Wekesa & 4 others v Kisibo (Environment and Land Appeal E003 of 2023) [2026] KEELC 5186 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court had jurisdiction to make orders in regard to the boundaries of the suit property
- 2.Whether the trial court was right in allowing the respondent's claim
Key legal issues
#Whether the Environment and Land Court has original jurisdiction to determine boundary disputes over land with general boundaries
It does not; such jurisdiction lies with the Land Registrar under section 18 of the Land Registration Act, and the court cannot order demarcation of general boundaries
Section 18(2) of the Land Registration Act bars the court from entertaining any action relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with that section. Regulation 40 of the Land Registration (General Regulations) sets out the procedure for ascertaining a missing or disputed boundary before the Registrar. The suit property's titles showed general boundaries, so the trial court, in ordering demarcation, acted without jurisdiction. The respondent ought to have filed a boundary dispute before the Land Registrar against owners of abutting parcels.
Whether orders of demarcation could lawfully be made against parcels whose registered owners were not parties to the suit
No; such orders condemned the owners of parcels 2076, 2077, 2078, 2079 and 2361 unheard, contrary to Article 50 of the Constitution
The official searches showed parcels 2076 and 2077 registered in the name of the deceased Mark Kusienya Sinino, parcel 2078 in the name of Jane Muhonja Omwami, and parcels 2079 and 2361 in the name of Mark Kusienya Sinino. The estate of Mark Kusienya and Jane Muhonja Omwami were not parties to the trial suit, yet the trial court made orders touching their parcels, denying them the right to a fair hearing under Article 50. The court also could not ascertain ownership of the five parcels at the time of filing suit as the searches predated it.
Whether the respondent proved ownership of parcel No. Kakamega/Lugari/2362 and entitlement to eviction and injunction
Yes; the respondent was the undisputed registered proprietor, no defence was filed, and the appellants' occupation amounted to trespass
Section 107 of the Evidence Act placed the burden of proof on the respondent even though the claim was unopposed. The fact that the respondent was the registered proprietor was not disputed as no defence was filed. Under sections 24, 25 and 26 of the Land Registration Act, his title was absolute and indefeasible, and no defence pleaded fraud, misrepresentation, illegality or corrupt scheme to impeach it. The appellants' evidence was irrelevant for want of pleadings, and their interference with the suit property amounted to trespass justifying eviction and a permanent injunction.
The role of the first appellate court
The first appellate court must re-evaluate the facts and the law and reach its own conclusions, making due allowance for not having seen or heard the witnesses
Citing Selle & Another v Associated Motion Boat Co Ltd and Gitobu Imanyara v Attorney General, the court restated the established principle that an appeal from a trial court is by way of retrial: the appellate court considers the evidence, evaluates it itself and draws its own conclusions, while bearing in mind that it has neither seen nor heard the witnesses.
Legal principles established
#- The jurisdiction to resolve disputes relating to general boundaries in the first instance is vested in the Land Registrar, and the court is barred by section 18 of the Land Registration Act from entertaining such disputes
- Evidence tendered without pleadings is of no legal consequence and must be disregarded
- A certificate of title confers absolute and indefeasible rights on the registered proprietor unless fraud, misrepresentation, illegality, want of procedure or corruption is proved
Court orders
#- 1.A declaration that the lower court had no jurisdiction to order the Land Registrar and surveyor to demarcate the boundaries of the suit property
- 2.A declaration that parcel No. Kakamega/Lugari/2362 is the property of the respondent
- 3.The appellants to vacate parcel No. Kakamega/Lugari/2362 within 90 days of the judgment and in default, eviction orders to issue
- 4.A permanent injunction restraining the appellants, their agents or servants from trespassing on parcel No. Kakamega/Lugari/2362, effective upon lapse of 90 days from the date of judgment
- 5.Costs of the suit in the lower court awarded to the respondent
- 6.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court, Butali (ELC)
- Butali ELC Case No. 13 of 2021
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in land matters
Relief refused
#Appellants' prayer that the entire trial court judgment be set aside
The appeal succeeded only on the demarcation order; the trial court's findings on ownership, eviction and injunction were upheld on the merits
Costs
Each party to bear its own costs of the appeal; costs of the suit in the lower court awarded 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.
It therefore follows that the jurisdiction to resolve disputes relating to general boundaries in the first instance is vested in the Land Registrar.
In the premises, I find and hold that the trial court had no jurisdiction to order the Land Registrar and surveyor to demarcate parcel No. Kakamega/Lugari/2362.
There having been no defence, the appellant’s evidence was irrelevant and of no legal consequence as evidence without pleadings can only be disregarded.
Thus, registration of land vests in the proprietor thereof absolute and indefeasible rights unless there is proof that the acquisition of the said title was by fraud, misrepresentation, illegality, want of procedure or corruption.
The appellants shall vacate parcel No. Kakamega/Lugari/2362 within 90 days of this judgment and in default, eviction orders to issue.
An order of permanent injunction is hereby issued restraining the appellants herein by themselves, agents or servants from trespassing on parcel No. Kakamega/Lugari/2362.
In view of the findings made in this appeal, each party shall bear its own costs of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wekesa & 4 others v Kisibo (Environment and Land Appeal E003 of 2023) [2026] KEELC 5186 (KLR)", Case Analysis (2026). ELC Appeal (Butali ELC Case No. 13 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5186/eng@2026-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.