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ELCDismissedOyugis Environment and Land Court Appeal (from Oyugis MCELC No. E029 of 2021)

Ochieng v Nyanjong (Environment and Land Appeal E014 of 2024) [2025] KEELC 2920 (KLR)

Environment and Land Court
19 March 2025
2,008 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 dismissed a landowner's appeal because he admitted encroaching on his neighbour's land, and ordered no costs since both are neighbours.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Oyugis against the judgment of Honourable Celesa Okore, Principal Magistrate, delivered on 4th April 2024 in Oyugis MCELC No. E029 of 2021. The Respondent had sued the Appellant seeking a permanent injunction, eviction and costs over parcel Central Kasipul/Kamuma/440, alleging encroachment. The trial magistrate found the claim proved on a balance of probabilities and entered judgment as prayed, including eviction, permanent injunction and general damages of Kshs. 200,000 for trespass. On appeal, the Appellant faulted the trial court for finding encroachment despite two conflicting survey reports (one from the sub-county surveyor recommending a resurvey, and one from the regional surveyor finding part of parcel 4400 fenced off with parcel 5883), for usurping the Land Registrar's mandate under Sections 18 and 19 of the Land Registration Act, and for awarding unpleaded general damages. The Respondent maintained that the dispute concerned encroachment, not ownership, and that the Appellant never disputed the encroachment. The court framed two issues: whether the appeal was merited and who should bear its costs. Applying the Selle principles governing a first appellate court, the court held the Appellant had not disputed the encroachment, confirmed on cross-examination, and that the trial court had not erred in finding the Respondent's case proved. The appeal was dismissed and, as the parties are neighbours, each party was ordered to bear its own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal is merited.
  2. 2.Who should bear the cost of the appeal.

Key legal issues

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01

Whether the trial court erred in finding encroachment despite two conflicting survey reports

Holding

The appeal failed because the Appellant did not dispute that he had encroached onto the Respondent's parcel, and confirmed on cross-examination that the dispute was one of encroachment.

Reasoning

The court noted it was not in dispute that the parties' parcels were distinct (5883 and 4400) and that there were two survey reports. The sub-county report recommended a resurvey while the regional surveyor found part of parcel 4400 fenced off with parcel 5883. However, the decisive fact was that the Appellant never disputed the encroachment, so the trial magistrate was entitled to find the claim proved on a balance of probabilities.

p. 4
02

Whether the trial magistrate usurped the powers of the Land Registrar under Sections 18 and 19 of the Land Registration Act

Holding

The court did not accept this argument; it upheld the trial court's finding of encroachment on the basis that the Appellant admitted the encroachment, without pronouncing on the boundary-determination mandate.

Reasoning

Counsel for the Appellant argued the boundary dispute was the sole preserve of the Land Registrar under Sections 18 and 19 of the Land Registration Act and that the trial court usurped those powers. The court, applying the first-appeal principles in Selle, focused instead on the undisputed encroachment and the Appellant's confirmation on cross-examination, and found the trial court's conclusion sound.

p. 4

Legal principles established

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  • A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, while making allowance for the fact that it neither saw nor heard the witnesses.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party shall bear its own costs of the Appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court, Oyugis
Oyugis MCELC No. E029 of 2021
Jurisdiction invoked
First appellate jurisdiction over an appeal from the ruling/judgment of the Principal Magistrate's Court in Oyugis MCELC No. E029 of 2021

Relief refused

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Setting aside of the trial court's judgment (eviction order, permanent injunction and general damages)

The court found the Appellant did not dispute the encroachment and that the trial court rightly found the Respondent had proved his case on a balance of probabilities.

p. 4

Costs of the appeal and of the subordinate court

Given the parties are neighbours, the court declined to award costs to either side.

p. 5

Costs

Each party shall bear its own costs of the Appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that the appeal lacks merit and the same is hereby dismissed.
p. 5disposition - dismissal of appeal
On costs, based on the fact that the parties are neighbors, each party shall bear its own costs of the Appeal.
p. 5costs order
It is this court's view that the trial court did not err in finding that the Respondent had proved his case on a balance of probabilities.
p. 4finding of encroachment affirmed
this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses
p. 4duty of first appellate court

Issues in the judgment

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minor

The judgment inconsistently refers to the trial decision as both a ruling and a judgment delivered on 4th April 2024, and alternates between 'Brief Facts' headings for both the appeal and the underlying suit; party names are also not stated in the judgment, only roles.

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, "Ochieng v Nyanjong (Environment and Land Appeal E014 of 2024) [2025] KEELC 2920 (KLR)", Case Analysis (2025). Oyugis Environment and Land Court Appeal (from Oyugis MCELC No. E029 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2920/eng@2025-03-19

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