https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5254

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT MIGORI** **ENVIRONMENT AND LAND COURT LAND APPEAL NO. E022 OF** **2025** **DOLORES OGOMBO……………….…………………….1ST APPELLANT** **ALEX OKINYI………………………………..…………..2ND APPELLANT** **JANE AKINYI ODHIAMBO……………………….…….3RD APPELLANT** **PAMELA ADHIAMBO OJUANG…………………...……4TH APPELLANT** **MESHACK ASEMBO OGAJA………………………..…..5TH APPELLANT** **VERSUS** **ABIGAEL SERA………………………………………...1ST RESPONDENT** **MOSES OCHIENG OTIENO………………………….2ND RESPONDENT** **SUSAN A. ANYANGO…………………………………3RD RESPONDENT** **MOSES OKUMU…………………………………….….4TH RESPONDENT** **NAFTALI NYANGENA…………………………………5TH RESPONDENT** ***(Being an Appeal from the judgement and decree of Hon. N Wairimu (CM) in Migori CMELC 49A of 2023 delivered on 22nd May 2025)*** **JUDGEMENT** 1. The Respondents, then the Plaintiffs, instituted a suit in the trial court vide a Further Amended Plaint dated 8th April 2021. They sought an order for eviction of the Appellants, then the Defendants, from the Plaintiff’s land, parcel Nos. SUNA WEST/WASIMBETE/1368, 1369, 1379, 1371 and 1372, and costs of the suit and interest, and any other reliefs the court deemed appropriate. 2. The Appellants filed a joint Amended Defence dated 7th February 2024. They denied the contents of the Amended Plaint. Further, they urged that the dispute required arbitration or resolution by the Land Registrar, in obedience to Sections 18, 19 and 20 of the Land Registration Act. They averred that the survey reports could not have been the basis of resolving the dispute. Also, that there was a discrepancy between the ground and the area maps. They denied the jurisdiction of the court and prayed that the suit be dismissed with costs. 3. The Respondents filed a Reply to the joint Amended Defence dated 8th June 2024 wherein they denied the contents of the Amended Defence. They urged that the court allow the claim as prayed. 4. It must be noted that during the pendency of the suit, it was transferred from the Environment and Land Court at Migori to the Chief Magistrates’ Court Migori for hearing and determination on 6th July 2023 by the learned M. Kullow J. 5. The trial court, upon considering the testimonies of the witnesses, the pleadings and the submissions, found that the Plaintiffs had proved their case to the required standard. It thus found in favour of the plaintiffs, ordering an eviction of the defendants from the parcel numbers Suna West/Wasimbete/1368, 1369, 1379, 1371 and 1372. It also gave the relief of the award of costs to the Respondents. 6. The Appellants are aggrieved with the decision of the trial court. They have instituted the present appeal vide a Memorandum of Appeal dated 18th June 2025. It was premised on the following grounds; 7. **The learned magistrate erred in law and fact by failing to appreciate that the court lacked the jurisdiction to entertain the suit pursuant to section 18 (2) of the Land Registration Act 2012.** 8. **The learned magistrate erred in failing to appreciate that as the matter proceeded denovo, the court was never bound by the previous decision or finding of judge or court as parties were to present their case as if the matter was being presented as a new case, hence the previous court' decision on jurisdiction was not binding in the court on the denovo hearing.** 9. **The learned trial magistrate erred in law by relying on surveyor's report that was prepared by people who were unqualified in law.** 10. **The learned magistrate erred in law in faulting the Appellant's for not presenting a surveyor's report without appreciating that the Appellants were sued and had not claimed.** 11. **The learned magistrate erred in law and fact by delivering a judgment which was evasive and ambiguous by granting eviction orders in a dispute of general boundaries.** 12. The parties prosecuted the appeal by way of written submissions. The Appellant filed submissions dated 22nd January 2026 while the Respondents filed submissions dated 4th March 2026. **Appellants’ submissions** 1. It is the Appellants’ case that the trial court was not seized with jurisdiction to try the Respondents’ case because, according to them, it was a case of trespass or boundary dispute of Registered Lands. They argued that the suit parcels neighbour each other and the boundaries were those classified as general boundaries. They urged that the Respondents alleged that the Appellants were residing and cultivating the Respondents’ suit lands, which allegation they denied. They contended that the Respondents did not exhaust all the mechanisms for resolving boundary disputes, especially before coming to Court. Further, the matter ought to have been referred to the Land Registrar first before being brought before the Court. 2. Learned counsel cited Section 18(2) of the Land Registration Act 2012. Further, they argued that Section 19 of the Land Registration Act stipulates that it is the preserve of the Land Registrar to resolve boundary disputes of registered land with general boundaries and the process is only concluded after the Land Registrar has made a note in the Register that the boundaries had been fixed. They added that the only exception was as relates to lands with fixed boundaries whose boundary disputes could be fixed by Registered Surveyors pursuant to the Survey Act, without the input of Land Registrar. They posited that it is clear that Section 18(2) of the Land Registration Act prohibits courts from entertaining proceedings relating to boundary disputes unless the boundaries had been determined and fixed by the Land Registrar. 3. He submitted that the boundaries are fixed in accordance to Section 19 of the Land Registration Act and a note made in the Register that they have been fixed. He added that there was no evidence presented before the Trial Court that a note had been made in the Register of the suit parcels that their respective boundaries had been determined and fixed by the Land Registrar. Therefore, Section 18 (2) of the Land Registration Act barred the Court from hearing and determining the suit because the entire suit remained premature. 4. Counsel for the Appellant urged that the court relied on two Survey Reports which were prepared and presented by two incompetent Surveyors who were not authorized in law to author them because they were unqualified. He submitted further that since the matter was heard *de novo*, which had led to their engagements they were neither here nor there. Further, that without the involvement of Land Registrar, any report or arbitration on boundary dispute of Registered Land was in vain. Reliance was placed on the case of **Paul Muraya Kaguri versus Simon Mabaria Muchuna (2015) eKLR**. 5. He maintained that there are plethora of decisions that affirmed that issues of boundary disputes of registered land without fixed boundaries was a preserve of Land Registrar. He urged that the Court was obliged to deal with the question of jurisdiction at any time even after conducting a full hearing of a matter because jurisdiction is everything. 6. He contended that they had also highlighted the import of a *de novo* hearing which liberated the Court proceedings or legal opinions or Rulings on any issue as was made by the previous Court including the Ruling that related to matters of jurisdiction. In other words the Court had a fresh start, and no party could be allowed to allude to any Proceedings or Ruling of the previous court. 7. He posited that if the Court holds otherwise on issues of jurisdiction, as there is no merit in the Respondents Case as the Survey Reports presented and relied on by the trial Court were defective, incompetent and illegal for reasons aforestated. He prayed the court quash the decision of the Trial Court allowing the Respondents Case and proceeds to dismiss same with costs to the Appellants both here and at the Trial Court. **Respondents’ submissions** 1. Learned Counsel for the Respondents submitted that the ground raised on jurisdiction was res judicata. This was because it was issue raised by the Appellants in the suit vide a preliminary objection in their defence. It was dealt with by the court’s ruling dated 20th June 2023. The court dismissed it. The Ruling was not challenged. Additionally, that from the Plaint filed by the Respondents, the prayers sought were eviction orders against the Appellants for trespass and encroachment onto the Respondents' parcels owned parcel. This was not a boundary dispute as alleged by the Appellants. Further, that from the evidence adduced before the trial court, subject to the orders of the court dated 23rd October 2018 directing for a re-visit to the suit parcels the surveyor's report dated 14th December 2018, it confirmed that the issue in dispute as per the site visit was encroachment and trespass. Thus, it ruled out any boundary dispute. 2. On the issue of *de novo* proceedings, counsel conceded that the matter indeed proceeded de novo. But the trial court was guided only by the previous court's decision on the issue of jurisdiction. That had been dealt with as to determine the matter. 3. On the grounds raised in the Appeal challenging the surveyors' reports produced as evidence by the Respondents, counsel urged that at the hearing of the Respondents' case, the Respondents' testified alongside witnesses who are authors of the survey reports. He produced as Exhibits 5 and 6 by PW2 and PW3 respectively. The rules of evidence according to the Evidence Act require that documents be produced by their authors. It was done. The reports confirmed that there was encroachment by the Appellants on the Respondents' parcels of land. The reports were produced subject to court orders made on 4th May 2018 to determine the boundaries and a re-visit was done pursuant to order issued on 28th October 2018. 