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ELCAllowedSiakago PM ELC Case No. E070 of 2022 (Appeal)· [2025] KEELC 5878 (KLR)

Kathumbi v Nyaga & another (Environment and Land Appeal E043 of 2024) [2025] KEELC 5878 (KLR)

Environment and Land Court
18 June 2025
KBK. Bor
1,043 words in judgment
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The bottom line

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Kenya's Embu Environment and Land Court cancelled a boundary survey that used wrong land sizes, ordering a fresh boundary determination using official records.

What this practically means

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Executive summary

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This first appeal to the Environment and Land Court at Embu challenged a ruling by Hon R. Njoki Kahara (Principal Magistrate) in Siakago PM ELC Case No. E070 of 2022, dismissing the appellant's application to review orders of 31/1/2024 adopting a Regional Surveyor's report recommending re-affixation of the boundaries of Mbeere/Kirima/1 and Mbeere/Kirima/705. The appellant, registered proprietor of Mbeere/Kirima/705, contended the surveyor used wrong registered acreages: 4.0 Ha instead of 3.46 Ha for Mbeere/Kirima/1, 2.80 Ha instead of 2.81 Ha for Mbeere/Kirima/705, and 0.46 Ha instead of 0.44 Ha for Mbeere/Kirima/1507, with the result that the 1st respondent would receive more land than registered in her name. The court framed two issues: whether the survey report was based on inaccurate land sizes, and whether the trial court erred in refusing to set aside its orders. Comparing the report with official searches, the court held the surveyor relied on incorrect registered acreages - a clear factual error - and that the trial court's wholesale adoption of the report without addressing the discrepancy amounted to an error apparent on the face of the record under Order 45 Rule 1 of the Civil Procedure Rules. The appeal succeeded; the ruling of 4/9/2024 and the orders of 31/1/2024 were set aside, the application for review was allowed, and the matter was remitted for a fresh boundary determination using official acreages, with each party bearing its own costs of the appeal.

Key legal issues

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01

Whether erroneous registered acreages in a survey report constituted an error apparent on the face of the record warranting review

Holding

Yes - the surveyor relied on incorrect registered acreages, and the trial court's wholesale adoption of the report without addressing this was an error apparent on the face of the record, a proper ground for review.

Reasoning

Official searches showed registered areas of 3.46 Ha, 2.81 Ha and 0.44 Ha for the three parcels, while the surveyor used 4.0 Ha, 2.8 Ha and 0.46 Ha. Since the surveyor's ratio calculations depended on these registered sizes, the error infected the recommended new boundaries. The trial court dismissed the review without addressing the discrepancy, so it misdirected itself and the appeal succeeded.

p. 3
02

Scope of review under Order 45 Rule 1 of the Civil Procedure Rules

Holding

Review lies on discovery of new and important matter, error or mistake apparent on the face of the record, or any other sufficient reason.

Reasoning

The court restated the Order 45 Rule 1 grounds and found that the factual discrepancy in the registered acreages, apparent from the official searches annexed to the review application, satisfied the 'error apparent on the face of the record' ground, entitling the appellant to have the orders of 31/1/2024 set aside.

p. 2

Legal principles established

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  • A court that adopts a surveyor's report containing an error apparent on the face of the record is properly subject to review under Order 45 Rule 1.

Court orders

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  1. 1.The ruling delivered on 4/9/2024 is set aside
  2. 2.The Appellant's application dated 12/2/2024 is allowed
  3. 3.The orders made on 31/1/2024 adopting the surveyor's report dated 29/1/2024 are set aside
  4. 4.The matter is remitted back to the Magistrate's Court for the boundary determination exercise to be undertaken afresh
  5. 5.The Regional Surveyor is directed to re-affix the boundaries and prepare a proper report using the acreage in the official land records
  6. 6.Each party to bear the costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
On appeal from
Magistrate's Court, Siakago
Siakago PM ELC Case No. E070 of 2022
Jurisdiction invoked
First appeal from the Magistrate's Court (Environment and Land jurisdiction)

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, "Kathumbi v Nyaga & another (Environment and Land Appeal E043 of 2024) [2025] KEELC 5878 (KLR)", Case Analysis (2025). Siakago PM ELC Case No. E070 of 2022 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5878/eng@2025-06-18

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