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ELCDismissedELC Land Appeal No. E016 of 2023· [2026] KEELC 6209 (KLR)

Peter Ogalo Nyabuche v Eliud Ojwang & 3 Others

Environment and Land Court of Kenya
21 September 2026
1,791 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner lost his trespass appeal because his survey report lacked proper measurements, showing courts can reject even unchallenged expert evidence.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Homa Bay against the judgment of the Senior Principal Magistrate's Court at Ndhiwa (Hon. E. M. Onzere, PM) delivered on 26th September 2023, which had dismissed the Appellant's suit seeking eviction, demolition and a permanent injunction against four Respondents for alleged trespass onto parcel Kanyamwa/Kayambo/Kwamo/1468. The Respondents each held titles (parcels 3410-3413) derived from parcel 118, which borders parcel 1468. The Appellant raised 12 grounds, summarized as three themes: rejection of the joint Land Registrar and County Surveyor reports, imposition of conditions beyond the court order, and the burden of proof on encroachment. The court, guided by Section 78 of the Civil Procedure Act and Selle v Associated Motor Boat Co, re-evaluated the evidence. It held that the trial magistrate was justified in rejecting the expert reports: the officers failed to take statements from all respondents, did not measure parcel 118 or parcels 3410-3413, omitted dimensions and the road reserve, and could not explain the unilateral amendment of the Registry Map Sheet from No. 42 to No. 40. Applying Kimatu Mbuvi v Augustine Munyao, the court held that uncontradicted expert evidence is not binding and a deficient report may be rejected. On the burden of proof under Sections 107 and 108 of the Evidence Act, the Appellant failed to prove trespass on a balance of probabilities. The appeal was dismissed with each party bearing their own costs, and the trial court's judgment was upheld.

Key legal issues

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01

Rejection of the Land Registrar and County Surveyor reports

Holding

The trial magistrate was justified in rejecting the reports; cross-examination exposed defects that rebutted their probative value despite the absence of a counter-expert.

Reasoning

The Registrar and Surveyor admitted they did not take statements from all respondents, did not measure parcels 3410-3413 or parcel 118, omitted dimensions and the 4-metre road, and could not explain the unilateral amendment of the Registry Map Sheet from No. 42 to No. 40. A survey isolating parcel 1468 without mapping adjacent parcels could not establish whether respondents were on parcel 1468 or their root parcel 118.

p. 7
02

Proof of trespass/encroachment on a balance of probabilities

Holding

Not proved. The appellant failed to discharge the burden under Sections 107 and 108 of the Evidence Act.

Reasoning

The respondents held valid titles (3410-3413) derived from parcel 118 following due process, and PW1 and PW2 admitted parcel 118 borders parcel 1468. Without a clear, mathematically sound boundary survey mapping both parcels, encroachment could not be established.

p. 7
03

Weight of uncontradicted expert evidence

Holding

Expert evidence uncontradicted by another expert is not automatically binding; the court remains the ultimate adjudicator and may reject a deficient report.

Reasoning

Relying on Kimatu Mbuvi v Augustine Munyao, the court held a report may be rejected if illogical, based on incomplete data, omitting critical variables, or where credibility is shaken in cross-examination. The respondents' lack of a counter-expert did not save the defective reports.

p. 5

Legal principles established

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  • A court is not bound to accept uncontradicted expert evidence; an expert report is advisory and may be rejected if illogical, based on incomplete data, or discredited in cross-examination.
  • A first appellate court must re-evaluate the entire evidence and draw its own conclusions while respecting the trial court's advantage of seeing and hearing witnesses.
  • An expert survey report lacking technical measurements, boundary offsets or acreage calculations lacks probative value.

Court orders

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  1. 1.The Appeal dated 27th October, 2023 is dismissed.
  2. 2.Each party shall bear their own costs of this appeal.
  3. 3.The trial court's judgment delivered on 26th September, 2023 in Ndhiwa MCELC Cause No. 7 of 2019 is upheld.

Authorities

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Legislation

  • Land Registration ActSection 18(2)
  • Civil Procedure ActSection 78
  • Evidence Act (Cap 80)Sections 107 and 108

Cases cited (4)

  • Dhalay v. Republic
    (1995-1998) EA

    Expert opinion evidence and its rebuttal (relied on by Appellant)

  • Ali Mohamed Sunkar v. Diamond Trust Bank Ltd
    [2011] eKLR

    Uncontradicted expert evidence should ordinarily be accepted (Appellant's submission)

  • Kimatu Mbuvi v. Augustine Munyao
    [2012] eKLR

    Court may reject an expert report that is illogical, incomplete or discredited in cross-examination

  • Selle v. Associated Motor Boat Co.
    [1968] EA 123

    Duty of first appellate court to re-evaluate evidence

On appeal from
Senior Principal Magistrate's Court at Ndhiwa
Ndhiwa MCELC Cause No. 7 of 2019
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure Act (appeal from magistrates' court to the Environment and Land Court)

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, "Peter Ogalo Nyabuche v Eliud Ojwang & 3 Others", Case Analysis (2026). ELC Land Appeal No. E016 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6209/eng@2026-09-21

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