https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5172

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA ELC APPEAL NO. E020 OF 2025 JAMES SHIKWATI SHIKUKU ............................................................ APPELLANT VERSUS ANTHONY OKELLO OLOO .......................................................... 1ST RESPONDENT BENJAMIN KEMEI YATOI ........................................................... 2ND RESPONDENT IDI OSUNDWA ............................................................................... 3RD RESPONDENT RUTH EUPHEMIA MWALE .......................................................... 4TH RESPONDENT SOPHIA MATSESHE ABDALLA .................................................. 5TH RESPONDENT *(Being an appeal from the Judgment of Hon. T. A. Obutu, Chief Magistrate, delivered on 6th February 2025 in Mumias MCELC Case No. E002 of 2022)* **JUDGMENT** **A. Introduction** 1. This is an appeal from the judgment of the Chief Magistrate delivered on 6th February 2025 in Mumias MCELC Case No. E002 of 2022. 2. The appellant was the 4th defendant before the subordinate court. He is dissatisfied with the judgment by which the trial court found in favour of the 1st respondent and issued, among other reliefs, an order requiring the defendants to vacate parcel number South Wanga/Lureko/5018. 3. The dispute before the trial court concerned the existence, location and alleged obstruction of an access road serving the 1st respondent’s parcel and neighbouring land. The 1st respondent maintained that the defendants had encroached upon or interfered with the access road. The appellant denied that allegation. 4. The memorandum of appeal contains fifteen grounds. Properly understood, however, the appeal raises four principal questions: 1. Whether the appellant was denied a fair hearing before the subordinate court; 2. Whether the learned magistrate erred in relying on the evidence of the Land Registrar and County Surveyor; 3. Whether the learned magistrate failed to properly evaluate the evidence of the appellant’s private surveyor; and 4. Whether the eviction order issued by the trial court was lawful, proportionate and sufficiently precise. **B. Duty of the First Appellate Court** 1. This Court is exercising first appellate jurisdiction. It is therefore obliged to reconsider the evidence placed before the trial court, evaluate it afresh and draw its own conclusions. In doing so, however, the Court must bear in mind that it did not see or hear the witnesses testify. 2. The governing principle was stated in ***Selle & Another v Associated Motor Boat Co. Ltd* [1968] EA 123**, where the Court of Appeal held that a first appellate court must reconsider the evidence, evaluate it independently and arrive at its own conclusion, while giving due allowance for the advantage enjoyed by the trial court in seeing and hearing the witnesses. 3. An appellate court will not interfere with findings of fact merely because it might itself have reached a different conclusion. Intervention is warranted where the findings are not supported by the evidence, arise from a misapprehension of the evidence, or are founded upon an erroneous application of the law or principle. Where the appeal concerns the exercise of discretion, the applicable restraint is that expressed in ***Mbogo v Shah* [1968] EA 93**. **C. Background** 1. The suit before the subordinate court was instituted by the 1st respondent through a plaint dated 14th December 2021. He pleaded that he was the registered proprietor of parcel number South Wanga/Lureko/5018 and alleged that the defendants had unlawfully encroached upon the parcel and interfered with an access road serving it and the adjoining parcels. 2. The appellant filed a defence denying encroachment or interference with the access road. 3. Given the technical nature of the dispute, the trial court directed the County Land Registrar and County Surveyor to visit the locus in quo, ascertain the relevant boundaries and access road, and place their findings before the court. The officers conducted the exercise, prepared reports and subsequently testified. 4. At the hearing, the appellant also called a private surveyor, Mr Stewart Manyasa, in support of his position. Upon evaluating the evidence of the parties and the technical witnesses, the learned magistrate found in favour of the 1st respondent and granted the reliefs now challenged on appeal. **D. Whether the Appellant Was Denied a Fair Hearing** 1. The appellant contends that the proceedings were conducted in a manner that violated his right to a fair hearing under Articles 25(c) and 50 of the Constitution. He further relies on alleged non-compliance with the procedural requirements relating to service. 