Simon Otieno Ogola (suing through Margaret Adhiambo Ogola, holder of power of Attorney) v David Odhiambo Okendo (Environment & Land Case 215 of 2017) [2020] KEELC 733 (KLR)
The bottom line
#A Migori court adopted an official surveyor's boundary report as judgment, ordered a land occupier evicted within 75 days, and dismissed his ownership counterclaim.
What this practically means
#Executive summary
#Key legal issues
#Whether the report by the Land Registrar and County Surveyor finally determined the boundary dispute between the parties
The dispute was one of boundaries under Sections 18 and 19 of the Land Registration Act; the court lacked first-instance jurisdiction over it and had rightly referred it to the Land Registrar and County Surveyor, whose report resolved the boundary question and was adopted as judgment.
The court held that the instant dispute concerned boundaries of registered land, and that under Sections 18 and 19 of the Land Registration Act the Land Registrar and Surveyor are mandated to establish and fix boundaries of registered land. It therefore lacked jurisdiction in the first instance and had properly referred the matter to those officers. Their report, which re-established the disputed boundary and the road serving the parcels, was found cogent, firm and reliable, and was adopted as judgment of the court.
Whether the plaintiff proved trespass and was entitled to the reliefs sought
Yes. The defendant entered the suit property without justification; unlawful possession of private land is prohibited under Section 152A of the Land Registration Act, and the plaintiff was entitled to declaration, eviction, permanent injunction and general damages for trespass assessed at Kshs 75,000/=.
Relying on the definition of trespass in Clerk and Lindsell on Torts and on Nguruman Ltd v Jan Bonde Nielsen, the court found the defendant entered the suit property without justification. Under Article 40(1) of the Constitution and Section 152A of the Land Registration Act, unlawful possession of private land is prohibited. The court awarded general damages of Kshs 75,000/= in view of the character and circumstances of the case, and granted the declaratory, eviction and injunctive reliefs sought in the plaint.
Whether the defendant's counter claim should succeed
No. The counter claim, premised on alleged fraud and ownership of the original parcel, was devoid of merits and was dismissed with costs to the plaintiff.
The defendant denied the plaintiff's allegations, claiming to be the first registered proprietor of the original land LR No. Kamagambo/Kanyajuok/308 and alleging fraud in the sale and transfer of the suit property. The court, on the strength of the plaintiff's pleadings and the surveyor's report which established that the boundaries were intact, found the counter claim without merit. The plaintiff had proved his claim on a balance of probabilities, and the counter claim was dismissed with costs to the plaintiff.
Legal principles established
#- A court cannot entertain a boundary dispute over registered land unless the boundaries have first been determined in accordance with Sections 18 and 19 of the Land Registration Act, which mandates the Land Registrar and Surveyor to establish and fix boundaries.
- Opinion evidence, including a surveyor's report, is generally not binding on the court, which is at liberty to accept or reject it depending on the facts and circumstances of the case.
- Trespass constitutes an unjustifiable entry by one person upon the land in possession of another.
Court orders
#- 1.The report of the Land Registrar and County Surveyor, Migori dated 1st April 2019 is adopted as judgment of the court.
- 2.Judgment entered for the plaintiff against the defendant for declaration, eviction, permanent injunction as sought in the plaint dated 20th July 2016, and general damages for trespass assessed at Kshs 75,000/= (Kenya Shillings Seventy-Five Thousand Only).
- 3.The defendant shall vacate the suit property within Seventy-Five (75) days from the date of judgment, in default the Officer Commanding Station (OCS) Kamagambo Police Station to evict him therefrom.
- 4.The costs of the suit shall be borne by the defendant.
- 5.The defendant's counter claim dated 21st April 2018 is dismissed with costs to the plaintiff.
- Jurisdiction invoked
- Sections 3 and 19 of the Environment and Land Court Act, 2015 and Section 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Otieno Ogola (suing through Margaret Adhiambo Ogola, holder of power of Attorney) v David Odhiambo Okendo (Environment & Land Case 215 of 2017) [2020] KEELC 733 (KLR)", Case Analysis (2020). TECH 14/MIG/SUB/VOL1/66. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/733/eng@2020-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.