Kevin Odhiambo Oduya v Martin Gwadho Obare

3. The Respondent denied the claim and filed a counterclaim. His case was that he was the legal administrator and beneficiary of the estate of his late grandfather, Amboro Tindi, and that land parcel number KARACHUONYO/KAMSER NYAKONGO/3006 (hereinafter “parcel 3006”) formed part of that estate. He alleged that the Appellant had encroached upon a portion of parcel 3006 by erecting a house and perimeter wall thereon and sought compensation of Kshs.400,000/=. 4. The two parcels are adjacent to each other, with an access road running between them. The dispute therefore principally concerned the position of the boundary between the two parcels and the consequent allegations of encroachment. 5. Upon hearing the parties, the learned trial Magistrate dismissed both the Appellant's claim and the Respondent's counterclaim. However, after dismissing the respective claims, the learned Magistrate directed the Land Registrar and County Surveyor to visit the disputed portions and establish the boundary between parcels 3006 and 3009. The court further directed the parties to share the costs of the exercise and allowed either party to move the court thereafter for further orders and/or directions. 6. The Appellant was dissatisfied with that decision and lodged the present appeal. The Appeal 7. The Memorandum of Appeal dated 29th December 2025 raises six grounds which, in substance, challenge the trial court's evaluation of the evidence, the alleged introduction of matters outside the pleadings, 2|Page HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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alleged bias, the exercise of jurisdiction after delivery of judgment, and the propriety of directing a boundary exercise after judgment. 8. The grounds may conveniently be considered under the following broad questions: a) Whether the Appellant's appeal and documents were improperly filed out of time; b) Whether the learned trial Magistrate erred in finding that the Appellant had not proved his claim; c) Whether the learned trial Magistrate erred by directing the Land Registrar and Surveyor to establish the boundary after dismissing the suit and counterclaim; d) Whether the learned trial Magistrate descended into the arena of conflict, introduced matters not pleaded, or exhibited bias; and e) What orders should issue on the appeal. Submissions 9. The Appellant filed Written Submissions dated 15th September 2026. He submitted that the trial court failed to properly consider his evidence and submissions and that the evidence established his entitlement to the orders sought. 10.The Appellant further submitted that parties are bound by their pleadings and that the trial court erred by introducing a boundary determination which, according to him, had not been sought by either party. He relied, inter alia, on Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR. 11.The Appellant also challenged the evidence of the surveyor called by the Respondent, contending that the survey did not cover the whole of the parcels and that the report was therefore of little probative value. 3|Page HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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12.Finally, the Appellant submitted that the trial court became functus officio upon delivery of its judgment and had no jurisdiction to undertake a further inquiry into the dispute or direct a survey after dismissing the suit. 13.The Respondent filed Written Submissions dated 16th September 2026. He submitted that the appeal lacked merit and that the trial court properly evaluated the evidence. He maintained that the central dispute was the location of the boundary between parcels 3006 and 3009 and that neither party had satisfactorily established the alleged encroachment. 14.The Respondent further submitted that the trial court's directions concerning the boundary were connected to the dispute placed before it and that the court had not made a substantive award in favour of either party. 15.The Respondent also relied upon sections 18 and 19 of the Land Registration Act, 2012, contending that the Land Registrar has the statutory mandate to ascertain and fix boundaries. 16.At the outset, the Respondent raised an objection concerning alleged non-compliance by the Appellant with timelines for filing and service of the Record of Appeal and Written Submissions. Duty of a First Appellate Court 17.This being a first appeal, this Court is required to reconsider and reevaluate the evidence that was placed before the trial court and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 4|Page HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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18.The principles applicable to a first appellate court were stated in Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123, where the Court held that an appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for the fact that it did not see or hear the witnesses. 19.The appellate court must therefore consider the entire evidence on record and determine whether the conclusions reached by the trial court were supported by the evidence and the applicable law. Filing of the Appeal and Documents 20.The Respondent submitted that the Appellant failed to comply with timelines relating to the Record of Appeal and Written Submissions and urged the Court to strike out the documents. 