https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3103

Ongudu & another v Rajwayi & another (Environment and Land Appeal E002 & E009 of 2024 (Consolidated)) [2026] KEELC 3103 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEELC 3103 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Appeal E002 & E009 of 2024 (Consolidated) SO Okong'o, J May 21, 2026 Between Eucabeth Florence Odera Ongudu Appellant and Jeremiah Ogola Rajwayi Respondent As consolidated with Environment and Land Appeal E009 of 2024 Between Jeremiah Ogola Rajwayi Appellant and Eucabeth Florence Odera Ongudu Respondent (Being appeals from the judgment and decree of Hon. J.Wambilyanga, SPM delivered on 16th January 2024 in Kisumu CMCELC NO. 113 OF 2018) Judgment 1.The two appeals were consolidated on 17th February 2025. For ease of reference only, I will refer to Eucabeth Odera Ongudu, the Appellant in Appeal No. E002 of 2024 and the Respondent in Appeal No. E009 of 2024 as the Appellant and JEREMIAH OGOLA RAJWAYI, the Appellant in Appeal No. E009 of 2024 and the Respondent in Appeal No. E002 of 2024 as the Respondent, where the context so permits. The appeals challenge the judgment and decree of the Hon. J.Wambilyanga, SPM, delivered on 16th January 2024 in Kisumu CMCELC No. 113 of 2018 (hereinafter referred to as “the trial court”). The Respondent sued the Appellant in the Environment and Land Court at Kisumu through a plaint dated 3rd September 2014 filed on 4th September 2014. The suit was transferred to the Chief Magistrate’s Court (the trial court) in 2018, where it was heard and determined. The Respondent averred that he was the registered proprietor of all that parcel of land known as Title No. Kisumu/Konya/5499(“the suit property”). The Respondent averred that sometime in July 2014, the Appellant entered the suit property without his permission and embarked on the construction of a perimeter wall, in the process of which she hived off a large portion of the suit property. The Respondent averred that in the course of construction of the said wall, the Respondent extracted soil, stones and other building material from the said portion of the suit property, which caused loss to the Respondent. The Respondent averred that the said actions by the Appellant amounted to trespass on the suit property. The Respondent sought judgment against the Appellant for, a permanent injunction restraining the Appellant from undertaking any activity on the suit property or otherwise interfering with the Respondent’s peaceful occupation of the suit property, a mandatory injunction directing the Appellant to remove any developments constituting acts of trespass on the suit property at her own expense in default of which the same to be removed by the Respondent at the expense of the Appellant, general damages for trespass and costs of the suit. 2.The Appellant filed a defence at the trial court on 22nd February 2022. The Appellant averred that she was the registered owner of the parcel of land known as Title No. Kisumu/Konya/5476 (Plot No. 5476), which was adjacent to the suit property on the west, and land parcel Title No. Kisumu/Konya/5475 (Plot No. 5475) to the east. The Appellant denied that she trespassed on the suit property and commenced construction of a perimeter wall thereon in the process of which she hived off a large portion of the Respondent’s land. The Appellant averred that the Respondent took possession and constructed a factory on a parcel of land adjacent to Plot No. 5475. The Appellant averred that her parcel of land, Plot No. 5476, did not share a boundary with the Respondent’s parcel of land, Plot No. 5499 (the suit property). The Appellant averred that the Respondent’s suit did not disclose any cause of action against the Appellant, and termed the same frivolous and vexatious. 3.The trial court heard the suit and delivered a judgment on 16th January 2024. The trial court framed three issues for determination: whether the Appellant was the owner of Plot No. 5475; whether the Appellant had trespassed on the suit property; whether the Respondent was entitled to the injunctive relief sought; and whether the Respondent was entitled to general damages for trespass. On the first issue, the trial court found that there was sufficient evidence to prove that Plot No. 5475 was owned by the Appellant. On the second issue, the trial court found that the Respondent was the registered owner of the suit property and that the Appellant had encroached on the property by erecting a perimeter wall thereon, thereby blocking the Respondent’s access to the Kisumu-Kakamega Road. The trial court found that the Appellant had trespassed on a portion of Plot No. 5499 measuring 0.37 hectares. On the issue of damages for trespass claimed by the Respondent, the trial court found that the Respondent had not laid a basis for Kshs. 10,000,000/-, which it claimed as general damages. The court found that the Respondent had not placed before it sufficient material on the basis of which it could assess the general damages payable. In conclusion, the trial court found that the Respondent had partly succeeded in his claim against the Appellant. The court entered judgment for the Respondent against the Appellant for, a permanent injunction restraining the Appellant from undertaking any activity within the suit property or otherwise interfering with the Respondent’s peaceful use and occupation of the property, and a mandatory injunction compelling the Appellant to remove any development it had carried out on the suit property at her own expense within 60 days in default of which the Respondent was at liberty to remove the same at the Appellant’s cost. The court also awarded the Respondent the costs of the suit. 4.Both the Appellant and the Respondent were aggrieved by the trial court's decision and preferred the appeals before the Court. In her Memorandum of Appeal dated 12th February 2024, the Appellant challenged the judgment of the trial court on the following grounds:1.That the learned trial magistrate erred in law and fact in holding that the Appellant was the registered owner of Plot No. 5475, while there was evidence before her to the contrary.2.That the learned trial magistrate erred in law and fact by failing to find that the dispute between the parties was over the boundary between the suit property and Plot No. 5475, in respect of which she had no jurisdiction.3.That the learned trial magistrate erred in law and fact by making a determination which was in conflict with the evidence in that the Respondent had produced evidence showing that the Appellant was occupying a parcel of land known as Title No. Kisumu/Konya/3345, which was some distance from the disputed parcel of land, contrary to the trial court’s finding that the Appellant had trespassed on the suit property.4.That the learned trial magistrate erred in law and fact by relying on and basing her decision on the survey report produced by the Respondent’s witness without appreciating that the witness had confirmed that there was a problem on the ground which required the intervention of the County Land Registrar to resolve.5.That the learned trial magistrate erred in law and fact by compelling the Appellant to enter Plot No. 5475 and remove the construction materials thereon, an act that would amount to trespass into a property owned by a third party. 5.The Appellant prayed that the appeal be allowed and the judgment of the lower court be set aside, and substituted with an order dismissing the Respondent’s suit in the lower court with costs to the Appellant. 6.In his appeal in ELCA No. E009 of 2024, the Respondent only challenged part of the judgment of the trial court that dismissed his claim for general damages. In his memorandum of appeal dated 11th March 2024, the Respondent contended that the learned magistrate erred in law and fact in holding that damages for trespass were not payable in the absence of proof of actual loss and damage, even if trespass had been proved. The Respondent contended that the learned magistrate erred in her understanding of the law on trespass and its application to the case that was before her, thereby arriving at a decision not supported by law. 7.The Respondent prayed that its appeal be allowed, and that the trial court’s finding that general damages for trespass was not payable to the Respondent be set aside and substituted with an award of general damages against the Appellant for trespass on the suit property, as the court may deem fair and reasonable in the circumstances. The Respondent also prayed for the costs of the appeal. 8.The appeal was heard by way of written submissions. The Appellant’s submissions 9.The Appellant filed submissions dated 20th June 2025. The Appellant submitted that she denied owning Plot No. 5475 in her defence, and only admitted the ownership of Plot No. 5476, which was adjacent to the suit property. The Appellant averred that the trial court assumed that both Plot No. 5475 and Plot No. 5476 were owned by the Appellant. The Appellant averred that there was no evidence in support of that assumption. The Appellant averred that the evidence on record showed that Plot No. 5475 was owned by Grace Akinyi Odhiambo, who was not a party to the suit before the trial court. 10.The Appellant further submitted that the trial court failed to appreciate that what was before her for determination was the accuracy or correctness of the positions of the boundary between the suit property and Plot No. 5475, an issue that the trial court lacked jurisdiction to determine under section 18(2) of the Land Registration Act 2012. The Appellant submitted that the survey report produced by the Respondent in support of his case was faulty. 11.The Appellant further submitted that the survey report produced in evidence by the Respondent indicated that the Appellant occupied Plot No. 3345. The Appellant submitted that Plot No. 3345 was some distance from the suit property. The Appellant submitted that the trial court’s finding that the Appellant had trespassed on the suit property was not supported by evidence. The Appellant submitted that the trial court failed to appreciate that the dispute before him concerned the suit property and Plot No. 5475, which was owned by a third party. 12.The Appellant submitted that the trial court overlooked the evidence of the surveyor (PW2), who gave evidence for the Respondent to the effect that there was an illegality in the survey of the disputed parcels of land, and that there was a problem on the ground that resulted from the mutations that gave rise to the said properties. The Appellant submitted that the trial court also overlooked PW2’s evidence to the effect that the Appellant lived on Plot No. 5104, which was above Plot No. 3345. The Appellant submitted that these facts were contained in PW2’s survey report. The Appellant submitted that, from the Respondent’s own evidence, the Appellant was occupying Plot No. 5104, which was not in dispute in the proceedings. The Appellant submitted that there was no basis on which the trial court could find that the Appellant had trespassed on the Respondent’s parcel of land (the suit property). The Appellant submitted that her deceased husband did not finish the purchase of Plot No. 5475. The Appellant submitted that the Respondent did not establish that the Appellant trespassed on the suit property. The Appellant submitted that her Appeal had merit and urged the court to allow the same with costs to the Appellant. The Respondent’s submissions 13.The Respondent filed submissions and further submissions dated 4th July 2025 and 24th October 2025, respectively. The Respondent framed four issues for determination, namely: whether the Respondent was the owner of the suit property; whether the dispute before the trial court was a boundary dispute; whether the Respondent was entitled to damages for trespass; and who should bear the costs of the appeal. The Respondent submitted that the ownership of the suit property by the Respondent was not disputed before the trial court and this court. The Respondent submitted that the evidence placed before the trial court by both parties showed that the suit property bordered the Kisumu-Kakamega Road. The Respondent submitted that the Appellant erected a perimeter wall across the suit property, which had the effect of not only blocking the Respondent’s access to the said road but also hived off a large portion of the property. The Respondent submitted that the dispute between the parties concerned land ownership, and not the boundary of the suit property and the land owned by the Appellant. 14.Regarding damages, the Respondent submitted that the Appellant trespassed on the suit property and constructed a permanent wall thereon. The Respondent submitted that the Appellant admitted, in an affidavit filed in the proceedings, that the said wall was constructed on her instructions. The Respondent submitted that through the said act of trespass, the Appellant hived off a portion of the suit property through which she was able to access Kisumu-Kakamega Road, in respect of which her property did not have access. The Respondent submitted that through the said wall, the Appellant blocked his access to the Kisumu-Kakamega Road. The Respondent submitted that the Appellant commercially benefited from the portion of the suit property which she had hived off. The Respondent submitted that the Appellant harvested stones from the said portion of the suit property, some of which she used in construction, while others she sold. The Respondent submitted that he was running a factory on the suit property whose operations were badly affected when the Appellant blocked his access to the Kisumu-Kakamega Road from the said factory. The Respondent submitted that the trial court declined to award him damages for trespass. The Respondent submitted that he did not need to prove that he had suffered damage to be awarded damages for trespass. The Respondent urged the court to award him Kshs. 10,000,000/- as damages for trespass. The Respondent cited several authorities in support of the foregoing submissions, which I have considered. 15.The Respondent urged the court to dismiss the Appellant’s appeal, ELCA No. E002 of 2024 and allow the Respondent’s appeal, ELCA No. E009 of 2024 with costs to the Respondent. Analysis and Determination 16.I have reviewed the trial court's record. I have considered the pleadings and the evidence adduced before the trial court, the judgment of the court, and the grounds of appeal by the Appellant and the Respondent. I have finally considered the parties' submissions. What is before me is a first appeal. In Gitobu Imanyara & 2 Others v. Attorney General [2016] KECA 557 (KLR), the Court of Appeal stated as follows on the mandate of the court on a first appeal:“...this Court is not bound necessarily to accept the findings of fact by the court below and that 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. See Selle and Another v. Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v. Brown [1970] E.A.L." 17.As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters v Sunday Post Ltd [1958] EA 424. In its own words: -“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.” 18.In Kenya Ports Authority v. Kuston (Kenya) Limited [2009] 2EA 212, the Court of Appeal stated that:“On a first appeal from the High Court, the Court of Appeal should 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 allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 19.In my view, the grounds of appeal by the Appellant and the Respondent in the two appeals raise three main issues for determination, namely: whether the trial court erred in its finding that the Appellant had trespassed on the Respondent’s parcel of land, Title No. Kisumu/Konya/5499 (suit property), whether the trial court erred in its finding that the Respondent was not entitled to general damages for trespass, and whether the appeals should be allowed and if so, on what terms. 20.The burden of proof of the Respondent’s trespass claim against the Appellant was on the Respondent. In Halsbury’s Laws of England, 4th Edition, Volume 17, at paras. 13 and 14, the authors have stated as follows:“13.The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose.14.The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.” 21.In Halsbury’s Laws of England 3rd edition, Volume 38 at page 739 paragraph 1205, trespass is defined as follows:“A person trespasses upon land if he wrongfully sets foot on, or rides or drives over it, or takes possession of it, or expels the person in possession of pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it, or it seems if he erects or suffers to continue on his own land anything which invades the air space of another, or if he discharges water upon another’s land, or sends filth or any injurious substance which has been collected by him on his own land to another’s land.” 22.The Court of Appeal, Fourth District, Division 1, California, stated as follows in Ralphs Grocery Co. v. Victory Consultants Inc. (2017) 17Cal. App.5th 245, 261; CACI No. 2000:“In the instant action, Appellants have sued Respondents for trespass. “Trespass is unlawful interference with possession of property.” (Staples v. Hoefke (1987)189 Cal.App. 3d 1397,1406). The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was substantial factor in causing the harm. (See CACI No. 2000).” 23.The Respondent’s case before the trial court was straightforward. He was the registered owner of the suit property, which measured 0.7 hectares. The Appellant entered the property without his permission and excised a portion thereof, which she fenced off using a perimeter wall. The suit property had direct access to the Kisumu-Kakamega Road. The construction of the said wall blocked the Respondent’s access to the said road, thereby interfering with the operations of the factory that he had constructed on the property. The Appellant harvested building stones from the excised portion of the suit property, some of which she used in the construction of the wall complained of, and the rest were sold to third parties. The Respondent sought orders restraining the Appellant’s acts of trespass, eviction from the portion of the suit property under her occupation and general damages for trespass. 24.The Appellant admitted that the Respondent was the registered owner of the suit property. The Appellant averred that she was the owner of Plot No. 5476. The Appellant averred that one Grace Akinyi had sold Plot No. 5475 to her deceased husband, Odera Ongudu, but the property had not been transferred to them as there was a pending court case regarding the same. In response to the trespass claim, the Appellant averred that the wall complained of by the Respondent was constructed with a view to putting together Plot No. 5476 owned by the Appellant and Plot No. 5475, which was sold to them by Grace Akinyi. The Appellant averred that, while undertaking the construction of the said perimeter wall, she was guided by the boundaries set by the Ministry of Lands and the Director of Surveys, who intervened to resolve the dispute over the location of the various parcels of land, on the survey map and on the ground. The Appellant denied that in the course of the construction of the said wall, she trespassed on the suit property as claimed by the Respondent or at all. 25.There was no dispute that the Respondent owned the suit property, while the Appellant owned Plot No. 5476 and had also purchased Plot No. 5475, although the property was yet to be transferred to her. The Appellant admitted in paragraph 5 of her defence that the wall complained of by the Respondent was constructed by her. There is also evidence on record that the Appellant had admitted in the interlocutory proceedings before the trial court that the said wall was put up by her so as to bring her two properties, Plot No. 5476 and Plot No. 5475, together. In my view, the issue that arose for determination by the trial court was whether the said portion of land that was fenced by the Respondent was part of Title No. Kisumu/Konya/5499 owned by the Respondent or part of Plot No. 5475 purchased by the Appellant from Grace Akinyi. If the disputed portion of land was part of the suit property, then the Appellant was a trespasser on the property, and if it was part of Plot No. 5475, then the Appellant was not a trespasser. 