https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3758

Outerspace Hotels Ltd v Kariuki & 3 others (Environment and Land Appeal E004 of 2024) [2026] KEELC 3758 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEELC 3758 (KLR) Republic of Kenya In the Environment and Land Court at Muranga Environment and Land Appeal E004 of 2024 MN Gicheru, J June 17, 2026 Between Outerspace Hotels Limted Appellant and Dickson Karume Kariuki 1st Respondent Ngata Munyinyi Denis 2nd Respondent Gaston Maina Ngondi 3rd Respondent Land Registrar, Kirinyaga 4th Respondent (Being an appeal of the Judgement of the Chief Magistrate’s Court at Murang’a dated 14th December, 2023 by Honourable P.N. Maina, CM in Civil Case No. 282 of 2014) Judgment 1.In the Memorandum of appeal dated 14-1-2024, the Appellant seeks the following reliefs.1.This appeal be allowed. 2.This Court do declare that the trial process of the Appellants Civil Case No. 282 of 2014 amounted to a mistrial and consequently remand the matter back to the Chief Magistrates Court at Murang’a and the same be placed before any magistrate other than Hon. P N Maina for hearing on priority basis. 3.In the alternative to (2) above, this Court evaluates the pleadings and evidence and do set aside the judgment in CM’s Court at Murang’a dated 14-12-2023 in case No. 282 of 2014 and the same the substituted with a judgment allowing the Appellant’s suit as prayed for in the amended plaint dated 24-4-2023. 4.Costs of this appeal be borne by the Respondents. 5.Such other or further relief as this Court may deem appropriate to grant. 2.The appeal is premised on fifteen(15) grounds which read as follows.The learned trial magistrate erred in fact and in law;-i.by failing to accord the Appellant an opportunity to present its case and have a fair hearing and in accordance with Article 50 of the Constitution of Kenya;ii.by denying the Appellant an opportunity to cross-examine the 1st Defendant;iii.by declining to conduct a site visit request by the Appellant citing fear of violence and technicalities that would not assist the Court, considering the nature of the case and subsequently in making a finding that plot No. A 68 does not exist on the ground;iv.by failing to fully appreciate and consider Pw 2’s testimony that she knew the location and size of her erstwhile plot A 68 and could identify the said property as shown to her upon allocation,v.by declining the Plaintiff’s unopposed request to issue summons to Kirinyaga County Surveyor;vi.by failing to distinguish plot A68 from plot A105 which is now Kiine/Sagana/388/303 and their dimensions respectively;vii.by failing to appreciate that the records of the allocation of plot No. A68 date back to 1988/1989 which is well before the alleged registration date of Kiine/Sagana/388/303 in 1991;viii.by combining/conflating separate and distinct issues of whether plot A68 exists, its dimensions and location on the ground, existence of plot A 105 which is now Kiine/Sagana/388/303, its dimensions and location on the ground, whether A105 which is Kiine/Sagana/388/303 encroaches on Plot No.A68 and if so, whether such encroachment was fraudulent and based on each and separate distinct finding, the commensurate relief thereto;ix.in finding that the Plaintiff had “nothing to show” in total disregard and suppression of the 32 exhibits tendered and admitted in evidence;x.in finding that the Plaintiff did not find it prudent to get copies of the Part Development Plan(PDP) yet the said PDP is contained in the Plaintiff’s list of documents as evidenced and extensively referred to in the Plaintiff’s written submissions up to the precise page location of the said PDP;xi.by failing to appreciate documentary evidence of public records of allocation as well as Part Development Plan (PDP) copies;xii.by failing to appreciate the provisions of Sections 44,45,81,82( e), 83 and 84 of the Evidence Act;xiii.by failing to appreciate the principles laid down by the Supreme Court in Dina Management Ltd. vs County Government of Mombasa and 5 Others;xiv.by effectively suppressing the evidence of the Appellant contrary to fair trial principles in Civil Cases that include the right to adduce and challenge evidence, the right to equality of arms, production of expert material and purposeful meaning to the right to a fair hearing andxv.failing to consider the totality of the uncontroverted evidence of the Appellant being, inter alia, the PDP, letters , minutes from the erstwhile Sagan Town Council confirming allotment and plot size, approval of transfer from previous allottee, the transfer itself, building approvals, multiple rates payment receipts evidencing payment of rates to the County Government of Kirinyaga up to and including the year 2023 and certified proceedings and judgment of Civil Case No. 337 of 2004, Senior Resident Magistrate’s Court at Kerugoya. 