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ELCDismissedNarok CMELC No. 10 of 2019 (Appeal)

Otuni & another v Kashu (Environment and Land Appeal E005 of 2024) [2025] KEELC 7615 (KLR)

Environment and Land Court
6 November 2025
3,674 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a first appeal to the Environment and Land Court at Narok from the Chief Magistrate's Court (Narok CMELC No. 10 of 2019), whose judgment of 21st May 2024 had dismissed the Appellants' claim. As plaintiffs, the Appellants (registered owners of parcel Cis Mara/Topoti/1164) had sought a declaration of ownership, eviction of the Respondent, a permanent injunction and costs, alleging that the Respondent (owner of parcel Topoti/174) had encroached on their land and constructed structures. The Respondent denied trespass, asserting he had occupied his own parcel for some 40 years, and faulted the Appellants for failing to produce a ground report by the Land Registrar delimiting the boundaries as required by Sections 18 and 19 of the Land Registration Act. On appeal, the Appellants argued the magistrate erred in fact and law, including in not summoning additional evidence. The court, guided by Sections 65 and 78 of the Civil Procedure Act and Selle v Associated Motor Boat Co Ltd, reconsidered the evidence and held the appeal unmerited. It found that the Appellants bore the burden of proving trespass under Sections 107-109 of the Evidence Act, that their photographs were not tied to their parcel or to the Respondent's occupation, that the ground report did not cover the Respondent's parcel, and that no independent witnesses (including the arbitrating chief) were called. The appeal was dismissed entirely with costs to the Respondent, costs following the event under Section 27 of the Civil Procedure Act.

Questions the Court framed

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

  1. 1.Whether the instant Appeal is merited
  2. 2.Who should pay costs of the Appeal

Key legal issues

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01

Whether the Appellants proved trespass on their land by the Respondent

Holding

The appeal was not merited; the trial court's dismissal was affirmed because the Appellants failed to discharge the burden of proving trespass

Reasoning

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.

p. 7
02

Costs of the appeal

Holding

Costs awarded to the Respondent as the successful litigant

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The instant Appeal is dismissed entirely
  2. 2.Costs of the Appeal awarded to the Respondent

The bench

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

majority

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

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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

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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 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
p. 7failure to prove trespass
The Appellants as Plaintiffs before the trial court did not avail sufficient evidence.
insufficiency of evidence
the said Appeal is dismissed entirely with costs to the Respondent. Appeal dismissed accordingly.
p. 7final orders

Issues in the judgment

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minor

Inconsistent parcel numbers for the Respondent's land throughout the judgment (Topoti/174 vs Topoti/1164)

minor

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

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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, "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.