26.The Respondent’s case before the trial court and this court was that, according to the Preliminary Index Diagram (Registry Index Map) No. 7, Kisumu Konya Registration Section, the suit property bordered and had open and direct access to Kisumu-Kakamega Road, while Plot No. 5475 and Plot No. 5476 did not border the said road. The Respondent’s case was that the parcel of land, a portion of which was hived off by the Appellant, was the suit property in that it bordered Kisumu-Kakamega Road. The Respondent’s case was that the disputed parcel of land could not be Plot No. 5475, since, according to the said Preliminary Index Diagram, Plot No. 5475 did not border Kisumu-Kakamega Road. The Appellant’s case, on the other hand, was that the suit property was not where the Respondent claimed it to be. The Appellant contended that what the Respondent occupied as the suit property was actually Plot No. 5475, which the Appellant purchased from Grace Akinyi. 27.The majority of the Supreme Court in Presidential Election Petition No. 1 of 2017, Raila Amolo Odinga & Another v. IEBC & 2 Others [2017] eKLR stated as follows in paragraphs 132 and 133 of the judgment on the evidential burden of proof:“(132)Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and remains constant through a trial with the plaintiff, however, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.(133)It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the burden shifts and it behooves the respondent to adduce evidence to prove compliance with the law…” 28.The burden was on the Respondent, who claimed that the Appellant had trespassed on the suit property to prove that the disputed parcel of land, which was fenced by the Appellant, was the suit property and not Plot No. 5475 as claimed by the Appellant. Both parties testified and also called experts who testified in support of their respective cases. On 23rd February 2015, before the suit was transferred to the trial court by the Environment and Land Court, the Court had ordered that the Kisumu County Surveyor visit the suit property, and Plot Nos. 5475 and 5476, and establish the boundaries of the same. The said surveyor was also to determine whether there was any encroachment by one of the parties on the land of the other. The surveyors from the Ministry of Lands, Housing & Urban Development, Kisumu County Survey Office, visited the said parcels of land in the company of the parties and other interested parties, in compliance with the said court order, on 16th March 2015. In a report filed in court on 1st April 2015, signed by Vincent Oluoch, the said surveyors made a finding that the Appellant’s family had erected a wall fence on a portion of land which the owner of the suit property “thought was his land” and in the process reduced the size of the land. The said surveyors further found that the parcels of land in dispute were in Kisumu Konya Registration Section, Diagram/Map No. 7, and that the plots’ arrangement on the ground did not tally with the arrangement of the same plots on the Registry Index Diagram/Map No. 7 for Kisumu Konya Registration Section. The said surveyors stated that in view of that anomaly, they measured the said parcels of land as they existed on the ground. The said surveyors stated that the suit property, as it existed on the ground, measured 0.34 hectares, and that Plot Nos. 5475 and 5476, as they existed on the ground, measured 0.46 hectares in total. The surveyors stated that the area fenced by the Appellant, which was in dispute between the parties, measured 0.40 hectares. The surveyors stated that having regard to the registered measurement of the suit property, which was 0.71(sic) hectares, the property was less by 0.37 hectares, while Plot No. 5475 and Plot No. 5476, which measured a total of 0.70 hectares, were less by a total of 0.24 hectares. The said surveyors recommended that, since there was “no clear guide” as to who owned the contested land measuring 0.40 hectares, it be divided equally between the Appellant and the Respondent. These surveyors did not state whether the contested portion of land that had been fenced by the Appellant was part of the suit property or Plot No. 5475 and Plot No. 5476. There was therefore no determination on whether or not there was an encroachment by any of the parties on the land of the other. This, I believe, was due to the fact that, according to