2. The right to a fair hearing is fundamental. It includes the right to notice of the proceedings, an opportunity to know and answer the case made against a party, and a meaningful opportunity to present evidence and make submissions before a decision affecting that party is made. 3. That question must, however, be determined from the whole record and not by isolating a single procedural complaint from the course of the proceedings. The relevant inquiry is whether, in the circumstances of the case, the party was afforded a real and effective opportunity to participate and whether any procedural lapse occasioned prejudice. 4. The record demonstrates that the appellant entered appearance, filed a defence, participated through counsel, cross-examined witnesses and called a private surveyor as his own witness. His advocate appeared on several occasions before the trial court. The appellant also participated in the site visit undertaken pursuant to the court’s directions. 5. The appellant was therefore not absent from, or excluded from, the proceedings. He was aware of the claim against him and participated in the evidentiary process through which the dispute was determined. 6. Crucially, no specific prejudice has been shown to have resulted from the alleged irregularities. The appellant has not demonstrated that he was prevented from presenting a material witness, producing relevant evidence, challenging the evidence led by the respondents, or advancing any identifiable defence. 7. The right to a fair hearing guarantees a fair opportunity to be heard. It does not guarantee a favourable outcome. On the record before this Court, the appellant was accorded a full opportunity to place his case before the trial court. 8. The complaint that he was denied a fair hearing is therefore without merit. **E. The Evidence of the Land Registrar and County Surveyor** 1. The central dispute concerned the position of an access road and the allegation that it had been interfered with or encroached upon. That was, in substantial measure, a technical land-management question. 2. Sections 18 and 19 of the Land Registration Act recognise the statutory role of the Land Registrar in the ascertainment and determination of boundaries. Where the physical position of a boundary, access way or surveyed feature is in issue, the court may properly receive and evaluate technical evidence from the relevant land and survey officers. 3. In ***Republic v District Land Registrar, Uasin Gishu & Another ex parte Wycliffe Kibet Rotich* [2018] eKLR**, the court recognised that boundary disputes are, in the first instance, matters within the technical and statutory province of the Land Registrar. 4. In the present case, the Deputy Land Registrar and County Surveyor visited the locus in quo pursuant to an express order of the court. They were accompanied by local administrators and some of the parties. Their evidence was directed to the existence and location of the access road serving the affected parcels. 5. The evidence of those officers was not received untested. They testified before the court and were cross-examined. No material was placed before the trial court, or before this Court, to establish fraud, bad faith, bias, collusion or any procedural impropriety in the performance of their duties. 6. The appellant submits that the trial court placed undue reliance on their evidence. I do not agree. The learned magistrate was entitled to evaluate that evidence together with the rest of the record and to attach appropriate weight to it. The fact that the officers were public officers did not make their evidence conclusive. Equally, their evidence could not be displaced merely because the appellant had procured a contrary opinion from a private surveyor. 7. The question was whether the official reports and testimony were credible, coherent and supported by the material before the court. The learned magistrate was entitled to find that they were. **F. The Evidence of the Appellant’s Private Surveyor** 1. The appellant further faults the learned magistrate for rejecting, or failing to accord proper weight to, the evidence of his private surveyor, Mr Stewart Manyasa. 2. Expert evidence is intended to assist the court on matters requiring specialised knowledge. It is not, however, binding upon the court. Its weight depends upon the qualifications and independence of the witness, the factual basis of the opinion, the methodology employed, and its consistency with the other evidence on record. 3. The private surveyor made important concessions during cross-examination. He acknowledged that he had not involved all neighbouring proprietors in the exercise. He had not sought assistance from the Lands Office. He did not produce the Registry Index Map. He was unable to state, with certainty, who had encroached upon whose land. 4. Those concessions went to the foundation of his opinion. The dispute required a reliable identification of the access road and an equally reliable determination of the alleged encroachment. A survey opinion that did not sufficiently engage the relevant public records, all affected proprietors, or the applicable registry materials was entitled to less weight. 