Machoka v Mokamba (Land Case Appeal E036 of 2025) [2026] KEELC 3437 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Pecuniary jurisdiction based on alleged value of a storey building on the disputed land
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
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.
Adoption of the surveyor's report as an order of the court
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
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.
Ex parte eviction orders granted to a Respondent with no defence or counterclaim on file
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
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.
Referral to mediation and to the County Surveyor without a signed mediation agreement
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
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.
Absence of the Land Registrar's input and use of a general rather than fixed survey report (grounds 8 and 9)
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
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.
Legal principles established
#- 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
#- 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.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.The costs of the appeal awarded to the Appellant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.