Introduction
Vide the Memorandum of Appeal dated 5 th June, 2025, JANE AKOTH OGUTU, the Appellant, preferred the appeal herein against the judgment and decree dated 20 th May, 2025 in MASENO PMC E&L CASE NO. E002 OF 2021 (herein called the suit). The grounds of appeal as contained in the Memorandum of Appeal are that the learned trial Magistrate erred in law and fact;
(1) by dismissing the suit despite clear, weighty and overwhelming evidence proffered by the Appellant,
(2) in holding that the issue in dispute was a boundary dispute when the prayers sought are not within the mandate of the County Land Surveyor and County Land Registrar,
(3) in holding that the Surveyor’s report dated 4 th October, 2021 is not accurate when the findings revealed an encroachment by the Respondent on a region of approximately 0.08Ha,
(4) by failing to analyse the evidence as adduced by the Appellant, thereby arriving at wrong findings on the issues before the court,
(5) in failing to appreciate that the Appellant had discharged the burden of proof placed upon her as a matter of law,
(6) by misapprehension of facts and the law, thereby arriving at an unfair decision not supported by the evidence, and
(7) in failing to consider the Appellant’s submissions, survey report and judicial authorities, thus leading to a resultant miscarriage of justice to the Appellant.
The Appellant sought orders that;
(a) the appeal be allowed,
(b) the judgment and decree of the trial court be set aside and/or vacated in its entirety, and the same be substituted by the judgment of this court allowing the suit with costs to the Appellant,
(c) the costs of the appeal and of the lower court case be awarded to the Appellant.
Background
The record of appeal filed dated 26 th January, 2026 shows that one JULIUS DAWA AMOLO (deceased) sued the Respondent vide the plaint dated 1 st February, 2021. The subject matter of the suit was a parcel of land known as KISUMU/KADONGO/4066 measuring 1.5Ha (the suit land). The deceased’s complaint in the suit was that the Respondent had unlawfully entered onto the suit land on or about 23 rd January, 2021, constructed structures and started to stay thereon.
The deceased therefore sought orders of eviction, permanent injunction, general damages for trespass, costs of the suit and interest.
The record shows that the Respondent denied the deceased’s claim vide his Defendant’s Statement of Defence dated 12 th March, 2021 and sought that the suit be dismissed with costs.
The record further shows that in the pendency of the suit, the deceased died and was substituted with the Appellant herein vide court order dated 26 th July, 2022, and that the case was subsequently heard by the trial court, which, vide the judgment dated 20 th May, 2025, found that the issue before the court was a boundary dispute which falls within the Land Registrar’s jurisdiction. The court proceeded to decline to grant the orders sought, dismissed the suit, directed the parties to seek redress in the right forum and made no order as to costs.
Aggrieved by the judgment and consequent decree, the Appellant preferred the present appeal.
The record shows that upon service of the Memorandum of Appeal, the Respondent filed a Memorandum of Cross-Appeal dated 16 th June, 2025 seeking orders that;
(a) the cross-appeal be allowed.
(b) The judgment of the trial court be maintained and adjusted to include an order:
(i) That the Land Registrar and Surveyor’s report dated 25 th October, 2021 and filed in court on 1 st November, 2021, having been ordered for implementation, the dispute was settled vide the said report and the matter should have been marked as settled, and the file closed.
(ii) That the parties having agreed for the implementation of the Land Registrar’s and Surveyor’s reports, there was nothing remaining to be heard and determined the same having been determined by the Land Registrar and Surveyor through their reports dated 25 th October, 2021 which was filed in court on 1 st November, 2021 in line with the provisions of section 18 read together with section 19 of the Land Registration Act (No.3 of 2012).
(iii) Costs of the suit to the cross-appellant.
Submissions
On 18 th February, 2026, the court gave directions that the appeal be heard by way of written submissions. Consequently, written submissions dated 14 th April, 2026 were filed on behalf of the Appellant by Siganga & Company Advocates, in which Counsel framed 2 issues for determination, namely;
a. whether the trial suit entails a boundary dispute solely within the jurisdiction of the Land Registrar;
b. what are the remedies for known boundary encroachment?
On behalf of the Respondent/Cross-appellant, written submissions dated 10 th August 2026 were filed by M/S Ken Omollo & Co. Advocates. Counsel framed the following as the issues for determination in the matter: -
a) Did the trial court have jurisdiction to hear and/or handle the matter, the same being a boundary dispute?
b) The trial court having ordered and/or directed the matter to be determined by the County Land Registrar and the County Surveyor and a report availed, did the trial court err in failing to adopt and order for the implementation of the said County Surveyor’s report as its determination and judgment?
Issues for determination
From the grounds of appeal, the submissions filed, and the entire record of appeal generally, the following emerge as the issues for determination in this appeal.
a. Whether the trial suit entails a boundary dispute solely within the jurisdiction of the Land Registrar; and if so, whether the trial court had jurisdiction to entertain the suit
b. What are the remedies for known boundary encroachment?
c. Whether the trial court, having ordered and/or directed the matter to be determined by the County Land Registrar and the County Surveyor, and a report availed, erred in failing to adopt and order for the implementation of the said County Surveyor’s report as its determination and judgment?
d. Costs.
Analysis and determination
As this is a first appeal, this court must re-analyse the evidence/material placed before the trial court and draw its own conclusions. In Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It stated
“An appeal to this 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 conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”
Guided accordingly, I proceed to determine the issues herein.
The first issue for determination is whether the trial suit entailed a boundary dispute solely within the jurisdiction of the Land Registrar;
It was submitted on behalf of the appellant that it is not contested that the suit parcel borders the parcel occupied by the Respondent. That the position that is acknowledged by all parties is that the developments on the contested encroached portion of the suit parcel only began in 2021 and that the same were activities of the Respondent.
That the Respondent’s act of encroachment was knowingly and willfully done. That the Respondent dug up a latrine after the court order granting temporary injunctive orders.
That the Plaintiff's pleadings allege fraud and illegalities by the Respondent. That the trial suit was properly filed before the court. Counsel relied on the case of Adoyo -vs- Oburu & Another (Environment & Land Appeal E015 OF 2022) [2023] KEELC 17807 (KLR) (8 JUNE 2022) Judgment , where the court held, inter alia, that;
“The only issue that was before the lower court for determination was whether the Respondent was a trespasser on the suit property and whether the Appellant was entitled to an order for her eviction from the property. The court should have determined those issues and left it there.”
On behalf of the Respondent, it was submitted that from the evidence on record, the issue that was between the parties for determination was the location of the boundary between the parties’ respective parcels of land, that is to say, the boundary between land parcel numbers KISUMU/KADONGO/4066 and 4065.
Counsel submitted further that it is trite law that trespass cannot be proven unless the common boundary between the disputed parcels of land is determined. That under section 18(2) of the Land Registration Act, the power to determine land boundaries is vested in the Land Registrar. Counsel relied on several authorities to support this submission, including Michael Maluti & 5 others vs Julius Mbau Nzyuko & 2 others (2019) eKLR, where the court held that the parties should have given the Land Registrar a chance to address the boundary complaint in line with sections 18 and 19 of the Land Registration Act.
Counsel submitted further that it was clear in the present case that the boundary between the parties’ respective parcels of land had not been determined and fixed. That by sending the Land Registrar and surveyor to visit the lands, the court appreciated the legal basis that the office of the Land Registrar and that of the Surveyor were the only ones with the technical capacity and mandated to carry out the said exercise.
Counsel submitted that the trial court did not have jurisdiction in the matter and that it was right in finding so.
The record shows that the Appellant’s complaint in the suit, as contained in paragraph 4 of the plaint, was that the Respondent had unlawfully entered onto the suit land and while thereat constructed some structures and started to stay thereon. The Appellant also averred in paragraph 5 of the plaint that the Respondent’s occupation of the suit land was illegal, fraudulent and/or unlawful. The Appellant itemized the particulars of illegality and fraud under paragraph 5 of the plaint.
The Respondent denied the allegations of fraud and illegality. He also denied the claim that he had encroached onto the suit land. He averred that the structures he constructed were on parcel No. KISUMU/KADONGO/4065 where he stays. He denied that the Appellant’s land had been encroached upon at all and put the Appellant to strict proof.
In her testimony, the Appellant stated that one morning they realized that some people had been mobilized by the Respondent and had started building a structure or house on the Appellant’s land. That since then, the said people have been removing the stones from the land and cultivating the land. That they have also started constructing a permanent structure.