5. By contrast, the evidence of the Land Registrar and County Surveyor was based on an exercise undertaken pursuant to a court order, within their institutional mandate, and against the background of the official land records available to them. 6. It was therefore open to the learned magistrate to prefer the official technical evidence over the inconclusive opinion of the appellant’s private surveyor. 7. I find no basis for concluding that the learned magistrate ignored relevant evidence, misunderstood the surveyor’s evidence or applied an incorrect principle in his evaluation of the competing technical opinions. **G. Whether the Eviction Order Was Proper** 1. The appellant also challenges the eviction order on the basis that it violated his constitutional right to property under Article 40 of the Constitution. 2. Article 40 protects the right to lawfully acquired property. It does not, however, protect unlawful occupation of another person’s land or the obstruction of an access road lawfully serving registered land. 3. The court is entitled to protect a registered proprietor from unlawful encroachment or interference with the use and enjoyment of land. That protection must, however, be granted through orders that are clear, proportionate and capable of enforcement without creating further disputes. 4. The evidence accepted by the trial court established that there existed an access road serving parcel number South Wanga/Lureko/5018 and adjoining parcels, and that there had been interference with that access road. 5. The trial court was accordingly entitled to grant relief designed to restore and preserve the access road. 6. There is, however, a difficulty with the manner in which the eviction order was framed. The order required the defendants to vacate parcel number South Wanga/Lureko/5018 generally. 7. The dispute was not a contest over ownership of the whole parcel. Nor was the 1st respondent’s title challenged. The complaint was that the access road serving the parcel and neighbouring land had been encroached upon or obstructed. 8. An order requiring the defendants to vacate the entire parcel was consequently broader than the dispute established by the evidence. It was capable of being understood as extending beyond the access road or the precise area found to have been encroached upon. 9. An eviction order must identify, with reasonable certainty, the land or portion to which it applies. It should not expose parties to fresh conflict at the stage of execution or authorise the removal of persons or structures from areas not proved to be the subject of unlawful occupation. 10. The proper course is therefore not to disturb the trial court’s findings on liability, but to vary the relief so that it is confined to the access road and the specific area shown by the evidence of the Land Registrar and County Surveyor to have been encroached upon or obstructed. **H. Disposition** 1. In the result, the appeal succeeds only to the limited extent of varying the eviction order issued by the subordinate court. 2. Accordingly, I make the following orders: 1. Save as expressly varied below, the judgment of the Chief Magistrate delivered on 6th February 2025 in Mumias MCELC Case No. E002 of 2022 is upheld. 2. The order requiring the defendants to vacate parcel number South Wanga/Lureko/5018 is set aside and substituted with the following order: ***The defendants, their agents, servants or any persons claiming under them shall, within sixty (60) days of this judgment, vacate and remove all structures, developments, farming activities and other encroachments situated upon the access road and any area within parcel South Wanga/Lureko/5018 identified by the evidence and reports of the Land Registrar and County Surveyor as constituting an encroachment, failing which eviction shall issue in respect of those identified areas only.*** * 1. Upon expiry of the sixty (60) days, the 1st respondent shall be at liberty to apply for enforcement of the order in paragraph (b) above in accordance with the law. 2. The award of costs before the trial court is upheld. 3. As the appeal has succeeded only in part and only in respect of the form of relief, each party shall bear its own costs of this appeal. It is so ordered. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT VIHIGA THIS 21ST DAY OF JULY 2026. P. MUSYIMI JUDGE **In the presence of:** Mr. Kevin Ombima: Court Assistant Mr. Kundu Adv for the 1st Respondent Ms. Lorna Adv for the Appellant Mr. Benjamin Kemei Yatoi: 2nd Respondent Ms. Sophia Matseshe Abdalla: 5th Respondent N/A for 3rd and 4th Respondents