Shelly Engineering Works Ltd v Maruru & 4 others (Civil Appeal E163 of 2023) [2026] KECA 1573 (KLR) (31 July 2026) (Judgment)

Shelly Engineering Works Ltd v Maruru & 4 others (Civil Appeal E163 of 2023) [2026] KECA 1573 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1573 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E163 of 2023 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 31, 2026 Between Shelly Engineering Works Ltd Appellant and Hamisi Maruru 1st Respondent Wilfred Khalumba 2nd Respondent Anna Ali 3rd Respondent Abdul Wilson Wanje 4th Respondent Ali Mzee & others 5th Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court at Mombasa (N. A. Matheka, J.) delivered on 25th January 2023 in ELC Case No. 335 of 2015) Judgment 1.The instant appeal arises from the Judgment and Decree of the Environment and Land Court at Mombasa (N. A. Matheka, J.) delivered on 25th January 2023 in determination of ELC Case No. 335 of 2015. The suit was filed by the appellant (Shelly Engineering Works Ltd) against the five respondents (Maruru Hamisi, Wilfred Khalumba, Abdul Wilson Wanje, Anna Ali, and Ali Mzee & Others) vide a Plaint dated 14th December 2025 asserting ownership of and alleging trespass on a parcel of land known as MS/Mainland South/Block III/206 in Likoni, Mombasa (the suit property). 2.The appellant’s case was that, between October and November 2015, the respondents unlawfully entered onto, encroached upon and invaded its property aforesaid; that they began erecting structures thereon, apportioned, subdivided and sold portions thereof to unsuspecting third parties without the appellant’s consent or authority; and that its complaints to the area Chief and the District Officer, Likoni, attracted no positive attention. Accordingly, the appellant instituted proceedings seeking a permanent injunction to restrain the respondents from trespassing on the land; orders for eviction and demolition of all structures erected thereon; costs and interest. 3.The 1st respondent (Maruru Hamisi) entered appearance and filed a Statement of Defence dated 12th January 2016 generally denying the appellant’s claim. He denied trespassing onto the appellant’s land and averred that he did not occupy MS/Mainland South/Block III/206, but instead lived on Plot No. MS/Mainland South/Block III/118, which he claimed was government land. 4.Subsequently, the respondents appointed M/s. Barayan & Associates and M/s. Okanga & Company to act on their behalf vide a Notice of Appointment dated 17th February 2022. When the case came up for hearing on 16th December 2021 and 31st May 2022, the appellant called two witnesses, namely its director and a District Surveyor, while only the 1st respondent testified in the respondents’ defence. 5.In its judgment dated 25th January 2023, the ELC (N. A. Matheka, J.) noted that the appellant held a title deed to the suit property issued in 1997, which constituted prima facie proof of ownership. However, with regard to the alleged trespass, the court took to mind the respondents’ evidence that they had occupied the area since 1989, several years before the appellant obtained its title in 1997, as well as an aerial map produced by the District Surveyor showing that the area in question was fully occupied. 6.The court further found that the appellant’s witness admitted that the company did not visit the property from the time it obtained the title in 1997 until 2015, a period of about eighteen years; that, when the appellant finally visited the land, it discovered that the area was already occupied by squatters; and that the respondents produced a letter dated 4th December 2006 from the District Officer, Likoni, addressed to the District Chairman of the Land Adjudication and Settlement Committee, Mombasa District, indicating that the area had been declared a settlement scheme, and that the provincial administration was awaiting resettlement arrangements. 7.In the circumstances, the court found that it was plausible that the occupants, whom the appellant described as squatters, had been on the land long before the appellant acquired its title; and that the prolonged period during which the appellant did not inspect or assert control over the land further weakened its claim. Accordingly, the court concluded that the appellant had failed to prove on a balance of probabilities that the respondents had trespassed onto its specific parcel of land. Consequently, the court held that the appellant had not established its case to the required standard and dismissed the suit with costs to the respondents. 8.Aggrieved, the appellant moved to this Court on appeal vide a Memorandum of Appeal dated 4th October 2023 on the following 11 grounds:“ 1.That the learned Judge erred in law and in fact by failing to consider and appreciate the evidence tendered by the Appellant's witnesses thus consequently holding that the Appellant had failed to establish a prima facie case to entitle the Court to grant orders of permanent injunction. 2.That the learned Judge erred in law and in fact by finding that the appellant's property was declared a settlement scheme. 3.That the learned Judge erred in law and in fact by attaching weight to a letter dated 4th December 2006 yet the maker thereof was not called to give evidence thereon. 4.That the learned Judge erred in law and in fact by finding that the respondents might have occupied the suit property for eighteen (18) years yet no evidence was tendered by the Respondents to support the finding. 5.THAT the learned Judge erred in law and in fact by holding that the suit properly was fully occupied yet declined to make a finding that the Respondents were trespassers in the property. 