https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1385

Wahome & another v Maina & another (Civil Appeal 446 of 2019) [2026] KECA 1385 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1385 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 446 of 2019 F Tuiyott, P Nyamweya & JM Ngugi, JJA July 10, 2026 Between Jane Gathoni Wahome 1st Appellant Jalal Mohammed Tayeb 2nd Appellant and Julius Mbuthia Maina 1st Respondent Adrine Wangari Mbuthia 2nd Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court at Kajiado (C. Ochieng, J.) dated 28th May 2019 in ELC No. 22 of 2018 Environment & Land Case 22 of 2018 ) Judgment 1.In a judgment dated 28th May 2029, Christine Ochieng, J. ultimately returned that:“(a..The plaintiffs be and are hereby declared the lawful owners of land parcel number LR No. Kajiado/Olchoro Onyore/1165 as against the defendants or any person taking title from them.b.The defendants either by themselves, their employees, servants and/or agents are hereby permanently restrained from trespassing on, continuing being in occupation, purporting to sell, erecting structures and/or in any other manner interfering with the plaintiff’s quiet possession of LR No. Kajiado/Olchoro Onyore/1165.c.The defendants be and are hereby directed to vacate the portion of the plaintiffs’ land parcel number LR No. Kajiado/Olchoro Onyore/1165 within 90 days from the date hereof, failure of which they shall be forcefully evicted.d.The plaintiffs be and are hereby awarded the sum of Kshs. 500,000/- as general damages.” 2.The judgment is the subject of this appeal which was partly compromised through a consent dated 12th January 2026 as follows:“a)That the judgment of the ELC HC No. 22 delivered on 28th May 2019 to be upheld in terms of orders a, b and c by this Honourable Court;b.The District Land Registrar, Kajiado and the District Surveyor, Kajiado; alongside the parties herein and the Sub-Chief of Keekonyokie and the Area Village Elder of Olchoro Onyore areas to visit the site of the parcels known as LR No. Kajiado/Olchoro Onyore/1165, 3608 and 3609 and re-align the boundaries so as to resolve the encroachment into the parcel known as LR No. Kajiado/Olchoro Onyore/1165 as pointed out in the Kajiado District Surveyor’s Report dated 23rd July 2007 within 90 days from the date of this consent;c.The costs of the said Survey and re-alignment to be borne by the appellants;d.Upon completion of the above exercise, the appellants to surrender their titles, LR No. Kajiado/Olchoro Onyore/3608 and 3609 to the District Land Registrar, Kajiado for rectification so as to reflect the actual area on the ground and;e.The parties to put in written submissions to this court on the issue of the general damages and costs awarded in favor of the respondents by the ELC Court, Kajiado and the costs of this appeal.” 3.In their address before us at plenary hearing, learned counsel Mr. Buguru appearing for the appellants (the defendants at trial) and his counterpart learned counsel Mr. Kaguri appearing for the respondents (the plaintiffs at trial) confirmed that the narrow question left to be answered in this appeal is whether the appellants were liable to pay damages and costs of the proceedings before the Environment and Land Court (ELC) as found by the learned judge. So narrow was the issue that quantum of damages itself was not controversial. 4.In resolving this issue as a first appellate court, our remit is to reevaluate the evidence before the trial court as though we would be conducting a re-trial with the caution that we did not have the advantage of seeing and hearing the witness testify, for which we give due allowance. Upon the re-trial, we would be entitled to draw our own conclusions. 5.The land known as Kajiado/Olchoro-onyore/63 was owned by one John Malengonyo Mario (Mario) before he sold a portion of 2.42 hectares of it to Julius Mbuthia Maina and Andrine Wangari Mbuthia (the 1st and 2nd respondents herein). The land purchased was formally excised and a resultant title known as Kajiado/Olchoro-Onyore 1165 (the suit land) curved out. It measured 2.42 hectares. 6.It was the case of the respondents that during the month of October 1992, the appellants entered into a portion of the suit land and trespassed thereon. This act of trespass triggered filing of the proceedings which were later determined as set out in paragraph 1 above. 7.The defence of Jane Gathoni Wahome (the 1st appellant was that she bought 2.06 hectares of land in Olchoro-Onyore Scheme from one Ole Kipana. The vendor showed her the boundaries of the farm in 1991, a survey was carried out and the original portion of land was divided into two, the resultant sub-plots being Nos. 3608 and 3609. Her portion is the latter, which she fenced off after procuring the title on 21st May 1992. 8.Jalal Mohamed Tayab (the 2nd appellant) owns a hardware shop in Nairobi. His story is not dissimilar to that of the 1st appellant. He bought land that was unoccupied, excised from the original parcel being No.1391 in the names of Tipana Ole Kureru. The owner showed him parcel No. 3608, the portion he purchased. He made inquiries from the neighbours including Wahome before buying it. He also spoke to the area chief about the ownership of the land he intended to buy. The chief wrote a no objection letter, survey work was done and the “dimensions” confirmed. It measured 2.4 hectares. He fenced the land and has been in possession since 1992. 9.In the course of the proceedings at trial, and with the consent of the parties, a surveyor visited the contentious parcels and produced a report dated 23rd July 2007. 10.Substantially on the basis of the report, the learned trial Judge held;“From the mutation it is clear the Plaintiffs’ land Kajiado/Olchoro Onyore/1165 was 2.42 hectares which has remained the same to date. From the Surveyor’s report, it is evident that the Plaintiffs’ land which has remained intact was encroached upon by the Defendants whose land was a resultant subdivision of Kajiado/Olchoro Onyore 1198.I opine that the surveyor’s report actually resolves the puzzle herein since all the parties in the dispute hold their respective titles to the land.” 11.After citing provisions of statute and caselaw, the learned trial Judge concluded:“…This in essence means that the Defendants are estopped from claiming a portion of the Plaintiffs’ land as they are the ones that purchased defective land and not the Plaintiffs’ whose land has always remained intact. The Defendants’ recourse lies on the vendor who sold them land and not on claiming a portion of the Plaintiffs’ land, which is an easier target” 12.Regarding the substantial issue now before us, counsel Burugu appearing for the appellants submitted that the award should be overturned as it was not supported by the evidence and the trial court's holding did not accord with the survey report. Counsel sought to rely on the closing observations in the survey report to contend that any errors in the survey were the responsibility of the Director of Survey and John Malengonyo Morio, the initial owner and that the appellants were not found culpable for any errors made by the Kajiado District Survey Office. It was argued that at equity only a guilty party should be found liable for damages. 13.On costs, the appellants beseech us to find that each party should bear their own costs as the appeal had been substantially compromised in good faith. 14.Arguing for the respondents, counsel Kaguri submitted that they had bought and acquired the title to their land before the appellants did and since trespass had been established, the trial court correctly relied on the case of Duncan Nderitu Ndegwa v Kenya Pipeline Company Limited & another [2013] KEHC 6408 (KLR) for the legal position that trespass was actionable per se and that no proof of damages was necessary for the court to award general damages. Further, that the respondents had not accessed their land to date and that the award of Kshs. 500,000/- for general damages was appropriate given the circumstances and the inconveniences caused by the appellants' acts of trespass. The case of Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] KECA 536 (KLR) was cited for the proposition that damages in tort were intended to compensate a party for losses incurred due to wrongful actions and to return a party to the position it was before the acts were committed. Finally, that the compromise on the other aspects of the appeal was an admission by the appellants of encroachment and payment of damages must automatically follow. 15.On costs, we were told that this is an old appeal and the appellants approached the respondents only two weeks before the hearing with the proposed compromise by which time counsel for the respondents had prepared for the appeal including filing written submissions and the respondents would in the circumstances be entitled to costs. 16.Just like the trial Court, we hold that the surveyor’s report of 23rd July 2007 answered the all-important question as to whether the appellants had encroached onto the land owned by the respondents. The District Surveyor was emphatic that;“It shows that the surveyor who subdivided parcel Kjd/Olchoro-onyore/1198 was shown the wrong boundaries by the initial owner.The original owner Mr. John Malengonyo Morio should give his allotees (Kurraru) an alternative piece of land since he ignored the first survey at the expense of the new one.” 17.The report is clear that the genesis of the problem was that the original owner showed the wrong boundaries to the surveyor at the time of subdivision of plot No. 1198. What is the relationship between plot No.1198, plot No.1165 belonging to the respondents, and plots No. 3608 and 3609 belonging to the appellants? Mario the owner of plot No.63, subdivided the land into two; plot No. 1164 and 1165.The latter was transferred to the respondents. Plot No.1164 was subdivided into three; Nos. 1200,1199 and1198. Plot No. 1198 was further divided into six portions. One of the six subplots was No.1391 which was then subdivided into two portions; Nos3609 and 3608 owned by the appellants. The surveyor observed;“In August 1987 parcel Kjd/Olchoro-onyore /1198 was subdivided into six portions see (mutation dated 24/8/1987) this is where the problem started because the surveyor encroached into parcel Kjd/ Olchoro-onyore/1165”. 18.The respondents were victims of encroachment and it is easy to see why the appellants conceded, in the consent filed in this appeal, to the order in the impugned judgment that required them to vacate the portion of land belonging to the respondents that they wrongfully occupied. While we would be sympathetic to the appellants’ plea that they were blameless for the defective subdivision, we observe that the respondents commenced their action in 1994 and it was not until 25 years later, when the impugned judgment was pronounced, that the appellants were willing to acknowledge the plight of the respondents. As noted by the trial Court in awarding the damage; “the Defendants encroached on their land in 1992 and as(sic) denied them usage of a portion of the said land from1992 to date” We have no doubt that the appellants would have done more to alleviate the pain of the respondents given, further, that the surveyor’s report that lay bare the problem was prepared and availed to the parties in the year 2007.We see no reason to disturb the order of the trial Court that found the appellants liable in damages. 19.As we conclude on that matter, we endorse the finding by the learned trial Judge that the recourse of the appellants was against the person who sold them the land. They were not without a remedy! 20.The upshot is that the appeal lacks merit. 21.Finally on costs of this appeal, the appellants’ action of compromising a substantial part of the appeal is a gesture that should be lauded. But so as not to minimise the respondents’ effort in preparing for the appeal, we find that they have laid a basis for half costs of this appeal. 22.The appeal is accordingly dismissed with half costs to the respondents. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2026.F. TUIYOTT……………………………JUDGE OF APPEALP. NYAMWEYA……………………………JUDGE OF APPEALJOEL NGUGI……………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR.