REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC APPEAL NO. E022 OF 2025
BENJAMIN KEMEI YATOI……………………………………………1ST APPELLANT
SOPHIA MATSESHE ABDALLA……………………………………..2ND APPELLANT
VERSUS
ANTHONY OKELLO OLOO………………………………………...1ST RESPONDENT
IDI OSUNDWA………………………………………………………..2ND RESPONDENT
RUTH EUPHEMIA MWALE………………………………………..3RD RESPONDENT
JAMES SHIKWATI SHIKUKU……………………………………..4TH RESPONDENT
(Being an appeal arising from the Judgment of Hon. T. A. Obutu, Chief Magistrate, delivered on 6th February 2025 in Mumias MCELC Case No. E002 of 2022)
JUDGMENT
1. This appeal arises from the judgment delivered on 6th February 2025 in Mumias MCELC Case No. E002 of 2022. The appellants were respectively the 1st and 5th defendants before the subordinate court. The 1st respondent, who was the plaintiff, had sought the ejection of all the defendants from portions of land parcel South Wanga/Lureko/5018 and the costs of the suit. The trial court allowed the claim and ordered the defendants, their agents and servants to be ejected from the said parcel.
2. The dispute concerns the existence and location of an access road between parcel South Wanga/Lureko/5018 and the adjoining parcels, including South Wanga/Lureko/3185, 3186, 3371, 3372 and 3368. The appellants maintain that an access road had existed on the ground since about 2005 or 2006, that it served as the boundary between the original parcels from which the parties’ titles were derived, and that the 1st respondent later ploughed or obstructed it after acquiring parcel 5018. The 1st respondent’s case was that no such road existed along the boundary claimed by the appellants and that the defendants had instead created a passage and placed developments within his land.
3. The memorandum of appeal raises eight grounds. In substance, the appellants complain that the learned magistrate failed to appreciate the historical existence of the access road; relied on a sketch and on the reports of the Land Registrar and Surveyor despite alleged inconsistencies with the mutation forms and area map; failed to address complaints concerning the manner in which the survey exercise was conducted; disregarded their evidence and submissions; failed to consider that the disputed road was the only practical means of access to their parcels; and issued an unduly broad order which exposed them to ejection from land lawfully occupied by them.
4. The appellants’ submissions repeat that parcel South Wanga/Lureko/2823 was subdivided into, among others, parcels 3179 and 3186, with a four-metre access road shown in the mutation documents; that the 1st appellant acquired his portion from the 2nd appellant before the 1st respondent acquired parcel 5018; and that the Land Registrar and County Surveyor relied on a hand-drawn sketch instead of the complete survey records. The 1st respondent submits that the trial court properly preferred the joint technical evidence of the Land Registrar and County Surveyor, whose measurements were taken pursuant to a court order and were tested in cross-examination.
5. This is a first appeal. The Court is therefore required to reconsider and evaluate the evidence afresh and to draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. The familiar principle in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 applies. An appellate court will interfere with findings of fact where they are unsupported by the evidence, are founded on a misapprehension of the evidence, or are reached upon a wrong principle.
6. I have also had occasion, in ELC Appeal No. E020 of 2025, to consider a separate appeal arising from the same subordinate court judgment. That appeal was lodged by the 4th defendant. The present appeal is nonetheless determined upon its own memorandum, submissions and the common record. The fact that the appeals arise from the same judgment makes consistency important, but does not relieve this Court of the duty to examine the particular complaints raised by these appellants.
7. The record shows that, because the controversy was essentially technical, the subordinate court directed the County Land Registrar and Surveyor to visit the locus and establish the relevant boundaries. The site visit was undertaken on 27th September 2022. The report dated 7th October 2022 records that measurements taken on the ground corresponded with the map measurements and that the boundary points were identified and marked. The Deputy Land Registrar, David Masila, and the Deputy Regional Surveyor, Beatrice Lishenga Wamugi, subsequently testified. Their evidence was that the official map and the ground measurements agreed, that access had been provided to the affected parcels and that the road identified on the official records was the proper access.
8. The appellants place considerable emphasis on the fact that the Land Registrar described one of the documents used at the scene as a sketch, and that the complete office file or every mutation form was not produced. That criticism must be considered in context. The officers did not purport to determine the dispute solely from an informal drawing. They acted pursuant to a court order, took measurements on the ground, referred to records held by the survey and lands offices, marked the relevant points and gave oral evidence which was subjected to cross-examination. The Deputy Regional Surveyor expressly stated that she had the Registry Index Map, that parcel 2824 had become parcel 5018, that the access road appeared on the map, and that the mutation of parcel 2824 showed an access road between it and the adjoining parcels.
9. There were imperfections in the presentation of the official evidence. The report could have been clearer in identifying, by dimensions and coordinates, the exact area of every alleged encroachment. The Land Registrar also conceded that he had not carried the entire office file to court. Those shortcomings, however, did not render the exercise unlawful or deprive the evidence of all probative value. The central conclusion that the ground measurements tallied with the official map, and that there was an identifiable access serving the parcels, remained intact after cross-examination.
