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ELCDismissedEnvironment and Land Appeal E006 of 2025· [2025] KEELC 5810 (KLR)

Attorney General & 2 others v Nzungula (Environment and Land Appeal E006 of 2025) (Environment and Land) [2025] KEELC 5810 (KLR)

Environment and Land Court
30 July 2025
EWE. K. Wabwoto
3,991 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Voi dismissed an appeal over disputed land, confirming the trial court properly heard an encroachment claim that opponents argued was a boundary matter.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Voi against a judgment of the Subordinate Court delivered on 27th February 2025, in which the Respondent (plaintiff below) succeeded in a claim that the Appellants had encroached on Land Parcel No. Taita Taveta/Cholla Njukini/5092 with a Chief's camp. The Appellants raised six grounds, principally that the suit was a boundary dispute triable only by the Land Registrar under Section 18(2) of the Land Registration Act, and that the suit offended Section 30 of the Land Adjudication Act for want of the Land Adjudication Officer's written consent, the land allegedly still being subject to adjudication appeals. The court, per E. K. Wabwoto J, restated the scope of a first appeal under Section 78 of the Civil Procedure Act, citing Selle v Associated Motor Boat Co Ltd and related authorities, and framed three issues: jurisdiction of the trial court, whether the Magistrate considered the Appellants' evidence, and whether the decision was erroneous. On jurisdiction, the court held that the issue could be entertained notwithstanding any abandonment by the parties, but found on the pleadings and evidence that the land was not under adjudication and no pending appeal required consent; the cause of action was on encroachment and root of title, so the trial court had jurisdiction. On the evidence, the court found the trial judgment expressly analyzed the surveyor DW2's testimony. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the trial court had jurisdiction given Section 30 of the Land Adjudication Act and Section 18(2) of the Land Registration Act

Holding

The trial court had jurisdiction; the land was not under adjudication and no pending appeal required the Land Adjudication Officer's consent

Reasoning

The court found from the pleadings and evidence that the Respondent's cause of action was on encroachment and root of title, not a boundary dispute. The Respondent adduced evidence that there was no pending adjudication appeal, so consent under Section 30 was unnecessary. The suit was therefore properly before the trial court.

p. 7
02

Whether the trial Magistrate failed to consider the Appellants' evidence, particularly the surveyor's testimony

Holding

The Magistrate considered all the evidence, including DW2's testimony and the survey report

Reasoning

The court perused the trial judgment and found it expressly analyzed the evidence of DW2 Korir Justice, including his reliance on mapsheets, cross-examination admissions, and the private surveyor's findings, before concluding the Appellants' evidence was considered.

p. 8

Legal principles established

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  • The question of jurisdiction must be determined by the court once raised, whether or not a party abandons it, and may be raised by the court suo motu
  • A first appellate court may re-evaluate the evidence but must defer to trial court findings unless perverse or informed by extraneous factors

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear own costs of the appeal

Authorities

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Legislation

  • Land Adjudication Act, Cap. 284Section 30(1)
  • Land Adjudication Act, Cap. 284Section 29(3)
  • Land Registration Act, 2012Section 18(2)
  • Land Registration Act, 2012Section 19
  • Civil Procedure Act, Chapter 21Section 78
  • Constitution of KenyaArticle 50

Cases cited (9)

  • Wanjala Barasa & Another vs Land Registrar, Bungoma & Another
    (2017) eKLR
  • Secretary, County Public Service Board & Another vs Hulbhai Gedi Abdille
    (2017) KECA 643 (KLR)
  • Jacob Wekesa Bokoko Balong vs Kincho Olokio Adeya & Another
    (2020) KLR
  • Selle & Another vs Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Abok James Odera T/A A.J Odera & Associates versus John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Mwana Sokoni versus Kenya Business Limited
    (1985) KLR 931
  • Peters versus Sunday Post Limited
    (1958) EA 424
  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
  • Kenya Ports Authority vs Modern Holding (EA) Limited
    (2018) eKLR
On appeal from
Subordinate Court
Jurisdiction invoked
Section 78 of the Civil Procedure Act, Chapter 21, Laws of Kenya (first appeal)

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, "Attorney General & 2 others v Nzungula (Environment and Land Appeal E006 of 2025)  (Environment and Land) [2025] KEELC 5810 (KLR)", Case Analysis (2025). Environment and Land Appeal E006 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5810/eng@2025-07-30

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