Alego v Jaoko & another (Environment and Land Appeal E012 of 2024) [2025] KEELC 8321 (KLR) (27 November 2025) (Judgment)
Neutral citation:
[2025] KEELC 8321 (KLR)
Republic of Kenya
Environment and Land Appeal E012 of 2024
AE Dena, J
November 27, 2025
Between
Mathews Ajuma Alego
Appellant
and
Charles Odeyo Jaoko
1st Respondent
Land Registrar Bondo
2nd Respondent
Judgment
Introduction
1.This Appeal arises from the judgement of Honourable J.P. Nandi Senior Principal magistrate delivered at Bondo Magistrate’s Court on 27th October 2023 in Bondo MCELC case Number 7 of 2019. The appellant was the defendant in the trial court.
2.The suit in the trial court was commenced by way of plaint dated 28/01/2019 which was later amended on 17/06/2020 (see pages 127 -128 of the Record of Appeal). The plaintiffs main claim was that the 1st defendant had illegally encroached into parcel No. South Sakwa/Barkowino/5471 belonging to the plaintiff and converted the same denying him peaceful possession and use. Further that the 1st defendant in collusion with the Land Registrar Bondo had illegally created an access road thereof.
3.Consequently, the plaintiff who is the respondent in this appeal sought the following verbatim prayers; -1.Permanent injunction restraining the Defendant either by themselves or their servants, Employees, Agents or any other person acting for them or on their behalf from transferring, selling, exchanging, disposing of or dealing in the suit property in any other manner whatsoever with the parcel of land known as Land Parcel No. South-Sakwa/Barkowino/5741;2.The 2nd Defendant be compelled to visit the suit property and demarcate its boundaries in the presence of the Police Officer in Charge of Bondo Police Station;3.General damages; and,4.Costs of the Suit.
4.The suit was defended through the 1st defendants Statement of Defence dated 2nd April 2019 (see page 22-23 of the record of appeal). The 1st defendant denied the averments in the plaint as to trespass and alleged that the plaintiffs and 1st defendants parcels share a common boundary on one side. However, there was some shoddy subdivisions in the year 2011 leading to a boundary dispute between the plaintiff and 1st defendant due to the formers effort to create access to his land by hiving off part of the 1st defendants parcel.
5.The 2nd defendant did not participate in the proceedings.
6.After hearing the parties the Learned trial Magistrate retired to write his judgment and upheld the plaintiffs claim by granting the prayers sought.
7.Aggrieved by the decision the Appellant has raised 11 grounds of appeal as follows; -a.The learned Magistrate erred in law in entertaining the claim by the 1" Respondent when Such jurisdiction was reserved for the land Registrar as provided for under section 18 and 19 of the Land Registration Act.b.The learned Magistrate erred in law and fact in holding under paragraph 12 of the judgment that the 1 Respondent herein failed to prove that the Appellant had encroached on suit land parcel South-Sakwa/Barkowino/5741 but in paradox still went ahead to enter judgment in favor of the 1st Respondent and awarded general damages for trespass.c.The learned Magistrate erred in law and fact by unilaterally placing reliance in the report presented by PW7 alone when in fact there were final Survey reports produced in court by the Bondo District Registrar (PW8) and the Bondo District Surveyor (PW9) who were both Plaintiff witnesses but confirmed to court that the Appellant had neither trespassed nor encroached on the Suit land.d.The learned Magistrate erred in law and fact in discrediting the District Lands Registrar's Report when in fact it is the Registrar who is principally mandated by sections 18 and 19 of the Lands Registration Act to affix boundaries in dispute with the help of a government Surveyor. In this regard, the Magistrate unlawfully impeached the District Registrar and unlawfully bestowed the duty on the county surveyor for reasons unknown.e.The learned Magistrate erred in law and fact in discrediting and striking out the District Lands Registrar's Report and the District Lands Surveyor's Reports when in fact Prayer (b) of the Plaint sought for orders to the effect that the Registrar of lands should visit the ground and demarcate the suit land's boundary; which prayer they already discharged even before the hearing of this matter.f.The learned Magistrate erred in law and fact by failing to judiciously interrogate the two sets of reports by Government officers to infer that they had seriously conflicting outcomes/findings given there was no uniformity in the scope of work, source documents used and number of neighboring parcels surveyed. The two diametrically inconsistent reports automatically diminished the courts confidence in the two exercises but the magistrate still casually placed reliance on the report favoring the Plaintiff but dismissing the one disfavoring