6.That the learned Judge erred in law and in fact by holding that the suit property was declared a settlement scheme and further that the Respondents were awaiting resettlement yet no evidence to support the findings was tendered before the Honourable judge. 7.That the learned Judge erred in law and in fact by dismissing the Appellants prayers without considering the applicable law. 8.That the learned Judge erred in law and in fact in failing to appreciate the distinction between properties No. MS/Block IIII/118, MS/Block/III/206 and MS/Block/III/203 thus made orders without clarity on the affected property. 9.That the learned Judge erred in law and in fact by finding that the appellant did not establish a prima facie case of trespass yet a surveyor’s report dated 26th April 2016 was admitted as evidence. 10.That the learned Judge erred in law and in fact in failing to consider the Appellants’ evidence together with their submissions in their entirety. 11.That the learned Judge erred in law and in fact by awarding costs of the suit to the Respondents.” 9.Learned counsel for the appellant, M/s. Ernest Mogaka & Associates, filed written submissions and a list of authorities dated 19th February 2024 while learned counsel for the respondents, M/s. Annette Siminyu & Associates, filed written submissions and a digest of authorities dated 20th September 2024. 10.This Court’s mandate on 1st appeal was espoused in Ng’ati Farmers’ Co-Operative Society Ltd v Ledidi & 15 Others [2009] KLR 331 as follows:“An appeal to this Court from a trial by the High Court is by way of re-trial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that, this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witness and should make due allowance in that respect. In particular, this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 110.The mandate was also underscored in the case of Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212 as follows:“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 12.In doing so, we are conscious as cautioned by the predecessor to this Court in Peters v Sunday Post Ltd [1958] EA 424 that:“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court might itself have come to a different conclusion.” 13.In our considered view, the main issues that fall to be determined are: whether the learned judge erred in misapprehending, misdirecting herself on, and in improperly evaluating the evidence on record; and whether the learned Judge was at fault in failing to properly determine the issue of trespass. 14.On the two intertwined issues as to whether the learned judge erred in misapprehending, misdirecting herself on, and in improperly evaluating the evidence on record; and in failing to properly determine the issue of trespass, we take to mind the learned Judge’s decision to first determine the ownership of the suit property as between the appellant and the respondents. In that regard, the Judge recounted the appellant’s evidence that its director (PW1) testified to having been issued with title to the property in 1997 when the land was vacant, and that, upon visiting it in 2015, he found it occupied by squatters, prompting the institution of the suit. The appellant relied on the title and official search. The Judge also noted the testimony of the District Surveyor (PW2), who explained that the suit property had been excised from a larger parcel of government land in 1992 without objection, and that the resulting plots were distinct and separate. 15.Turning to the question of the alleged trespass, the Judge considered the respondents’ evidence, particularly that of the 1st respondent (DW1), who stated that they had long occupied a different parcel within the original land, which had allegedly been declared a settlement scheme in 2006, and that they were awaiting formal allocation and issuance of title deeds. The learned Judge observed that it was plausible that the occupants had been on the land well before the Plaintiff obtained title in 1997, especially given the appellant’s own admission that it had not visited the property for approximately 18 years. The Judge further relied on the aerial map showing full occupation and a government letter confirming the area’s designation as a settlement scheme. In light of this evidence, the Judge concluded that the appellant had failed to prove its case on a balance of probabilities and accordingly dismissed its suit with costs. 16.Counsel for the appellant took issue with the learned Judge’s decision, submitting that, although the learned Judge acknowledged that title documents and a recent official search had been produced by a director of the appellant, she failed to make a definitive finding that ownership of the suit property had been proved. Counsel contended that both documentary and oral evidence sufficiently established the appellant’s ownership of Plot No. 206, and that such a finding ought to have preceded any further determination, particularly in resolving any question of competing titles. 17.It was further submitted that the learned Judge erred in addressing the issue of trespass by focusing on Plot No. 118, which was not the subject of the dispute. Counsel argued that reliance ought to have been placed on the Survey Report dated 26th April 2016, which showed that Plot No. 118 had ceased to exist as at 22nd October 1992 upon its subdivision into Plot Nos. 206 and 203. Consequently, time could not be computed over a non-existent parcel of land. Counsel also faulted the trial Judge for making findings not grounded in the pleadings, noting that no declaratory relief had been sought by the respondents, and that the court therefore acted outside the issues framed by the parties. In this regard, reliance was placed on this Court’s decision in Kenya Airports Authority v Mitu-Bell Welfare Society & 2 Others [2016] KECA 432 (KLR) for the principle that a court is bound by the parties’ pleadings. 