Vide the Memorandum of Appeal dated 16th August, 2024, the Appellants appealed against the decision and ruling of Hon. J. Kimetto, Principal Magistrate in Maseno MC ELC NO. E010 OF 2021 and sought for orders that the appeal be allowed by setting aside the judgement of the lower court in entirety and replacing it with an order dismissing/striking out the lower court case with costs to the Appellants and by awarding the Appellants the costs of the appeal.
From the record of appeal dated 12th February, 2025, a brief background of the appeal is that the Appellants were the Defendants in Maseno PMC ELC NO. E010 of 2021 (the suit). They had been sued vide the plaint dated 12th April, 2021 by the Respondent over a parcel of land known as KISUMU/KAPUONJA/3958 (the suit land) which the Respondent claimed to be the registered owner of.
The Respondent’s complaint in the suit was that the Appellants had trespassed onto the suit land and constructed structures and/or houses and/or homes thereon without the consent, authority, knowledge and/or participation of the Respondent. The Respondent therefore sought against the Appellants for orders of permanent injunction, declaration, an order of eviction, general damages, an order for the OCS Dago to provide police escort during eviction and costs of the suit.
The record shows further that the Appellants replied to the Respondent’s claim by filing the Statement of Defence dated 3rd May, 2021. They denied the Respondent’s claim and averred that registration of the suit land in the name of the Respondent was obtained through fraud and/or corrupt scheme.
The suit was heard before the trial court which found, vide its judgement dated 30th July, 2024 that the Respondent’s claim was valid and proven as required on a balance of probabilities. The court proceeded to enter judgement for the Respondent against the Appellants jointly and severally as prayed in the plaint save for prayer (d).
The appeal
Aggrieved by the judgement the Appellants preferred the present appeal.
The grounds of appeal as contained in the Further Amended Memorandum of Appeal dated 30th November, 2024 are that:
- the learned trial Magistrate erred in law by assuming jurisdiction on a boundary dispute between land parcels No. KISUMU/KAPUONJA/1709 and KISUMU/KAPUONJA/2554 prior to a boundary determination by the Land Registrar contrary to the provisions of S.18(2) of the Land Registration Act, 2012.
- the learned trial Magistrate erred in law by failing to find and hold that in the absence of a boundary determination report by the Land Registrar as required under the provisions of S.18(2) of the Land Registration Act, 2012, the suit before it was prematurely lodged in a court of law hence the same ought to have been struct out.
- that the learned trial Magistrate erred in law and fact by failing to find and hold that the survey report by PW2 Geofrey Mbok Akombo as County Surveyor did not constitute a boundary determination by the Land Registrar within the contemplation of S.18(2) of the Land Registration Act, 2012 nor was it a substitute thereof as a result of which she wrongly assumed jurisdiction where the court clearly lacked the same.
- the learned trial Magistrate erred in law and fact by failing to properly and exhaustively analyse the pleadings on record, the evidence before the court, the applicable law and isolate the issues for determination while determining the suit before her with the result that she arrived at a decision that was plainly wrong.
- That the learned trial Magistrate erred in law by perfunctorily analyzing the evidence on record with the result that she failed to realize and hold that land parcel No. KISUMU/KAPUONJA/2554 wherein the 2nd Appellant contends to have built on with the permission of the owner thereof did not share any common boundary with land parcel No. KISUMU/KAPUONJA/3958 neither was the same as admitted even by the Respondent the subject of the 2 contradictory survey reports attributed to PW2 with the result that the alleged encroachment unto land parcel No. KISUMU/KAPUONJA/3958 by the 2nd Appellant remained unestablished.
- that the learned trial Magistrate in any event erred in law and fact by failing to find and hold that in view of the two survey reports attributed to PW2 relied upon in Maseno PM Criminal Case No.480 of 2020 and produced as exhibit D.5 therein and the same produced before her by PW2 as Exhibit P4 were contradictory and inconclusive as to the extent of encroachment, if any and by whom hence just like the purported author, none was reliable as to sustain a finding of encroachment.
