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ELCDismissedKilgoris CMEL Case No. E004/2022 (Appeal)· [2025] KEELC 3892 (KLR)

Kinampu & 2 others v Mukut (Environment and Land Appeal E027 of 2024) [2025] KEELC 3892 (KLR)

Environment and Land Court
15 May 2025
MMM.N. Mwanyale
1,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kilgoris confirmed you cannot win a trespass claim in Kenya when the real problem is an inaccurate land registry map that was never raised in your pleadings.

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 at Kilgoris against the judgment of Hon. W.C Waswa SRM delivered on 29th August 2024 in Kilgoris CMEL Case No. E004/2022. The Appellants, registered proprietors of Transmara/Oldanyati/128, alleged that the Respondent, owner of Transmara/Oldanyati/604, had trespassed on a 5.01 Ha portion of their land and sought a declaration of trespass, a permanent injunction, an eviction order, and setting aside of the trial judgment. They raised five grounds of appeal, chiefly that the trial magistrate failed to find trespass, ignored evidence that the parcels do not share a boundary, declined to order eviction, and directed the Land Registrar to resolve map/ground inconsistencies thereby constructively foreclosing further litigation, contrary to the sanctity of registered title. The Respondent relied on the Land Registrar's report showing ground occupation inconsistent with the map, contending there was no trespass but a map adjustment issue. The court identified undisputed facts: both parties' ownership, the parcels being over two kilometres apart, and the survey report's finding of occupation inconsistent with the map. Framing two issues (merit of the appeal and costs), the court applied Selle v Associated Motor Boat Co, found the disparity between the map and ground occupation pointed to a need to amend the RIM, but held that issue was unplead. Finding no fault in the trial judgment, the court dismissed the appeal with no orders as to costs.

Key legal issues

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01

Whether the Respondent trespassed on Transmara/Oldanyati/128

Holding

No trespass was established; the trial court correctly found a disparity between the map and ground occupation rather than trespass

Reasoning

Both parties are registered proprietors of parcels more than two kilometres apart. Witnesses agreed the parcels are not neighbouring, and the survey report showed occupation inconsistent with the map. The court held the proper remedy would be amendment of the RIM, but that issue was not pleaded and the trial court's finding of no trespass was sound.

p. 4
02

Whether the appeal should be allowed

Holding

The appeal lacked merit and was dismissed

Reasoning

Applying the Selle duty of re-evaluation, the court found the trial court's findings on undisputed facts (ownership of the two parcels, non-contiguity, and the survey report findings) were correct and saw no basis to interfere.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate the evidence before the trial court and arrive at its own independent judgment
  • Issues not pleaded cannot form part of the issues for determination

Court orders

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  1. 1.The appeal is dismissed with no orders as to costs.

Authorities

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Legislation

  • Civil Procedure ActSection 27(1)
  • Constitution of Kenya, 2010Article 40

Cases cited (3)

  • Selle and Another versus Associated Motor Boat Co. Ltd and Others
    (1908) E.A 123
  • Philip Ayaya Aluchio Vs. Crispinus Ngayo
    (2014) eKLR
  • Alex Waigera Mwaura Vs. Chania Power Co. and Another
On appeal from
Senior Resident Magistrate's Court, Kilgoris
Kilgoris CMEL Case No. E004/2022
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (appeal from Kilgoris CMEL Case No. E004/2022)

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, "Kinampu & 2 others v Mukut (Environment and Land Appeal E027 of 2024) [2025] KEELC 3892 (KLR)", Case Analysis (2025). Kilgoris CMEL Case No. E004/2022 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3892/eng@2025-05-15

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