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ELCDismissedAppeal from Ndhiwa PMCC No. 5 of 2012· [2022] KEELC 1155 (KLR)

Lucas Ogolla Oimba v Rose Aoko & another [2022] KEELC 1155 (KLR)

Environment and Land Court
28 February 2022
1,620 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a landowner's trespass appeal, confirming boundary disputes must first go to the Land Registrar.

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 Homa Bay against the judgment of Hon. B. Omwansa (SRM) delivered on 20 May 2015 in Ndhiwa PMCC No. 5 of 2012, in which the trial magistrate declined to grant an injunction and dismissed the appellant's trespass suit with costs. The suit land was L.R No. Kabuoch/Kachieng/1704 (approximately 0.69 Ha) in Ndhiwa Sub-County, Homa Bay County. The appellant, who had sued seeking an order compelling the respondents to vacate the land and a permanent injunction, advanced eight grounds of appeal contending that the trial magistrate misapprehended the evidence, ignored a Land Office report, and was biased during a site visit. The respondents were served but elected not to participate. The court compressed the eight grounds into two issues: whether the respondents trespassed onto the suit land and whether the appeal was tenable. Applying Peterson v Sunday Post and Mwanasokoni v Kenya Bus Services Ltd, the court found the trial magistrate correctly accepted the evidence of PW1 and PW2 and the Land Registrar's report showing the boundary was intact, and that no encroachment or connection between the suit land and LR No. Kabuoch/Kachieng/918 was demonstrated. The court held the trial magistrate's reasoning was correct and in consonance with the law, upheld the judgment, and dismissed the appeal. Relying on the proviso to section 27(1) of the Civil Procedure Act, the court made no order as to costs.

Key legal issues

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01

Whether the appellant proved trespass onto the suit land

Holding

The appellant failed to demonstrate that the respondents encroached into the suit land; the Land Registrar's report showed the boundary was intact and there was no connection between the suit land and LR No. Kabuoch/Kachieng/918

Reasoning

The trial magistrate accepted the testimonies of PW1 and PW2 and the Land Registrar's report (PExhibit 3), whose observation number 2 showed the boundary was intact. The appellate court, applying the principles in Mwanasokoni, found the trial magistrate's reasoning correct and in consonance with the law and declined to disturb the findings of fact.

p. 3
02

Whether the appeal against the dismissal of the trespass suit was tenable

Holding

The appeal was untenable and was dismissed

Reasoning

Sitting as a first appellate court, the judge reviewed the evidence under the cautionary principles in Peterson v Sunday Post and Mwanasokoni, found the trial magistrate's reasoning correct and in consonance with the law, and found no reason to disturb the reasoned judgment dismissing the suit.

p. 3

Legal principles established

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  • An appellate court will not ordinarily interfere with findings of fact by the trial court unless the findings are based on no evidence, on a misapprehension of evidence, or where the trial court demonstrably acted on wrong principles
  • The Land Registrar has the mandate to entertain in the first instance any dispute relating to the boundary of registered land
  • Expert evidence is not binding on the court, which is at liberty to accept or reject it depending on the facts and circumstances

Court orders

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  1. 1.The appeal is hereby dismissed
  2. 2.No order as to costs in this appeal

Authorities

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Legislation

  • Land Registration ActSections 18, 19 and 20
  • Registered Land Act (now repealed)Section 159
  • Constitution of Kenya, 2010
  • Land and Environment Act, 2011
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27(1) proviso
  • Civil Procedure Rules, 2010Order 21 Rules 3(1) and 4

Cases cited (8)

  • Dr Joseph Arap Ngok vs Justice Moijo Ole Keuwa and 5 others
    (1997) eKLR
  • Paul Hirbo Isatu vs Abdirahaman Ake
    (2018) eKLR
  • Ogada vs Mollin
    (2009) KLR 620
  • Peterson vs Sunday Post
    (1958) EA 424
  • Mwanasokoni vs Kenya Bus Services Ltd
    (1982-88) 1 KAR 278
  • Nguruman Limited vs Jan Bonde Nielsen and 2 others
    (2014) eKLR
  • Amosam Builders Developers Ltd vs Gachie and 2 others
    (2009) KLR 628
  • Registered Trustees Legio Maria Africa Church Mission vs Simeon Nyamweya Obwocha
    (2018) eKLR
On appeal from
Principal Magistrate's Court, Ndhiwa
Ndhiwa PMCC No. 5 of 2012
Jurisdiction invoked
First appellate jurisdiction over a decision of the Principal Magistrate's Court in a land dispute

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, "Lucas Ogolla Oimba v Rose Aoko & another [2022] KEELC 1155 (KLR)", Case Analysis (2022). Appeal from Ndhiwa PMCC No. 5 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1155/eng@2022-02-28

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