- that the learned trial Magistrate erred in law by abdicating her duty to determine all issue placed before her by the parties for her determination by selectively and casually treating the evidence on record and the submissions filed on behalf of the Appellants with the result that she came to a wrong conclusion that the Respondents case had been proved.
- that the learned trial Magistrate erred in law by finding contrary to the evidence on record that the Respondent had proved his case to the requisite standard as by law required when the contrary was true.
- That the learned trial Magistrate erred in law and fact by failing to find and hold that PW2 Geofrey Mbok Okombo in view of the two contradictory reports dated 13. 2. 2020 and produced as PEXH 2 and DEXH 5 was an unreliable witness whose evidence was not dependable in the determination of the issue of encroachment onto the respondent’s land.
Submissions
The appeal was disposed of by way of written submissions. Written submissions dated 16th May, 2025 and supplementary written submissions dated 28th July, 2025 were filed on behalf of the Appellants by the firm of Ouma Njoga & Company Advocates.
Similarly, written submissions dated 9th July, 2025 were filed by the firm of Juliet Dima & Associates Advocates on behalf of the Respondent.
Issues for determination
From the grounds of appeal presented and the submissions made by both parties, the following emerge as the issues for determination;
- whether or not the dispute before the trial court constituted a boundary dispute.
- whether or not the trial court had jurisdiction to entertain the dispute before it.
- whether or not the findings of the trial court were contrary to the evidence placed before it.
- Costs of the appeal.
Analysis and determination
This is a first appeal hence this court has a duty to re-examine and reconsider the evidence placed before the trial court.
The evidence placed before the trial court by the Respondent who was the Plaintiff in the suit comprised of the testimony of the Respondent who testified as PW1, the testimony of PW2 (the surveyor) and the exhibits that they produced.
PW1 adopted the contents of his witness statement dated 12th April, 2021 as his evidence in chief. He had stated in the said witness statement that he was the registered proprietor of all that parcel known as KISUMU/KAPUONJA/3958. That the 1st and 2nd Defendants/ Appellants had trespassed on the said land and constructed structures, houses and/or erected fences on portions of the said land. That as a result of the trespass, the 2nd Appellant’s accomplices were arrested and charged with the offence of willingly and unlawfully obstructing police officers in execution of duties contrary to section 10(a) of the National Police Service Act but that the 2nd Appellant escaped arrest. That it was because of the suit land he was assaulted. That the 2nd Defendant’s accomplices were sentenced to serve one-year imprisonment. That the 2nd Appellant constructed a house on the suit land and continued to issue threats against him.
That the 1st Appellant also constructed her home on the suit land. That the report by County Surveyor dated 13th March, 2020 confirmed the trespass. That the Appellants were cultivating his land and were very hostile. That the County Surveyor had advised him to seek redress in court as the matter was not a boundary dispute but a land claim.
In court, he stated that he does not live on the suit land. He produced exhibits namely; title deed for KISUMU/KAPUONJA/3958, certificate of official search and green card for the same parcel of land.
PW2 was a Land Surveyor by the name of Geofrey Mbok Okombo. He testified that he was approached by the Respondent to determine a land dispute. That he carried out a survey in respect of KISUMU/KAPUONJA/3958 which was the neighbouring parcel to parcels 3955, 1702, 1710 and 2554. That he conducted a site visit on 11th March, 2020. That his findings were that the entire parcel No.3958 was encroached onto and there was no parcel left for the Respondent. He produced summons, a letter and a survey report.
On behalf of the Appellant, the evidence placed before the trial court comprised of the testimonies of the Appellants, the 3 witnesses they called and the exhibits they produced. The 1st Appellant testified as DW1. She denied that she had trespassed onto the Respondent’s land. She averred that where she has built is on her land.
DW1 adopted the contents of her witness statement dated 3rd May, 2021 as her evidence in chief. She had stated in the witness statement that she bought land parcel known as KISUMU/KAPUONJA/2554 from one Henry Lalo Otieno and that the land was lawfully transferred to her and that she erected a house thereon in the year 2012 and has been living thereon peacefully, tilling and cultivating the land within the confines of the boundary. That she had not encroached onto the suit land.
That the findings of the Surveyor were that it was the owner of land parcel No.1702 who had encroached onto the Respondent’s land. That it was not clear how the Respondent registered land parcel KISUMU/KAPUONJA/1709 and sub-divided it. That he did not do any succession, has no Grant of Letters of Administration or Certificate of Confirmation of Grant. That the Land Registrar is the proper person to handle boundary disputes.
The 1st Appellant produced the documents listed in her list of documents dated 3rd May, 2021 which were produced as exhibits D1 to D7 as listed
On cross-examination, DW1 stated inter alia that her land and that of the Respondent are adjacent to each other.
DW2 was the 2nd Appellant. He adopted the contents of his witness statement dated 3rd May, 2021 as his evidence in chief. He had stated in the witness statement that he did not know why the Respondent sued him. That he has build and lives on his father’s land parcel No. KISUMU/KAPUONJA/2553 which does not even share a boundary with the suit land.
That he has never entered, trespassed, encroached, built a house, erected a structure or fence on the suit land. That the case is motivated by malice.
On cross-examination, he denied that he was among the people who attacked the Respondent and who were charged in a criminal case at Maseno Court.
DW3 was PC Elija Thoto who was the investigating officer in Maseno Criminal Case No.480 of 2020. His attempt to produce a survey report dated 13th March, 2020 was unsuccessful as the same was only marked as DMFI.5.
DW4 was one Richard Mbaka, Court Administrator/Executive Officer, Maseno Law Courts. He availed court file in respect of Maseno Criminal Case No.480 of 2020 and produced a Surveyor’s report therein dated 13th Friday, 2020.
On cross-examination, he stated that the accused persons in the case had pleaded guilty and were convicted and sentenced. That the maker of the Surveyor’s report is not the one who produced it. That the Surveyor’s report had been produced by the Prosecutor when she was reading the facts of the case.
DW5 was the Land Registrar – Kisumu County. He testified that the suit land which was a sub-division of land parcel No. KISUMU/KAPUONJA/1709 was registered in the Respondent’s name. That the sub-division was done on 31st May, 2019.
The first issue for determination is whether or not the dispute before the trial court was a boundary dispute.
The Respondent’s complaint before the trial court as contained in the Plaint was that the Appellants had trespassed onto the suit land. He therefore prayed for orders inter alia of eviction and permanent injunction.
The Appellants through their joint statement of defence denied ever trespassing onto the suit land and averred that they were occupying their respective parcels of land which were separated and distinct from the suit land. It was submitted herein on behalf of the Appellants that parcel number KISUMU/KAPUONJA/2554 and the suit land share a boundary which is not fixed hence general boundary. That clearly what emerged is that there is a dispute between the owners of land parcel No. KISUMU/KAPUONJA/2554 and 3958 (the suit land) both of which are registered lands as regards their boundaries which are general boundaries positioning on the ground.
Relying on the provisions of section 18(2) of the Land Registration Act, the cases of Estate Sonrisa Ltd & Another -vs- Samuel Kamau Macharia & 2 Others (2020)eKLR, Azzuri Limited -vs- Pink Properties Limited [2018]eKLR, George Kamau Macharia & Dexka Limited (2009)eKLR and Willing Ochola -vs- Mary Ndege (2016)eKLR, Counsel submitted that the section divests the Environment and Land Court of jurisdiction to hear and determine boundary disputes of registered land until after the Land Registrar’s determination on the same has been rendered in accordance with sections 18 and 19 of the Land Registration Act, 2012.
Counsel submitted further that the report by PW2 dated 13th March, 2020 did not constitute a boundary determination report by the Land Registrar within the contemplation of section 18(2) of the Land Registration Act with the result that the lower court suit was prematurely escalated to court at a time that the court in law lacked jurisdiction to hear and determine the matter.
Counsel relied on the case of Owners of the Motor Vessel “Lillian S” -vs- Caltex Oil (Kenya) Limited (1989)eKLR and Samuel Kamau Macharia & Another -vs- Kenya Commercial Bank Limited & 2 Others [2012]eKLR to submit that without jurisdiction, the proceedings come to an end and the court cannot take any further step.
Relying on the case of Speaker of the National Assembly -vs- Karume (1992)KLR 2, Counsel submitted that it is now settle law that where there is procedure prescribed by law for redress of any particular grievance that procedure should be strictly followed.
Counsel submitted that the trial court erred by entertaining the suit when it had no jurisdiction and that this constitutes an error of both fact and law and that all the proceedings therein were flawed and a nullity ab initio.
It was submitted on behalf of the Respondent that Section 18 of the Land Registration Act does not completely remove a court’s jurisdiction to try a trespass case. That if the trespass case involves a dispute over ownership or other matters not directly related to the precise location of a boundary, the court retains its jurisdiction. Counsel relied on the case of Aden Abdullahi Mohammed -vs- George Dominic Otieno & 2 Others [2021]eKLR Nelly Atieno Oluoch -vs- Damaris A. Nywalo & 2 Others [2021] KEELC 2157 (KLR) and Hudson Kulundu & 2 Others -vs- Martha Chibetti & Another, Kakamega ELC Case No.57 of 2029 [2020]eKLR to support the submissions.
Counsel submitted further that if the trespass case involves issues beyond boundary dispute, such as damage to property, the court can hear the matter.
I have carefully considered these submissions, the pleadings and evidence placed before the trial court. There is no dispute that the 1st Appellant’s land parcel number 2554 and the suit land parcel number 3958 share a common boundary. The claim filed by the Respondent was not on the position of the boundary but on encroachment of the Appellant onto the suit land.
The issue of the common boundary was introduced by the Appellant vide paragraph 11 and 16 of the statement of defence.
Each of the parties produced a Surveyor’s report. The Surveyor’s report produced by PW.2 on behalf of the Respondent was dated 13th March, 2020. The report is on page 24 of the record of appeal. It shows that the findings of the Surveyor were that;
- It was established that the parcel number KISUMU/KAPUONJA/ 3958 had actually been encroached into the parcel number KISUMU/KAPUONJA/2554.
- Further surveys revealed that the encroached portion cited in finding number 1 above had been put under cultivation of cash crops.
- It was also established that the administrator of parcel number KISUMU/KAPUONJA/2554 claimed the entire spatial position of parcel number KISUMU/KAPUONJA/3958.
PW2 who produced the report testified that the entire parcel number 3958 had been encroached onto and there was no parcel left for the Respondent.
The Appellants also produced a Surveyor’s report through DW4. The report was retrieved from a court file in respect of Maseno Criminal Case No.480 of 2020. It was dated 13th Friday, 2020. It is on page 53 of the record of appeal.
This report was disowned by PW2 whom the appellants claimed to be the author thereof. It is noteworthy that the report was not produced in the criminal case by the alleged maker, but rather by the prosecutor after reading the facts of the case. The report was essentially the same with the report dated 13th March, 2020 produced by PW2 save that where parcel No. 2554 appears it was replaced with parcel No.1702. it is noteworthy that the report was not produced in the criminal case by the alleged maker, but rather by the prosecutor after reading the facts of the case.
Nonetheless, the report does not disclose a dispute as to the position of the common boundary rather it discloses a claim to recover land taken in its entirety by a trespasser as it indicated that the entire of the spatial position of parcel number KISUMU/KAPUONJA/3958 had been claimed or encroached onto.
The court finds that the dispute before the trial court was a claim for recovery of land for which the trial court had jurisdiction to handle under the provisions of sections 7 and 9 of the Magistrates’ Court Act.
Having re-analyzed the evidence as I have done herein, I find that the findings and decision of the trial court were supported by the evidence placed before the court.
I find no reason to interfere with the findings and decision of the trial court. The appeal therefore lacks merit and it is hereby dismissed.
Costs to the Respondent.
Judgement dated and signed at Kisumu and delivered this 2nd day of October, 2025 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen - Court Assistant.
Ouma Njoga for the Appellants.
Atieno for the Respondent.
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