Machoka v Mokamba (Land Case Appeal E036 of 2025) [2026] KEELC 3437 (KLR) (4 June 2026) (Judgment)

Machoka v Mokamba (Land Case Appeal E036 of 2025) [2026] KEELC 3437 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEELC 3437 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Land Case Appeal E036 of 2025 AA Omollo, J June 4, 2026 Between Thomas Shem Machoka Appellant and Lennox George Mokamba Respondent (Being an appeal from the Ruling of Hon B.O Omwansa, SPM delivered on the 20th March 2025 in the case CMCELC NO. E042 of 2024) Judgment 1.The appellant had sued the Respondent seeking amongst others, orders of permanent injunction restraining him from interfering with his land parcel number Nyaribari Chache/B/B/BOBURIA/9632. He also prayed for an order directing the Respondent to immediately and unconditionally remove the fence illegally erected on the entrance to the Appellant’s business contrary to the order which restricted the Respondent to evict one David Bororo from parcel no. Nyaribari Chache/ B/B/ Boburia/12151. 2.On 14th August, 2024, the hon trial magistrate gave an order directing the County Surveyor and the Land Registrar to go to site and demarcate the designated boundaries between the two plots Boburia/9632 and 12151 and do a report. I have seen a copy of survey report filed on record though dated 10th March 2024 refers to a site visit done on 20th February, 2025. There could be an error on the date of the report taking into account the order to visit sit was made on 14th august of 2024. 3.The matter came before the trial magistrate on 20th March 2025, and hon B.O Omwansa adopted this report as an order of the court. Thereafter, the Respondent filed an application dated 21st April 2025 seeking eviction orders against the Appellant. The application was granted, directing the Appellant to be evicted from a portion of land Nyaribari Chache/B/B/12151, where they had encroached, pursuant to the survey report dated 20th March, 2025. 4.The Appellant is dissatisfied with the adoption of the said survey report and the issuance of eviction orders, which effectively disposed of his suit. Hence, he filed the appeal before the court on the following grounds: Grounds of appeal: 5.The Appellant raised Ten (10) grounds of appeal listed below:1.That the Honourable Magistrate erred both in law and in fact when he made orders in favour of the respondent herein, against the weighty of the evidence and material tendered and presented before him.2.The learned Magistrate erred in law and in fact when he adopted a surveyor’s report dated 10th March, 2025 which clearly showed that there is storey building in the disputed portion estimated to be over Kshs. 20,000,000 million which is outside the jurisdiction of the learned Magistrate.3.That the Honourable Magistrate erred both in law and in fact by issuing orders of eviction against the appellant when the defendant did not file any defence nor counter claim, upon which the orders of eviction could been based, he gave orders of eviction in a vacuum.4.That is granting the orders of Eviction the way he did the learned magistrate overruled the hollowed principles of law and the constitution that a party is bound by his own pleadings.5.That the learned Magistrate erred in law and in fact when he ordered Eviction when neither the mediator nor the surveyor talked of any eviction at all, hence granting orders of eviction based on Notice of Motion Application dated 21st April 2025 by the defendant and not a plaint, counter claim, OS, or at all as provided for by the law.6.That the learned Magistrate erred both in law and in fact when he referred the case to Mediation Suo Motto and/or without an agreement of the parties nor did all the parties sign the Mediation Agreement as the appellant did not sign the same.7.The learned Magistrate erred both in law and in fact when he dismissed the application by interested parties seeking for stay of proceedings in the suit before him, pending hearing and determination of the objection proceedings filed in Kisii High court succession No. 190 of 2013 challenging the defendant’s Title Nyaribari Chache/Boburia.B/B/12151 leaving other beneficiaries out.8.That the learned Magistrate erred both in law and in fact when he adopted the surveyors report without the input of the Land Registrar who could have indicated which land parcels were likely to be affected in the survey in question though the name of the Land Registrar is written as being present there is thing she did not even making any report or say anything.9.The learned Magistrate erred in law and in fact when he adopted the general survey report and not fixed survey report and equally failed to disclose his points of reference from the adjoining land parcels of the neighbours and in the absence of the appellant at the time of surveying exercise.10.The Honourable Magistrate erred both in law and in fact when he ordered that the survey report dated 10th March, 2025 be adopted as an order of the court which was against his orders on a preliminary objection in which he refused to refer the matter to the Land Registrar based on the pleadings before him but the Mediators overruled him and accepted to orders referring the matter to the Land Registrar without setting aside his earlier orders. 6.The Appellant urged the court to grant him the following reliefs:a.That the Appeal herein be and is hereby allowed and the ruling and orders of the subordinate court dated 20th March, 2025 be and hereby set aside and/or quashed.b.That this Honourable court be pleased to grant the orders sought by the plaintiff in the subordinate court.c.That costs both in this appeal and the subordinate court be borne by the respondent.d.Any other relief as the court may deem fit and just to grant 7.Directions were issued on 16th October 2025 that the appeal be prosecuted by filing written submissions. The Parties complied with the appellant filing submissions dated 24th October, 2025 and the Respondent’s submissions are dated 7th January, 2026. 8.The Appellant submits that the Respondent did not file any defence or counterclaim, yet he was granted eviction orders through an ex parte application. He submits that the trial magistrate failed to make a finding of the value of the property, which is estimated to be over Kshs 20,000,000, was outside the pecuniary jurisdiction of the senior principal magistrate court. 9.In support of this argument, the Appellant cited the case of ELC Misc E001 of 2023, Mwikamba Kagembe versus Geoffrey Kiania Kamwara which cited Mutungi J. in the case of Julius L. Marten vs Caleb Arap Rotich (2021)eKLR holding that;“An eviction order has far-reaching implications and entail the forceful removal of a party from land that he has been occupying or possessing for some time, and before such an order is issued, a court must be satisfied on its merits, which means any person who stand to be affected by any order the court will make, is entitled to be heard.” 10.The Respondent opened his submissions by stating that the magistrate adopted the surveyor’s report in the lawful exercise of the statutory and inherent mandate under the law to resolve a boundary dispute through technical expertise. That this appeal is not against any substantive judgement or ruling and has not demonstrated any misdirection, error of law or misapprehension of principles capable of inviting appellate interference. 11.The Respondent addressed three headings which he believed the Appellant raised for the determination of the appeal, namely, whether the trial magistrate’s court lacked jurisdiction, whether the mediation process, the surveyor’s report and their adoption were invalid and irregular, and whether the appeal discloses grounds warranting appellate interference with a discretionary and technical order. Analysis and Determination: 12.I have read the record of appeal alongside the submissions filed by both sides. I am alive to the powers of this court exercised as an appellate court as stated by the Court of Appeal in the case of Arthi Highway Developers Limited vs. West End Butchery Limited & 6 Others [2015] eKLR, where the court cited the case of Selle vs. Associated Motor Boat Co. [1968] EA 123, which held thus;“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.” 13.Having considered the grounds raised in the memorandum and the arguments presented in the submissions, I shall analyse the grounds pleaded in the memo of appeal to form the issues for resolution of the appeal. 14.The Appellant in ground 2 of the appeal faults the trial magistrate for adopting the survey report when the report clearly stated there was a storey building on the disputed portion whose value was estimated at over Kshs 20,000,000, hence taking the matter out of his jurisdiction. The court takes note that a survey report is not a valuation report. Secondly, there is no indication of the value of the storeyed building in the impugned report. 15.The pleadings of the Appellant also did not disclose the value of the land. Therefore, to expect a trial court to guess just by the mention of a storey building that the property is now worth more than his pecuniary jurisdiction is outrageous. The issue of jurisdiction raised was limited to the provisions of section 18 of the Land Registration Act. 16.In the present appeal, there was no additional evidence produced by the Appellant to affirm that indeed the value of his property is more than Kshs 20,000,000. For this reason, I find no evidence to support this allegation. 17.The second and key ground of appeal is whether the trial magistrate erred in law by adopting the surveyor’s report and subsequently issuing the eviction orders against the Appellant. The Appellant stated, and this is not contested, that at the time the matter was referred to mediation and subsequently to the Land Registrar, the Respondent had not filed a defence to the claim. 18.When the trial court adopted the survey report on 20th March, 2025, he did not go further to state what became of the suit pending before him. The order read thus;“It is hereby orderedThat the surveyor’s report is adopted as an order of this court.Given under my hand and the seal of this court, this 20.3.2025.” 