18.Counsel further argued that the suit property was private land, the lease having been issued by the Government on 13th January 1997, and that the learned Judge erred in holding that such title was of no consequence when weighed against a letter dated 4th December 2006. It was submitted that the appellant’s title had not been challenged by any party, and that any declaration of land as a settlement scheme must follow due process, including consideration and compensation of registered proprietors. Moreover, the said letter was neither produced nor proved in evidence. Counsel also contended that the finding that certain individuals had occupied Plot No. 118 for 18 years was unsupported by evidence. 19.In conclusion, counsel submitted that, once ownership of Plot No. 206 had been established, and it was shown that the respondents were in occupation without the appellant’s consent, a case of trespass had been made out. The court ought therefore to have granted the injunctive and eviction orders sought. In support of this position, reliance was placed on the case of Abdukrazak Khalifa Salimu v Harun Rashid Khator & 2 others [2018] KECA 151 (KLR) for the proposition that occupation of land without the consent of the registered proprietor constitutes trespass. They urged us to allow the appeal. 20.In rebuttal, counsel for the respondents submitted that the evidence on record, particularly a letter dated 4th December 2006 from the District Officer, Likoni, addressed to the Chairman of the Land Adjudication and Settlement in Mombasa District, demonstrated that Plot No. 118, on which the respondents resided, had been declared a settlement scheme. It was contended that, following that declaration, the respondents lawfully remained on the land in anticipation of the issuance of title deeds. Counsel framed the central issue for determination as whether, in those circumstances, the respondents could properly be said to have trespassed onto the appellant’s parcel, namely Plot No. 206. 21.It was further submitted that the Survey Report dated 26th April 2016 established that Plot No. 206 and Plot No. 203 were distinct and separate parcels on the ground, while indicating that Plot No. 118 constituted public land that had undergone several excisions, with the remaining portion being designated as Plot No. 203. Counsel relied on the testimony of the District Surveyor (PW2), who confirmed that the plots were physically separate, occupied, and that their numbering had changed over time, suggesting that new parcel numbers were issued following excisions of the original land. In counsel’s view, the Survey Report did not substantiate any allegation of trespass by the respondents onto Plot No. 206, and no evidence had been tendered to demonstrate the extent or occurrence of such trespass. 22.On the applicable legal principles, counsel argued that the burden of proof lay with the appellant company, which was required to establish the alleged trespass on a balance of probabilities, but that it had failed to do so. Reliance was placed on this Court’s decision in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR) for the proposition that a party bearing the burden of proof must adduce evidence to support the facts pleaded, failing which the claim must fail. 23.Counsel also cited the ELC decision in Pello & another (Suing as Legal Representatives of the Estate of the Late Lankoi Ole Pello Saisai) v County Government of Kajiado [2023] KEELC 20889 (KLR) in which a claim for trespass was dismissed for want of sufficient proof. On that basis, counsel urged the Court to find that the appellant had not discharged the requisite burden and dismiss the appeal. 24.Having carefully considered the record of appeal, the issues in contention, the impugned judgment, the rival submissions by learned counsel and the law, we take to mind the fact that it was not in dispute that the suit property, Plot No. 206, belonged to the appellant, who produced both a Certificate of Lease and a certificate of official search in proof of ownership. Although the learned Judge did not expressly pronounce herself on the appellant’s status as the registered proprietor in possession, it is evident from the impugned judgment that she proceeded on the correct premise. The real controversy, therefore, lay in the findings made in relation to the appellant’s claim of trespass against the respondents. 25.The nature of trespass to land is well articulated in Clerk & Lindsell on Torts, which at paragraphs 19-01, 19-10 and 19-15 states in part:“Trespass to land consists of any unjustifiable intrusion by one person upon land in the possession of another. The slightest crossing of the boundary is sufficient.... Trespass is actionable at the suit of the person in possession of land, who can claim damages or an injunction, or both.... Proof of ownership is prima facie proof of possession. That is, the presumption is that the person holding title to the land is in possession.” 26.This Court in Adeti v Alexander Oyiolo Odongo T/A Alema Service Station [2022] KECA 1037 (KLR) reiterated the governing principles as follows:“ 14.This Court has over the years pronounced itself on what constitutes trespass, as was well captured in the oft-cited case of M’mukanya -vs- M’mbijiwe (1984) KLR 761; “[t]respass 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).’ 15.This was echoed in William Kamunge Gakui -vs- Eustace Gitonga Gakui [2016] eKLR as follows; ‘Trespass to land is a tort against possession and there must be an entry on the suit property by the tortfeasor.’... 17.From the foregoing, it is clear that for one to successfully prosecute a claim on trespass, he must prove that one, he is in possession of the suit property hence has the right to immediate and excusive possession and two, that there is an entry onto the suit property by the tortfeasor and such unlawful entry denied the claimant his right to exclusive possession.” 