https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1166

Ole Kisua & 2 others v Kisanda Kilanda Enterprises (Civil Application E010 of 2026) [2026] KECA 1166 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1166 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Application E010 of 2026 JM Mativo, PM Gachoka & MB Kairaria, JJA June 12, 2026 Between Leteipa Ekedienye Ole Kisua 1st Applicant Tupwai Ole Tenkeet 2nd Applicant Sokoni Ole Tenkeet 3rd Applicant and Kisanda Kilanda Enterprises Respondent (An application for injunction pending appeal against the Judgment and decree of the Environment and Land Court at Narok (L.N. Gacheru, J.) delivered on the 17th day of December, 2025 in ELCA Cause No. E006 of 2023) Ruling 1.The Notice of Motion before us for determination is dated 19th of January 2026. The applicant has invoked section 3A (1) & (2) of the Appellate Jurisdiction Act and rules 5 (2) (b), 41 and 47 of the Court of Appeal Rules 2022 seeking the following orders:a.…Spent;b.… Spent;c.Pending the hearing and determination of the Appellants'/ Applicants' intended appeal herein, an injunction do issue, restraining the Respondent by itself, its agents, servants, members, proxies, or otherwise howsoever from entering into, interfering with the boundaries of, dealing in or with, or licensing any part of, assuming proprietorship of any part of, or otherwise howsoever interfering with the Appellants'/ Applicants' proprietary interest in the parcel NAROK/CIS-MARA/OLOLULUNGA/144 and restraining the Narok County Registrar and the Narok County Surveyor from conducting any survey of the Applicants' parcel NAROK/CIS- MARA/OLOLULUNGA/144 purporting to implement any aspect of the Judgement in Narok ELCA No. E006 of 2023 between the parties herein;d.That the costs of the motion abide the outcome of the intended appeal. 2.The application is hinged upon the grounds on its face together with the supporting affidavit of the 1st applicant, dated 19th January 2026 and a supplementary affidavit, sworn on 25th February 2026. In opposition, the respondent filed a replying affidavit, sworn on 18th February 2026, by Patrick Kertongo, an advocate for the respondent. Without saying much, it is not good practice for advocates to descend into the arena of the parties on disputed facts, but we say no more as nothing turns on this. 3.To contextualize the dispute that has been in our courts for more than two decades, we shall provide the background, albeit in summary. The dispute between the parties started way back in 2001 when the applicants sued the respondents in the Land Disputes Tribunal, Case No.14 of 2001, claiming encroachment into its parcels of land. On 24th February 2001, the Tribunal ordered that Government Officers of the District Registrar of Lands and the District Surveyor visit the area to mark the boundary between parcels No. 80, 81, 82, 144 and 126. 4.The applicants, dissatisfied with that ruling, appealed to the Rift Valley Provincial Land Disputes Tribunal. The Appeal Board set aside the order of the Narok Land Board. The respondent, being dissatisfied, filed an appeal in the High Court. The High Court heard the appeal on 16th November 2011. The parties entered into a consent to the effect that the Chief Land Registrar, in conjunction with the Narok District Surveyor, were to establish the boundaries shared by L.R. Narok/Cis- Mara/Ololunga/126/144, 80 and 81 and file a report in Court within 60 days. In the meantime, on 4th March 2015, Onyancha, J. allowed the appeal ordering the Narok District Registrar to visit the site within 90 days to restore the boundaries. 5.The applicants were dissatisfied with that order and filed Nairobi Civil Appeal No. 428 of 2018. This Court, differently constituted, allowed the appeal and remitted the case to the Environment and Land Court on the following limited question: to what extent was Parcels No. L.R. Cis-Mara/Ololunga, 144 overlapping into L.R. No. Cis-Mara/Ololunga/126. This was the premise of the hearing before Lucy Gacheru, J., who on 17th December 2025, pronounced herself as follows:“ 36.However, the Land Registrar and Surveyor who appeared in Court for examination, were not the makers of the said Report of 12th June 2012, and they informed the court that when they visited the ground, they could not determine the extent of encroachment and/ or overlap, as suggested by the Court of Appeal, because they encountered resistance from the proprietors of land parcels No. 80 and 8l, which borders land parcel No. 144. 37.The two land officials could therefore not own or disown the Report of 12th June 201l, and their evidence was not helpful in determining to what extent land parcel No. 144 has encroached and/or overlapped into land parcel No.126. 38.The interest of the court is to do justice. It is evident that there is a conflict herein between land parcels No. 126 and 144, and that conflict is whether the proprietors of land parcel No. 144, have encroached and/ or overlapped onto land parcel No. 126.This dispute is indeed a boundary dispute, and from the Report filed in court on 12th June 2012, and the evidence adduced by the Land Registrar and the Surveyor upon cross examination on the ground visit, and the earlier report, that evidence cannot aid the court in determining the extent of the encroachment and/ or overlap. 39.This case being a boundary dispute, how can the court determine the extent of the encroachment and/ or overlap? Boundary disputes are first handled by the Land Registrar, who has the jurisdiction to determine them under Sections 18 and 19 of the Land Registration Act. The Land Registrar- with the assistance of the District Surveyor should revisit the disputed parcels of land and fix the boundaries, basing such exercise on the available Registry Index Map. 40.Sections 18 and 19 of the Land Registration Act, 2012 provides that the duty of resolving boundary disputes and fixing boundaries of Registered parcels of land is the mandate of the Land Registrars. See the case of George Kamau Macharia v Dexka Limited (2019) eKLR, where the Court held as follows; -“From the above provisions of the law, it is manifestly clear that the above section gives the mandate to the Land Registrar to resolve boundary disputes of land with general boundaries. Registry Index Map (RIM) only indicate approximate boundaries and the approximate situation on the ground. Even if this Court was to hear and determine this matter it will still require the input of the Land Registrar. The framers of Section 18 (2) of the Land Registration Act placed this matter before the Land Registrar who has the technical advice and resources of the district surveyor to determine and ascertain the boundaries." 