The record shows that a survey report dated 4 th October, 2021 was filed after a survey exercise of the suit land pursuant to a court order.
A copy of the survey report on record shows that the conclusion thereof was that;
“Therefore, no encroachment exists. STATUS QUO to be maintained.”
The record shows further that the trial court, after considering the evidence and more particularly the report by the Surveyor, found that the report lacked clarity and was therefore not helpful. The court proceeded to decline to grant the orders sought and instead dismissed the Appellant’s suit so that the parties could seek redress at the right forum.
The Appellant faulted the trial court for this finding and stated in ground 2 of the appeal that the trial court erred in holding that the survey report dated 4 th October, 2021 was not accurate when the findings revealed an encroachment by the Respondent on a region of approximately 0.08Ha.
I have considered the pleadings, evidence and submissions.
Although the surveyors made findings as contained on page 2 of the report, on the last page of the report, the surveyor seems to suggest that there was a discrepancy between the ground position and the position on the map of the suit lands. The report stated;
“Natural boundaries could be spotted on the ground despite the map painting a different picture. If the map was to be adopted, then the Defendant would have encroached on the Plaintiff’s land as indicated in the attached survey report. However, if the position on the ground was to be adopted, then there isn’t any encroachment.
RECOMMENDATION
Maps for general boundaries such as the one involved do not/is not an authority over boundaries because they are not fixed surveys.
The parties to the lawsuit involved are related by blood and have lived in the lands since their ancestors’ existence”
This evidence was not helpful to the Appellant’s case. The Appellant had a burden under sections 106 to 109 of the Evidence Act to prove first and foremost that her claim in the suit was not a boundary dispute, therefore not subject to the provisions of sections 18 and 19 of the Land Registration Act. She also needed to prove that if it was a boundary dispute, the matter had been subjected to the procedure under sections 18 and 19 of the Land Registration Act before being filed in court, and finally that if it was a pure case of trespass/encroachment, that the trespass or encroachment happened.
The way to prove encroachment is by producing a land surveyor’s evidence/report. The land surveyor is the expert on boundary positions.
The Plaintiff/Appellant did not avail a surveyor’s evidence of her own. The one called at the instance of the court did not help the Plaintiff’s/appellant’s case. He concluded that there was no encroachment. There was no basis upon which the trial court could have allowed the Appellant’s claim.
On issue 1, I find that the Plaintiff’s suit entailed purely a boundary dispute. Although fraud and illegality were pleaded, the particulars thereof relate to the manner of the alleged encroachment by the Respondent. The trial court did not err in its finding that the matter was a boundary dispute and that it had no jurisdiction.
The second issue for determination is what the remedies for known boundary encroachment are.
It was submitted on behalf of the appellant that the survey report dated October 4, 2021, by the county surveyor at page 30 of the Record of Appeal revealed the findings to include:-
“3. encroachment into Land Parcel No. KISUMU/KADONGO/4066 by the respondent consisting of a small section of a triangular shape
4. Semi-permanent structures have been constructed by the respondent on the encroached region
5. encroached region was found to be approximately 0.08 Ha.”
Counsel relied on Kisumu ELC Appeal No. 24 of 2018, Monica Anyona Dongi vs Richard Otieno Okumu, where it was held as follows regarding findings contained in a survey report: -
“However, the Surveyor’s Report included findings regarding the boundary between the parties’ plots which was established after identifying the relevant beacons marking the boundary between the freehold and leasehold areas. The Surveyor also clearly marked the extent by which the area developed by the Respondent extended into the Appellant’s land. Therefore, the Magistrate
erred in finding no evidence to demonstrate encroachment by the Respondent. The Surveyor’s Report was sufficient evidence to prove on a balance of probability that the Respondent had indeed encroached the Appellant’s land and had carried out some development activities thereon.”
and submitted that the Honourable Court has the authority to grant relief against encroachments through mandatory injunctions such as that sought by the appellant.
A reading of the plaint shows that the appellant had prayed for orders of eviction, permanent injunction and general damages against the Respondent. These are remedies that would flow to the claimant where encroachment is proved. As the Plaintiff failed to prove encroachment, there was no basis for the court to award the remedies.
The third issue for determination is whether the trial court, having ordered and/or directed the matter to be determined by the County Land Registrar and the County Surveyor, and a report availed, erred in failing to adopt and order for the implementation of the said County Surveyor’s report as its determination and judgment?
In his cross-appeal, the Respondent sought that the surveyor’s report be adopted as an order of the court and the dispute be marked as settled in accordance with the report.
It has been submitted on behalf of the Respondent herein that the trial court made an order directing the County Land Registrar and the County Surveyor to visit the subject parcels of land and carry out a survey on the same to establish the boundaries. That the County Surveyor and the Land Registrar visited the land, determined the correct boundaries, and compiled a report which was forwarded to the court vide a letter dated 25.11.2022. The trial court adopted it as an order of the court and directed the implementation of the report.
That what the court directed to be implemented was the Land Registrar and Surveyor’s findings and recommendations, which were to determine and resolve the dispute. That the parties agreed by consent to the implementation. Counsel submitted further that, having adopted and ordered the implementation of the report dated 25.10.2021, the court determined the matter and therefore had no business proceeding further with the matter.
Counsel relied on the case of Wilfred Omwansa & 5 Others vs Joyce Bonareri Mogaka & Another (2021)eKLR , the provisions of section 19 of the Land Registration Act on the role of the Land Registrar, and the case of Judith Achieng Omondi vs June Nyaingo Hossei & Another: Francis Macahria (3 rd Party) (2021) eKLR , where it was held that section 19 of the Land Registration Act gives the Land Registrar the power and mandate to establish and fix the boundaries of land parcels. Counsel also relied on the case of Ali Farah vs Moses Ole Nasisit & 6 others (2012) eKLR , where the report of the Land Registrar was relied on in determining the dispute.
The court order that referred the matter to the Surveyor is on page 95 of the record. It was made on 16/3/2021. It shows that the County Surveyor Kisumu was directed to carry out a survey on the suit lands to establish the boundaries and whether any of the parties had trespassed onto another party’s parcel. It was solely the Surveyor who was directed. The Land Registrar was not involved.
The consequent report is on pages 29-32 of the record of appeal. It was dated 4 th October 2021. It emanated from the County Survey Office, Kisumu, and was signed by Mbok Geoffrey, Land Surveyor, Kisumu County, and Ogeto Nelson, for County Surveyor, Kisumu.
From the foregoing, it is clear that the Land Registrar was not involved at all in the exercise resulting in, and the compilation of the report dated 4 th October 2021.
Although, vide its order made on 29 th November 2022 at the request of the Respondent and with the concurrence of Counsel for the Plaintiff/Appellant, the Court made an order that the Land Registrar do visit the suit lands for purposes of marking the boundary by placing beacons as per the surveyor’s report filed on 1 st November 2021, there is no evidence that this ever happened. No Land Registrar’s report was filed to confirm compliance with the court order. It appears the court subsequently superseded the order referring the matter to the Land Registrar, and proceeded with hearing and determination. The matter was therefore not subjected to the process in section 19 of the Land Registration Act, contrary to the Respondent’s contention.
The jurisdiction under sections 18 and 19 of the Land Registration Act is vested in the Land Registrar, who may work with the Land Surveyor. Hence, there is no decision by the Land Registrar capable of adoption by the court.
The trial court rightly found that the Land Registrar did not participate in the report.
The report of the Surveyor, as highlighted hereinabove, was not clear and conclusive.
The trial court dismissed the suit ultimately and ordered the parties to seek redress in the appropriate forum. As an order of dismissal is final, the appropriate order would have been to strike out the suit for lack of jurisdiction to give the parties a chance to institute and ventilate their claim in another forum.
For the foregoing reasons,
i. The cross-appeal is dismissed.
ii. The appeal herein is allowed to the extent that the order dismissing the suit is set aside and replaced with an order striking out the suit for want of jurisdiction on the part of the trial court.
iii. Each party shall bear its own costs of the appeal, the cross-appeal herein, and the suit.
Orders accordingly.
Judgment dated and signed at Kisumu and delivered this 17 th day of September, 2026, virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Sang: Court Assistant.
Siganga for the Appellant.
No appearance for the Respondent.
ELCLA E044/2025 JUDGEMENT 2
Vide the Memorandum of Appeal dated 5 th June, 2025, JANE AKOTH OGUTU, the Appellant, preferred the appeal herein against the judgment and decree dated 20 th May, 2025 in MASENO PMC E&L CASE NO. E002 OF 2021 (herein called the suit). The grounds of appeal as contained in the Memorandum of Appeal are that the learned trial Magistrate erred in law and fact;
(1) by dismissing the suit despite clear, weighty and overwhelming evidence proffered by the Appellant,
(2) in holding that the issue in dispute was a boundary dispute when the prayers sought are not within the mandate of the County Land Surveyor and County Land Registrar,
(3) in holding that the Surveyor’s report dated 4 th October, 2021 is not accurate when the findings revealed an encroachment by the Respondent on a region of approximately 0.08Ha,
(4) by failing to analyse the evidence as adduced by the Appellant, thereby arriving at wrong findings on the issues before the court,
(5) in failing to appreciate that the Appellant had discharged the burden of proof placed upon her as a matter of law,
(6) by misapprehension of facts and the law, thereby arriving at an unfair decision not supported by the evidence, and
(7) in failing to consider the Appellant’s submissions, survey report and judicial authorities, thus leading to a resultant miscarriage of justice to the Appellant.
The Appellant sought orders that;
(a) the appeal be allowed,
(b) the judgment and decree of the trial court be set aside and/or vacated in its entirety, and the same be substituted by the judgment of this court allowing the suit with costs to the Appellant,
(c) the costs of the appeal and of the lower court case be awarded to the Appellant.
Background
The record of appeal filed dated 26 th January, 2026 shows that one JULIUS DAWA AMOLO (deceased) sued the Respondent vide the plaint dated 1 st February, 2021. The subject matter of the suit was a parcel of land known as KISUMU/KADONGO/4066 measuring 1.5Ha (the suit land). The deceased’s complaint in the suit was that the Respondent had unlawfully entered onto the suit land on or about 23 rd January, 2021, constructed structures and started to stay thereon.
The deceased therefore sought orders of eviction, permanent injunction, general damages for trespass, costs of the suit and interest.
The record shows that the Respondent denied the deceased’s claim vide his Defendant’s Statement of Defence dated 12 th March, 2021 and sought that the suit be dismissed with costs.
The record further shows that in the pendency of the suit, the deceased died and was substituted with the Appellant herein vide court order dated 26 th July, 2022, and that the case was subsequently heard by the trial court, which, vide the judgment dated 20 th May, 2025, found that the issue before the court was a boundary dispute which falls within the Land Registrar’s jurisdiction. The court proceeded to decline to grant the orders sought, dismissed the suit, directed the parties to seek redress in the right forum and made no order as to costs.
Aggrieved by the judgment and consequent decree, the Appellant preferred the present appeal.
The record shows that upon service of the Memorandum of Appeal, the Respondent filed a Memorandum of Cross-Appeal dated 16 th June, 2025 seeking orders that;
(a) the cross-appeal be allowed.
(b) The judgment of the trial court be maintained and adjusted to include an order:
(i) That the Land Registrar and Surveyor’s report dated 25 th October, 2021 and filed in court on 1 st November, 2021, having been ordered for implementation, the dispute was settled vide the said report and the matter should have been marked as settled, and the file closed.
(ii) That the parties having agreed for the implementation of the Land Registrar’s and Surveyor’s reports, there was nothing remaining to be heard and determined the same having been determined by the Land Registrar and Surveyor through their reports dated 25 th October, 2021 which was filed in court on 1 st November, 2021 in line with the provisions of section 18 read together with section 19 of the Land Registration Act (No.3 of 2012).
(iii) Costs of the suit to the cross-appellant.
Submissions
On 18 th February, 2026, the court gave directions that the appeal be heard by way of written submissions. Consequently, written submissions dated 14 th April, 2026 were filed on behalf of the Appellant by Siganga & Company Advocates, in which Counsel framed 2 issues for determination, namely;
a. whether the trial suit entails a boundary dispute solely within the jurisdiction of the Land Registrar;
b. what are the remedies for known boundary encroachment?
On behalf of the Respondent/Cross-appellant, written submissions dated 10 th August 2026 were filed by M/S Ken Omollo & Co. Advocates. Counsel framed the following as the issues for determination in the matter: -
a) Did the trial court have jurisdiction to hear and/or handle the matter, the same being a boundary dispute?
b) The trial court having ordered and/or directed the matter to be determined by the County Land Registrar and the County Surveyor and a report availed, did the trial court err in failing to adopt and order for the implementation of the said County Surveyor’s report as its determination and judgment?
Issues for determination
From the grounds of appeal, the submissions filed, and the entire record of appeal generally, the following emerge as the issues for determination in this appeal.
a. Whether the trial suit entails a boundary dispute solely within the jurisdiction of the Land Registrar; and if so, whether the trial court had jurisdiction to entertain the suit
b. What are the remedies for known boundary encroachment?
c. Whether the trial court, having ordered and/or directed the matter to be determined by the County Land Registrar and the County Surveyor, and a report availed, erred in failing to adopt and order for the implementation of the said County Surveyor’s report as its determination and judgment?
d. Costs.
Analysis and determination
As this is a first appeal, this court must re-analyse the evidence/material placed before the trial court and draw its own conclusions. In Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It stated
“An appeal to this 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 conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”
Guided accordingly, I proceed to determine the issues herein.
The first issue for determination is whether the trial suit entailed a boundary dispute solely within the jurisdiction of the Land Registrar;
It was submitted on behalf of the appellant that it is not contested that the suit parcel borders the parcel occupied by the Respondent. That the position that is acknowledged by all parties is that the developments on the contested encroached portion of the suit parcel only began in 2021 and that the same were activities of the Respondent.
That the Respondent’s act of encroachment was knowingly and willfully done. That the Respondent dug up a latrine after the court order granting temporary injunctive orders.
That the Plaintiff's pleadings allege fraud and illegalities by the Respondent. That the trial suit was properly filed before the court. Counsel relied on the case of Adoyo -vs- Oburu & Another (Environment & Land Appeal E015 OF 2022) [2023] KEELC 17807 (KLR) (8 JUNE 2022) Judgment , where the court held, inter alia, that;
“The only issue that was before the lower court for determination was whether the Respondent was a trespasser on the suit property and whether the Appellant was entitled to an order for her eviction from the property. The court should have determined those issues and left it there.”
On behalf of the Respondent, it was submitted that from the evidence on record, the issue that was between the parties for determination was the location of the boundary between the parties’ respective parcels of land, that is to say, the boundary between land parcel numbers KISUMU/KADONGO/4066 and 4065.
Counsel submitted further that it is trite law that trespass cannot be proven unless the common boundary between the disputed parcels of land is determined. That under section 18(2) of the Land Registration Act, the power to determine land boundaries is vested in the Land Registrar. Counsel relied on several authorities to support this submission, including Michael Maluti & 5 others vs Julius Mbau Nzyuko & 2 others (2019) eKLR, where the court held that the parties should have given the Land Registrar a chance to address the boundary complaint in line with sections 18 and 19 of the Land Registration Act.
Counsel submitted further that it was clear in the present case that the boundary between the parties’ respective parcels of land had not been determined and fixed. That by sending the Land Registrar and surveyor to visit the lands, the court appreciated the legal basis that the office of the Land Registrar and that of the Surveyor were the only ones with the technical capacity and mandated to carry out the said exercise.
Counsel submitted that the trial court did not have jurisdiction in the matter and that it was right in finding so.
The record shows that the Appellant’s complaint in the suit, as contained in paragraph 4 of the plaint, was that the Respondent had unlawfully entered onto the suit land and while thereat constructed some structures and started to stay thereon. The Appellant also averred in paragraph 5 of the plaint that the Respondent’s occupation of the suit land was illegal, fraudulent and/or unlawful. The Appellant itemized the particulars of illegality and fraud under paragraph 5 of the plaint.
The Respondent denied the allegations of fraud and illegality. He also denied the claim that he had encroached onto the suit land. He averred that the structures he constructed were on parcel No. KISUMU/KADONGO/4065 where he stays. He denied that the Appellant’s land had been encroached upon at all and put the Appellant to strict proof.
In her testimony, the Appellant stated that one morning they realized that some people had been mobilized by the Respondent and had started building a structure or house on the Appellant’s land. That since then, the said people have been removing the stones from the land and cultivating the land. That they have also started constructing a permanent structure.
The record shows that a survey report dated 4 th October, 2021 was filed after a survey exercise of the suit land pursuant to a court order.
A copy of the survey report on record shows that the conclusion thereof was that;
“Therefore, no encroachment exists. STATUS QUO to be maintained.”
The record shows further that the trial court, after considering the evidence and more particularly the report by the Surveyor, found that the report lacked clarity and was therefore not helpful. The court proceeded to decline to grant the orders sought and instead dismissed the Appellant’s suit so that the parties could seek redress at the right forum.
The Appellant faulted the trial court for this finding and stated in ground 2 of the appeal that the trial court erred in holding that the survey report dated 4 th October, 2021 was not accurate when the findings revealed an encroachment by the Respondent on a region of approximately 0.08Ha.
I have considered the pleadings, evidence and submissions.
Although the surveyors made findings as contained on page 2 of the report, on the last page of the report, the surveyor seems to suggest that there was a discrepancy between the ground position and the position on the map of the suit lands. The report stated;
“Natural boundaries could be spotted on the ground despite the map painting a different picture. If the map was to be adopted, then the Defendant would have encroached on the Plaintiff’s land as indicated in the attached survey report. However, if the position on the ground was to be adopted, then there isn’t any encroachment.
RECOMMENDATION
Maps for general boundaries such as the one involved do not/is not an authority over boundaries because they are not fixed surveys.
The parties to the lawsuit involved are related by blood and have lived in the lands since their ancestors’ existence”
This evidence was not helpful to the Appellant’s case. The Appellant had a burden under sections 106 to 109 of the Evidence Act to prove first and foremost that her claim in the suit was not a boundary dispute, therefore not subject to the provisions of sections 18 and 19 of the Land Registration Act. She also needed to prove that if it was a boundary dispute, the matter had been subjected to the procedure under sections 18 and 19 of the Land Registration Act before being filed in court, and finally that if it was a pure case of trespass/encroachment, that the trespass or encroachment happened.
The way to prove encroachment is by producing a land surveyor’s evidence/report. The land surveyor is the expert on boundary positions.
The Plaintiff/Appellant did not avail a surveyor’s evidence of her own. The one called at the instance of the court did not help the Plaintiff’s/appellant’s case. He concluded that there was no encroachment. There was no basis upon which the trial court could have allowed the Appellant’s claim.
On issue 1, I find that the Plaintiff’s suit entailed purely a boundary dispute. Although fraud and illegality were pleaded, the particulars thereof relate to the manner of the alleged encroachment by the Respondent. The trial court did not err in its finding that the matter was a boundary dispute and that it had no jurisdiction.
The second issue for determination is what the remedies for known boundary encroachment are.
It was submitted on behalf of the appellant that the survey report dated October 4, 2021, by the county surveyor at page 30 of the Record of Appeal revealed the findings to include:-
“3. encroachment into Land Parcel No. KISUMU/KADONGO/4066 by the respondent consisting of a small section of a triangular shape
4. Semi-permanent structures have been constructed by the respondent on the encroached region
5. encroached region was found to be approximately 0.08 Ha.”
Counsel relied on Kisumu ELC Appeal No. 24 of 2018, Monica Anyona Dongi vs Richard Otieno Okumu, where it was held as follows regarding findings contained in a survey report: -
“However, the Surveyor’s Report included findings regarding the boundary between the parties’ plots which was established after identifying the relevant beacons marking the boundary between the freehold and leasehold areas. The Surveyor also clearly marked the extent by which the area developed by the Respondent extended into the Appellant’s land. Therefore, the Magistrate
erred in finding no evidence to demonstrate encroachment by the Respondent. The Surveyor’s Report was sufficient evidence to prove on a balance of probability that the Respondent had indeed encroached the Appellant’s land and had carried out some development activities thereon.”
and submitted that the Honourable Court has the authority to grant relief against encroachments through mandatory injunctions such as that sought by the appellant.
A reading of the plaint shows that the appellant had prayed for orders of eviction, permanent injunction and general damages against the Respondent. These are remedies that would flow to the claimant where encroachment is proved. As the Plaintiff failed to prove encroachment, there was no basis for the court to award the remedies.
