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ELCAllowedKilgoris ELC Appeal arising from C.M Case No. E026/2023· [2025] KEELC 5622 (KLR)

Kuka v Seriani (Environment and Land Appeal E032 of 2024) [2025] KEELC 5622 (KLR)

Environment and Land Court
30 July 2025
MMM.N MWANYALE
1,780 words in judgment
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The bottom line

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Kenya's Environment and Land Court threw out a land trespass case's judgments because a magistrate ruled twice and used an unexamined survey report.

What this practically means

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Executive summary

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The Appellant, Fredrick Ole Kuka, appealed against a judgment delivered on 3rd October 2024 by Hon. C.W Waswa (SRM) in Kilgoris C.M Case No. E026/2023, a land dispute in which the Respondent is the registered owner of Transmara/Olomismis/566 and the Appellant of Transmara/Olomismis/568, the dispute concerning alleged trespass. The Appellant's core complaints were that the trial magistrate rendered two judgments over the same matter, having delivered a first judgment on 31st May 2024, and that he called for a Land Registrar and Surveyor's report suo moto after that first judgment without affording the parties an opportunity to inspect or cross-examine on it, contrary to the right to a fair hearing. The Appellant relied on authorities on functus officio including Telkom Kenya Limited v John Ochanda; the Respondent argued the first pronouncement was a preliminary judgment capable of being followed by a final judgment, relying on Michael Maki and Attorney General v Bala. The court framed three issues: whether the appeal was merited, the reliefs to issue, and costs. It held that the 31st May 2024 pronouncement was a decision on the merits, not directions, not a structural interdict as understood in Mitu-Bell, and not a preliminary judgment known to the Civil Procedure Act; there were therefore two judgments, an error. It further held that while Order 18 Rule 10 and Section 146(4) of the Evidence Act allow courts to recall witnesses, this is subject to cross-examination, which was denied. Allowing the appeal, the court set aside both judgments, remitted the matter for a fresh trial before the Chief Magistrate's Court Kilgoris before any judicial officer other than Hon. C.W Waswa, and awarded costs to the Appellant.

Key legal issues

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01

Whether the pronouncement of 31.05.2024 was a judgment, a preliminary judgment, directions or a structural interdict

Holding

It was a judgment on the merits; hence two judgments were rendered, which is erroneous.

Reasoning

The pronouncement was titled a judgment, reserved after hearing and submissions, and was therefore not mere directions. It did not indicate that it was interim in nature nor meet the requirements of a structural interdict, and the Civil Procedure Act makes no provision for preliminary judgments of this kind save for summary judgment in liquidated claims.

p. 4
02

Whether the trial court entered the arena of litigation by calling for the survey report without cross-examination

Holding

Though the court had power to recall witnesses, failure to accord parties cross-examination violated their right to a fair hearing.

Reasoning

Order 18 Rule 10 of the Civil Procedure Rules read with Section 146(4) of the Evidence Act permits courts to recall witnesses, but subject to cross-examination by the parties. The Land Registrar and Surveyor's report was not subjected to cross-examination, denying the parties the right to challenge the evidence.

p. 4

Legal principles established

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  • A first-instance court that has delivered a judgment on the merits becomes functus officio and cannot deliver a second judgment unless the first was expressly an interim order or a preliminary judgment in the sense recognised by the Civil Procedure Act.
  • Evidence called for by the court suo moto, such as a Land Registrar/Surveyor report, must be subjected to cross-examination by the parties under Order 18 Rule 10 of the Civil Procedure Rules and Section 146(4) of the Evidence Act.

Court orders

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  1. 1.The Appeal is allowed
  2. 2.The judgments dated 31.05.2024 and 03.10.2024 are set aside
  3. 3.The matter is remitted for a new trial under Section 78(1)(e) of the Civil Procedure Act before the Chief Magistrate's Court Kilgoris, to be heard by any Honourable Judicial Officer other than Hon. C.W Waswa
  4. 4.Costs are awarded to the Appellant

Authorities

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Legislation

  • Civil Procedure ActSection 2 (definition of preliminary decree); Section 78(1)(e)
  • Civil Procedure RulesOrder 21 Rule 4; Order 18 Rule 10
  • Evidence ActSection 146(4)
  • Lands Act2012
  • Land Registration Act

Cases cited (7)

  • Patrick Thoithi Kanywira Vs. Kenya Airports Authority
    Petition (Application) No. 7/2017
  • Telkom Kenya Limited Vs. John Ochanda
    (2014) eKLR
  • Raila Odinga Vs. IEBC and 3 Others
  • Michael Maki Vs. Paul K. Makut Masisai and Another
    (2010) KEHC 1038 KLR
  • Kipaipai Ole Kantai Vs. Leornard Terere Keriako
    Kilgoris ELC No. 24 of 2021
  • Attorney General Vs. Bala
    (Civil Appeal 223 of 2017) 2023 KECA 117
  • Mitu-Bell Welfare Society Vs. Kenya Airports Authority and 2 Others
    (Petition 3/2018 (2021)) KESC 34 KLR
On appeal from
Chief Magistrate's Court, Kilgoris
E026/2023
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure 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, "Kuka v Seriani (Environment and Land Appeal E032 of 2024) [2025] KEELC 5622 (KLR)", Case Analysis (2025). Kilgoris ELC Appeal arising from C.M Case No. E026/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5622/eng@2025-07-30

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