Alego v Jaoko & another (Environment and Land Appeal E012 of 2024) [2025] KEELC 8321 (KLR)
The bottom line
#Kenya's Environment and Land Court in Siaya threw out a trespass judgment because the magistrate wrongly relied on a flawed survey report after questioning it.
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 trial court had jurisdiction to determine the claim
- 2.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
Key legal issues
#Whether the trial court had jurisdiction over a claim said to be a boundary dispute reserved for the Land Registrar under sections 18 and 19 of the Land Registration Act
The trial court had jurisdiction because, viewed in its totality, the suit was a land claim (alleged excision of 0.003Ha from a 0.05Ha parcel, structures and threatened sale) and not strictly a boundary dispute.
The court held pleadings alone are insufficient; the totality of the suit must be examined. Prayer 2 sought demarcation, but prayer 1 alleged entry, structures and negotiation of sale. The title deed showed parcel 5741 measures 0.05Ha, so the variance of 0.003Ha was too big to be a simple boundary dispute. The dispute had mutated from a boundary issue into a land claim within the court's jurisdiction under section 13 of the Environment and Land Court Act.
Whether the trial court erred in relying on the first survey report dated 19/2/2021 despite having found gaps in it and ordered subsequent surveys
The trial court erred. Having found the PW7 report questionable and ordered further surveys, it could not revert to that report merely because the later reports deviated from its directions; conflicting reports could not be resolved by picking one.
PW7's cross-examination revealed gaps: no drawings, no neighbouring plots, the access road unestablished, prompting the court to order a resurvey involving the Registrar and Surveyor. The later reports found no encroachment, but were faulted because the County Surveyor did not participate. The appellate court held deviation from directions was insufficient reason to prefer the earlier flawed report; the trial court should have made appropriate orders instead. This was not a matter of discretion.
Whether the appeal should be struck out for an incomplete record of appeal
No. The record was complete, and in any event an appeal is initiated by a Memorandum of Appeal, so striking out the Record of Appeal would not collapse the appeal.
The court perused the record and found it complete. It further reasoned that even if there were default, striking out the record would not be fatal because the appeal, having been initiated by Memorandum of Appeal, remains intact and the documents remain in the trial court file. The court also agreed submissions do not replace evidence regarding the striking out of the appellant's submissions.
Legal principles established
#- Where pleadings and evidence show the dispute transcends a simple boundary dispute, the court is not divested of jurisdiction by sections 18 and 19 of the Land Registration Act; the question is whether this is a boundary dispute in the strict sense, assessed on the totality of the suit.
- A trial court that finds fault in an expert report and orders a further survey cannot thereafter revert to and rely on the very report it had found deficient; conflicting survey reports by professionals cannot be resolved by simply preferring one without justification.
- An appeal in the High Court and courts of equal status is initiated by a Memorandum of Appeal, distinct from the Record of Appeal; striking out the Record does not collapse the appeal.
- Submissions do not take the place of evidence.
Court orders
#- 1.This appeal be and is hereby allowed for the reasons given
- 2.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
- 3.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
- 4.The Costs of the appeal are awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court at Bondo
- MCELC Case Number 7 of 2019
- Jurisdiction invoked
- Appellate jurisdiction under Section 78 of the Civil Procedure Act over appeals from the Magistrates' Court
Relief refused
#Dismissal of the suit in the lower court with costs as sought by the appellant
Instead of dismissing the suit, the court set aside the judgment and remanded the suit for a fresh hearing before the Magistrate's Court at Bondo.
Striking out of the appeal on the basis of an incomplete record of appeal as sought by the 1st respondent
The court found the record complete and held that even if it were incomplete, striking out the Record of Appeal would not collapse the appeal, which is initiated by a Memorandum of Appeal.
Costs
The Costs of the appeal are awarded to the appellant.
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.
i. This appeal be and is hereby allowed for the reasons given 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.
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.
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 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.
Issues in the judgment
#Internal inconsistency between the court's stated conclusion that the appeal 'partly succeeds' and the final order that the appeal 'is hereby allowed' in its entirety with the trial judgment set aside in full.
The body describes the first survey report as dated 19/2/2021, but the trial court's judgment excerpt relied on a report dated 2/2/2021; the dates appear to refer to the same report inconsistently.
The appellant's witness numbering of the Registrar and Surveyor is inconsistent between the grounds of appeal (PW8 Registrar, PW9 Surveyor) and the submissions (PW9 Registrar, PW8 Surveyor).
The parties' full names other than the appellant (Charles Jaoko) are not given in the appeal record excerpt; the parties are referred to as 1st Respondent and 2nd Respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alego v Jaoko & another (Environment and Land Appeal E012 of 2024) [2025] KEELC 8321 (KLR)", Case Analysis (2025). Bondo MCELC Appeal from Case Number 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8321/eng@2025-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.