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ELCDismissedNot stated in judgment

Mamboleo Women Group Co-operative Society Limited v Ngeno & 9 others; District Land Registrar, Nakuru (Interested Party) (Interested party in the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th and 9th defendants counterclaim dated 11th May, 2022) (Environment & Land Case E010 of 2021) [2024] KEELC 5666 (KLR)

Environment and Land Court
1 August 2024
5,349 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's trespass case failed because it had no evidence placing the defendants on the land, and everyone walked away paying their own costs.

What this practically means

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Executive summary

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Mbokishi Group Ranch, the plaintiff, sued nine defendants seeking declarations of ownership of Narok/Cis-Mara/Ololunga/182, an injunction, eviction, mesne profits and general damages for trespass. The plaintiff, which acquired the suit property from Mary Naini Eliud in 1992, alleged that the defendants trespassed by grazing, cultivating and constructing on the land after a boundary determination. Eight of the defendants denied trespass, counterclaimed for declarations of ownership of their own parcels (7133, 6901, 6868, 6386 and 7095), which arose from the subdivision of Enakishomi Group Ranch parcel 115, and asserted adverse possession. At trial, PW1 admitted that the suit property and parcel 115 are far apart (2 to 4 kilometres), separated by other parcels, and produced no photographic or other direct evidence of the defendants' invasion, though a boundary implementation report of 12 November 2020 noted squatters on the plaintiff's land. DW1 testified he bought parcel 7133 and had title, but admitted he was not a member of Enakishomi Group Ranch and had no authority to testify for his co-defendants. The court framed two issues: entitlement to the orders sought and costs. Applying sections 107-109 of the Evidence Act, the court held that neither side discharged the burden of proving trespass. The plaintiff's theory that Enakishomi members expanded onto its land was unpersuasive given the distance between the parcels. Both the amended plaint and the counterclaim were dismissed, with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff is entitled to the orders sought
  2. 2.Who is to bear the costs

Key legal issues

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01

Whether the plaintiff proved trespass against the defendants

Holding

The claim for trespass was not proved; the plaintiff did not discharge its burden of proof

Reasoning

PW1 admitted the plaintiff's parcel and the defendants' parcels are far apart, with other parcels between them. The boundary implementation report showed squatters on the plaintiff's land but did not identify the defendants. No photographic or other evidence of the alleged invasion was produced. The defendants likewise failed to prove their counterclaim of trespass by the plaintiff.

p. 10
02

Whether the plaintiff's argument that Enakishomi Group Ranch expanded onto its land was persuasive

Holding

Not persuasive; the parcels being far apart, residents of parcel 115 could not extend onto the suit property

Reasoning

The map (Ex. 6) shows parcels 182 and 115 far apart with other parcels in between. PW1 testified the distance between them is 2 to 4 kilometres, making it implausible that the defendants' occupation of parcel 115 extended onto parcel 182.

p. 10

Legal principles established

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  • He who alleges must prove, and proof in civil matters is on a balance of probability

Court orders

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  1. 1.The amended plaint dated 18th October, 2021 is dismissed
  2. 2.The counterclaim dated 11th May, 2022 is dismissed
  3. 3.Each party shall bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (trespass and title to land)

Relief refused

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Declaration of ownership of Narok/Cis-Mara/Ololunga/182 and injunction/eviction/mesne profits/general damages for trespass

Plaintiff failed to discharge its burden of proving trespass by the defendants; the parcels are far apart

p. 10

Counterclaim for declaration of ownership of parcels 7133, 6901, 6868, 6386 and 7095 and injunction

Defendants equally failed to substantiate their claims of invasion by the plaintiff

p. 10

Costs

Each party shall bear its own costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that the plaintifi has not discharged its burden of proving the acts of trespass said to have been done by the defendants.
p. 10Burden of proof in trespass claims
The two parcels being far apart, it is not possible that those residing in parcel 115 to extend their land the suit property.
p. 10Impossibility of trespass across distant parcels
It follows therefore, that the amended plaint dated 18th October, 2021, and the counterclaim dated 11th May, 2022 are hereby dismissed. Each party shall bear its own costs.
p. 10Final orders and costs

Issues in the judgment

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minor

The 6th and 10th defendants are mentioned as excluded from the defence/counterclaim but their identity and participation are not otherwise explained

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mamboleo Women Group Co-operative Society Limited v Ngeno & 9 others; District Land Registrar, Nakuru (Interested Party) (Interested party in the 1st, 2nd, 3rd, 4th, 5th, 7th, 8th and 9th defendants counterclaim dated 11th May, 2022) (Environment & Land Case E010 of 2021) [2024] KEELC 5666 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5666/eng@2024-08-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.