[2024] KEELC 3564 (KLR)

Ondiek v Nyamula & 8 others (Environment and Land Appeal 54 of 2022) [2024] KEELC 3564 (KLR) (9 April 2024) (Judgment)

Neutral citation: [2024] KEELC 3564 (KLR)

Republic of Kenya

In the Environment and Land Court at Homa Bay

Environment and Land Appeal 54 of 2022

GMA Ongondo, J

April 9, 2024

Between

Sylvance Otieno Ondiek

Appellant

and

Musa Otago Nyamula

1st Respondent

Boaz Wasonga Nyamula

2nd Respondent

Daniel Owi Nyamula

3rd Respondent

Washington Odhiambo Nyamula

4th Respondent

Elisha Ooro Minene

5th Respondent

Wilfred Ogunda Nyamula

6th Respondent

Daniel Odongo Opanda

7th Respondent

Cornel Olala

8th Respondent

Hon Attorney General

9th Respondent

(An appeal from the judgment and decree of the Principal Magistrate’s Court at Ndhiwa MC ELC No 116 of 2015 (Hon. Onzere E.M., Principal Magistrate) dated 28th September 2022)

Judgment

1. On 28th September, the learned trial magistrate, Hon E. M ONZERE, PM, reasoned that the appellant who was the plaintiff in the original suit, Ndhiwa Mc ELC No. 116 of 2015, had not proved his case on a balance of probability that the 1st to 8th respondents who were the defendants at that court, had encroached or trespassed onto the appellant’s land title number Kanyamwa/ Kochieng/Komungu/Kakaeta/66 (The suit land) and created a boundary therein. Therefore, she dismissed the appellant’s case with costs to the respondents.

2. Being aggrieved by the trial court’s judgment, the appellant in person lodged this appeal by way of the memorandum of appeal dated 26th October 2022 based on the grounds infra;a.The Learned trial Magistrate misdirected herself on several matters of law and fact.b.The Learned Trial Magistrate erred in law of evidence in deciding the case against the weight of evidence adduced by the plaintiff/appellant.c.The Learned Trial Magistrate erred in law of evidence, practice and procedure in failing to read and follow the proceedings and/or the trial magistrate’s notes of the previous magistrate who had issued further orders in the suit but the said orders had not been complied with by the land registrar.d.The Learned Trial Magistrate erred in law of evidence, practice and procedure in failing to ensure that court orders are not issued in vain and to give direction on the next course of action after establishing that the county land registrar failed to comply with the Court Order dated 24th October, 2019 to visit the suit lands while in the company of private surveyors for both the parties and to align the boundary to the suit lands and file a report in court on encroachment if any.e.The Learned Trial Magistrate erred in law of evidence and fact by failing to recognize the private surveyor’s report dated 4th June, 2019 and which was filed in court on the 6th June, 2019 pursuant to the court order dated 24th October 2019. f.The Learned Trial Magistrate erred in law of evidence, practice and procedure in failing to allow the plaintiff/applicant to call the private surveyor Ms Geoflex Consultants as an expert witness to expound on their report which had been filed earlier pursuant to court order.g.The learned trial magistrate erred in law of evidence, practice and procedure by allowing the lands registrar to produce a report of which he was not the author.h.The Learned Trial Magistrate erred in law of evidence and practice in purporting to rely on the Land Registrar’s and surveyor’s report which was disputed by the plaintiff/appellant and the Honourable Court thereafter issued orders on 24th October, 2019 there by rendering the earlier report of the Land Registrar and Surveyor to be invalid.i.The learned trial magistrate erred in law and fact in failing to hold the defendants jointly and severally liable for trespass to land parcel number Kanyamwa/Kochieng/Komungu/Kakaeta/66 even though Land Parcel No. Kanyamwa/Kochieng/Komungu/Kakaeta/67 belonged to the late Jonathan Nyamula and the 1st , 2nd, 3rd, 4th, 5th and 6th defendants/respondents had not taken out a grant of letters of Administration to the deceased father’s estate and as such they lacked locus standi to represent the deceased and put up a boundary fence.j.The Learned Trial Magistrate erred in law and fact in failing to hold the 7th and 8th defendants liable for trespass and exonerated them from aiding, directing the 1st, 2nd, 3rd, 4th, 5th and 6th defendants and further establishing and putting up an illegal boundary fence which is the duty of the Land Registrar.k.The Trial Magistrate death which the case luridly to reach a judgment which has left a huge chunk of the appellants land to be occupied and enjoyed by the respondents.

