Nkorongo v Rioba & 2 others (Environment and Land Appeal E002 of 2024) [2026] KEELC 1498 (KLR)
The bottom line
#A landowner lost his trespass claim because he couldn't prove who built the road or support his photos with the required evidence certificate.
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 trial court erred in dismissing the Appellant's Suit
Key legal issues
#Whether the Appellant proved that the Respondents constructed the road on his land and caused the damage complained of
The Appellant failed to prove his case on a balance of probabilities
Only PW1 testified to the presence and actions of alleged agents of the 3rd Respondent; there was no independent corroboration. The photographs were inadmissible for want of a Section 106B certificate. No evidence linked the 1st Respondent's alleged involvement to the County Government, and no proof showed the tractor belonged to the County. The court could not tell whether the County Government or another roads authority had the mandate over the area.
Whether the trial court erred in dismissing the suit
The trial court did not err; its decision was upheld and the appeal dismissed
The court re-evaluated the record, found no evidence linking the Respondents to the road construction, found the photographic evidence inadmissible, and agreed with the trial magistrate's finding that the burden and standard of proof were not met. The duty of a first appellate court to re-assess evidence afresh was observed, and the same conclusion was reached.
Legal principles established
#- The duty of a first appellate court is to re-evaluate the evidence and reach its own independent conclusions
- The burden of proof in civil claims lies on the party who alleges, and the standard is the balance of probabilities
- Photographs produced as evidence without a certificate under Section 106B of the Evidence Act are inadmissible
Court orders
#- 1.The appeal is dismissed
- 2.The Respondents are awarded costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial court (magistrates' court, station not stated)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the decision of the trial magistrate (Memorandum of Appeal dated 22nd February 2024)
Relief refused
#All reliefs sought in the plaint (declarations of ownership, permanent and mandatory injunctions, compensation of Kshs. 496,883, general and aggravated damages for trespass, costs and interest)
The Appellant failed to prove the nexus between the alleged road construction and the Respondents, and failed to prove his case on a balance of probabilities
Costs
The appeal is dismissed with costs to the Respondents
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.
In the premises, the Appeal is dismissed with costs to the Respondents.
I am therefore in agreement with the finding of the trial court that the Plaintifi failed to prove his case to the required standard and uphold the decision of the trial magistrate.
In my humble view, the plaintifi did not establish the nexus between the cause of action, if any, and the Respondents.
As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind.
Issues in the judgment
#Judgment states the plaint was filed 'By way of Plaint dated 20th December 2021, the Appellant sought the following orders in the trial court' and consistently refers to 'Appellant/Respondents', yet describes a first-instance claim and only later reveals the matter is an appeal from a trial court
Inconsistency in DW1's designation: described as 'County executive member in Migori Government' in the narrative but as County Secretary in his statement
Differing damage figures between the plaint and the evidence: plaint claims Kshs. 496,883 while the agricultural officer assessed Kshs. 67,664 and the forester Kshs. 74,066, and the valuer gave total compensation of Kshs. 922,184
Internal inconsistency in the judgment on the admissibility of the photographs: paragraph 8 says they 'could not be vouched for' while paragraph 35 states 'this was evidence proven, contrary to Section 106B of the Evidence Act hence inadmissible'
Date discrepancy in the closing: the appeal memorandum is dated 22nd February 2024 yet the judgment is dated 11th March 2026; also the judgment's listing of the 1st Respondent's role as MCA is unpleaded detail
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nkorongo v Rioba & 2 others (Environment and Land Appeal E002 of 2024) [2026] KEELC 1498 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1498/eng@2026-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.