Otuni & another v Kashu (Environment and Land Appeal E005 of 2024) [2025] KEELC 7615 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that landowners claiming trespass must prove it with solid evidence like official ground reports, not just photographs.
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 instant Appeal is merited
- 2.Who should pay costs of the Appeal
Key legal issues
#Whether the Appellants proved trespass on their land by the Respondent
The appeal was not merited; the trial court's dismissal was affirmed because the Appellants failed to discharge the burden of proving trespass
The Appellants alleged trespass but only produced photographs of structures with no evidence tying them to their parcel or to the Respondent's occupation. The Land Registrar's ground report did not capture the Respondent's parcel 174. For trespass they needed to prove entry without consent, ideally through the Land Registrar or Surveyor. The chief who arbitrated was not called as a witness. The evidence remained mere allegations insufficient on the balance of probabilities.
Costs of the appeal
Costs awarded to the Respondent as the successful litigant
Costs are discretionary under Section 27 of the Civil Procedure Act and follow the event unless special circumstances warrant departure. No such circumstances existed, so the Respondent, as the successful party, was awarded costs of the appeal.
Legal principles established
#- Trespass must be proved by demonstrating entry upon land in the plaintiff's possession without lawful justification
- The burden of proof lies on the plaintiff on the balance of probabilities
- A first appellate court must reconsider and evaluate the evidence afresh while allowing for the fact it neither saw nor heard the witnesses
Court orders
#- 1.The instant Appeal is dismissed entirely
- 2.Costs of the Appeal awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Narok
- Narok CMELC No. 10 of 2019
- Jurisdiction invoked
- Section 65 of the Civil Procedure Act (first appeal from magistrates' court)
Relief refused
#Setting aside of the entire judgment of the trial court and judgment entered in favour of the Plaintiffs
The Appellants failed to prove their case of trespass on the balance of probabilities
Costs
Appeal dismissed entirely with costs to the Respondent
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.
this court in its appellate jurisdiction comes to an independent conclusion that indeed the Appellants failed to prove their case on the required standard of balance of probabilities
The Appellants as Plaintiffs before the trial court did not avail sufficient evidence.
the said Appeal is dismissed entirely with costs to the Respondent. Appeal dismissed accordingly.
Issues in the judgment
#Inconsistent parcel numbers for the Respondent's land throughout the judgment (Topoti/174 vs Topoti/1164)
Memo of Appeal dated 10th June 2024 with judgment delivered on 6th November 2025 dated in the future relative to grounds; supplementary grounds dated 14th May 2025 also referenced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otuni & another v Kashu (Environment and Land Appeal E005 of 2024) [2025] KEELC 7615 (KLR)", Case Analysis (2025). Narok CMELC No. 10 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7615/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.