kamunge Gakui -vs- Eustace Gitonga Gakui [2016] eKLR,*** since the defendant in that case lived far away and there was no physical evidence of entry or cultivation. 7. On the testimony of PW3, the appellant submitted that she confirmed that, to access the river, one had to pass through his land and that the boundaries of parcel numbers **1742** and **1743** overlapped on the lower side. Regarding **PW4**, the appellant submitted that he also confirmed the trespass. 8. The appellant submitted that the respondent's justification through DW1 was that the land is riparian or a wetland and that they had the right to access the river. According to the appellant's claim, the respondents cannot claim to have a right to cross the appellant’s land to access the river, and at the same time argue that no entry or trespass occurred. 9. The last issue is whether the appellant was entitled to an order of permanent injunction and costs upon the trial court finding that he was the absolute, lawful owner of the suit land. The appellant submitted that a permanent injunction is equitable and discretionary, and must be exercised judiciously. This proposition was held in ***Daniel Kipkemoi Siele -vs- Kapsasian Primary School & 2 others [2016] eKLR.*** 10. According to the appellant, his title to the suit property ought to have been protected under **Sections 24 and 26** of the Land Registration Act. The appellant relied on ***Duncan Nderitu Ndegwa -vs- KPLC Limited & Another [2013] eKLR,*** to submit that the infringement of a property owner’s right to enjoy their land quietly constitutes an actionable wrong. 11. The appellant submitted that he fully discharged his burden of proof under **Section 107** of the Evidence Act and the trial court’s dismissal of the suit occasioned a miscarriage of justice. 12. Other than a Notice of Change of Advocates dated **25/3/2026**, there are no submissions on record for the respondents. **F. Issues and Determination** 1. The court has carefully perused the record of appeal, the authorities cited, and the law. The discernible issues for determination are; 2. ***Whether the appellant pleaded and proved trespass to his parcel Trans- Nzoia/Suwerwa/1742 and or 1743 by the respondents.*** 3. ***Whether the appellant was entitled to the reliefs sought in the plaint.*** 4. ***Whether the appeal has merits.*** 5. ***Who is to bear the costs of this appeal.*** 6. As an appellate court of the first instance, this court has a duty to subject the whole of the evidence tendered during trial at the lower court to a fresh and exhaustive scrutiny, and make its conclusion. In so doing, this court must bear in mind that it did not have an opportunity, unlike the trial court, to see and hear the witnesses whose testimonies are on record. 7. In ***Selle & Another -vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123***, the court observed that an appellate court ordinarily will not interfere with findings of fact by the trial court unless it is based on no evidence; or there is a misapprehension of the evidence or the court acted on wrong principles. 8. Turning to the law relevant to this appeal, the court in the case of ***Kenya Power & Lighting Co. Ltd -vs- Ringera & Others (Civil Appeal E247 and E248 of 2020 (Consolidated) [2022] KECA 104 [KLR] (4th February 2022 (Judgmenthas)****,* observed that trespass is governed by **Section 5(1)** of the Trespass Act. It provides that where a person who enters into or upon property in the possession or occupation of another with an intention to commit an offense or intimidate, insult or annoy any person lawfully in possession or occupation of such property commits a tort of trespass. 9. In ***Mwangi -vs- Njaria (Civil Suit E015 of 2021)[2022] KEELC 13564 [KLR] (19th October 2022) (Judgment),*** the court had occasion to shed more light on the tort of trespass. It observed that what underlies the question of trespass is ownership of the land. The court cited *Winfield & Jolowicz on Tort, Sweet & Maxwell 19th Edition page 428*, that trespass to land constituted interference with possession, and that mere presence on the land does not necessarily amount to possession sufficient to bring an action for trespass, and that the claimant should have some legal interests in the land. The court further observed that in the absence of evidence to the contrary, the owner of land with the proper title is deemed to be in possession of the land. The court held that the owner must consent, without which one will be found to have trespassed on the land. 10. From the onset, it is instructive to note the glaring discrepancies in the pleadings and evidence. For instance, the trespass is alleged to have occurred on parcel No.**1742** as rightfully pleaded and prayed in the plaint. However, in the memorandum of appeal, the appellant alleges that the respondents trespassed on parcel **No. 1743**. Further inconsistencies shall be referred to elsewhere in this judgment. 