https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3166

Gedion & 2 others v Thuranira (Member of County Assembly & Ward Representative Ntima West Ward) & another (Land Case Appeal E109 of 2021) [2026] KEELC 3166 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELC 3166 (KLR) Republic of Kenya In the Environment and Land Court at Meru Land Case Appeal E109 of 2021 BM Eboso, J May 15, 2026 Between Stephen Kiogora Gedion 1st Appellant Stanley Mutwiri Kirigia 2nd Appellant Charles Murungi Kirigia 3rd Appellant and Samson Thuranira (Member of County Assembly & ward Representative Ntima West Ward) 1st Respondent County Government Of Meru 2nd Respondent (An Appeal against the Judgment of the Senior Principal Magistrate Court at Meru [Hon T M Mwangi - SPM] dated 16/9/2021 in Meru CMC Civil Case No 24 of 2014) Judgment Introduction 1.This appeal challenges the Judgment of the Senior Principal Magistrate Court at Meru (Hon T. M Mwangi – SPM] rendered on 16/9/2021 in Meru CMC Civil Case No 24 of 2014. Some of the key issues that fell for determination in the suit were: (i) Whether the respondents had committed acts of trespass on land parcel numbers Nthimbiri/Igoki/640; 641; and 644, owned by the appellants; and (ii) Whether the appellants had encroached onto the public road that abuts the above parcels. The trial court made a finding to the effect that the appellants had failed to prove their case on a balance of probabilities. The trial court, nonetheless, proceeded to issue unpleaded positive orders, among them; (i) an order directing the County Surveyor, the District Surveyor and the Land Registrar to re-establish the common boundaries between the three parcels and the abutting public road within 45 days before widening the said public road; and (ii) an order decreeing that 5 feet of the appellants’ parcels be annexed to widen the public road in the event that no encroachment onto the public road is established. 2.Aggrieved by the Judgment of the trial court, the appellants brought this appeal. One of the key issues to be determined in the appeal is whether the trial court erred in basing its decision on issues that had not been pleaded by the parties. Before I analyse and dispose the issues that fall for determination, I will briefly outline the background to the appeal; the grounds of appeal; and the parties’ submissions on the appeal. Background 3.At all material times, the 2nd respondent was the Ntima West Ward Representative in the County Assembly of Meru. He also served as the Chairman of the Committee on Delegated Legislations in the said County Assembly. In July 2013, he presented a notice of motion dated 22/7/2013, proposing to move the following motion in the County Assembly of Meru:“THAT this Hon County Assembly do resolve that all marked roads and/or roads to be designated as such within the Meru County do have a minimum width of 30 (thirty) feet to facilitate efficient flow of human and vehicular traffic as well as transportation of goods and services within the County.” 4.The motion was subsequently moved, debated and passed by the County Assembly of Meru on 23/7/2013. Subsequent to that, the Clerk of the County Assembly wrote to the Executive Arm of the County Government on 2/9/2013, conveying to the Executive the County Assembly’s Resolution, for the purpose of implementation by the County Executive. 5.Subsequent to that, the appellants filed Meru CMC Civil Case No 24 of 2014 against the respondents, alleging that in the month of September 2013, the 1st respondent “trespassed and visited” parcel numbers Nthimbiri/Igoki/640, 641 and 644, which were owned by the appellants and marked them with the intention of widening the width of the abutting public road from 20 feet to 30 feet. They contended that the 1st respondent wanted to annex parts of their parcels to widen the road. They termed the alleged actions of the 1st respondent as illegal and wrongful. They prayed for: (i) general damages for trespass on their lands; and (ii) a permanent injunction restraining the respondents against entering, trespassing on or interfering with their parcels or widening the abutting public road. They also prayed for costs of the suit. 6.The respondents filed a joint defence dated 6/3/2014, in which they contested the appellants’ claim. They denied the alleged trespass and averred that most public roads in Ntima had been encroached by owners of abutting parcels, adding that the appellants had encroached onto the abutting public road. They contended that it was against the above background that the County Assembly passed a public policy resolution calling for reinstatement of roads of access to the standard width of 30 feet. They added that owners of all other parcels that abutted the public road had voluntarily resolved to widen the public road. They urged the trial court to dismiss the suit. 7.The trial court proceeded to conduct trial without any reference to the jurisdictional framework in Section 18 of the Land Registration Act, relating to the court’s jurisdiction in boundary disputes. The trial court subsequently rendered the impugned judgment in which it made a conclusive finding to the effect that the appellants had failed to prove their claim to the required standard. The trial court, nonetheless, proceeded to issue the following unpleaded verbatim positive orders: 1.The County Surveyor, District Surveyor and Land Registrar to re-establish the common boundary between each of the L.P Nos Nthimbiri/Igoki/640/641 and 644 and the adjoining access road within 45 days before widening the road and in default any party is at liberty to apply. 