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Court of AppealPartially AllowedCivil Appeal No. 14 of 2016 (as consolidated with Civil Appeal No. 32 of 2016) – appeal against ruling in Mombasa ELC Case No. 30 of 2014

Estate Sonrisa Limited v Macharia & another (Civil Appeal E076 of 2023) [2026] KECA 39 (KLR)

Court of Appeal
30 January 2026
7,062 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled a case stated challenging a Land Registrar's boundary report must be heard by the Environment and Land Court.

What this practically means

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Executive summary

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This is a judgment of the Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJA) allowing Estate Sonrisa Limited's second appeal against a ruling of the Environment and Land Court at Mombasa delivered on 21st March 2023, which had upheld a preliminary objection and struck out the Appellant's case stated dated 5th September 2022. The case stated challenged the report of the Land Registrar, Kwale dated 2nd July 2021, produced pursuant to the Court of Appeal's earlier directions in Civil Appeal Nos. 14 and 32 of 2016 (consolidated), which had set aside the trial court's demolition orders and directed the Land Registrar, with the Government Surveyor, to determine whether Kwale/Galu Kinondo/48 had encroached on the suit parcel. The Court of Appeal framed three issues: whether the trial court was functus officio; whether it lacked jurisdiction over the case stated; and whether it had jurisdiction under Section 86 of the Land Registration Act. The Court held that the trial court was not functus officio because matters arising from its decree, notably the encroachment determination, remained unperfected, applying the doctrine as articulated in Telkom Kenya v John Ochanda and Kenya Broadcasting Corporation v Geoffrey Wakio. It further held that Section 86 provides a statutory avenue for a party aggrieved by the Registrar's decision, and that the Environment and Land Court, empowered under Section 4 of the Appellate Jurisdiction Act to execute this Court's decisions, had jurisdiction to give its opinion. The pendency of the similar Kwale case stated, which had been struck out without merits determination, did not justify the trial court's refusal. The appeal was allowed with costs to the Appellant; the ruling of 21st March 2023 was set aside and the case stated remitted to Mombasa ELC Case No. 30 of 2014 for hearing and determination.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Environment and Land Court was functus officio
  2. 2.Whether, following determination of the dispute in ELC No. 30 of 2014 and the subsequent judgment of this Court in Civil Appeal Nos. 14 and 32 of 2016 (consolidated), the Environment and Land Court lacked jurisdiction to entertain the Appellant's case stated
  3. 3.Whether the Environment and Land Court had jurisdiction under Section 86 of the Land Registration Act to entertain the case stated

Key legal issues

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01

Whether the Environment and Land Court was functus officio in respect of the case stated

Holding

The trial court was not functus officio because matters arising from the Court of Appeal's decree, notably the encroachment determination, remained unperfected.

Reasoning

The Court applied the functus officio doctrine as stated in Menginya Salim Murgani, Telkom Kenya v John Ochanda and Kenya Broadcasting Corporation v Geoffrey Wakio. A court becomes functus officio once proceedings are fully concluded and the judgment perfected; however, proceedings incidental to, or a natural consequence of, the final decision remain open. The Court of Appeal had referred the encroachment question to the Land Registrar, and until that issue was resolved with finality the decree was unperfected, so the trial court misdirected itself in holding it was functus officio.

p. 10
02

Whether the Environment and Land Court had jurisdiction under Section 86 of the Land Registration Act to entertain the case stated

Holding

Yes. Having been dissatisfied with the Land Registrar's report, the Appellant was entitled to invoke Section 86 and the trial court had jurisdiction to issue an opinion on the case stated.

Reasoning

Section 86 of the Land Registration Act provides a statutory avenue for a party aggrieved by the Registrar's decision to approach the court by way of a case stated for the court's opinion, alongside Sections 79(3A), 80 and 91(9). Because the encroachment issue had been referred by the Court of Appeal to the Land Registrar, and the Registrar produced a report, the aggrieved party's recourse was a case stated. The trial court was therefore empowered to hear it. Further, under Section 4 of the Appellate Jurisdiction Act, the Environment and Land Court has power to execute this Court's decisions.

p. 12
03

Whether the pendency of a similar case stated in Kwale ELC No. E001 of 2021 justified the trial court declining jurisdiction

Holding

No. The Kwale case stated had been struck out without determination on its merits and parties referred to the correct forum, so the trial judge should have heard the case stated as correctly filed in Mombasa ELC No. 30 of 2014.

