Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedSiaya CMC ELC No. 44 of 2018 (Appeal)· [2021] KEELC 4465 (KLR)

Stephen Otieno Apidi (Suing as Administrator of Estate of Late Mariko Apido Midimo v Paul Obiero Gungu [2021] KEELC 4465 (KLR)

Environment and Land Court
28 January 2021
AOANTONY OMBWAYO
1,517 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court ruled that a surveyor's clear report on a land boundary should be followed, and the land register corrected.

What this practically means

#

Executive summary

#
This was a first appeal to the Environment and Land Court at Kisumu against the judgment of Hon J. O. Ongondo PM in Siaya CMC ELC No. 44 of 2018, which had dismissed the Appellant's boundary-dispute suit with costs. The Appellant, administrator of his father's estate, claimed the Respondent had annexed 0.25 Ha of his father's land during a transfer of Parcel 1291, later sub-divided into Parcel 1325. A Land Dispute Tribunal order adopted in Misc. Appl. No. 84 of 2005 had directed that the portion planted with eucalyptus trees be returned to Parcel 348. At trial, the parties by consent agreed the matter was a boundary dispute and that a surveyor demarcate the parcel and report; the report recommended subdivision into 0.19 Ha for the Plaintiff and 0.89 Ha for the Defendant. The trial magistrate, finding the disputed area measured only 0.19 Ha, dismissed the report as lacking clarity, accuracy and cogency. Ombwayo J allowed the appeal, holding the magistrate had misapprehended the unchallenged report: the disputed portion was only the southern 0.19 Ha of Parcel 1325, the residual 0.89 Ha belonging to the Respondent. Relying on Selle v Associated Motor Boat Co and Mwangi v Wambugu, the court reappraised the evidence and held the proper remedy was rectification of the register and correction of the boundary by the County Surveyor. The appeal was allowed with costs.

Key legal issues

#
01

Whether the trial magistrate misapprehended the surveyor's report

Holding

The appeal is allowed; the trial magistrate misapprehended the report by concluding the disputed portion formed the whole of Parcel 1325, whereas the report showed the disputed 0.19 Ha was only the southern eucalyptus-planted part of Parcel 1325, with the Respondent owning the residual 0.89 Ha.

Reasoning

The parties by consent agreed the dispute was a boundary dispute and that a surveyor demarcate the parcel and file a report. The report was unchallenged when produced. The magistrate misread it as awarding the whole parcel, creating an arithmetical conundrum and wrongly dismissing the report as lacking clarity, accuracy and cogency. The court held the report clearly allocated 0.19 Ha to the Appellant within Parcel 1325 and 0.89 Ha to the Respondent.

p. 2

Legal principles established

#
  • A first appellate court must reconsider and evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses
  • An appellate court will not interfere with a finding of fact unless it is based on no evidence, a misapprehension of the evidence, or a failure to take account of material circumstances
  • In a boundary dispute, the proper remedy is rectification of the register to reflect correct acreages rather than subdivision and issuance of new titles

Court orders

#
  1. 1.The appeal is allowed with costs
  2. 2.Rectification of the register to reflect the correct acreages of parcels East Alego/Olwa/1325 and East Alego/Olwa/348 as shown in the surveyor's report (0.19 Ha to the Appellant and 0.89 Ha to the Respondent)
  3. 3.The County Surveyor to correct the boundary between the two parcels

Authorities

#

Cases cited (2)

  • Selle and another v Associated Motor Boat Company Ltd and others
    [1968] 1 EA 123
  • Mwangi v Wambugu
    [1984] KLR 453
On appeal from
Siaya Magistrate's Court
Siaya CMC ELC No. 44 of 2018
Jurisdiction invoked
First appeal from the magistrates' court to the Environment and Land Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Stephen Otieno Apidi (Suing as Administrator of Estate of Late Mariko Apido Midimo v Paul Obiero Gungu [2021] KEELC 4465 (KLR)", Case Analysis (2021). Siaya CMC ELC No. 44 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4465/eng@2021-01-28

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