https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1138

Osebe v Omaore & 2 others (Civil Appeal 102 of 2019) [2026] KECA 1138 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1138 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 102 of 2019 HA Omondi, LK Kimaru & JM Ngugi, JJA June 12, 2026 Between Daniel Osebe Appellant and Manenga Omaore 1st Respondent Joseph Nyangau Nyaroo 2nd Respondent John Osiango Ogechi 3rd Respondent (Being an appeal from the Ruling of the Environment and Land Court of Kenya at Kisii (Mutungi, J.) dated 12th October, 2018, in ELC Case No. 466 of 2013 Environment and Land Case 466 of 2013 ) Judgment 1.The respondents instituted suit before the Environment and Land Court (ELC) at Kisii against the appellant, contending that the 1st respondent was the registered proprietor of land parcel No. North Mugirango/Boisanga/1209, while the 2nd and 3rd respondents were the legal administrators of the estates of the late Nyaroo Mesa and the late Ezekiel Ongechi Mesa, the registered proprietors of land parcels North Mugirango/Boisanga/1210 and North Mugirango/Boisanga/1211 respectively. 2.The respondents pleaded that the appellant was the registered proprietor of land parcel number North Mugirango/Boisanga/1908. It was their case that sometime prior to or in 1991, the appellant unlawfully took possession of portions of the respondents’ parcels of land, namely North Mugirango/Boisanga/1209, 1210 and 1211, measuring approximately one and a half acres in total. They averred that the appellant’s attempt to assert a claim over the said parcels of land through an earlier court case was unsuccessful, the suit having been dismissed in the year 2000. 3.The respondents further alleged that in 1991, they discovered that the appellant had unlawfully entered upon the suit land without their consent, trespassed thereon, cultivated the land, and erected structures on the occupied portion. They stated that when confronted over his occupation of the land, the appellant asserted that he had a right to the land and would continue to occupy it permanently. The respondents maintained that the appellant’s actions were unlawful, malicious, and constituted a violation of their proprietary rights over the said parcels of land. They contended that the occupation thereof deprived them of the use and enjoyment of the affected portions of land and occasioned them loss, damage,humiliation, mental anguish and stress. The respondents further averred that unless restrained by the court, the appellant would continue to trespass upon and remain in wrongful occupation of the disputed portions of land. 4.Consequently, the respondents sought the following orders:a.A declaration that the 1st respondent was the owner of North Mugirango/Boisanga/1209 and that the 2nd and 3rd respondents were the lawful administrators of the estates of the registered proprietors of North Mugirango/Boisanga/1210 and North Mugirango/Boisanga/1211;b.An order of eviction directing the appellant to vacate the disputed portions of land; and,c.Any other relief that the court deemed fit to grant. 5.In response to the claim, the appellant lodged a statement of defence and counterclaim dated 11th May, 2015. He admitted that he was the registered proprietor of land parcel North/Mugirango/Boisanga/1908. He maintained that he had occupied the disputed portions of the suit parcels for a period of over 50 years, and had extensively developed the same by erecting permanent structures thereon. It was his case that he had acquired prescriptive rights over the said portions by virtue of the doctrine of adverse possession. 6.In his counterclaim, the appellant prayed for a order of permanent injunction restraining the respondents from interfering in any way with his peaceful occupation of the 2 and ½ acre portion of the suit properties knowns as North Mugirango/Boisanga/1209, 1210 and 1211; a declaration that the appellant had obtained prescriptive rights over the said portion of the suit properties by adverse possession, and that the respondents be compelled to transfer the titles in respect of the said parcels of land in his favour, or in default, the Executive Officer do execute transfer documents in favour of the appellant. He further prayed to be granted any further relief that will meet the ends of justice. 7.Upon consent of the parties, the ELC, by an order dated 27th October, 2016, directed the Land Registrar, Nyamira and the County Surveyor to visit the respective parcels of land belonging to the appellant and the respondents with a view to establishing and fixing the boundaries in terms of Sections 18 and 19 of the Land Registration Act, 2012. 