4. Learned counsel posited that there was no binding decision previously issued that was allegedly relied on by the trial court. Further, that survey reports were not binding decisions. They were merely expert evidence that were meant to guide or assist the court in making a finding based on the claim or issue in dispute before the court. Further, from the evidence of the Respondents testimony at the trial, it was not in contention that the land parcels Suna West/Wasimbete/1368, 1369,1370,1371 and 1372 were owned by the 1st, 2nd, 3rd, 4th and 5th Respondents respectively. He PW1 produced titles to confirm ownership of the said parcels. 5. Further, that it was the Respondents' evidence that the said parcels were sub-divided from the original parcel Suna West/Wasimbete/1082 which measured 5.7 Ha previously. It was owned by Osango Farmers' Co-operative Society. They later subdivided the portions and transferred them to its members. He produced as PExhibit 7, a letter from Osango Farmers' Co-operative Society confirming the position. Counsel submitted that the Appellants did not provide any evidence to justify the extent of the occupied portions of their parcels to counter the Respondents' claim of trespass as proved by the survey reports. 6. The survey report produced in evidence confirmed that there was encroachment and trespass by the Appellants onto the Respondents’ parcels. It therefore denies them the right to absolute ownership and rights thereof as per Section 24(a) of the Land Registration Act, 2012. Counsel urged that the Respondents had proved their case and were entitled to the orders sought. They prayed for the court to dismiss the appeal. **Analysis and determination** 1. I have considered the appeal, the law and the submissions of the parties. This being an appellate court of the first instance, it is imperative that I set out my duty. 2. The duty of this court, where an appeal to it arises from a determination on merits, was ably stated by Sir Clement de Lestang VP in **Selle vs Associated Motor Boat Company [1968] E.A. 123 at p. 126**; **“… An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such appeal are well settled. Briefly put, they are that, this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witness and should make due allowance in that respect. In particular this Court is not bound necessarily to follow the judge’s findings of fact if it appears either that he has 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.”** 1. Also, in **Lmk Investment Limited & another v Oyopudo & 2 others (Environment and Land Appeal E016 of 2024) [2026] KEELC 388 (KLR) (29 January 2026) (Judgment)**, this Court held, ***“25. This is a first appeal hence the legal position regarding how this court should determine one as such is settled. There are two clear legal stand points: whether this court, as that point is determining an appeal arising from a decision made by the lower court, based on determination of the same on merits of the evidence on the one hand, or regarding the exercise of discretion of that court on the other.*** ***26. Regarding where the determination is based on a meritorious determination of evidence and the law, the Court of Appeal has clearly restated the position that this court must evaluate the evidence afresh and draw its own conclusion even though it did not see the witnesses testify so as to form an opinion on their demeanor, unless specifically recorded.”*** 1. This It was also restated in **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR** as follows: ***“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”*** 1. Additionally, the Court the of Appeal, in the case of **Susan Munyi v Keshar Shiani (2013) eKLR** stated as follows: **“*As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions”*** 1. Also, in **PIL Kenya Limited v Oppong [2009] KLR 442**, it was held that: ***“It is the duty…of a first appellate court to analyse and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses and their demeanour and giving allowance for that”.*** 1. Further, in **Williamson Diamonds Ltd and another v Brown**[1970] EA 1, it held that: ***“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.”*** 1. Similarly, decision of **Gitobu Imanyara & 2 others Vs Attorney General [2016] eKLR.** It was held as follows; ***“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.”