27.To establish its claim, the appellant relied on a court-ordered Surveyor’s Report dated 26th April 2016 prepared by PW2, the then District Surveyor. The purpose of the survey was to determine whether Plot No. 206 and Plot No. 118 referred to one and the same parcel or to distinct parcels on the ground. The findings were set out in the Report as follows:“Findings: Plot No. MS/Block III/206 is an excision of MS/Block III/118. This excision was carried out by the government through the provincial survey office on 21st October 1992 as per F/R No. 230/69. MS/Block III/118 is public land (GL) and several excisions have been carried out on it over time. After the excisions, currently the remaining portion of the original MS/Block III/118 is plot no. MS/Block III/203.Conclusion: Plot number MS/Block III/206 and MS/Block III/203 (remaining portion of MS/Block III/118) are two separate plots on the ground.” 28.PW2 further produced a survey map delineating the boundaries between Plot No. 206 and Plot No. 203; a survey plan dated 19th March 1948 indicating that approximately 20.28 hectares had been excised from Plot No. 118 to create what later became Plot No. 206; and an aerial map demonstrating that Plot No. 206 was fully occupied, a fact correctly noted by the learned Judge. This body of evidence remained wholly uncontroverted. 29.In contrast, the respondents relied principally on the 1st respondent’s testimony in which he asserted that he had resided on Plot No. 118 since 1989 where he engaged in quarrying activities and later constructed a house thereon in 2010. He maintained that he was not disturbed until 2015 when he was arrested at the instance of the appellant’s director on allegations of trespass, which he denied on the basis that he occupied Government land. In addition, the respondents placed reliance on a letter dated 4th December 2006 to support their contention that Plot No. 118 had been declared a settlement scheme. 30.The said letter, authored by the District Officer, Likoni and addressed to the Chairman, Land Adjudication and Settlement, Mombasa District, indicated that a group of 450 youth, organized as the Likoni Quarry Association, intended to undertake quarrying activities on Plot Nos. 117 and 118, which were said to have been declared a settlement scheme, and that local leadership had agreed to allocate part of the scheme to the association pending formal resettlement. 31.However, in light of the unchallenged testimony of PW2 and the Surveyor’s Report, the only tenable conclusion is that Plot No. 118 ceased to exist on 21st October 1992 upon its subdivision into Plot Nos. 203 and 206. Following the filing of the Surveyor’s Report, and absent any rebuttal, the dispute ought to have been addressed with reference to those existing subdivisions rather than the defunct and non-existent Plot No. 118. 32.Notwithstanding this, the respondents persisted in their vague assertion that they occupied Plot No. 118, without identifying the precise location on the ground or correlating their occupation to either Plot No. 203 or Plot No. 206. The 1st respondent further failed to adduce any evidence to corroborate his alleged occupation since 1989. There was therefore no basis for the learned Judge’s conclusion that squatters on the suit property may have predated the appellant’s acquisition of the land in 1997. 33.To our mind, the letter dated 4th December 2006 was admitted in evidence without consideration of its admissibility in light of sections 33 and 35 of the Evidence Act (which provide guidelines on the admissibility of hearsay evidence and the requirement to give notice of the proposer to adduce such evidence), particularly as its maker was not called as a witness. Even assuming its admissibility, the letter merely referred to the already non-existent Plot No. 118 as a settlement scheme without specifying the date it was so declared, the authority responsible, or the legal instrument effecting such declaration. Accordingly, its probative value was therefore minimal, nay inconsequential in establishing any lawful claim over the land. 34.By anchoring their defence on the non-existent Plot No. 118 even after the survey findings, the respondents failed to engage with the real issue, that is, whether their occupation fell within Plot No. 206 or Plot No. 203. Their response was thus evasive and insufficient. In Raghbir Singh Chatte v National Bank of Kenya Limited [1996] KECA 99 (KLR), this Court, citing Thorp v Holdworth (1876) 3 Ch. D. 637, emphasized:“When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance.” 35.In contrast, the appellant established, through cogent evidence, the extent and identity of the suit property and demonstrated that it had been fully occupied by squatters. In the circumstances, the appellant proved on a balance of probabilities that the respondents were among the trespassers and was accordingly entitled to the injunctive and eviction orders sought. Accordingly, we reach the inescapable conclusion that the appeal succeeds and is hereby allowed with costs to the appellant. Consequently, the judgment and decree of the Environment and Land Court at Mombasa (N. A. Matheka, J.) delivered on 25th January 2023 be and is hereby set aside and substituted for prayers (a) and (b) as sought in the appellant’s Plaint dated 4th December 2015. 36.Orders accordingly. CONCLUSIONDATED AND DELIVERED AT MOMBASA THIS 31ST DAY OF JULY, 2026.A. K. MURGOR…………………………………JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.……………………………………JUDGE OF APPEALG. W. NGENYE-MACHARIA………………………………...JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR