Florence Juma Nabiswa & 1 other v Obed Readon Onyango
The bottom line
#The Court of Appeal upheld a Kshs.2 million award against families who occupied land they had no proof of owning, confirming the buyer as lawful owner.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent proved ownership of Plot No. 225 (11.26 acres) in Chepkorok Farm
Yes - the sale agreements, evidence of the vendor's widows (PW2 and PW3), the allotment letter of 6/2/1998 and the appellants' own admission that the respondent had a plot in the Farm established lawful ownership on a balance of probability
The Court re-evaluated the whole evidence as on a first appeal. The respondent purchased one share (11.26 acres) from the late Kuna Arap Cheboiboch, took possession in 1988, and the plot number changes were explained by survey. The appellants admitted the respondent had a plot in the Farm. Absent demonstrable misdirection, the trial court's factual findings stood.
Whether the appellants encroached on the respondent's land
Yes - the appellants' own evidence showed they occupied over 22 acres (about two shares) whereas their entitlement was one share of about 11 acres
Both defendants confirmed their late husband held one share equivalent to about 11 acres, yet they occupied over 22 acres. The only logical conclusion was that, beyond their own plot, they encroached on the respondent's 11-acre plot. The Court agreed with the trial court's finding of trespass.
Whether the award of Kshs.2,000,000/- general damages was excessive
No - damages are a matter of discretion and will not be disturbed absent wrong principles or an entirely erroneous estimate; given 25+ years of possession, the award was not excessive
The Court restated the settled principles on interference with damages awards and the law of trespass: actionable per se, nominal damages to vindicate the right, mesne profits for occupation, and higher damages for wanton trespass. Although details of destroyed property were scanty, the long period of unauthorised possession justified the award.
Legal principles established
#- On a first appeal, the whole case is open for rehearing on fact and law, but appellate courts are bound by the factual findings of a trial court unless those findings are clearly wrong, unsupported by evidence, or demonstrate misdirection
- Findings of fact must be firmly rooted in the evidence, not conjecture or speculation
- An appellate court will not disturb an award of damages merely because it would have awarded differently; it must be shown the trial judge acted on wrong principles or the award is an entirely erroneous estimate
- Trespass to land is actionable per se and nominal damages vindicate the right where no actual damage is proved; when a trespasser occupies land, the owner is entitled to mesne profits
Court orders
#- 1.The appeal was dismissed
- 2.Costs of the appeal awarded to the respondent
- 3.The trial court's declarations of ownership and unlawfulness of occupation, eviction order, permanent injunction, general damages of Kshs.2,000,000/- and costs order were left undisturbed (implicitly affirmed)
- On appeal from
- Environment and Land Court, Kitale
- ELC Case No. 93 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Procedure Act/Court of Appeal Rules not expressly cited); hearing conducted virtually
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Florence Juma Nabiswa & 1 other v Obed Readon Onyango", Case Analysis (2026). First appeal from Kitale ELC Case No. 93 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/328/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.