Haji v Holate Gotu Self Help Group & 2 others (Environment and Land Appeal 02 of 2024) [2025] KEELC 7039 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a land ownership appeal and struck out a cross appeal filed late and outside proper procedure.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the cross appeal is competent and legally tenable or otherwise
- 2.Whether the appellant proved his claim to the requisite standard or otherwise
Key legal issues
#Competency of the cross appeal
The cross appeal was incompetent: filed out of time without leave under section 79G, the vehicle (cross appeal) is unknown to the Civil Procedure Act and Rules for subordinate-court appeals, and it targeted observations rather than the decree
Section 79G requires appeals within 30 days; no leave was sought. Rule 95 of the Court of Appeal Rules permitting cross appeals does not apply to appeals to the High Court, which are governed by Order 42 Rule 1. Moreover, the decree was merely dismissal of the suit; the community land declaration was obiter. The court therefore struck out the cross appeal.
Whether the appellant proved ownership of plot 167B
The appeal failed; the trial magistrate correctly found the appellant had not proved his claim to the requisite standard
The claim rested on a gift inter vivos from Ture Qalicha, but no evidence showed the donor owned the plot, invoking nemo dat quod non habet. The pleaded gift was contradicted by a sale agreement produced, witnesses gave contradictory evidence on size and execution, PW3 disowned his statement, and payment of rates did not confer title.
Scope of first appellate court's jurisdiction
The first appellate court may re-evaluate the evidence and reach its own conclusions, but may only depart from trial findings where they rest on no evidence, are perverse, based on misapprehension, or an error of principle
Relying on Court of Appeal authority including Kenya Urban Roads Authority v Belgo Holdings and Peters v Sunday Post, the court affirmed its duty to subject the entire evidence to fresh examination while giving due weight to the trial court's advantage of seeing and hearing witnesses.
Trial magistrate's determination of community land and remarks against the County Government
The trial magistrate went outside the pleadings in declaring the property unregistered community land, and made adverse comments against a non-party without hearing it
The dispute concerned only ownership of plot 167B; determining community land status was beyond the pleadings per IEBC v Mule and Galaxy Paints. Comments against Marsabit County Government, a non-party, violated the hearing right per County Assembly of Kisumu.
Legal principles established
#- An appeal filed out of time without leave is null and void
- A cross appeal is unknown to the Civil Procedure Act and Rules for appeals from subordinate courts; appeals lie by memorandum of appeal under Order 42 Rule 1
- An appeal lies only against the decree or orders of a court, not against obiter dictum or observations
- A court must confine its decision to the issues raised in the pleadings
- One cannot gift or transfer what one does not own (nemo dat quod non habet); adverse comments against a non-party without a hearing are misdirected
Court orders
#- 1.The Appeal be and is hereby dismissed
- 2.The Judgment and the consequential decree of the trial court dated and delivered on 20th December 2023 be and is hereby affirmed, save to the extent of the correction highlighted in the body of the Judgment
- 3.The appellant's suit stands dismissed
- 4.The cross appeal vide Memorandum of cross appeal dated 7th March 2024 be and is hereby struck out
- 5.Each party shall bear own costs of the appeal
- 6.Each party shall also bear own costs of the cross appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court
- not stated
- Jurisdiction invoked
- First appeal under section 78 and section 79G of the Civil Procedure Act
Relief refused
#Declaration that the appellant is the sole owner of plot no. 167B
Appellant failed to discharge the burden of proving ownership; no evidence the alleged donor owned the plot
Permanent injunction, general damages for trespass and mesne profits sought in the amended Plaint
Followed from dismissal of the suit for failure of proof
Costs
Each party shall bear own costs of the appeal; each party shall also bear own costs of the cross appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
To my mind, an appeal filed out of time without leave is null and void.
the 1st & 3rd respondents cannot adopt and deploy their own mechanism of filing [sic] a cross appeal, which is unknown to the civil procedure act and the Civil Procedure Rules
an appellant or respondent cannot seek to appeal against mere observations; remarks or obiter dictum of the Court
it is apposite for courts of law to confine their decisions to the issues captured at the foot of the pleadings and canvassed during the trial
The Appeal be and is hereby dismissed.
The cross appeal vide Memorandum of cross appeal dated 7th March 2024; be and is hereby struck out.
Each party shall bear own costs of the appeal.
Issues in the judgment
#The judgment is a first appeal yet, per the strict reading of the brief instructions, the parties are styled appellant/respondent - this is correctly an appeal; however the case number and the identity of the parties are never stated in the judgment itself
Relief (c) and (d) of the amended plaint (trespass damages, mesne profits) are neither expressly analysed nor expressly refused in the judgment's analysis
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haji v Holate Gotu Self Help Group & 2 others (Environment and Land Appeal 02 of 2024) [2025] KEELC 7039 (KLR)", Case Analysis (2025). Environment and Land Court Appeal (Meru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7039/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.