Mungu'ra v Njagi (Civil Appeal E041 of 2021) [2023] KECA 1185 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a Land Registrar's summons fixing disputed boundaries is a boundary dispute, and ordered Kilifi's Registrar to fix the contested boundary.
What this practically means
#Executive summary
#Key legal issues
#Whether the dispute before the Land Registrar, Kilifi was a boundary dispute under Sections 18(1) and 19(1) of the Land Registration Act
It was a boundary dispute; the Registrar's notice of 22nd March 2019 expressly recorded an application under sections 18(3), 19(1) and section 21(2) of the repealed Registered Land Act to determine the disputed boundary, and the ELC Judge erred in failing to consider that notice
The notice dated 22nd March 2019 summoning the parties was part of the record before the ELC and expressly invoked section 18(3) and section 19(1) of the Land Registration Act and section 21(2) of the Registered Land Act (repealed) to determine a disputed boundary. The Judge, in concluding there was no boundary dispute, made no reference to or consideration of the contents of that notice. Had he done so, he would have concluded, as the Court did, that what was referred to the Registrar was a boundary dispute. His failure to consider relevant matters was a point of law warranting interference on second appeal.
The scope of a second appeal to the Court of Appeal
Confined to matters of law, with the recognised exceptions and the gloss that failure to re-evaluate evidence resulting in a wrong conclusion is a point of law
Relying on Stanley N. Muriithi & another v Bernard Munene Ithiga and the passage from Kenya Breweries Limited v Godfrey Odoyo adopted therein, the Court restated that on second appeal it resists delving into matters of fact, unless the courts below considered matters they should not have, or failed to consider matters they should have, or the decision is perverse; and that failure to re-evaluate evidence leading to a wrong conclusion is itself a point of law.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law, but failure by the first appellate court to re-evaluate evidence leading to a wrong conclusion is a point of law
- A first appellate court that fails to consider relevant material on record before reaching its conclusion may be interfered with on second appeal
- Where a statutory notice invoking boundary-determination provisions summons parties to fix a disputed boundary, the dispute before the Land Registrar is a boundary dispute
Court orders
#- 1.Appeal allowed
- 2.Judgment and order of the ELC dated February 19, 2021 set aside
- 3.Substituted therefor an order allowing the appellant's appeal against the decision of the Land Registrar given on May 3, 2019
- 4.Boundaries between Land Parcel Number Gede/Mijomboni/1583 and Gede/Mijomboni/1582 to be reviewed and fixed by the Land Registrar, Kilifi as provided by law
- 5.Appellant to have costs of the appeal and of the proceedings before the ELC
- On appeal from
- Environment and Land Court at Malindi
- Civil Appeal No 7 of 2019
- Jurisdiction invoked
- Second appeal to the Court of Appeal confined to matters of law under Section 72(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Laikong alias Boi Josto alais Boiyo Jarmin & 7 others v Republic (Criminal Appeal 09 of 2020) [2025] KECA 1902 (KLR)[2025] KECA 1902 (KLR)7 Nov 2025applied
Cite this brief
#Cite this brief
Caselaw, "Mungu'ra v Njagi (Civil Appeal E041 of 2021) [2023] KECA 1185 (KLR)", Case Analysis (2023). Second Appeal from Malindi ELC Civil Appeal No 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1185/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.