Awuor v Opiyo (Environment and Land Appeal E007 of 2025) [2026] KEELC 680 (KLR) (6 February 2026) (Judgment)

Page 1 of 29 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT HOMABAY ENVIRONMENT AND LAND COURT LAND APPEAL NO. E007 OF 2025 VITALIS OMOLO AWUOR…..……….……………………… APPELLANT VERSUS ELIAKIM OOKO OPIYO….. …………………………….RESPONDENT (Being an appeal against the judgment of Hon. S.O. Ongeri (SPM) delivered on 28th January 2025 at Oyugis in Oyugis SPMELCC 74 of 2019) JUDGEMENT Brief Facts 1.The suit in the trial court was instituted through a Plaint dated 6th February 2025. In it the Appellant sought the following orders; a)A declaration that the Plaintiff is entitled to exclusive and unimpeded right of possession and occupation of the Land Parcel No. West Kasipul/Konuonga/862 being the prima facie owner and registered proprietor. b)A declaration that the Defendant is a trespasser on the suit land and should pay the special damages of Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 2 of 29 Kshs. 600,000/= per calendar year together with interest thereon @12% p.a from the date of judgment until payment in full. c) A permanent injunction restraining the defendant, whether by himself or his servants or agents or otherwise howsoever, from continuing to cultivate and possess the suit property or in any way interfering with the plaintiffs use and enjoyment of the plaintiffs said Land Parcel No. West Kasipul/Konuonga/862 or any part thereof. d)General damages. e)Costs of this suit together with interest thereon at Court rate. f) Any such other or further relief as this Honourable Court may deem appropriate. 2.Leading to the reliefs sought, the Appellant, then the plaintiff, pleaded that he was the sole registered proprietor of the parcel of land known as LR No. West Kasipul/Konuonga/862 which is a sub division of West Kasipul/Konuonga/649 which was formerly registered in the name of David Abiro Opiyo, a step brother to the Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 3 of 29 Respondent, then Defendant. Further, that West Kasipul/Konuonga/862 was purchased by the appellants’ mother, Rusalina Juma from David Abira Opiyo in 1976 which land was duly transferred and registered in the name of the Appellant in the year 2017. 3.The appellant pleaded that he commenced the transfer process after the death of his mother in 1983 but he could not complete the same as he travelled overseas for studies. On 21st April 2017, the respondent filed a Succession Cause to succeed the estate of David Abira Opiyo and was issued with a grant of letters of administration on 15th June 2017, consequently being registered as the sole proprietor of West Kasipul/Konuonga/862. 4.The appellant pleaded that in 2018, the respondent unlawfully and wrongfully entered into the portion of parcel no. West Kasipul/Konuonga/649, which had been sold to Rusalina Juma while making a false claim to the estate of David Abira Opiyo. He urged that he has incurred losses of Kshs. 600,000/- as a result of the continued trespass. He prayed the court allow the claim as prayed. Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 4 of 29 5.The defendant filed a statement of defence dated 12th November 2019, stating that the appellant colluded with a surveyor to change the positioning of West Kasipul/Konuonga/862 on the map whereas the plaintiff ended up claiming the said parcel as having been in the defendant’s piece of land West Kasipul/Konuonga/945 which has been sub divided further. Additionally, that West Kasipul/Konuonga/1207, his property is actually at the position where the appellant claimed his land was. 6.The respondent stated that he had requested the assistance of the appellant while carrying out succession, visiting the parcel with a surveyor. Later on, in the absence of the appellant, the respondent visited the parcel with the land surveyor, purporting to rectify an error on the map leading to a stalemate where the parcel was then put in the defendants’ parcel of land known as West Kasipul/Konuonga/1207 without his consent. 7.He denied all the allegations in the plaint and prayed that the suit be dismissed. 8.PW1 was Vitalis Omollo Awuor who testified that his mother, Rusalina Juma, who died in 1983 bought land which Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 5 of 29 she bequeathed to him before her death. She died before the land was transferred to her. He stated that David Abira had sub - divided the land into 2. His parcel was No. 649. And the witnesses was No. 862. He further stated that he was in possession of the land, seasonally. That in 2018, the defendant interfered with his land by entering and tilling it without his consent. He stated that the defendant still uses the land to date. He prayed that he be awarded damages for trespass. 9.During cross examination, he stated that his mother bought the land and wrote his name as the buyer. He further stated that he had used the land for 35 years and that the defendant transferred the land to him after the death of the seller. 