The third issue for determination is whether the trial court, having ordered and/or directed the matter to be determined by the County Land Registrar and the County Surveyor, and a report availed, erred in failing to adopt and order for the implementation of the said County Surveyor’s report as its determination and judgment?
In his cross-appeal, the Respondent sought that the surveyor’s report be adopted as an order of the court and the dispute be marked as settled in accordance with the report.
It has been submitted on behalf of the Respondent herein that the trial court made an order directing the County Land Registrar and the County Surveyor to visit the subject parcels of land and carry out a survey on the same to establish the boundaries. That the County Surveyor and the Land Registrar visited the land, determined the correct boundaries, and compiled a report which was forwarded to the court vide a letter dated 25.11.2022. The trial court adopted it as an order of the court and directed the implementation of the report.
That what the court directed to be implemented was the Land Registrar and Surveyor’s findings and recommendations, which were to determine and resolve the dispute. That the parties agreed by consent to the implementation. Counsel submitted further that, having adopted and ordered the implementation of the report dated 25.10.2021, the court determined the matter and therefore had no business proceeding further with the matter.
Counsel relied on the case of Wilfred Omwansa & 5 Others vs Joyce Bonareri Mogaka & Another (2021)eKLR , the provisions of section 19 of the Land Registration Act on the role of the Land Registrar, and the case of Judith Achieng Omondi vs June Nyaingo Hossei & Another: Francis Macahria (3 rd Party) (2021) eKLR , where it was held that section 19 of the Land Registration Act gives the Land Registrar the power and mandate to establish and fix the boundaries of land parcels. Counsel also relied on the case of Ali Farah vs Moses Ole Nasisit & 6 others (2012) eKLR , where the report of the Land Registrar was relied on in determining the dispute.
The court order that referred the matter to the Surveyor is on page 95 of the record. It was made on 16/3/2021. It shows that the County Surveyor Kisumu was directed to carry out a survey on the suit lands to establish the boundaries and whether any of the parties had trespassed onto another party’s parcel. It was solely the Surveyor who was directed. The Land Registrar was not involved.
The consequent report is on pages 29-32 of the record of appeal. It was dated 4 th October 2021. It emanated from the County Survey Office, Kisumu, and was signed by Mbok Geoffrey, Land Surveyor, Kisumu County, and Ogeto Nelson, for County Surveyor, Kisumu.
From the foregoing, it is clear that the Land Registrar was not involved at all in the exercise resulting in, and the compilation of the report dated 4 th October 2021.
Although, vide its order made on 29 th November 2022 at the request of the Respondent and with the concurrence of Counsel for the Plaintiff/Appellant, the Court made an order that the Land Registrar do visit the suit lands for purposes of marking the boundary by placing beacons as per the surveyor’s report filed on 1 st November 2021, there is no evidence that this ever happened. No Land Registrar’s report was filed to confirm compliance with the court order. It appears the court subsequently superseded the order referring the matter to the Land Registrar, and proceeded with hearing and determination. The matter was therefore not subjected to the process in section 19 of the Land Registration Act, contrary to the Respondent’s contention.
The jurisdiction under sections 18 and 19 of the Land Registration Act is vested in the Land Registrar, who may work with the Land Surveyor. Hence, there is no decision by the Land Registrar capable of adoption by the court.
The trial court rightly found that the Land Registrar did not participate in the report.
The report of the Surveyor, as highlighted hereinabove, was not clear and conclusive.
The trial court dismissed the suit ultimately and ordered the parties to seek redress in the appropriate forum. As an order of dismissal is final, the appropriate order would have been to strike out the suit for lack of jurisdiction to give the parties a chance to institute and ventilate their claim in another forum.
For the foregoing reasons,
i. The cross-appeal is dismissed.
ii. The appeal herein is allowed to the extent that the order dismissing the suit is set aside and replaced with an order striking out the suit for want of jurisdiction on the part of the trial court.
iii. Each party shall bear its own costs of the appeal, the cross-appeal herein, and the suit.
Orders accordingly.
Judgment dated and signed at Kisumu and delivered this 17 th day of September, 2026, virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Sang: Court Assistant.
Siganga for the Appellant.
No appearance for the Respondent.
ELCLA E044/2025 JUDGEMENT 2