19.The learned Hon. Magistrate does not state that by adoption of this report, the Appellant's (Plaintiff’s) suit stood dismissed. The Respondent submits that the adoption of the report was an exercise of discretion which an appellate court cannot interfere. On the exercise of discretion, both parties cited the case of Mbogo Another versus Shah (1968) E.A 93 where the Court of Appeal for Eastern Africa held at page 94 that:“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 20.The above decision gives exemptions/instances when the exercise of discretion can be challenged. The exercise of discretion in this instance was clearly wrong as it interfered with the Appellant’s right to a fair hearing. There is no evidence that the Appellant consented to the determination of the surveyor regarding the dispute for it to be taken as having determined the dispute between the parties. 21.Section 18(3) of the Land Registration Act states that,3)Except where it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary: 22.The Statute anticipates that it is the Land Registrar who receives evidence. In my understanding, this means that, in addition to the survey report, there should be a report signed by the Land Registrar. In the impugned report, the Land Registrar is recorded as present, but her input is not indicated. Therefore, the technical expertise provided to the trial court was incomplete. Further, the technical report formed part of the evidence to be used in the just determination of the suit; hence, the learned hon. magistrate ought not to have relied wholly on it to dispose of the Appellant’s suit. 23.Despite not indicating whether he had dismissed the pending suit or not, the learned trial magistrate proceeded to entertain the application dated 21st April, 2025. The order extracted reads in part:“Upon the notice of motion application dated 21.4.2025 coming up for directions under certificate of urgency and upon perusal of the application and its annextures, it is hereby ordered that, 1.The application is certified urgent. 2.An order of eviction be and is hereby issued and direct that the OCS Kisii Central Police Station do supervise the eviction of the Defendants/respondents from the portion of land namely Nyaribari Chache/B/B/12151 whereupon they had encroached pursuant to the surveyor’s report dated 10th March, 2025 adopted by the Court as an order of the Court.” 24.The learned magistrate, in exercising his discretion to grant the orders of eviction ex parte, failed to take into account that the Respondent had not filed a defence and/or counter-claim upon which such an application could be anchored. In the case of Julius L. Marten, supra, Mutungi J considered the weight of eviction orders and found that before such an order is given, the court must be satisfied as to its merits. 25.The trial magistrate does not, in the order issued, state that he was satisfied on the merits of the said application. I glean that he treated the impugned application dated 21.4.2025 as executory, pretending to execute the orders dated 20th March, 2025. Yet no orders were issued on that date, as all the court did was adopt the report without saying more. The Respondent, not having filed a claim, was not entitled to any orders. Thus, the trial magistrate misdirected himself in granting eviction orders based on a survey report that did not recommend any eviction of the Appellant. 26.The Respondent submitted that the trial court did not err in referring the matter to court-annexed mediation. From the arguments by the Appellant, he does not challenge the referral of the matter to mediation, he disputes that any agreement was reached that the matter be referred to the County Survey to deal with. 27.Article 159(2)(D) of the Constitution allows for the use of alternative dispute resolution mechanisms. Therefore, referring the matter per se does not amount to a breach of the law. Secondly, a court can, of its own motion and subject to the facts before it, refer the matter to the County Land Registrar and Surveyor to visit the disputed site and file a report aimed at ascertaining the matters in issue. Hence, the recommendation by the mediator in this case, whether it was by agreement or otherwise, was immaterial. 28.The issues raised in ground 7 of the appeal were not brought to the attention of the trial magistrate, given the stage at which this case was, as no evidence had been led. Issues raised in grounds 8 and 9 of the memo of appeal can be taken up in cross-examination of the maker of the impugned report during the hearing of the case, since I am persuaded to refer the matter back for a rehearing. 29.Although the Appellant urged in the reliefs for the grant of the prayers he had sought in the plaint. There is a need to adduce sufficient evidence upon which a finding can be made. This can only be done if the parties are granted an opportunity to have their day in court and produce material in support of or against the claim. 30.In light of the foregoing analysis, I am satisfied the appeal is merited. I allow it by issuing the following orders;a.The orders of the trial court dated 20th March, 2025, adopting the surveyor’s report and the subsequent orders of eviction issued on 25th April, 2025, are hereby set aside.b.The Appellant’s case, MCELC E042 of 2024, is remitted for a fresh trial before another magistrate, other than Hon B.O Omwansa C.M.c.The costs of the appeal awarded to the Appellant. DATED, SIGNED AND DELIVERED AT KISII THIS 4TH DAY OF JUNE, 2026A. OMOLLOJUDGE