https://new.kenyalaw.org/akn/ke/judgment/keca/2026/970

Olutukai v Kingori (Civil Appeal E229 of 2024) [2026] KECA 970 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 970 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal E229 of 2024 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA May 15, 2026 Between Nickson Dick Olutukai Appellant and Apollo M Kingori Respondent (Being an appeal from the judgment and decree of the Environment & Land court at Bungoma, (Cherono, J.) dated 25th April, 2024 in E.L.C APPEAL NO. E011 of 2023 Environment and Land Appeal E011 of 2023 ) Judgment 1.This is an appeal from the judgment and decree of the Environment and Land Court “the ELC” at Bungoma, (Cherono, J.), on a first appeal, delivered on 25th April 2024. This is therefore a second appeal. That being the case, our mandate is confined to consideration of issues of law only. As was stated in Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR:“This being a second appeal, only matters of law may be raised. The Court of Appeal will not interfere with concurrent findings of fact by the two courts below unless it is shown that they considered matters they should not have considered, or failed to consider matters they should have considered, or that looking at the entire decision, it is plainly perverse."These parameters will therefore guide our determination of this appeal. 2.The appeal traces its origin in the Senior Principal Magistrate’s Court at Kimilili wherein Nickson Dick Olutukai, “the appellant”, upon receiving a Notice to vacate from all that piece or parcel of land known as Kimilili/Kimilili/2946, “the suit property” from Apollo M. Kingori, “the respondent”, filed civil suit number No. 16 of 2019, seeking injunctive reliefs against the respondent, to restrain him from interfering with the suit property. He also prayed for costs, interest and any other order or reliefs that the court may deem fit and just to grant. His case was that at all material times he was the sole proprietor and registered owner of the suit property having purchased it in 2017 from John Khameme Wanyela for Kshs 1.4 million and had it registered in his name in 2018. 3.The respondent filed a defence and counterclaim. He denied the averments by the appellant but admitted issuing the impugned notice to the appellant. Instead, he asserted ownership of Plot No. 7 Kimilili “B” Market, which was apparently hived off from all that piece or parcel of land known as Kimilili/Kimilili/771 upon which the suit property had apparently been superimposed. He alleged that he was allocated the same by the County Government of Bungoma in 2007. However, the appellant had wrongfully encroached on the same and erected thereon structures despite several demands by the respondent not to. By way of counterclaim, the respondent sought the eviction of the appellant therefrom and the demolition of the structures he had erected thereon at his own cost. 4.In essence therefore the dispute concerns competing claims over the suit property, with the appellant asserting registered proprietorship under title, whereas the respondent claims allocation of the same by the County Government of Bungoma. 5.Prior to the hearing, the appellant moved the trial court by way of an application and successfully obtained orders directing the County Government of Bungoma Surveyor, to visit the suit property to determine if it is Plot 7 Kimilili B Market on the suit property and file a report. On the scheduled date of the visit, the respondent failed to appear for the exercise. Nonetheless the exercise proceeded and the verdict of the Surveyor was that the suit property was found to be inside Kimilili/Kimilili/771 which was registered under the County Government of Bungoma and reserved for Kimilili Market. 6.At trial, the appellant called seven witnesses. His evidence was that he purchased the suit property from John Khameme Wanyela at a consideration of Kshs.1.4million, after due diligence, processed and obtained the title in respect thereof on 24th July 2018, and soon thereafter commenced developments thereon. Joachim Namasaka Unchonyi, Gerald Nalianya Nabwana and Bernard Masika Nabwana, PW2 to PW4 respectively, who claimed to be relatives of the original proprietor of the suit property Pascal Nabwana, in their respective testimonies traced the suit property to the subdivision of the original land parcel number Kimilili/Kimilili/2318 into resultant plots, including the suit property and confirmed the transfer of the latter to John Khameme Wanyela, who then sold and transferred it to the appellant. 