him, which act constituted an unjustified gamble with the dispensation of justice.g.The learned Magistrate erred in law and fact under paragraph 15 of the judgment by shifting the burden of proof to the Appellant by holding that the Appellant ought to have had his own Survey report yet it was solely the duty of the 1 Respondent/Plaintiff to prove his allegations by bringing a watertight case and survey reports.h.The learned Magistrate erred in law and in fact by agreeing with the Plaintiff's submission that given the Bondo Registrar is based in Bondo and had been cited as 2nd Defendant his report could not be trusted yet it is the same 1st Respondent who not only funded their survey exercise but also converted and called them as his witnesses PW8 and PW9.i.The learned Magistrate erred in law and fact by striking out the Appellants written submissions for late filing without establishing whether the 1st Respondent indeed served him with the Plaintiff's submission in time to inspire a response. In any event the Plaintiff's compliance with service was impossible to establish given the Magistrate procedurally erred in issuing a straight judgment date instead of mention date to confirm filing of Submissions pursuant to his Directions.j.The learned Magistrate erred in law and fact by awarding the 1st Respondent General Damages of Ksh.100, 000 for trespass without first setting out the measure, special facts and circumstance of the case if, any, that guided him in the assessment so as to arrive at such an award.k.The learned Magistrate erred in law by departing from the well-known doctrine of precedent and disregarding binding precedent from the superior courts as regards the matters before him.
8.On the above basis it is proposed thati.This appeal be and is hereby allowed.ii.The judgment and resultant Decree of Hon.j.p. Nandi (MR) Senior Principal Magistrate delivered at Bondo PM court on 27th October 2023 in MCELC case Number 7 of 2019 be and is hereby set aside.iiiThe suite by the 1st Respondent in the lower court be and is hereby dismissed with costs.ivThe costs of this Appeal be and are hereby awarded to the Appellant.
Submissions
The appellant Submissions
9.The appellants submissions are dated 25/3/2025. The submissions condensed the 11 grounds of appeal into 3 summarized as follows;-
Whether the 1st defendant has encroached on the plaintiffs parcel and created an access road in it;
10.The above encompassed grounds 1-6 and 8 of the appeal. The appellant submits that the District Land Registrar (PW9) and District Lands Surveyor Bondo (PW8) presented their reports under oath and adequately guided the trial court that the appellant had neither trespassed nor blocked a road to the suit property South-Sakwa/Barkowino/5741 accordingly determining the boundary dispute as envisaged under the provisions of section 18 and 19 of the Land Registration Act.
11.It is contended that being a boundary issue as depicted under prayer 2 of the plaint, the trial court lacked jurisdiction to have entertained it. That the boundary issue was not determined by the relevant land registrar before filing the claim in court. That the trial court turned a blind eye to the provisions of section 18 and 19 of the Land Registration Act. Reliance is placed in the case of Kisumu ELC Petition No.3 of 2019 Lucy Agape Wayodi Vs. Kenya National Highways Authority and 2 Others quoted with approval Ali Farah Vs. Moses Moses Ole Nasisit 79 Others (2016) EKLR.
12.That the above was ‘cured’ where PW9 was also joined in the amended plaint as the 2nd defendant and discharged prayer 2 on 18/8/21 thereof pursuant to the orders of the court. PW9 having absolved the 1st defendant, the plaintiffs suit ought to have been dismissed with costs. The trial court went contrary to the expert witnesses who were also the statutory authorities on boundary disputes.
13.It is contended that the report dated 2/2/2021 prepared by PW7 the survey was conducted using a mutation form and did not involve neighboring parcels and was inconclusive. That the trial court ordered a 2nd survey which effectively automatically nullified PW7 report as not being useful to the court. However, the trial court again relied on the same report by PW7 and ignored PW8 and PW9 report on the basis that the County Land Surveyor did not participate. That the later reasoning was not justified if read together with prayer 2 of the plaint as it is what PW8 and PW9 enforced pursuant to the law and within their territorial jurisdiction.
14.It is stated that indeed the plaintiff paid for the survey under PW8 & 9 which payment the court sanctioned. The parties participated without objection during the survey. The absence of the County Surveyor was inconsequential. The court is urged to find fortitude in PW8 and PW9 report and allow the appeal or alternatively order for a retrial in view of the very many irregularities surrounding the lower court case.
Respondent Submissions
15.The 1st respondents’ submissions are dated 25/4/2025 and identified 5 issues for determination summarized as follows;-
Whether or not the Land Registrar made a determination on the Suit Property before the matter was handled by the Lower Court;
16.It is submitted that there is already a determination by the Land Registrar with respect to the Suit Property vide the letter dated 13 February 2023 pursuant to a court order dated 18/08/2021 by the trial court. The findings thereto are rehashed. The Registrar asserted that this is a land claim which can only be determined by the court. That the Land Registrar cannot re – determine the matter again and having rendered its decision.
17.The lower court only proceeded to render its determination after the Land Registrar made his determination. This was under Section 13(2)(a) of the Environment and Land Court which also empowers the court to handle disputes involving boundaries.
Whether the trial court was bound to consider the submissions filed by the Appellant in rendering its determination;
18.It is submitted that the Appellant cannot seek the aid of this court yet there was indolence on his part. That the court decides cases on the issues before it based on the law and the merits of the case. That submissions cannot take the place of evidence. Reliance is placed on the case of Lapana Limited v County Government of Trans-Nzoia (Environment & Land Case 8 of 2023) [2024] KEELC 881 (KLR) (23 February 2024) (Ruling) and The Court of Appeal in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR.
Whether or not the 1st Respondent is the owner of land under parcel no. South Sakwa/Barkowino/5741 (“Suit Property”);
19.It is asserted that it was not in dispute that South Sakwa/Barkowino/5741, belonged to the plaintiff and exists both on the ground and within government records. That Since all parties agree and the court found that the Suit Property, belong to the 1st Respondent, the award of a permanent injunction against the Appellant and the 2nd Respondent herein was justifiable and proper.
What is the shape, size, location and extent of encroachment of the Suit Property;
20.The trial court noted the biasness of the Land Registrar Bondo who was the 2nd Defendant in the suit at the trial court. Furthermore, the Land Registrar Bondo did not even file a defense in the suit. Using an illustration of the extent of encroachment by the Appellant on the 1st Respondent’s land extracted from the report of the Sub – County Surveyor dated 6 February 2023 it is submitted that the decision of the trial court clearly remedied the illegalities committed by the Defendants (the Appellant and 2nd Respondent herein) by:(a)providing access to the 1st Respondent who would have been otherwise landlocked; and(b)undoing the massive encroachment on the 1st Respondent’s land which should measure approximately 0.05HA
Whether the award of general damages and cost was merited;
21.It is urged that the award of general damages and costs are matters of discretion. An appellate court should not interfere with the trial courts’ discretion unless it is found that the trial court applied wrong principles in arriving at the finding. The court is referred to the Court appeal holding in the case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini vs A M. Lubia and olive Lubia (1985) 1 KLR 727.
22.It is submitted that any injury or loss suffered by a person either through a tortious act, omission or breach of contract, attracts redress in a court of law. The redress includes an award of damages to the extent possible as may be determined by the court. That the award of Kshs.100,000 was not inordinately high. Reference is made to the cases of Duncan Nderitu Ndegwa versus KP & LC Limited & Another (2013) eKLR and Kamoye v Tipango & 2 others (Environment & Land Case E011 of 2023) [2024] KEELC 4227 (KLR) (14 May 2024) (Judgment), where awards of Kshs. 100,000 and 200,000 were made respectively.
Whether this honourable court should strike out the appeal on the basis of an incomplete record of appeal.
23.Citing several decisions including the court of appeal in Paul Murunga T/A Splinter Tours & Travel v J. N. Wafubwa T/A Red Impex General Services [2001] KECA 312 (KLR), Supreme Court of Kenya in the case of Bwana Mohamed Bwana v Silvano Buko Bonayo & Others [2015]eKLR and the High Court in Mololu v Kimetto (Civil Appeal 54 of 2022) [2024] KEHC 5422 (KLR) (3 May 2024) (Judgment), where an incomplete record of appeal caused the appeal to be dismissed it was submitted the same fate should befall the instant appeal since it failed to adhere to the set rules in the preparation and filing of a record of appeal.
24.On the issue of costs, it is urged that costs follow the event. The 1st Respondent was successful in the trial court and as consequence costs were warranted.
Analysis And Determination
25.I have examined and considered the full record of the trial court; the grounds of appeal; and the parties’ respective submissions together with the issues they identified. I have also considered the relevant legal frameworks and the prevailing jurisprudence on the issues falling for determination in this appeal. In my view, the following are the issues that fall for determination in this appeal;1.Whether the trial court had jurisdiction to determine the claim2.Whether the trial court erred in law and in fact by placing reliance in the report dated 19/2/2021.3.Whether this honourable court should strike out the appeal on the basis of an incomplete record of appeal.4.What orders should issue as to disposal of this appeal and as to costs of the appeal.
Whether the trial court had jurisdiction to determine the claim.
26.This objection is premised on the provisions of section 18 and 19 of the Land Registration Act which are stated to have been ignored by trial court.
27.Sections 18 and 19 of the Land Registration Act deals with boundaries. These provisions have been a subject of many judicial pronouncements as follows;-
28.The Court of Appeal Case of Estate Sonrisa Ltd & another v Samuel Kamau Macharia & 2 others [2020] eKLR, the court stated thus;
29.The Court of appeal further stated thus;-
30.In Azzuri Limited v Pink Properties Limited [2018] eKLR, which has been the court stated as follows in relation to the application of Section 18 of the Land Registration Act;
31.Did the trial court ignore the provisions of section 18 and 19 as alleged is the question I must address. The plaintiff decree holder is of the view that the Land Registrar made a determination on the Suit Property first and the trial court made its determination after and rightly so under the provisions of section 13 of the Environment and Land Court Act. The determination by the Land Registrar is stated to be vide the letter dated 13 February 2023 pursuant to a court order dated 18/08/2021.
32.I think for me the question that emerges from this ground is whether this is a boundary dispute in the strict sense. To determine this I do not think the pleadings perse would be sufficient. The court has to look at the totality of the entire suit. It is not enough to peg the matter to prayer No. 2 of the plaint where the plaintiff seeks an order for the 2nd defendant to go and demarcate the boundaries of the suit property. Prayer Number 1 of the plaint is also material in the sense that the plaintiff states that the defendant has entered his land and built structures therein and was infact negotiating a sale of the land. I have looked at the prayers in the amended plaint and I agree that this is a land claim and not in the strict sense a boundary dispute. What the Plaintiff was claiming is that a whole 0.003Ha has been ‘excised’ off his land by the 1st defendant. The title deed for parcel 5741 produced in evidence shows that 5741 is 0.05 Ha and therefore the variance of 0.003 Ha is too big to be a simple boundary dispute.
33.In my view the trial court was seized of jurisdiction to handle the dispute as this dispute is beyond a boundary dispute which mutated into a land claim.
Whether the trial court erred in law and in fact by placing reliance in the report dated 19/2/2021.
34.I think the major contest in this appeal lies in Ground No. C hereinabove of the Grounds of appeal in the Memorandum of Appeal. This is, that the trial court erred in law and fact by unilaterally placing reliance in the report presented by PW7 alone when in fact there were final Survey reports produced in court by the Bondo District Registrar (PW8) and the Bondo District Surveyor (PW9) who were both the Plaintiffs witnesses but confirmed to court that the Appellant had neither trespassed nor encroached on the Suit land.
35.I find it imperative at this juncture to lay out the sequence of events that culminated into the preparation of the reports above. The record of proceedings reveals that the first survey report is dated 19/2/2021 by the land registrar Siaya which was presented by the Deputy Siaya County Surveyor. This was pursuant to the leave of the court upon the request of Mr. Otieno counsel for the plaintiff on 15/10/2020 (see page 186 of the Record of Appeal) for the County Surveyor to visit the parcel No. South Sakwa/Barkowino/5471 and ascertain the location of beacons and boundaries and acreage and if anyone has encroached on the same.
36.On 13/05/2021 PW7 was cross examined on the above report which was produced as PEx 17 and upon cross examination by Mr. Lawi for the 1st defendant, his recommendation was that the maps should be corrected to reflect the true position on the ground and resurvey the parcel on the ground.
37.The trial court then ordered thus;-‘Given the last response by the surveyor that for the dispute to be able to resolve the surrounding parcels have to be resurveyed to reflect the true position on the ground, the County Surveyor Siaya County should revisit the area and re-survey the following parcels; -1.South Sakwa/Barkowino/5471, 5740,5584,5585 and 2696 and ascertain the acreage on the ground to what extend one has encroached into the other and establish the access road on the ground.The Bondo District Lands registrar and surveyor be involved in this exercise. …..’
38.Consequently, the Survey reports dated 13/3/2023 and 6/2/2023 were prepared and produced in court by the Bondo District Registrar (PW8) and the Bondo District Surveyor (PW9). On cross examination the witness stated she did not do drawings on the discrepancies since they were not part of the order of the court and that the order was specific that they visit parcel 5741. She further stated that mutation creating 5740 and 5741 had discrepancies though within permissible limit. That she did not deal with 5584 and she did not know its acreage. Further she did not mark the extent of the area of parcel 5741 that is fenced off. The access was leading to parcel 5741 and other neighboring parcels. The witness stated that there was possibility that the access road was erroneously on the map. That the ground is what tells the truth. She then recommended the resurvey.
39.In its judgement the trial court at paragraph 15 (see page 222 of the record of appeal) stated and held thus; -‘That the presence of the County Surveyor during the exercise was crucial to cushion any impartiality on the part of the 2nd defendant officer involved in the exercise. This leaves the report dated 2/2/2021 as the only report that can be relied on as the same has not been disputed or challenged by another report by the 1st defendant. The said report shows that the defendant has encroached on the plaintiffs land. There is no evidence on record showing the plaintiff has encroached on the 1st defendants land.’
40.I have already laid out events that led to the preparation of the three reports produced in evidence. I will revisit the evidence of PW7 Vitalis Night Abwao on 13/05/2021 (pages 192- 193). In his evidence in chief the witness testified that the mutation indicated the acreage as 0.004 Ha but on the ground it was 0.0125 Ha creating a discrepancy of 0.003 Ha. They concluded that the mutation to be used is the one that created parcel 5741 to reflect the true position and size of 5741.
41.Clearly a review of the entire testimony of PW7 shows a number of gaps in the report. A lot of information was not captured. There were no drawings of the disputed portion, no involvement of neighboring plots. This made the report questionable. Even the access road needed to be established as it appears to be central to the discourse. No wonder the trial court proceeded to order for the other reports to mitigate some of the gaps and for completeness while involving the other plots. I would have done the same thing as well.
42.The court notes that it emerged during the hearing that the County Surveyor did not participate in the exercise as directed by the trial court. Following this disclosure the trial court faulted the integrity of the two reports and reverted to the report presented by PW7. I think I will respectfully pose the question then how did the trial court fall back to the same report which did not stand the test of cross examination and made him order for another report?
43.Additionally, the court was faced with three reports that showed conflicting outcomes by the professionals with the later making a finding that there was no encroachment. There was no justification whatsoever to revert to the report and pick one in favor of the others. This was not a matter of discretion.
44.It is the finding of this court that the trial court erred for accepting the first survey report dated 19/2/2021 over the subsequent survey reports. The fact that the later reports was not prepared strictly in accordance with his directions, was not a sufficient reason to prefer the earlier report having found fault in it. What he should have done was to order appropriately.
Whether this honourable court should strike out the appeal on the basis of an incomplete record of appeal.
45.The court has further been invited to strike out the appeal on the basis of incompleteness of the record. The appellant did not respond to this issue. I have carefully perused the record of appeal and I have found it to be complete.
46.But the above notwithstanding such a default if it were so would not be fatal to the appeal considering that an appeal in the High court and Courts of equal status is initiated by a Memorandum of Appeal. This is a process which is distinct from the preparation and filing of the Record of Appeal. It is therefore means that even if the court were to struck out the Record of Appeal, the appeal cannot collapse, it shall remain intact. Moreover, the documents may still be found in the trial court file, otherwise it would not make sense why the same is availed to the court sitting on appeal.
47.I will comment briefly about the striking out of the appellants submissions. I respectfully agree that submissions do not take the place of evidence as demonstrated in the authorities cited and I will not reinvent the wheel.
48.I think I have said enough to demonstrate that the appeal partly succeeds based on the reasons I have already enumerated. The question that remains is the orders that should issue in view of the findings.
What orders should issue as to disposal of this appeal and as to costs of the appeal.
49.The duty of an appellate court is stipulated under Section 78 of the Civil Procedure Act which reads;-
50.In view of the findings of this court and guided by the foregoing provisions the following orders issue to dispose of this appeal;-i.This appeal be and is hereby allowed for the reasons givenii.The judgment and resultant Decree of Hon .j.p. Nandi (MR) Senior Principal Magistrate delivered at Bondo PM court on 27th October 2023 in MCELC case Number 7 of 2019 be and is hereby set aside.iii.The suit is remanded to the Magistrates Court at Bondo for a fresh hearing taking into account the findings of the court on the issue of the survey report.iv.The Costs of the appeal are awarded to the appellant.
JUDGMENT DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM IN THE PRESENCE OF:HON. JUSTICE A. E. DENAJUDGE27/11/2025Charles Jaoko the 1st defendantNo appearance for the rest of the partiesCourt assistant: Ishmael Orwa