them, the parcels of land whose boundaries they were to determine were not laid out on the ground in the same way they were on the survey map for the area. 29.At the trial, the Respondent called a registered surveyor, Patrick Opiyo, who testified as PW2 and produced his survey report as an exhibit. Patrick Opiyo (PW2) told the court that he also visited the suit property, and Plot Nos. 5475 and 5476, on the instructions of the Respondent, and prepared a field report. According to PW2, on the ground, the Appellant was not living in his rightful parcel of land. PW2 stated in his report that the dispute was between the suit property and Plot Nos. 3345 and 5104. According to PW2, on the ground, the Appellant was occupying the parcels of land, which on the survey map of the area were Plot Nos. 3345 and 5104, while the suit property was in its rightful position both on the map and on the ground. PW2 stated that there was no dispute over the boundaries of the suit property and Plot Nos. 5475 and 5476. PW2 stated that the Appellant had erected a perimeter wall on the suit property, which not only reduced its size but also blocked the Respondent’s access to the Kisumu-Kakamega Road. PW2 concluded in his report that the dispute between the parties had been caused by an illegal survey. He stated that the boundaries of the suit property and Plot Nos. 3345 and 5104 occupied by the Appellant existed on the ground. PW2 suggested that the illegal survey be revoked so that each party could return to their land. 30.The Appellant also called a surveyor, Peter Oraro (DW2), who gave evidence on her behalf. DW2 produced his survey report dated 22nd February 2022 as an exhibit. According to DW2, the Appellant was staying on her parcel of land, Plot No. 5476, while the Respondent was occupying a portion of Plot No. 5475 owned by Grace Akinyi. He stated that the Respondent’s parcel of land existed on the survey map, but he was not occupying the same. In his report, DW2 stated that on the basis of the documents that gave rise to the disputed parcels of land, the Respondent was occupying the upper portion of Plot No. 5475. 31.From the evidence on record, I am not satisfied that the Respondent proved that the portion of land fenced by the Appellant was part of the suit property. I disagree with the Respondent that the fact that the land fenced by the Appellant bordered the Kisumu-Kakamega Road was evidence that it was part of the suit property. In his report prepared following a court order, which is part of the court record, the Kisumu County Surveyor stated that the positions of the suit property and Plot Nos. 5475 and 5476 on the ground were not as they appeared on the Kisumu Konya Registration Section Diagram 7. This finding was not challenged by the Respondent. The said surveyor stated that the Respondent just “thought” that the Appellant’s wall was erected on the suit property. Since the disputed parcels of land were not arranged on the ground as they appeared on the Kisumu Konya Registration Section Diagram 7, the Kisumu County Surveyors measured them as they existed on the ground rather than as they were on the said Kisumu Konya Registration Section Diagram 7. What this means is that, according to the Kisumu County Surveyor, on the ground, the parcels of land taken by the Respondent as the suit property, and the parcels of land taken by the Appellant as Plot Nos. 5475 and 5476 were not in the positions they were supposed to be according to the Kisumu Konya Registration Section Diagram 7. I am persuaded that the Kisumu County Surveyor's findings on the ground location of the disputed properties are correct. The Respondent’s witness, PW2, who prepared what he referred to as a field report after the Kisumu County Surveyor’s report, which he relied on heavily, did not comment on this finding. He neither agreed nor disagreed with it. I have found PW2’s report shallow and deficient in material particulars. The report is undated, and there is no indication of when he visited the disputed properties and who was present. There is also no indication that he took any measurements. The attached diagram is a sketch from Kisumu Konya Registration Section Diagram 7, with measurements in the body of the diagram taken from Kisumu County Surveyor's report. This is clear from page 2 of his findings. The Kisumu County Surveyor's finding that the location of the disputed properties on the ground was not aligned with their supposed locations on the Kisumu Konya Registration Section Diagram 7 is supported by the findings and conclusions of PW2. According to PW2, on the ground, the Appellant was occupying the parcel of land shown on Kisumu Konya Registration Section Diagram 7 as Plot No. 5104, while the parcel of land claimed by the Appellant as Plot No. 5475 on the ground was shown on Kisumu Konya Registration Section Diagram 7 as Plot No. 3345. PW2 stated that the dispute between the parties concerned the suit property and Plot Nos. 3345 