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ELCDismissedBusia ELCA No. E026 of 2024· [2026] KEELC 4253 (KLR)

Andedo v Masiga (Civil Appeal E026 of 2024) [2026] KEELC 4253 (KLR)

Environment and Land Court of Kenya
2 July 2026
LWL. N. Waithaka
3,161 words in judgment
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The bottom line

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Busia's Environment and Land Court dismissed a landowner's appeal, confirming her title was never actually cancelled and that unobjected-to evidence counts.

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 Busia against the judgment of Hon. Anne Njeru SRM delivered on 8th October 2024 in Port Victoria ELC No. E003 of 2023. The appellant had sued the respondent for trespass over L.R No. Samia Luanda/Mudoma/3477, seeking a declaration of trespass, eviction, and a permanent injunction. The respondent, by defence and counterclaim, contended that the mutation creating the suit property was faulty and sought cancellation of the mutation form and redrawing of boundaries. The trial court dismissed both the suit and the counterclaim, but in its reasoning found the mutation irregular and fraudulently obtained and observed it ought to be cancelled. On appeal, the appellant contended that the trial magistrate had wrongly cancelled her title when no such relief was pleaded, and had erred in relying on a surveyor's report not produced by its maker. The respondent countered that the decree contained no order cancelling the title and that no objection had been raised to the production of the report. Re-evaluating the evidence as a first appellate court, and applying Selle v Associated Motor Boat Co. and related authorities, L. N. Waithaka J held that the trial magistrate never cancelled the appellant's title, making that ground a misapprehension of the judgment, and that the report having been admitted without objection, the complaint about its production failed. The court dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether the trial magistrate cancelled the appellant's title

Holding

The court held that despite the trial magistrate's finding of fraud, no order cancelling the title was made; the decree did not direct cancellation

Reasoning

The court reviewed the totality of the evidence and the judgment and decree of the lower court. Although the trial magistrate found irregularity and fraud in the creation of the appellant's title, the operative orders only dismissed the suit and counterclaim. The appellant's assertion that her title was cancelled was therefore a misapprehension of the judgment, rendering that ground of appeal ill-advised.

p. 20
02

Whether the trial magistrate erred in relying on a surveyor's report not produced by its maker

Holding

The report was produced without objection, so the complaint fails; moreover the report was not the only evidence relied upon

Reasoning

The court noted from the record that the surveyor's report was produced without any objection by the appellant. Having failed to object to its production, the appellant cannot fault the trial magistrate for relying on it. The court further observed that the surveyor's report was not the only evidence the learned magistrate used in determining the case.

p. 20

Legal principles established

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  • A first appellate court will not ordinarily interfere with findings of fact by the trial court unless based on no evidence, on misapprehension of the evidence, or where the trial court acted on wrong principles
  • A party who fails to object to the production of a document in evidence cannot later fault the trial court for relying on it

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
  2. 2.Orders accordingly

Authorities

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Legislation

  • Survey ActSection 23
  • Survey ActSection 31

Cases cited (3)

  • Selle & Another vs. Associated Motor Boat Co. Ltd
    (1968) E.A 123
  • Mwanasokoni vs. Kenya Bus Service Ltd
    (1982-88) 1 KAR
  • Kiruga vs. Kiruga & Another
    (1988) KLR 348
On appeal from
Senior Resident Magistrate's Court, Port Victoria
Port Victoria ELC No. E003 of 2023
Jurisdiction invoked
First appellate jurisdiction over the lower court suit (Busia CMC ELC Case No. E003 of 2023)

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, "Andedo v Masiga (Civil Appeal E026 of 2024) [2026] KEELC 4253 (KLR)", Case Analysis (2026). Busia ELCA No. E026 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4253/eng@2026-07-02

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