3.The facts of the case according to the Appellant are as follows. Firstly, it owns plot No. A 68 which had been allocated to Jason Nyambiri who sold it to Lisper Muthoni who sold it to the Appellant. Two, after the Plaintiff bought plot No. A68 from Lisper Muthoni in December 2000, the transaction was approved by the then Sagana Town Council vide minute No. 733/2000. Three, the Plaintiff prepared building plans for the construction of rental houses on the land. Four, the said plans were approved by the District Physical Planning Officer, Kirinyaga, Kenya Rural Roads Authority (KERRA) and the District Public Health Officer. All these approvals were in May 2011. Five, before the Appellant could start the project, the 1st Respondent fenced off the suit land. Six, earlier on 30-3-1999 and again on 31-7-2000, the 1st Respondent had written to the clerk Sagana town council for complaining that the owner of the neighbouring plot had encroached on his plot No. Kiini/Sagana/388/303 (size 138x100x157x138 feet) by putting sewage thereon. Seven, the Sagana Town Council had dealt with the dispute reported by the 1st Respondent and resolved that the plot measures 41 feet on the front side. This was further confirmed by a letter dated 18-12-2000 written to the 1st Respondent and Lisper Muthoni. At the time of the said letter , Lisper had not yet sold the suit plot to the Appellant. The letter of 18-12-2000 gave the front sizes of the plots as follows.Plot No. Front side lengthA 165 - 50 feetA 68 - 50 feetA 105 - 41 feetEight, the 1st Respondent was dissatisfied with the decision of Sagana Town Council and filed case No. 337 of 2004 at Kerugoya Magistrates’ Court. The case was dismissed because he was unable to prove that the size of his plot was more than 41 feet on the front side. Nine, the 1st Respondents plot No. 388/303 which borders the Appellants plot No. A165 has fully encroached on the Appellants land such that the Appellant’s has no land on the ground. Plot No. A 165 belongs to the Plaintiff and it is now A68 while the 1st Respondent’s which was originally A105 is now No. LR. Kiine/Sagana/388/303. Finally, the Appellant filed the lower Court case so that the boundary between his land and that of the 1st Respondent could be determined. 4.The facts of the case according to the Respondent are as follows. Firstly, the 3rd Respondent purchased L.R. No. Kiine/Sagana/388/303 from the 1st Respondent in the year 2011. Secondly, before the purchase, the 1st Respondent had showed him a certificate of lease which shows that it measures 0.1 hectares. He was taken round the plot and he later obtained a copy of a map from the Director of Surveys confirming the existence of the Plot. Finally, he then developed the plot by constructing a storeyed building which is now complete. 5.In the judgment dated 14-12-2023, the learned trial magistrate identified the following issues for determination at page 14 of the judgment.i.Whether the Defendants, without just cause unlawfully and fraudulently laid a claim over the suit property.ii.Whether the lower court could make an order of the cancellation and Rectification in favour of the 2nd and 3rd Defendants in respect of parcel No.Kiine/Sagana/388/303 then order a survey.iii.Whether the Appellant was entitled to the orders of injunction.iv.Whether the Appellant was entitled to mesne profits and costs. 6.The counsel for the 2nd and 3rd Respondents in his written submissions dated 19-3-2026 identified two issues for determination.a.Whether the record of appeal and the supplementary record of appeal are complete and if not, whether the appeal is incompetent.b.Whether there are merits in the appeal. 7.On the other hand the Appellant’s counsel’s written submissions are dated 25-10-2024 which is almost 17 months before the Respondents’ written submissions. The issues identified in the Appellants written submissions are as follows.a.Whether the Appellant was accorded a fair hearing (Grounds 1,2,3,5 and 14 of the memorandum).b.Whether Sections 44, 45,81, 82(e),83 and 84 of the Evidence Act were applied.c.Whether the principles in Dina Management case were applied.d.Whether the totality of the Appellant’s evidence was considered. 