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ELCDismissedNot stated in the judgment as provided

Kibunyi v Thomas (Environment and Land Appeal E014 of 2025) (Environment and Land) [2025] KEELC 7282 (KLR)

Environment and Land Court
23 October 2025
2,299 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Voi against the trial magistrate's judgment in a trespass suit over Plot No. Taita Taveta/Challa/Njukini/3139. The Respondent, the registered owner, sued the Appellant (owner of the adjoining Plot 3138) for injunction, demolition of encroaching structures, and general damages for trespass. At trial, a court-appointed surveyor established an encroachment of 1.4m on the front side and 4.7m on the rear side, and the Appellant conceded the encroachment and expressed willingness to vacate. The trial court awarded mesne profits of Ksh 600,000/-. On appeal, the Appellant challenged only the quantum as excessive, proposing Ksh 50,000/- instead. The Court framed three issues: whether the lower court was justified in granting the reliefs, whether the appeal was meritorious, and costs. Applying the principles in Butt v Khan, United India Insurance, and Mbogo v Shah, the Court held that a first appellate court will not interfere with a discretionary award unless the trial court misdirected itself in law, misapprehended the facts, took into account irrelevant considerations, failed to consider relevant ones, or arrived at a plainly wrong decision. Finding that the learned magistrate considered the surveyor's report and the extent of encroachment, the Court held the assessment was sound and no injudicious exercise of discretion was proven. The appeal was dismissed. Given the Appellant's concession of encroachment and his declined settlement overture, the Court ordered each party to bear its own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.If the Appellant has a meritorious appeal.
  3. 3.What is the order as to costs?

Key legal issues

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01

Excessiveness of the mesne profits award of Ksh 600,000/-

Holding

The award was not excessive; it was a sound exercise of discretion by the learned magistrate

Reasoning

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.

p. 5
02

Whether the appeal was meritorious

Holding

The appeal lacked merit and was dismissed

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal fails and is hereby dismissed
  2. 2.Each party to bear own costs of this Appeal

The bench

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

majority

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

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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

p. 5

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

p. 5

Costs

Each party to bear own costs of this Appeal.

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.

An appellate court will not disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate.
p. 4Principles for appellate interference with damages awards (Butt v Khan)
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.
p. 5Final orders - dismissal of appeal and costs
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.
p. 4Entitlement to mesne profits
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
p. 4Grounds for interfering with a discretionary decision

Issues in the judgment

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minor

The judgment inconsistently cites Gitobu Imanyara vs Attorney General with two different years

minor

Mbogo Vs Shah is referred to as '(Supra)' although it was not previously cited in the judgment

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, "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.