8.The Land Registrar, in a report filed on 19th October, 2017, reported to the ELC that land parcels 1209, 1210 and 1211 belonging to the respondent had boundaries which joined parcel 1908 belonging to the appellant on the upper side; and that parcel 1908 encroached into parcels 1209, 1210 and 1211. The Land Registrar further reported that the appellant, though present during the process, declared his unwillingness to participate in the exercise. A second report filed by surveyor on the same date made similar findings. 9.On 22nd June, 2018, the superior court directed the parties to provide their comments on the report filed by the Land Registrar, with a view to the same being adopted as the judgment of the court. The respondents, vide submissions filed on 16th April, 2018, urged the ELC to adopt the Land Registrar’s report as the judgment of the court, and issue eviction orders against the appellant. The appellant did not file any written submissions or make any comments regarding the aforesaid report. 10.Consequently, in a ruling dated 12th October, 2018, the ELC (Mutungi, J.) determined that the dispute between the parties principally concerned the determination of the correct boundaries of land parcels North Mugirango/Boisanga/1209, 1210, 1211 and 1908. The learned Judge held that the report prepared by the Land Registrar conclusively addressed the issues raised in the suit and accordingly adopted the report as the judgment of the court. In so doing, the court found that the appellant’s parcel No. 1908 had encroached onto parcels Nos. 1209, 1210 and 1211 belonging to the respondents, and directed the appellant to vacate the encroached portions within sixty (60) days of the date of the delivery of the judgment. 11.The appellant, aggrieved by the said decision, lodged an appeal before this Court. In his memorandum of appeal dated 11th June, 2019, the appellant faulted the learned Judge for: failing to appreciate that he had been in occupation of the disputed portions of the suit properties for more than 50 years, and that the respondents’ rights to the said portions of land had been extinguished; failing to acknowledge that the alleged encroachment was not occasioned by the appellant but by a mistake in the Registry Index Map; failing to appreciate that the report prepared by the Land Registrar was not sufficient to constitute the final judgment of the court; and, for failing to determine the issues raised by the appellant in his counter- claim. 12.The appeal was heard by way of written submissions. Mr.Gichana was on record for the appellant. Counsel argued that the Land Registrar and County Surveyor failed to comply with Sections 18 and 19 of the Land Registration Act in carrying out the boundary ascertainment exercise. It was submitted that the said officers relied solely on the Registry Index Map without reference to cadastral maps, filed plans, adjudication records or other relevant survey documents; failed to fix the boundaries; failed to notify all adjoining landowners; and failed to accord the parties a proper opportunity to be heard. As a result, the reports were said to be insufficient and incapable of forming the basis of a final judgment. 13.Counsel for the appellant further submitted that the learned Judge failed to consider the issues raised in the appellant’s counterclaim, particularly the claim for adverse possession. He averred that the Land Registrar’s report only addressed the question of encroachment, and did not determine all the issues arising in the suit, including the appellant’s proprietary claim founded on a claim of adverse possession. 14.Lastly, counsel for the appellant challenged the jurisdiction of the ELC. He argued that since the dispute concerned boundaries, the respondents ought first to have pursued the dispute-resolution mechanism provided under Sections 18 and 19 of the Land Registration Act, before filing suit in court. He maintained that the respondents’ suit offended the doctrine of exhaustion, and that the ELC lacked jurisdiction to entertain the suit in the first instance. Further, by adopting the Land Registrar’s report as its judgment, the superior court denied the appellant an opportunity to challenge the Registrar’s decision before the ELC as contemplated under the Land Registration Act. He therefore urged this Court to allow the appeal and set aside the impugned decision of the ELC. 15.The respondents did not participate in this appeal. The did not file any submission in response to the appellant’s appeal. Neither were they present in Court during the plenary hearing of the appeal despite being served. 