[2021] KEELC 1883 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KISUMU

ELCA CASE NO. 51 OF 2019

(consolidated with ELCA number 34 of 2019)

SAMUEL OKOTH OJWANG’.........................................................................APPELLANT

VERSUS

MAURICE ODHIAMBO KODIWO.............................................................RESPONDENT

(Being an appeal arising from the Judgment of the learned Hon. T. M. OLANDO (SRM)

delivered on the 25th July, 2019 at SRMC SIAYA ELC No. 11 of 2014)

JUDGEMENT

Maurice Odhiambo Kodiwo, (hereinafter referred to as the Respondent) filed suit No. 11 of 2014 in the lower court against Samuel Okoth Ojwang (hereinafter referred to as the appellant) claiming that the registered proprietor of all that parcel of land known as EAST/KAGILO/754 was the respondent such registration conducted on 19th December 1989 when he was registered as the legal and only proprietor of the said parcel of land.

A title deed for the suit property was thence issued to the respondent on 17th December 1991. However, the parcel of land was originally registered in the name of one Nahashon Okete and Julias Akech Odinga who are brothers and each having half share in the said suit property measuring approximately 5. 2Ha. Upon the demise of Nahashon his brother Julius (deceased) who is the respondent’s uncle succeeded the said suit property and thereafter transferred the same to the respondent herein above who is a nephew. The respondent put up home on the said parcel of land known as EAST/KAGILO/754and has been living thereon since such time as he acquired the same uninterrupted and enjoyment of peace and quiet. However, on 16th January 2014 appellant began putting up structures on the respondent’s parcel which prompted him to report the matter to the Chief of Central Gem and the Assistant chief of Kagilo Sub-location. Both Government officials visited the site and advised the appellant to move out of the respondents but as parcel as soon as the two officials left the respondent continued with the constructions.

On 24th June 2014 the respondent brought the surveyor from the Saiya County Lands Office for confirmation of the boundary of his parcel and the appellant, Assistant Chief and one Village Elder were all present during the exercise. The survey results revealed that the appellant had indeed trespassed onto the respondent’s parcel of land being EAST/KAGILO/754. The appellant did not object to the exercise on that day of the survey but two days later, he wrote a letter to the District Land Registrar opposing the work done on the suit property and served the plaintiff with a copy of the same letter but an unsigned version.

The appellant blatantly continued to put up another structure and or develop the respondents parcel of land even after his lack of ownership and confirmation of trespass was made evident to him by the boundary confirmation process.

The appellant has laid claim on the suit property yet he is well aware that the has no interest and or right attaching to the same or at all and further that he has no evidence documentary or otherwise to support his baseless claims.

The Appellant on his part denied the respondent’s claim and alleged that the respondent acquired the suit parcel of land in an illegal and irregular manner. He denies having trespassed on the parcel of land EAST/KAGILO/754. He prayed that the suit be struck out.

When the matter was placed before the Honourable Magistrate in the Lower court for hearing on 24/4/2018 PW1, the Respondent testified that the case before court was a boundary dispute between Parcel of Land EAST/KAGILO/754 and EAST/KAGILO/755. He has a title deed for EAST/KAGILO/754 that is registered in his name whilst the appellant has title deed for EAST/KAGILO/755 that is registered in his name. The appellant built a house on a portion of EAST/KAGILO/754 in the year 2014. On cross examination, he states that when he took over the land, there was no dispute. The boundary dispute was determined by the surveyor.

PW2, Jane Kairu Maina the County Surveyor Siaya testified that she visited the land twice on 12/9/2014 and 7/2/2018 and prepared a report. She established that the proprietor of 755 had encroached on EAST/KAGILO/754 by 0. 008 hectares when he constructed the houses. The survey was done in the presence of both parties. There were some boundary marks.

PW3, Beatrice Akoth adopted her statement and on cross examination she states that she reported the encroachment to the Chief.

The appellant on his part testified that parcel No.EAST/KAGILO/ 755 belonged to Joka Obado family whilst EAST/KAGILO/754 belonged to the Joka Odinga family. Both were members of Kamkwaya clan. That their boundaries are well known by the clan members. He adopted the statement field on 28/11/2018 as evidence in chief.

On cross examination, he states that his land is EAST/KAGILO/755 whilst the respondent’s land is 754. He does not remember the size of his land. He was present when the court visited the land. He states that he moved out of the land numberEAST/KAGILO/ 755 because it was flooded.

DW2, Moses Agik stated that the land in dispute belonged to the Joka Obado who left it to John Ojwang Obanjo the father to the appellant. The father left the land to the appellant. On cross examination he states that where the respondent lives is in the name of Ojwang Obanjo. DW3, David Onyango Ojwang states that he is the last born son of Mzee John Ojwang Obanjo. That in the 70s and 80s their father planted sugar cane on the whole of EAST/KAGILO/755. The two parcels of land have marked boundaries. On cross examination by Mr. Odhiambo, he states that boundaries were drawn before he was born.

DW4, Truphena Aluoch the appellant’s mother testified that she got married in June 1948 and settled in Kagilo Sub location and started cultivating EAST/KAGILO/755. However, she left the land fallow and grass grown on it. 755 and 754 had a marked boundary. In 2013, she cleared the land started ploughing again and that is when the dispute arose.

After considering the evidence on record and rival submissions, the Honourable Court framed 3 issues for determination. Thus:

1. Is the plaintiff the owner of land number EAST/KAGILO/754.

2. Has the defendant entered into the plaintiff’s land.

3. Is the plaintiff entitled to the prayers sought.

On the 1st issue the court found that the plaintiff was the registered owner of EAST/KAGILO/754as evidenced by the title deed.

On the second issue, the court found that the County Surveyor’s evidence was that the appellant had encroached on the respondent’s land and constructed the houses. The evidence of the County Surveyor was not controverted.

The court came to conclusion that the appellant trespassed on the Respondent’s land and constructed 2 houses. He found that the respondent had proved his case on a balance of probabilities and granted:

a) An order of permanent injunction restraining the defendant, their employees, servants and/or agents from entering or in any other manner interfering with the plaintiff’s parcel No. EAST/KAGILO/754 is hereby issued.

b) The issue of damages was not proved

c) The Plaintiff also gets costs of the suit and interest.

d) The defendant is hereby ordered to remove his structures from the Plaintiff’s land within 30 days from the date of this judgment failing which the same to be removed by the plaintiff.

The Appellant has now lodged this appeal in this court on grounds that the Learned Magistrate failed to appreciate the evidence in the case and disregarded the written submissions. That the Learned Magistrate did not consider the fact that failure by the Land Registrar to provide a report determining the boundaries in accordance with Sections 18 (2) of Land Registration Act rendered the Judgment nugatory. Moreover, that the report of the County Surveyor alone was not enough to determine the boundary.

The Appellant prays that the appeal be allowed and the Judgment delivered on the 25/7/2019 be set aside and that the Plaintiff’s case be dismissed with costs.

As a first appellate court, this court’s role is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make its own conclusions about it, bearing in mind that It did not have the opportunity of seeing and hearing the witnesses first hand. This duty was well stated in Selle & Another v Associated Motor Boat Co. Ltd. & Others (1968) EA 123in the following terms:

“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. 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 allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally(Abdul Hammed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).

The Court of Appeal for East Africa took the same position in Peters v Sunday Post Limited [1958] EA 424 where Sir Kenneth O’Connor stated as follows:

It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. I take as a guide to the exercise of this jurisdiction the following extracts from the opinion of their Lordships in the House of Lords in Watt v Thomas (1), [1947] A.C. 484.

“My Lords, before entering upon an examination of the testimony at the trial, I desire to make some observations as to the circumstances in which an appellate court may be justified in taking a different view on facts from that of a trial judge. For convenience, I use English terms, but the same principles apply to appeals in Scotland. Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.”

The import of these cases is that the appropriate standard of review to be established can be stated in three complementary principles. That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; That in reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before it; and iii. That it is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

I have considered the evidence on record and do find that this was not a boundary dispute as the two parcels of land were registered as separate parcels of land with clear measurements in acreage with separate title deeds and clearly indicated in the maps. This was a suit clearly premised on a claim of trespass. The value of the County Surveyor’s report was not controverted that the appellant had encroached into the respondent’s land. The County Land Surveyor as an expert, his evidence had a lot of weight. DW4 the mother of the Appellant clearly states that their land EAST/KAGILO 755 had been left fallow and grass grew there, but problem began in 2013 when they went back and constructed houses on the land.

This is evidence that the Appellant’s return to utilise the land and their choice to construct on a section of the land provoked the suit and it is clear from the surveyor report that they constructed on the Respondent’s land. I agree with the Learned Magistrate that the Respondent proved on a balance of probability that the Appellant trespassed into the respondent’s land. I do not see any merit in the appeal and the same is dismissed with costs.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 30TH DAY OF SEPTEMBER, 2021

ANTONY OMBWAYO

JUDGE

This Judgement has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2020.

ANTONY OMBWAYO

JUDGE