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ELCDismissedNot stated in judgment

Mutisya v Masila (Environment and Land Appeal 9B of 2023) [2025] KEELC 5452 (KLR)

Environment and Land Court
23 July 2025
EOE. O. Obaga
2,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a landowner's appeal, confirming that oral arguments cannot substitute for actual evidence in proving land ownership claims.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court against the dismissal by a trial magistrate of the Appellant's suit seeking a permanent injunction and a declaration that plot No. X5 at Mavindu Market, allocated to him by the defunct Makueni County Council, belonged to him and had been encroached upon by the Respondent in 2012. The Respondent denied the plot's existence, said he occupied his father's plot No. 6, and that construction was by his father. The parties agreed to call for evidence from the successor County Government of Makueni; a report showed allocations at the market were sequential from plot No. 1, that no plot X5 existed between plots 5 and 6, and that the space between them was a corridor. The Appellant's receipts all predated the alleged allotment, and his claim that he was allotted a large space between plots 5 and 6 appeared only in submissions, not in his testimony. Applying Selle v Associated Motor Boat Co. and the principle from Daniel Toroitich Arap Moi that submissions are not evidence, the court held the trial magistrate properly considered the evidence and was right to ignore the misleading submissions. The Appellant failed to prove the plot's existence or any encroachment, and ownership of plot 6 had passed to the Respondent's father from Kisilu Kaindi. The appeal was dismissed with costs to the Respondent.

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 properly considered the evidence adduced by the Appellant including his submissions

Key legal issues

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01

Whether the trial magistrate erred in disregarding the Appellant's submissions and evidence

Holding

The appeal fails; the trial magistrate properly considered the evidence and was right to ignore misleading submissions

Reasoning

The court reviewed the evidence and found the trial magistrate's judgment showed he considered both the evidence and the submissions. The Appellant never testified that he was allotted a big space between plots 5 and 6; that claim arose only in submissions. The court-ordered report of 9th September 2015 showed plot X5 was non-existent, with a corridor between plots 5 and 6. Receipts predated the allotment, and ownership of plot 6 had validly passed to the Respondent's father.

p. 4

Legal principles established

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  • Submissions are not evidence and cannot take the place of evidence
  • A first appellate court must reconsider and evaluate the evidence itself while making allowance for not having seen or heard the witnesses

Court orders

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  1. 1.Appeal dismissed with costs to the Respondent

The bench

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

EO
majority

Wrote the judgment

On appeal from
Magistrates' Court
null
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (no specific provision cited in the judgment)

Relief refused

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Appeal against the dismissal of the Appellant's claim for permanent injunction and declaration of ownership of plot No. X5 Mavindu Market

The Appellant failed to prove his case; submissions are not evidence and the court-ordered report showed plot X5 was non-existent

p. 5

Costs

Appeal dismissed with costs to the Respondent

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.

Submissions are not evidence and cannot take the place of evidence.
p. 4Evidentiary value of submissions
I therefore find that this appeal is devoid of merit. The same is dismissed with costs to the Respondent.
p. 5Disposition
Even if the procedure then was that allotment letters were issued after a plot had been registered, the Appellant had not adduced any evidence to show that plot X5 existed and that the Respondent had encroached into the alleged plot.
p. 5Burden of proof on existence of plot and encroachment

Issues in the judgment

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minor

The judgment inconsistently dates the court-ordered report, describing it in one passage as filed on 9th September 2015 and in another as filed on 9th September 2021

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, "Mutisya v Masila (Environment and Land Appeal 9B of 2023) [2025] KEELC 5452 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5452/eng@2025-07-23

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