*** 1. The above principle is the one on which this Court shall now proceed. I recall and analyse the testimonies of the witnesses in the trial court. **PW1** as **Moses Ochieng Otieno** who adopted his witness statement as evidence in chief. In it, he stated that he purchased parcel number 1372 and parcel 1082 that were subdivided into 5 plots. That during the sub division, the defendant trespassed into the original parcel 1082 and constructed structures thereon. 2. **PW2** was **Maurice Ouma Samba** who prepared the report pursuant to the court order dated 23rd October 2018. He stated that his findings were that the 1st and 2nd Defendants encroached onto parcels Nos. 1368 to 1372, belonging to the 1st to 5th Plaintiffs. During cross examination, he conceded that he was not a registered surveyor. Further, that he was unlicensed. Further, that he conducted the Survey in the absence of the Land Registrar. Also, he did not measure the defendants’ parcels of land. Additionally, that he did not access the defendants’ mutation forms. 3. **PW3** was **David Odhiambo Onyango** who produced a report prepared by his supervisor, Peter Wanjala, in compliance with the court order of 14th May 2018. He also produced a mutation form for parcel No. Suna West/Wasimbete/1082 which was registered on 30th September 2009. It was stamped by the Land Registrar. 4. **DW1** was **Dolores Apiyo Ogombo**. She adopted her witness statement as her evidence in chief. She stated that she owned parcel no. Suna West/ Wasimbete/1164. She denied trespassing onto the suit land. She stated that the plaintiffs were strangers to her. Also, that the land registrar did not visit the land to determine where the boundary was. 5. **DW2** was **Pamela Adhiambo Ojuang** who testified that her land was parcel No. 1978. She did not know the parcel number 1368 to 1372. She stated that her father in law, Odongo Ojiwa, gave her land. She produced a consent form and application for consent as her evidence. Further, that she had a mutation for parcel No. 1083 which upon subdivision created her parcel number 1978. She stated that although Maurice Ouma Samba and Davis Onyango testified they were not registered surveyors. 6. That closed the parties’ cases leading to the impugned judgment herein. Having considered the law, the pleadings, the evidence and the rival submissions on appeal, the germane issues that arise for determination herein are; 7. **Whether the trial court lacked jurisdiction to entertain the suit** 8. **Whether the trial court erred by relying on the surveyors’ reports** 9. **Whether the trial court erred by shifting the burden of proof.** 10. This Court now proceeds to determine the issues in sequence. I start with the first one, being on whether the Court had jurisdiction because if the court finds that the trial court lacked jurisdiction then there would be no need to consider whether its consideration on the merits of the evidence was properly done or not since it could not have had the legal basis to make such a determination in the first place. 1. **Whether the trial court lacked jurisdiction to entertain the suit** 11. This issue for determination is derived from grounds 1 and 2 of the Appeal. I have considered the argument as to whether the issue was res judicata or already determined or it was live still before the Court but it did not consider it. In my humble view, the issue of jurisdiction was determined by the Court when the Appellants raised a preliminary objection while the matter was pending in the trial Court. The court addressed the Objection which was raised at paragraph 8 of the Amended Statement of Defence dated 25th May 2021 vide a ruling delivered on 20th June 2023. This settled the issue of jurisdiction conclusively. It was never appealed against. The Appellant cannot then raise it as a ground of appeal at this stage. 12. I am alive to the legal position that such an issue or objection can be taken even on appeal. In a simple straight finding, having considered the pleadings and the law cited, my finding is that the trial Court was clothed with the requisite jurisdiction as the issue between the parties was encroachment and trespass, and not a boundary dispute. 1. **Whether the trial court erred by relying on the surveyors’ reports** 13. In her determination, the trial magistrate indicated that she relied on the reports produced by the surveyors. Indeed, she did. The outstanding question then is whether the evidence met the threshold of sufficient evidence that would make any competent court to arrive at the finding as the one the trial Magistrate reached? To answer the question, my attention is drawn to the cross examination of PW2. He admitted that he was not a registered surveyor. He testified that, ***“I am not registered with the surveyors’ board. I don’t have a licence from the surveyors’ board and have never had one.”