10.The court then directed that the County surveyor attend court and explain the two (2) maps which were in possession of the parties in relation to the actual position of the land parcel No. West Kasipul/Konuonga/862. Original parcel being No. 649. 11.PW2 was Peter Odego Joram who adopted his statement as his evidence in chief. He stated that he knew the land in Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 6 of 29 question and that the late Rusalina used to cultivate it. Further, that the son was now the owner. Further, his homestead and the suit land were separated by a river. During December of the year 2018 he saw Eliakim Ooko Opiyo tilling the suit land. In 2019 he planted maize on the seed parcel of land and continued to do so to date. Further he was aware that from 1976 Rusalina Juma Awuor, the deceased, bought the suit land from the late David Abira Opiyo and tilled it until sometime 1983 when upon her demise he knew Vitalis Omollo Awuor, the eldest son of Rusalina took over the tilling of the land until December 2018 when Eliakim Ooko Opiyo invaded it without his permission or consent and cultivated thereon despite fact that the transfer process had been completed before the invasion. Mr Ooko had on several occasions said he intended to reclaim the land. 12.During cross examination, he stated that he used to see Rusalina, his sister in law, cultivating the land. That she bought it from David Abira and Vitalis Omollo was assisted by a step brother to the seller one Eliakim Ooko. That Vitalis Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 7 of 29 said he corrected a mistake on the land and an error was committed. 13.PW3 was Michael Onany. He stated that he was a village and owned a piece of land in the same village. He stated that he knew Rusalina Juma Awuor who bought land from David Abira in 1976. That she was using the land from 1976 to her time of death. His statement was exactly of the same content as that one of Peter Odego Joram regarding how after the death of Rusalina Awuor, her son, the Plaintiff, took over the tilling of the land until 2018 when the defendant invaded it and started cultivating it to date. He added that the land belonged to return the plaintiff who had been dealing it since 1983. 14.PW4 (indicated as PW5 in the proceedings), was Harison Ogenda who adopted his statement as evidence in chief. He’s a state man Was exactly of the same content as that of for Peter and Michael and therefore the court need not rehash it However, he added that the parcel in issue was part of parcel number 649 which belonged to one David Abira. The plaintiff’s mother bought it for a sum of Kenya Shillings 3000/=. It was then subdivided into two portions Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 8 of 29 one which resulted in the current parcel number 862 which measured approximately 0.8 hectares He added that the amount should be reinstated to the plaintiff. 15.During cross examination, he stated that Rusalina bought land from David Abira. 16.PW6 was Thomas Nyakado, a government surveyor working at Siaya County. He produced the map report and stated that he visited the suit land on 16/11/20. He gathered evidence from parties who were present and had the map and the correction was that the land was appearing in different section. The defendant claimed that the land was on top of the hill but there was a school there. The different position was a result of misorientation of the surveyor doing the subdivision. He produced the survey report as an exhibit. 17.During cross examination, he stated that the complainant had a map showing West Kasipul/Konuonga/862 to be in two different sections. That both the plaintiff and defendant were fighting over the same physical place and he didn’t know who caused the mistake. That the surveyor might have visited 862 in the wrong place and it could have been Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 9 of 29 misorientation. He stated that the map showing 862 is on the hill is wrong. 18.He stated that the plaintiff got the land from the succession and both of them were involved in the process. That the respondent transferred the land. He reiterated that there was a mistake by the surveyor and that the mistake needs to be corrected to remove the 862 from the school. 19.DW1 was Eliakim Ooko Opiyo who adopted his witness statement as evidence in chief. During cross examination he stated that David Abira was his brother and the owner of 649. There was land registered in the name of Opiyo who gave them each a piece of land. I was given 1433 but he did not give me the whole piece of land. It was different from 649. That Land parcel No.1207 came from 649 and 1207 was from 945. Further that 649 was the parcel land. He stated that he would only get his land as a beneficiary. When he died, he did succession but he had not completed transfer to Rusalina the mother of the plaintiff. The witness had to complete the contract and transferred the land to Vitalis at Kosele. Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 10 of 29 20.The witness stated that he showed Vitalis the land physically. He did not see the agreement but Vitalis told him and he transferred the land to Vitalis. He stated that there was no error by surveyor and that he did subdivision in 2018 when both of them were already dead. He denied manipulating the surveyor and maintained that David Abira left his land 1207 to him. 21.The defence closed his case and the parties filed submissions. Upon considering the pleadings, testimonies and submissions, the trial court dismissed the suit with costs to the respondent. 22.Being aggrieved with the decision of the trial court, the appellant instituted the present appeal vide a Memorandum of Appeal dated 6th February 2025 premised on the following grounds; 1)The learned trial magistrate misdirected himself on several matters of law and fact. 2)The learned trial magistrate erred in the law of procedure and practice in failing to appreciate that the most fundamental purpose of a hearing or a trial is to determine the truth and do justice to the Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 11 of 29 disputing parties and not to determine who is the winner. 3)The learned trial magistrate erred in law of evidence practice and procedure in refusing to admit the report filed and produced by the County Surveyor who had been ordered by the court with the consent of both parties to visit the area in dispute and file a report on his findings and who was merely called by the plaintiff to produce his report. 4)The learned trial magistrate erred in law of evidence procedure and practice in deciding the case against the weight of evidence, in that: a)he held that the County Surveyor was summoned, did his work on the instructions of the plaintiff. b)he failed to note that the defendant who was an administrator of the estate David Abira Opiyo, the registered proprietor of Land Parcel No. W. Kasipul/Konuonga/649 stated that he divided the land of the deceased and transferred a portion thereof known as Land Parcel No. West Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 12 of 29 Kasipul/Konuonga/862 measuring 0.8 of a hectare to the plaintiff. c) he failed to appreciate that the defendant having admitted that the transferred land to the plaintiff there was no need to produce mutation records if a surveyor had used his expertise to identify the land. 5)The learned trial magistrate erred in law of procedure in failing to exercise his discretion to ensure that since both parties accepted that the only issue in the case was the location of the suit Land Parcel No. West Kasipul/Konuonga/862 and he doubted the findings of the County Surveyor, The Land Registrar and another or other Surveyors are ordered to carry out the task of determining the location of the suit land and file a comparative report and the truth and just decision is reached. 6)The learned trial magistrate erred in law and fact in that having known that there are two conflicting maps arising due to an error in the lands and survey office, he failed to make orders and Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 13 of 29 decisions that can help the error and conflict to be resolved. 23.The parties prosecuted the appeal vide written submissions.a Appellants’ submissions 24. On grounds 1,3 and 5, Counsel for the Appellant submitted that the learned magistrate acknowledged that the rectification of the Register in accordance with Section 79 (1) of The Land Registration Act would have been necessary. He however disowned the report of the surveyor, PW6 who pointed out that there was an error done by the survey department without the involvement of the parties. In fact, the surveyor visited the disputed parcels of land pursuant to an order of the trial court. 25. He submitted that Section 2 of The Land Registration Act defines the term “Surveyor “to mean a surveyor as defined in the Survey Act. Section 2 of The Survey Act (cap 299)defines the term “Surveyor” as meaning "a Government Surveyor or a Licensed surveyor. The report of an expert like a surveyor or a Doctor can only be contracted or discredited by findings of an expert of similar or higher qualification. In Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 14 of 29 any event having acknowledged that the only issue in the case was the location of the land or where the land was situated on the ground, the same became a boundary or a survey issue and the proceedings should have been stayed and the exact boundary and site would have been established. 