https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3474

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ENVIRONMENT AND LAND COURT LAND APPEAL No. E023 OF 2024** **REGGY OPIYO OPERE……………………………………...APPELLANT** **VERSUS** **LAWRENCE ONDUSO NYAKWAMA……………….1ST RESPONDENT** **NIFREDA ADEYA IMINZA…………………….……2ND RESPONDENT** ***(Being an Appeal from the Judgment and Decree of Hon. M. Okuche SPM delivered on 17th September 2024 in Migori CMELCC No. 60 of 2018 as consolidated with No. 59 of 2018)*** **JUDGEMENT** 1. By way of a Plaint dated 4th September 2018, in SPMCC No 59 of 2018, the 1st Respondent sought the following orders: 2. **A permanent injunction restraining the defendant from constructing a building on a public access road next to LR No. SUNA EAST/WASWETA/7397 within Migori town in Migori County and an order directing the Defendant to remove the unlawful structures erected on the public access road.** 3. **Costs of this suit.** 4. **Interest on costs.** 5. **Any other relief the honourable court may deem fit to grant in the circumstances.** 6. The Plaintiff pleaded that on 13th April 2018 the Defendant encroached a public access road adjacent to the plaintiff’s parcel of land without the plaintiff’s consent and knowledge. He listed the particulars of the defendants’ actions and urged that he stood to suffer irreversible damage if the actions permitted to continued to exist. 7. The 2nd Respondent, vide a Plaint dated 14th September 2018, vide Migori CMCELC No. 60 of 2018 sought the following orders against the Appellant; 8. **A mandatory injunction do issue against both Defendants either individually or in, jointly and/or their agents, servants directing them to open the road of access to Land parcel Number. LR NO. SUNA EAST/WASWETA 1/7112.** 9. **An order of eviction directed against both Defendants either individually and/or in jointly and/or their agents, servants from land parcel Number. LR NO SUNA EAST/WASWETA 1/7112.** 10. **A permanent injunction restraining both Defendants either individually and/or in jointly and/or their agents, servants and/or any persons acting on their behalf from blocking fee road of access to land parcel Number. LR NO, SUNA EAST/WASWETA 1/7112 and/or in manner interfering with, tilling and/or cultivating and/or erecting any structures on the land parcel L/R NO. SUNA EAST/WASWETA 1/7112.** 11. **Costs of this suit** 12. **Any other relief this Honourable court may deem fit and just to grant in fee circumstances.** 13. She pleaded that in the year 2005, the defendants trespassed onto the suit land and proceeded to list the particulars of trespass. That they blocked the access road to the suit land to wit LR No. Suna East/Wasweta 1/7112 and denied her access to the same. She prayed the court to grant the prayers sought. 14. The 1st defendant filed 2 defences dated 28th September 2018 and 22nd October 2018 where he denied all the allegations in the plaint in CMELCC 60 of 2018 and 59 of 2018. 15. Both matters were then consolidated on 28th November 2018 and the matter then proceeded for a site visit and a hearing. The site visit was conducted on 3rd April 2019 whereat the District surveyor visited the land and noted that the plots existed on the ground. Further, that the defendants’ construction had stalled after laying the slab. The parties were supplied with the report and the matter then proceeded for hearing. **Hearing at the trial court** 1. **PW1** was **Winfrida Adeya Imenzi** who stated that she knew Caleb Adija Magomere who was her deceased husband. That he was the owner of Suna/Wasweta 1/7112 and that she had a grant of letters of administration to represent the estate. She adopted her witness statement and urged that the defendant had commenced construction on his land. That a surveyor came and prepared a report dated 16th July 2018 which she produced as exhibit 2. That the land was photographed and produced as exhibits 3(a)-(c). She produced the green card and a copy of the title deed as exhibits 4 and 5. She urged that the defendant had blocked the access road. 2. **PW2** was **Lawrence Onguso Nyakwama** who testified that he knew the defendant and came to know him when he found him constructing a house on his plot. Further, that he was the owner of Suna West/Wasweta 1/7397 which he bought from Salina Agutu producing the sale agreement as exhibit 6. He produced the title deed and photographs of the blockage of the access road as Exhibits 7 and 8(a)-(c). He produced the surveyors report as exhibit 9 and prayed that the orders be granted as per the plaint. 3. After several mentions and attempts to serve the defendant, Counsel for the Appellant came on record and sought for orders to have the surveyor revisit the land and establish the nature of the infringement. The court declined to allow the revisit to the land and directed that the parties file submissions. 4. Upon considering the pleadings, evidence, testimonies and submissions, the trial court entered judgement in favour of the plaintiffs with costs. 5. Being aggrieved with the judgement and degree, the Appellant instituted the Appeal vide a memorandum of Appeal dated 14th October 2024 premised on the following grounds; 6. **The Learned Trial Magistrate erred in law and fact by failing to appreciate that the Appellant herein was condemned unheard.** 7. **The Learned Trial Magistrate erred in law and fact by failing to appreciate that the plaintiffs approached this court prematurely as boundary disputes are a province of the Land Registrar and not court by dint of section 18 (2) and 19 of the Land Registration Act, 2012.** 8. **The Learned Trial Magistrate erred in law and fact by failing to appreciate that the registration of the Appellant as proprietor of LR Suna East/Wasweta 1/11544 is indefeasible.** 9. **That as a result, the Learned Trial Magistrate erred and dismissed the Appellant’s case with cost to the Respondents.** 10. The Appellant filed submissions dated 8th December 2025 while the 1st Respondent filed submissions dated 28th January 2026. **Appellants’ submissions** 1. Counsel urged that the Learned Trial Magistrate erred in law and fact by failing to appreciate that the Appellant was condemned unheard. He referred the court to the proceedings and urged that Mr. Roch Odhiambo was discharged or discharged himself from the proceedings and the Appellant remained seated in court, the case of the plaintiffs were heard and the defence case closed. The honourable court did not inquire from the Appellant whether he had any defence to offer or whether he had any questions for the two witnesses who testified on that day having been left alone by his erstwhile advocate. He urged that the proceedings of 10th March 2020 violated the rights of the Appellant for a fair hearing as provided under Article 47 (1) and 50 of the Constitution 2010. Counsel cited the case of Musila -vs- Thengi & 2 others-Civil Appeal No. 607 of 2019 in support of this submission. 2. On ground 2, 3 and 4 counsel urged that each party had separate titles and the claim against the Appellant and referred to the judgment in ELCEPA No. E001 of 2023 - Peter Ochieng vs Mercy Were -Migori Law Court and urged that he believed that the facts of the Appeal are almost similar to the case cited. He urged the court to allow the Appeal as prayed with cost to the Appellant. **Respondents’ submissions** 1. Counsel laid down undisputed facts to wit; that the 1st Respondent is the registered proprietor of LR NO. SUNA EAST/WASWETA 1/7397, while the Appellant allegedly owns LR NO. SUNA WEST/WASWETA 1/11544. That the suit before the trial court arose from the Appellant’s unlawful construction of permanent structures on a public access road, thereby blocking access to the 1st Respondent’s land. That during trial, the court conducted three visits to the locus in quo, culminating in a site visit report dated 16/7/2018, which clearly confirmed the existence of the public access road and the encroachment complained of. That on 10/3/2020, the Appellant’s counsel applied for adjournment which was declined. Counsel walked out of court in protest, after which the Respondents testified and closed their cases. The Appellant never applied to set aside the proceedings nor sought recall of witnesses and the matter proceeded to judgment regularly. 2. Counsel urged that the contention that the dispute was a boundary dispute requiring reference to the Land Registrar under Sections 18(2) and 19 of the Land Registration Act is legally and factually untenable. That the suit before the trial court was not about boundary determination, but rather illegal obstruction of a public access road. He urged that Section 18(2) of the Land Registration Act only ousts the court’s jurisdiction where the dispute “relates to a boundary”. The provision does not apply where the dispute concerns encroachment onto public land or access roads. He cited the decision in Azzuri Limited v Pink Properties Limited [2018] eKLR and in Esther Ndegi Njiru & Another v Leonard Gatei (2014) eKLR in support of this submission. Further, that the Report dated 16/7/2018 was Filed and adopted as exhibits by the Respondents and the findings were that that Appellant had indeed encroached onto the access road and affected the other parcels was never challenged by the Appellant and remain unconverted to date. 3. Counsel urged that the subordinate court conducted multiple site visits, heard witnesses, and evaluated physical evidence on the ground. That Jurisdiction is determined by the pleadings, not the defence raised later. He listed the prayers sought in the plaint and cited the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [20I2] eKLR urging that the trial court therefore rightly assumed jurisdiction, and the Appellant’s argument is a belated attempt to escape the consequences of an adverse judgment. 4. Counsel cited Section 26(1) of the Land Registration Act and the case of Funzi Island Development Ltd & 2 Others v County Council of Kwale & 2 Others [2014] eKLR on indefeasibility of title. He urged that even assuming the Appellant holds a valid title, such title cannot extend into a public access road, which remains protected under law. 5. Counsel urged that the evidence on record overwhelmingly supported the Respondents’ case and the Appellant voluntarily absented himself from the proceedings after walking out of court. He cannot now complain of denial of a hearing. Counsel cited the decision in Savings and Loan (K) Ltd v Susan Wanjiru Muritu [2015] eKLR. Further, that there was nothing offered as evidence in Defence. The Respondent’s case remained unchallenged and supported with quality evidence. 6. Counsel submitted that it is trite law that an appellate court should not interfere with findings of fact unless they are based on no evidence or are plainly wrong. He cited the case of Peters v Sunday Post Ltd [1958] EA 424 in this regard and urged that the Appellant has failed to demonstrate any misdirection or error in law or fact. He prayed the court dismiss the Appeal with costs. **Analysis and Determination** 1. The duty of this court was laid down in**Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR,** where the court stated 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-analyze 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. In **Williamson Diamonds Ltd and another v Brown**[1970] EA 1, the court 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. Further, in **PIL Kenya Limited v Oppong** [2009] KLR 442, it was held that: **“It is the duty…of a first appellate court to analyze 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. Having stated the duty of the court, I now proceed to analyse the issues for determination that arise from a reading of the memorandum of Appeal and submissions. The issues for determination are; 2. **Whether the Appellant was condemned unheard** 3. **Whether the Respondents proved their case to the required standard** 4. **Who to bear the costs of the appeal herein.