41.Further, given that there is history of hostility and resistance from the neighboring land owners; in carrying out this exercise of fixing the boundaries, the Narok County Land Registrar and Surveyor should be accorded sufficient security to carry out the said exercise. The said security should be given by the OCS Melelo Police Station, and the County Commissioner, so that the issue of the sizes of the two parcels of land No 144 and No 126 can be determined and resolved once and for all. Further, the said exercise shall also determine the extent of encroachment and/ or overlap if any of land parcel No 44, into Land Parcel No. 126 in accordance to the directions issued by the court of appeal. 442.Having considered the available evidence, the Judgment of the High Court HCCAPEAL No. 863 of 2001, and the Judgment of the Court of Appeal dated 31st March 2023, and the rival written submissions, this court determines the issue that was reemitted to this court by the Court of Appeal as above.” 6.It is this ruling that triggered the present application. Being aggrieved by that decision, the applicants have filed a notice of appeal dated 30th December 2023. At the hearing, the applicants were represented by Mr. Harrison Kinyanjui advocate while the respondents were represented by Mr. Kerongo advocate. The parties relied on their written submissions that they highlighted orally. The applicants’ written submissions are dated 25th February 2026. We note that they have submitted heavily on the historical background of this dispute, but on our part, we will only limit ourselves to the question of whether the applicant has satisfied the principles for grant of an order of injunction under rule 5(2) (b) of the Rules of this Court. Citing several authorities, the applicants argue that the grounds of appeal are weighty and arguable. The core of the grounds is that the learned judge did not have jurisdiction. The applicants also argue that the learned judge ignored the Court of Appeal Judgement and that the judge failed to consider the fact that no appeal was preferred against the orders of Rift Valley Provincial Land Disputes Tribunal. 7.On whether the appeal will be rendered nugatory, the applicants submitted that they will suffer absent stay, as the respondents will have benefited from a judgement that should not have been issued ab initio. The applicants further argued that they will suffer irreparable harm as only 2 parcels will have the beaconing done under the impugned judgement yet the appeal before the Rift Valley Land Disputes Tribunal was in respects of specific boundaries in relation to land parcels no. CIS-MARA/ OLOLUNGA/206, 126, 191, 192, 194, 193, 185, 186, 170, 200 and 201. 8.On its part, the respondents filed submissions dated 23rd February 2026 and a case digest dated the same date. Equally, the respondent has given a historical background to the dispute, and we will only refer to what is necessary for this application. The respondents state that the appeal is not arguable as the learned judge only directed the Land Registrar to confirm the extent of the boundaries between the disputed plots. To the respondent, that order does not require the respondent to enter, use, trespass or alienate the applicants’ land. To that extent, there can be no arguable appeal. 9.On the nugatory aspect, the respondent argues that the properties will not be altered in any form or otherwise, as the Land Registrar will only fix the boundaries and therefore, there can be no irreparable damage as argued by the applicants. Citing the case of Kange’the & Another vs. Muhia Muchiri Ng’ang’a [2017] KECA 30(KLR), the respondent submitted that the Court should consider whether an action complained of is reversible or if damages will be an adequate remedy; an issue that was not raised by the applicants in this application. The respondents’ position was thus that the appeal will not be rendered nugatory. 10.We have considered the application, the affidavits as well as the annexures thereto. We have also considered the oral and written submissions of the parties and analyzed the law. To succeed in an application for stay of execution, an applicant must satisfy the following twin conjunctive principles under rule 5 (2) (b) of this Court’s Rules: the appeal is arguable; and would be rendered nugatory if stay is not granted. 11.On the arguability of the appeal, it is trite law that an arguable appeal does not necessarily mean one which will succeed [See Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] KECA 701 (KLR)]. Furthermore, the applicant needs to only demonstrate that only one ground is arguable. The applicant annexed his draft memorandum of appeal dated 19th January 2026 that raised 19 grounds disputing the findings of the trial court. The applicant has raised several issues including but not limited to the question of jurisdiction and whether the impugned order issued is legally tenable. Without delving into the merits of the grounds, we are satisfied that the grounds are arguable but as to whether they will succeed, we leave that to the bench that will hear and determine the appeal. 12.Turning to the nugatory aspect, this Court in Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 others [2013] KECA 378 (KLR) held that whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved. 13.Looking at the prayers sought against the orders made by the trial court, coupled with the arguments before this Court, we have not been persuaded by the applicant that the appeal will be rendered nugatory if stay is not granted. A casual look at the issues and the judgment shows that the judge ordered the Land Registrar to fix the boundary between the disputed parcels of land. Is that reversible? Certainly yes. In the event the judge was wrong, would damages be an adequate remedy? This is another resounding yes. In the end, it is our finding that nothing will be rendered nugatory, as whatever action is taken by the respondents is reversible if the appeal succeeds. Upon balancing the rival submissions, we agree with the respondents that the applicant has not satisfied the second limb of the twin principles. 14.In view of the above, we come to the inescapable conclusion that the Notice of Motion dated 19th January 2026 lacks merit. It is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF JUNE, 2026.J. MATIVO......................................JUDGE OF APPEALM. GACHOKA C. Arb, FCIArb.......................................JUDGE OF APPEAL MURUNGI B. KAIRARIA......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR