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ELCAllowedButere Senior Principal Magistrates Court ELC Case No. 73 of 2018 (appeal therefrom)· [2025] KEELC 8322 (KLR)

Ashioya v Amunaya (Environment and Land Appeal E001 of 2022) [2025] KEELC 8322 (KLR)

Environment and Land Court
26 November 2025
2,988 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court upheld a landowner's claim after survey reports proved a neighbour built 0.4 metres onto his land, granting a permanent injunction and costs.

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 Kakamega against the judgment of Hon. F. Makoyo (Principal Magistrate) in Butere ELC Case No. 73 of 2018, which dismissed the appellant's claim for permanent injunction over alleged encroachment into parcel Marama/Inaya/1223 by the respondent, proprietor of adjoining parcel Marama/Inaya/1221. The respondent objected to the appellant's representation under Order 9 Rule 9 of the Civil Procedure Rules, but the court held that no leave was required since there was no judgment of this court when the memorandum of appeal was filed. Adopting the Selle v Associated Motion Boat Co. Ltd standard of rehearing, the court re-evaluated the evidence. It found that the appellant's survey report of 18th March 2021 showed encroachment of 0.4 metres and misplaced beacons, corroborated by the Ministry of Lands survey report of 24th May 2017 (the boundary passing through a permanent building) and a National Construction Authority notice noting intrusion. The court also held that section 18 of the Land Registration Act did not bar jurisdiction because the boundary had been determined by the Land Registrar in consultation with the surveyor. The appeal was allowed; the trial judgment was set aside and substituted with judgment for the appellant as prayed in the amended plaint, including a permanent injunction restraining the respondent from dealing with parcel 1223 and from further construction on parcel 1221 overlapping the appellant's land, with costs of the appeal and the trial court awarded to the appellant.

Key legal issues

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01

Whether the appellant proved encroachment into parcel Marama/Inaya/1223

Holding

The appellant proved encroachment by the respondent on a balance of probabilities.

Reasoning

The appellant's surveyor's report of 18th March 2021 showed the respondent encroached by 0.4 metres and erected beacons within the appellant's parcel. The Ministry of Lands survey report dated 24th May 2017 found the common boundary passing through an existing permanent building, and the National Construction Authority noted intrusion on the appellant's parcel. The trial court was therefore wrong to find no evidence of encroachment.

p. 6
02

Whether the claim was an un-determined boundary dispute barred by section 18 of the Land Registration Act

Holding

The bar does not apply because the boundary had been determined by the Land Registrar with the surveyor.

Reasoning

The respondent himself produced a Land Registrar's summons of 25th July 2016 concerning a boundary dispute and an order in Kakamega HCC No. 221 of 2015 requiring the Land Registrar and surveyor to visit the parcels and report. The resulting report dated 24th May 2017 confirmed encroachment and that the boundary passed through a permanent building. The statutory precondition in section 18 was thus satisfied.

p. 6
03

Whether the appellant's counsel required leave under Order 9 Rule 9 to act on appeal

Holding

No leave was required because there was no judgment of this court to necessitate it.

Reasoning

Order 9 Rule 9 governs changes of advocates after judgment within the same proceedings. Since the memorandum of appeal was filed before this court, there was no judgment of this court at the time, so the appellant's counsel was properly on record and the appeal competent.

p. 5

Legal principles established

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  • The role of a first appellate court is to rehear the dispute, re-assessing and re-evaluating the facts and law and making its own independent conclusions.
  • Order 9 Rule 9 leave for change of advocates post-judgment applies to judgments of the court in which representation arises, not judgments of another court.
  • Once a boundary has been determined by the Land Registrar in consultation with the surveyor, the bar in section 18 of the Land Registration Act does not arise.

Court orders

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  1. 1.Trial court's judgment set aside and substituted with judgment in favour of the appellant as prayed in the amended plaint
  2. 2.Permanent injunction restraining the defendant from interfering, constructing, or dealing with L.R. No. Marama/Inaya/1223
  3. 3.Defendant restrained from further construction of the building on L.R. No. Marama/Inaya/1221 overlapping and interfering with the plaintiff's parcel 1223
  4. 4.Costs of the appeal and of the trial court awarded to the appellant, borne by the respondent
On appeal from
Butere Senior Principal Magistrates Court
ELC Case No. 73 of 2018
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decision in an ELC suit

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, "Ashioya v Amunaya (Environment and Land Appeal E001 of 2022) [2025] KEELC 8322 (KLR)", Case Analysis (2025). Butere Senior Principal Magistrates Court ELC Case No. 73 of 2018 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8322/eng@2025-11-26

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