3. Thus, the appellant has sought the orders as follows;a.Appeal be allowed and boundary between land parcel No. Kanyamwa/Kochieng’/Komungu/Kakaeta/66 and land parcel No. Kanyamwa/Kochieng’/Komungu/Kakaeta/67 be rectified as confirmed by the private surveyor’s M/s Geoflex Consultants report dated 4th June, 2019. b.An order directing the respondents to vacate the portion measuring approximately 80 meters which is so far occupied by the 1st-6th respondents be evicted there from.c.An award of General Damages for trespass to land from the date of filing suit.d.The costs of this appeal and of the main suit.

4. The appeal was heard by written submissions pursuant to the directions of the court given on 27th November 2023.

5. Accordingly, the appellant filed submissions dated 21st December 2023 stating that the appellant is the registered proprietor of the suit Land parcel number Kanyamwa/Kochieng/Komungu/Kakaeta/66 measuring 4. 4 hectares which shares a common boundary with land parcel number Kanyamwa/Kochieng/Komungu/Kakaeta/67 measuring 6. 6 hectares in area registered in the name of the late Jonathan Nyamula. He submitted that he tabled before the trial court a strong evidence that the 1st to 6th respondents had trespassed into the suit land and erected a barbed wire fence thereon with an express authority of the 7th and 8th respondents. That on 18th July 2018 and 26th March 2019, the trial court ordered and directed the parties to engage the services of private surveyors. T

6. Also, the appellant submitted that thereafter, M/S Juliko Geospartial Consultants filed a report dated 7th February 2019 and there was a subsequent court order dated 24th October 2019 which was not complied with by the parties. That the court did not allow the appellant to call the private surveyor to shed more light on the matter. That this appeal be allowed. To reinforce the submissions, the appellant cited section 35 of the Evidence Act Chapter 80 Laws of Kenya, section 3 (1) of the Trespass Act (Cap 294), Articles 47, 48 and 50 (1) of the Constitution of Kenya, 2010, Josephat Mburugu-vs-Silas Mwiti Mugwika (2022) eKLR and Daniel Kenga Katana & 4 others-vs-D zitu Toto Borehole & 3 others (2022) eKLR, among other authorities.

7. By the submissions dated 19th February 2024, learned counsel for the 1st to 6th respondents gave factual background of the matter including the parties’ respective pleadings, evidence, the grounds of appeal and judgment of the trial court. It was submitted in part that the trial court considered the totality of evidence on record. That the private surveyor did not attend court to adduce evidence and the trial court perfectly exercised the discretion to disregard the report of private surveyor. That it was incumbent upon the plaintiff to prove his case on a balance of probabilities and no evidence was produced to controvert the evidence of the Land Registrar, Mr. Ndege as stipulated under section 107 of the Evidence Act Chapter 80 Laws of Kenya.

8. Further, counsel submitted that section 18 (2) of the Land Registration Act, 2016 (2012) ousts the jurisdiction of the court over the dispute thus, the trial court did not err in the impugned judgment. That this appeal is devoid of merit and the same should be dismissed with costs. To buttress the submissions, counsel relied upon Azzuri Ltd-vs-Pink Properties Ltd (2018) eKLR, Whitehorse Investment Ltd-vs-Nairobi City County (2019) eKLR and other authoritative pronouncements.

9. It is trite law that an appellate court is duty bound to subject the entire evidence on record to a fresh and exhaustive re-evaluation and reappraisal and arrive at my own inferences of fact. That this is a jurisdiction which should be exercised with caution bearing in mind that is the trial court that had the added advantage of having seen and heard the witnesses as they testified, while I have the limitation thereof. Nonetheless, the appellate court is entitled to depart from the trial court’s findings if they are based on no evidence, or wrong principles of fact and or law or there has been a misapprehension of the evidence; see Mwanasokoni-vs-Kenya Bus Services Ltd (1982-88) 1 KAR 278; PIL Kenya Ltd-vs-Oppong (2009) KLR 442.

10. In the original suit, the appellant sued the respondents by a plaint dated 5th December 2015 for orders, inter alia;a.An order directing the District Land Surveyor to restore the original boundary between the two parcels of land and each party to engage services of private surveyor to work together with the District Surveyor.b.An order of eviction to remove defendants from occupying the said land parcel no Kanyamwa/Kochieng/Komungu /66.

11. The 1st, 2nd, 3rd, 4th, 5th and 6th respondents denied the appellant’s claim in their statement of defence dated 1st April 2016. They sought dismissal of the claim with costs. By their statement of defence dated 22nd March 2016 filed by the 9th respondent, the 7th and 8th defendants denied the appellant’s claim and prayed for dismissal of the same with costs.

12. In the appellant’s reply to the 1st to 6th respondents’ statement of defence dated 6th June 2024, the skills of the respondents are questioned. He urged the court to dismiss the 7th and 8th respondents’ defence and enter judgment as prayed in the plaint.

13. The appellant (PW1) relied on his statement and PExhibits including title deed (PExhibit 1) and photograph (PExhbit 3) and stated that the boundary in issue was not intact. That the Land Registrar and Government surveyor visited the site in 2009 in his presence.

