Obonyo v Hongo & another (Environment and Land Appeal E007 of 2023) [2024] KEELC 4377 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a boundary appeal, confirming that a survey report all parties agreed to is strong evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court's decision was against the weight of the evidence
It was not; the trial court properly relied on the surveyor's report prepared pursuant to a court order made at the instance of all parties, which was unanimous among the five surveyors present, and the appellant produced no independent report to controvert it.
The survey order was initiated by the appellant himself and made by consent. The appellant's own surveyor was present during the exercise and the findings were unanimous among all five surveyors. The appellant produced no private surveyor's report to controvert the court-ordered report. The surveyor's report amounted to expert evidence, superior to the testimony of PW2 who had actually agreed with the earlier Ngaanyi report on cross-examination.
Whether the trial court ignored the appellant's evidence
It did not; the trial court took into account the evidence placed before it, and the appellant produced no documentary evidence at trial, while the Ngaanyi report was effectively superseded when all parties agreed to refer the dispute back to the surveyor.
The record showed the appellant produced no documentary evidence at trial. The Ngaanyi report of 2008 was on record, but all parties agreed to a fresh court-ordered survey, thereby effectively accepting that the boundary question be re-determined. In the circumstances, the trial court could not be said to have ignored any evidence produced by the appellant.
Costs of the appeal
Although costs ordinarily follow the event under Section 27 of the Civil Procedure Act, the Respondents did not participate in the appeal and were therefore not entitled to costs.
Section 27 of the Civil Procedure Act provides that costs follow the event, but this general rule was displaced because the Respondents took no part in the appeal. The appeal was dismissed with no orders as to costs, so neither party bore the other's costs of the appeal.
Legal principles established
#- On a first appeal, the court must reconsider and re-evaluate the evidence and arrive at its own independent conclusions, while making allowance for not having seen or heard the witnesses.
- Where parties consent to a court-ordered survey and do not produce any independent surveyor's report to controvert it, the trial court is justified in relying on that report as expert evidence.
Court orders
#- 1.The appeal is dismissed.
- 2.No orders as to costs.
- On appeal from
- Wiman Principal Magistrate's Court (ELC)
- ELC Case No. 110 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, "Obonyo v Hongo & another (Environment and Land Appeal E007 of 2023) [2024] KEELC 4377 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4377/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.