16.This being a first appeal, our role as the first appellate court was well set out in the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123 as follows:“This court must consider the evidence, evaluate it itself and draw its own conclusions though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 17.Having evaluated the memorandum of appeal, the record of appeal, as well as submission by the appellant, we hold the view that the appeal raises three broad issues for determination: whether the doctrine of exhaustion deprived the superior court of jurisdiction; whether the ELC properly determined the boundary dispute; and whether the learned Judge erred in failing to determine the appellant’s counterclaim for adverse possession. 18.On the first issue, we are unpersuaded by the appellant’s jurisdictional argument found on the doctrine of exhaustion. The doctrine is now firmly settled in our jurisprudence. The Supreme Court in Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others, Sup. Ct. Petition 3 of 2016, [2019] eKLR, reaffirmed that;“...from the jurisprudence emanating from this Court and the lower courts, which has been restated with notoriety to the effect that, where there exists an alternative method of dispute resolution established by legislation, the courts must exercise restraint in exercising their jurisdiction conferred by the constitution and must give deference to the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance.” 19.However, as courts have repeatedly observed, the doctrine is not absolute. In the present case, although one aspect of the dispute concerned the ascertainment of boundaries between parcels North Mugirango/Boisanga/1209, 1210, 1211 and 1908, the pleadings disclose that the dispute was not confined to that issue alone. The appellant had lodged a substantive counterclaim seeking a declaration that he had acquired title to the disputed portions of land by adverse possession and had sought orders to compel their transfer into his name. The determination of a claim founded on adverse possession falls outside the statutory mandate of the Land Registrar under sections 18 and 19 of the Land Registration Act. 20.Secondly, the issue was never raised before the ELC. Indeed, the appellant actively participated in the proceedings and consented to the order referring the matter to the Land Registrar and County Surveyor for boundary ascertainment. Having invoked and submitted himself to that statutory process, he cannot, after an adverse outcome, be permitted to argue for the first time on appeal that the dispute offended the doctrine of exhaustion. To allow such a course of action would permit the appellant to approbate and reprobate in the same breath. 21.The doctrine of exhaustion is a rule of judicial restraint designed to ensure that prescribed statutory mechanisms are first utilized. It is not a license for a litigant to participate in proceedings without objection and thereafter, upon receiving an adverse outcome, challenge the process on appeal. In the circumstances of this case, the right to object (if at all) was waived by the appellant's conduct and cannot be entertained at this stage of the proceedings. 22.On the second issue, a perusal of the record shows that by consent of the parties, the superior court directed the Land Registrar and County Surveyor to visit the suit properties and establish and fix the boundaries pursuant to Sections 18 and 19 of the Land Registration Act. The two officers subsequently visited the suit parcels and filed reports. Both reports reached the same conclusion, namely that the appellant’s parcel had encroached onto parcels North Mugirango/Boisanga/1209, 1210 and 1211 belonging to the respondents. 23.We do not agree with the appellant’s assertion that the Land Registrar and County Surveyor failed to comply with sections 18 and 19 of the Land Registration Act. The record shows that the exercise was undertaken pursuant to a consent order of the court directing the two officers to visit the suit properties and ascertain the boundaries in accordance with the law. There is nothing on record to demonstrate that the Land Registrar or the Surveyor acted outside the mandate conferred by the court or contrary to the provisions of the Land Registration Act. 24.To the contrary, both officers visited the suit properties, carried out the requisite measurements on the ground, considered the Registry Index Map and existing ground features, and thereafter prepared reports containing their observations, findings and conclusions. The reports were subsequently filed in court and the parties afforded an opportunity to give their comments on them. 25.Significantly, the Land Registrar noted that the appellant was present during the exercise but did not cooperate or participate in the exercise, while the surveyor noted that the measurement exercise proceeded notwithstanding the appellant’s absence or lack of participation. Before the ELC adopted the reports, the parties were afforded an opportunity to comment on them. The respondents filed submissions urging the court to adopt the reports. The appellant, despite being aware of the reports and the directions of the court, neither filed submissions nor raised any objection to the findings contained therein. 