7.PW5, Leonard Wabwire, the Assistant Land Registrar, Bungoma, confirmed that the suit property was registered in the appellant’s name as freehold. He had no records however of Plot No 7 Kimilili B Market. He was also not sure about the overlap between the two parcels of land if at all. Another witness, PW6, a retired teacher, Stephen Lumbasi Kuyu testified as to attending and taking minutes of a local meeting convened by the local Chief to resolve boundary disputes involving the appellant, respondent and other third parties. As a result, boundaries of the several parcels of land were identified without dispute. The conclusion was however that the suit property did not overlap into Kimilili/ Kimilili/771. A private surveyor, PW 7, Cornelius Wanjala Nyongesa, hired by Pascal Nabwana, the original owner of the parcel of land known as parcel Kimilili/Kimilili/2318 from which the suit property was a subdivision of maintained that the suit property could not have been part of Kimilili/ Kimilili/771 as captured in the report of the County Government of Bungoma Surveyor. 8.The respondent in countering the suit availed four witnesses. The respondent himself testified as DW2, stated that he was allocated Plot No 7 Kimilili B Market in 2007 by the defunct Kimilili Municipal Council. However, the allotment letter got lost during the countrywide tribal skirmishes that engulfed the nation during that year. He however managed to thereafter obtained a replacement allotment letter in 2019. DW1, Amos Wekesa Simiyu, a land surveyor working with the national government who visited to the suit property pursuant to a court order as aforestated concluded that a re-survey revealed a 42-metre shift, placing the suit property within land parcel Kimilili/ Kimilili/771 registered under the County Government of Bungoma reserved for Kimilili Market. A private surveyor, DW3, Peter Epela engaged by the respondent, distinguished between freehold parcel being the suit property and leasehold being Plot No. 7 Kimilili B Market, but noted an overlap between the two parcels of land and in particular that the latter was part of land parcel Kimilili/Kimilili/771. DW4, John Wekesa Ndombi, the municipal council manager of Kimilili municipal council, confirmed that land parcel Kimilili/Kimilili/771 belonged to the County Government of Bungoma and had been allocated to the respondent. 9.The trial court, after respective written submissions by the parties had been filed and exchanged by the parties and having noted that the private surveyors presented to court by each of the parties gave conflicting evidence, suo moto re-opened the case and ordered Land Registrar of County Government of Bungoma and the County Surveyor as well other than the one who had appeared before the court as the respondent’s witness to conduct a re-survey of the original parcel of land known as Kimilili/Kimilili/2318, which was later subdivided into 19 subdivisions leading to the creation of the suit property as one of them with a view to establish the physical location of the suit property and further identify the physical location of Plot No. 7 Kimilili B Market if at all it existed. This exercise was successfully undertaken in the presence of all the parties. In their report they concluded that the suit property was infact Plot No. 7 Kimilili B Market. That the two parcels of land were found in different land tenures, the suit property being freehold whereas Plot No. 7 Kimilili B Market was a leasehold from public land. That the suit property was infact part of Kimilili/ Kimilili/771. That the certificate of title that the appellant held was not on the ground that he purported to occupy and finally that the suit property formed part of land parcel Kimilili/Kimilili/771 which was public land. 10.The trial court nonetheless noted that the appellant had produced evidence of purchase and registration of the suit property, supported by the evidence of family members of the original proprietor, the County Government of Bungoma Assistant Land Registrar, and a private surveyor hired by the appellant who confirmed the subdivision of parcel Kimilili/Kimilili/2318, into resultant plots including the suit property. On the other hand, the respondent produced evidence of allocation of Plot No. 7 Kimilili “B” Market by the County Government of Bungoma, supported by Bungoma County Government surveyor ’s evidence and that of the municipal Council of Kimilili manager, who testified that the appellant’s suit property overlapped with land parcel No Kimilili/ Kimilili/ 771, reserved for Kimilili Market. 11.Thereafter, considering the surveyors’ reports and particularly the re-survey conducted by the Bungoma County Council Land Registrar and Surveyor, the trial court concluded that the suit property fell within land parcel No Kimilili/Kimilili/771, belonging to the County Government of Bungoma reserved for Kimilili Market. It held that although the respondent had not demonstrated proprietary ownership of the suit property, the appellant was nonetheless unlawfully occupying the County Government of Bungoma land under the mistaken belief that it was his property. Consequently, the trial court dismissed the appellant’s suit by holding that the appellant had not demonstrated that the respondent had encroached into, interfered with or trespassed into the suit property or in any way dealt with the suit property. That on the other hand the respondent had demonstrated that the suit property the appellant claimed to be his was indeed Plot No. 7 Kimilili “B” Market, the property of the County Government of Bungoma and dismissed the counterclaim by the respondent on that score. In the end, the trial court ordered the appellant to vacate the suit property or be evicted therefrom, followed with the demolition of the structures erected thereon to be supervised by the Officer Commanding Station, Kimilili Police Station. 