https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4148

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLA E030 OF 2025** **ARMSTRONG LEONARD KABIRU NGURU………………..………………………..APPELLANT** **VERSUS** **GEOFREY CHEGE KIRUNDI…………………………………………………………RESPONDENT** ***(Being an appeal from the Judgment of the Learned Senior Resident Magistrate Murang’a Hon. Musambai E.Analo delivered on 11th July, 2025 in Murang’a ELC Case No. E018 of 2023)*** **JUDGMENT** 1. In the Memorandum of appeal dated 29-7-2025, the Appellant seeks two reliefs. 2. **That the Appellant’s appeal be allowed with costs and the orders issued on 11-7-2025 in Murang’a CM’s ELC Case No. E018/2023 be set aside and substituted with an order allowing the orders sought in the Plaint.** 3. **Costs of this appeal and of the lower Court be awarded to the Appellant .** 4. The appeal is premised on thirteen (13) grounds which read as follows. The learned magistrate erred in fact and in law in- 5. **disregarding evidence and failing to address his mind to the report of Francis Mwangi, Surveyor Murang’a County Government dated 4-6-2024;** 6. **holding that there was a dispute over a boundary demarcation against the weight of evidence;** 7. **failing to give reasons why he found that there was a boundary dispute when he had ruled earlier on a prelimary objection that there was no boundary dispute;** 8. **relying on the Defendant’s evidence yet the Defendant did not know the demarcation of his boundary yet the Plaintiff knew his;** 9. **holding that there was a dispute of boundary identification when the Appellant had presented evidence that there were beacons which clearly marked the boundaries of the Plaintiff’s plot which are admitted in the Land Registrar’s report dated 1-11-2023 where 2 beacons were identified and the second report dated 31-5-2024 where 4 beacons were identified;** 10. **disregarding the Defendant’s evidence that he built the house on the disputed area without regard or reading the official map and he just picked out an area and built thereon which showed that he had trespassed on the Plaintiff’s land;** 11. **failing to note that the boundary was well identified and failing to note that the Defendant consistently refused to attend all visists to resolve the issue of where his house had encroached on the Plaintiff’s land;** 12. **failing to note that the Land Registrar’s powers under Sections 18 and 19 of the Land Registration Act had been exhausted as the Land Registrar referred the matter to the County Surveyor who resolved the issue of encroachment and clarified the identification of the boundary;** 13. **holding that the dispute was of boundary identification yet the Defendant was categorical that there was no boundary dispute between his plot and the Plaintiff’s plot;** 14. **disregarding the Plaintiff’s evidence that the Defendant’s house had encroached 5 meters inside his plot and failed to give reasons for his decision;** 15. **failing to hold that the Defendant had encroached on the Defendant’s plot and failing to order that he do remove the house he had built on the Plaintiff’s land;** 16. **misapplying the law and failed to properly analyse the evidence tendered and therefore reached a wrong conclusion and decision in his judgment and** 17. **dismissing the Plaintiff’s suit with costs.** 18. The facts of the case according to the Appellant are as follows. Firstly, the Appellant is the registered owner of land parcel No. Loc.19/Gacharageini/Kiamuturi/T.128 which measures approximately 0.52 Ha while the Respondent owns L.R. Loc.19/Gacharageini/Kiamuturi/T.110. The two plots abut each other. Secondly, a dispute arose in the year 2019 when the Respondent built a semi permanent house and encroached on the Plaintiff’s land part of which is a quarry. In the year, 2020, the Respondent resumed construction and when the Appellant called him on telephone and also sent the Respondents’ brother to the Respondent asking him on both occasions to remove his house from the Appellant’s land. The Respondent did not co-operate. Thirdly, in the year 2023, the Physical Planner and the County Surveyor both from the County Gorvernment of Murang’a visited the grond and fixed the beacons. The Respondent did not attend even though he had been duly summoned. The visit confirmed that the Defendant’s house had encroached onto the Plaitniff’s land. Again, on 3-2-2023, the Mathioya Sub-County Physical Planning one Miss Wangechi, visited the ground to verify the encroachment and identified the beacons. Fourthly in the year 2018, Surveyors from the Murang’a County office visited the ground to widen the roads which were 10 feet wide instead of 20 feet. The roads were fixed without affecting the plots. After the survey, it was found that the common boundary between the plots of the Appellant and the Respondent *“was finished”* and the Appellant realized that the Respondent had encroached further into his plot by 5 meters and had fenced off a portion of the Appellant’s land. Finally the Appellant requested the Respondent to remove the illegaly constructed structrues from his land and when he refused to do so, the Appellant filed the lower court suit. 19. The facts of the case according to the Respondent are as follows. One, the Appellant is right about ownership of plot numbers Loc.19/Gacharageini/Kiamuturi/T.110 and T.128. Two, the Respondent has neither trespassed on the Appellant’s land nor constructed any structure thereon. Three, no evidence of the alleged visits to the suit parcels by the County Government Physical Planner has been filed and neither are there any reports by the said Physical Planner. Such reports and evidence would confirm the fixing of the beacons. Four, the Appellant has not sereved the Respondent with any notice requiring him to remove the portion of his house allegedly encroaching upon his land. Five, the report by the Land Registrar dated 1-11-2023 indicates that there is need to undertake a survey to establish the boundary between the parcels owned by the parties. Six, the Appellant’s claim as filed is not supported by any evidence and fails to establish any cause of action and should be dimissed more so because the Appellant did not discharge the burden of proof placed upon him by the law. 20. In his judgment dated 11-7-2025, the learned trial magistrate dimissed the Appellant’s suit with costs for the following reasons. Firstly, he found that the Appellant relied on reports and documentation from the Surveyor’s which was inconclusive and which stated that there was need to conduct further survey. Secondly, the court found that being a boundary dispute , the jurisdiction of the court was ousted by **Section 18(2)** of the Land Registration Act which provides that **“The Court shall not entertain any action or other proceedings relating to a dispute as to boundaries of registered land unless the boundaries have been determined by the Land Registrar of the area where the land is situated.” , or words to that effect.