Ololo v Onyango (Environment and Land Appeal E017 of 2022) [2023] KEELC 212 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled a surveyor's report alone cannot settle a land boundary dispute—official boundary determination must come first.
What this practically means
#Executive summary
#Key legal issues
#Whether new evidence was introduced on appeal
The Appellant did not introduce new evidence on appeal; the Respondent did, by raising fraud over Siaya/Hono/1988 and mesne profits without leave.
The record showed the appellant had sought to cross-examine the County Surveyor and his private surveyor's report was already on file though not produced. The respondent, however, raised fraudulent acquisition and mesne profits for the first time on appeal, without seeking leave or laying any basis under the statutory provisions governing additional evidence, so the court was constrained from entertaining it.
Whether the trial court erred in adopting the County Surveyor's report as a judgment
The adoption of the report followed the consent order and Section 59C of the Civil Procedure Act; the use of the term 'judgment' was a typographical error curable under Section 99, and the trial court did not err in disregarding the appellant's cross-examination request.
The parties' consent tasked the Land Registrar and County Surveyor to establish the delineation and size of the two parcels, and private surveyors were merely to witness. The procedure aligned with Section 59C. The header of the decision showed it was a ruling, making 'judgment' a curable typographical error. However, the report made no finding of encroachment, so the trial court erred in finding encroachment.
Whether the County Surveyor's report determined the issues in dispute
The trial court erred in holding the report conclusively determined the matter; the consent only established size and delineation, and the boundary dispute remained undetermined.
The pleadings showed trespass and boundary issues were entwined. The consent was limited to establishing size and delineation, and the Registry Index Map for parcel 1785, from which Siaya/Hono/1988 emanated, had not been amended, so its location was not established. The trial court itself ordered the Land Registrar to fix boundaries, demonstrating the dispute was not settled, yet also stated the matter was determined.
Legal principles established
#- On a first appeal, the court must analyze and reassess the evidence and reach its own conclusions while making due allowance for not having seen or heard the witnesses
- Additional evidence on appeal before the High Court is governed by Section 78(1)(d) of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, not the Court of Appeal Rules
- A settlement arising from a court-referred ADR process is enforceable as a judgment of the court and no appeal lies in respect of such a judgment (Section 59C Civil Procedure Act)
- A court cannot entertain a boundary dispute over registered land unless the boundaries have been determined in accordance with Section 18 of the Land Registration Act
Court orders
#- 1.The ruling delivered on October 27, 2021 is varied by substituting the term 'judgment' with the term 'ruling'
- 2.At the appellant's cost, the Registry Index Map for land parcel no. Central Alego/Hono/1785 shall be amended within 60 days from the date of the judgment to reflect land parcel no. Siaya/Hono/1988
- 3.Once that amendment is complied with, the Land Registrar, Siaya, at the appellant and respondent's costs, shall within 60 days cause the precise boundaries of Central Alego/Hono/1723 and Siaya/Hono/1988 to be defined by survey pursuant to Sections 18 and 19 of the Land Registration Act, and a report filed before the trial court
- 4.Once a report has been filed, the trial court shall issue further directions
- 5.Each party to bear their own costs
- On appeal from
- Magistrates' Court, Siaya
- Not stated
- Jurisdiction invoked
- First appeal from the trial court; appeal and cross-appeal against a ruling adopting a County Surveyor's report
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ololo v Onyango (Environment and Land Appeal E017 of 2022) [2023] KEELC 212 (KLR)", Case Analysis (2023). Not stated in judgment (Memorandum of Appeal filed September 22, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/212/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.