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ELCDismissedEnvironment and Land Court Appeal at Homa Bay (from Ndhiwa Principal Magistrates' ELC Case No. 16 of 2020)· [2025] KEELC 4692 (KLR)

Ouko v Opoko (Environment and Land Appeal E015 of 2023) [2025] KEELC 4692 (KLR)

Environment and Land Court
19 June 2025
NYNYAGAKA
3,261 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 in Homa Bay dismissed a landowner's appeal, confirming that his neighbour's boundary encroachment claim was filed within time despite his limitation defence.

What this practically means

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Executive summary

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The Respondent sued the Appellant in Ndhiwa PM ELC No. 16 of 2020 seeking, among other reliefs, a permanent injunction restraining the Appellant from entering land parcel L.R. No. Nyokal/Kanyikela/796, alleging encroachment. The parties consented to a visit and report by the Homa Bay County Registrar and Surveyor, which found the defendants had encroached on the whole of the plaintiff's parcel. The trial court, in a judgment delivered on 7th March 2023, found the plaintiff had proved his case. The Appellant appealed on grounds that the suit was time barred under Sections 7 and 4(2) of the Limitation of Actions Act, that he held overriding interests under Section 28 of the Land Registration Act through long occupation, and that the decision was against the weight of evidence. He also challenged reliance on the survey report without its maker. The court, applying the retrial principles in Gitobu Imanyara, re-evaluated the evidence, including the Appellant's own 2015 statement to the Land Registrar showing he was stopped from entering parcel 796. It found his claim of occupation since the 1970s false, held that the claim was not solely in trespass, and that time could only run from the 2015 boundary determination, with the fresh invasion occurring around 2018. The ground on adverse possession failed for lack of evidence and because it was not raised at trial. The appeal was dismissed in its entirety with costs to the Respondent.

Key legal issues

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01

Whether the suit was time barred

Holding

The suit was not time barred because the cause of action was not wholly founded in tort and the encroachment arose only after the 2015 boundary determination, with the fresh invasion in 2018

Reasoning

The court found the Appellant did not physically occupy the disputed portion at the 2015 Land Registrar's determination; his claim of residence since the 1970s was false. The claim included encroachment and injunction beyond trespass. Fresh entry occurred around 2018, so the 2020 suit was filed within two years of the invasion.

p. 5
02

Whether the survey report was properly admitted and considered

Holding

Yes; the report was considered and the defendants failed to show it was untruthful, and the court acknowledged the boundary dispute had already been determined pursuant to Section 18 of the Land Registration Act

Reasoning

The survey conclusively determined encroachment and found the Appellant had encroached on the whole of the Respondent's parcel. The defendants merely disputed the report without demonstrating any falsehood in it.

p. 6
03

Whether the Appellant proved 12 years' occupation giving overriding interests or adverse possession

Holding

No; there was insufficient evidence of occupation for 12 years and the issue was not raised at trial

Reasoning

The Appellant's own Land Registrar statement in 2015 showed he was stopped from entering parcel 796, contradicting a claim of long occupation. The claim of adverse possession or overriding interest under Section 28 of the Land Registration Act failed for want of evidence.

p. 6

Legal principles established

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  • A first appeal is by way of retrial; the appellate court must reconsider and evaluate the evidence while making allowances for not having seen or heard the witnesses
  • Under Section 18(2) of the Land Registration Act, a court shall not entertain boundary disputes over registered land unless the boundaries have been determined in accordance with that section
  • Time under section 4(2) of the Limitation of Actions Act for a trespass claim runs from accrual, and encroachment arising after boundary determination cannot found a limitation defence
  • A litigant alleging a suit is time barred must adduce evidence of when the right of the other party accrued

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Costs of the appeal are awarded to the Respondent
On appeal from
Ndhiwa Principal Magistrates' Environment and Land Court
16 of 2020
Jurisdiction invoked
First appeal from the magistrates' court to the Environment and Land Court

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, "Ouko v Opoko (Environment and Land Appeal E015 of 2023) [2025] KEELC 4692 (KLR)", Case Analysis (2025). Environment and Land Court Appeal at Homa Bay (from Ndhiwa Principal Magistrates' ELC Case No. 16 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4692/eng@2025-06-19

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