Ahaya v Isaya (Civil Appeal E070 & E071 of 2024 (Consolidated)) [2025] KEHC 19225 (KLR) (4 December 2025) (Ruling)
Neutral citation:
[2025] KEHC 19225 (KLR)
Republic of Kenya
Civil Appeal E070 & E071 of 2024 (Consolidated)
S Mbungi, J
December 4, 2025
Between
Ochieng Lukes Ahaya
Appellant
and
Yohana Muchisi Isaya
Respondent
Ruling
1.This is a ruling on a memorandum of appeal filed on 14th April 2024 by the appellant, Ochieng Lukes Ahaya. The appeal arises from the judgment of the Hon. Caroline Cheruiyot, delivered on 15th March 2024 in Kakamega SCC No. E030 of 2024. The judgment entered a decree in favour of the respondent, Yohana Muchisi Isaya, in the sum of two hundred and forty three thousand, seven hundred and fifty three (ksh 243,753) as compensation for the alleged demolition of a semi-permanent house. The court further awarded costs and interest from the date of judgment.
2.The genesis of this dispute lies in conflicting claims over land and an alleged act of destruction. The respondent instituted the suit claiming that between 26th and 30th July 2023, the appellant unlawfully trespassed onto and demolished his semi-permanent house. The respondent asserted that the demolition was conducted under the false pretext that the appellant had purchased the property from the respondent's aunt, Flora Makokha Wanja.
3.To support his claim, the respondent produced before the trial court:a.A breakdown of costs for the allegedly destroyed house totalling Kshs. 243,753/=, inclusive of iron sheets, stones, sand, metal windows, cement, wiring, doors, bricks, and labour.b.A copy of a title deed for land parcel South/Kabras/Bushu/3611, which interestingly lists the appellant and another as joint proprietors.c.A land search certificate for land parcel South/Kabras/Bushu/1430, indicating the respondent as the proprietor.
4.The appellant raised preliminary and substantive objections. The appellant averred that the suit property, South/Kabras/Bushu/1430, ceased to exist on or about 2nd February 2016 following a lawful subdivision. According to the appellant, the respondent was therefore knowingly relying on an obsolete title.
5.The appellant further contended that he is the rightful owner of one of the resultant subdivisions, parcel South/Kabras/Bushu/3611, and has never trespassed upon or demolished any structure belonging to the respondent.
6.In its judgment, the trial court found that the respondent had proved his claim on a balance of probabilities. The learned magistrate held that the respondent's cost breakdown was admissible it.
7.Aggrieved by this decision, the appellant filed the instant appeal, challenging the judgment on grounds, which this court has consolidated into the key issues.
8.The appellant’s defence, both before the trial court and in this appeal, fundamentally challenges the respondent’s legal interest in the property. The appellant contends, with documentary support, that:a.The land parcel South Kabras/Bushu/1430, upon which the Respondent bases his claim of ownership via a Land Search, was lawfully closed and subdivided on 2nd February 2016.b.The appellant is the registered proprietor of one of the resultant subdivisions, South Kabras/Bushu/3611.c.The issues concerning rights over this land were conclusively determined in Kakamega ELC Case No. 165 of 2017, a suit involving the same parties or their privies, which was concluded in September 2023.
9.Thus, this appeal challenges a judgment that arose from a dispute intrinsically tied to questions of title to land, ownership, and lawful occupation. The determination of whether the Respondent had any interest to protect, whether trespass occurred, and ultimately, whether damages are payable, is entirely contingent on first resolving these underlying land issues.
Analysis
10.This being an appeal, the duty of the court is to analyze a fresh evidence adduced at trial, re-evaluate and reconsider it so as to reach an independent determination bearing in mind the fact of not having seen or heard witnesses who testified. This was insisted in the case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, as the court stated that;
11.In Words and Phrases Legally Defined Vol. 3, John Beecroft Saunders defines jurisdiction as follows:
12.On the source of a Court’s jurisdiction, the Supreme Court of Kenya in Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others (2012) eKLR stated as follows: -
13.This appeal presents a unique procedural dilemma involving the interplay between the appellate jurisdiction of the High Court and the specialized subject-matter jurisdiction of the Environment and Land Court.
14.Concerning the High Court’s appellate jurisdiction over small claims court judgments, the High Court, by virtue of its unlimited original jurisdiction and supervisory role over subordinate courts, ordinarily possesses appellate jurisdiction over decisions from magistrates’ courts, including the small claims court. Article 165 (3)(a) of the Constitution of Kenya 2010 states:
15.Therefore, the appellant was procedurally correct to file this appeal in the High Court.
16.The Environment and Land Court’s exclusive subject-matter jurisdiction is outlines in article 162 (2)(b) of the Constitution of Kenya.
17.This mandate is exclusive. Once a dispute is identified as falling within this description, it is the Environment and Lands Court, and not the high court, that is constitutionally mandated to hear and determine it at first instance. The issues central to this appeal on whether the respondent has title or any legal interest in the suit land, and whether the appellant’s actions constituted a trespass, are examples of disputes relating to the use and occupation of, and title to land. This is also reiterated in Mbuki v Waweru & 3 others [2025] KEELC 2932 (KLR), where the court held that:
18.While the high court has the appellate pathway from the small claims court, it lacks the subject-matter jurisdiction to decide the substantive land issues that form the bedrock of this appeal.
19.The opposite situation also causes problems. The Environment and Land Court does have the power to handle land and environment issues, but it does not have the power to hear appeals directly from the Small Claims Court. Its power to hear appeals comes from the law, and it mainly hears appeals from Magistrates’ Courts when they are handling matters under the Environment and Land Court Act. That jurisdiction is different from the one held by the Small Claims Court.
20.Consequently, this appeal finds itself in a jurisdictional vacuum. To proceed to a merits hearing in this court would require this court to determine substantive questions of land law, which it is constitutionally barred from doing. This is a clear jurisdictional impediment.
21.Given this impasse, the appropriate mechanism to challenge the lower court’s decision is not a conventional appeal, but an application for judicial review in the high court since its primary concern is the legality, rationality, and procedural fairness of a decision-making process, rather than the mere correctness of the outcome.
22.High Court may delve into a substantive review of the decision. This evolution is grounded in Article 47 of the Constitution, which guarantees the right to fair administrative action.
23.Through judicial review, the high court would be exercising its constitutional supervisory jurisdiction to correct an error of law by an inferior court, without transgressing into the prohibited territory of re-determining substantive land issues.
Conclusion
24.For the reasons set forth above, this court finds that it lacks the jurisdiction to hear and determine this appeal on its merits. The foundation of the dispute is one concerning title to and occupation of land, over which the Environment and Land Court holds exclusive original jurisdiction.
25.The appellant’s recourse, should he wish to pursue the matter, lies in filing a proper application for judicial review in the high court, challenging the legality of the small claims court’s decision.
Orders
26.The appeal is struck out for want of jurisdiction.
27.For the avoidance of doubt, this strike-out is without prejudice to the appellant’s right to seek redress through such other lawful means as may be advised, including an application for judicial review.
28.Each party shall bear its own costs of this aborted appeal.
29.Right of Appeal 30 days.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 4TH DAY OF DECEMBER, 2025.S.MBUNGIJUDGEIn the presence of:-CA: Angong’aAdvocate, absent.Mr. Omari for the Appellant present.Mr. Ligama for the Respondent present