8.I have carefully considered the appeal in its entirety including the memorandum, the record, the written submissions, the law cited and the issues framed by learned counsel for the parties. I find that the issues as identified by learned counsel will resolve the appeal. Thus being a first appeal the principle in Selle vs Associated Motor Boat Co. Ltd[1968] E.A. 123 applies. It is to this effect-“A first Appellate Court has a duty to reconsider, re-evaluate and analyse the entire evidence on record and draw its own conclusions independently while bearing in mind that it did not see or hear the witnesses testify and give due allowance for that disadvantage.”Applying that principle to this case, I make the following findings on the issues raised. 9.Looking at the Respondents first issue, I find that it is not proper to raise the issue of an incomplete record of appeal in the final submissions. The appeal was admitted on 8-2-2024. On 26-2-2026 the counsel for the Respondents only complained about unpaginated submissions That was the time to raise the issue of an incomplete record of appeal. Having failed to raise this issue at the appropriate time, it is unfair to raise it abruptly in written submissions. The court having admitted the appeal way back on 8-2-2024, it is presumed under Order 42 13(4) Civil Procedure Rules that the record of appeal contained all the mandatory documents. The sub rule provide as follows.“Before allowing the appeal to go for hearing, the judge shall be satisfied that the following documents are on record, and that such of them as are not in possession of either party have been served on that party, that is to say;a.the memorandum of appeal;b.the pleadings;c.the notes of the trial magistrate made at the hearing;d.the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;e.all affidavits, maps and other documents whatsoever put in evidence before the magistrate;f.the judgment, order or decree appealed from, and, where appropriate, the order(if any) giving leave to appeal;Provided that-i.a translation into English shall be provided of any document not in that language;ii.the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).”The proceedings being mandatory documents required by law to have been filed must have been seen by the judge at the admission of the appeal on 8-2-2024. Secondly on this issue, it being an administrative issue, the completeness of the record should have been raised at the earliest possible opportunity and not abruptly in the written submissions. Finally, in the judgment dated 29-4-2025, which was set aside, at paragraph 11, from the 5th line, there is reference to the proceedings of 8-9-2022 and subsequent proceedings on 23-8-2023. The proceedings of the lower court were therefore presumably filed. 10.On the first of the Appellant’s issues, I find that the Appellant was accorded ample opportunity to present its case. All the Appellant’s applications for adjournment were allowed. I combine this with the second issue and find that the 1st Respondent could not be cross-examined because he did not record any evidence. Under Section 145(2) of the Evidence Act, only a witness who has given evidence on oath can be cross-examined. The subsection provides as follows-“The examination of a witness by the adverse party shall be called his cross-examination”For any person to be cross-examined, he must be a witness first and foremost. Since the 1st Respondent was not a witness, he could not be cross-examined by the Appellant’s Counsel.I have looked at the record and I have not seen any request by the Appellant’s Counsel that there be a site visit. What was requested for on 8-9-2022 was a resurvey. This was objected to by the Counsel for the 2nd and 3rd Respondents. The trial magistrate did not rule on this issue because the Appellant’s counsel was also applying for an adjournment which was allowed. Counsel for Appellant was given time to decide how to proceed. When the case proceeded on 23-8-2023, the Appellant’s Counsel called two witnesses and closed the Appellant’s case. There is nothing at all on record to prove that an application for a site visit was ever made. This finding applies to the 5th ground of appeal. No request is shown on record to have been made to summon the Kirinyaga County Surveyor. 11.Looking at grounds 4,6,7 and 8 in the memorandum of appeal, I find that the trial magistrate failed to address the issue of the sizes of the plots in dispute. All the pleadings and all the evidence emphasized that the 1st Respondent owned a plot whose front side was only 41 feet while the Appellant owned an adjacent plot with a front side measuring 50 feet and when the 1st Respondent was fencing his plot, he fenced the whole plot belonging to the Appellant. That was an issue that should have been determined at the trial. How big was plot No. Kiine/Sagana/388/303? Did it envelope plot No. A68 belonging to the Appellant? What happened to the Appellant’s Plot such that it ceased to exist? After the decision in Kerugoya magistrates’ Court Case No. 337/2004 which found the 1st Defendant’s plot to be no bigger than 41 feet at the front side, how did it come to grow in size to envelope the whole of the Appellant’s plot? The issue of the current size of plot No. 388/303 was at the heart of the dispute. Without determining the size of the plots, the dispute was not resolved. 