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Court of AppealDismissedNot stated in the judgment (Court of Appeal first appeal from ELC Case No. 390 of 2017)

Barta (Suing as the Legal Representative to the Estate of the Late Oloishuro ole Barta Kura) v Farah & another (Civil Appeal 48 of 2020) [2026] KECA 764 (KLR)

Court of Appeal of Kenya
24 April 2026
4,243 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that the Land Registrar's boundary findings are conclusive, and landowners must challenge titles with evidence, not allegations.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nakuru (Mativo, Gachoka and Okello, JJ.A) against the judgment of the Environment and Land Court (Kullow J.) of 28th February 2019, which dismissed the appellant's trespass claim over LR No. Transmara/Kerrinkani/530. The appellant, administratrix of the estate of the late registered owner of the parent parcel Transmara/Kerrinkani/9, contended that the respondents' title Transmara/Kerrinkani/8 was unlawfully created out of the parent parcel and was in fact reserved as a cattle dip, and that the respondents had trespassed onto the suit property. The respondents relied on adjudication and registration of parcel No. 8 in the name of Farah Award (deceased) and on reports of the Land Registrar and Surveyor, obtained at the appellant's own application, which found that the appellant had encroached onto parcel No. 8 by 33.95 Ha (83.9 acres). The Court of Appeal, exercising its power under Rule 31(1)(a) to re-appraise the evidence, discerned two issues: unlawful creation of title No. 8 and trespass. It held that the appellant adduced no evidence challenging the propriety of the respondents' title and that the parcel validly existed on Registry Map Sheet No. 144.4. The public-utility (cattle dip) contention was raised for the first time on appeal and was declined as an afterthought, submissions not being pleadings or evidence. On trespass, the Court held that boundaries must first be determined by the Land Registrar, whose uncontroverted site-visit report is conclusive expert evidence; the trial judge rightly admitted and relied on it. The appeal was dismissed with costs to the respondents, and the ELC judgment was confirmed.

Questions the Court framed

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

  1. 1.Whether the ELC erred by not addressing its mind on whether there was unlawful creation of title No. Transmara/Kerinkani/8 out of title No. Transmara/Kerinkani/9
  2. 2.Whether the ELC erred in finding that the respondents did not trespass on the suit property parcel No. Transmara/Kerinkani/530 being a division of the original title No. Transmara/Kerinkani/9
  3. 3.Whether the learned judge erred in admitting the report of the Land Registrar as evidence

Key legal issues

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01

Whether title No. Transmara/Kerinkani/8 was unlawfully created out of title No. Transmara/Kerinkani/9

Holding

There was no unlawful creation; parcel No. 8 existed and was registered in the name of Farah Award (deceased) and contained in Registry Map Sheet No. 144.4.

Reasoning

The appellant alleged the parcel was unprocedurally created from her late husband's parcel and converted from a public utility (cattle dip), but adduced no independent evidence to invalidate the respondents' title under section 98(1) of the Evidence Act and produced no authentic documents showing unconstitutional creation or public-utility reservation. Registration of parcel No. 8 dated back to 1977 following adjudication.

02

Whether the respondents trespassed onto the suit property

Holding

No trespass by the respondents; on the contrary, the appellant encroached onto the respondents' parcel No. Transmara/Kerrinkani/8 by 33.95 Ha (83.9 acres).

Reasoning

Trespass depends on ownership and boundaries, which had to be determined first. The Land Registrar and Surveyor, on the court's orders and at the appellant's own application, visited the site, found distinct boundary markings and uprooted beacons, and determined the appellant's encroachment. The report was admitted as evidence, was uncontroverted, and was not appealed against, so the trial court correctly relied on it.

p. 8
03

Whether the learned judge erred in admitting the Land Registrar's report as evidence

Holding

No error; the report was properly admitted, boundary determination being exclusively the realm of the Land Registrar.

Reasoning

The appellant herself applied for the Registrar to visit the ground and for the report to be admitted as evidence, and the trial court granted those prayers. The court reasoned that boundary determination is for the Land Registrar and courts are slow to interfere with such findings; the boundary had to be established before a trespass action could be entertained. The report was uncontroverted expert evidence created after a site visit attended by both parties.

p. 7
04

Whether the new issue of reservation of parcel No. 8 as a public utility (cattle dip) could be raised on appeal

Holding

The issue was not raised in the ELC and was declined as an afterthought.

