Mberia v Mbui (Civil Appeal 102 of 2020) [2025] KECA 954 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that boundary disputes between neighbours belong to the Land Registrar, and courts will only review rulings for genuinely new evidence or obvious errors.
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 trial court misinterpreted the facts and the law
- 2.Whether the appellant met the necessary threshold for a review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
Key legal issues
#Whether the appellant's review application met the thresholds in section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules
It did not; no new evidence was produced and no self-evident error on the face of the record was demonstrated, the supporting affidavit merely replicating the earlier arguments
The court examined the statutory grounds for review: discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, each requiring application without unreasonable delay. The appellant claimed new evidence but produced none, and his averments and submissions were a replica of the arguments made when the original ruling was issued. A misconstruction of the law or a preference for a different view cannot found a review, so the trial court correctly dismissed the application.
Whether the trial court erred in characterising the dispute as a boundary dispute falling within the Land Registrar's statutory mandate
No error; the pleadings of both parties showed the dispute was about the position of the common boundary, already addressed by the Land Registrar before the suit was filed
The trial court's ruling of 13th November 2019 was grounded on the parties' own pleadings, both of which described a dispute over where each party's adjacent parcels lay. The suit was filed after the Land Registrar had fixed the boundary, so the trial court's conclusion that it lacked jurisdiction over the boundary question was consistent with the pleadings. The Court of Appeal, re-evaluating the record as a first appeal, found no misinterpretation of facts or law warranting review.
The scope of the Court of Appeal's duty on a first appeal
The court must re-analyse and re-assess the evidence and reach independent conclusions, following Selle v Associated Motor Boat Co as adopted in Arthi Highway Developers
As a first appellate court, the Court of Appeal is not confined to errors of law but must reconsider the evidence, evaluate it itself and draw its own conclusions, making allowance for the fact that it neither saw nor heard the witnesses. It may depart from trial findings where the trial court failed to take account of particular circumstances or probabilities or where credibility findings are inconsistent with the evidence generally.
Legal principles established
#- The grounds for review are restricted to discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay
- An error apparent on the face of the record must be self-evident and not require elaborate argument; a different view of the matter or an incorrect exposition of the law is not a ground for review
- On a first appeal from the High Court, the Court of Appeal reconsiders and re-evaluates the evidence and draws its own conclusions, while making due allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal was dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Environment and Land Court)
- ELC No. 151 of 2016 (referenced in the judgment)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Civil Procedure Act (duty to re-assess evidence in a first appeal)
Relief refused
#Review of the High Court ruling of 11th July 2018 striking out the appellant's suit
No new and important matter or evidence was discovered, and no error apparent on the face of the record was shown; the application merely repeated the earlier arguments
Costs
Appeal dismissed with costs to the respondent
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.
In a nutshell, there was nothing new, and no mistake or error was apparent on the face of the record.
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.
Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review.
We agree with the ruling of 13th November 2019 and dismiss the appeal with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mberia v Mbui (Civil Appeal 102 of 2020) [2025] KECA 954 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/954/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.