12.Aggrieved by the judgment and decree of the trial court aforesaid, the appellant lodged a first appeal in the ELC at Bungoma on the grounds that the trial court had erred in relying: on re-survey reports conducted in the absence of the appellant’s counsel; on the surveyor’s evidence that was contradictory; that eviction orders were issued despite a finding that the respondent had not proved ownership of the suit property; failed to determine whether the suit property was identified on fixed or general boundaries under the Land Registration Act; that eviction orders were made against the appellant when the County Government of Bungoma, the alleged owner of the suit property, was not a party to the proceedings. 13.Upon consideration of the appeal, the first appellate court collapsed the grounds of appeal into four broad thematic areas. These were, whether the trial court: erred in ordering the eviction of the appellant despite finding that the respondent had not proved proprietorship of the suit property; in superintending over a re- survey exercise contrary to sections 18 and 19 of the Land Registration Act; failing to determine whether the suit property was identified on fixed or general boundaries; and whether the trial court failed to consider the totality of the evidence and submissions by respective counsel. 14.In its determination, the first appellate court held that although the respondent had not proved ownership of the suit property, the evidence by the County Government of Bungoma Land Registrar and Surveyor respectively demonstrated that the appellant was occupying land belonging to County Government of Bungoma which had been reserved for Kimilili Market and eviction was therefore justified to protect public land. On the second issue, the first appellate court held that the trial court acted within its discretion in ordering a re-survey of the suit property for clarity, and that sections 18 and 19 did not preclude such intervention by the trial court. On the third issue, the first appellate court reasoned that the distinction between fixed and general boundaries was immaterial since the re-survey confirmed overlap into the County Government of Bungoma land. Finally, on the fourth issue, the first appellate court held that the trial court had considered the evidence holistically. Accordingly, the first appeal was dismissed with costs to the respondent. 15.Still aggrieved by the decisions of both the trial and the first appellate courts, the appellant has now lodged this second and perhaps last appeal before this Court. The appellant, has raised several grounds of appeal to wit: that the first appellate court erred in law by failing to consider the inconsistencies in the evidence of the two County Government of Bungoma Surveyors, regarding the physical location of the suit property. He further faults, the first appellate court for failing to censure the trial court’s reliance on the County Government of Bungoma Surveyor’s and Land Registrar’s reports respectively, despite the same having been excluded earlier for being conducted in the absence the appellant’s counsel. 16.Further, that the first appellate court erred in determining matters not appealed against, went beyond the scope of the parties’ pleadings, and wrongly held that it was inconsequential whether the trial court had superintended over a survey exercise that fell short of the mandatory provisions of sections 18 and 19 of the Land Registration Act. The appellant also complains that the first appellate court speculated regarding boundaries, failed to make a finding on whether the County Government of Bungoma land reserved for Kimilili Market was identified based on fixed or general boundaries, and erred in reaffirming his eviction despite acknowledging that the respondent had not proved ownership of the suit property. Finally, he asserts that the first appellate failed to consider the totality of the evidence and submissions in both courts, thereby arriving at an erroneous decision. 17.For these reasons, the appellant prayed that the appeal be allowed, the entire judgment and consequential orders of the first appellate court be set aside, and substituted with an order allowing his claim as prayed in the plaint in the trial court; costs of this appeal, as well as those of the first appellate and the trial courts. 