Pete v Kidiga (Environment and Land Appeal E057 of 2024) [2025] KEELC 4910 (KLR)
The bottom line
#The Environment and Land Court in Kisumu dismissed a landowner's appeal, upholding the Land Registrar's finding that he had encroached on his neighbour's land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether or not the appeal was filed out of time and heard without Record of Appeal being filed therefore incompetent
- 2.whether or not the court has jurisdiction to hear the appeal
- 3.whether the appeal has merit
- 4.Costs of the appeal
Key legal issues
#Whether the appeal was filed out of time
The appeal was filed within time, as notification of the Registrar's decision was not proved and time runs from notification
Regulation 40(4) allows an aggrieved party thirty days from the date of notification to appeal. The proceedings did not show the parties were informed of the decision on 20th June 2024. Under section 109 of the Evidence Act, the party asserting notification (the Respondent) had to prove it and did not. Time therefore ran from when the Appellant became aware of the decision.
Whether the court had jurisdiction
Jurisdiction vested in the ELC under Article 162(2)(b) and section 13 of the Environment and Land Court Act; the out-of-time objection fell away
The Respondent argued the appeal, filed out of time, was a nullity defeating jurisdiction. Since the court found the appeal was filed within time from the date of notification, the jurisdictional objection did not arise.
Whether the Land Registrar's decision was procedurally flawed
The grievances were not proved; the Registrar heard both parties, considered evidence of the parties, boundary features, maps and the Surveyor's report
The proceedings showed both parties were heard and no witnesses were denied an audience. The Registrar relied on the parties' evidence, ground features and maps, corroborated by the Surveyor's report. The substantive finding was encroachment by the Appellant onto the Respondent's parcels, and the appeal against that finding failed.
Legal principles established
#- The timelines in Regulation 40(6) run from notification of the Registrar's decision, and the party asserting notification bears the burden of proving it under section 109 of the Evidence Act
- A first appellate court must reconsider and re-evaluate the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal lacks merit and is dismissed
- 2.Costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- District Land Registrar, Kisumu
- Boundary dispute over Kisumu/Nyalunya/3405, 7235, 7237, 7238 and 3070
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and section 13 of the Environment and Land Court Act; appeal under Regulation 40(6) of the Land Registration (General) Regulations, 2017
Relief refused
#Allowing the appeal and setting aside the Land Registrar's decision dated 20th June 2024
The Appellant failed to prove the grounds of appeal; the Registrar heard both parties and relied on the Surveyor's report and boundary features on the ground
Order that a different Land Registrar other than Nicholas A. Obiero visit the disputed area
The appeal was dismissed in its entirety
Costs
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.
I find that the appeal was filed within time from the date the Appellant became aware of the decision appealed against.
The court finds that the appeal lacks merit and hereby dismiss it.
Costs to the Respondent.
this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect
Issues in the judgment
#The judgment refers to the appeal being a 'first appeal' from a 'trial court' although the decision below is an administrative determination by the Land Registrar
The grounds of appeal cite sections 14 and 18 of the Land Act, whereas the relief sought cites sections 14 and 87 of the Land Registration Act
The Lands Registrar is described as Respondent although the Appellant did not actually make him a party to the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pete v Kidiga (Environment and Land Appeal E057 of 2024) [2025] KEELC 4910 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 30th July, 2024 (ELC appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4910/eng@2025-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.