*** 1. Certainly, that was an admission of lack of qualification. Section 36 of the Survey Act provides as follows; **No person, other than a surveyor, shall—** **(a) survey any holding or land for the purpose of preparing any plan which is attached to, or is referred to in, any document or instrument purporting to confer, declare, transfer, limit, extinguish or otherwise deal with or affect any right, title or interest, whether vested or contingent to, in or over any holding or land, being a document or instrument which is required to be registered, or is ineffectual until registered, under any written law for the time being in force relating to the registration of transactions in or of title to land; or** **(b) perform any survey which affects or may affect the delimitation of the boundaries, or the location of survey marks, of any holding or land registered or to be registered under any written law for the time being in force relating to the registration of land or of title to land.** 1. Further, Section 2 of the Act provides as follows; **““surveyor” means a Government surveyor or a licensed surveyor.”** 1. PW2 clearly admitted that he was not a licensed or registered surveyor yet the learned magistrate proceeded to rely on his evidence and base her findings on it. She held, at the relevant section as follows: ***“Based on the evidence on record, I shall have to consider the validity or otherwise of the survey reports produced by the plaintiffs’ witness.*** ***…*** ***I would therefore find that the plaintiffs have proved their case to the required standard and accordingly adopt the surveyors report since it is apparent that each of the parties have their own and distinct determinable (sic).”*** 1. The trial magistrate was of the view, or assumed, that the reports were valid and adopted them. She then relied on them to find that each of the parties had determinable boundaries. This was a finding based on reports by unqualified makers: they were not surveyors as per the law/ Survey Act. It is my considered view therefore that this was an error in law as the witness was clearly an unqualified person. The evidence of the witness was therefore not credible. The decision cannot be allowed to stand as it was based on the evidence of an unlicensed surveyor. On this ground the appeal succeeds. 1. **Whether the trial court erred by shifting the burden of proof.** 2. It is trite law that he who alleges must prove. This doctrine is encapsulated in Sections 107, 109 and 112 of the Evidence Act. The claim before the trial court was that of the Respondents against the Appellants. From the above findings and others throughout the analysis of the evidence by the trial court, the Appellants made no successful claim against the Respondents by way of evidence supported by any pleadings. However, a reading of the judgement reveals that the trial magistrate concluded that the evidentiary burden lay on the Defendants to present a report or ask the government surveyor to establish the boundaries. However, one fact is clear: it was the Plaintiffs who were alleging occupation of on their land hence the relief of eviction. They were the ones to adduce sufficient evidence to show that the Defendants were on their lands. This they did not achieve. For the magistrate then to require that Defendants should have presented reports to establish boundaries she shifted the burden of proof onto the Appellants. The relevant paragraph of the judgement states; ***‘I note that although the defendants claim they were not party to the survey processes carried out by PW2 and PW3, they did not bother to present any report or to ask that the government surveyor and land registrar visit the land to establish the boundaries.’*** 1. This was a gross misdirection on the part of the learned magistrate. She shifted the burden of proof yet the Appellants had not filed any claim on the land: rather theirs was a Defence to the Plaintiff’s claim of trespass against them, and the Plaintiffs did not prove their claim against them. This thereby occasioned an injustice to the Appellants. It therefore follows that the appeal, additionally, succeeds on this ground. 2. The upshot of the foregoing is that the appeal succeeds in its entirety. I hereby order as follows; 3. **The judgement and decree in Migori CMELC 49A of 2023 delivered on 22nd May 2025 is hereby set aside. It is substituted with relief that the Plaintiff’s suit, in the trial court, is dismissed.** 4. **The Appellants shall have costs of this appeal and of the lower court.** 5. It is so ordered. **Judgment Dated, Signed and Delivered virtually via the Teams Platform this 28th day of July 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **From 12:10 PM, in the presence,** Bruce Odeny for the Respondent Kisera for the Appellants