18.When the appeal was called out for plenary hearing, Mr. Khaemba, learned counsel, appeared for the appellant while Mr. Maloba, learned counsel appeared for the respondent. Both parties opted to rely on their respective written submissions with limited oral highlights. 19.Counsel for the appellant submitted that the first appellate court erred in law by considering, determining, and making findings on matters that had not been appealed against by either party, and further erred in upholding the eviction orders issued by the trial court against the appellant. He contended that courts are bound by the pleadings and grounds of appeal presented, and cannot suo moto raise and determine issues without affording parties an opportunity to be heard on the same. He cited Munga & 9 others v Nyamawi & 5 others (Civil Appeal E014 of 2021) [2023] KECA 1321 (KLR), where the Court held that condemning a party on a ground not pleaded or without notice amounts to denial of justice. 20.He further relied on Car & General (Trading) Limited v Mashiko & another [2024] KEHC 148 (KLR), where the Court emphasized that new grounds of appeal may only be raised with leave of court and sufficient opportunity having been granted to the opposite party to contest. The appellant submitted that since the respondent had not proved ownership and no appeal or cross-appeal was filed on that finding, the first appellate court erred in revisiting the issue and reaching a different conclusion. The appellant further urged that the respondent lacked locus standi to seek eviction orders, citing Law Society of Kenya v Commissioner of Lands & 2 others [2001] eKLR and Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] eKLR, which underscored that locus standi signifies a sufficient interest to sustain a claim. 21.Secondly, the appellant submitted that the first appellate court erred in failing to find that the trial court had superintended over a re- survey exercise that fell short of the provisions of sections 18 and 19 of the Land Registration Act. He argued that the re-survey was conducted in the absence of his counsel, contrary to the trial court’s own directions, and yet it relied on the report which it had earlier excluded as a result. He emphasized that sections 18 and 19 require the Registrar to notify adjoining land owners and occupiers and to receive evidence before fixing boundaries. He submitted that as the exercise was about determining the physical location and boundaries of the two parcels of land in dispute, compliance with the aforesaid provisions of the Act was mandatory. 22.Thirdly, the appellant submitted that the first appellate court erred in failing to make a determination as to whether the alleged County Government of Bungoma land allocated to Kimilili Market was identified based on fixed or general boundaries. He pointed out inconsistencies in the testimonies of the Surveyors, one admitting he could not identify the County Government of Bungoma land or its boundaries, while the other Surveyor contradicted himself by first stating the land had only general boundaries and later claiming it had fixed boundaries marked by beacons. He argued that a parcel of land cannot simultaneously have fixed and general boundaries, and once boundaries are fixed under the Act, general boundaries become obsolete. He submitted that reliance on such contradictory evidence was therefore erroneous. 23.Lastly, the appellant submitted that the first appellate court erred in failing to consider the totality of the evidence and submissions by the parties. He argued that the first appellate court ignored the inconsistencies in expert testimony, disregarded the appellant’s evidence tracing the root of title of the suit property to all that piece or parcel of land known as Kimilili/Kimilili/2318, and failed to appreciate that the re-survey never established the exact location of the suit property. He contended that the failure to properly evaluate all the evidence by the first appellate court led to a miscarriage of justice. In conclusion, the appellant urged this Court to allow the appeal as prayed in the memorandum of appeal. 24.The respondent in opposition to the appeal, submitted that there were no contradictions or inconsistencies in the evidence of the two County Government of Bungoma Surveyors’ reports. He argued that the reports complemented each other, both confirming that the suit property was part of Kimilili/Kimilili/177 County Government of Bungoma land reserved for Kimilili Market. He maintained that the second re-survey report merely clarified the earlier findings, and the first appellate court rightly relied on them. 25.Counsel submitted that, the ground that the first appellate court should have faulted the trial court for relying on the surveyor’s and Land Registrar’s reports, was not properly raised as the appellant had dropped and or