** 1. Counsel for the parties filed written submission dated 1-4-2026 and 27-4-2026 respectively. The Appellant’s counsel identified three issues for determination. 1. **Whether the Court correctly analysed the final report dated 4-6-2024 against the weight of evidence.** 2. **Whether the Court wrongly held there was a boundary dispute.** 3. **Whether the Court relied on evidence the Defendant gave in cross-examination.** On the other hand, the Respondent’s Counsel framed two issues, 1. **Should the Appellant’s appeal be allowed.** 2. **Who should bear the costs of the appeal.** 3. I have carefully considered all the material in the record of appeal, the written submissioms by both sides, the issues raised therein and the law cited. I find that the issues as identified will resolve the appeal. This being a first appeal, the principle in the case of **Selle vs. Associated Motor Boat Co. Ltd,1968 EA 123** applies. It is to the following effect. **“A first Appellate Court has a duty to reconsider, re-evaluate, and analyse the entire evidence on record and draw its own independent conclusions, while bearing in mind that it did not see or hear the witnesses testify and therefore give due allowance for that disadvantage. An appellate court is not bound by the trial Court’s findings of fact if the trial Judge failed to consider relevant circumstances or probabilities, misapprehended the evidence, or where findings based on witness demeanour are inconsistent with the evidence as a whole.”** 1. Regarding the first of the Appellant’s issues, I find that the trial magistrate correctly analysed the final report dated 4-6-2024. The said report is categorical that the Appellant’s land is bounded by an access road all round. It states at paragraph (iv), “ From the map, it was observed T.128 is bound by an access road all round.’’ If this is true, it would mean that the Appellant’s land and the Respondent’s land do not border each other. This contradicts the Appellant’s witness statement filed in Court on 23-3-2023 where it states as follows at the fourth line of paragraph 1. **“…The plot neighbours the Defendant’s parcel known as Loc.19/Gacharageini/Kiamuturi/T.110.”** The report also ties up with the same witness statement at paragraph 3 of page 1 where the Appellant is on record as saying as follows. **“There was a 10 feet road that was between my plot and the Defendant’s plot. However, after the survey was done the common boundary was finished and the 10 feet separating us became part of the Defendant’s plot… I realized that the encroachment further into my plot by a further 5 meters and fenced off a portion of my plot into his land.”** From the above, it is clear that it is the Appellant, rather than the Surveyor giving the evidence of the dimensions of the road and the encroachment. This evidence is not corroborated by the maps or the report dated 4-6-2024. The earlier report by the Land Registrar dated 1-11-2023 concludes in the following paragraph . **“Recommendation is for the County Government to complete the Planning and Survey of the township area, so that we can have a Published Registry Index Map to use as datum datum.”** All the above observations show the uncertaininty of the data available to the Land Registars and the Surveyors and the need for further investigation. Confronted by all this uncertainity and bearing in mind the burden on the Appellant to prove his claim againt the Respondent on a balance of probabilities, the trial magistrate was right to make the findings that he did. 1. The learned magistrate was right to conclude that the dispute related to the boundaries between the two parcels. While the Appellant was saying that there was encroachment onto his land by the Respondent, the Respondent was denying any such encroachment. The only way to resolve the dispute was by the Land Registrar and the Surveyor. After determining the boundaries, the issue of where the Respondent’s building lay would be resolved. There was no other way of resolving the dispute. The court had no jurisidiction in the determination of boundaries of registered land by virtue of Section 18(2) of the Land Registration Act. The absence of a map or pictures showing the extent of the encroachment weakened the Appellant’s case. The Court could not rely on his oral evidence which was not corroborated by expert evidence. If anything, the available expert evidence contradicted the Appellants case especially about the two parcels abutting each other. We know for sure that there is a road that separates the two parcels. 1. On the last of the Appellant’s issue, I do not think that the trial magistrate relied on the Respondent’s evidence given in Cross-examinantion. The totality of the evidence on record undoubtedly pointed to one thing, that the Appellant failed to preponderate his case against the Respondent on a balance of probabilities. 2. A look at the Respondent’s first issue when considered vis-a vis the three issues above leads to the inevitable conclusion that the Appellant’s appeal should not be allowed at all. The reasons for this are to be found in the three(3) foregoing paragraphs. 3. Finally, costs follow the event as per the proviso to Section 27 (1) of the Civil Procedure Act. It states: **“Provided that the costs of any action, cause or other mater or issue shall follow the event unless the Court or Judge shall for good reason otherwise order”.** I see no reasons for deviating from this time honoured principle. For the above stated reasons, I find no merit in the Appellant’s appeal which I dismiss with costs. The Respondent will also have the costs of the lower court. **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 29th day of June, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistans – Antony** **Appellant’s Counsel – Miss Ann Thungu** **Respondent’s Counsel – Miss Wanjiru holding brief**