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ELCDismissedMemorandum of Appeal dated 30th July, 2024 (ELC appeal, Kisumu)· [2025] KEELC 4910 (KLR)

Pete v Kidiga (Environment and Land Appeal E057 of 2024) [2025] KEELC 4910 (KLR)

Environment and Land Court
30 June 2025
EAE. Asati
2,505 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu dismissed a landowner's appeal, upholding the Land Registrar's finding that he had encroached on his neighbour's land.

What this practically means

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Executive summary

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The Appellant appealed to the Environment and Land Court at Kisumu against a determination by the District Land Registrar, Nicholas Obiero, dated 20th June 2024, in a boundary dispute over parcels Kisumu/Nyalunya/3405, 7235, 7237, 7238 and 3070. The Registrar had found that the Appellant had encroached onto the Respondent's parcels, fenced and was constructing there, and directed him to stop construction and remove the structures and fences, failing which the Respondent could seek eviction and demolition orders from the court. The Appellant raised four grounds: that the Registrar failed to conduct an independent inquiry or hear witnesses; that he improperly used the Preliminary Index Diagram as primary evidence; that he breached fair administrative action requirements; and that he lacked jurisdiction since the matter was a land claim, not a boundary dispute. The Respondent objected that the appeal was filed out of time, that no Record of Appeal was filed, and that the decision-maker was not joined. The court framed four issues: timeliness and competency, jurisdiction, merit, and costs. It held the Record of Appeal existed, and that since the Respondent produced no evidence of notification of the decision, time under Regulation 40(4) ran from when the Appellant became aware of the decision, so the appeal was filed in time and jurisdiction was properly vested under Article 162(2)(b) and section 13 of the ELC Act. On the merits, the court found the Registrar heard both parties, relied on their evidence, ground features, maps and the Surveyor's report, and that the substantive finding was encroachment by the Appellant. The appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the appeal was filed out of time

Holding

The appeal was filed within time, as notification of the Registrar's decision was not proved and time runs from notification

Reasoning

Regulation 40(4) allows an aggrieved party thirty days from the date of notification to appeal. The proceedings did not show the parties were informed of the decision on 20th June 2024. Under section 109 of the Evidence Act, the party asserting notification (the Respondent) had to prove it and did not. Time therefore ran from when the Appellant became aware of the decision.

p. 5
02

Whether the court had jurisdiction

Holding

Jurisdiction vested in the ELC under Article 162(2)(b) and section 13 of the Environment and Land Court Act; the out-of-time objection fell away

Reasoning

The Respondent argued the appeal, filed out of time, was a nullity defeating jurisdiction. Since the court found the appeal was filed within time from the date of notification, the jurisdictional objection did not arise.

p. 5
03

Whether the Land Registrar's decision was procedurally flawed

Holding

The grievances were not proved; the Registrar heard both parties, considered evidence of the parties, boundary features, maps and the Surveyor's report

Reasoning

The proceedings showed both parties were heard and no witnesses were denied an audience. The Registrar relied on the parties' evidence, ground features and maps, corroborated by the Surveyor's report. The substantive finding was encroachment by the Appellant onto the Respondent's parcels, and the appeal against that finding failed.

p. 5

Legal principles established

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  • The timelines in Regulation 40(6) run from notification of the Registrar's decision, and the party asserting notification bears the burden of proving it under section 109 of the Evidence Act
  • A first appellate court must reconsider and re-evaluate the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal lacks merit and is dismissed
  2. 2.Costs to the Respondent
On appeal from
District Land Registrar, Kisumu
Boundary dispute over Kisumu/Nyalunya/3405, 7235, 7237, 7238 and 3070
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and section 13 of the Environment and Land Court Act; appeal under Regulation 40(6) of the Land Registration (General) Regulations, 2017

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, "Pete v Kidiga (Environment and Land Appeal E057 of 2024) [2025] KEELC 4910 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 30th July, 2024 (ELC appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4910/eng@2025-06-30

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