Ashioya v Amunaya (Environment and Land Appeal E001 of 2022) [2025] KEELC 8322 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the appellant proved encroachment into parcel Marama/Inaya/1223
The appellant proved encroachment by the respondent on a balance of probabilities.
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.
Whether the claim was an un-determined boundary dispute barred by section 18 of the Land Registration Act
The bar does not apply because the boundary had been determined by the Land Registrar with the surveyor.
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.
Whether the appellant's counsel required leave under Order 9 Rule 9 to act on appeal
No leave was required because there was no judgment of this court to necessitate it.
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.
Legal principles established
#- 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
#- 1.Trial court's judgment set aside and substituted with judgment in favour of the appellant as prayed in the amended plaint
- 2.Permanent injunction restraining the defendant from interfering, constructing, or dealing with L.R. No. Marama/Inaya/1223
- 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.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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kiboi v Kenya National Highways Authority & another (Environment and Land Case 59 of 2019) [2026] KEELC 4748 (KLR)[2026] KEELC 4748 (KLR)22 Jul 2026
Cite this brief
#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.