https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3312

Ogoma v Ogoma (Environment and Land Appeal E017 of 2025) [2026] KEELC 3312 (KLR) (7 May 2026) (Judgment) Neutral citation: [2026] KEELC 3312 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Appeal E017 of 2025 FO Nyagaka, J May 7, 2026 Between Paul Yashon Ogoma Appellant and James Omolo Ogoma Respondent (Being an Appeal from the ruling of the Chief Magistrate Court at Homa Bay Hon. Charles Soi Mutai made on 3rd April, 2025 in Homabay CMELC Case No. 35 OF 2019) Judgment Introduction 1.This is an appeal arising from the ruling of Honourable Charles Soi Mutai, Chief Magistrate, delivered on 3rd April, 2025 in Homabay ELC NO. 35 of 2019. It followed an application by the respondent for the eviction of the Appellant from the parcel of land an issue herein following the decree of the court that the Respondent sought to enforce. In the judgment and decree, the Court had directed that the appellant be evicted from the suit land. 2.The Appellant filed a Memorandum of Appeal dated 2nd May, 2025 appealing against the said ruling on the following grounds: -1.The learned trial Magistrate erred in law and in fact by failing to appreciate that the Appellant had duly filed a Response to the Application in question and proceeded to write the Ruling under the erroneous impression that there was indeed no Response to the said Application.2.The learned trial Magistrate erred in law and in fact by failing to hear the Appellant’s case contrary to the clear provisions of Article 50 of the Constitution of Kenya 2010 and the tenets of natural justice.3.The learned trial Magistrate erred in law and in fact by failing to ascertain whether there had been strict compliance with Section 18 and 19 of the Land Registration Act, 2012 prior to issuing the eviction orders.4.The learned trial Magistrate erred in law and in fact by rendering a Ruling which is essentially per incuriam, misdirected and which has, as a result, occasioned an injustice on the Appellant. 3.The Appellant sought for orders setting aside the trial magistrate’s ruling. He also sought for costs of the appeal. Brief Facts 4.The trial court vide its judgment dated 24th November, 2022, found that the Appellant had trespassed onto the Respondent’s parcel LR No. Kanyada/kotieno/KATUMA A/1415. It consequently issued the following orders and decree against the Appellant:a.A permanent injunction restraining the Defendant from trespassing, occupying, putting up any structure or dealing in any manner with the suit land and an order directing the Land Registrar Homa-Bay sub county to reestablish the common boundary which the Defendant has defaced.b.An eviction order evicting the Defendant from the suit landc.Costs of the suitd.Interest on (c) above. 5.The Respondent vide an application dated 11th December, 2024 sought police assistance in the execution of the eviction order against the Appellant. The lower court record shows that as a result of confusion in mention dates, the Appellant only had 2 days to file and serve his submissions. 6.The court delivered a short ruling. It formed the basis for the present Appeal. The Appellants being dissatisfied with the Ruling on which the trial could allowed the application, filed the present appeal. It was canvassed by way of written submissions. Submissions 7.Counsel for the Appellant filed his submissions dated 12th January, 2026 where he identified two issues for determination;1.Whether the Appellant’s right to fair hearing was violated by the trial court’s failure to consider the Appellant’s Response and Submissions duly filed2.Whether the subordinate court failed to appreciate the clear wording of the Decree issued on 7th September, 2023 in the main suit and consequently erred in law by failing to appreciate the mandatory requirements under Section 18 and 19 of Section 18 and 19 of the Land Registration Act, 2012, prior to allowing the Respondent’s Motion. 8.On the first issue, it was counsel’s submission that that the failure by the trial court to consider the Appellant’s Response and Submissions duly filed, was a clear violation of the Appellant’s right to fair hearing as enshrined in Article 50 of the constitution 9.He submitted that it was not in dispute that the Application before the subordinate court had been set for mention for compliance on 7th March, 2025. That on 4th March, 2025, the matter was surprisingly listed for mention, where the Appellant informed court that she was under the impression that the matter was to mentioned on 7th March, 2025 and not 4th March, 2025 as per the court’s previous directions. 10.He submitted that the Appellant’s counsel sought for a two-days leave of court within which to finalize on the response and submissions and file the same. He added that leave was granted and the Appellant filed the documents. 11.Counsel for the Appellant argued that the Respondent does not necessarily contest that the Appellant did file his documents but that the Appellant sought leave to file his response and submissions before close of business on 4th March, 2025 and that the court’s leave to the Applicant expired on the 4th March, 2025 after close of business. 12.He submitted that this argument was not supported by any facts nor records before this court. 