** 5. I now determine the issues in sequence. **Whether the Appellant was condemned unheard** 1. The Appellant contends in his Memorandum of Appeal, in the first ground, that he was condemned unheard. Submitted that the proceedings of 10th March 2020 resulted in his rights being violated as his counsel on record discharged himself from the proceedings. 2. I have carefully considered the ground of appeal and the arguments thereto. I have also analysed the court record. I note from a reading of the record that on the material date counsel for the appellant indicated to the court that his client, the Appellant, had instructed him that there were visits by the surveyor on 16th July 2018, 14th June 2019 and 4th July 2019 and that they had been supplied with only one report of the visit to wit, the one of 16th July 2018. 3. His client’s problem on the that issue was that on each visit, the surveyor pointed out at different points, and to the location of the three plots in question. Counsel for the Plaintiffs indicated to the court that he had only been served with one report of 16th July 2018 and there was no other report. Further, that counsel wanted the defendant to be granted an opportunity to cross examine the surveyor. He clarified that the visit to the scene by the court was for pre-trial processes and not for evidence taking. 4. The court record shows further that the trial court then clarified that on 11th July 2019, it visited the site in the presence of parties and their respective counsel. That when the matter was mentioned on 24th July 2019, Counsel for the Defendant was present and asked for the hearing date. The court went through the sequence of events and stated that there was no indication by counsel for the defendant that he intended to be supplied with the surveyors’ report. The court stated that the Plaintiff had indicated that the report was not needed and as the case belonged to them, they could not be compelled to rely on documents they did not intend to produce. 5. The trial court rejected the application for adjournment and the trial magistrate stated that he was of the opinion that if the defendant intended to rely on any reports, they should would be able to produce them at that stage. Counsel then stated that he could not continue with the matter until he was supplied with proceedings of the court rulings. The court then directed that he be supplied with the proceedings but added that the same could not apply as stay of proceedings. Counsel for appellant then prayed that he be discharged from the proceedings, which the court allowed and the matter then proceeded for hearing. 6. It should not be lost to the court on the morning of the material dated of 10th March 2020 learned counsel informed the court that his client was ready to proceed with the hearing. Indeed, he actually was ready to proceed for the hearing. But as the proceedings went on, as the record shows, he disagreed with the directions of the court that the Plaintiffs could not be compelled to produce documents they did not wish to since it was their case, and also he (Defendant) would produce the report later if he wished to. 7. The proceedings show (see pages 110 to 113 of the Record of Appeal) further that the Court ordered that matter does proceed as forthwith. That was when, upon being given an order that proceedings be supplied to him counsel declined to proceed. At the risk of repeating myself, this was conduct of a party who wanted to take the court at ransom, obstruct justice and just leave the court in the middle of a muddle so that he could allege later on that his right to a fair trial was infringed. Luckily the party himself was in court but chose not to cross examine the two witnesses who testified. He did not ask for the court to grant him an adjournment after counsel withdrew from representing him and neither did he ask for the court to grant him time to look for another advocate and the court denied him the chance. Things would have been different. 8. Lastly, the issue of whether the proceedings of 10th March 2020 were proper or should have been set aside was taken up soon after. From page 50 to71 of the Record of Appeal it is shown that the appellant filed an Application 15th February 2023 seeking to set aside the orders. The appellant, in the supporting affidavit, admits on oath expressly that indeed he was present in court on that date when the proceedings were taken. He depones further, that he was ordered to sit down. 9. I have carefully looked at the proceedings. No part shows that applicant appellant moved the court in any way to address it in any way, or ask for an adjournment or anything that would suggest that he was directed to sit down. In my view this contention was an afterthought. 