26.Having failed to meaningfully participate in a process that was conducted in accordance with the law and pursuant to a consensual court order, the appellant cannot turn around and purport to impeach the outcome of that process on appeal. The findings of the Land Registrar and County Surveyor were consistent and unequivocal that the appellant’s parcel of land had encroached onto the respondents’ parcels of land. 27.The appellant’s argument amounts to no more than a red herring intended to reopen a dispute that was conclusively determined through a process to which he had consented to. The law does not permit a litigant who sits back during proceedings, declines to participate in the same, and thereafter seek to impeach the outcome on account of his own non- participation. 28.We therefore find that the boundary ascertainment exercise was undertaken in substantial compliance with Sections 18 and 19 of the Land Registration Act and yielded a clear and unequivocal finding that the appellant’s parcel number North Mugirango/Boisanga/1908 had encroached onto parcels North Mugirango/Boisanga/1209, 1210 and 1211. The learned Judge was consequently entitled to rely on and adopt those findings in so far as they related to the determination of the boundary dispute between the parties. 29.It is our finding however, that the appeal succeeds on a different ground. The respondents’ suit sought declarations of ownership and eviction orders founded on alleged encroachment. In response, the appellant not only filed a defence but also lodged a substantive counterclaim asserting that he had occupied the disputed portions for a period of over fifty years and had consequently acquired title thereto by adverse possession. He sought declarations to that effect together with orders for transfer of the affected portions into his name. 30.A careful reading of the impugned decision shows that the learned Judge treated the Land Registrar’s report as having disposed of all issues in the suit and proceeded to adopt the same as the judgment of the court. With respect, the Land Registrar and County Surveyor were only mandated to ascertain and fix boundaries. Their reports addressed the question whether there had been encroachment and where the correct boundaries lay. They did not, and indeed could not, determine the appellant’s claim to ownership by adverse possession. That claim fell squarely within the purview of the court and required adjudication on its merits. 31.We are satisfied that once the learned Judge determined the boundary dispute on the basis of the reports, it remained incumbent upon the court to consider and determine the appellant’s counterclaim on adverse possession. By entering judgment solely on the basis of the reports and directing the eviction of the appellant without addressing the counterclaim, the superior court left unresolved a substantive claim that had been properly pleaded and was central to the dispute between the parties. On that limited ground, we find merit in the appeal. 32.Accordingly, while we affirm the findings of the superior court regarding the location of the boundaries and the appellant’s encroachment onto the respondents’ parcels of land, we set aside that part of the decision which finally disposed of the appellant’s counterclaim. The counterclaim for adverse possession remains undetermined and must be heard and decided on its merits by the ELC. 33.In the end, the appellant’s appeal partially succeeds in the following terms:i.The appellant’s grounds challenging the boundary ascertainment process and the jurisdiction of the Environment and Land Court are dismissed.ii.The ruling of the Environment and Land Court dated 12th October, 2018, is set aside only to the extent that it finally disposed of the appellant’s counterclaim for adverse possession without determining the same.iii.The Suit is remitted back to the Environment and Land Court at Kisii for hearing and determination of the appellant’s counterclaim dated 24th April, 2015, on its merits before a Judge other than Mutungi, J.ivAs the appeal has succeeded only partially, each party shall bear their own costs of the appeal. DATED AND DELIVERED A KISUMU THIS 12TH DAY OF JUNE, 2026.H.A OMONDI...........................................JUDGE OF APPEALL. KIMARU...........................................JUDGE OF APPEALJOEL NGUGI...........................................JUDGE OF APPEALI certify that this is a true copy of original.Signed.DEPUTY REGISTRAR