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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the Respondent's cross-appeal on the quantum of damages for trespass and mesne rent ought to succeed
Key legal issues
#Whether the appeal against the finding in favour of the Respondent had merit
Appeal dismissed; the Respondent proved his case on a balance of probabilities as the Appellant called no evidence
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.
Whether the cross-appeal on quantum should succeed
Partially allowed; damages increased to Kshs. 440,000 being 22 months' rent at Kshs. 20,000, toilet-use claim denied
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.
Legal principles established
#- 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
#- 1.The appellant's appeal dated 29th March 2023 is dismissed wholly
- 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.Each of the parties to bear their own costs for this appeal
- 4.The trial magistrate's judgment of 15.03.2023 set aside in regard to the damages awarded
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs
Each of the parties to bear their own costs for this appeal
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.
The appellant's appeal vide the Memorandum of Appeal dated 29th March 2023 is hereby found to be without merit and dismissed wholly.
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.
Each of the parties to bear their own costs for this appeal.
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.
Submissions cannot take the place of evidence.
The legal position with respect to trespass to land is that the same is actionable per se.
Issues in the judgment
#Judgment twice refers to '30th February 2022', a non-existent date, in summarising the cross-appeal
Property description inconsistent: '162/02/6' in the grounds of appeal versus 'Block 16202/6 COMM16' elsewhere
The cross-appeal figure of 17 months' occupation is inconsistent with the court's own computation of 22 months' liability
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.