abandoned it during the hearing of the first appeal. He argued that appellate courts cannot entertain new grounds not raised in the court below, citing Kuloba R., Judicial Hints on Civil Procedure, which reiterates that courts are bound by pleadings and cannot determine issues not placed before them. He added that the reports were central to resolving the dispute and were in any event, tested through cross-examination, hence properly relied upon. 26.Regarding whether the first appellate court went beyond its appellate mandate, the counsel submitted that as a first appellate court, it was duty-bound to re-evaluate the evidence and draw its own conclusions. He cited Selle v Associated Motor Boat Co. [1968] EA 123, in support of the proposition. He further relied on Douglas Mbugua Mungai v Harrison Munyi, Civil Application No. Nai. 167 of 2010, which underscored the overriding objective of justice, stating that courts must take a broad view of justice and not be fettered by technicalities. 27.Turning on the issue whether the re- survey exercise that fell afoul of sections 18 and 19 of the Land Registration Act, the respondent submitted that the dispute was not about boundary fixing but about identifying whether the suit property was on its own or part of Plot No. 7 Kimilili B Market. He argued that sections 18 and 19 apply to boundary disputes, not to disputes regarding identification of parcels of land on the ground, and therefore compliance was unnecessary. He maintained that the first appellate court was correct in holding that the re- survey exercise was proper. 28.As regards first appellate court’s failure to determine whether the County Government of Bungoma land reserved for Kimilili Market was identified based on fixed or general boundaries, the respondent submitted that this was not an issue before either of the courts. He argued that both parties’ surveyors used general boundaries, and the trial court correctly relied on professional opinions that consistently identified the suit property as part of County Government of Bungoma land reserved for Kimilili Market. 29.Regarding the appellant’s eviction despite finding by the trial court that the respondent had not proved ownership of the suit property, counsel submitted that the first appellate court correctly departed from the trial court’s finding. He pointed out to the respondent’s evidence of allocation by the defunct County Government of Bungoma in 2007, confirmed by council minutes and supported by an allotment letter. He argued that this evidence was uncontroverted, and the first appellate court rightly held that the respondent had proved ownership. He cited Selle v Associated Motor Boat Co (supra), again, emphasizing that an appellate court is not bound by erroneous findings of fact of the trial court and the first appellate court. 30.Finally, and on the last issue, counsel for the respondent submitted that the first appellate court had thoroughly evaluated all the evidence before finding that the appellant’s case was wanting and rightly preferred the respondent’s evidence instead. In conclusion, the respondent urged the Court to dismiss all the grounds of appeal with costs. 31.Having considered the record of appeal, the submissions of both parties, the authorities cited and the law, we are satisfied that four broad issues of law arise for our determination in this second appeal. These are whether the first appellate court erred in law by: considering and making findings on matters not appealed against and in upholding the eviction of the appellant; failing to find that the trial court superintended over a survey exercise that fell short of the requirements of sections 18 and 19 of the Land Registration Act; the County Government of Bungoma land reserved for Kimilili Market was identified based on fixed or general boundaries; and whether the first appellate court erred in law in failing to consider the totality of the evidence and submissions by the parties. 32.On the first issue, we find no merit in the appellant’s contention. The first appellate court, sitting as such, was entitled to re-evaluate the evidence and draw or reach its own conclusions. In doing so, it was not restricted to the precise wording of the grounds of appeal but had a duty to consider the record as a whole. It correctly found that although the respondent had not produced title documents, the evidence by the County Government of Bungoma Surveyor and Land Registrar consistently demonstrated that the appellant was occupying County Government of Bungoma land reserved for Kimilili Market. Upholding eviction in such circumstances was justified in order to protect public and or council land. 33.This was a normal and consequential order resulting from the first determination aforesaid. In any event both parties had in their filings in the trial court directly or indirectly sought eviction of each other. So that the issue of eviction was