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Court of AppealDismissedCivil Appeal (Court of Appeal, Nakuru)

Barmasai v Rono & 9 others (Civil Appeal E068 of 2023) [2025] KECA 1489 (KLR)

Court of Appeal
19 September 2025
6,005 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a landowner's bid to claim an access road over his neighbour's land, confirming the Registry Index Map decides boundary disputes in Kenya.

What this practically means

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Executive summary

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This was a first appeal against the judgment and decree of the Environment and Land Court at Eldoret in a long-running boundary and access dispute over land parcels Uasin Gishu/Elgeyo Border/260 and 261. The appellant claimed his family had used an access road through the respondents' land since the 1960s and that this road, shown in the 1963 Development Plan, was erroneously omitted from the Registry Index Map (RIM). The trial Judge found no access road existed at the disputed point 'A', held that the RIM is the final authority, dismissed both the appellant's suit and the respondents' counterclaim, but ordered the RIM amended to show access at the intersection of parcels 260, 261 and 242, with each party bearing its own costs. The Court of Appeal, in a unanimous judgment, framed two issues: whether an access road exists through parcel 261, and whether the trial Judge erred in ordering a RIM amendment after dismissing both claims. The Court affirmed that the RIM is the primary authoritative record of land boundaries and that a scheme plan cannot supersede it; the appellant failed to prove the existence of the road at point 'A' or its erroneous omission. The trial Judge's site-visit findings were supported by the evidence and attracted no interference. The Court rejected the appellant's attempt, raised for the first time on appeal, to found an easement on section 32 of the Limitation of Actions Act, since it was neither pleaded nor canvassed at trial. However, it upheld the RIM amendment order, holding that the unpleaded issue had been fully canvassed by all parties and left to the court, and that equity and justice merited the relief. The appeal was dismissed with costs to the 2nd to 8th respondents for both the appeal and the trial proceedings.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there exists an access road between the appellant's parcel of land number 260 and the 2nd to 8th respondents' land number 261
  2. 2.Whether the learned Judge erred by ordering the RIM to be amended despite having dismissed the appellant's suit and the 2nd to 8th respondents' counter-claim
  3. 3.Whether the appellant is entitled to the reliefs sought, including reliance on section 32 of the Limitation of Actions Act
  4. 4.Whether the appellant is entitled to costs

Key legal issues

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01

Whether an access road exists through the respondents' land at point 'A'

Holding

The appeal court affirmed the trial court's finding that no access road exists at point 'A'; the appellant failed to prove its existence or erroneous omission from the RIM, and the site visit confirmed an alternative 7-metre access

Reasoning

The Court noted that the RIM is the authoritative cadastral record and that a scheme plan or development plan cannot supersede it. The trial Judge, who had the advantage of a site visit, confirmed the absence of swampiness at the alternative access point. The Court, being a first appellate court bound to defer to findings supported by evidence, found no basis to interfere with those findings, especially where licensed surveyor reports and the County Surveyor supported them.

p. 8
02

Whether the trial court could order amendment of the RIM after dismissing both the suit and the counterclaim

Holding

Yes; the order flowed from an unpleaded issue that was fully canvassed by all parties and left to the court, and equity and justice merited the relief given the existence of an access road on the ground

Reasoning

Applying the Odd Jobs principle as reaffirmed in Ann Wairimu Wanjohi, the Court held that where an unpleaded issue is crucial, evidence and submissions have been led by both sides, and the matter was left to the court, the court may determine it. Both parties had urged the court to fix the access point, and the County Surveyor recommended the amendment. Refusing the order would have been a dereliction of duty.

p. 10
03

Whether the appellant acquired an easement under section 32 of the Limitation of Actions Act

Holding

No; the provision was not pleaded or argued at trial and cannot be raised on appeal

