Barta (Suing as the Legal Representative to the Estate of the Late Oloishuro ole Barta Kura) v Farah & another (Civil Appeal 48 of 2020) [2026] KECA 764 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the Land Registrar's boundary findings are conclusive, and landowners must challenge titles with evidence, not allegations.
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 ELC erred by not addressing its mind on whether there was unlawful creation of title No. Transmara/Kerinkani/8 out of title No. Transmara/Kerinkani/9
- 2.Whether the ELC erred in finding that the respondents did not trespass on the suit property parcel No. Transmara/Kerinkani/530 being a division of the original title No. Transmara/Kerinkani/9
- 3.Whether the learned judge erred in admitting the report of the Land Registrar as evidence
Key legal issues
#Whether title No. Transmara/Kerinkani/8 was unlawfully created out of title No. Transmara/Kerinkani/9
There was no unlawful creation; parcel No. 8 existed and was registered in the name of Farah Award (deceased) and contained in Registry Map Sheet No. 144.4.
The appellant alleged the parcel was unprocedurally created from her late husband's parcel and converted from a public utility (cattle dip), but adduced no independent evidence to invalidate the respondents' title under section 98(1) of the Evidence Act and produced no authentic documents showing unconstitutional creation or public-utility reservation. Registration of parcel No. 8 dated back to 1977 following adjudication.
Whether the respondents trespassed onto the suit property
No trespass by the respondents; on the contrary, the appellant encroached onto the respondents' parcel No. Transmara/Kerrinkani/8 by 33.95 Ha (83.9 acres).
Trespass depends on ownership and boundaries, which had to be determined first. The Land Registrar and Surveyor, on the court's orders and at the appellant's own application, visited the site, found distinct boundary markings and uprooted beacons, and determined the appellant's encroachment. The report was admitted as evidence, was uncontroverted, and was not appealed against, so the trial court correctly relied on it.
Whether the learned judge erred in admitting the Land Registrar's report as evidence
No error; the report was properly admitted, boundary determination being exclusively the realm of the Land Registrar.
The appellant herself applied for the Registrar to visit the ground and for the report to be admitted as evidence, and the trial court granted those prayers. The court reasoned that boundary determination is for the Land Registrar and courts are slow to interfere with such findings; the boundary had to be established before a trespass action could be entertained. The report was uncontroverted expert evidence created after a site visit attended by both parties.
Whether the new issue of reservation of parcel No. 8 as a public utility (cattle dip) could be raised on appeal
The issue was not raised in the ELC and was declined as an afterthought.
Although Rule 107 of the Court of Appeal Rules, 2022 permits an appellate court to consider matters not before the trial court, the court held that raising the public-utility issue at appeal stage, when it should have been pleaded and specifically raised before the ELC, was an afterthought intended to steal a match. Submissions are not pleadings and cannot amount to evidence.
Legal principles established
#- The Land Registrar's powers to determine a boundary dispute are conclusive; an uncontroverted Registrar's report made after a site visit at which both parties were present carries significant evidential weight and is conclusive as to boundaries between registered parcels.
- A court must first have the boundary between registered parcels determined in accordance with the statutory boundary-determination process before entertaining an action in trespass founded on the location of that boundary.
- A party alleging that a registered title was unlawfully, fraudulently or unprocedurally created must adduce evidence to prove the impropriety; it is not sufficient merely to allege it.
- Written submissions are not pleadings and cannot amount to evidence; an appellate court determines issues raised in the pleadings, and new issues raised for the first time on appeal may be declined.
Court orders
#- 1.Dismissal of the appeal with costs to the defendants
- 2.Confirmation of the judgment of the ELC dated 28th February, 2019
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC Case No. 390 of 2017 (formerly Kisii ELC No. 286 of 2013)
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules, 2022, Rule 31(1)(a), the appeal having been lodged on 13th August, 2020
Relief refused
#The appellant's appeal against the ELC judgment (declarations in respect of LR No. Transmara/Kerrinkani/530 and findings of trespass)
No unlawful creation of title No. Transmara/Kerinkani/8 was proved, no evidence challenged the respondents' title, and it was the appellant who encroached on the respondents' land
The appellant's new ground that parcel No. Transmara/Kerrinkani/8 was reserved as a public utility (cattle dip)
The issue was not raised or argued in the ELC and was being raised for the first time on appeal
Costs
Appeal dismissed with costs to the defendants (respondents)
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.
Consequently, we find that this appeal has no merit and proceed to dismiss the same with costs to the defendants. The judgment of the ELC dated 28th February, 2019 is confirmed.
The Land Registrar powers to determine a boundary dispute is conclusive. The Report filed by the Land Registrar is expert evidence and the same was not controverted.
The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section
written submissions should and must not be used as pleadings neither can they amount to evidence
it is not suficient to dangle the instrument of title as proof of ownership.
we are persuaded that there was no trespass by the respondents onto the suit property. It is the appellant who encroached onto the respondents’ parcel No. Transmara/Kerrinkani/8 by 33.95 Ha (83.9 acres).
Issues in the judgment
#The judgment states parcel No. Transmara/Kerinkani/8 'existed and was registered in the name of Farah Awadh (Deceased) in 1972', but elsewhere records that the land 'had been adjudicated to one Farah Award(deceased) as at 23rd September, 1976' and 'was registered in the name of the deceased on 16th June, 1977'.
Ground (e) of the memorandum of appeal as reproduced refers to a Report of the District Land Register 'dated 26th April, 2026', which post-dates the hearing; the Registrar's report elsewhere in the judgment is dated 26th April, 2018.
The hearing date is recorded as 23rd February, 2026 while the appellant's written submissions are dated 26th February, 2024, and the respondents' submissions dated 13th February, 2026 - the sequencing of dates in the record is internally inconsistent.
The introduction describes the appellant's appeal as against a judgment in favour of the respondents, yet the memorandum of appeal reproduced speaks of the appellant proving her case against respondents said to have trespassed; no material contradiction in the holding, but the earlier description inverts the ELC's finding of encroachment by the appellant in the passage quoted from the trial judgment's opening summary.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shalle (Suing on Behalf of the Estate of Shalle Hirbo Alias Shalle Hirbo) v Marsabit Township Women Group & 3 others (Environment and Land Case E001 of 2021) [2026] KEELC 3792 (KLR)[2026] KEELC 3792 (KLR)16 Jun 2026applied
- Charles (Suing as the legal representative of the Estate of Charles Ngiti - Deceased) v Mwenda (Sued as the legal representative of Stephen Mithika) (Environment and Land Appeal E018 of 2025) [2026] KEELC 2896 (KLR)[2026] KEELC 2896 (KLR)13 May 2026applied
Cite this brief
#Cite this brief
Caselaw, "Barta (Suing as the Legal Representative to the Estate of the Late Oloishuro ole Barta Kura) v Farah & another (Civil Appeal 48 of 2020) [2026] KECA 764 (KLR)", Case Analysis (2026). Not stated in the judgment (Court of Appeal first appeal from ELC Case No. 390 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/764/eng@2026-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.