[2025] KEELC 4458 (KLR)

[2025] KEELC 4458 (KLR)

The appellant failed to discharge the burden of proof required to establish interference with his property or entitlement to a permanent injunction. No credible evidence, such as a surveyor's report, was produced to demonstrate encroachment or damage, and photographs submitted lacked the necessary electronic certificate under Section 106B of the Evidence Act, rendering them inadmissible. The appellant also failed to quantify or strictly prove any alleged loss or damage. In contrast, the respondent provided credible oral and documentary evidence, including a government surveyor's report and testimony from multiple witnesses, confirming the existence of a 4-meter access road and the...

Citation
[2025] KEELC 4458 (KLR)
Parties
Appellant: Zachary Thiritu; Respondent: Zachary Kaburu
Court
Environment and Land Court
Court Station
Environment and Land Court at Isiolo
Jurisdiction
Kenya
Judgment Date
5 June 2025
Case Number
Land Case Appeal E011 of 2024
Procedural Posture
Land Case Appeal / First Appeal Judgment
Outcome
appeal_dismissed
Judges
JO Mboya
Legal Topics
Land Encroachment, Burden of Proof, Admissibility of Evidence, Permanent Injunction
Source Language
English
Land and Property Civil Procedure Land Encroachment Burden of Proof Admissibility of Evidence Permanent Injunction

Case Brief

Summary, issues, holding and outcome

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Parties

Zachary Thiritu

Appellant

Zachary Kaburu

Respondent

Procedural Posture

Land Case Appeal / First Appeal Judgment

Legal Issues

  1. 1 Whether the appellant proved interference and entitlement to a permanent injunction over plot KAMBI JUU/4X1.
  2. 2 Whether the respondent proved his counterclaim regarding encroachment on the 4-meter access road to plot 60.
  3. 3 Whether the trial court erred in its evaluation of evidence and application of the burden of proof.

Ratio Decidendi

The appellant failed to discharge the burden of proof required to establish interference with his property or entitlement to a permanent injunction. No credible evidence, such as a surveyor's report, was produced to demonstrate encroachment or damage, and photographs submitted lacked the necessary electronic certificate under Section 106B of the Evidence Act, rendering them inadmissible. The appellant also failed to quantify or strictly prove any alleged loss or damage. In contrast, the respondent provided credible oral and documentary evidence, including a government surveyor's report and testimony from multiple witnesses, confirming the existence of a 4-meter access road and the...

Court Disposition

appeal_dismissed

Orders

  • The appeal is dismissed.
  • Costs of the appeal are awarded to the respondent.