Reasoning

The Court reiterated that parties are bound by their pleadings, whose function is to alert the opponent to the case to be met and define the issues for trial. Material facts establishing the cause of action must be pleaded. Since section 32 was neither pleaded nor canvassed below, the trial court had no opportunity to address it, and the point is barred on appeal.

p. 9
04

Damages claims by both sides

Holding

The rejection of the appellant's special and general damages and of the 2nd to 8th respondents' trespass damages was proper

Reasoning

The trees the appellant claimed for were planted on the respondents' land, so the respondents could not be made to pay for them. Conversely, the respondents' trespass claim failed because they had allowed or countenanced the appellant's family's use of the disputed access for decades, negating any trespass.

p. 8

Legal principles established

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  • A scheme plan cannot supersede the RIM; the RIM is the primary and authoritative record of land boundaries, and inconsistencies are resolved in favour of the RIM
  • A statutory provision not pleaded or canvassed at trial cannot be raised for the first time on appeal; parties are bound by their pleadings
  • A court may validly determine an unpleaded issue where both parties led evidence and submissions on it and left it to the court to decide
  • On a first appeal, the appellate court interferes with findings of fact only where the trial Judge failed to take into account relevant considerations or took into account irrelevant ones

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant shall pay the 2nd to 8th respondents the costs of this appeal and the proceedings before the trial court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court, Eldoret
ELC No. 89 of 2019
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate framework for second superior court appeals (the judgment states 'This is a first appeal; therefore, it is by way of retrial')

Relief refused

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Declaration and reinstatement of the access road through parcel 261 at point 'A'

The appellant failed to prove that an access road exists at point 'A' or that it was erroneously omitted from the RIM; the scheme plan cannot supersede the RIM

p. 8

Reliance on section 32 of the Limitation of Actions Act (acquisition of easement by 20 years' user)

The provision was neither pleaded nor canvassed before the trial court and cannot be raised for the first time on appeal

p. 9

Special damages of Kshs.176,723/- and general damages of Kshs.500,000/-

The trees were planted on the 2nd to 8th respondents' land, which cannot be condemned to pay for what was planted on their land

p. 8

Costs

The appellant shall pay the 2nd to 8th respondents the costs of this appeal and the proceedings before the trial court.

Quotable passages

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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 RIM serves as the primary and authoritative record of land boundaries and parcels, and any inconsistencies between a scheme plan and the RIM are generally resolved in favor of the RIM.
p. 7Primacy of the Registry Index Map over scheme/development plans
Section 32 of the Limitation of Actions Act was not pleaded nor was it canvassed before the trial court. Therefore, the trial court did not have the benefit of addressing its mind to the said issue. It cannot be raised at this stage.
p. 9Parties bound by pleadings; no new statutory basis on appeal
It is settled law that a court may validly determine an unpleaded issue where evidence is led by the parties and from the course followed at trial it appears that the unpleaded issue has been left to the court to decide the matter.
p. 9Determination of unpleaded issues
Flowing from our findings on the issues discussed herein above, it is evidently clear that this appeal is devoid of merit and the only available order is to dismiss it, which hereby do. The appellant shall pay the 2nd to 8th respondents the costs of this appeal and the proceedings before the trial court.
p. 10Disposition and costs order

Issues in the judgment

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minor

The judgment is internally inconsistent as to the third parcel at the alternative access intersection: paragraph 8 records the trial court's order as the intersection of parcels 260, 261 and 242, while the quoted excerpt of the trial judgment at paragraph 32 refers to the intersection of parcels 260, 261 and 262

minor

The appellant's memorandum of appeal is recorded as relying on section 20 of the Limitation of Actions Act for easement acquisition, yet the judgment and submissions discuss section 32 as the operative provision, and the court states section 20 concerns trust property and has no relevance

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Barmasai v Rono & 9 others (Civil Appeal E068 of 2023) [2025] KECA 1489 (KLR)", Case Analysis (2025). Civil Appeal (Court of Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1489/eng@2025-09-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.