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ELCDismissedEnvironment and Land Court Land Appeal No. E023 of 2024

Opere v Nyakwama & another (Land Case Appeal E023 of 2024) [2026] KEELC 3474 (KLR)

Environment and Land Court
8 June 2026
4,384 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who sat back when his lawyer quit and never challenged a surveyor's encroachment report lost his appeal and must pay costs.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Migori against the judgment and decree of Hon. M. Okuche SPM delivered on 17th September 2024 in Migori CMELCC No. 60 of 2018 consolidated with No. 59 of 2018. The 1st Respondent had sued for a permanent injunction and removal of structures erected on a public access road adjacent to LR No. Suna East/Wasweta/7397, while the 2nd Respondent sought a mandatory injunction, eviction and permanent injunction over obstruction of access to LR No. Suna East/Wasweta 1/7112. The trial court entered judgment for the plaintiffs with costs. The Appellant, whose construction had encroached onto the access road and onto parcel 7112 by approximately six metres according to the County Surveyor's report of 16th July 2018, raised four grounds: that he was condemned unheard when his counsel discharged himself mid-hearing on 10th March 2020; that the suit was a boundary dispute reserved for the Land Registrar under Sections 18(2) and 19 of the Land Registration Act; and that his registered title to LR Suna East/Wasweta 1/11544 was indefeasible. The court, re-evaluating the evidence as a first appellate court, held that the Appellant was present in court when his counsel withdrew, never sought an adjournment or to cross-examine, and had already litigated and lost an application to set aside the proceedings, which he never appealed - the complaint was an afterthought. On proof, photographs and the unchallenged surveyor's report established encroachment on a balance of probabilities; there can be no boundary dispute between a parcel and a separating road of access, and indefeasibility of title cannot extend into a public access road. The appeal was dismissed with costs to the 1st 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 Appellant was condemned unheard
  2. 2.Whether the Respondents proved their case to the required standard
  3. 3.Who to bear the costs of the appeal

Key legal issues

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01

Whether the Appellant was condemned unheard

Holding

The Appellant was not condemned unheard; he was represented, admitted being present in court, chose not to cross-examine, and an attempt to relitigate the issue on appeal was rejected as an afterthought

Reasoning

The record showed counsel informed the court the client was ready to proceed; on disagreement with directions counsel discharged himself. The Appellant, present in court, did not seek an adjournment or recall. He had filed an application to set aside the proceedings which was dismissed on 20th June 2023 and was not appealed. Presenting the same complaint on appeal was impermissible.

p. 13
02

Whether the Respondents proved their case to the required standard

Holding

The Respondents proved encroachment on a balance of probabilities based on photographs and the surveyor's report of 16th July 2018; the dispute was encroachment, not an uncrystallised boundary dispute under Sections 18(2) and 19 of the Land Registration Act

Reasoning

Section 107 of the Evidence Act placed the burden on the Respondents, and the standard was the balance of probabilities. The County Surveyor's report found the Appellant had encroached onto the access road blocking parcel 7397 and onto parcel 7112 by approximately six metres. No evidence to the contrary was tendered. Parcels separated by an access road cannot have a boundary dispute between them.

p. 17

Legal principles established

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  • There can be no boundary dispute between a parcel of land and a road of access separating parcels; Section 18(2) of the Land Registration Act does not oust court jurisdiction over encroachment onto public access roads
  • A party who walks out of court or whose counsel withdraws and who does not seek an adjournment cannot later claim to have been condemned unheard

Court orders

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  1. 1.Appeal dismissed with costs to the 1st Respondent

The bench

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

majority

Wrote the judgment

On appeal from
Magistrate's Court at Migori
Migori CMELCC No. 60 of 2018 (consolidated with No. 59 of 2018)
Jurisdiction invoked
First appeal from subordinate court (Environment and Land Court Act, being an appeal from the judgment and decree of Hon. M. Okuche SPM)
Consolidated with
Migori CMELCC No. 60 of 2018 as consolidated with No. 59 of 2018

Relief refused

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Allowance of the appeal and setting aside of the trial court judgment

The appeal lacked merit; the Appellant was represented, chose not to cross-examine witnesses, and the Respondents proved encroachment on a balance of probabilities

p. 18

Costs

Appeal dismissed with costs to the 1st 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.

The upshot of the foregoing is that I am in agreement with the trial courts' findings on the whole judgment. Further, I find that the Appeal lacks merit. It is hereby dismissed with costs to the 1st Respondent.
p. 18Disposition - dismissal of the appeal
It is therefore my considered view that the Respondents proved their case on a balance of probabilities as no evidence to the contrary was tendered by the Appellant.
p. 17Standard of proof and sufficiency of evidence
It means there cannot be a boundary dispute between parcel of land and a road of access.
p. 17Scope of Section 18(2) Land Registration Act boundary disputes
This being a first Appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record
p. 9Duty of a first appellate court

Issues in the judgment

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minor

Date anomalies in the judgment text: submissions dated 8th December 2025 and 28th January 2026 yet the memorandum of appeal is dated 14th October 2024 and judgment delivered 8th June 2026

minor

Internal inconsistency in the party descriptions: 1st Respondent described as owner of Suna East/Wasweta 1/7397 in the plaint but 'Suna West/Wasweta 1/7397' in testimony, and Appellant's parcel described as 'Suna East/Wasweta 1/11544' in the memorandum of appeal but 'SUNA WEST/WASWETA 1/11544' in submissions

minor

Appellant's name spelled 'REGGY OPIYO OPERE' on the heading but 'the Appellant' references and parties vary in spelling across the record

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, "Opere v Nyakwama & another (Land Case Appeal E023 of 2024) [2026] KEELC 3474 (KLR)", Case Analysis (2026). Environment and Land Court Land Appeal No. E023 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3474/eng@2026-06-08

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