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ELCDismissedNot stated on the face of the judgment (appeal from Ngong MCELC No. E015 of 2020)· [2025] KEELC 8202 (KLR)

Kimani & 3 others v Wangora (Environment and Land Appeal E041 of 2024) [2025] KEELC 8202 (KLR)

Environment and Land Court
27 November 2025
LKL. KOMINGOI
2,315 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a land boundary appeal, confirming that unhappy parties must appeal a Land Registrar's decision, not simply re-litigate it.

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 Kajiado against the judgment of Hon. P. Achieng' (SPM) dated 22nd August 2024 in Ngong MCELC No. E015 of 2020, which found that the Appellants had encroached on the Respondent's land. The Appellants advanced six grounds, compressed principally into three: that the boundary dispute before the Land Registrar was not resolved in accordance with the law; that the trial magistrate proceeded to determine the suit despite her earlier ruling that it await the boundary determination; and that orders were issued without evidence that the boundary had been resolved and marked lawfully. The appeal was canvassed by written submissions. The Respondent maintained that he lodged a boundary dispute dated 2nd November 2020; that the Land Registrar and Land Surveyor visited the parcels on 13th October 2021 and 16th March 2022 in the presence of the parties; and that the determination dated 16th March 2022 confirmed encroachment of 0.68 acres. The Court, applying the settled duty of a first appellate court to re-evaluate the evidence, found that the Appellants were present at the boundary hearing, testified, and never appealed the Registrar's decision, rendering their complaints about the process untenable. It further held that issues raised only in submissions, including the Respondent's claim for general damages, cannot be determined as submissions are not pleadings. The appeal was dismissed with costs to the Respondent and the lower court judgment was upheld.

Key legal issues

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01

Whether the boundary dispute was duly determined by the Land Registrar in accordance with the law

Holding

The Court held the dispute was properly determined: the Land Registrar, Land Surveyor, the parties and their advocates attended the site visit, both the Respondent and 1st Appellant testified, the report dated 16th March 2022 found encroachment of 0.68 acres, and no appeal was lodged against the decision

Reasoning

The record showed the Appellants were present at the boundary hearing and testified; their claim of ignorance of the decision was found to be false. The decision was not appealed within the statutory window, so the magistrate did not err in relying on the report. A party dissatisfied with a Registrar's determination must appeal against it, not re-litigate the issue collaterally before the court.

p. 5
02

Whether the trial magistrate erred in relying on the Land Registrar's report to find encroachment

Holding

The magistrate did not err in fact or law in relying on the report to find that the Appellants had trespassed and encroached on the Respondent's parcel

Reasoning

The report followed a site visit attended by all parties and contained measurements showing parcel 6106 exceeded its registered acreage by 0.68 acres while parcel 96381 fell short of its registered 4 acres. No appeal lay against or was filed against that determination, and the magistrate rightly adopted it as evidence of encroachment.

p. 5

Legal principles established

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  • On a first appeal, the court must re-evaluate, re-assess and re-analyse the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
  • Submissions are not pleadings and cannot be used in place of pleadings to raise new issues
  • A party aggrieved by a Land Registrar's boundary determination must pursue the statutory right of appeal; a court may only determine a boundary question brought as such an appeal under Section 18(2) of the Land Registration Act

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent
  2. 2.The Judgment delivered on 22nd August 2024 in CMC ELC No. E015 of 2020 is upheld
On appeal from
Ngong Magistrates' Court (CM ELC)
E015 of 2020
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court under the Environment and Land Court Act; boundary determination restricted by Section 18(2) of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kimani & 3 others v Wangora (Environment and Land Appeal E041 of 2024) [2025] KEELC 8202 (KLR)", Case Analysis (2025). Not stated on the face of the judgment (appeal from Ngong MCELC No. E015 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8202/eng@2025-11-27

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