13.It was his submission that a perusal of the ruling delivered on 3rd April, 2025 showed that the learned Magistrate had formed the erroneous impression that the Appellant had not filed any documents in response to the Application. 14.He further submitted that if the Respondent’s argument on filing out of time held any weight, nothing would have been easier than the learned Magistrate clearly denoting in his ruling that the Appellant’s documents were not considered and were struck out for not complying with timelines for compliance previously issued by court. 15.It was his submission that the learned Magistrate erred in law and in fact by failing to consider the Appellant’s Response and submissions. 16.On the second issue, counsel submitted that the trial court had relied solely on the report of the County Surveyor in arriving at its findings but underscored the statutory obligations bestowed upon the Land Registrar under Section 18 and 19 of the Land Registration Act, 2012. 17.He further submitted that subsequent to the Judgment and Decree of the trial court in the main suit, the Land Registrar notified both parties that the boundary fixing exercise of the Respondent’s parcel would take place on various dates. 18.He added that the Land Registrar failed to show up for the exercise and fix the impugned boundary pursuant to the court order. Counsel argued that the learned Magistrate thus failed to ascertain whether indeed the Respondent’s parcel’s boundary had been fixed prior to allowing the Respondent’s Application to evict with police assistance. 19.He relied on Section 18(2) of the Land Registration Act, 2012 and the case of Willis Ocholla V Mary Ndege [2016] eKLR and Estate Sonrisa Ltd & another v Samuel Kamau Macharia & 2 others [2020] eKLR 20.It was his submission that it was only the Land Registrar, with the assistance of the county surveyor, that have the requisite expertise to assist in implementation of the trial Court’s orders in a boundary dispute as provided in the said sections. 21.Counsel went on and submitted that in order for the eviction to issue, there had to be a determination whether the Land Registrar has fixed the boundaries of the Respondent’s parcel and made a note thereof in the register whether the portion trespassed upon by the Appellant within the Respondent’s land was clearly mapped out. 22.He cited the case of Victoria Wanjiru Murigi (suing as the Administrator to the Estate of Jane Njoki Murigi (Deceased) V Evans Muringu Muhia [2020] eKLR and Ndegwa & another v Gichuki (Environment and Land Appeal E011 of 2023) [2024] KEELC 1308 (KLR) 23.It was his submission that the subordinate court erred in law by issuing orders which, in view of the circumstances prevailing, were incapable of execution. He added that the trial magistrate erred by prematurely allowing the Respondent’s application. 24.Counsel for the Respondent on the other hand filed his submissions dated 9th April, 2026 and identified one issue for determination, whether the appeal is merited. 25.It was his submission that parties cannot approbate and reprobate at the same time. He added that the Appellant admitted that LR No. Kanyanda/Kotieno/Katuma A/261 belonged to him yet in the memorandum of appeal he claimed that it belonged to the estate of Priscah Obar Nyaroya. 26.He further submitted that grounds 4,7,8 and 9 dealt with the surveyors’ report and the boundaries between the suit parcels. It was his submission that there were two reports and that the survey exercise was conducted which the trial court considered all the evidence and reached a conclusion. 27.He relied on Section 18(2) of the Land Registration Act and submitted that the Appellant cannot now claim that the court lacked jurisdiction. He further cited Sections 24, 25 and 26 of the Land Registration Act and submitted that the Appellant was the registered proprietor of the subordinate court erred in law by issuing orders which, in view of the circumstances prevailing, were incapable of execution. 28.Counsel relied on the case of Jane Arthur V Joseph Mwaura Njoroge [2019] eKLR and urged the court to dismiss the appeal with costs. Analysis and Determination 29.Upon consideration of the grounds of appeal, pleadings, submissions and the authorities cited, the following issues are for determination:1.Whether the appeal is merited.2.Who should bear the cost of the appeal. 30.Being a first appeal, the court relies on a number of principles as set out in various decisions regarding where the trial court exercises discretion. Regarding such decision made and an appeal arises therefrom the court has to consider whether exercised injudiciously and or proceeded on the wrong principles or included matters he ought not to have included or failed to take into account some he ought to have considered. Thus, in Supermarine Handling Services Ltd V Kenya Revenue Authority [2010] KECA 373 (KLR) the court held as follows:“…Thus, where a trial Court has exercised its discretion on costs, an appellate Court should not interfere unless the discretion has been exercised injudiciously or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule”. 