a live issue before the trial court as well as the first appellate court. Indeed, during the hearing of the suit, both parties in their evidence sought the eviction of each other from the suit property. Further, while it is trite principle that parties are bound by their pleadings and evidence outside of them should be disregarded, this is not an absolute rule, particularly in the context of the overriding objective of the court to achieve, efficient and cost-effective resolution of disputes. Finally, it is trite that if parties have, through their conduct and evidence presented during the trial, effectively litigated a matter outside their original pleadings, the court can decide that issue if it appears the issue was left to the court to determine. See Odd Jobs v Mubea [1970] EA 476. Looking at this ground of appeal against this prism, the first appellate court cannot therefore be accused of considering, determining, and making findings on matters that had not been appealed against by either party and of further upholding the eviction orders. 34.On the second issue, we agree with the first appellate court that the re- survey exercise ordered by the trial court was proper. Sections 18 and 19 of the Land Registration Act deal with boundary disputes between adjoining proprietors. The dispute here was not about fixing boundaries but about identifying whether the suit property was the same as Plot No. 7 Kimilili “B” Market. The trial court acted within its discretion to order a re-survey for clarity, moreso in view of the conflicting evidence on survey that was presented by the parties to the dispute, and the first appellate court rightly held that compliance with sections 18 and 19 was in the circumstances not strictly necessary. 35.It is obvious from the said provisions that hearing of neighbours’ testimony is not required where the mission is to establish the existence of the land and its location. The formal hearing contemplated is about the fixing of boundaries which was not the case here! In any event, the said provisions are permissive, directory and not mandatory. 36.On the third ground, the appellant argued that the first appellate court failed to determine whether the Bungoma County Council land reserved for Kimilili Market was identified based on fixed or general boundaries. We find this argument is misplaced. The core dispute was not about the nature of boundaries but about the identification of the parcels of land occupied. The surveyors’ reports, though differing in methodology, were consistent in their conclusion that the suit property fell within Kimilili/Kimilili/771, the County Government of Bungoma land reserved for Kimilili Market. The first appellate Court was correct in holding that the distinction between fixed and general boundaries was immaterial in the circumstances. In any event these are matters of fact which this Court has no jurisdiction to entertain at this stage. Finally, this was not even an issue before the first appellate court as the appellant dropped and or abandoned it during the hearing of the appeal. 37.On the fourth issue, the law and practice is obvious that an appellate court must re-consider and re-evaluate the totality of the evidence placed before the trial court by the parties and reach its own independent conclusions. In Abok James Odera T/A A.J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, this Court reiterated that justice requires a holistic evaluation of all the evidence and not a selective approach. Guided by these principles, we are satisfied that the first appellate court discharged its duty sterlingly and diligently. The judgment demonstrates that the first appellate court carefully evaluated the evidence tendered by both parties’ witnesses in the trial court, the survey reports, and the submissions filed. It found the appellant’s case wanting and preferred the respondent’s evidence, which was corroborated by the County Government of Bungoma Surveyor and the Land Registrar. We see no error in this approach, and the appellant’s contention to the contrary has no legal foundation. 38.In the result, we find no merit in this appeal. The two courts below properly applied the law, correctly evaluated the evidence, and reached sound concurrent conclusions. As held in Kenya Breweries Ltd v Godfrey Odoyo [2010] eKLR and M’Riungu v R [1983] KLR 455, this Court will not interfere with concurrent findings of fact unless they are shown to be based on no evidence, on irrelevant considerations, or are plainly perverse. No such error has been demonstrated here to our satisfaction. Accordingly, the appeal is dismissed with costs to the respondent. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026.ASIKE-MAKHANDIA......................................JUDGE OF APPEALH.A. OMONDI......................................JUDGE OF APPEALL. KIMARU......................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR