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ELCDismissedELCA Case No. 51 of 2019 (consolidated with ELCA No. 34 of 2019)· [2021] KEELC 1883 (KLR)

Samuel Okoth Ojwang’ v Maurice Odhiambo Kodiwo [2021] KEELC 1883 (KLR)

Environment and Land Court
30 September 2021
AOAntony Ombwayo
2,416 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that building on a neighbour's separately titled land is trespass, and an uncontested surveyor's report is enough to prove it.

What this practically means

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Executive summary

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The respondent sued the appellant in the Senior Resident Magistrate's Court at Siaya (ELC No. 11 of 2014), claiming to be the registered proprietor of parcel EAST/KAGILO/754, registered on 19 December 1989 with a title issued on 17 December 1991, and alleging that the appellant began constructing structures on the parcel in January 2014. The magistrate found the respondent was the registered owner, accepted the uncontroverted evidence of the County Surveyor (PW2) that the appellant had encroached by 0.008 hectares, found trespass proved on a balance of probabilities, and granted a permanent injunction, costs and interest, with an order for removal of the structures within 30 days. Damages were refused as unproved. The appellant appealed to the Environment and Land Court at Kisumu, contending the magistrate failed to appreciate the evidence and that failure by the Land Registrar to determine the boundary under Section 18(2) of the Land Registration Act rendered the judgment nugatory, the surveyor's report alone being insufficient. Ombwayo J restated the first appellate court's duty to re-evaluate evidence with due allowance for the trial court's advantage, relying on Selle v Associated Motor Boat Co., Peters v Sunday Post and Watt v Thomas. The court held the dispute was not a boundary dispute since the parcels were separately registered with clear measurements and separate titles; it was a claim in trespass. The uncontroverted surveyor's report and the evidence of the appellant's own mother established that the appellant constructed houses on the respondent's land. The appeal was dismissed with costs.

Key legal issues

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01

Nature of the dispute - boundary dispute or trespass

Holding

The suit was premised on trespass, not a boundary dispute, as the parcels were separately registered with clear measurements

Reasoning

The court held that the parcels were registered separately with distinct title deeds and acreage shown on the maps, so the Magistrate was not obliged to await a boundary determination by the Land Registrar under Section 18(2) of the Land Registration Act. The claim was squarely one of encroachment onto the respondent's registered parcel.

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02

Weight of the County Surveyor's uncontroverted expert evidence

Holding

The uncontroverted County Surveyor's report proved the encroachment of 0.008 hectares by the appellant

Reasoning

PW2, the County Surveyor, visited the land twice, surveyed in the presence of both parties, and established that the proprietor of parcel 755 had encroached on parcel 754 by 0.008 hectares when constructing houses. Her expert evidence was not controverted and thus carried great weight.

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03

Whether the trial court's finding of trespass was supported by the evidence

Holding

The respondent proved trespass on a balance of probabilities, supported by the appellant's own witnesses

Reasoning

DW4, the appellant's mother, confirmed the parcels had a marked boundary and that 755 had been left fallow until 2013 when the family returned and constructed houses, which the survey showed was on the respondent's land. The appellant himself confirmed on cross-examination that parcel 754 belonged to the respondent.

p. 3

Legal principles established

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  • On first appeal, the court must re-evaluate the evidence afresh while making due allowance for the trial court's advantage of seeing and hearing the witnesses
  • Where parcels are registered as separate parcels with separate title deeds and clear measurements, a claim of encroachment is a claim in trespass rather than a boundary dispute requiring a Section 18(2) determination

Court orders

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  1. 1.Appeal dismissed with costs
On appeal from
SRMC Siaya
ELC No. 11 of 2014
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court (Environment and Land Court 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, "Samuel Okoth Ojwang’ v Maurice Odhiambo Kodiwo [2021] KEELC 1883 (KLR)", Case Analysis (2021). ELCA Case No. 51 of 2019 (consolidated with ELCA No. 34 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1883/eng@2021-09-30

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