Langat (Suing as Personal Representative of the Estate of Kiplangat Arap Rop - Deceased) & another v Birir (Sued as the Personal Representative of the Estate of Kibirir A. Maina alias Kongole Kibirir - Deceased) (Environment and Land Appeal E009 of 2023) [2025] KEELC 666 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that land boundary disputes already fixed by surveyors belong in court, and arguments skipped at trial cannot resurface on appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the limitation defence could be raised for the first time on appeal
The Appellants were precluded from raising the statutory time-bar issue on appeal because it was neither raised nor determined before the trial court.
The judgment, defence and witness statements reveal the limitation issue was never raised before the trial court, which did not address it. Citing Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto, the court held that appellate courts are restricted to issues canvassed and decided at trial except in exceptional cases; a party cannot be taken by surprise on appeal.
Whether the trial court had jurisdiction despite allegedly unfixed boundaries
The trial court had jurisdiction because the dispute concerned encroachment onto land with a previously established boundary, which the Land Registrar and Surveyor re-established; Section 18(2) of the Land Registration Act applies only where boundaries have not been fixed.
The court held that the question of jurisdiction can be raised even for the first time on appeal, then examined the pleadings. The plaint was about encroachment of about 5 acres. The surveyor's report showed the boundary had been tampered with and was re-established, meaning it had been fixed before the trial court's order; the dispute was therefore one of encroachment, within the court's jurisdiction.
Whether the trial court erred in adopting the surveyor's report
The surveyor's report and evidence, which were uncontroverted, properly informed the trial court's decision; the Appellants failed to lay a basis for interference with the findings.
The County Surveyor's report found parcel 1465 occupied 15.81 acres against a registered 14.01 acres, while parcel 1464 held 10.535 acres against a registered 13.66 acres, showing a 2.47-acre encroachment. The 1st Appellant was present during the exercise and raised no objection. Though the Appellants' father had bought 14 acres, the occupation exceeded the registered area, justifying the trespass finding.
Legal principles established
#- The issue of jurisdiction may be raised at any stage of proceedings, even for the first time on appeal.
- Under Section 18(2) of the Land Registration Act, a court may not entertain boundary disputes where boundaries have not been determined; but where boundaries have been fixed, the court has jurisdiction over disputes of encroachment.
- A new issue not raised before the trial court cannot ordinarily be raised on appeal, except in exceptional cases.
- Costs follow the event under Section 27 of the Civil Procedure Act.
Court orders
#- 1.The appeal is dismissed with costs to the Respondent.
- On appeal from
- Chief Magistrate's Court, Kericho (CMELC)
- Kericho CMELC No. E030 of 2021
- Jurisdiction invoked
- First appeal to the Environment and Land Court from the magistrates' court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Langat (Suing as Personal Representative of the Estate of Kiplangat Arap Rop - Deceased) & another v Birir (Sued as the Personal Representative of the Estate of Kibirir A. Maina alias Kongole Kibirir - Deceased) (Environment and Land Appeal E009 of 2023) [2025] KEELC 666 (KLR)", Case Analysis (2025). Kericho ELC Appeal (from Kericho CMELC No. E030 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/666/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.