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ELCPartially AllowedKilgoris Environment and Land Court Appeal (from Kilgoris SPM No. 16 of 2020)· [2025] KEELC 4578 (KLR)

Kimeker v Keriako (Environment and Land Appeal E007 of 2023) [2025] KEELC 4578 (KLR)

Environment and Land Court of Kenya
19 June 2025
1,843 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that land boundaries fixed by elders without official gazettement cannot be enforced, and sent the boundary dispute back for a fresh survey based on official boundaries.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. M.I.G Moranga SPM in Kilgoris SPM No. 16 of 2020, delivered on 17th November 2023, in a boundary dispute between adjoining parcels Transmara/Enaenyieny/5X6 (Appellant, within Enaenyieny Adjudication Section) and Transmara/Isampin/1X7 (Respondent, within Isampin Group Ranch). The trial court had upheld a cypress-tree boundary fixed by elders and adopted the Land Registrar's report. The Appellant advanced ten grounds contending, among others, that elders had no power to alter adjudication boundaries and that the Registrar's report conflicted with the declaration notices. The court framed four issues, including the significance of the judgment and addendum of 18th October 2023 in Kipaipai Ole Kantai v Leonard Terere Keriako, which found an overlap between the two sections and confirmed the gazetted boundaries as valid. Relying on Section 44 of the Evidence Act, the court held that the Kipaipai decision applied to this appeal. It found that while the trial court rightly adopted the Land Registrar's report, the report was erroneous because it was based on elders' boundary alterations that were never gazetted and could not be enforced. The appeal was allowed, the suit remitted to the trial court for a fresh Registrar's report based on the gazetted boundaries and a determination of the alleged encroachment, with costs of the appeal to abide the outcome of the re-trial.

Key legal issues

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01

Relevance of the Kipaipai Ole Kantai judgment and its addendum

Holding

The judgment and addendum of 18th October 2023 are relevant to all disputes in the two sections including this appeal, as they settled the overlap between Enaenyieny Group Ranch Section and Isampin Adjudication Section

Reasoning

Section 44 of the Evidence Act renders a final judgment of a competent court admissible on legal character or title. The addendum settled issues of the overlap between the two sections, with Isampin titles overlapped onto Enaenyieny. Since this dispute concerns the same sections, the court agreed there is an overlap and that the judgment applies to the appeal, even though the addendum predates the impugned judgment and was not brought to the trial court's attention.

p. 4
02

Whether the appeal is merited

Holding

The appeal is merited; the trial court correctly adopted the Land Registrar's report but the report itself was erroneous because it was based on elders' un-gazetted alterations of boundaries

Reasoning

The trial magistrate did not err in adopting the Land Registrar's report as required by law, but the report erred by adjudging boundaries based on alterations made by elders, which alterations were not sanctioned by way of degazettement of the previous boundaries. Those previous boundaries were adjudged valid in the Kipaipai case. Consequently the appeal succeeds on that footing.

p. 4
03

Appropriate orders

Holding

The suit is remitted to the trial court for a fresh Registrar's report based on gazetted boundaries and determination of the alleged encroachment

Reasoning

Rather than determining the boundary itself, the first appellate court found it appropriate to remit the matter so that a new Registrar's report grounded on the gazetted declaration boundaries could be prepared, and the trial court could then determine whether encroachment occurred as alleged by the Appellant.

p. 5

Legal principles established

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  • A final judgment of a competent court declaring boundaries between adjudication sections is relevant and applicable to all disputes emerging within those same sections
  • Alterations of adjudication section boundaries by elders that were not gazetted cannot be enforced

Court orders

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  1. 1.The appeal is allowed
  2. 2.The suit is remitted to the trial court to reconsider a new Registrar's report based on the gazetted boundaries between the Adjudication Section and the Group Ranch Section
  3. 3.The trial court to consider whether there is encroachment as alleged by the Appellant
  4. 4.Costs of the Appeal to abide by the outcome of the re-trial

Authorities

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Legislation

  • Land Registration ActSections 18 and 19(1)
  • Evidence ActSection 44

Cases cited (5)

  • Selle v Associated Motor Boat Company
    (1968) EA 123
  • Kipaipai Ole Kantai v Leonard Terere Keriako and 3 Others (ELC Case No. 24/2021)
    Judgment dated 14th November 2022; Addendum dated 18th October 2023
  • Lucas Otieno Masaye v Lucia Olewe Kidi
    (2022) eKLR
  • Judith Achieng Omondo v June Nyaingo Hossei and Another; Francis Macharia (third party)
  • Wilfred Omwansa and 5 Others v Joyce Bonareri Mogaka and Another
    (2021) eKLR
On appeal from
Senior Principal Magistrate's Court at Kilgoris
SPM No. 16 of 2020
Jurisdiction invoked
First appellate jurisdiction over a decision of the Senior Principal Magistrate's Court (land boundary dispute under the Land Registration Act)

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, "Kimeker v Keriako (Environment and Land Appeal E007 of 2023) [2025] KEELC 4578 (KLR)", Case Analysis (2025). Kilgoris Environment and Land Court Appeal (from Kilgoris SPM No. 16 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4578/eng@2025-06-19

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