26. Counsel cited Section 18(2) of The Land Registration Act and urged that the court consequently failed to exercise his discretion to settle the dispute between the parties. It was not disputed at all that the appellant was entitled to a piece of land which his mother purchased from David Abira. The only issue related to the place where the suit land was situated. The Surveyor’s report produced by PW.6 showed where the suit land was situated and the respondent pointed that the land of the appellant was situated in the middle of a school compound, which was an impossibility. The respondent did not call a surveyor to file another report that discredited the findings of PW6. Therefore, by discrediting the evidence of a Government Surveyor the court has not settled the dispute or helped to find the place where the land is situate. Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 15 of 29 27. On grounds and 6, counsel urged that the purpose of conducting a hearing in a court of law is to have the disputed issues of fact or law resolved. The court deviated from the pleaded facts wherein the issue to be determined was the location of the land the appellant purchased. There was no dispute over the fact that the appellants mother purchase a portion of David Abira’s land. Further, that it is the respondent who confirmed that the appellant’s mother purchased the parcel measuring 0.8 of a hectare from his deceased brother. The respondent stated that he transferred Land Parcel No. West Kasipul/Konuonga/862 to the appellant in performance of his duty in accordance with Section 83 (d) of The Law of Succession Act. The subdivision of the land of the deceased was actually done by the respondent and therefore by the production of the mutations forms as evidence as suggested by the trial magistrate would not have shown the locus in quo of the suit land. 28. Counsel urged that in the Surveyor’s Report we learned that one Rusalina Juma purchased a portion measuring 2 acres (0.8) of a hectare from Land Parcel No. W. Kasipul/Konuonga/649 in 1976 and cultivated the same until Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 16 of 29 her death in 1983. It is further established that Kanga Omuga Primary School in which the respondent alleges to be the place where the suit land is situated was established long ago and David Abira was not one of the persons who contributed land on which the school was built. Consequently, David Abira could not have sold school land to Rusalina Juma. 29. Counsel urged that even if the trial court chose not to believe the evidence adduced by the surveyor, the court should have directed or ordered for a fresh survey to be done in the presence of the Land Registrar, a Government Surveyor with the assistance of independent private Surveyor or Surveyors. 30. Counsel reiterated that since the issue involved is the location of the suit land, a new trial may not achieve the required results. On further consideration the purpose will be more properly served if the court grants prayer (b) and have the land properly surveyed as prayed therein. He cited Order 42 rule 32 of The Civil Procedure Rules on the powers of the appellate court in this regard. Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 17 of 29 31. On ground 4 of the appeal, counsel submitted that the Advocate for the respondent did not insist that the land registrar should accompany the Government Surveyor in the work of identifying the suit land. He highlighted the findings of the trial magistrate, urging that he did not point out that PW6 was the Government Surveyor sent by the court. Additionally, that the Magistrate did not state why he thinks the report of the surveyor is not adequate. Having acknowledged that Land Parcel No. W. Kasipul/Konuonga/862 measuring 0.8 of a hectare actually existed and that it belonged to the appellant, the court by failing to locate its whereabout or to make orders that could lead to establishing its whereabout was in itself a total failure to do justice to the case and to the two disputing parties. 32. He prayed the court allow the appeal as prayed. Respondents’ submissions 33. Counsel laid out the background of the suit and proceeded to submit on the appeal. He urged that the trial court did not err in its findings that the court rightfully dismissed the Plaintiff’s case. He reiterated his submissions before the trial court and urged that the Appellant himself admitted to Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 18 of 29 visiting the suit parcel alone to correct an error that was only known to him. This was after the Respondent had successfully processed the paperwork to get the land in his name. The Appellant maliciously and solely tampered with the maps and displaced the Respondent’s parcel of land from the map. Further, that if at all there was an error then he should have gone back to the Respondent who helped him process the title but he confidently handled the alleged correction solely and then sued the same person who helped him get the title deed. 34. Counsel urged that the court directed the Sub County Surveyor Rachuonyo North, South and East to visit the suit property and not the County Surveyor. In his report the Sub County Surveyor confirmed that there exists two maps from his office showing two different positions of the suit property. The surveyor explained how the parcel of land