31.Furthermore, in Supermarine Handling Services Ltd versus Kenya Revenue Authority [2010] eKLR (Civil Appeal 85 of 2006) the Court stated :-“… Thus, where a trial Court has exercised its discretion on costs, an appellate Court should not interfere unless the discretion has been exercised injudiciously or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule”. 32.Similarly, in Farah Awad Gullet v CMC Motors Group Limited [2018] eKLR the Court of Appeal held that:“…the Court of Appeal, in interfering with the exercise of discretion of the trial Judge appealed from, ought to satisfy itself that the exercise of that discretion either way was improper and therefore warrants interference.” 33.Moreover, in Edward Sargent versus Chotabha Jhaverbhat Patel [1949] 16 EACA 63, it was held that there is no bar to an appeal lying to an Appellate Court against an order made in the exercise of judicial discretion, but for the Appeal Court to interfere only if it be shown that the discretion was exercised injudiciously. 34.Furthermore, in Mbogo and Another v Shah [1968] EA 93 at 96 the court held:“For myself I like to put it in the words that a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been mis-justice.” 35.Also, in Agola v Ngodhe (An administrator to the Estate of Zakayo Ngodhe) (Environment and Land Appeal E025 of 2024) [2025] KEELC 1367 (KLR) (6 March 2025) (Judgment), this court stated;“As for the instant appeal, it is clear that it arose from the low court’s exercise of discretion. Regarding appeals of such nature, the appellate court will not normally interfere with the discretion of the trial court unless the trial magistrate or judge exercised the discretion wrongly, injudiciously or misdirected himself in some matter thereby arriving at a wrong decision, the decision clearly wrong.” 36.Also, in Nyaoke & 7 others v Ayaga (Environment and Land Appeal E024 of 2024) [2025] KEELC 7345 (KLR) (28 October 2025) (Judgment) this court held,“Again, it is worth of note that this is an appeal that challenges the exercise of discretion by the trial court. The principles that govern the instances that an appellant court may interfere with a decision arrived at by exercise of discretion by a court appealed from are now settled. This court must be cautious in deciding to interfere with the discretion of the trial court. If I must do so, I should not substitute my decision with the that of the trial court. I must consider and find, if I have to overturn that decision, that the trial court failed to act judiciously or was plainly wrong on principles that he proceeded on or considered or failed to consider factors which he ought not or ought to have considered, respectively.” 37.It is not in dispute that the ruling appealed from followed an application in a matter where the trial court was functus officio in the merits of the case. It was a post judgment step over which the trial court exercised discretion. Further, I have keenly perused the record. It is not in dispute that the appeal before this court is not against the trial court’s judgment itself dated 24th November, 2022 but an appeal against an order aimed at giving the judgment effect. 38.In other words, the Appellant has filed this appeal against a ruling where the trial court allowed the Respondent’s application dated 11th December, 2024 that sought eviction orders in line with the court’s judgment delivered on 24th November, 2022. From the record, it is clear that the basis of the Respondent’s application was that the Appellant despite having been ordered to vacate the Respondent’s parcel Kanyanda/Kotieno/Katuma A/1415, he failed to do so. It culminated in the Respondent filing the said application that he succeeded. 39.The trial magistrate proceeded to allow the application as prayed, solely on the orders issued in its earlier judgment. By that time the Court had determined he rights of the parties. The Respondent’s right was settled that he was entitled to eviction. He needed not to use the police had it not been for the conduct of the Appellant. 40.It is this court’s view that the trial court was basically enforcing a post judgment process being the execution process of evicting the Appellant from the suit parcel. It considered that there was no order of stay of execution of the decree. The Appellant cannot at that stage raise matters of appeal yet he had already preferred an appeal before this court in ELC E004 of 2023 where the court vide its judgment delivered on 15th May, 2024 dismissed the appeal. 41.Notably, the issues raised in the instant appeal, particularly the eviction one, were already dealt with and allowing the same would be akin to appeal duplication. It is this court’s view that the Appellant’s attempt to appeal a post judgment ruling in the disguise of different grounds of appeal is a mere frivolity and vexation of the process of court. In the circumstance, this court finds that the present appeal is an abuse of the court process. 42.The upshot of the foregoing is that the appeal is devoid of merit and is dismissed with costs to the Respondents. 43.Orders accordingly JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 7TH DAY OF MAY 2026.HON. DR. IUR NYAGAKAJUDGEFrom 1:21 PM, in the presence of,Odhiambo Advocate for Ms. Muhia for the AppellantOwinoh Advocate for Abisai & Co. Advocatefor the Respondent