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ELCAllowedNot stated in the judgment as provided (appeal against Mbita Senior Principal Magistrates ELC Land Case No. E004 of 2023)

Okelo & 3 others v Abiga (Suing as a Legal Representative of the Estate of William Abiga (Deceased) & another (Environment and Land Appeal E050 of 2024) [2025] KEELC 6679 (KLR)

Environment and Land Court
25 September 2025
6,682 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that land within 30 metres of a lake or river is public riparian land that private titleholders cannot claim or evict fishing communities from.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court against the judgment of Hon. Nicodemus Moseti, Senior Principal Magistrate, in Mbita ELC Land Case No. E004 of 2023, in which the Respondents (the 1st Respondent as legal representative of the late William Abiga and the 2nd Respondent, registered co-proprietors of L.R. Rusinga/Kamasengere/571) obtained declarations of ownership, eviction of the appellants (officials of UTA Beach Management Unit), a permanent injunction and general damages of Kshs. 1,500,000 for trespass. The appellants, elected officials of a Beach Management Unit operating a fishing landing site on the suit parcel bordering Lake Victoria, contended that the occupied strip was riparian land established under fisheries regulations and that the trial court's judgment was per incuriam. Fred Nyagaka J identified two issues: whether the trial court erred in declaring the Respondents beneficial and registered owners, and whether it erred in awarding damages for trespass. Applying the settled first-appeal duty of re-evaluation, and relying on Rule 116 of the Water Resources Management Rules 2006 and Article 62 of the Constitution, the court held the occupied strip is riparian land and therefore public land, which a registered proprietor cannot claim privately. The trial court's contrary finding and award of damages were erroneous. The judgment and decree were set aside in their entirety, with costs to the appellants.

Questions the Court framed

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

  1. 1.Whether the trial court erred in declaring that the Respondents were the beneficial and registered owners of the suit land (in light of the riparian status of the occupied strip)
  2. 2.Whether the trial court erred in awarding damages for trespass

Key legal issues

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01

Status of the occupied strip as riparian/public land

Holding

The land occupied by the UTA Beach Management Unit is riparian land, hence public land, and the trial court erred in declaring the Respondents its beneficial and registered owners and in evicting the Appellants

Reasoning

The survey reports showed the suit land extends to the water with no demarcated riparian strip, which the judge held was an erroneous finding in law. Rule 116 of the Water Resources Management Rules 2006 defines riparian land up to 30 metres from the bank; Article 62(1)(l) classifies land between high and low water marks as public land. The landing site was established with the help of the late William Abiga, and BMUs are recognised administrative structures. The Respondents therefore could not claim the riparian strip privately.

p. 11
02

Award of damages for trespass

Holding

Once the land was held to be riparian/public land, the award of general damages for trespass of Kshs. 1,500,000 could not stand and was set aside

Reasoning

The judge reasoned that trespass requires entry on another's ground without lawful authority. Since the disputed area is riparian land used as a public fishing beach and landing site, the Respondents had no exclusive private title over it and the entry by the Appellants was not unlawful. The award, said to be made without supporting pleadings, therefore fell with the finding on ownership.

p. 12

Legal principles established

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  • Riparian land is public land under Article 62(1)(l) of the Constitution and, per Rule 116 of the Water Resources Management Rules 2006, may extend up to thirty metres from the bank; occupation of such a strip used as a fishing beach is not trespass by the registered owner
  • A registered proprietor whose title borders a water body cannot claim the riparian strip as private land; courts take judicial notice that titles adjoining lakes and rivers often overlap riparian land
  • On a first appeal the appellate court re-evaluates the evidence and draws its own conclusions while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The judgment and decree delivered by Hon. Nicodemus Moseti in Mbita Senior Principal Magistrates ELC Land Case No. E004 of 2023 delivered on 25th September 2024 is set aside in its entirety, with costs to the successful parties
  2. 2.The Appellants are awarded costs of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Mbita Senior Principal Magistrates Court (Environment and Land)
ELC Land Case No. E004 of 2023
Jurisdiction invoked
First appellate jurisdiction over the trial court's decision (Memorandum of Appeal dated 7th September 2024)

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 judgement and decree delivered by Hon. Nicodemus Moseti in Mbita Senior Principal Magistrates ELC Land Case No. E004 of 2023 delivered on 25th September 2024 is hereby set aside in its entirety. Costs to the successful parties now.
p. 12Final orders - setting aside of trial judgment
The Appellants are awarded costs of the appeal
p. 12Costs of the appeal
The existence of the riparian land did not need proof by way of evidence. The riparian land is a maximum of 30 meters from the bank.
p. 11Riparian land status and extent
To the extent that the suit land was riparian land the Respondents could not claim it.
p. 12Limit on registered proprietor's claim over riparian strip
Having established that the disputed occupied parcel of land is riparian land, which is public land, it follows that the trial court erred in its decision to restrain the appellants from utilizing the suit land.
p. 11Error of trial court in restraining appellants

Issues in the judgment

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minor

The registration dates of UTA Beach Management Unit are inconsistently stated in the judgment: the judgment records the BMU 'was registered in 1990 at first with certificates being issued in the years 2007 and 2011', while PW1 testified the certificate of registration was dated 28.9.2007 and DW1 stated 'It was registered in 28th September 2007', against the Plaintiffs' pleading of registration on 26th May 2011

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, "Okelo & 3 others v Abiga (Suing as a Legal Representative of the Estate of William Abiga (Deceased) & another (Environment and Land Appeal E050 of 2024) [2025] KEELC 6679 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (appeal against Mbita Senior Principal Magistrates ELC Land Case No. E004 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6679/eng@2025-09-25

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