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ELCDismissedNot stated on the face of the judgment· [2025] KEELC 6987 (KLR)

Musimba v Kitaka & 2 others (Environment and Land Appeal E035 of 2022) [2025] KEELC 6987 (KLR)

Environment and Land Court
14 October 2025
AKA. Y. Koross
2,086 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Boundary disputes over unsurveyed Kenyan land belong to the land registrar, not the courts, so this buyer's trespass lawsuit was struck out and her appeal dismissed.

What this practically means

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Executive summary

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This is a first appeal against a ruling of 21/09/2022 in which the trial magistrate struck out the appellant's motion for a temporary injunction and her entire suit, holding that he lacked jurisdiction because the dispute fell within the land registrar's mandate. The underlying claim concerned a 100 ft by 80 ft unsurveyed portion within Machakos/Kiandani/121, allegedly trespassed upon by the 1st and 2nd respondents, adjoining purchasers, who demolished her perimeter wall. The appellant advanced six grounds of appeal but collapsed them into one issue: whether the trial magistrate erred in finding he lacked jurisdiction. Applying its first-appellate duty under Order 42 Rule 32 of the Civil Procedure Rules, guided by Abok James Odera, the court observed that the subdivision of the mother parcel is governed by Section 22(2) and Section 16 of the Land Registration Act, and grievances arising therefrom lie with the land registrar under Section 79, with recourse to the court under Section 79(3A) or review under Section 86. The court held that the trial magistrate had applied the wrong provisions - Sections 18 and 19 concern registered land, whereas the parcels here are unsurveyed - but nevertheless arrived at the correct jurisdictional conclusion. Relying on Estate Sonrisa Ltd, the court dismissed the appeal, upheld the ruling of 21/09/2022, and awarded costs to the 1st and 2nd respondents.

Key legal issues

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01

Whether the trial magistrate erred in finding he lacked jurisdiction

Holding

The appeal is dismissed. The trial court used the wrong provisions (Sections 18 and 19 LRA apply to registered, not unsurveyed land) but reached the correct result: the dispute concerns boundaries of adjoining unsurveyed parcels and belongs to the land registrar under Section 79 LRA.

Reasoning

Both parcels are unsurveyed subdivisions of a mother parcel undergoing subdivision under Section 22(2) LRA. Sections 18 and 19 LRA cited by the trial court concern boundary disputes of registered land and were inapplicable, but the correct route is a complaint to the land registrar under Section 79, an application to court under Section 79(3A), or review under Section 86, consistent with Estate Sonrisa Ltd. The trial court's jurisdictional conclusion is therefore affirmed.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and reanalyse the evidence and reach its own independent decision
  • Disputes over the position of boundaries of unsurveyed parcels derived from a mother parcel fall within the land registrar's jurisdiction under the Land Registration Act, with recourse to the court only under section 79(3A)

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The orders issued on 21/09/2022 striking out the motion and suit are upheld
  3. 3.Costs awarded to the 1st and 2nd respondents

Authorities

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Legislation

  • Land Registration ActSections 16, 18, 19, 20, 22(2), 79, 79(3A), 80, 86, 91(9)
  • Civil Procedure RulesOrder 42 Rule 32

Cases cited (2)

  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2013] KECA 208 (KLR)
  • Estate Sonrisa Ltd & another v Samuel Kamau Macharia & 2 others
    [2020] KECA 734 (KLR)
On appeal from
Trial court (magistrates' court, Machakos)
Jurisdiction invoked
First appeal under Order 42 Rule 32 of the Civil Procedure Rules

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, "Musimba v Kitaka & 2 others (Environment and Land Appeal E035 of 2022) [2025] KEELC 6987 (KLR)", Case Analysis (2025). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6987/eng@2025-10-14

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