21.Section 79G of the Civil Procedure Act provides that: “Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.” 22.The present record shows that the judgment appealed from was delivered on 26th November 2025 and that the Memorandum of Appeal is dated 29th December 2025. However, the Respondent has placed before the Court an application seeking dismissal of the appeal on the basis of the statutory period under section 79G. 5|Page HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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23.The objection raised by the Respondent is mainly directed at the subsequent filing of the Record of Appeal and Written Submissions. The record further demonstrates that the Appellant's documents were before the Court and that the Respondent was afforded an opportunity to respond to them. 24.In the circumstances, and in the absence of sufficient material establishing that the appeal itself is incompetent for want of compliance with section 79G of the Civil Procedure Act, I decline to strike out the appeal on the basis of the objection raised. 25.I will therefore proceed to consider the appeal on its merits. i) Whether the Appellant Proved His Claim The Appellant's case before the trial court was founded on alleged interference and encroachment by the Respondent upon parcel 3009. The Appellant therefore bore the burden of establishing the facts upon which the relief of a permanent injunction was sought. 26.Sections 107 and 108 of the Evidence Act place the burden of proof upon the party who asserts the existence of a fact and require the party who wishes the court to believe in the existence of a fact to prove it. 27.The issue was therefore not merely whether parcel 3009 was registered in the name of the person on whose authority the Appellant instituted the proceedings. The Appellant also had to establish, on a balance of probabilities, that the Respondent had crossed or interfered with the boundary of that parcel. 28.The evidence before the trial court disclosed that the parties occupied adjoining parcels and that the precise position of the boundary was disputed. The Respondent alleged that the Appellant had encroached 6|Page HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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upon parcel 3006, while the Appellant maintained that the Respondent had interfered with parcel 3009. 29.The learned trial Magistrate considered the evidence of the surveyor called by the Respondent and found that the survey had not covered the whole of parcels 3006 and 3009. The court consequently found the surveyor's evidence and report to be of limited assistance in determining the disputed boundary. 30.I have independently considered that finding against the evidence placed before the trial court. In my view, the learned Magistrate was entitled to attach limited weight to a survey which, by the court's finding, did not comprehensively establish the relationship between the two parcels and the disputed portion. 31.More importantly, the Appellant did not place before the trial court sufficiently cogent evidence establishing the precise location of the common boundary and demonstrating that the Respondent had crossed it. 32.The fact that the proprietor of parcel 3009 held a title deed was not, by itself, sufficient to establish that the Respondent had encroached upon that parcel. The critical factual question was the location of the boundary on the ground. 33.The Appellant's case was therefore dependent upon proof of the boundary and the alleged encroachment. In the absence of satisfactory evidence establishing those facts, the trial court cannot be faulted for declining to issue the permanent injunction sought. 34.I accordingly find that the trial court was entitled, on the evidence before it, to conclude that the Appellant had not proved his claim on a balance of probabilities. 35.Ground one of the appeals therefore fails. 7|Page HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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Issue III: The Boundary Dispute and the Post-Judgment Directions 36.The more difficult question concerns the directions issued by the trial court after dismissing both the Appellant's claim and the Respondent's counterclaim. 37.The learned Magistrate directed the Land Registrar and County Surveyor to visit the disputed portions and establish the boundary between parcels 3006 and 3009. The court further directed that the report be filed in court and that either party would thereafter be at liberty to move the court for further orders and/or directions. 38.The Appellant contends that these directions amounted to a reopening of the dispute after judgment and were therefore contrary to the doctrine of functus officio. The Respondent, on the other hand, contends that the directions were merely consequential and intended to facilitate resolution of the boundary question. 39.The doctrine of functus officio gives effect to the principle of finality in litigation. In Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR, the Supreme Court explained the doctrine as a mechanism by which the law gives effect to finality, with a decision-maker generally exercising adjudicative power only once in relation to the same matter. The Court, while making reference to Daniel Malan Pretorius in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law” (2005) 122 SALJ 832, stated that: “The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decisionmaking powers may, as a general rule, exercise those powers only once 8|Page HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.” 