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ELCPartially AllowedVihiga ELCA No. E024 of 2023 (Appeal from Vihiga PMCELC No. E024 of 2023)

Agoi v Joel (Environment and Land Appeal E021 of 2024) [2025] KEELC 7084 (KLR)

Environment and Land Court
16 October 2025
2,650 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The appellant, Zakayo Kwendo Agoi, appealed against the judgment of the Vihiga Principal Magistrate's Court (ELC No. E024 of 2023) delivered on 8th October 2024, which had dismissed his claim of trespass over land parcel West Bunyore/Itumbu/564 and, notably, declared the respondent the lawful proprietor of that parcel, ordered cancellation of the appellant's title and directed the Land Registrar to rectify the register. The appellant argued on appeal that the trial court cancelled the wrong title, made findings on ownership which was never in issue, and granted relief that was never prayed for or counterclaimed, as the respondent filed no counterclaim. No submissions were filed for the respondent. The court, exercising its first-appeal duty to re-examine the evidence, found that the appellant's title to parcel 564 was unchallenged and its root never questioned. However, the trespass claim failed because the surveyor's report (MFI P5) was never produced as an exhibit and no survey was conducted despite a court order; the alleged encroachment of 1.20 Ha would have amounted to the whole parcel, contradicting the appellant's assertion of possession. The court held that the trial court erred in determining ownership of parcel 564, a fact not in issue, and in ordering rectification and cancellation of title without any prayer or counterclaim, but did not err in finding the claim unproved. The appeal succeeded: the trial judgment was set aside and replaced with an order dismissing the suit with costs to the defendant; orders 2, 3 and 4 of the trial judgment (rectification, cancellation of title and judgment for the defendant) were set aside; and costs of the appeal were awarded to the appellant.

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 court erred in cancelling the appellant's title to L.R No. West Bunyore/Itumbu/564 and directing rectification of the register when no counterclaim or prayer for such relief was made
  2. 2.Whether the appellant proved, on a balance of probabilities, that the respondent trespassed upon or encroached onto the suit land parcel No. 564
  3. 3.Whether the trial court erred in its assessment and appreciation of the evidence adduced by the appellant

Key legal issues

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01

Whether the trial court properly cancelled the appellant's title and ordered rectification of the register

Holding

The trial court erred; no prayer or counterclaim sought cancellation of the appellant's title or rectification of the register, and ownership of the suit land was not in issue

Reasoning

The claim in the plaint was founded on trespass against a neighbouring parcel. The respondent never counterclaimed for cancellation of the appellant's title or rectification of the register over parcel 564. The trial court nonetheless made findings on ownership of the suit land, a fact not in issue, and directed rectification and cancellation. Orders granting relief not sought exceed the pleadings and cannot stand.

p. 6
02

Whether the appellant proved trespass or encroachment by the respondent

Holding

No; the appellant failed to discharge the burden of proof. The surveyor's report was never produced as an exhibit and no survey was undertaken despite a court order

Reasoning

The claim was based on the tort of trespass, alleging occupation of 1.20 Ha. The appellant produced a title deed and official search proving ownership, which was unchallenged, but no surveyor's report was produced to prove encroachment. The alleged 1.20 Ha amounted to the entire parcel, contradicting the appellant's claim of possession and residence on the land. The claim therefore failed on proof, not on title.

p. 5
03

Whether the trial court erred in dismissing the appellant's claim

Holding

No; the trial court correctly found that the appellant had not proved his case on a balance of probabilities, although it erred in its findings on ownership and the rectification orders

Reasoning

While the trial court misdirected itself by determining ownership and cancelling the appellant's unchallenged title without a counterclaim, its core finding that the claim was not proved to the required standard was sound. The appellate court therefore set aside the erroneous orders but substituted a plain dismissal of the suit rather than reinstating the claim.

p. 6

Legal principles established

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  • In a first appeal, the appellate court has an obligation to re-examine and re-analyse the evidence placed before the trial court
  • A trial court cannot grant relief that was neither pleaded nor counterclaimed; findings on facts not in issue and orders of rectification without a prayer or counterclaim are erroneous
  • To prove trespass, a party needs a surveyor's report; the burden of proving encroachment lies on the party alleging it

Court orders

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  1. 1.The judgment of the trial court dated 8th October 2024 is set aside and replaced with a judgment dismissing the suit with costs to the defendant
  2. 2.The trial court's orders numbers 2, 3 and 4 (rectification of the land register to reflect the respondent as proprietor, cancellation of the title issued to the appellant, and entry of judgment in favour of the defendant) are set aside
  3. 3.Costs of the appeal are awarded to the appellant

The bench

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

majority

Wrote the judgment

On appeal from
Vihiga Principal Magistrate's Court (Environment and Land Court)
PMCELC No. E024 of 2023
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's court (the court re-examined the evidence as a first appeal)

Relief refused

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Permanent injunction restraining the respondent from interfering with or encroaching on L.R No. West Bunyore/Itumbu/564

The appellant did not discharge the burden of proving trespass or encroachment; no surveyor's report was produced as an exhibit

p. 5

Eviction order against the respondent from L.R No. West Bunyore/Itumbu/564

Trespass was not proved, as the surveyor's report (MFI P5) was never produced as an exhibit and no survey was conducted

p. 5

Costs

Costs of the suit to the defendant (respondent); costs of the appeal awarded to the appellant

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.

This is a first appeal hence the court has obligation to re-examine and reanalyze the evidence placed before the trial court.
p. 4Duty of a first appellate court
I find that the trial court erred in making findings on ownership of the suit land, a fact that was not in issue and in proceeding to direct for rectification / cancellation of the title to the suit land when there was no prayer or counterclaim for the same.
p. 6A court cannot grant relief not sought by any party
Regarding trespass or encroachment, I find no evidence placed before the trial court in proof of the same.
p. 5Failure of proof of trespass
The judgement of the trial court is hereby set aside and replaced with a judgement dismissing the suit with costs to the defendant.
p. 6Final orders - disposition of the appeal
Costs of the appeal are awarded to the appellant.
p. 6Costs of the appeal

Issues in the judgment

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minor

Internal inconsistency in dates: the Memorandum of Appeal is dated 5th November 2024 while the record of appeal is described as dated 8th May 2024 but filed 13th May 2025, and counsel's submissions refer to a plaint dated 4th May 2025 whereas the plaint is elsewhere dated 5th May 2023

minor

Paragraph numbering restarts: the 'Submissions' section begins at paragraph 5, duplicating the numbering of earlier paragraphs

minor

The judgment's opening describes the appeal as against Vihiga PMCELC No. E024 OF 2023, the same number as the suit, but the record of appeal is dated before the memorandum of appeal, suggesting transcription errors in dates and numbers

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, "Agoi v Joel (Environment and Land Appeal E021 of 2024) [2025] KEELC 7084 (KLR)", Case Analysis (2025). Vihiga ELCA No. E024 of 2023 (Appeal from Vihiga PMCELC No. E024 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7084/eng@2025-10-16

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