Reasoning

The court noted that Dena, J. had struck out the Kwale case stated because it was filed as a separate action instead of within the original proceedings, offending Section 34 of the Civil Procedure Act, and Naikuni, J. had directed that execution questions arising from the Mombasa decree be dealt with within that suit. Since the Kwale suit was not determined on its merits and parties were referred to the correct court, there was no parallel determination that justified the trial judge's refusal to engage; that refusal was a misdirection.

p. 13
04

Whether the case stated concerned encroachment or a boundary dispute and the significance of that characterisation

Holding

The distinction was immaterial; encroachment and boundary determination are two sides of the same coin and both fell within the outstanding dispute referred to the Land Registrar.

Reasoning

Sections 19 and 20 of the Land Registration Act establish the Land Registrar as the primary authority for fixing and maintaining boundaries, empowering the Registrar to summon survey records and other evidence. Because the Court of Appeal had referred the encroachment question to the Registrar, whether the case stated was framed as encroachment or as a boundary dispute, it remained within the realm of the outstanding dispute left to be resolved, and the trial court's contrary characterisation could not defeat jurisdiction.

p. 11

Legal principles established

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  • A court that has rendered final judgment becomes functus officio and cannot revisit the judgment on the merits, save as provided by law, but this does not bar engagement with matters incidental to or unperfected aspects of the decree, including supplemental jurisdiction.
  • A party aggrieved by a decision of the Land Registrar under the Land Registration Act is entitled to invoke Section 86 by way of a case stated, and the Environment and Land Court has jurisdiction to give its opinion on such a case stated; a court seised of such a case is not functus officio where matters arising from the decree remain unperfected.
  • A preliminary objection may only be raised on a pure question of law on undisputed facts, per Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors.
  • The Land Registrar is the primary authority mandated to determine boundary disputes, and encroachment and boundary questions are in reality two sides of the same coin within the Registrar's statutory remit.

Court orders

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  1. 1.Appeal allowed with costs to the Appellant
  2. 2.Ruling of the Environment and Land Court delivered on 21st March 2023 set aside
  3. 3.Appellant's case stated dated 5th September 2022 remitted back to the Environment and Land Court for hearing and determination in Environment and Land Court Case No. 30 of 2014

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
Environment and Land Court, Mombasa
Mombasa ELC Case No. 30 of 2014
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal; appeal against the ELC ruling upholding a preliminary objection and striking out a case stated under Section 86 of the Land Registration Act
Consolidated with
Civil Appeal No. 32 of 2016

Relief refused

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Costs against the 1st Respondent were not refused; costs were in fact awarded to the Appellant

Costs

The appeal is allowed with costs to the Appellant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The maxim interest reipublicae ut sit finis litium, as articulated by Lord Diplock in Hunter vs Chief Constable of the West Midlands Police [1982] AC 529, underscores the public interest in the finality of litigation
p. 1Finality of litigation
To sum up, a court is functus when the proceedings are fully concluded and the judgment or order has been perfected.
p. 10Functus officio doctrine
we find that the trial court was not rendered functus oficio in respect of the case stated since, there were still matters arising from this Court’s Decree that remained unperfected.
p. 10Functus officio – unperfected decree
the trial court was empowered, and had jurisdiction to proceed and issue an opinion on the Appellant’s case stated, and we so find.
p. 12Jurisdiction under Section 86, Land Registration Act
the appeal is merited and is allowed with costs to the Appellant. We hereby set aside the ruling of the Environment and Land Court delivered on 21st March 2023, and remit the Appellant’s case stated dated 5th September 2022 back for hearing and determination in Environment and Land Court Case No. 30 of 2014.
p. 13Final orders / disposition

Issues in the judgment

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material

The judgment text appears corrupted in places, with garbled passages that distort meaning (e.g. paragraphs 8 and 22), which may affect quote fidelity for holdings in those paragraphs.

minor

Paragraph numbering in the supplied text is inconsistent (e.g. '144.' for paragraph 14, '2.2' for paragraph 22, '3.' and '31.' reused), which may complicate locating quotes.

minor

Judge surnames are inconsistently spelled within the judgment text itself (e.g. 'Ali Khan Ali Muse' vs 'Ali Khan Ali Muses'; bench signature blocks contain garbled names), affecting name consistency.

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, "Estate Sonrisa Limited v Macharia & another (Civil Appeal E076 of 2023) [2026] KECA 39 (KLR)", Case Analysis (2026). Civil Appeal No. 14 of 2016 (as consolidated with Civil Appeal No. 32 of 2016) – appeal against ruling in Mombasa ELC Case No. 30 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/39/eng@2026-01-30

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