Mutwaruhiu (As the Personal and Legal Representative of the Estate of Ibrahim Muturuhiu Kimamo - Deceased) v Kingathia (Civil Appeal 129 of 2018) [2025] KECA 1104 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that parties bound by a consent to a Land Registrar's boundary report cannot later challenge those findings on appeal.
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 decision of the trial court was properly arrived at
Key legal issues
#Whether the ELC erred in determining the boundary dispute on the Land Registrar's report without oral evidence
The ELC did not err. The parties by consent referred the boundary dispute to the Land Registrar; the report was unchallenged, no party cross-examined the Land Registrar or called further evidence, so both parties were bound by its findings.
The consent of 21st November 2014 directed the County Land Registrar and County Surveyor to visit the land and determine the boundaries, with costs shared. Both parties elected not to adduce further evidence when the report was presented. No cross-examination of the Land Registrar was sought and no rebuttal evidence was called. In the absence of rebuttal, the ELC had no choice but to rely on the report. The appellant cannot now resile from the consent and its outcome.
Whether the appellant was denied a fair hearing because no oral evidence was taken
No. The parties elected not to give evidence and instead relied on the Land Registrar's report; the appellant cannot complain of not being heard.
The court acknowledged its residual jurisdiction under Rule 31(1)(c) to remit matters for fresh consideration but held that such power is exercised only in special and exceptional circumstances, for instance where the trial court did not consider the subject matter at all. Here the ELC considered the report and the dispute; the choice to rely on the report was the parties' own.
Whether the claim for damages for the felling of 85 trees was adjudicated
The damages claim could not succeed because the appellant failed to prove trespass; the Land Registrar's unchallenged report showed it was the appellant who encroached, and no evidence supported the felling claim.
The burden of proof lay on the party alleging. The record before the court did not show that the ELC failed to deal with an established claim; rather, having found no encroachment by the respondent, there was no trespass on which damages could be founded. The court confined itself to the issues arising from the pleadings and the evidence on record.
Legal principles established
#- Where parties by consent agree that a boundary dispute be determined by the Land Registrar, and a report is filed without objection, cross-examination or further evidence, the parties are bound by the Land Registrar's findings and cannot resile from them on appeal.
- An appellate court will only remit a matter for re-hearing in special and exceptional circumstances, including where the trial court did not consider at all the subject matter in dispute.
- An appellate court's responsibility is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in evidence; issues for determination are defined by the pleadings.
- In the absence of a respondent's appearance, the hearing of an appeal proceeds under Rule 105(2) of the Court of Appeal Rules.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- 2.Judgment of the Environment and Land Court dismissing the appellant's suit affirmed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nyeri
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal's Rules (Rule 31(1)), the judgment does not cite a specific constitutional provision
Relief refused
#Setting aside of the ELC judgment and remittal to the ELC for a fresh hearing
The parties elected not to give evidence and relied on the Land Registrar's report; remittal is only for special and exceptional circumstances; no such circumstances existed
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.
Ultimately, we find that the appeal is devoid of merit and we dismiss it with costs to the respondent.
It follows that the parties were bound by what the Land Registrar had found regarding the boundary between their parcels of land.
In exercising our powers to remit the matter to the trial court for re – hearing, it should be done in special and exceptional circumstances including that the ELC did not consider at all the subject matter in dispute.
A court of law cannot pluck issues literally from the air and purport to make determinations on them. It is the pleadings which determine the issues for determination.
The burden to prove a case lies with the party alleging.
Issues in the judgment
#The respondent's submissions attribute the Land Registrar's report to a male registrar ('his report', 'his report the Land Registrar found') while the judgment records that the Land Registrar, Nyeri was Ms. Susan Mwanja Mueni, a female officer who did not visit the ground herself.
The consent recorded on 21st November 2014 required the report to be filed within 7 days, yet the report was presented on 21st May 2018, a discrepancy not explained in the judgment.
Grounds of appeal numbered eight ('8 grounds of appeal') but only seven grounds (i to vii) are enumerated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutwaruhiu (As the Personal and Legal Representative of the Estate of Ibrahim Muturuhiu Kimamo - Deceased) v Kingathia (Civil Appeal 129 of 2018) [2025] KECA 1104 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1104/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.