2.Costs of (1) above shall be borne by the 2nd defendant. 3.Upon compliance with order (1) above, if the plaintiffs respective land parcels are found to have encroached onto the road, they shall vacate and remove their property from the encroached area within 30 days and in default eviction shall issue. 4.Upon compliance with order (1) above, if the plaintiffs’ respective land parcels are found not to have encroached onto the road and it is intended to widen the road, the 2nd defendant may annex not more than 5 feet of the plaintiffs’ land parcels bordering the road upon strict adherence to the provision of the Constitution and relevant legislation on compulsory acquisition. 5.Injunctive orders are discharged. 6.Suit against 1st defendant is dismissed with costs. 7.Suit against 2nd defendant is dismissed with no orders as to costs.” Appeal 8.Aggrieved by the judgment and disposal orders of the trial court, the appellants brought this appeal vide a memorandum of appeal dated 15/10/2021. The memorandum of appeal was amended on 16/10/2024. The appellant advanced the following nine grounds of appeal: 1.That the Learned Magistrate erred in law and in fact in finding that the appellants had not proved their claim of trespass on the required standard when the appellants had produced both documentary and photographic evidence in support of their claim. 2.That the Learned Trial Magistrate erred in law and in fact in disregarding the Government Surveyor’s testimony even when the same had high probative value in this matter. 3.That the Learned Trial Magistrate erred in law and in fact in holding that the appellants’ boundaries had to be re-established when there was no basis at all for that finding. 4.That the Learned Trial Magistrate erred in law and fact in holding that public participation was unnecessary in the proposed motion to widen the alleged access road which hived off the appellants’ parcels. 5.That the Learned Trial Magistrate erred in law and fact by basing his decision on issues that were not pleaded by the parties before the court for trial. 6.That the Learned Trial Magistrate further erred in law and fact by awarding costs to the 1st defendant whereas it rightly held that it was the 2nd defendant who failed to take the initiative to resolve the boundary dispute. 7.That the Learned Trial Magistrate erred in law and by disregarding the judicial authorities which were rendered by the appellants in support of their case. 8.That the Learned Trial Magistrate erred in law and fact by awarding the 1st defendant under the circumstances of this case. 9.The judgement of the Learned Trial Magistrate is bad in law and the same is against the weight of evidence. 9.The appellants prayed for an order setting aside the judgment of the trial court and allowing their claim as prayed in the plaint. They also prayed for costs of the appeal. Appellants’ Submissions 10.The appeal was canvassed through written submissions dated 28/3/2025, filed by M/s Kiogora Arithi & Associates Advocates. Counsel for the appellants submitted that the appeal was premised on the following issues: (i) the claim of trespass against the respondents on the appellants’ parcel of land [sic]; (ii) the lack of public participation in the hiving off of the appellants’ parcels of land for the purpose of road expansion; and (iii) the lack of compensation to the appellants for the compulsory acquisition. 11.Counsel submitted that the respondents stated in the trial court that the expropriation of the appellants’ land was done pursuant to a public policy resolution by the Meru County Assembly, which purportedly called for reinstatement of all marked roads to the standard width of 30 feet. Citing Articles 40 and 67 of the Constitution and Sections 107, 111 and 112 of the Land Act, counsel submitted that the actions of the respondents infringed on the appellants’ right to property and violated the mandatory requirements on compulsory acquisition of private land for public use. Counsel argued that the appellants had lost their land through illegal compulsory acquisition by the respondents. Counsel urged this court to allow the appeal. Respondents’ Submissions 12.The respondents opposed the appeal through written submissions dated 3/4/2025, field by M/s Mithega & Kariuki Advocates. Counsel for the respondents identified the following as the key issues that fell for determination in the appeal: (i) Whether the appeal was fatally defective and incompetent; (ii) Whether the appellants proved their claim of trespass; and (iii) the question of costs of the appeal. 13.Counsel submitted that the appeal was fatally defective and/or incompetent because the appellants failed to include in their record of appeal the following critical documents: (i) the respondents’ memorandum of appeal; (ii) the respondents’ defence; (iii) the proceedings of the trial court; and (iv) the decree of the trial court. Citing Order 42 rule 13(4) of the Civil Procedure Rules and, inter alia, the pronouncement of the Supreme Court of Kenya in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 other [2015] eKLR, counsel submitted that failure to include the above documents in the record of appeal rendered the appeal fatally defective/incompetent. Counsel urged the court to strike out the appeal on the above ground. 