Kibunyi v Thomas (Environment and Land Appeal E014 of 2025) (Environment and Land) [2025] KEELC 7282 (KLR)
The bottom line
#Kenya's Environment and Land Court at Voi upheld a Ksh 600,000 award against a land encroacher, confirming appellate courts rarely disturb a trial court's discretion.
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 lower court was justified based on the facts, evidence and the law in arriving at the decision to grant the Respondent the reliefs that were sought.
- 2.If the Appellant has a meritorious appeal.
- 3.What is the order as to costs?
Key legal issues
#Excessiveness of the mesne profits award of Ksh 600,000/-
The award was not excessive; it was a sound exercise of discretion by the learned magistrate
The court applied the settled principles in Butt v Khan and United India Insurance: an appellate court will not disturb a discretionary award unless it is shown the trial court misdirected itself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong. The magistrate considered the surveyor's report showing encroachment of 1.4m on the front side and 4.7m on the rear side, and the Appellant's own admission of encroachment. No misdirection was established.
Whether the appeal was meritorious
The appeal lacked merit and was dismissed
The Appellant neither established misdirection by the learned magistrate nor demonstrated that the award was inordinately high. The encroachment itself was not in dispute; only the quantum was contested, and the magistrate had based the assessment on established principles and relevant factors including the extent of encroachment.
Legal principles established
#- An appellate court will not interfere with an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence
- A first appellate court may only interfere with the trial court's discretionary award of mesne profits where the trial court acted on wrong principles or the award is inordinately low or high
- A person wrongfully deprived of his property is entitled to mesne profits for loss suffered as a result of the wrongful period of occupation by another
Court orders
#- 1.The appeal fails and is hereby dismissed
- 2.Each party to bear own costs of this Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's decision in a land dispute (stated in judgment as the 1st Appellate court; no specific provision quoted)
Relief refused
#Variation downwards of the mesne profits award of Ksh 600,000/-
The Appellant failed to demonstrate any misdirection or improper exercise of discretion by the learned magistrate; the award was sound
Costs of the Appeal against the Respondent
The Appellant conceded the encroachment and sought settlement which the Respondent declined; it was prudent each party bears own costs
Costs
Each party to bear own 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.
An appellate court will not disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate.
The upshot is that after careful review and analysis of all the grounds of appeal and the entire record, I find no fault with the decision of the trial magistrate. Consequently, the appeal fails and is hereby dismissed. Each party to bear own costs of this Appeal.
where a person is wrongfully deprived of his property he/she is entitled to damages known as mesne profits for loss sufiered as a result of the wrongful period of occupation of his/her property by another.
This court sitting on Appeal is only entitled to interfere if one or more of the following matters are established; first, that the court misdirected himself in law; secondly, that the court misapprehended the facts
Issues in the judgment
#The judgment inconsistently cites Gitobu Imanyara vs Attorney General with two different years
Mbogo Vs Shah is referred to as '(Supra)' although it was not previously cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibunyi v Thomas (Environment and Land Appeal E014 of 2025) (Environment and Land) [2025] KEELC 7282 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7282/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.