40.The Court of Appeal in Telkom Kenya Limited v John O. Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 634 (KLR) similarly recognised functus officio as an enduring principle preventing the reopening of a matter after final determination, while recognising that the doctrine does not prohibit every form of engagement with a matter after judgment. 41.The Court in Telkom Kenya Limited (Supra) observed that: “It is apparent from the record that in ordering that certain materials be placed before him by way of affidavit long after judgment had been entered; the learned judge had the noblest and best of intentions in trying to give effect to the judgment of Mwera J. In doing so, however, he effectively re-opened the trial with the result of attempting to amend the judgment, which was not available to him. He had himself earlier acknowledged that his hands were tied and also noted that he could not amend the judgment as had been sought. The court's only recourse would have been to review the judgment and having refused to do so, it was rendered functus officio.” 42.The important distinction is therefore between consequential steps taken to give effect to a judgment and a substantive re-engagement with the dispute which has already been determined. 43.In the present case, the trial court had dismissed both the Appellant's claim and the Respondent's counterclaim. Having done so, there was no 9|Page HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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substantive relief remaining to be implemented concerning the alleged encroachment. 44.The subsequent direction that the Land Registrar and Surveyor determine the boundary, followed by a direction that the report be filed in the same court and that either party could thereafter seek “further orders and/or directions”, went beyond a merely consequential step in implementation of the judgment. 45.The direction contemplated a further factual inquiry into the very matter which had been central to the parties' substantive claims, namely, the position of the boundary and the consequent question of encroachment. 46.In my view, therefore, the learned Magistrate erred in retaining the matter for further orders after finally dismissing the respective claims. The Statutory Boundary-Determination Procedure 47.This conclusion is reinforced by the statutory framework governing boundaries of registered land. 48.Section 18(2) of the Land Registration Act, 2012 provides: “The Court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.” 49.Section 19(1) of the Act provides for the ascertainment and fixing of boundaries by the Land Registrar. The Registrar is required, where appropriate, to give notice to the owners and occupiers of adjoining land of the intention to ascertain and fix the boundary. 50.Section 19(2) further provides that, after giving persons appearing in the register an opportunity to be heard, the Registrar shall cause the precise 10 | P a g e HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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position of the boundaries in question to be defined by survey, file the necessary plan and make a note in the register that the boundaries have been fixed. 51.The statutory scheme therefore places the initial responsibility for fixing an unresolved boundary upon the Land Registrar, with the technical surveying function being undertaken through the statutory process. 52.In Azzuri Limited v Pink Properties Limited [2018] eKLR, the Court of Appeal considered a dispute involving adjoining registered parcels and allegations of encroachment, affirming the importance of the statutory mechanism for determining a general boundary and recognising the role of the Land Registrar in resolving such a dispute. 53.In George Kamau Macharia v Dexka Limited [2019] KEELC 4596 (KLR), the Environment and Land Court likewise emphasised that where the dispute is one concerning the position of a general boundary, the statutory process before the Land Registrar should be undertaken in the first instance. In particular, the Court stated: “From the above provisions of the law, it is manifestly clear that the above section gives the mandate to the Land Registrar to resolve boundary disputes of land with general boundaries. Registry Index Map (RIM) only indicates approximate boundaries and the approximate situation on the ground. Even if this Court was to hear and determine this matter it will still require the input of the Land Registrar. The framers of section 18(2) of the Land Registration Act placed this matter before the Land Registrar who has the technical advice and resources of the District Surveyor to determine and ascertain the boundaries. It is trite law that where the law has given a legal obligation to a 11 | P a g e HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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department of Government, it is important for the Court to let that department proceed to meet its legal obligations. In this case the office of the Land Registrar is mandated to deal with the general boundary dispute first before the same is escalated to the Court. It is the view of this Court that the dispute is prematurely before the Court.” 54.The significance of those provisions and authorities in the present appeal is that the trial court was correct to recognise that the boundary could not properly be assumed in favour of either party where the evidence was inconclusive. However, the proper consequence was not to dismiss the substantive claims and thereafter retain the matter for a further boundary inquiry within the same proceedings. 55.If the parties' dispute remained an unresolved boundary dispute, the appropriate statutory avenue was for the parties to invoke sections 18 and 19 of the Land Registration Act before the Land Registrar. 56.The Land Registrar's determination, once undertaken in accordance with the statute, would then provide the parties with the appropriate factual and administrative foundation upon which any further proceedings, if necessary and permissible in law, could be instituted. 57.It follows that the learned trial Magistrate fell into error in directing the post-judgment boundary exercise and, more particularly, in retaining the matter for further orders after the substantive claims had been dismissed. 58.Ground four of the appeal therefore succeeds to that limited extent. i) Whether the Trial Court Introduced Matters Not Pleaded 12 | P a g e HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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The Appellant also contends that the trial court introduced a new matter by directing that the boundary be established. 59.The general principle is that parties are bound by their pleadings. As celebrated in East African civil procedure, courts must decide cases based on the issues raised in the pleadings, as parties are tied down to their pleaded case. This principle has been consistently underscored by the Supreme Court of Uganda and the Court of Appeal for East Africa in landmark authorities such as Odd Jobs v. Mubembe [1970] EA 476 and Interfreight Forwarders (U) Ltd v. EADB [1993–1995] HCB 162, where it was firmly established that a court cannot base its decision on unpleaded matters or grant reliefs that were never sought by the parties, unless the unpleaded issue was left to be decided by the court through the express or implied conduct of the litigants during the trial. Similarly, Kenyan jurisprudence echoes this stance (Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] KECA 890 (KLR)). 60.In the present case, however, the existence of a boundary dispute was not a matter invented by the trial court. The Respondent's counterclaim expressly alleged that the Appellant had occupied a portion of parcel 3006. The Appellant, conversely, alleged interference with parcel 3009. 61.The position of the boundary was therefore necessarily implicated by the pleadings and evidence. 62.The error committed by the trial court was not that it identified the boundary as a relevant factual issue. The error was in proceeding, after dismissal of the parties' claims, to direct a further boundary determination and retain the matter for subsequent orders. 63.Ground two of the appeal therefore succeeds only to that limited extent. 13 | P a g e HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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Alleged Bias 64.The Appellant alleged that the learned Magistrate displayed open bias in favour of the Respondent. 65.An allegation of judicial bias is a serious and heavy imputation that cannot be sustained merely on the basis of judicial adverse rulings, disgruntlement, or generalized dissatisfaction with a court's findings. The established test across East African jurisprudence is whether a reasonable, fair-minded, and informed observer, having considered the relevant facts, would entertain a reasonable apprehension of bias (Republic v Karisa Chengo & 2 Others [2017] eKLR; Hassan Ali Joho v Suleiman Said Shahbal & 2 Others [2018] eKLR). 66.Comparative jurisprudence from sister jurisdictions similarly underscores that the threshold for proving bias requires cogent, compelling evidence demonstrating a real likelihood or appearance of prejudice rather than mere suspicion or speculation (Katabazi & 2 Others v Secretary General of the East African Community, East African Court of Justice; Attorney General v David Tinyefuza, Supreme Court of Uganda [1997] UGSC; Juma v Republic, Court of Appeal of Tanzania). Actual or apparent bias must originate from external or improper influences affecting the impartiality of the adjudicator, rather than from the logical outcomes of judicial evaluation. 67.In the present case, the learned Magistrate did not enter judgment in favour of the Respondent on his counterclaim; rather, the Respondent's counterclaim was also dismissed for want of sufficient proof. The neutral application of evidentiary standards against both opposing parties demonstrates an even-handed approach. The fact that the court reached conclusions adverse to the Appellant does not establish bias. 14 | P a g e HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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There is nothing on record indicative of any predisposition, predetermination, or conduct denying the Appellant a fair hearing. 