14.On whether the appellants proved their claim of trespass, counsel cited Sections 107, 109, 110 and 112 of the Evidence Act which relate to the burden of proof. Counsel argued that based on the appellants’ evidence, the appellants continued to enjoy possession and usage of their parcels without any interference from the respondents, adding that there was no evidence of encroachment onto the appellants’ land by the respondents. Counsel for the respondents submitted that there was no evidence demonstrating that the respondents had interfered with the boundaries of the suit parcels or destroyed any of the appellants’ developments and crops. Counsel urged the court to dismiss the appeal and award the respondents costs of the appeal. Analysis and Determination 15.The court has read and considered both the original record of the trial court and the record filed in this appeal. The court has also considered the parties’ respective submissions in the appeal. Lastly, the court has considered the legal frameworks and the prevailing jurisprudence on the key issues in the appeal. The following are the key issues that fall for determination in the appeal: (i) Whether the appeal is fatally defective due to omission of critical documents in the record of appeal; (ii) Whether the trial court erred in basing its decision on issues that had not been pleaded by the parties before it; and (iii) Whether the appellants proved their claim of trespass against the respondents. Before I dispose the issues, I will briefly outline the principle that governs this court when exercising jurisdiction as a first appellate court. 16.The task of a first appellate court was summarized by the Court of Appeal in the case of Susan Munyi v Keshar shinai (2013) eKLR as follows:“As a first appellate court our duty of course is to approach the whole evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive to our own independent conclusions.” 17.The principle was similarly outlined in Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows:“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-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 18.Is this appeal fatally defective due to non-inclusion of critical documents in the record of appeal? When this appeal came up for directions on 10/2/2025, counsel for the respondents did not raise any issue relating to missing documents in the record of appeal. He instead urged the court to admit the appeal and dispose it on merits. Consequently, on 10/2/2025, the appeal was admitted for hearing and disposal directions were issued. Upon reading the record of appeal at the stage of preparing to write the judgment in the appeal, the court noted that the above documents were missing. Consequently, the court issued the following order on 7/10/2025: 1.This appeal is scheduled for judgment on 5/11/2025. In the past, the judgment date had to be vacated because the advocates had misled the court that the appellants had filed written submissions, only for the court to discover no such submissions had been filed. 2.On 10/2/2025, the parties’ advocates invited the court to admit the appeal for hearing. While preparing to write the judgment, it has emerged that the record of appeal does not have typed and certified copies of proceedings of the trial court. Also missing from the record of appeal are: (i) the memorandum of appearance; (ii) the defence; and (iii) certified copy of the decree of the trial court. 3.Let the parties attend court on 5/11/2025 at 9.00 a.m to show cause why the appeal should not be struck out in limine on the above grounds. Due to the missing important documents, the order reserving a judgment date in this appeal is hereby vacated. 4.The Court Registry shall ensure this order is extracted, uploaded onto the CTS and served on the parties’ advocates within 48 hours. 19.On 5/11/2025, the parties, through their advocates [Mr Arithi and Ms Mugo respectively], attended court and submitted on the notice to show cause. Counsel for the appellants submitted thus:“We are here on a notice to show cause. First, I wish to apologize to the court for the missing documents. Other than the documents itemized by the court in its order, also missing is the amended memorandum of appeal. I plead for 14 days within which to remedy the omissions.” 20.On her part, counsel for the respondents submitted as follows:“We are willing to accommodate them.” 21.Consequently, the court made the following verbatim orders:“ 1.The appellants are granted 14 days to remedy the omissions. 2.There shall be leave to file supplementary submissions should need arise. 3.Mention on 2/12/2025.” 22.It is clear from the above court record that the issue of missing documents in the record of appeal was dealt with and was resolved amicably through the parties’ submissions on 5/11/2025. The parties’ consensus culminated in this court’s order of even date. 23.Even if the issue had not been resolved, I do not think this is the kind of omission that would attract a striking out order in this court at this stage. I say so because, unlike the Supreme Court and the Court of Appeal which exercise appellate jurisdiction solely on the basis of the filed record of appeal, this court [the Environment and Land Court] exercises appellate jurisdiction on the basis of both the original record of the trial court and the filed record of appeal. This court is obligated to look at the original record of the trial court. Consequently, unless there is evidence of deliberate non-compliance by a party to an appeal before this court, the court would be reluctant to lock an appellant out of the seat of justice on the basis of an inadvertent omission to include a document in the record of appeal. 24.For the above reasons, the finding of the court on the first issue is that the issue of missing documents in the record of appeal was resolved amicably by the parties on 5/11/2025 and is now spent. 