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ELCDismissedKilungu MELC Appeal arising from Kilungu MELC Case No. 3 of 2019 (Memorandum of Appeal dated 9th September 2021)· [2025] KEELC 3616 (KLR)

Kyunguti v Kavoo (Environment and Land Appeal E008 of 2021) [2025] KEELC 3616 (KLR)

Environment and Land Court
30 April 2025
TMT. Murigi
3,437 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's appeal failed because he never challenged unclear land descriptions during the trial — only after losing.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court against the judgment of Hon. C. A. Mayamba (PM) delivered on 20th August 2021 in Kilungu MELC Case No. 3 of 2019. In the underlying suit the Appellant, as plaintiff, sought a declaration of ownership by purchase of 4.094 hectares (10 acres) carved out of L.R No. 1757/6, eviction, demolition and a permanent injunction. The Respondent, as defendant, counterclaimed for a declaration that he was the lawful owner by purchase of a 5-acre parcel adjacent to the Appellant's land, a permanent injunction, mesne profits, damages and costs. The trial magistrate declared the Appellant owner of 10 acres subject to the interests of two purchasers, declared the Respondent the lawful owner by purchase of the adjacent 5-acre 'disputed land', restrained the Appellant from that parcel, awarded the Respondent costs, and stayed the operative orders for 90 days. The Appellant raised seven grounds, condensed into two issues: whether the magistrate erred in describing and awarding non-existent 'disputed land' to the Respondent, and whether he properly analysed and evaluated the evidence. Relying on Selle v Associated Motor Boat Co and Kenya Ports Authority v Kuston, the court re-evaluated the evidence, found the Respondent's purchase of the 5 acres through the Appellant's father corroborated by five defence witnesses and a subdivision sketch map, held the pleadings objection to be an afterthought, and dismissed the appeal with each party bearing its own costs.

Key legal issues

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01

Whether the trial magistrate erred in describing and awarding the 'disputed land' to the Respondent

Holding

The trial magistrate did not err; the Appellant understood and expressly responded to the Respondent's pleadings, so the description objection was an afterthought

Reasoning

The Respondent had pleaded ownership of the disputed 5-acre parcel adjacent to the Appellant's land, and the Appellant in his Reply denied that pleading and put the Respondent to strict proof, demonstrating understanding of the pleadings. No evidence showed the Appellant requested further particulars under Order 2 Rule 1(2) of the Civil Procedure Rules. Raising the description objection at appeal stage was therefore an afterthought and the description of the suit property as 'disputed land' was proper.

p. 7
02

Whether the trial magistrate properly analyzed and evaluated the evidence

Holding

He did; the evidence established that the Respondent purchased the disputed 5 acres adjacent to the Appellant's 10 acres

Reasoning

The Respondent testified he purchased the 5 acres in 1989 through the Appellant's father, who died before handing over receipts, and this was corroborated by DW2, DW3, DW4 and DW5. DW5, who coordinated the subdivision, produced a sketch map showing the 20-acre block shared among three purchasers: 10 acres to the Appellant and 5 acres each to the Respondent and DW4. PW2's contrary claim of a gift was unsupported. No extraneous matters were considered.

p. 7

Legal principles established

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  • A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making allowance for the fact that it neither saw nor heard the witnesses
  • An objection to the description of suit property in pleadings that was not pursued by way of a request for further information under Order 2 Rule 1(2) cannot be raised for the first time on appeal

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 1(2)

Cases cited (5)

  • Selle & Another vs Associated Motor Boat Company and Others
    (1968) 1 EA 123
  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2009] 2 EA 212
  • Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank
    [2004] eKLR
  • Pinnacle Projects Limited v Presbyterian Church of East Africa, Ngong Parish & another
    [2019] eKLR
  • Alice Njoki Mugo v KCB Bank Kenya Limited & another
    [2020] eKLR
On appeal from
Principal Magistrate's Court, Kilungu
Kilungu MELC Case No. 3 of 2019
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Principal Magistrate's Court (Environment and Land Court appeal; Memorandum of Appeal dated 9th September 2021)

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, "Kyunguti v Kavoo (Environment and Land Appeal E008 of 2021) [2025] KEELC 3616 (KLR)", Case Analysis (2025). Kilungu MELC Appeal arising from Kilungu MELC Case No. 3 of 2019 (Memorandum of Appeal dated 9th September 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3616/eng@2025-04-30

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