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ELCDismissedLand Appeal Number 1 of 2019· [2020] KEELC 2251 (KLR)

George Hazaria Obong’o v Benjamin Oliech Onyango [2020] KEELC 2251 (KLR)

Environment and Land Court of Kenya
20 May 2020
GOG.M.A. Ongondo
2,267 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that land boundary disputes must be resolved by the Land Registrar, whose unchallenged report can decide the case.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Migori against the judgment of Hon. J.P. Nandi, SRM, delivered on 19 December 2018 in Oyugis PMCC Land Case No. 96 of 2016, dismissing the appellant's claim with costs. The appellant, who claimed to have purchased a portion of LR Central Karachuonyo/Konyango/1190 in 1989 and built on it, sought a declaration that the respondent does not own LR No. 2605, eviction, and damages for trespass after the respondent allegedly dumped stones and sand on the parcel in May 2016. The respondent denied the claim and asserted the appellant had encroached on his land. Before the trial court, on counsel's request, the court directed the District Land Registrar and Surveyor to visit the parcels and report; the resulting report of 23 August 2016 showed the appellant had encroached on the respondent's land. The trial magistrate, relying on the unchallenged report, dismissed the suit. Ongondo J, re-evaluating the evidence as required on a first appeal, held that the dispute was essentially a boundary dispute properly referable to the Land Registrar under sections 18 and 19 of the Land Registration Act, that the Registrar's report, though opinion evidence, was unchallenged and accurately reflected the position on the ground, and that the trial magistrate was faultless in upholding it. The appeal was dismissed in its entirety with costs of both the appeal and the original suit awarded to the respondent under section 27(1) of the Civil Procedure Act. Judgment delivered electronically on 20 May 2020 during the Covid-19 pandemic.

Key legal issues

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01

Whether the trial court correctly referred the dispute to the Land Registrar

Holding

The trial court promptly and correctly referred the boundary dispute to the Land Registrar under sections 18 and 19 of the Land Registration Act, since the pleadings disclosed a boundary dispute

Reasoning

The parties' pleadings revealed an alleged trespass whose determination turned on the boundary between the parcels. On counsel's request the court ordered the District Land Registrar and Surveyor to visit the land, fix the boundaries and report. The court endorsed the position that courts lack the technical capacity to fix boundaries, a mandate the Land Registration Act vests in the Registrar.

p. 3
02

Whether the trial magistrate erred in relying on the Land Registrar's untested report

Holding

The magistrate was faultless in upholding the report; it clearly showed the position on the ground and was never challenged by the parties

Reasoning

The report is opinion evidence under sections 48 and 54 of the Evidence Act, and though not binding, the court may accept it. The report showed the appellant had encroached on the respondent's land and fenced off LR No. 2605 together with part of LR 1532. Neither party disputed it or filed a competing report, so the magistrate properly relied on it in dismissing the suit.

p. 3

Legal principles established

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  • On a first appeal, the court is duty bound to subject the entire evidence to a fresh and exhaustive re-evaluation and re-appraisal and make its own inferences of fact
  • Courts lack the technical ability to determine land boundary disputes, which are for the Land Registrar and county surveyor under the Land Registration Act
  • Expert opinion evidence is not binding on the court, which is at liberty to accept or reject it depending on the facts

Court orders

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  1. 1.The appeal by way of a memorandum of appeal dated 10th January 2019 be and is hereby dismissed
  2. 2.The costs of the appeal and the original suit shall be borne by the appellant

Authorities

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Legislation

  • Land Registration Actsections 18 and 19
  • Evidence Act (Cap 80)sections 48 and 54
  • Civil Procedure Act (Cap 21)section 27(1), proviso; section 3A
  • Environment and Land Court Actsections 3 and 19
  • Limitation of Actions Act (Cap 22)section 7
  • Constitution of Kenya, 2010Articles 7(3)(b), 159(2)(b) and (d)

Cases cited (7)

  • Selle and another v Associated Motor Boat Co Ltd and others
    (1968) EA 163
  • Peterson v Sunday Post Ltd
    (1958) EA 424
  • PIL Kenya Ltd v Oppong
    (2009) KLR 442
  • CD Desouza v BR Sharma
    (1953) 26 KLR 41
  • Amosam Builders Developers Ltd v Gachie and 2 others
    (2009) KLR 628
  • Andrew Marigwa v Josephat Ondieki Kebati
    (2017) eKLR
  • Gathure v Beverly
    (1965) EA 514
On appeal from
Oyugis Principal Magistrate's Court
Land Case No. 96 of 2016
Jurisdiction invoked
First appeal under sections 3 and 19 of the Environment and Land Court Act, 2015 and section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "George Hazaria Obong’o v Benjamin Oliech Onyango [2020] KEELC 2251 (KLR)", Case Analysis (2020). Land Appeal Number 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2251/eng@2020-05-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.