number WEST KASIPUL/KONUONGA/862 was displaced but did not explain where the parcel number WEST KASIPUL/KONUONGA/1207 is supposed to be. The surveyor did not explain how there could exist two maps from the Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 19 of 29 same office showing two contradicting information and why the court should adopt one map and disown the other.a 35. Counsel urged that the surveyor recorded that he relied on the information which he was given by the villagers. A Survey office is an office of documents and it was pertinent upon the Sub County Surveyor to interrogate the documents in their offices including the mutations forms that were used to sub divide the original parcel of land number WEST KASIPUL/KONUONGA/649 to the most current titles as well as the resultant maps to identify the errors or omissions if any. Unfortunately, the said report is so wanting as it does not really give any reasonable findings. 36. He cited Section 89 (1) of the Evidence Act and urged that expert witness evidence ought not be admitted in all cases blindly without interrogation the said expertise because most expert witnesses are driven by where their bread is buttered better and not necessarily the truth. 37. Counsel urged that the surveyor’s reports bore no expertise but it was a paperwork based on theories and speculations and it fits the description of Lord Woolf. He additionally stated that a party is bound by its pleadings and Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 20 of 29 as the Appellant had prayed for eviction and injunction order to be issued against the Respondent, there was no order for a resurvey or otherwise therefore the court was not bound to grant an order which had not been sought and it cannot be blamed for failure to do so. Analysis and Determination 38. This being an appeal, I must state the duty of the appellate court. In Williamson Diamonds Ltd and another v Brown [1970] EA 1, the court held that: “The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.” 39.Further, in PIL Kenya Limited v Oppong [2009] KLR 442, it was held that: “It is the duty…of a first appellate court to analyse and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 21 of 29 and their demeanour and giving allowance for that”. 40.The issue that arises for determination is; Whether the trial court erred in dismissing the Appellants’ Suit 41.The appellants claim was premised on the allegation that the suit land no. 862 was purchased by his mother, Rusalina Juma, from one David Opiyo in the year 1976 and was a sub division of parcel no. 649. From the evidence on record, the title was transferred to him in the year 2017 on 15th June when a title was issued in his name. the respondent then entered into the land in 2018 and began cultivating it. On his part, the respondent claimed that the Appellant misled the surveyor to have parcel no. 862 indicated in the position of parcel 1207. 42.Essentially, both parties claimed the same parcel of land. The evidence is clear that the parcel no. 862 was a sub division out of parcel no. 649 in the year 1982 with the mother title being closed and giving rise to 861 and 862. The defendant confirmed that the purchase took place and the only contention was that the surveyor drew a map interchanging the position of 862 and 1207. Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 22 of 29 43.From the survey report dated 27th November 2020 which was filed in court, the surveyor conducted an investigation on the history of the land and a survey as well. He confirmed that parcel no. 649 was the mother title and that the finding of 1985 that 862 was in a school compound was erroneous, attributed to a mistake by the surveyor. He attached a sketch and attributed the new position to a resurvey to correct the position. 44.I have considered the evidence on record and it is clear that the appellant’s mother was in occupation of the suit land and resided on it from the year 1976 until her death, after which the appellant began succession proceedings but was unable to complete them. The property then remained the property of the estate of his mother. The respondent had not disputed this fact and the dispute, according to him, was primarily based on the location, an issue which the survey determined. 45.Section 7 of the Limitation of Actions Act provides as follows; An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 23 of 29 if it first accrued to some person through whom he claims, to that person. 46.Further, Section 13 of the act states A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this Act referred to as adverse possession), and, where under section 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land." 47.I reiterate that the Respondent never contested the proprietorship of the suit parcel and he even acknowledged that the same had been sold. Therefore, even though he was not outrightly claiming recovery of land, the recovery same was time barred and any claims to title had been extinguished in favour of the appellant. 