68.The allegation of bias is therefore unproved. Grounds three and six of the appeal consequently fail. i) Whether the Trial Court Descended into the Arena of Conflict 69.The Appellant further contends that the learned Magistrate descended into the arena of conflict by directing an investigation after the parties had concluded their cases. 70.A court is required to remain an impartial adjudicator and determine the dispute on the basis of the issues placed before it and the evidence properly adduced by the parties. The court is not permitted to assume the role of a litigant and investigate evidence in order to make a case for either side. 71.The classic, timeless warning against a judge or magistrate descending into the arena of conflict was famously articulated by Lord Denning in his seminal extra-judicial reflections and judicial pronouncements, including in Jones v National Coal Board [1957] 2 QB 55 and elaborated in his celebrated work The Due Process of Law (London: Butterworths, 1980, pp. 75–77), where he wrote: “In England, a judge is not a mere umpire to answer the question 'How's that?' His object, above all, is to find out the truth, and to do justice according to law... But he must do it in open court, upon evidence adduced by the parties... If a judge should himself conduct the examination of witnesses, 'he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict'... If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well.” 15 | P a g e HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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72.This foundational doctrine has been repeatedly adopted and applied across East African courts to deprecate judicial overreach and safeguard the impartiality of trials (Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR; National Insurance Corporation v Madhvani [1975] EA 168; Kigongo v Attorney General, Supreme Court of Uganda; Mbarak v Republic, Court of Appeal of Tanzania). When a judge or magistrate steps down from the bench to actively investigate facts or generate evidence to cure evidentiary gaps left by the litigants, they forfeit their primary duty of detached neutrality. 73.In the present case, the learned Magistrate was confronted with an evidentiary gap concerning the precise position of the boundary. The court was entitled to recognise that the evidence did not establish the boundary. What the court could not properly do, after dismissing the claims, was to embark upon a further process which could potentially generate evidence relevant to a substantive determination already concluded. 74.The proper statutory mechanism for resolving the unresolved boundary was available under sections 18 and 19 of the Land Registration Act. 75.The direction therefore cannot stand, although the identification of the boundary as the central factual controversy was not itself an error. Final Determination. 76.Having reconsidered and re-evaluated the evidence and the applicable law, I arrive at the following conclusions: 16 | P a g e HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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a) The dismissal of the Appellant's substantive claim was properly founded on the evidence. b) The issue of the boundary was properly recognised as arising from the pleadings and evidence. c) However, the learned trial Magistrate erred by directing the Land Registrar and Surveyor to determine the boundary after dismissing the substantive claims and by retaining the matter for further orders. 77.The determination of an unresolved registered boundary should be undertaken in accordance with sections 18 and 19 of the Land Registration Act, 2012, and the parties remain at liberty to pursue the statutory boundary-determination process before the Land Registrar in accordance with the law. 78.Consequently, the appeal succeeds in part. Orders Accordingly, I make the following orders: 1. The appeal is allowed in part. 2. The finding of the learned Senior Principal Magistrate dismissing the Appellant's claim in Kendu Bay CMELC No. E039 of 2025 is upheld. 3. The dismissal of the Respondent's counterclaim is upheld. 4. The directions issued by the learned Senior Principal Magistrate requiring the Land Registrar and County Surveyor to visit the disputed parcels, file a report in the trial court, and thereafter permitting either party to move that court for further orders and/or directions are set aside. 17 | P a g e HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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5. The parties shall be at liberty, if so advised, to invoke the statutory procedure for determination and fixing of the boundary between KARACHUONYO/KAMSER NYAKONGO/3006 and KARACHUONYO/KAMSER NYAKONGO/3009 before the Land Registrar in accordance with sections 18 and 19 of the Land Registration Act, 2012. 6. In view of the mixed outcome of the appeal, each party shall bear his own costs of the appeal. 79.It is so ordered. 80.Lower court file to be returned 81.File closed Dated, signed, and delivered virtually at Homa Bay this 7 th day of October, 2026. JUSTICE J.W WANYONYI - JUDGE ENVIRONMENT AND LAND COURT AT HOMA BAY In the presence of: 1. Olonde for the Appellant 2. Ochieng for the Respondent 3. Court Assistant 18 | P a g e HOMA BAY ELC APPEAL NO 44 OF 2025 – JUDGMENT

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