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ELCDismissedMolo CMC ELC Case No 33 of 2019 - Appeal· [2025] KEELC 415 (KLR)

Karanja v Gatimu (Environment and Land Appeal E030 of 2021) [2025] KEELC 415 (KLR)

Environment and Land Court
10 February 2025
1,851 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed an appeal after an unchallenged surveyor's report proved the landowner had built 1.2 metres onto her neighbour's plot.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nakuru against the judgment of Hon. E. G. Nderitu, Chief Magistrate, Molo, delivered on 7th December 2021 in Molo CMC ELC Case No 33 of 2019. The Appellant had sued for a permanent injunction over parcel Mau Summit/molo/Block 1/790 (Mutirithia); the Respondent counterclaimed for an injunction over parcel 789 and removal of structures allegedly erected on it. The trial court dismissed the Appellant's suit and allowed the counterclaim, finding the Appellant had encroached on the Respondent's parcel by 1.2 metres. On appeal, the Appellant argued that the surveyor's report was flawed because the Registry Index Map shows only approximate boundaries, that a boundary dispute should have gone to the Land Registrar under Section 18 of the Land Registration Act, and that the trial court disregarded her evidence and submissions. The court, applying its first appellate duty to re-evaluate the evidence, found the Appellant's own documents and Area Map proved plot 789 exists and that the District Surveyor's unchallenged report established the encroachment. It held the matter was not a boundary dispute and that the trial magistrate was within her mandate to adopt the surveyor's report. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the trial court erred in relying on the surveyor's report based on the Registry Index Map showing approximate boundaries

Holding

No error - titles themselves state 'Approximate Area', and the surveyor's report was unchallenged evidence the trial magistrate was entitled to adopt.

Reasoning

The court held that the approximate nature of the Registry Index Map does not vitiate a surveyor's report, since all titles carry the words 'Approximate Area'. The Appellant had an opportunity to produce an alternative survey report but did not; the District Surveyor's report therefore stood as unchallenged evidence which the trial magistrate was within her mandate to adopt.

p. 4
02

Whether the matter was a boundary dispute reserved for the Land Registrar under Section 18 of the Land Registration Act

Holding

No - it was not a boundary dispute; the Appellant sued for trespass/injunction and the dispute concerned encroachment established by the surveyor's report.

Reasoning

The court accepted the Section 18 bar on boundary disputes but held the case was not one: the Appellant framed her claim as trespass, the Respondent's as encroachment, and the surveyor's report established the encroachment. Had it truly been a boundary dispute, the Appellant ought not to have filed suit in the first place.

p. 4
03

Whether the Appellant proved her case and discredited the Respondent's counterclaim

Holding

No - the Appellant's own documents proved plot 789 exists and the unchallenged survey showed she encroached by 1.2 metres; the counterclaim was properly allowed.

Reasoning

The Appellant's own Area Map and documents corroborated that plot 789 exists between plots 790 and 788. Her evidence that the Respondent stopped her construction confirmed the encroachment. Failing to produce an alternative survey, she could not displace the District Surveyor's findings supporting the counterclaim.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and reanalyze the evidence on the record and determine whether the trial court's conclusions should stand.
  • Section 18 of the Land Registration Act bars courts from entertaining boundary disputes over registered land unless the boundaries have been determined under that section.
  • Trespass is entry without permission; encroachment is extending a structure or boundary onto another property.

Court orders

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  1. 1.The appeal is hereby dismissed with costs to the Respondent

Authorities

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Legislation

  • Land Registration ActSection 18
  • Land Registration ActSection 19
  • Land Registration ActSection 20
  • Survey ActCap. 299

Cases cited (4)

  • Wilkister Achieng’ Mamboleo vs Johnstone Oduory
    [2022] eKLR
  • Azzuri Limited vs Pink Properties Limited
    [2017] eKLR
  • Willis Ocholla vs Mary Ndege
    (2016) eKLR
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
On appeal from
Chief Magistrate's Court, Molo
Molo CMC ELC Case No 33 of 2019
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Molo CMC ELC Case No 33 of 2019)

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, "Karanja v Gatimu (Environment and Land Appeal E030 of 2021) [2025] KEELC 415 (KLR)", Case Analysis (2025). Molo CMC ELC Case No 33 of 2019 - Appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/415/eng@2025-02-10

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