Kilila v Waita & 7 others (Environment and Land Appeal 29 of 2022) [2025] KEELC 515 (KLR)
The bottom line
#The Environment and Land Court dismissed a landowner's trespass claim over sand harvesting because he couldn't prove the riverbed was part of his land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the trial court was right in disregarding the issue raised in the submissions and not in the pleadings being whether the respondents' sand harvesting complied with environmental laws including EMCA and Sand Harvesting Guidelines of 2007
- 2.Whether or not the site of the respondents' sand harvesting is part of the parcel of land known as Kivaa/Kyondoni/488
Key legal issues
#Whether unpleaded issues on compliance with environmental laws (EMCA and Sand Harvesting Guidelines 2007) could be introduced through submissions
The trial court was right to decline to interrogate the issue as it did not arise from the pleadings or evidence; submissions cannot substitute for pleadings or evidence
The court held that issues for determination flow from pleadings, not submissions. The appellant's grievance at trial was trespass on his land, not environmental compliance. Allowing factual matters to be raised first in submissions risks trial by ambush and denies the other party a fair opportunity to respond. The court adopted the principle that submissions are mere persuasion and do not constitute evidence, citing Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi and Erastus Wade Opande v KRA.
Whether the appellant proved that the sand harvesting site was part of the suit property
The appellant failed to prove the site was part of Kivaa/Kyondoni/488; the uncontroverted surveyor's evidence placed the harvesting in River Kamunyu, outside the suit property, so trespass was not proved
Section 107 of the Evidence Act placed the burden of proof on the plaintiff. The respondents did not deny harvesting sand in the vicinity but maintained it was in the riverbed. The joint surveyor's report and oral evidence established the harvesting site was River Kamunyu, not the suit property. The appellant presented no contrary report and did not shake the surveyor's evidence. His own admission that the river at times flooded onto his land showed the river was not part of his land. Without proof of the site's location, trespass, damages and mesne profits could not follow.
The weight to be accorded to expert (surveyor's) evidence
The trial court was right to take the surveyor's report into account; expert evidence must be tested against all other evidence and is not binding on the court
Citing Stephen Wangóndu v The Ark Limited, the court reiterated that expert evidence does not trump other evidence, must not be considered in a vacuum, and conflicting expert opinions should be tested against all other evidence. Because the core question was one of location, expert evidence on location was necessary, and the surveyor's report was rational, consistent with the oral evidence, and properly considered by the trial court.
Legal principles established
#- Issues for determination arise from pleadings and not submissions; submissions are not a substitute for pleadings or evidence
- Expert evidence does not trump other evidence; the court must consider expert evidence together with all other evidence
- A party alleging trespass bears the burden of proving that the site of the alleged trespass forms part of their property
Court orders
#- 1.The appeal is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrates Court at Machakos
- CMC Case No. 63 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Chief Magistrates Court in land and environment matters
Relief refused
#Setting aside the trial court's judgment of 20th July 2022 and allowing the appeal
The appellant failed to prove that the site of sand harvesting was part of his land, and hence failed to prove trespass
Costs
Appeal dismissed with costs to the respondents
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.
Issues for determination arise from pleadings and not submissions. In my view, submissions are not a substitute for pleadings as they are mere persuasions and must as a matter of proper practice, align with the pleadings and evidence.
Submissions cannot take the place of evidence….submissions are generally parties' "marketing language" each side endeavoring to convince the court that its case is the better one
expert evidence does not trump all other evidence; the court ought to consider all evidence including expert evidence before making any findings
In the end, I find no merit in this appeal, which I hereby dismiss with costs to the respondents.
Issues in the judgment
#Citation of Trendsetters Tyres Ltd appears with an incomplete year "(201) e KLR"
Judgment delivered at Kakamega although the appeal arises from Machakos and the parties' counsel are recorded without indicating the court station discrepancy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilila v Waita & 7 others (Environment and Land Appeal 29 of 2022) [2025] KEELC 515 (KLR)", Case Analysis (2025). ELC Appeal (Machakos CMC Case No. 63 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/515/eng@2025-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.