12.Since the 2nd and 3rd Respondents acquired their land parcel No. 388/303 from the 1st Respondent, he was a key witness as how his land grew in size to envelope the Appellant’s land such that it ceased to exist. His failure to testify in this crucial aspect of the dispute dealt a mortal blow to the Respondents ownership of the bloated land. It is no wonder that the Counsel for the 2nd and 3rd Respondents was opposed to the proposed survey on 8-9-2022 when he stated as follows.“We are not comfortable with a resurvey. This is already surveyed area with specific boundaries.”If the Respondents have nothing to hide, why would they oppose a resurvey? The fact that they were not comfortable with a resurvey shows that they have something to hide. 13.I am in agreement with the Appellant’s Counsel’s submission that it was not enough for the 2nd and 3rd Respondents to merely say that they have a lease for L.R. No. 388/303. They had a duty to prove that all the land that they occupy was lawfully acquired by the 1st Respondent. Their title to the land was only as good as that of the 1st Respondent. The case of Dina Management Ltd Vs. The County Government of Mombasa and 5 Others is authority for the proposition that the protection of the right to own property does not extend to unlawfully acquired land. This is as per Article 40(6) of the Constitution of Kenya which provides as follows.“The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.”At paragraph 111 of the judgment dated 21-4-2023, the Supreme Court had this to say in the case of Dina Management (supra).“Article 40 of the Constitution entitles every person to the right to property subject to the Limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the Appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of title having been challenged, as we have already noted above, the Appellant could not benefit from the doctrine of bonafide purchaser”.Similarly, in this case, the 2nd and 3rd Respondents cannot take comfort in the fact that they have a lease without explaining how such a lease incorporates the Appellant’s land into the land that they bought from the 1st Respondent. 14.Given the above findings, the judgment of the learned trial magistrate dated 14-12-2023 cannot be allowed to stand. That notwithstanding, most of the orders sought by the Appellant cannot be allowed before establishing if there is indeed encroachment and the extent of such encroachment. The only prayers that can reasonably be granted are part of prayer ( c) pertaining to resurvey of land parcels numbers A68 Sagana Township and Kiine/Sagana/388/303 and the prayer for costs. 15.In arriving at this decision, I have borne in mind the provisions of Section 18(2) of the Land Registration Act which ousts the jurisdiction of the Court in determination of boundaries of registered land. I have also considered regulation 40 of the Land Registration (General)Regulations under Legal Notice No. 278 of 2017 which deals with Applications for re-establishing a missing boundaries or ascertainment of a boundary in dispute. In particular regulation 40(6) provides as follows.“Any party aggrieved by the decision of the registrar made under paragraph (5) may, within 30 days of the notification, appeal the decision to the Court.”This means, therefore, that after the boundary has been determined, the chips will fall where they may and the parties will know what action to take depending on the outcome of the exercise. 16.In conclusion and for the reasons already given, I order as follows.a.The judgment in CMCC Murang’a 282 of 2014 dated 14-12-2023 and all consequential orders is hereby set aside.b.There shall be a resurvey of plot numbers A68 Sagana Township and Kiine/Sagana/388/303 with a view to establishing their dimensions and ownership. The said resurvey to be carried out by the County Land Registrar, Kirinyaga County.c.The costs of this appeal and those of the lower Court to be borne by the Respondents jointly and severally.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 17TH DAY OF JUNE, 2026.M.N. GICHERU JUDGE.Delivered online in the presence of; -Court Assistants– Jackline and AntonyAppellant’s Counsel – Mr. Ndungo2nd and 3rd Respondent’s Counsel – Mr. Mwagiru holding brief