Bogonko v Rasugu (Civil Appeal 142 of 2019) [2025] KECA 485 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a judge cannot turn a surveyor's boundary report into a judgment without hearing both landowners first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in entering judgment against the appellant who had no notice of, and was not served with, the report of the Land Registrar and County Surveyor
- 2.Whether the report by the Land Registrar and Surveyor was explicit and conclusive such that it could be adopted as the judgment of the court
- 3.Whether the Judge could properly enter judgment on a mention date without hearing the parties
Key legal issues
#Adoption of the Land Registrar and Surveyor's report as judgment
The report was expert material to assist the court, not a conclusive determination; the Judge erred in adopting it wholesale as judgment without hearing the parties.
The Registrar and Surveyor were not arbitrators under Order 46 of the Civil Procedure Rules; they were experts identifying the boundary. The report did not state whether a common boundary had previously been fixed under Section 18 of the Land Registration Act or who fixed the boundary features observed. The Judge therefore needed to hear the parties before granting eviction and injunction, and could not delegate the judicial function.
Right to be heard / natural justice
Judgment entered on a mention date, without service of the report on the appellant and without hearing the parties, breached natural justice and vitiated the proceedings.
The order adopting the report was made when the matter was listed for mention; at best directions should have been given. There was no evidence the appellant was served with the report, and no record that respondent's counsel asked for judgment. Relying on Savings & Loan Kenya Ltd v Odongo, both parties must be heard before a final decision, failing which there is a miscarriage of justice.
Statutory boundary-determination procedure
The report was necessary because a boundary dispute over registered land cannot be litigated until boundaries are determined under Sections 18 and 19 of the Land Registration Act.
Peter's plaint sought fixing of a common boundary in addition to eviction and injunction. Section 18(2) bars court proceedings on boundary disputes unless the boundaries have first been determined in accordance with Sections 18 and 19. The report's reference to boundary features did not show a prior lawful fixation of the boundary, compounding the need to hear the parties.
Legal principles established
#- A trial court may not adopt an expert's report as its own judgment without hearing the parties; the right to be heard is fundamental and its breach vitiates the proceedings.
- Where the Land Registrar and Surveyor act as experts assisting the court on a boundary question, the court cannot abdicate its judicial responsibility by adopting their report as judgment.
- Under Section 18(2) of the Land Registration Act, a court cannot entertain an action relating to a dispute as to boundaries of registered land unless the boundaries have been determined in accordance with Sections 18 and 19.
Court orders
#- 1.Appeal allowed
- 2.Order made by Mutungi, J on 20th November, 2018 set aside
- 3.Suit remitted to the Environment and Land Court at Kisii for hearing to proceed before a judge other than Mutungi, J
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kisii
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (not expressly cited in the judgment); notice of appeal lodged against the order of Mutungi, J of 20th November, 2018
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the above is that we allow the appeal, set aside the order made by the learned Judge on November 20, 2018, and remit the suit back to the ELC at Kisii for hearing to proceed before a judge other than Mutungi, J.
Right to hearing is an important fundamental right breach of which vitiated the proceedings.
The learned Judge could not abdicate his responsibility to determine the dispute by adopting as a judgment the report of the Land Registrar and Surveyor.
the court cannot entertain any action or other proceedings relating to a dispute as to the boundaries of registered land, unless the boundaries have been determined in accordance with Sections 18 and 19 of the Land Registration Act
Issues in the judgment
#The judgment records the boundary report as 'dated 4th October, 2010' in one paragraph but the record elsewhere shows it was filed on 4th October, 2018; the 2010 date appears to be an error given the suit's timeline.
The same Court of Appeal authority appears under two different renderings (Odanga/Odongo) in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bogonko v Rasugu (Civil Appeal 142 of 2019) [2025] KECA 485 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from Kisii ELC; notice of appeal filed 10th July, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/485/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.