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ELCPartially AllowedEnvironment and Land Appeal E034 of 2023· [2025] KEELC 127 (KLR)

Okwach v Kili (Environment and Land Appeal E034 of 2023) [2025] KEELC 127 (KLR)

Environment and Land Court
23 January 2025
SOS. Okong'o
2,619 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisumu court revived a landowner's trespass suit, ruling judges—not land registrars—must first decide if a parcel was fraudulently created.

What this practically means

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Executive summary

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The Appellant sued the Respondent in the Chief Magistrate's Court at Kisumu (Kisumu CMC ELC No. E078 of 2022) seeking a declaration of absolute ownership of Kisumu/Kanyakwar "B"/951, a permanent injunction, vacant possession, mesne profits and general damages for trespass. She alleged that the Registry Index Map had been fraudulently amended to create Plot No. 2801, which encroached on nearly half of the suit property, and that the Respondent had entered and was developing the land claiming it as Plot No. 2891, a subdivision of Plot No. 2801. The Respondent denied trespass, asserting ownership of Plot No. 2891 and arguing that the dispute was a boundary dispute for the Land Registrar in the first instance under Section 18 of the Land Registration Act. On 7th November 2023 the lower court struck out the suit with costs for want of jurisdiction. On appeal, S. Okong'o J re-evaluated the evidence. He held that the Appellant's claim was over land and the alleged fraudulent creation of Plot No. 2801, not a mere boundary dispute; the lower court was obliged to determine whether Plot No. 2801 was lawfully created and whether its subdivision affected the suit property - matters beyond the Land Registrar's jurisdiction. The finding that the dispute was a boundary dispute was premature and erroneous. The appeal was allowed, the lower court's judgment was set aside in its entirety, costs paid by the Appellant were to be refunded, and the suit was remitted for hearing afresh before another Magistrate, with each party bearing its own costs of the appeal.

Key legal issues

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01

Whether the lower court's finding that the dispute was a boundary dispute was correct

Holding

The finding was premature and erroneous; the dispute concerned the alleged fraudulent creation of Plot No. 2801 and encroachment on the suit property, which the Land Registrar has no jurisdiction to determine

Reasoning

The Appellant's claim was that Plot No. 2801 was created fraudulently and illegally, tainting its subdivision into Plot Nos. 2890 and 2891, and that Plot No. 2891 was created on part of the suit property. The lower court had a duty to determine on the evidence whether Plot No. 2801 was lawfully created and whether its creation affected the suit property. Only if it found lawful creation could it treat the matter as a boundary dispute referable to the Land Registrar under Section 18 of the Land Registration Act.

p. 5
02

Approach on a first appeal

Holding

The first appellate court must re-evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses

Reasoning

Citing Kenya Ports Authority v Kuston (Kenya) Limited, the court restated that on a first appeal the court should reconsider the evidence, evaluate it itself and draw its own conclusions. It will not interfere with findings of fact unless they were not based on evidence, were based on a misapprehension of the evidence, or the court acted on wrong principles.

p. 3

Legal principles established

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  • A court must first determine the legality of the creation and subdivision of a parcel before characterising a dispute as a boundary dispute for the Land Registrar under Section 18 of the Land Registration Act

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the lower court delivered on 7th November 2023 is set aside in its entirety
  3. 3.The lower court costs if already paid to the Respondent shall be refunded forthwith to the Appellant
  4. 4.The lower court suit shall be heard afresh at the Chief Magistrate's Court at Kisumu before another Magistrate other than Hon. K.Cheruiyot SPM
  5. 5.Each party shall bear its costs of the Appeal
  6. 6.The Deputy Registrar of this court shall return the lower court file to the Chief Magistrate's Court at Kisumu together with a certified copy of this judgment

Authorities

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Legislation

  • Land Registration ActSection 18
  • Civil Procedure RulesOrder 21 Rule 4

Cases cited (4)

  • Kenya Ports Authority v. Kuston (Kenya) Limited
    [2009] 2EA 212
  • Peter v. Sunday Post Ltd.
    [1958] E.A 424
  • Makube v. Nyamuro
    [1983] KLR 403
  • Phoenix of E. A. Assurance Company Limited v. S.M. Thiga T/A Newspaper Service
    [2019] eKLR
On appeal from
Chief Magistrate's Court at Kisumu (Kisumu CMC ELC No. E078 of 2022)
E078 of 2022
Jurisdiction invoked
First appeal from the Chief Magistrate's Court under the Environment and Land Court Act / Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okwach v Kili (Environment and Land Appeal E034 of 2023) [2025] KEELC 127 (KLR)", Case Analysis (2025). Environment and Land Appeal E034 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/127/eng@2025-01-23

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