25.Did the trial court err in basing its decision on unpleaded issues? At paragraph 8 of the impugned judgment, the following are some of the key issues that the trial court identified for determination and proceeded to determine :- 1.Whether the defendants had trespassed on plaintiff’s lands. 2.Whether the boundary between the plaintiffs’ land with the access road should be re-established. 3.If the answer in (2) above is in the affirmative, who should bear the costs thereof. 4.If the plaintiffs’ land parcels are found to have encroached into the access road should the remedy of vacation of encroached area suffice. 5.If the plaintiffs’ land parcels are found not to have encroached on the access road, is the option of compulsory acquisition available to the 2nd defendant. 6.Who should bear costs of the suit. 26.Issue number (1) clearly arose from the pleadings that were before the trial court. However, issue numbers 2, 3, 4 and 5 were not pleaded by the parties. None of the parties asked for an order decreeing re-establishment of the boundaries. None raised any of the four issues. 27.Having introduced issues that had not been pleaded, the trial court proceed to issue disposal orders that had not been sought by any of the parties. This happened against a background where the trial court had made a definitive finding to the effect that the appellants had failed to prove their claim. There was no counterclaim by any of the respondents. Among the impugned orders was one decreeing that in the absence of encroachment onto the public road, each appellant was, nonetheless, to part with 5 feet of their parcels abutting the public road. Clearly, these were errors. The source of the errors was partly due to the nature of the dispute that was before the trial court and the fact that the trial court did not direct itself to the binding framework in Section 18 of the Land Registration Act. I say so because it does emerge from the upleaded issues which the trial court identified for determination that the trial court realized that the dispute that was before it was a boundary dispute. 28.Did the trial court act in accordance with the law upon realizing that what was before it was dominantly a boundary dispute? Section 18 of the Land Registration Act expressly barred the trial court from exercising jurisdiction relating to general boundaries in the following clear terms:-“(1)Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.(2)The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.(3)Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary:Provided that where all the boundaries are defined under section 19 (3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act (Cap. 299).” 29.It does emerge from the pleadings of the parties, and from the evidence presented and the judgment of the trial court that the dispute before the trial court related to the question of the correct location of the boundaries of the appellants’ parcels in relation to the abutting public road. It is clear from the impugned judgment that the trial court clearly realized that it was seized of a boundary dispute. 30.A trial court becomes properly seized of jurisdiction over a boundary dispute only after the Land Registrar has made a boundary determination and fixed the boundary within the requirements of Section 18 of the Land Registration Act. Upon the Land Registrar complying with the requirements of Section 18 of the Act, the boundary ceases to be a general boundary and becomes a fixed boundary. When seized of a boundary dispute relating to a fixed boundary, the trial court can properly exercise jurisdiction over the dispute. Courts do not have jurisdiction to entertain or determine boundary disputes relating to general boundaries. 31.Not too long ago, the Court of Appeal interrogated the question of jurisdiction of courts in boundary disputes and interpreted the law in Azzuri Limited v Pink Properties Limited (Civil Appeal No 93 of 2019 as follows:-“(21)On our part, looking at the impugned judgment, it is clear to us that the decision of the trial court was primarily based not only on the weight of the evidence, but on the failure by the appellant to follow the laid down grievance handling mechanism; namely, referral of the dispute to the Land Registrar as per section 18 of the Land Registration Act. It is common ground that the suit land is in a general boundary area (as opposed to a fixed boundary area). Resolution of disputes in a general boundary area is provided for under section 18 (supra) which states:(1)Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.(2)The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.(3)Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary:Provided that where all the boundaries are defined under section 19(3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act, (Cap. 299).(22)This means that under the aforesaid provisions, boundary disputes pertaining to lands falling within general boundary areas must be referred to the Land Registrar for resolution; while disputes pertaining to lands with fixed boundaries may be investigated and possibly resolved simply through a surveyor. It was in appreciation of this provision that the learned Judge went on to hold in part that“Having found an existing dirt road, which is a physical feature, and the Defendant’s wall in place, it was incumbent on the Plaintiff, to report any issue of encroachment by its neighbours to the Land Registrar so that he could fix the boundaries and ascertain if indeed there was encroachment.Instead, the Plaintiff resorted to reporting the issue to the Assistant County Commissioner, Malindi who summoned the Defendant vide his letter dated 30th December, 2014.When the efforts by the County Commissioner to resolve the dispute failed, the Plaintiff involved the District Surveyor who prepared a report, which is the basis of the current suit. The filing of the current suit before referring the dispute to the Land Registrar was contra-statute”.