11. It is also trite law that a certificate of title under **Section 26** of the Land Registration Act is to be taken by all courts as *prima* *facie* evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to encumbrances, easements, restrictions, and conditions contained or endorsed in the certificate and that the title of that land is not subject to challenge except on grounds of fraud, misrepresentation, illegality or was acquired through unprocedural or corrupt scheme. 12. The respondent has pleaded that from the onset, the suit property was a riparian land. Through DW1 and DW2, the respondents led evidence showing that the suit property is a wetland incapable of being owned. The respondents also contended that they have no intention of occupying the suit property. 13. Other than producing the title deed to parcel No. **1742**, the appellant had the burden of proof under **Sections 107-109** of the Evidence Act, to prove that the said property is not a wetland available for the public. 14. The appellant called a total of four witnesses. PW3, the Land Registrar, stated that **5.02** acres of the suit property is a wetland or riparian land. Her evidence was that there was a boundary dispute between parcels **1742** and **1743,** which had already been fixed by the time she visited. PW3 stated that her mandate was restricted to the boundary dispute and not on the issue of riparian land. 15. PW4, on the other hand, stated that he was not the maker of the report **PMFI-6** but his colleague. The said report was not produced as an exhibit and bears no signature. It, and **PMFI-1, 3, 4 and 5**, therefore remain persuasive and binding on the court. 16. In ***James Henry Mundia t/a Kabarak Development Services -vs- Tradewheel (K) Ltd [1987] eKLR***, the court said a suit is won on the strength of one's evidence and not the attack on the relative weakness of the defendant’s title. In this appeal, the appellant alleges that the respondents have encroached or trespassed on parcel **No.1743**, contrary to his pleadings and prayers at the lower court. 17. From the appellant’s own evidence and that of DW2, parcel **No.1743** belongs to the 1st respondent. It cannot be true that he trespassed on his own land. Further, DW2 stated that the acquisition of the title deed to parcel **No.1742** is questionable, which all along had been said to be riparian. 18. Under the Environmental Management and Coordination Act and the Water Act, riparian land is generally defined as a minimum of **6** meters up to a maximum of **30** meters on either side of the river bank, measured from the highest water mark. 19. Under the Constitution, 2010, the land between high and low water marks is classified as public land and cannot be legally owned by any private individual regardless of whether it falls adjacent to a registered parcel of land. **Article 62(1)(l)** of the Constitution of Kenya classifies all land located between the high and low water marks as public land. Under **Article 62(3)**, this specific shoreline or riparian land vests in and is held by the national government in trust for the people of Kenya, and managed by the National Land Commission. 20. In ***Krystalline Salt Ltd -vs- Water Resources Management Authority [2024] KECA 191 (KLR)***, the Court of Appeal ruled that all land between the high and low water marks constitutes public land, and therefore, a private entity cannot claim its ownership or limit the public from accessing such easements. 21. From the foregoing, a riparian land is well demarcated and outlined and is public land within the meaning under the Constitution. The appellant and the PW1 gave inconsistent evidence. The appellant alleged that the suit property is not part of the riparian land while PW2, in cross-examination, stated that part of it is riparian land. 22. The appellant has left it to the court to imagine the extent of the trespass. Is it beyond the land said to be riparian or within his property, which again is not clear if it is parcel **No. 1742** or **1743**. From **P. Exhibit 2(a) and (b),** both parcels are in the name of the appellant. 23. Even if the appellant's property is parcel **No. 1742 or 1743** as alleged, the appellant did not lead evidence on the alleged trespass or the alleged acts of trespass that have been committed by the respondents thereon. On that score alone, the order of permanent injunction could not issue, since trespass was not proved on a balance of probabilities. 24. From the foregoing, I am unable to find any fault on the lower court’s judgment. To the contrary, I find it to be proper and well founded in law. As a result, I find no merit in the appeal. The same is dismissed with costs to the respondent. 25. Orders accordingly. **Judgment dated, signed,** and **delivered** via **Microsoft Teams/Open Court** at **Kitale** on this **24th** day of **July 2026.** **In the presence of:** Court Assistant - Matui/Nancy Lichuma holding brief for Katama Ngeywa for the appellant Mr. Matete for the 2nd respondent  **HON. G.M. GITONGA** **JUDGE, ELC KITALE.**