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Court of AppealPartially AllowedCivil Appeal (from ELC Case 21 of 2021, Ntutu vs County Council of Narok & 2 others)

County Government of Narok v Ntutu & 2 others (Civil Appeal E052 of 2025) [2026] KECA 880 (KLR)

Court of Appeal of Kenya
8 May 2026
JMJ. MativoMGM. Gachoka
11,534 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal threw out a land title judgment because the trial court ignored the Supreme Court's instructions, sending the 30-year Maasai Mara land dispute back to court.

What this practically means

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Executive summary

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This appeal arose from the ELC judgment of Mbogo, J. delivered on 6th March 2025 following the Supreme Court's remittal in Narok County Government vs Ntutu (Petition 3 of 2015). The Supreme Court had set aside the Court of Appeal's 2015 decision upholding a consent judgment in favour of the 1st respondent and remitted the suit to the ELC to determine the constitutionality and legality of title CIS-Mara/Talek/155 in line with Nyamweya J's ruling. The ELC instead confined itself to the validity of the adjudication process under the Land Adjudication Act, upheld the 1st respondent's title as a valid first registration under the repealed RLA, and ordered the County Government to render accounts of revenues collected since 1997. On appeal, Mativo JA held that the pivotal duty of a trial court on remittal is strict adherence to the terms of the remittal order, and that a judgment failing to determine material or grave issues directed by a superior court is a failure of justice warranting setting aside. The trial judge wrongly treated the parties' pleadings as an absolute bar to the constitutional questions, contrary to the settled exception permitting determination of unpleaded issues where evidence is led and the course of trial shows the issue was left to the court. Concluding that the real controversy delineated by the Supreme Court remained undetermined after over three decades of litigation, the Court set aside the ELC judgment and all consequential orders and remitted the suit to the ELC at Narok for hearing by any judge other than Mbogo J on a priority basis. The stay of execution of 16th July 2025 was vacated, control of the land reverted to the appellant pending determination, and the 1st respondent was ordered to account for and refund monies collected during the pendency of the stay. Each party bears its own costs. Gachoka JA concurred fully.

Questions the Court framed

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

  1. 1.Whether the ELC, in the remitted suit, adhered to the terms of the Supreme Court's remittal order directing determination of the constitutionality and legality of the 1st respondent's title
  2. 2.Whether the trial court misinterpreted the Land Adjudication Act regarding finality of the adjudication process and scope for corrections
  3. 3.Whether fraud, forgery, collusion or corrupt practices vitiated the 1st respondent's title
  4. 4.Whether the title constitutes a valid first registration under the RLA rendering it indefeasible
  5. 5.Whether the order for accounts and reimbursement of revenues was lawful and enforceable
  6. 6.Whether costs should have been awarded given public interest imperatives

Key legal issues

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01

Whether the trial court adhered to the Supreme Court's remittal order

Holding

The trial court failed to adhere to the remit; it narrowed its inquiry to the adjudication process under the LAA and left the constitutional questions directed by the Supreme Court undetermined, warranting setting aside the judgment.

Reasoning

The Supreme Court had directed the ELC to determine the constitutionality and legality of the 1st respondent's title in line with Nyamweya J's ruling, including whether the land was trust land, whether it was lawfully excised from the Maasai Mara National Reserve under the Wildlife (Conservation and Management) Act, and whether 'setting apart' requirements were met. Mbogo J declined to address the constitutional dimension on pleading grounds, bypassing the core controversy. Critical issues remained undetermined, constituting a failure of justice justifying setting aside the judgment and remittal.

p. 18
02

Whether unpleaded issues may be determined

Holding

The general rule is parties are bound by pleadings, but a court may determine unpleaded issues where evidence was led and the course of trial shows both parties treated the issue as part of the case.

Reasoning

The Court traced the principle to Odd Jobs vs Mubia [1970] EA 476, reaffirmed in Pacific Frontier Seas Ltd vs Kyengo and Olive Mwihaki Mugenda vs Okiya Omtata, and confirmed by the Supreme Court in Albert Chaurembo Mumba. Pleadings serve to inform the opposing party of the case to answer, but where evidence is led on an issue and both parties leave it to the court, the court may validly decide it. The trial judge was wrong to treat this as an absolute bar to addressing the constitutional questions.

p. 16
03

Appellate court's mandate on first-instance factual findings

Holding

An appellate court presumes the trial court's factual findings correct, and will interfere only on demonstrable misdirection, plainly wrong findings, inconsistency with the record, failure of justice, or internally inconsistent or speculative findings.