(23)From this analysis of the law, it should be clear from the above that, we are in agreement with the learned Judge’s conclusion that the dispute ought to have been heard by the Land Registrar as stated in the statute. Jurisdiction is everything. It has been said many times before, that, without it a court has no powers to make one more step, irrespective of the strength and nature of evidence in the parties’ possession. Further and still on that aspect, this court has in the case of Kimani Wanyoike versus Electoral Commission Civil Appeal No. 213 of 1995 (UR) held that:-‘Where there is a law prescribed by either the Constitution or an Act of Parliament governing a procedure for the redress of any particular grievance that procedure should be strictly followed”.In this case, reference of the dispute to the Environment and Labour Court at first instance was proscribed by statute and on that account alone, the appellant’s case was a nonstarter. Although this matter would have rested on this point of jurisdiction, we will deal with the issue of evidence purely because counsel made submissions on the same and there was a determination by the Judge.” 32.In the suit that gave rise to this appeal, there was no evidence that the material boundaries had been determined and fixed by the Land Registrar. In the absence of that evidence the boundaries in contest were general boundaries. The trial court had no jurisdiction to proceed with the hearing and determination of the dispute. 33.The court is alive to the fact that the appellants were faced with a threat where the County Assembly had passed a resolution calling for the widening of the width of roads, including the road that is the subject of this appeal. They were entitled to approach the court for interim relief. However, the court was, by law, required to await the determination and fixing of the boundaries by the Land Registrar before proceeding to trial. 34.It does emerge that the Lower Court proceeded to conduct trial in a dispute where there was no evidence of compliance with the requirements of Section 18 of the Land Registration Act. Secondly, the trial court proceeded to grant positive orders that had neither been pleaded nor sought by any of the parties. 35.That is not all, the trial court proceeded to assume the jurisdiction granted to the Land Acquisition Tribunal and suo motto decreed seizure of 5 feet of each appellant’s parcel in the event there was no encroachment onto the public road. Primary jurisdiction over disputes relating to compulsory land acquisition are vested in the Land Acquisition Tribunal. The trial court had no jurisdiction to issue the above order which it issued suo motto. For the above reasons, the court finds that the trial court erred in basing its decision and disposal orders on unpleaded issues. The result is that the judgment of the trial court cannot stand. 36.Did the appellants prove trespass by the respondents? Did the respondents prove encroachment by the appellants? As the parties alleging trespass, the appellants were expected to move the Land Registrar to determine and fix the boundaries between their parcels and the abutting public road. They filed their case prematurely. They were only entitled to approach the court for interim measures of protection pending determination and fixing of the boundaries in terms of Section 18 of the Land Registration Act. In the circumstances, my finding on the issue is that the claim for trespass in the context of a boundary dispute was presented to the trial court prematurely. The court had no jurisdiction to entertain it until the boundaries were determined and fixed by the Land Registrar. The same law and principle apply to the allegation of encroachment which was made by the respondents in their joint defence. 37.For the above reasons, this appeal succeeds only to the extent of setting aside the judgment of the trial court. However, because the trial court did not have jurisdiction to entertain a boundary dispute relating to general boundaries, the judgment of the trial court will be substituted with an order striking out the suit. 38.On costs, the respondents alleged encroachment but did not bother to pursue the redress mechanisms provided under Section 18 of the Land Registration Act before embarking on road widening. They instead sought to widen the public road without first inviting the Land Registrar to fix the boundaries. For the above reasons, parties will bear their respective costs of the appeal and the suit in the Lower Court. Disposal Orders 39.In the end, for the above reasons, this appeal succeeds only to the above extent and is disposed in the following terms:a.The Judgment in Meru CMC Civil Case No 24 of 2014 dated 16/9/2021 is set aside wholly and is substituted with an order striking out the suit for non-compliance with the mandatory requirements of Section 18 of the Land Registration Act.b.Parties shall bear their respective costs of this appeal and costs of the suit in the Lower Court. DATED, SIGNED AND DELIVERED AT MERU THIS 15TH DAY OFMAY, 2026.B M EBOSO [MR]ELC JUDGE