Shelly Engineering Works Ltd v Maruru & 4 others (Civil Appeal E163 of 2023) [2026] KECA 1573 (KLR)
The bottom line
#The Court of Appeal upheld a landowner's eviction order because squatters relied on a plot that no longer existed, proving trespass claims need current parcel evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in misapprehending, misdirecting herself on, and in improperly evaluating the evidence on record
- 2.Whether the learned Judge was at fault in failing to properly determine the issue of trespass
Key legal issues
#Appellant's ownership of the suit property
Ownership of Plot No. 206 was not in dispute; the appellant produced a Certificate of Lease and official search proving it, and the trial Judge proceeded on that correct premise even without an express finding.
The Court held that it was not in dispute that the appellant, as registered proprietor, produced both a Certificate of Lease and a certificate of official search in proof of ownership. Proof of ownership is prima facie proof of possession. The real controversy was therefore confined to the trespass findings, which is where the trial court's evaluation went wrong.
Status of Plot No. 118 and the surveyor's report
Plot No. 118 ceased to exist on 21st October 1992 upon its subdivision into Plots 203 and 206; the respondents' reliance on the defunct parcel was evasive and insufficient.
The uncontroverted testimony of PW2 and the court-ordered Surveyor's Report established that Plot 206 was an excision of Plot 118 effected in 1992 and that the remaining portion of the original Plot 118 is Plot 203. Absent rebuttal, the dispute had to be addressed by reference to the existing subdivisions rather than the defunct Plot 118, which the respondents did without locating their occupation on the ground.
Probative value of the 4th December 2006 District Officer's letter
The letter was admitted without considering its admissibility under sections 33 and 35 of the Evidence Act and, even if admissible, was inconclusive as to any lawful claim over the land.
The letter's maker was not called as a witness, raising hearsay and notice requirements under sections 33 and 35 of the Evidence Act. Even assuming admissibility, the letter merely referred to the already non-existent Plot 118 as a settlement scheme without specifying the date of declaration, the responsible authority, or the legal instrument effecting it, so it could not establish the respondents' lawful occupation.
Whether trespass was proved
The appellant proved on a balance of probabilities that the respondents were among the trespassers and was entitled to the injunctive and eviction orders sought; the trial court's contrary finding resulted from improper evaluation of the evidence.
Trespass is a tort against possession: the claimant must prove the right to immediate and exclusive possession and an unlawful entry. The appellant established the extent and identity of the suit property and that it was fully occupied by squatters. The respondents offered only vague, uncorroborated assertions of occupation since 1989 of a non-existent parcel, so the trial Judge's conclusion that squatters predated the 1997 title had no evidentiary basis.
Legal principles established
#- Plot No. MS/Block III/118 ceased to exist upon its subdivision in 1992; a defence anchored on a non-existent parcel, without identifying where on the ground the defendant's occupation falls, fails to engage the real issue and cannot defeat a proprietor's trespass claim.
- An unadmitted letter whose maker is not called, especially an unnotified hearsay document, has minimal probative value in establishing a lawful claim over land such as a settlement-scheme declaration.
- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence itself and draw its own conclusions, while making allowance for not having seen or heard the witnesses.
Court orders
#- 1.Appeal allowed with costs to the appellant
- 2.Judgment and decree of the Environment and Land Court at Mombasa (N. A. Matheka, J.) delivered on 25th January 2023 set aside
- 3.Prayers (a) and (b) as sought in the appellant's Plaint substituted, i.e. permanent injunction and eviction/demolition orders
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 335 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate mandate (stated as a first appeal by way of re-trial; no specific constitutional/statutory provision quoted in the judgment)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we reach the inescapable conclusion that the appeal succeeds and is hereby allowed with costs to the appellant.
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.
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.
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.
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.
its probative value was therefore minimal, nay inconsequential in establishing any lawful claim over the land.
Issues in the judgment
#Internal inconsistency in the date of the Plaint: the judgment opens by describing it as dated 14th December 2025 (impossible, predating the 2015 events) but the final orders describe it as dated 4th December 2015.
Paragraph numbering in the judgment is irregular, jumping from paragraph 10 to '110.'.
Apparent transcription errors in quoted material ('oficial', 'difier', 'suficient') suggesting OCR corruption of the official text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shelly Engineering Works Ltd v Maruru & 4 others (Civil Appeal E163 of 2023) [2026] KECA 1573 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal from ELC Case No. 335 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1573/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.