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ELCDismissedKericho ELC Appeal (Memorandum of Appeal dated 8th November, 2021)· [2025] KEELC 5708 (KLR)

Koske v Langat (Environment and Land Appeal E005 of 2021) [2025] KEELC 5708 (KLR)

Environment and Land Court
31 July 2025
5,779 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kericho dismissed a landowner's appeal, confirming that you cannot raise new arguments on appeal that you never raised in the trial court.

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 Kericho against the judgment of Hon. S.K Ngetich (Principal Magistrate) in Kericho CM ELC Case No. 304 of 2014 delivered on 8th October 2021. The Respondent had sued Samuel Rono seeking re-opening of an access road and a permanent injunction against its closure; the Appellant, joined as 1st Interested Party and owner of Kericho/Kabianga/3548, appealed the orders reopening the road to 9 metres and restraining closure. The Appellant raised seven grounds, principally that the trial court wrongly found encroachment on his parcel based on an incomplete survey, wrongly found the road served four parcels, failed to address misdescription of the road, denied him a fair hearing, and failed to find an alternative existing road. The court framed seven issues. It found the fair hearing ground untrue, noting the Appellant's counsel had three witnesses but declined to proceed and never renewed the request; issues not canvassed below could not be raised on appeal (West Kenya Sugar v Okendo). The existence of the road, the scope of the survey, and which parcels it serves were all matters not raised before the trial court or premised on an unchallenged surveyor's report, and were therefore precluded as new issues (Republic v Tom Mbaluto). The ground on the alternative road was deemed abandoned for want of submissions (Khetshi Dharamshi; Kamonde v Mulonzya). The misdescription of the road was held immaterial as parties understood the dispute and the finding rested on the survey. All grounds failed and the appeal was dismissed with costs to the Respondent, the trial court's judgment being affirmed. L. A. Omollo, J delivered the judgment virtually at Kericho on 31st July 2025.

Key legal issues

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01

Whether the Appellant was denied an opportunity to be heard

Holding

The ground fails; the Appellant was given opportunity but did not pursue giving evidence, and the matter of his evidence was not raised again after the defence case closed

Reasoning

The record showed that on 6th August 2020 counsel for the Appellant said he had three witnesses but chose not to proceed in the absence of the Defendant. After the Defendant's case was closed, the Appellant never renewed the request. Relying on West Kenya Sugar v Okendo, issues not canvassed before the trial court cannot be raised on appeal. The claim of denial of fair hearing was found untrue.

p. 8
02

Whether the trial court erred in finding the access road exists

Holding

The ground fails; the issue of existence of the road was not an issue before the trial court and cannot be raised as a new issue on appeal

Reasoning

The Appellant's own Statement of Defence did not dispute the road's existence but only that it was not a public road or on the Registry Index Map. The trial magistrate correctly observed existence was uncontested. Citing Republic v Tribunal of Inquiry into Tom Mbaluto, the appellate court is restricted to issues canvassed below; the Appellant is precluded from raising this new issue.

p. 9
03

Whether reliance on a survey report lacking total acreages of parcels 1761 and 3548 was erroneous

Holding

The ground fails; the survey's scope was set by the trial court's order and no comprehensive survey was sought; the report was not challenged before the trial court

Reasoning

The trial court's order of 31st May 2018 limited the District Surveyor to confirming the status of the disputed road. An order for a comprehensive survey of both parcels was never sought, making this another new issue raised on appeal, which parties are precluded from doing per the Tom Mbaluto decision. The Appellant never challenged the surveyor's findings below.

p. 11
04

Whether the finding that the road serves parcels 1761, 3548, 1082 and 1083 was erroneous

Holding

The ground fails; the finding was based on the unchallenged surveyor's report

Reasoning

The trial magistrate's finding mirrored the surveyor's report dated 4th March 2019 prepared by Janet Kandie and checked by District Surveyor Isaack Kibet, which stated the access road acts as a service road for parcels 1761, 3548, 1082 and 1083. The report was never challenged by the Appellant in the trial court.

p. 11
05

Whether misdescription of the road occasioned a miscarriage of justice

Holding

The misdescription was immaterial; both parties understood the road in dispute and the finding rested on the survey report, not the description

Reasoning

The road described as Taprotin-Chemumbe dip-Kabianga main road was the same road in dispute and neither party disputed the description. The survey identified the road on the ground. The trial magistrate's finding was informed by the surveyor's report, so the erroneous pleading description could not have caused a miscarriage of justice.

p. 12
06

Whether the trial court erred in failing to find an existing road serving parcels 1082 and 1083

Holding

The ground is deemed abandoned as the Appellant made no submissions on it

Reasoning

Neither party addressed this ground in submissions. Relying on Khetshi Dharamshi & Company Ltd v Obuyumbi and Kamonde v Mulonzya, grounds not supported by submissions are deemed abandoned.

p. 12

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the trial court's conclusions should stand
  • Parties are precluded from raising new issues on appeal which were not canvassed before and decided by the trial court
  • Grounds of appeal not supported by submissions are deemed abandoned
  • Costs follow the event under Section 27 of the Civil Procedure Act
  • Matters not canvassed by the parties and not pronounced upon by the trial court are not available for consideration by the appellate court

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Civil Procedure Act (Cap. 21)Section 27

Cases cited (15)

  • Chemei Investments Limited v The Attorney General & Others
    [2006] eKLR
  • Peter Kimani Njuguna v Peter Ngugi Kimani
    [2019] eKLR
  • Dunlop Pneumatic Tyre Co Ltd vs Selfridge & Co. Ltd
    [1915] AC 847
  • Galaxy Paints Co. Ltd v Falcon Guards Ltd
    [2000] eKLR
  • Dakianga Distributors (K) Ltd v Kenya Seed Company Limited
    [2015] eKLR
  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • David Sironga Ole Tukai v Francis Arap Muge & 2 Others
    [2014] eKLR
  • Koinange & 13 Others vs Koinange
    [1986] KLR 23
  • Gitobu Imanyara & 2 others Vs Attorney General
    [2016] eKLR
  • Abok James Odera T/A A.J Odera & Associates Vs John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • West Kenya Sugar Company Limited v Okendo
    (Civil Appeal E056 of 2023) [2024] KEHC 2844 (KLR) (8 March 2024)
  • Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & others Ex-Parte Tom Mbaluto
    [2018] eKLR
  • Francis Karioki Muruatetu & another vs Republic
    [2016] eKLR
  • Khetshi Dharamshi & Company Ltd v Obuyumbi
    (Appeal 10 of 2023) [2023] KEELRC 2664 (KLR) (30 October 2023)
  • Kamonde v Mulonzya & another (As Administrators of the Estate of Paul Vinzi - Deceased)
    (Civil Case E213 of 2022) [2024] KEHC 5648 (KLR) (9 May 2024)
On appeal from
Chief Magistrate's Court, Kericho
Kericho CM ELC Case No. 304 of 2014
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decision in a land matter

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, "Koske v Langat (Environment and Land Appeal E005 of 2021) [2025] KEELC 5708 (KLR)", Case Analysis (2025). Kericho ELC Appeal (Memorandum of Appeal dated 8th November, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5708/eng@2025-07-31

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