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ELCDismissedEnvironment and Land Appeal (Homa Bay) - Memorandum of Appeal dated 27th August 2024, arising from MCELC/E049/2023 successor suit

Ochanda v Omune (Environment and Land Appeal E040 of 2024) [2025] KEELC 8450 (KLR)

Environment and Land Court
26 November 2025
NYNYAGAKA
4,130 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that a trespass claim stays in court even after a Land Registrar fixes a boundary, dismissing the appeal with costs.

What this practically means

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Executive summary

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The Appellant (defendant before the trial court) appealed against a ruling of the learned trial Magistrate dismissing his Notice of Motion dated 15th May 2024, by which he sought to strike out the Respondent's suit for want of jurisdiction under section 18(2) of the Land Registration Act and Regulation 40(6) of the Land Registration (General) Regulations, 2017. He argued that the dispute was a boundary dispute already determined by the Homa Bay County Land Registrar following a site visit on 18th September 2023 and a report dated 22nd December 2023 recommending that the map be amended, and that the Respondent's dissatisfaction could only be pursued by appeal under Regulation 40(6), not by a fresh suit invoking the court's original jurisdiction. The Respondent countered that the boundaries were already fixed by the RIM and titles; the suit concerned trespass and encroachment on parcel Kanyada/Kanyango/Kalanya/55, on which the Appellant had allegedly built, and was within the court's jurisdiction under section 13(2) of the ELC Act. Restating the role of a first appellate court and the law on jurisdiction, the court examined the plaint's prayers, which sought demolition of an encroaching structure and a permanent injunction. It held that the cause of action was trespass and encroachment, not boundary ascertainment; the Land Registrar's report was used only to establish the fact and extent of encroachment. Pleadings bound the parties and no issue outside them could be framed. The appeal was accordingly dismissed with costs to the Respondent.

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 finding that it had jurisdiction to entertain the dispute despite the determination of the boundary dispute by the Land Registrar (as framed by the court: 'Whether the trial court erred in finding that the trial court had jurisdiction to entertain the dispute')

Key legal issues

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01

Whether the trial court had jurisdiction over a suit whose cause of action was trespass where a boundary determination by the Land Registrar had already been made

Holding

The appeal was dismissed; the trial court correctly entertained the suit because the pleaded cause of action was trespass and encroachment, not ascertainment of a boundary

Reasoning

The court examined the prayers in the plaint and found they sought removal of an encroaching structure and a permanent injunction against trespass. Since the boundaries were already fixed (by the RIM and by the Land Registrar's exercise under section 18), the dispute was not one of boundary determination, which section 18(2) of the Land Registration Act reserves to the Registrar. The Land Registrar's report was relevant only as evidence of encroachment, not as the subject of challenge. Pleadings bound the parties, so the claim could not be recast as a boundary dispute.

p. 8
02

The role of a first appellate court

Holding

A first appellate court must re-evaluate and re-analyse the evidence and reach its own conclusions

Reasoning

Relying on Gitobu Imanyara and Abok James Odera, the court restated that an appeal from a trial is by way of retrial: the appellate court reconsiders the evidence, evaluates it itself and draws its own conclusions, while making allowance for not having seen or heard the witnesses.

p. 6

Legal principles established

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  • Where the pleadings and prayers premise the claim on trespass and encroachment rather than on the location of the boundary, the suit does not offend section 18(2) of the Land Registration Act even where the Land Registrar has fixed boundaries

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the Respondent

The bench

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

NY
majority

Wrote the judgment

On appeal from
Magistrates' Court (Environment and Land Court, Homa Bay)
MCELC/E049/2023 (succeeding suit; earlier suit MCELC/E049/2023 against Dalmas Ochanda Oroka)
Jurisdiction invoked
First appeal to the Environment and Land Court under the ELC Act; jurisdiction of the trial court considered under section 13(2) of the ELC Act and section 18(2) of the Land Registration Act

Relief refused

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Appeal against the trial court's ruling dismissing the Notice of Motion dated 15th May 2024 to strike out the suit for want of jurisdiction

The cause of action pleaded was trespass/encroachment, not a boundary dispute; the Land Registrar's report was relied on only to establish encroachment, so section 18(2) LRA did not oust the court's jurisdiction

p. 8

Costs

Appeal dismissed with costs to the Respondent

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.

A cursory reading of the prayers reveals that the Plaintifi seeks the orders premised on the allegation that the Defendant is trespassing onto his land and not on the issue of a boundary dispute. It follows that the cause of action is clearly trespass and encroachment.
p. 7Cause of action determined by pleadings and prayers
Additionally, I note that the use of the report by the land registrar was for the purposes o determining if there was encroachment or not, and to what extent it was, and not for determining a boundary dispute.
p. 8Land Registrar's report as evidence of encroachment, not boundary determination
The upshot of the foregoing is that the Appeal is without merit and the same is dismissed with costs to the Respondent.
p. 8Final orders - dismissal of the appeal
Jurisdiction is everything. Without it, a court has no powers to make one more step.
p. 7Jurisdiction - Owners of Motor Vessel Lilian S (as cited)

Issues in the judgment

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minor

Judgment records the Respondent filing 'Grounds of opposition dated 28th March 2025' and later 'Grounds of opposition dated 28th June 2025', an internal inconsistency in the dates of the same response

minor

The court discusses pleadings in the suit via a 'Plaint dated 21st January 2024' in the successor suit, but the record elsewhere indicates the earlier suit MCELC/E049/2023 was dismissed on 11th January 2024 and the Land Registrar's report dated 22nd December 2023 had not been implemented; the sequence is not fully reconciled in the judgment

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, "Ochanda v Omune (Environment and Land Appeal E040 of 2024) [2025] KEELC 8450 (KLR)", Case Analysis (2025). Environment and Land Appeal (Homa Bay) - Memorandum of Appeal dated 27th August 2024, arising from MCELC/E049/2023 successor suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8450/eng@2025-11-26

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