Koske v Langat (Environment and Land Appeal E005 of 2021) [2025] KEELC 5708 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Appellant was denied an opportunity to be heard
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
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.
Whether the trial court erred in finding the access road exists
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
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.
Whether reliance on a survey report lacking total acreages of parcels 1761 and 3548 was erroneous
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
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.
Whether the finding that the road serves parcels 1761, 3548, 1082 and 1083 was erroneous
The ground fails; the finding was based on the unchallenged surveyor's report
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.
Whether misdescription of the road occasioned a miscarriage of justice
The misdescription was immaterial; both parties understood the road in dispute and the finding rested on the survey report, not the description
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.
Whether the trial court erred in failing to find an existing road serving parcels 1082 and 1083
The ground is deemed abandoned as the Appellant made no submissions on it
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs
- 2.It is so ordered
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.