10. In any event the court considered his application and delivered its ruling on 20th of June 2023 by which it dismissed his application. The appellant did not appeal from the said ruling. Instead he now presents the same at this appeal. But the time to appeal against the court’s finding on that issue was long gone. In any event, the appellant now wishes this Court to address the issue, though backdoor, or without the leave of the court to file an appeal against the ruling. This is unacceptable. It would be a sad day for courts to entertain issues on appeal that should have been taken on appeal earlier but were not. This is a mere afterthought and I can only reject it. 11. In my humble opinion, from the record there was counsel representing the Appellant in the matter and therefore, the claim of being condemned unheard is unfounded. The Appellant was clearly represented at different stages of the suit up to the conclusion of the same. In my humble view, the conduct of learned counsel and his client were such that they intended to delay the proceedings and or obstruct the just expeditious disposal of the matter. In any event the Defendant, now appellant, having then been left by counsel to prosecute his case did not ask for adjournment, having informed the court earlier through counsel that they were ready to proceed, hence the Court did not err in that step. **Whether the Respondents proved their case to the required standard** 1. The cause of action in the trial court emanated from an alleged encroachment by the Appellant on a public access road to the Plaintiff’s parcel of land. The main allegation was that the appellant had constructed a building on the access road which the Respondents sought to have removed. 2. It is trite that he who alleges must prove and this position is succinctly captured in Sections 107, 109 and 112 of the Evidence Act. Section 107 provides as follows: **“ (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.** **(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”** 1. Sections 109 and 112 of the same Act states as follows: **“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.** **112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”** 1. In discussing the standard of proof in civil liability claims in this jurisdiction, the Court of Appeal in **Mumbi M'Nabea vs David M. Wachira [2016] eKLR** stated as follows: **“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not.** 1. The position was re-affirmed by the Court of Appeal in **Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280** where it was held that: **“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognises that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”** 1. I have considered the evidence tendered in the trial court, by the parties. It is clear that there was sufficient proof of the allegations. There were pictures tendered as proof of the ongoing construction and more importantly, a survey was conducted by the Migori County Surveyor and a report dated 16th July 2018 filed in court. From the details of the report, it is clear that the same was prompted by a request by the parties in order to know the boundaries of their land and the position of the access road. The Appellant, who was the proprietor of the land marked as Z on the map showing the land was found to have encroached onto the road thereby blocking access to parcel no. 7397. He was also found to have encroached on parcel no. 7112 by approximately 6 meters. I therefore find that the evidence of on encroachment as found by the trial Court, because the surveyor’s evidence was sufficient and cogent. 2. The appellant submitted that the issue between him and the Respondents was a boundary dispute and that it not therefore crystallized hence the matter ought not to have been entertained by the court. On that contention, this court is of the considered view that the issue between the appellant and the Respondents was that there was encroachment onto or occupation and use of the access road by the appellant by way of erecting a building or placing a construction thereon, and encroachment onto parcel of number 7112. 3. It is my humble view that, first, there can be no boundary dispute as between parcels of land that are not directly adjacent to each other or share a common a boundary. There having been an access road between the appellant’s parcel of land and 7397 which he is said to have blocked means that the parcels were separated by the road of access. It means there cannot be a boundary dispute between parcel of land and a road of access. 4. Regarding the issue of encroachment and the alleged boundary dispute in relation to parcel number 7112, it was clear from the evidence of the surveyor that the Appellant occupied the other party’s parcel of land by approximately 6 meters. Thus, there was encroachment onto it, and the appellant cannot run away from it as to claim that the suit should have not been entertained by the court but rather the land registrar Section 18 of the Land Registration Act. The intention of Parliament in enacting the provision was to give parties to a dispute where boundaries have not been established to determine to so do. It was not meant or designed to deny any party to a dispute a right to have the dispute resolved if the same can be legally ascertained. In this case, it was found by the surveyor that the Appellant encroached someone’s land. It was found as much by the court and it remains so. I therefore disagree with the appellant on that point and find no error on the part of the trial court. 5. It is therefore my considered view that the Respondents proved their case on a balance of probabilities as no evidence to the contrary was tendered by the Appellant. 6. The upshot of the foregoing is that I am in agreement with the trial courts’ findings on the whole judgment. Further, I find that the Appeal lacks merit. It is hereby dismissed with costs to the 1st Respondent. **JUDGMENT Dated, Signed and Delivered virtually via the Teams Platform this 8th day of June 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **From 15:03 hours, in the presence,** Mr. Awino Advocate for the Appellant Mr. Owino Advocate for the 1st Respondent No appearance for the 2nd Respondent