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ELCPartially AllowedMCELC E042 of 2024 (appeal)· [2026] KEELC 3437 (KLR)

Machoka v Mokamba (Land Case Appeal E036 of 2025) [2026] KEELC 3437 (KLR)

Environment and Land Court
4 June 2026
2,831 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisii Land Court overturned eviction orders made without a proper hearing, ruling surveyors' reports alone cannot decide land disputes or justify evicting anyone.

What this practically means

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Executive summary

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This is a first-instance appellate judgment of the Environment and Land Court at Kisii, delivered by A. Omollo J on 4th June 2026, in an appeal against orders of the Senior Principal Magistrate's Court in MCELC E042 of 2024. The underlying suit involved a boundary dispute between parcels Nyaribari Chache/B/B/Boburia/9632 and 12151, in which the plaintiff sought a permanent injunction and removal of a fence. The trial magistrate ordered a site demarcation by the County Surveyor and Land Registrar, adopted the resulting survey report as an order of the court on 20th March 2025, and thereafter, on a notice of motion dated 21st April 2025 by the defendant - who had filed no defence or counterclaim - issued ex parte eviction orders against the plaintiff on 25th April 2025. The appellant raised ten grounds, principally lack of pecuniary jurisdiction based on an alleged Kshs 20,000,000 storey building, the irregular adoption of an incomplete survey report lacking the Land Registrar's input, and eviction orders granted without any claim to anchor them. The court held that a survey report is not a valuation report and no evidence established the property's value; that adoption of the incomplete report was a misdirected exercise of discretion violating the appellant's right to a fair hearing; and that a respondent with no claim on file was not entitled to ex parte eviction orders. Referral to mediation and to the Surveyor was held lawful under Article 159(2)(d). The appeal was allowed: the adoption and eviction orders were set aside, the suit remitted for a fresh trial before a magistrate other than Hon B.O Omwansa C.M., and costs of the appeal awarded to the appellant.

Key legal issues

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01

Pecuniary jurisdiction based on alleged value of a storey building on the disputed land

Holding

The objection to jurisdiction failed; a survey report is not a valuation report and no evidence established the property's value exceeded the magistrate's pecuniary jurisdiction

Reasoning

The court noted the survey report did not state the value of the storeyed building, the pleadings did not disclose the value of the land, and it would be outrageous to expect a trial court to infer a value exceeding Kshs 20,000,000 merely from mention of a storey building. No additional evidence was produced on appeal to affirm the value.

p. 4
02

Adoption of the surveyor's report as an order of the court

Holding

The adoption was a misdirected exercise of discretion that interfered with the Appellant's right to a fair hearing, as there was no consent to the surveyor's determination and the technical report was incomplete without the Land Registrar's input

Reasoning

The trial court adopted the report without stating what became of the pending suit. The report lacked the Land Registrar's input required by section 18(3) of the Land Registration Act, and there was no evidence the Appellant consented to the surveyor's determination of the dispute. The report was evidence to be tested, not a basis to dispose of the suit.

p. 5
03

Ex parte eviction orders granted to a Respondent with no defence or counterclaim on file

Holding

The eviction orders were improperly granted ex parte; the Respondent, having filed no claim, was not entitled to any orders, and the magistrate treated a bare adoption as executory orders

Reasoning

The Respondent had not filed a defence or counterclaim upon which an eviction application could be anchored. The magistrate did not state he was satisfied on the merits, contrary to Julius L. Marten, and grafted eviction orders onto a survey report that did not recommend any eviction.

p. 5
04

Referral to mediation and to the County Surveyor without a signed mediation agreement

Holding

Referral per se was lawful under Article 159(2)(d); the recommendation of the mediator on referral to the Surveyor was immaterial whether agreed or not

Reasoning

Article 159(2)(d) of the Constitution permits alternative dispute resolution, and a court may of its own motion refer a matter to the Land Registrar and Surveyor for a site report. The Appellant's complaint about the absence of a signed mediation agreement therefore did not invalidate the process.

p. 6
05

Absence of the Land Registrar's input and use of a general rather than fixed survey report (grounds 8 and 9)

Holding

These matters could not be determined on appeal without evidence; they were reserved for cross-examination of the report's maker at a fresh hearing

Reasoning

The court held that at the stage the case reached, no evidence had been led, so grounds 8 and 9 could be taken up in cross-examination of the maker of the impugned report during the hearing of the case after remittal for a fresh trial.

p. 6

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong, based on misdirection, reliance on wrong matters or failure to consider relevant matters
  • An eviction order has far-reaching implications and before such an order is issued, a court must be satisfied on its merits and any person who stands to be affected is entitled to be heard
  • Under section 18(3) of the Land Registration Act it is the Land Registrar who receives boundary evidence; a survey report without the Land Registrar's input is incomplete technical evidence that a trial court should not rely on wholly to dispose of a suit
  • A court may, of its own motion, refer a dispute to the County Land Registrar and Surveyor to visit the site and file a report, and referral to mediation per se does not breach Article 159(2)(d) of the Constitution

Court orders

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  1. 1.The orders of the trial court dated 20th March, 2025, adopting the surveyor's report and the subsequent orders of eviction issued on 25th April, 2025, are hereby set aside
  2. 2.The Appellant's case, MCELC E042 of 2024, is remitted for a fresh trial before another magistrate, other than Hon B.O Omwansa C.M.
  3. 3.The costs of the appeal awarded to the Appellant

Authorities

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Legislation

  • Land Registration Actsection 18 (including 18(3))
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (5)

  • Mwikamba Kagembe versus Geofirey Kiania Kamwara
    ELC Misc E001 of 2023
  • Julius L. Marten vs Caleb Arap Rotich
    (2021) eKLR
  • Arthi Highway Developers Limited vs. West End Butchery Limited & 6 Others
    [2015] eKLR
  • Selle vs. Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo Another versus Shah
    (1968) E.A 93
On appeal from
Senior Principal Magistrate's Court (Kisii)
MCELC E042 of 2024
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in land matters

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, "Machoka v Mokamba (Land Case Appeal E036 of 2025) [2026] KEELC 3437 (KLR)", Case Analysis (2026). MCELC E042 of 2024 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3437/eng@2026-06-04

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