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ELCDismissedHoma Bay ELC Appeal (memorandum of appeal dated 26th October 2022) from Ndhiwa MC ELC No. 116 of 2015· [2024] KEELC 3564 (KLR)

Ondiek v Nyamula & 8 others (Environment and Land Appeal 54 of 2022) [2024] KEELC 3564 (KLR)

Environment and Land Court
9 April 2024
2,408 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 the Land Registrar's boundary determination is binding, dismissing a landowner's trespass claim and appeal.

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 E. M. Onzere, PM, in Ndhiwa MC ELC No. 116 of 2015, in which the appellant, the registered proprietor of parcel Kanyamwa/Kochieng/Komungu/Kakaeta/66, had sued the respondents for trespass and restoration of the boundary with neighbouring parcel 67 registered in the name of the late Jonathan Nyamula. The trial magistrate dismissed the suit, finding that the boundary had been determined by the Land Registrar and Government Surveyor and remained intact. The appellant, in person, appealed on eleven grounds, seeking rectification of the boundary per a private surveyor's (M/s Geofiex Consultants) report, eviction of the respondents from approximately 80 meters of the suit land, general damages for trespass and costs. The appeal was disposed of by written submissions. The respondents, through counsel, maintained that the plaintiff failed to prove his case on a balance of probabilities, that the private surveyor never testified, and that section 18(2) of the Land Registration Act ousted the court's jurisdiction over the boundary dispute. Justice G.M.A. Ong'ondo re-evaluated the evidence and framed three issues: trespass, whether C Exhibits 1 and 2 (the Land Registrar's reports of 3rd December 2009 and 3rd July 2018) determined the boundary, and the tenability of the appeal. The court held that sections 18 and 19 of the Land Registration Act vest exclusive boundary-determination power in the Land Registrar, whose reports were uncontroverted opinion evidence; the private surveyor's report was never produced in evidence and was superfluous. Following Azzuri Ltd v Pink Properties Ltd and the Supreme Court's Chaurembo Mumba decision, the court found no merit in the appeal and dismissed it with costs to the respondents on 9th April 2024.

Key legal issues

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01

Whether the trial court lacked jurisdiction over the boundary dispute

Holding

The boundary dispute was properly the province of the Land Registrar under section 18(2) of the Land Registration Act, whose determination in C Exhibits 1 and 2 was conclusive

Reasoning

The court held that the Land Registrar and Government Surveyor had visited the site, determined the boundary, and produced reports (C Exhibits 1 and 2) confirming the boundary was intact. Sections 18 and 19 of the Land Registration Act vest exclusive mandate over boundary determination in the Land Registrar, and the court must defer to that statutory scheme. The private surveyor's report was never produced in evidence and could not displace those official reports.

p. 5
02

Whether the private surveyor's report should have been admitted and expounded

Holding

The report was not produced in evidence and the trial court properly disregarded it

Reasoning

The private surveyor's report dated 4th June 2019 was never produced in evidence nor its author called. In any event it would have been superfluous given the Land Registrar's statutory mandate and the existing official reports. Opinion evidence under sections 48-54 of the Evidence Act is not binding on the court, which may adopt or reject it.

p. 5
03

Whether trespass was proved

Holding

Trespass was not proved; the boundary was determined and intact

Reasoning

The trial magistrate found that government Land Registrars and Surveyors had visited the parcels repeatedly since the dispute arose, gave consistent findings that the boundary was straight and intact, and the appellant produced no evidence to controvert that evidence, contrary to section 107 of the Evidence Act.

p. 5

Legal principles established

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  • Courts must give deference to statutory dispute-resolution bodies with a specific mandate, such as the Land Registrar's exclusive jurisdiction over boundary determination under section 18(2) of the Land Registration Act
  • Opinion evidence is not binding on the court, which may adopt or reject it depending on the facts
  • An appellate court must re-evaluate the evidence afresh while bearing in mind the trial court's advantage of seeing and hearing the witnesses

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents
  2. 2.It is so ordered

Authorities

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Legislation

  • Evidence Actsection 35
  • Evidence Actsection 107
  • Evidence Actsections 48 to 54
  • Trespass Act (Cap 294)section 3(1)
  • Constitution of Kenya, 2010Articles 47, 48 and 50(1)
  • Land Registration Act, 2016 (2012)sections 18, 18(2) and 19

Cases cited (8)

  • Josephat Mburugu v Silas Mwiti Mugwika
    (2022) eKLR
  • Daniel Kenga Katana & 4 others v Dzitu Toto Borehole & 3 others
    (2022) eKLR
  • Azzuri Ltd v Pink Properties Ltd
    (2018) eKLR
  • Whitehorse Investment Ltd v Nairobi City County
    (2019) eKLR
  • Mwanasokoni v Kenya Bus Services Ltd
    (1982-88) 1 KAR 278
  • PIL Kenya Ltd v Oppong
    (2009) KLR 442
  • CD Dseuza v BR Sharma
    (1953) 26 KLR 41 42
  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    Supreme Court Petition No. 3 of 2016 (2019) eKLR
On appeal from
Principal Magistrate's Court, Ndhiwa
Ndhiwa MC ELC No. 116 of 2015
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court (Environment and Land Court Act); appeal by way of memorandum of appeal dated 26th October 2022

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, "Ondiek v Nyamula & 8 others (Environment and Land Appeal 54 of 2022) [2024] KEELC 3564 (KLR)", Case Analysis (2024). Homa Bay ELC Appeal (memorandum of appeal dated 26th October 2022) from Ndhiwa MC ELC No. 116 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3564/eng@2024-04-09

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