New Nzaui Farmers Co-operative Society Limited v Muange (Environment and Land Appeal 39B of 2018) [2025] KEELC 5142 (KLR)
The bottom line
#Kenya's Environment and Land Court reversed a Tribunal ruling, confirming the co-operative owns Matiliku plot 103 and awarding Kshs.200,000 for trespass.
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 disputed plot at Matiliku Market is plot No. 103 allotted to the Appellant or plot Nos. 110 and 111 claimed by the Respondent
- 2.Whether the Tribunal erred in finding that the Appellant had failed to prove its case on a balance of probabilities
- 3.Whether the Respondent trespassed onto the Appellant's plot and whether the Appellant is entitled to mesne profits and/or general damages
- 4.Whether the appeal is an abuse of court process for want of a decree/order appealed against
Key legal issues
#Ownership and identity of the disputed plot
Plot 103, containing the mabati structure, was allotted to the Appellant by Masaku County Council on 16th July, 1976; plots 110 and 111 do not exist at Matiliku market
The Town Planning, Market and Housing Committee minutes of 16th July, 1976 show the allocation of plot 103 to the Appellant. Councillor John Mwaka Mailu (CW2), who facilitated the allocation, testified plots at Matiliku market went up to number 103 and that plots 104 to 122 were allocated only as kiosks, with 110 and 111 nullified. CW4 Julius Mutulu Malungu confirmed plots 110 and 111 do not exist. The Respondent produced no allotment letter for plot 110.
Whether the Tribunal erred in finding the Appellant had not proved its case on a balance of probabilities
The Tribunal erred; there was ample evidence showing the disputed plot was allocated to the Appellant
The court, re-evaluating the evidence as a first appellate court, found documentary minutes, allotment history and testimony of two former councillors established the Appellant's ownership of plot 103. The Respondent, a committee member of the Appellant since 1983, was aware of the Appellant's use of the mabati store, and produced no allotment letter or evidence of when plot 110 was allotted to him.
Trespass and remedy
The Respondent trespassed onto plot 103 in 1997, has remained there for 28 years collecting rent, and is liable in general damages of Kshs.200,000/=; mesne profits were not proved
The Respondent took over the plot in 1997 and leased the mabati structure to a church, collecting rent belonging to the Appellant. Since mesne profits are special damages requiring proof and none was led, the court awarded general damages instead, noting mesne profits and general damages cannot be claimed together. The 28-year occupation informed the quantum of Kshs.200,000/=.
Respondent's objection that the appeal is an abuse of process
The objection did not prevail; the appeal was heard and allowed on its merits
The Respondent argued the appeal contravened Order 42 Rule 1(2) of the Civil Procedure Rules for lacking an order or decree appealed against, and that the Appellant had no officials capable of litigating since no elections were held for over 20 years. The court did not uphold these objections, instead proceeding to determine the appeal on the evidence and allowing it.
Legal principles established
#- A first appellate court must re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses
- A litigant cannot recover both mesne profits and general damages for the same trespass
Court orders
#- 1.The Appellant's appeal is allowed
- 2.The judgment of the Tribunal delivered on 4th May, 2018 is set aside
- 3.The claimant's claim is allowed in terms of prayers (a), (b) and (d) as sought before the Tribunal
- 4.General damages of Kshs.200,000/= awarded, to attract interest at court rates from the date of the judgment
- 5.The Appellant shall have costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Cooperative Tribunal at Nairobi
- 214 of 2006
- Jurisdiction invoked
- Appellate jurisdiction over Cooperative Tribunal decisions under the Cooperative Societies Act Cap 490 (Section 78)
Relief refused
#Mesne profits of Kshs.3,000,000/= sought by the Appellant
No evidence was led on mesne profits, which are in the nature of special damages; and the law does not allow both mesne profits and general damages; general damages of Kshs.200,000/= were awarded instead
Costs
The Appellant shall have costs of 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.
I allow the Appellant’s appeal. The judgment of the Tribunal delivered on 4th May, 2018 is hereby set aside.
I allow the claimant’s claim in terms of prayer (a) (b) and (d) as sought before the Tribunal and general damages of Kshs.200,000/= which shall attract interest at court rates from the date of this judgment. The Appellant shall have costs of this appeal.
It is therefore clear that plot 103 where there is a mabati structure is the plot which was allotted to the Appellant.
The law is clear that one cannot claim both mesne profits and general damages.
It was therefore wrong for the Tribunal to make a finding that the Appellant had failed to prove its case on a balance of probabilities.
Issues in the judgment
#Internal chronology inconsistency: the judgment states the Respondent first laid claim in 1997 and the trespass has lasted 28 years, yet judgment was delivered in 2025 (also the Appellant's submissions are dated November 2019 while the Respondent's are dated January 2025)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "New Nzaui Farmers Co-operative Society Limited v Muange (Environment and Land Appeal 39B of 2018) [2025] KEELC 5142 (KLR)", Case Analysis (2025). Cooperative Tribunal Appeal (Machakos) – Tribunal Case Number 214 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5142/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.