Ogoma v Ogoma (Environment and Land Appeal E004 of 2023) [2024] KEELC 4240 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the instant appeal is tenable.
- 2.What just orders can be granted in this appeal to meet the ends of justice?
Key legal issues
#Whether the trial court rightly relied on the Land Registrar's report and Surveyor's report as evidence of encroachment
Yes - the reports were duly produced and the trial magistrate correctly exercised her discretion in adopting the uncontradicted expert opinion evidence.
The court noted that Sections 18 and 19 of the Land Registration Act empower the Land Registrar to fix boundaries. The Land Registrar's report of 3rd July 2018 was listed and duly produced in court, and the County Surveyor testified and produced his report, which found the appellant's home encroached onto the suit land. Expert opinion evidence under Sections 48-54 of the Evidence Act is to be weighed with other evidence; absent rebuttal expert evidence, the trial magistrate properly adopted it.
Whether the suit could proceed without the Estate of Priscah Obar Nyayoga, owner of LR No. 261, being a party
Yes - the evidence showed LR No. 261 was registered in the appellant's own name, and no leave to adduce additional evidence or application for review had been sought.
The respondent produced a green card showing the appellant as registered owner of parcel 261, and the appellant himself testified that the parcel was currently registered in his name. No evidence indicated otherwise. The appellant had not sought leave to introduce additional evidence under Section 78 of the Civil Procedure Act and Order 42 Rule 27, nor applied for review under Section 80 and Order 45.
Whether the trial magistrate erred in determining unpleaded issues
No - a court may base its decision on an unpleaded issue if the course of the trial shows the issue was left to it.
The court subscribed to Odd Jobs v Mubia, where the Court of Appeal for East Africa held that a court may determine an unpleaded issue if it appears from the course followed at the trial that the issue was left to the court for decision, citing also Vyas Industries v Diocese of Meru.
Whether the respondent proved ownership and encroachment at trial
Yes - the respondent proved lawful ownership of the suit land and the appellant's encroachment on a balance of probabilities.
The legal burden lay on the plaintiff who asserted the affirmative of the issue, and the standard was proof on a balance of probabilities. Considering the entire evidence, the respondent proved lawful ownership of the suit land, and expert evidence confirmed the appellant's encroachment. The trial magistrate's findings were therefore endorsed.
Legal principles established
#- A first appellate court may review the evidence of the trial court but must exercise that jurisdiction with caution.
- Expert (opinion) evidence is to be considered alongside the other evidence on record.
- A court may base its decision on an unpleaded issue if it appears from the course of the trial that the issue was left to the court for decision.
- The legal burden of proof lies on the party who asserts the affirmative of the issue; civil claims are proved on a balance of probabilities.
Court orders
#- 1.The appeal dated 16th January 2023 is dismissed.
- 2.Each party shall bear their own costs of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Homa Bay
- Environment and Land Case No. 35 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment (Court's power to review evidence of the trial court, per Peters v Sunday Post (1958) EA 424)
Relief refused
#Setting aside of the judgment, order and/or decree of the Chief Magistrate's Court at Homa Bay delivered on 24th November 2022
The court found the trial magistrate's judgment 'unfaulty at law' and upheld it in entirety.
Costs of the appeal to the appellant with interest
Owing to the relationship between the parties, each party was ordered to bear their own costs.
Costs
Each party shall bear their own costs of this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Wherefore, the instant appeal originated by way of a memorandum of appeal dated 16th January 2023 and duly filed on even date, be and is hereby dismissed.
owing to the nature of the relationship between the parties herein, each party shall bear own costs of this appeal.
the instant appeal being the first one from the trial court, I have the jurisdiction to review the evidence of the trial court in order to determine whether the conclusion originally reached upon that evidence should stand. However, this is a jurisdiction which should be exercised with caution
Expert evidence is a piece of evidence to be considered alongside other evidence on record
I find the report to be prima facie evidence of the alleged encroachment as there is no expert evidence to contradict it
a court may base its decision on an unpleaded issue, if it appears from the course followed at the trial that the issue has been left to the court for decision
Issues in the judgment
#The judgment refers to 'Sections 18 and 19 of the Land Registration Act 2016 (2012)', an internally inconsistent citation of the Act's year.
The name of the plaintiff/respondent is nowhere given in the judgment; the parties are referred to only as the plaintiff/respondent and defendant/appellant.
There is a typographical omission in the sentence addressing the fair-hearing ground.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogoma v Ogoma (Environment and Land Appeal E004 of 2023) [2024] KEELC 4240 (KLR)", Case Analysis (2024). Environment and Land Case No. 35 of 2019 (appeal memorandum dated 16th January 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4240/eng@2024-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.