and 5104, rather than Plot Nos. 5475 and 5476. If indeed the Appellant occupied Plot No. 5104 on the ground and not Plot No. 5476, how could she construct a wall across the suit property from Plot No. 5476 as shown in the Diagram attached to PW2’s report? How could the Appellant occupy Plot No. 5104, which was registered in the name of someone else? I doubt if PW2 took the time to identify the ground locations of the various parcels of land in the disputed area. PW2’s finding that on the ground, Plot Nos. 5475 and 5476 were on the location of the land parcels shown in the Kisumu Konya Registration Section Diagram 7 as Plot Nos. 3345 and 5104, respectively, confirm that there was a problem with the survey in the area. This fact is captured expressly in PW2’s report, where he stated that: “The problem has been caused by an illegal survey”. He added as his recommendation that: “The court should be requested to revoke the survey which caused the problem and the two parties to go back to their respective lands(boundaries)”. I am of the view that with the admission that there was a problem with survey in the area which placed parcels of land on the ground in locations which were different from their locations shown in the survey map of the area, the said survey map, Kisumu Konya Registration Section Diagram 7 could not be a basis for PW2’s finding that the portion of land that was fenced by the Appellant was part of the suit property. 32.Even though it also had deficiencies like the other reports I have discussed above, I find DW2’s report more detailed and reliable. DW2 took time to try to overlay the Kisumu Konya Registration Section Diagram 7 on the Google map of the area. Most parcels of land in the area are developed and occupied by their respective owners. DW2 identified various parcels of land on the ground together with the developments thereon. This report also confirms that the ground locations of Plot No. 5475, which the Appellant purchased from Grace Akinyi, and Plot No. 5476, owned and occupied by the Appellant, are not in the areas they are shown to be located on the survey map, Kisumu Konya Registration Section Diagram 7. According to this report by DW2, Plot Nos. 5475 and 5476 do not share boundaries with the suit property on the ground, and the portion of land fenced by the Appellant was part of Plot No. 5475 owned by Grace Akinyi. DW2 demonstrated in his report that both the suit property and Plot Nos. 5475 and 5476 border the Kisumu-Kakamega Road at different points. DW2 also demonstrated that Plot No. 3345 and Plot No. 5104 existed on the ground distinctly and separately from Plot Nos. 5475 and 5476, and were not occupied by the Appellant as claimed by the Respondent and PW2. According to DW2, the suit property exists on the ground but is not adjacent to Plot Nos. 5475 and 5476. 33.Kisumu County Surveyors visited the disputed properties, took measurements, and prepared diagrams showing the properties as they appear on the ground. The shape of the disputed parcels of land, as drawn by the Kisumu County Surveyor, is similar to the shape of Plot Nos. 5475 and 5476 as captured by DW2 in his report. In DW2’s report, he attached the mutation forms through which the suit property, and Plot Nos. 5475 and 5476 came into existence. I have perused the same. The suit property is a subdivision of Title No. Kisumu/Konya/3433. Title No. Kisumu/Konya/3433 was subdivided through Mutation Serial No. 263746 and gave rise to Title No. Kisumu/Konya/5499 and Title No. Kisumu/Konya/5500. In the mutation, Title No. Kisumu/Konya/3433 was indicated as measuring 1.6 hectares. However, the measurements of its subdivisions totalled only 1.10 hectares. There is no explanation in the Mutation Form as to what became of a whole 0.50 hectares of the original land. The shape of the suit property is indicated in the mutation. The shape of the suit property as it is in the mutation in question is not the same as the shape of the parcel of land indicated as “A” and “C” in the report by Kisumu County Surveyor. 34.Plot Nos. 5475 and 5476 were subdivisions of Title No. Kisumu/Konya/3866. Title No. Kisumu/Konya/3866 was subdivided through mutation serial number 223560. Title No. Kisumu/Konya/3866 measured 0.76 hectares. Plot No. 5475 measured 0.36 hectares, Plot No. 5476 measured 0.34 hectares, and a portion of the original parcel measuring 0.06 hectares was reserved for a road. This means that Plot Nos. 5475 and 5476 measured 0.70 hectares. The shapes of Plot Nos. 5475 and 5476, as they are in the mutation serial number 223560, are not the same as the shapes of the parcels of land indicated as “A”, “B” and “C” in the report by Kisumu County Surveyor, or the shapes of Plot Nos. 5475 and 5476 in DW2’s report. 