Reasoning

Although Rule 107 of the Court of Appeal Rules, 2022 permits an appellate court to consider matters not before the trial court, the court held that raising the public-utility issue at appeal stage, when it should have been pleaded and specifically raised before the ELC, was an afterthought intended to steal a match. Submissions are not pleadings and cannot amount to evidence.

p. 6

Legal principles established

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  • The Land Registrar's powers to determine a boundary dispute are conclusive; an uncontroverted Registrar's report made after a site visit at which both parties were present carries significant evidential weight and is conclusive as to boundaries between registered parcels.
  • A court must first have the boundary between registered parcels determined in accordance with the statutory boundary-determination process before entertaining an action in trespass founded on the location of that boundary.
  • A party alleging that a registered title was unlawfully, fraudulently or unprocedurally created must adduce evidence to prove the impropriety; it is not sufficient merely to allege it.
  • Written submissions are not pleadings and cannot amount to evidence; an appellate court determines issues raised in the pleadings, and new issues raised for the first time on appeal may be declined.

Court orders

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  1. 1.Dismissal of the appeal with costs to the defendants
  2. 2.Confirmation of the judgment of the ELC dated 28th February, 2019

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
ELC Case No. 390 of 2017 (formerly Kisii ELC No. 286 of 2013)
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules, 2022, Rule 31(1)(a), the appeal having been lodged on 13th August, 2020

Relief refused

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The appellant's appeal against the ELC judgment (declarations in respect of LR No. Transmara/Kerrinkani/530 and findings of trespass)

No unlawful creation of title No. Transmara/Kerinkani/8 was proved, no evidence challenged the respondents' title, and it was the appellant who encroached on the respondents' land

p. 8

The appellant's new ground that parcel No. Transmara/Kerrinkani/8 was reserved as a public utility (cattle dip)

The issue was not raised or argued in the ELC and was being raised for the first time on appeal

p. 6

Costs

Appeal dismissed with costs to the defendants (respondents)

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.

Consequently, we find that this appeal has no merit and proceed to dismiss the same with costs to the defendants. The judgment of the ELC dated 28th February, 2019 is confirmed.
p. 8Final orders - dismissal and confirmation of the ELC judgment
The Land Registrar powers to determine a boundary dispute is conclusive. The Report filed by the Land Registrar is expert evidence and the same was not controverted.
p. 8Conclusiveness of the Land Registrar's boundary determination
The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section
p. 7Statutory bar on boundary actions (section 18(2), Land Act)
written submissions should and must not be used as pleadings neither can they amount to evidence
p. 7Status of written submissions on appeal
it is not suficient to dangle the instrument of title as proof of ownership.
Root of title under challenge (as urged from Munyu Maina v Hiram Gathiha Maina)
we are persuaded that there was no trespass by the respondents onto the suit property. It is the appellant who encroached onto the respondents’ parcel No. Transmara/Kerrinkani/8 by 33.95 Ha (83.9 acres).
p. 8Finding on trespass and encroachment

Issues in the judgment

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minor

The judgment states parcel No. Transmara/Kerinkani/8 'existed and was registered in the name of Farah Awadh (Deceased) in 1972', but elsewhere records that the land 'had been adjudicated to one Farah Award(deceased) as at 23rd September, 1976' and 'was registered in the name of the deceased on 16th June, 1977'.

minor

Ground (e) of the memorandum of appeal as reproduced refers to a Report of the District Land Register 'dated 26th April, 2026', which post-dates the hearing; the Registrar's report elsewhere in the judgment is dated 26th April, 2018.

minor

The hearing date is recorded as 23rd February, 2026 while the appellant's written submissions are dated 26th February, 2024, and the respondents' submissions dated 13th February, 2026 - the sequencing of dates in the record is internally inconsistent.

minor

The introduction describes the appellant's appeal as against a judgment in favour of the respondents, yet the memorandum of appeal reproduced speaks of the appellant proving her case against respondents said to have trespassed; no material contradiction in the holding, but the earlier description inverts the ELC's finding of encroachment by the appellant in the passage quoted from the trial judgment's opening summary.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Barta (Suing as the Legal Representative to the Estate of the Late Oloishuro ole Barta Kura) v Farah & another (Civil Appeal 48 of 2020) [2026] KECA 764 (KLR)", Case Analysis (2026). Not stated in the judgment (Court of Appeal first appeal from ELC Case No. 390 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/764/eng@2026-04-24

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