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ELCDismissedAppeal dated 28th November 2023 (Memorandum of Appeal filed 4th December 2023)· [2025] KEELC 208 (KLR)

Kapoya & 15 others v Kasio & another (Environment and Land Appeal E027 of 2023) [2025] KEELC 208 (KLR)

Environment and Land Court
30 January 2025
1,249 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to strike out a land boundary appeal, ruling that a disputed beacon must be heard on its merits rather than dismissed on procedure.

What this practically means

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Executive summary

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The 1st Respondent raised a preliminary objection dated 3rd June 2024 against the Appellants' appeal from a ruling of the District Land Registrar at Kajiado (T.H. Haithar) delivered on 13th July 2023 concerning a boundary dispute on Kajiado/Kitengela/23(4057-4060). The 1st Respondent argued that the appeal offended Section 75 of the Civil Procedure Act and Order 43 Rules 1 & 2 of the Civil Procedure Rules, that it was filed out of time contrary to Regulation 40(6) of the Land Registration (General) Regulations without leave, and that it was an abuse of process warranting dismissal with costs. The Appellants countered by invoking Article 159(2)(d) of the Constitution and Section 3A of the Civil Procedure Act, submitting that the appeal was really about the boundary determination process and that the Registrar's ruling was res judicata given the 2011 decision of Hon. Kaberia Nkunja SRM in L.D.T Suit No. 2 of 2008 and a Surveyor's Report of 12th July 2011. The court framed two issues: whether the preliminary objection was merited and costs. Restating the test for preliminary objections from Mukisa Biscuits and the Supreme Court's KNCHR decision, the court observed from the 2011 and 2023 survey reports that an issue remained with one beacon on the disputed boundary, and that it was unclear what occasioned the second determination twelve years later. Applying Article 159(2)(d), the court held the Appellants should be heard on their dissatisfaction with the Registrar's decision, dismissed the preliminary objection, and ordered costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the Appeal, allegedly filed out of time under Regulation 40(6) of the Land Registration (General) Regulations and offending Order 43 Rules 1 & 2 of the Civil Procedure Rules, should be struck out

Holding

The Preliminary Objection was not merited; the Appellants ought to be given a chance to ventilate their dissatisfaction with the Land Registrar's decision.

Reasoning

The court noted the dispute concerns one beacon on the disputed boundary that still requires resolution, and that it was unclear what led to a second boundary determination twelve years after the 2011 court decision. Applying Article 159(2)(d), the court preferred substantive justice over striking out the appeal on procedural grounds, and directed that all parties ventilate the beacon issue once and for all.

p. 3
02

Whether the 1st Respondent's Preliminary Objection was properly founded on a pure point of law

Holding

The court recited the settled test that a preliminary objection must be on a pure point of law, discernible from undisputed facts on the pleadings.

Reasoning

Relying on the locus classicus Mukisa Biscuits case and the Supreme Court's decision in the KNCHR case, the court restated that a preliminary objection may only be raised on a pure question of law where facts are deemed agreed as presented in the pleadings, and that such an objection must lead to but one conclusion on undisputed facts.

p. 2

Legal principles established

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  • A preliminary objection must rest on a pure point of law determinable on undisputed facts presented in the pleadings.
  • Courts should not dwell on procedural technicalities but should render substantive justice under Article 159(2)(d) of the Constitution.

Court orders

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  1. 1.The Preliminary Objection dated 3rd June 2024 is dismissed for lack of merit
  2. 2.Costs of the Preliminary Objection to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSection 75
  • Civil Procedure ActSection 27
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 43 Rules 1 & 2
  • Land Registration (General) RegulationsRegulation 40(6)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (5)

  • Two thirds Investment Ltd & 9 others vs Katana Said Kalama & 3 others
    [2018] eKLR
  • Kivanga Estates Ltd vs National Bank of Kneya Ltd
    [2017] eKLR
  • Mukisa Biscuits Manufacturing Company Ltd v West End Distributors
    [1969] EA 696
  • Kenya National Commission on Human Rights Vs Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
  • Joseph L. Kasio -vs Lentei Kaponyi & 15 Others, L.D.T Suit No. 2 of 2008
On appeal from
District Land Registrar, Kajiado
null
Jurisdiction invoked
Appeal from a decision of the District Land Registrar under Regulation 40(6) of the Land Registration (General) Regulations; Article 159(2)(d) of the Constitution invoked on substantive justice

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, "Kapoya & 15 others v Kasio & another (Environment and Land Appeal E027 of 2023) [2025] KEELC 208 (KLR)", Case Analysis (2025). Appeal dated 28th November 2023 (Memorandum of Appeal filed 4th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/208/eng@2025-01-30

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