10. The appellants further contend that not every proprietor was present during the survey and that the exercise thereby violated the Land Registration Act. The record does not support the broader assertion that the survey was secretly or unilaterally undertaken. The report identifies the persons present, including the 1st appellant and a representative of the 2nd appellant, local administration officers and security officers. During the proceedings the Land Registrar maintained that the parties had been summoned through the area chief. More importantly, the appellants were afforded the opportunity at the hearing to challenge both the process and the result, and they did so extensively. No material prejudice amounting to a denial of a fair hearing was demonstrated.
11. The defence called Mr Munyasa Bitonye Stewart, a private surveyor. His affidavit asserted that the original access road had been altered and moved towards parcel 5018. Under cross-examination, however, he admitted that he had not produced the Registry Index Map, had not sought assistance from the Lands Office, had not involved all the neighbouring proprietors, was not engaged to settle a boundary dispute, and could not tell who had encroached upon whose land. Those concessions substantially weakened his opinion on the decisive question. A court is not bound to accept expert evidence merely because it is expressed as an opinion. The trial court was entitled to compare its foundation and reliability with the evidence of the statutory custodians of the land and survey records.
12. I therefore find no error in the learned magistrate’s decision to prefer the evidence of the Land Registrar and County Surveyor to that of the private surveyor. The official evidence was not perfect, but it was more complete, was generated pursuant to the court’s directions, was grounded in official records and measurements, and was tested before the court.
13. The appellants’ evidence that they had used a road for many years was relevant, but it did not by itself establish that the physical track they preferred corresponded to the lawful cadastral position. Long use of a pathway may explain the practical hardship created by its closure, but the location of a registered boundary or access road cannot ultimately be determined by recollection alone where official survey evidence is available. The trial court was therefore not bound to accept the appellants’ asserted historical alignment merely because they said that it had existed before the 1st respondent acquired parcel 5018.
14. The appeal nevertheless raises a legitimate concern regarding the form of the relief granted. The plaint sought the ejection of the defendants from portions of parcel 5018 said to have been occupied through fences, structures, farming and the creation of an access road. The decree, however, simply ejects all the defendants from a portion of parcel South Wanga/Lureko/5018 without defining the affected portion. The appellants are themselves proprietors or occupiers of adjoining registered parcels. An imprecise order of eviction is liable to extend beyond the encroachment proved and to generate a fresh dispute during execution.
15. An eviction order must identify with reasonable certainty the land or encroachment from which removal is required. It should be capable of implementation by the executing officer and the survey officers without leaving the extent of the order to conjecture. The trial court’s general conclusion in favour of the 1st respondent was supported by the evidence, but the order granted was broader than was necessary to protect the established access and the boundaries identified by the statutory officers.
16. The proper course is not to order a retrial. The parties were heard, the relevant public officers testified, the private surveyor testified, and the court visited the scene. The record is sufficient for the appellate court to fashion a precise and proportionate remedy. The judgment should therefore be affirmed on liability, but the eviction order should be varied so that it is confined to structures, developments, farming activities or other encroachments situated upon the access road and any portion of parcel 5018 specifically identified by the Land Registrar and County Surveyor as having been unlawfully occupied.
17. On costs, the 1st respondent substantially succeeded before the subordinate court and the award of trial costs should not be disturbed. Since the present appeal succeeds only on the form and precision of the final relief, the just order is that each party bears its own costs of the appeal.
DISPOSITION
18. In the result, the appeal partially succeeds only to the extent of varying the relief granted by the subordinate court. I therefore make the following orders:
a) Save for the variation in order (b) below, the judgment of the Chief Magistrate delivered on 6th February 2025 in Mumias MCELC Case No. E002 of 2022 is hereby affirmed.
b) Order (a) of the judgment and decree of the subordinate court is hereby set aside and substituted with the following order:
The defendants, their agents, servants or any persons claiming under them shall, within sixty (60) days of this judgment, vacate and remove all structures, developments, farming activities and other encroachments situated upon the access road and any area within parcel South Wanga/Lureko/5018 identified by the evidence and reports of the Land Registrar and County Surveyor as constituting an encroachment, failing which eviction shall issue in respect of those identified areas only.
c) For purposes of implementation, the County Land Registrar and County Surveyor, Kakamega, shall identify and mark on the ground the access road and any encroached portion referred to in order (b), in accordance with the official records and the reports produced before the subordinate court.
d) The award of costs before the subordinate court is upheld.
e) Each party shall bear its own costs of this appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT VIHIGA THIS 21ST DAY OF JULY 2026.
P. MUSYIMIJUDGE
In the presence of:
Mr. Kevin Ombima: Court Assistant
Mr. Benjamin Kemei: 1st Appellant
Sophia Matseshe Abdalla: 2nd Appellant
Mr. Kundu for the 1st Respondent
Ms. Lorna for the 4th Respondent
N/A for 2nd and 3rd Respondent
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