Ongudu & another v Rajwayi & another (Environment and Land Appeal E002 & E009 of 2024 (Consolidated)) [2026] KEELC 3103 (KLR)
The bottom line
#The High Court dismissed a Kshs 10 million land trespass suit after finding the official survey map was too faulty to prove where the boundary actually lay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved that the fenced portion of land was part of his suit property, so as to establish trespass
No; the Respondent failed to prove the trespass claim to the required standard because the Kisumu Konya Registration Section Diagram 7 contained uncorrected survey errors, making it impossible to locate the parcels on the ground
The court evaluated the county surveyor's report ordered in 2015, the reports of PW2 (Patrick Opiyo) and DW2 (Peter Oraro), and the mutation forms. All showed that the parcels' ground positions did not tally with the Registry Index Map. PW2's report was found shallow and deficient, relying on a flawed map. DW2's report, which overlaid the map on a Google map, was preferred. The mutation forms also revealed unexplained discrepancies in measurements and shapes. Without correcting the map, no finding of trespass could be made.
Whether the trial court erred in declining general damages for trespass despite finding trespass
Not determined; having found that the Respondent failed to prove the trespass claim, the issue of damages did not arise and the Respondent's cross-appeal was dismissed
The court held that with the failure of the primary finding of trespass, there was no basis to consider the damages question raised in the Respondent's appeal. The survey defects underlying the dispute could not be attributed to either party, which also informed the costs order.
Whether the dispute, being a boundary dispute arising from a flawed survey, was resolvable by the court
The dispute should be resolved by the Director of Surveys and the Land Registrar, Kisumu County, through a proper survey and boundary determination
The court found that correcting the anomaly would require re-establishing ground positions of multiple parcels, joining additional parties, and investigating the survey records to find when the map was interfered with - an administrative exercise for the survey authorities rather than a matter for judgment on the pleadings.
Legal principles established
#- On a first appeal, the court must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
- An appellate court may interfere where there is no evidence to support a conclusion or where the trial court failed to appreciate the weight of proved circumstances
- The legal burden of proof rests on the party desiring the court to take action; a claimant must establish the facts supporting his case to the appropriate standard
- An erroneous survey map cannot be relied upon to determine a trespass claim; the evidential burden shifts to the party against whom sufficient evidence has been adduced
Court orders
#- 1.ELCLA No. E002 of 2024 is allowed
- 2.The judgment of the trial court delivered on 16th January 2024 is set aside and substituted with an order dismissing the Respondent's suit in the lower court against the Appellant
- 3.ELCLA No. E009 of 2024 is dismissed
- 4.Each party shall bear its costs of the lower court suit and of the appeal
- On appeal from
- Chief Magistrate's Court at Kisumu (Environment and Land Court)
- Kisumu CMCELC No. 113 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Chief Magistrate's Court (Environment and Land Court) under statutory appeal provisions; consolidated first appeals
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongudu & another v Rajwayi & another (Environment and Land Appeal E002 & E009 of 2024 (Consolidated)) [2026] KEELC 3103 (KLR)", Case Analysis (2026). ELCA No. E002 of 2024 (consolidated with ELCA No. E009 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3103/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.