35.This means that the disputed parcels of land, as shown in the mutation forms and the Kisumu Konya Registration Section Diagram 7, differ from how they are on the ground. I am of the view that without correcting the errors in the Kisumu Konya Registration Section Diagram 7, there was no basis upon which the trial court could conclude that the Appellant had trespassed on the suit property. It would have been upon the correction of the said survey diagram/map for the area, aligning the location of the various parcels on the said map with their locations on the ground, and the identification on the ground of the boundaries of the various parcels of land that the trial court could determine whether the disputed portion of land was part of the suit property as claimed by the Respondent or part of Plot No. 5475 as claimed by the Appellant. The exercise would have involved more parcels of land, thus additional parties to the two before the court and would have required digging into the past survey records to establish at what point the Kisumu Konya Registration Section Diagram 7 was interfered with or was not correctly amended, resulting in the inconsistencies on the locations of the various parcels of land on the map and on the ground. I believe that this is an exercise which should have been undertaken by the Ministry of Lands, Kisumu County Survey office, when they were ordered by the court on 23rd February 2015 to establish the location of the boundaries of the suit property and Plot Nos. 5475 and 5476 owned by the parties, and establish whether there was an encroachment by any party on the land of the other. The report submitted to the court by the Kisumu County Survey Office failed to meet the requirements set out in the court order of 23rd February 2015. The Kisumu County Surveyor, having made a finding that the way the parcels of land in dispute were arranged on the ground and the way they appeared on the Kisumu Konya Registration Section Diagram/Map No. 7 did not tally, should have ventured into an inquiry into the cause of the anomaly, and whether any of the parties or their predecessors in title had contributed to the same. The report submitted by the Kisumu County Surveyor did not answer any of the questions that the court had referred to the surveyor. It is no wonder that the court was unsure whether the Appellant had trespassed on the suit property. On this issue, the trial court stated as follows:“I have considered the above and find that it is possible that the 0.37 ha which belongs to the Plaintiff has been trespassed on because the surveyor (Kisumu County Surveyor) clearly indicated that there is a contested part which the parties herein are both claiming.” (Underlining added). 36.I find that, given the foregoing, the Respondent failed to prove his trespass claim against the Appellant to the required standard. The determination of the issue rested on identifying the rightful locations of the various parcels of land on the ground and on the relevant survey maps, along with their boundaries. This was not possible because Kisumu Konya Registration Section Diagram/Map 7, which covers the properties in dispute, contained material survey errors that remained uncorrected. An erroneous survey map could not be relied upon to determine a trespass claim. I am of the view that the dispute between the parties, which arises from a flawed survey process, should be resolved by the Director of Surveys and the Land Registrar, Kisumu County. I believe the parties can still request that the Director of Surveys and the Land Registrar, Kisumu County, conduct a proper survey and a boundary determination, in light of the issues raised in this judgment, to resolve the dispute. 37.The Respondent, having failed to prove his case against the Appellant, was not entitled to the orders he sought before the trial court. In view of this finding, it is not necessary for me to determine the issue of whether or not the trial court erred in not awarding the Respondent general damages for trespass against the Appellant, which is the subject of the Respondent’s appeal in ELCLA No. E009 of 2024. I will allow the Appellant’s appeal while the Respondent’s appeal is for dismissal. On the issue of costs, I am of the view that each party should bear its own costs, as the dispute between the parties arises from an erroneous survey, which I am unable to attribute to any of the parties from the evidence on record. Conclusion 38.For the foregoing reasons, I hereby make the following orders in the matter:1.I allow ELCLA No. E002 of 2024;2.I set aside the judgment of the trial court delivered on 16th January 2024 and substitute it with an order dismissing the Respondent’s (Jeremiah Ogola Rajwayi) suit in the lower court against the Appellant (Eucabeth Odera Ongudu);3.ELCLA No. E009 of 2024 is dismissed.4.Each party shall bear its costs of the lower court suit and of the appeal.Written and signed at Nairobi by S. OKONG’OJUDGEDELIVERED, COUNTERSIGNED AND DATED AT KISUMU ON THIS 21ST DAY OF MAY 2026E.ASATIJUDGEJudgment delivered through Microsoft Teams Platform in the presence of:Anyul for the AppellantOtieno D. for the RespondentAtika - Court Assistant