Reasoning

Under Rule 31(1)(a) of the Court of Appeal Rules, 2022, the appellate court starts with the presumption the trial court, having observed witness demeanour, was correct. Interference requires demonstrable and material misdirection, plainly wrong conclusions, findings inconsistent with the record, a total failure of justice, or internally inconsistent or speculative findings (Mwangi vs Wambugu [1984] KLR 453). Mere disagreement or leaving the court in doubt is insufficient.

p. 13

Legal principles established

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  • When a case is remitted by an appellate court for retrial or further hearing on specific issues, the trial court must strictly adhere to the terms of the remittal order.
  • A judgment that fails to determine material or grave issues raised in the pleadings or directed by a superior court is a failure of justice and a primary ground for setting it aside.
  • A court may determine unpleaded issues where evidence is led and, from the course followed at trial, both parties treated the issue as part of the case and left it to the court.

Court orders

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  1. 1.The judgment rendered by Mbogo, J. on 6th March 2025 in Ntutu vs County Council of Narok & 2 others and all consequential orders arising therefrom are set aside
  2. 2.Civil Suit No ELC 21 of 2021 is remitted to the ELC for hearing and determination by any other judge other than Mbogo, J., in line with the Supreme Court decision in Narok County Government vs Ntutu & 2 Others, to be heard on priority basis
  3. 3.The stay of execution orders issued on 16th July 2025 are vacated in their entirety and parties returned to status quo prior to the impugned judgment
  4. 4.Effective from the date of the judgment, control of the land in dispute reverts to the appellant until hearing and determination of the suit
  5. 5.The 1st respondent to account for and refund all monies collected during the pendency of the stay order
  6. 6.Each party to bear its own costs

The bench

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

JM
majority

Wrote the judgment

MG
concurring

Concurred fully with Mativo JA's reasoning and outcome without adding anything.

I am in complete agreement with the reasoning and the ultimate outcome of this appeal. I have nothing useful to add.p. 19
On appeal from
Environment and Land Court
Environment & Land Case 21 of 2021
Jurisdiction invoked
Appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022, from a first-instance remitted suit; judgment delivered pursuant to Rule 34(4) of the Court of Appeal Rules, 2022

Relief refused

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Determination of the constitutional and legality questions at the appellate stage

The constitutional questions were left undetermined by the trial court and cannot be resolved on appeal without a factual determination below

Costs

Each party shall bear its own costs.

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.

When a case is remitted back to a trial court by an appellate court for a retrial or further hearing on specific issues, the trial court’s primary duty is to strictly adhere to the terms of the remittal order.
p. 16Duty of trial court on remittal
By concentrating on the validity or otherwise of the adjudication process, the trial court narrowed its remit far below the clear directions issued by the Apex Court.
p. 18Failure to adhere to Supreme Court remittal
A judgment that fails to determine material issues or "grave issues" raised in the pleadings, or by the parties, or as directed or by a Superior Court is considered a failure of justice and is a primary ground for an appellate court to set the decision aside.
p. 18Failure to decide material issues
The judgment rendered by Mbogo, J. on 6th March 2025 in Ntutu vs County Council of Narok & 2 others (Environment & Land Case 21 of 2021) [2025] KEELC 1064 (KLR) (6 March 2025) (Judgment) all is hereby set aside in its interest together with all the consequential orders arising from the said judgment.
p. 19Final orders - setting aside
Civil Suit No ELC 21 of 2021, Livingstone Kunini Ntutu vs County Council of Narok and 2 others is hereby remitted to the ELC for hearing and determination by any other judge other than Mbogo, J. in line with the Supreme Court Decision in Narok County Government vs Ntutu & 2 Others
p. 19Final orders - remittal
Each party shall bear its own costs.
p. 19Costs

Issues in the judgment

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minor

The appellant's memorandum of appeal is dated 27th March 2025 while the impugned ELC judgment was rendered on 6th March 2025, and the judgment elsewhere states the dispute has been in court 'for over three decades' and 'for the last 30 years' relative to a 2026 judgment - the memoranda and hearing dates (submissions dated 25th July 2025; hearing on 27th January 2026) suggest a compressed timeline that may warrant verification of the dates as printed.

minor

The judgment records that Warsame, JA had concurred with the opinion but was elevated to the Supreme Court before delivery; he is not listed in the coram, so the judgment proceeds under Rule 34(4) with two judges.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (20)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "County Government of Narok v Ntutu & 2 others (Civil Appeal E052 of 2025) [2026] KECA 880 (KLR)", Case Analysis (2026). Civil Appeal (from ELC Case 21 of 2021, Ntutu vs County Council of Narok & 2 others). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/880/eng@2026-05-08

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