14. PW2, John Onditi relied on his statement filed on 4th December 2015 and stated that surveyors are experts in land cases. That the 1st to 6th respondents encroached the suit land. This was confirmed by PW3, Abiud Asowa Onguta and PW4 and Joseph Ondiek Warenga who relied on their respective statements that there was a common boundary and a land expert visited the site and prepared reports thereof.

15. Court witness 1, Tiberius Ndege Land Registrar Homa Bay (The Land Registrar herein) produced reports dated 3rd December 2009 and 3rd July 2018 (CExhibits 1 and 2 respectively) herein. He testified regarding the visits to the disputed site which generated CExhibits 1 and 2.

16. DW1, DW2, DW3, DW4 and DW6 were the 2nd, 3rd, 4th, 6th and 1st respondents respectively. DW6, John Ooro Mirere affirmed that he attended the exercise carried out by the Land Registrar and Surveyor.

17. On the foregone account, the issues that emerge for determination herein boil down to whether;a.The 1st to 8th respondents trespassed into the suit land.b.C Exhbits 1 and 2 determined boundary dispute herein.c.The appeal is tenable

18. The appellant alleged that the respondents trespassed into the suit land. The particulars of trespass are not set out on the plaint.

19. The respondents denied the appellant’s claim in totality. They urged the trial court to dismiss it with costs.

20. In Clerk and Lindsell on Torts 18th Edition paragraph 18-01, the term trespass is defined thus;“An unjustifiable entry by one person upon the land in possession of another.”

18. It is common ground that there was a boundary dispute between the parties herein.

22. The learned trial magistrate stated in her judgment thus;“..........The boundary was determined by the Land Registrar and Land Surveyor who are experts in land matters. They have stated that the boundary as determined ought to be straight and it is still intact............different government Land Registrars and Government surveyors have visited the parcels of dispute since the dispute arose. They have given similar findings over the issue and I find no reason to doubt the findings of the Government Land Surveyor.”

22. The trial court observed that the 7th and 8th respondents were invited to the site by the Land Registrar and Surveyor during a site visit as revealed in the letter dated 23rd November 2009 and the report dated 9th July 2018 by the Land Registrar V.K Lamu. That they cannot be faulted. That they witnessed the determination of the boundary by the two experts.

23. Also, the court held that the 7th and 8th respondents testified that the appellant destroyed the boundary and their work was limited to it’s restoration since the same had been determined.

24. The private surveyor visited the site and prepared a report dated 4th June 2019. The same was not produced in evidence and would be superfluous in light of CExhibits 1 and 2 and the Land Registrar’s exclusive mandate thereunder to determine boundaries as provided for under sections 18 and 19 of the Land Registration Act, 2016 and as I subscribe to the decision in Azzuri (supra).

25. The court noted that it was common ground that the Land Registrar and surveyor visited the land and determined boundary as per surveyor’s report dated 8th December 2009 (C Exhibit 1). That boundary aligned and both parties agreed and sisal was planted on the boundary.

26. Sections 48 to 54 of the Evidence Act Chapter 80 Laws of Kenya provide for opinion evidence. CExhibits 1 and 2 are opinion evidence.

27. It is a general rule that opinion evidence is not binding on the court which is at liberty to adopt or reject it depending on the facts and circumstances of the case before it; See CD Dseuza-vs-BR Sharma 1953) 26 klr 41 42.

28. Clearly, CExhibits 1 and 2 produced by the Registrar determined the boundary in dispute. This is in conformity with sections 18 and 19 of the Land Registration Act, 2016 (2012).

29. It is trite that the courts must exercise restraint in exercising their jurisdiction conferred by the Constitution and must give deference the dispute resolution bodies established by statutes with the mandate to deal with such specific disputes in the first instance; Albert Chaurembo Mumba & 7 others-vs-Maurice Munyao & 148 others Supreme Court Petition No. 3 of 2016 (2019) eKLR.

30. The boundary dispute was determined by the Land Registrar under section 18 (2) of the Land Registration Act, 2016 as disclosed in C Exhibits 1 and 2; see Azzuri Ltd case (supra).

31. To this end, I find the appeal devoid of merit.

32. A fortiori; the appeal is hereby dismissed with costs to the respondents.

33. It is so ordered.

DATED AND DELIVERED AT HOMA BAY THIS 9TH DAY OF APRIL 2024G.M. A ONG’ONDOJUDGEPRESENTa. Appellant in person.b. 1st to 6th Respondents.c. Sabina Adoyo learned counsel for the 1st and 2nd respondents.d. Felix Kajo learned counsel for the 7th, 8th and 9th respondents.e. F. Mutiva and M. Obunga, court assistants.