Ogombo & 4 others v Sera & 4 others (Environment and Land Appeal E022 of 2025) [2026] KEELC 5254 (KLR)
The bottom line
#A Migori court threw out a land trespass case because it was built on a survey done by an unlicensed surveyor.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court had jurisdiction over a suit framed as encroachment and trespass where general boundaries were alleged
The issue of jurisdiction had been conclusively determined by a ruling of 20th June 2023 which was never appealed, and on the merits the claim was one of encroachment and trespass, not a boundary dispute, so section 18(2) of the Land Registration Act did not bar the suit.
The court held that although the matter proceeded de novo, the prior ruling on the preliminary objection on jurisdiction was decisive and unchallenged. Independently, it found that the dispute was about trespass and encroachment on the respondents' registered parcels, not delimitation of general boundaries, so the Land Registrar route under sections 18 and 19 of the Land Registration Act was not triggered. The trial court was therefore properly seised of the suit.
Whether the trial court erred in relying on survey reports prepared by unqualified persons
Yes. PW2 admitted he was not registered or licensed with the surveyors' board, contrary to Section 36 of the Survey Act, and reliance on the reports by an unqualified person was an error in law vitiating the judgment.
PW2 conceded in cross-examination that he had no licence from the surveyors' board. Section 36 of the Survey Act prohibits anyone other than a surveyor - defined in Section 2 as a Government or licensed surveyor - from performing surveys affecting the delimitation of boundaries of registered land. The trial magistrate nonetheless adopted the reports. The appellate court held this was an error in law making the evidence not credible and the decision unsupportable. On this ground the appeal succeeded.
Whether the trial court erred by shifting the burden of proof to the defendants
Yes. The plaintiffs alleged trespass and sought eviction, so the burden lay on them; the magistrate's criticism of the defendants for not presenting reports or seeking a government surveyor shifted the burden wrongly and occasioned an injustice.
Applying Sections 107, 109 and 112 of the Evidence Act and the maxim that he who alleges must prove, the court noted the respondents were the ones alleging occupation of their land and seeking eviction. The trial judgment had faulted the defendants for failing to present a report or ask the government surveyor to establish boundaries. The court held this was a gross misdirection since the appellants filed no claim; the plaintiffs' proof of trespass failed, and the appeal succeeded additionally on this ground.
Legal principles established
#- Section 18(2) of the Land Registration Act bars courts from entertaining boundary disputes unless boundaries have been determined and fixed by the Land Registrar, but a suit founded on encroachment and trespass is not a boundary dispute and a court clothed with jurisdiction may entertain it
- Only a Government or licensed surveyor within the meaning of Section 2 of the Survey Act may prepare a survey for the delimitation of boundaries of registered land, and evidence of an unlicensed surveyor cannot found a judgment
- A party who alleges trespass bears the evidentiary burden of proving it; a trial court errs in law by shifting that burden onto a defendant who has filed no counterclaim
Court orders
#- 1.The judgement and decree in Migori CMELC 49A of 2023 delivered on 22nd May 2025 is set aside and substituted with an order that the Plaintiff's suit in the trial court is dismissed
- 2.The Appellants shall have costs of this appeal and of the lower court
- On appeal from
- Chief Magistrates' Court Migori
- Migori CMELC 49A of 2023
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the Chief Magistrates' Court (appeal from Migori CMELC 49A of 2023)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogombo & 4 others v Sera & 4 others (Environment and Land Appeal E022 of 2025) [2026] KEELC 5254 (KLR)", Case Analysis (2026). Environment and Land Court Land Appeal No. E022 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5254/eng@2026-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.