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ELCPartially AllowedELC Appeal (Homabay), arising from ELC Case No. 35 of 2021

General v Ouma (Suing on behalf of Jesus cares Centre Ministry Intl of the Redeemed Gospel Church Inc) (Environment and Land Appeal E017 of 2023) [2025] KEELC 3231 (KLR)

Environment and Land Court
7 April 2025
4,811 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed the church's land claim against the government but cut the damages to Kshs. 440,000, rejecting the bigger toilet-use claim for lack of evidence.

What this practically means

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Executive summary

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The Attorney General appealed against a judgment of the Chief Magistrate's Court at Homabay (ELC Case No. 35 of 2021, Hon. Julius Nangea, CM, delivered 15 March 2023) in which the Respondent, suing as an official of the church, obtained damages of Kshs. 240,000 and eviction orders against the National Youth Service for trespass on LR Homabay Municipality Block 162/02/6 Commercial 16. The Respondent cross-appealed, seeking mesne rent at Kshs. 20,000 per month and general damages for trespass, contending the occupation lasted over 17 months and that the toilet-use claim of Kshs. 765,000 was ignored. The court, as a first appellate court, re-evaluated the evidence. It held that the Appellant filed a defence but called no witnesses, leaving the Respondent's evidence uncontroverted; the burden of proof under Sections 107 and 108 of the Evidence Act was discharged on a balance of probabilities. The locus standi attack failed both because submissions are not evidence and because the issue was never pleaded, parties being bound by their pleadings. The appeal was dismissed wholly. On the cross-appeal, the court awarded Kshs. 440,000, being 22 months' rent at Kshs. 20,000 up to the filing of suit, with interest, and set aside the trial court's damages award. The toilet-use claim was denied for want of evidence. Each party was ordered to bear its own costs, the court reasoning that awarding costs to a church would defeat the spirit of reconciliation. Judgment delivered on 7 April 2025 by Hon. Dr. Iur F. Nyagaka, Judge.

Questions the Court framed

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

  1. 1.Whether the trial magistrate erred in finding in favour of the Respondent (including on capacity/locus standi and burden of proof of ownership)
  2. 2.Whether the Respondent's cross-appeal on the quantum of damages for trespass and mesne rent ought to succeed

Key legal issues

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01

Whether the appeal against the finding in favour of the Respondent had merit

Holding

Appeal dismissed; the Respondent proved his case on a balance of probabilities as the Appellant called no evidence

Reasoning

The Appellant filed a defence but called no witnesses, leaving the Respondent's evidence uncontroverted. The burden under Section 107 of the Evidence Act was on the plaintiff, who tendered evidence; the defence remained mere averments. The locus standi objection was unpleaded and could not be raised by submissions, since parties are bound by their pleadings and submissions are not evidence.

p. 5
02

Whether the cross-appeal on quantum should succeed

Holding

Partially allowed; damages increased to Kshs. 440,000 being 22 months' rent at Kshs. 20,000, toilet-use claim denied

Reasoning

Uncontroverted testimony established the agreed rent of Kshs. 20,000 per month from 10th June 2019, less the first two months, to filing of suit on 22nd June 2021, totalling 22 months. Trespass being actionable per se, damages were warranted; the toilet-use claim lacked evidential support.

p. 9

Legal principles established

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  • Parties are bound by their pleadings; issues not pleaded cannot be entertained, and evidence at variance with pleadings must be disregarded
  • Submissions are not evidence and cannot take the place of evidence
  • Where a defendant does not adduce evidence, pleadings remain mere allegations and the plaintiff's uncontroverted evidence stands, but the plaintiff's burden of proof is not lessened
  • Trespass to land is actionable per se

Court orders

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  1. 1.The appellant's appeal dated 29th March 2023 is dismissed wholly
  2. 2.The respondent is awarded nominal damages for trespass of Kshs. 440,000 with interest from the date of filing suit before the trial court to the date of judgment on 15th March 2023 and until payment in full
  3. 3.Each of the parties to bear their own costs for this appeal
  4. 4.The trial magistrate's judgment of 15.03.2023 set aside in regard to the damages awarded

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Homabay (ELC)
ELC Case No. 35 of 2021
Jurisdiction invoked
First appeal to the Environment and Land Court against the decision of the Chief Magistrate's Court

Relief refused

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Damages for toilet use of Kshs. 765,000 claimed in the cross-appeal

No evidence supported the claim; premises in use necessarily included toilet facilities

p. 9

Costs of the appeal and cross-appeal

Awarding costs to the church would paint its receipt of monies from government badly and defeat the spirit of reconciliation

p. 9

Costs

Each of the parties to bear their own costs for this appeal

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.

The appellant's appeal vide the Memorandum of Appeal dated 29th March 2023 is hereby found to be without merit and dismissed wholly.
p. 9Disposition - appeal
The respondent is awarded nominal damages for trespass to the tune of Kshs. 440,000 with interest from the date of filing suit before the trial court to the date judgement on the 15th March 2023 and to when it shall be paid.
p. 9Disposition - damages
Each of the parties to bear their own costs for this appeal.
p. 9Costs
Simply put, a Defence should first plead an issue before a party can lead evidence on the same and ultimately the court base its decision on the same. If a point is not pleaded, the same cannot be entertained.
p. 6Pleadings bound parties
Submissions cannot take the place of evidence.
p. 7Submissions vs evidence
The legal position with respect to trespass to land is that the same is actionable per se.
p. 8Trespass actionable per se

Issues in the judgment

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minor

Judgment twice refers to '30th February 2022', a non-existent date, in summarising the cross-appeal

minor

Property description inconsistent: '162/02/6' in the grounds of appeal versus 'Block 16202/6 COMM16' elsewhere

minor

The cross-appeal figure of 17 months' occupation is inconsistent with the court's own computation of 22 months' liability

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, "General v Ouma (Suing on behalf of Jesus cares Centre Ministry Intl of the Redeemed Gospel Church Inc) (Environment and Land Appeal E017 of 2023) [2025] KEELC 3231 (KLR)", Case Analysis (2025). ELC Appeal (Homabay), arising from ELC Case No. 35 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3231/eng@2025-04-07

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