China Road and Bridge Corporation v Karanja (Environment and Land Appeal E031 of 2026) [2026] KEELC 2863 (KLR)
The bottom line
#Kenya's Environment and Land Court upheld a Kshs 1.5 million trespass award against China Road and Bridge Corporation because the company failed to present any evidence in its defence.
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 learned Magistrate erred in finding that the Appellant trespassed onto the Respondent's land
- 2.Whether the learned Magistrate improperly shifted the burden of proof to the Appellant
- 3.Whether the learned Magistrate erred in admitting and relying on the photographic evidence
- 4.Whether the defence of pre-existing public road was adequately evaluated
- 5.Whether the award of general damages in the sum of Kshs. 1,500,000/= was justified
- 6.What orders should issue, including as to costs
Key legal issues
#Trespass to land
The Respondent's registered title was unchallenged and his evidence of the Appellant's trucks encroaching 6 metres beyond the adjacent 3-metre public lane was uncontroverted; trespass was proved
Once ownership is established, entry without consent or lawful justification is trespass. The Respondent produced a Certificate of Lease and official search; under Section 26(1) of the Land Registration Act his title is prima facie and indefeasible. The Appellant, though pleading a pre-existing public road, called no witness, leaving its defence as mere unproved allegations. The re-examination evidence that the trucks used the 3-metre lane plus 6 metres of private land precisely established the encroachment.
Burden of proof and failure to call evidence
No burden was shifted; the orthodox principle is that unchallenged evidence stands uncontroverted when the opposing party elects not to rebut
Sections 107-109 of the Evidence Act place the burden on the party asserting a fact, and the Respondent discharged it through oral and documentary evidence. The Appellant had every opportunity to call its Transport Manager and produce its survey map but strategically chose not to. The legal consequence of that choice is that the Respondent's evidence remains uncontroverted and must be accepted.
Admissibility of photographic and video evidence under Section 106B
The photographs were properly admitted because the Appellant failed to object at the time of production and cross-examined on them, waiving admissibility objections
An objection to admissibility must be taken timeously, at the point the evidence is sought to be admitted. The Appellant stood by, cross-examined the Respondent on the photographs and videos, and raised no Section 106B objection at the hearing. It cannot approbate and reprobate by raising certification for the first time on appeal. The evidence was also corroborated by the NTSA search and ignored demand letters.
Defence of pre-existing public road and the 3-metre lane
The defence failed; the 3-metre lane and the 6-metre encroachment are complementary facts, and no evidence supported a public road over the suit property
The Appellant selectively relied on cross-examination answers about the 3-metre lane while ignoring the re-examination clarification that the trucks used the lane plus 6 metres of private land. The Respondent obtained a correction of the survey map from the Director of Survey and testified there was no road on the parcel when he bought it. The Appellant's late application to call a surveyor was rightly declined as an afterthought.
Quantum of general damages for trespass
The award of Kshs. 1,500,000/= was justified for a continuous, deliberate trespass involving construction and use of a road
Trespass is actionable per se and no proof of pecuniary loss is needed. The trespass involved constructing a murram road, continuous use by heavy trucks for months, ignored demand letters, backfilling of trenches and harassment, depriving the Respondent of use from 2020. Comparing Duncan Nderitu Ndegwa (Kshs. 1,000,000/=) with regard to inflation, the award, though at the upper end, was within the reasonable range.
Legal principles established
#- Where a defendant elects not to call any evidence in rebuttal, the plaintiff's uncontroverted evidence must be taken as proved
- Pleadings and witness statements not formally tendered and adopted in court do not constitute evidence
- Failure to object to electronic evidence at the time of its production constitutes a waiver of the right to challenge admissibility on appeal
- An assertion that a road is a public road through private land requires cogent and documentary proof, particularly survey evidence
- An appellate court will only interfere with an award of damages where the trial court acted on a wrong principle, misapprehended the evidence, or arrived at an entirely erroneous estimate
Court orders
#- 1.The appeal is hereby dismissed in its entirety
- 2.The judgment of the trial court and the consequential decree arising therefrom be and is hereby affirmed
- 3.The Appellant shall bear the costs of this Appeal, assessed at Kshs. 100,000/= all inclusive
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Commercial ELC (Senior Principal Magistrate's Court)
- MCELC E1429 of 2020
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act (Cap 21) and Order 42 of the Civil Procedure Rules, 2010
Relief refused
#Setting aside the trial court's judgment and decree and dismissal of the Respondent's suit
All six grounds of appeal failed; the finding of trespass was supported by uncontroverted evidence
Reduction of general damages to nominal or substantially reduced damages
The award of Kshs. 1,500,000/= was neither manifestly excessive nor based on wrong principles
Striking out the appeal for an incomplete Record of Appeal
The defect was cured by the Supplementary Record of Appeal filed 20th April 2026 containing the typed proceedings and certified Decree
Costs
The Appellant shall bear the costs of this Appeal, assessed at Kshs. 100,000/= all inclusive.
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.
The appeal is hereby dismissed in its entirety.
The judgment of the trial court and the consequential decree arising therefrom be and is hereby affirmed.
The Appellant shall bear the costs of this Appeal, assessed at Kshs. 100,000/= all inclusive.
pleadings are not evidence; assertions in a Statement of Defence or witness statement that are not formally tendered and adopted in court cannot constitute proof of the facts asserted
The tort is actionable per se and a claimant need not prove actual damage to be entitled to a remedy.
A party who stands by and allows evidence to be admitted without objection, and who thereafter cross-examines on it, cannot subsequently challenge its admissibility on appeal.
the Appellant's vehicles were using the 3-metre lane plus 6 metres of his land, meaning they encroached 6 metres into the suit property beyond the lane.
Issues in the judgment
#Paragraph numbering in the judgment jumps from issue 38 directly to paragraph 45, suggesting omitted paragraphs in the text supplied
Judgment dated 14th May 2026 references decision of 29th January 2026 - dates appear internally consistent but very recent; no contradiction found
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "China Road and Bridge Corporation v Karanja (Environment and Land Appeal E031 of 2026) [2026] KEELC 2863 (KLR)", Case Analysis (2026). ELC Appeal (Milimani) arising from MCELC E1429 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2863/eng@2026-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.