keelc-2026-06209

parcel Kanyamwa/Kayambo/Kwamo/1468. Being aggrieved by the trial magistrate's decision, the Appellant filed this appeal. II. PLEADINGS BEFORE THE TRIAL COURT a) The Appellant’s Case (Plaint dated 13th February, 2019): The Appellant pleaded that he is the registered sole proprietor of land parcel Kanyamwa/Kayambo/Kwamo/1468 measuring approximately 0.33 Ha. He alleged that on diverse unknown dates, the Respondents unlawfully trespassed onto his parcel by erecting houses and cultivating thereon without his permission or authority, praying for an order of eviction, demolition, permanent injunction, and costs. b) The Respondents’ Case (Defences & Statements): i) 1st Respondent (Eliud Ojwang): Filed a defence denying the plaint and averring that he occupies parcel 3412 measuring 50 ft×100 ft, which he lawfully purchased from Tobias Nyabuche. ii) 2nd Respondent (Paul Onyango Chimba): Denied trespass and pleaded that he lawfully registered and occupies parcel 3413 measuring 0.06 Ha, bought from Margaret Nyabuche out of parcel 118. iii) 3rd Respondent (Rose Atieno Odhiambo): Denied the suit, asserting she lawfully purchased 25 ft×100 ft from parcel 118 from Margaret Atieno Nyabuche and Tobias Owino, culminating in title parcel 3410. iv) 4th Respondent (Monica Anyango Awuonda): Denied trespass and contended she owns and occupies parcel 3411 measuring 0.04 Ha, derived from parcel 118 bought from Margaret Nyabuche and Aloyce Obat. 2|Page HOMA BAY ELC LAND APPEAL NO. E016 OF 2023, JUDGMENT

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III. EVIDENCE AT TRIAL i) Appellant’s Evidence: PW1 (Peter Ogalo Nyabuche) reasserted ownership of parcel 1468, testifying that his title deed initially indicated Registry Map Sheet No. 42, which was later rectified by the Land Registrar to Sheet No. 40. PW2 (Esther Akech Nyabuche) confirmed parcel 1468 was allocated to the Appellant while parcel 118 belonged to Margaret Nyabuche. PW3 (Tiberius Ndege - Land Registrar) produced PExh 2 following a court-ordered site visit, conceding on cross-examination that they did not take statements from all defendants, did not measure/identify the respondents' parcels (3410–3413) or parcel 118, and could not explain the map sheet amendment process. PW4 (Caleb Onyango - County Surveyor) produced PExh 3, stating subdivisions of parcel 118 sat inside parcel 1468, though he admitted on cross-examination that he did not include parcel measurements, omitted the 4-meter road, and did not measure parcel 118. ii) Respondents’ Evidence: DW1, DW2, DW5, and DW6 testified and produced sale agreements, Land Control Board consents, transfers, official searches, and title deeds for parcels 3412, 3413, 3410, and 3411, maintaining they occupied specific portions handed over after physical survey by a government surveyor (Tom). DW3 and DW4 confirmed selling portions of parcel 118 to the Respondents after succession. IV. FINDINGS OF THE TRIAL MAGISTRATE 3. The trial court found that the Appellant is the registered owner of parcel 1468 (0.33 Ha) and that parcel 118 (0.20 Ha) was validly subdivided into parcels 3410, 3411, 3412, and 3413 owned by the Respondents. The trial court dismissed the Appellant's suit, finding that he failed to 3|Page HOMA BAY ELC LAND APPEAL NO. E016 OF 2023, JUDGMENT prove

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trespass/encroachment on a balance of probabilities. In rejecting the joint Land Registrar and Surveyor reports (PExh 2 & 3), the magistrate observed that the officers failed to give all Respondents an opportunity to give statements, isolated parcel 1468 without measuring neighbouring parcels (3410–3413 and 118), omitted actual measurements and roads, and created ground confusion via the unilateral modification of the Registry Map Sheet from Sheet No. 42 to Sheet No. 40. V. GROUNDS OF APPEAL 4. The Appellant raised 12 grounds in his Memorandum of Appeal, summarized into three core themes: rejection of the expert report, imposition of extra conditions beyond the scope of the court order, and weight of evidence/burden of proof regarding encroachment. VI. SUBMISSIONS OF THE PARTIES i) Appellant’s Submissions: Argued that under Section 18(2) of the Land Registration Act, boundary determinations by the Land Registrar and Surveyor are central. Relying on Dhalay v. Republic (1995-1998) EA and Ali Mohamed Sunkar v. Diamond Trust Bank Ltd [2011] eKLR, the Appellant asserted that expert opinion/reports can only be rebutted by a counter-expert report, and since the Respondents called no expert witness, the court was bound by the surveyor's finding of encroachment. ii) Respondents’ Submissions: Argued that they acquired valid title deeds (3410– 3413) out of parcel 118 following due process. They contended that the trial magistrate properly evaluated the evidence and rightly rejected a defective survey report that failed to verify ground boundaries, measurements, or parcel 118. 4|Page HOMA BAY ELC LAND APPEAL NO. E016 OF 2023, JUDGMENT

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VII. ISSUES FOR DETERMINATION 1. Whether the trial magistrate was justified in rejecting the report and evidence of the Land Registrar and County Surveyor. 2. Whether the Appellant proved encroachment/trespass onto land parcel Kanyamwa/Kayambo/Kwamo/1468 on a balance of probabilities. 3. What orders ought to issue regarding costs. VIII. ANALYSIS AND THE LAW 1. Duty of First Appellate Court 5. As a first appellate court, this Court is duty-bound under Section 78 of the Civil Procedure Act to re-evaluate, re-examine, and re-analyze the entire evidence on record to draw its own independent conclusions, while bearing in mind that the trial magistrate had the advantage of seeing and hearing the witnesses firsthand (Selle v. Associated Motor Boat Co. [1968] EA 123). 2. Evaluation of the Surveyor's and Land Registrar's Report (Incorporating Counsel Submissions) 6. The central question in this appeal is whether it was right for the trial magistrate to ignore/reject the surveyor's and land registrar's report. 7. The Appellant heavily relied on the principle established in Ali Mohamed Sunkar v. Diamond Trust Bank Ltd that expert evidence, when uncontradicted by another expert, should ordinarily be accepted. However, it is an established principle of evidence law that a court is not a mere rubber stamp of expert testimony; an expert report is advisory, and the court remains the ultimate adjudicator of fact and law. As affirmed in Kimatu Mbuvi v. Augustine Munyao [2012] eKLR, a court may reject an expert report if the report is 5|Page HOMA BAY ELC LAND APPEAL NO. E016 OF 2023, JUDGMENT

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illogical, based on incomplete data, fails to account for critical variables, or if the expert's credibility is shaken during cross-examination. 8. A scrutiny of the proceedings reveals fundamental defects in the execution of the court order by the Land Registrar (PW3) and County Surveyor (PW4): i) Failure to Map Neighboring Parcels: The dispute was whether titles 3410– 3413 were physically inside parcel 1468 or on parcel 118. PW3 and PW4 admitted in cross-examination that they did not measure or locate parcel 118 on the ground, nor did they measure the actual extents of parcels 3410, 3411, 3412, and 3413. Identifying parcel 1468 without verifying parcel 118 rendered it impossible to conclusively determine if the Respondents were on parcel 1468 or on their own root parcel 118. ii) Absence of Quantitative Measurements: PW4 acknowledged that while he took field measurements, he omitted all dimensions and distances from his report and sketch map. An expert survey report without technical measurements, boundary offsets, or clear acreage calculations lacks probative value. iii)Unexplained Map Sheet Alteration: It emerged in evidence that parcel 1468 originally belonged to Registry Map Sheet No. 42, but was unilaterally amended in the register to Sheet No. 40 in 2020 without notice to adjacent landowners. Map Sheet No. 40 is the sheet governing parcel 118 and its subdivisions, and PW3 and PW4 could not offer a technical explanation for how this shift affected physical boundaries on the ground. 9. While the Respondents did not call a counter-expert witness as contended by the Appellant, the inherent flaws, omissions, and legal inadequacies exposed during cross-examination successfully rebutted the probative value of PExh 2 and PExh 3. Consequently, the trial magistrate was entirely justified in 6|Page HOMA BAY ELC LAND APPEAL NO. E016 OF 2023, JUDGMENT

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finding that the expert report was deficient, incomplete, and incapable of proving trespass. Grounding a judgment on an incomplete expert report that ignores adjacent physical boundaries would result in a miscarriage of justice. 3. Burden of Proof on Trespass 10.Under Sections 107 and 108 of the Evidence Act (Cap 80), the burden rested on the Appellant to prove that the Respondents trespassed onto parcel 1468. 11.As submitted by the Respondents, the evidence established that they acquired valid title deeds following a proper subdivision of parcel 118. PW1 and PW2 admitted that parcel 118 exists and borders parcel 1468. In the absence of a clear, mathematically sound boundary survey mapping both parcel 1468 and parcel 118, the Appellant failed to discharge the requisite standard of proof on a balance of probabilities. IX. CONCLUSION & ORDERS 12.The trial magistrate did not err in law or fact in rejecting the survey and land registrar reports, as the reports were fundamentally flawed, lacked crucial measurements, and failed to survey the boundary between parcel 1468 and parcel 118. The Appellant failed to prove his claim for eviction, demolition, and permanent injunction against the Respondents on a balance of probabilities. 13.Accordingly, the trial court's judgment delivered on 26th September, 2023 in Ndhiwa MCELC Cause No. 7 of 2019 is hereby upheld. DECREE: 7|Page HOMA BAY ELC LAND APPEAL NO. E016 OF 2023, JUDGMENT

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1. The Appeal dated 27th October, 2023 is hereby dismissed. 2. Each party shall bear their own costs of this appeal. DATED, SIGNED, AND DELIVERED AT HOMA BAY THIS 21ST DAY OF SEPTEMBER, 2026. JUSTICE J.W WANYONYI - JUDGE ENVIRONMENT & LAND COURT, HOMA BAY REPRESENTATION 1. M/s Ngani for Adoyo for the Appellant 2. M/s Sagwe for the Respondent – Present 3. Ms. Awino; Court Assistant 8|Page HOMA BAY ELC LAND APPEAL NO. E016 OF 2023, JUDGMENT

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