48.Having found that the map was erroneous as per the land survey, the trial court’s next action should have been to Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 24 of 29 order that the map be corrected to reflect the situation on the ground. In this regard, I find that the trial magistrate erred in failing to do so. The reason is that the land Surveyor being an expert witness, guided the court by the evidence he gave on that issue. The trial magistrate erred when he failed to consider his findings. 49.In Stephen Wang'ondu vs. The Ark Limited [2016] eKLR the court held as follows: Firstly, expert evidence does not “trump all other evidence.” It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision. Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 25 of 29 evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence. Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred. Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones. 50. I have deeply considered the reasoning of the trial magistrate on the surveyor’s findings. I am of the humble view that the trial magistrate, having acknowledged the findings of the surveyor, and that there was an error regarding ground occupation regarding the parcels of land in issue, and in the Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 26 of 29 absence of any better expert evidence to the contrary, the trial magistrate committed an error in principle when he decided the point as he did. Whether the trial court should have awarded special damages 51.The appellant sought an award for special damages of Kshs. 600,000/- per calendar year. It was computed by estimating the maize yield that he would have harvested had he been in possession of the land. Special damages constitute a sum of money or loss a party actually incurs as a result of the adverse party’s actions. Moreover, special damages must be specifically proved. 52.It is trite law that special damages must be specifically pleaded and proved. Looking at the record of the court, the appellant never produced any evidence that he had actually been in the business of farming and achieved such income from the same. In Hebron Oroche Gisebe & 2 others – Versus - Joseph Ombura Gisebe & Another (2022) eKLR the Court stated at paragraph 41 thus:- “...41.Lastly with regards to general damages, it is trite law that trespass is actionable per se and Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 27 of 29 unlike special damages which must be specifically pleaded and strictly proved, general damages for trespass are usually awarded once trespass is proved. 53.In the case of David Bagine v Martin Bundi [1997] eKLR, the Court of Appeal stated as follows: - “It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v City Council of Nairobi [1982-88] IKAR 681 at page 684: "...special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177 thus: “Plaintiffs must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 28 of 29 saying, 'this is what I have lost, I ask you to give me these damages.' They have to prove it" 54.The Appellant failed to demonstrate that he was entitled to the special damages sought as they were specific to the harvesting and selling of maize which he did not plead the particulars of nor establish that before the alleged trespass. In any event, supposing he did not carry out the farming of the maize during that period, even if he was on the land, why would he be entitled to compensation? Such sums do not arise from discretion or conjecture. The appellant did not prove that he could earn the said sums from cultivation of maize on the suit land. 55.The upshot of the foregoing is that the appeal succeeds in the following terms; i) The decision of the trial court is hereby set aside and substituted with a declaration that the Appellant is entitled to exclusive and unimpeded right of possession and occupation of the land parcel no. West Kasipul/Konuonga 862 being the owner and registered proprietor. Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026 Page 29 of 29 ii) A permanent injunction is hereby issued restraining the respondent whether by himself or his servants or his agents or otherwise howsoever from continuing to cultivate and possess the suit property or on any way interfering with the plaintiffs’ use and enjoyment of land parcel no. West Kasipul/Konuonga 862. iii) The County Land Surveyor is hereby directed to visit the suit parcel, conduct a survey and correct the error on the map as to the position of the suit parcel, at the cost of the successful party. iv) The respondent shall pay costs of the appeal and the suit in the trial court. 56. Orders accordingly. Judgment dated, signed and delivered virtually via the Teams Platform this 6th day of February 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of, Ms. Oyala Advocate for GS Okoth for the Appellant Ms. Kisaka Advocate for the Respondent Homa Bay ELCLA E007 of 2025-JUDGEMENT D.O.D 6.2.2026