Moses Digo v Joseph Hongo Olweny (Sued as a legal representative of the estate of Moses Olweny Digo, Deceased) & 5 others
The bottom line
#The Environment and Land Court in Kisumu dismissed a land appeal, confirming that once permission to occupy land is revoked, staying on makes you a trespasser.
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 1st respondent proved his case against the appellant before the trial court and was entitled to the orders granted by that court
- 2.Whether the trial court erred in issuing orders of eviction and a permanent injunction against the appellant despite finding he was not a trespasser
Key legal issues
#Whether the appellant, originally a permissive occupant, became a trespasser after revocation of the licence
Yes. The demand for possession revoked the licence; continued occupation without permission made the appellant a trespasser notwithstanding the trial court's contrary finding.
It was common ground the appellant entered with the deceased's permission. The 1st respondent's 2017 demand for possession amounted to revocation of the licence. The appellant did not deny his continued occupation was without permission. Having no legal or beneficial interest, he had no justifiable cause to remain, so he was a trespasser.
Whether a constructive trust arose in favour of the appellant's family from long occupation
The court could not entertain the claim: constructive trust was not pleaded and was raised for the first time on appeal, though it accepted it could have been a valid defence had it been pleaded.
The appellant only advanced the constructive trust argument in submissions on appeal after realising he had claimed no legally recognised interest at trial. Parties are bound by their pleadings; a first appellate court cannot decide issues the trial court never had occasion to determine.
Whether the alleged gift of the suit property to the appellant's mother was proved
No evidence established a gift; the appellant's claim over the property was vague as to basis and capacity in which it was made.
The appellant admitted title was registered in the deceased's name. His claim was vague - unclear whether he claimed in his own right, for his mother, father or family, or on what basis. No evidence of a gift was produced, and no counterclaim was lodged based on the long occupation.
The mandate of a first appellate court
The court must reconsider and evaluate the evidence and draw its own conclusions, but will not interfere with findings of fact unless they were not based on evidence, were based on misapprehension of the evidence, or the court acted on wrong principles.
Relying on Gitobu Imanyara, Kenya Ports Authority v Kuston, Peters v Sunday Post and Makube v Nyamuro, the court restated the retrial nature of a first appeal and the limited grounds for disturbing trial court findings of fact.
Legal principles established
#- A licensee whose permission to occupy land has been revoked and who has no legal or beneficial interest in the land becomes a trespasser upon continued occupation.
- An appellate court cannot determine issues that were not pleaded and decided at trial, even if they could have been a valid defence.
- On a first appeal the court must reconsider and evaluate the evidence afresh and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.The appeal is dismissed with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kisumu (Environment and Land)
- Kisumu CMCELC No. E14 of 2021
- Jurisdiction invoked
- First appeal from the magistrates' court to the Environment and Land Court under the ELC's appellate jurisdiction
Relief refused
#Setting aside of the trial court's judgment and remission of the suit for retrial
The court found no merit in the appeal; the 1st respondent proved his case and the appellant raised unpleaded issues (constructive trust) for the first time on appeal
Costs
The appeal is dismissed with costs to the 1st 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.
In conclusion, I find no merit in the appeal. The appeal is dismissed with costs to the 1st respondent.
Contrary to the trial court’s finding, the appellant was a trespasser on the suit property, the landowner having revoked the permission he had granted to the appellant to occupy the property.
This court cannot determine issues that were not raised before trial and on which the trial court never expressed an opinion in the judgment being challenged.
Trespass is defined as any intrusion by a person on the land in the possession of another without any justifiable cause.
As the owner of the suit property, the 1st respondent was entitled to quiet possession and enjoyment of the property after the revocation of the license granted to the appellant to occupy it.
Issues in the judgment
#Judgment delivery date (2026) postdates the filings it records (submissions of 2025), suggesting a typographical error in the year.
Appellant's name nearly identical to the deceased's name in whose estate the 1st respondent sues.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Digo v Joseph Hongo Olweny (Sued as a legal representative of the estate of Moses Olweny Digo, Deceased) & 5 others", Case Analysis (2026). ELC Appeal No. E033 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5852/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.