Ogombo & 4 others v Sera & 4 others (Environment and Land Appeal E022 of 2025) [2026] KEELC 5254 (KLR)
The bottom line
#A Migori court threw out a land trespass case because it was built on a survey done by an unlicensed surveyor.
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 lacked jurisdiction to entertain the suit
- 2.Whether the trial court erred by relying on the surveyors' reports
- 3.Whether the trial court erred by shifting the burden of proof
Key legal issues
#Whether the trial court had jurisdiction over a suit framed as encroachment and trespass where general boundaries were alleged
The issue of jurisdiction had been conclusively determined by a ruling of 20th June 2023 which was never appealed, and on the merits the claim was one of encroachment and trespass, not a boundary dispute, so section 18(2) of the Land Registration Act did not bar the suit.
The court held that although the matter proceeded de novo, the prior ruling on the preliminary objection on jurisdiction was decisive and unchallenged. Independently, it found that the dispute was about trespass and encroachment on the respondents' registered parcels, not delimitation of general boundaries, so the Land Registrar route under sections 18 and 19 of the Land Registration Act was not triggered. The trial court was therefore properly seised of the suit.
Whether the trial court erred in relying on survey reports prepared by unqualified persons
Yes. PW2 admitted he was not registered or licensed with the surveyors' board, contrary to Section 36 of the Survey Act, and reliance on the reports by an unqualified person was an error in law vitiating the judgment.
PW2 conceded in cross-examination that he had no licence from the surveyors' board. Section 36 of the Survey Act prohibits anyone other than a surveyor - defined in Section 2 as a Government or licensed surveyor - from performing surveys affecting the delimitation of boundaries of registered land. The trial magistrate nonetheless adopted the reports. The appellate court held this was an error in law making the evidence not credible and the decision unsupportable. On this ground the appeal succeeded.
Whether the trial court erred by shifting the burden of proof to the defendants
Yes. The plaintiffs alleged trespass and sought eviction, so the burden lay on them; the magistrate's criticism of the defendants for not presenting reports or seeking a government surveyor shifted the burden wrongly and occasioned an injustice.
Applying Sections 107, 109 and 112 of the Evidence Act and the maxim that he who alleges must prove, the court noted the respondents were the ones alleging occupation of their land and seeking eviction. The trial judgment had faulted the defendants for failing to present a report or ask the government surveyor to establish boundaries. The court held this was a gross misdirection since the appellants filed no claim; the plaintiffs' proof of trespass failed, and the appeal succeeded additionally on this ground.
Legal principles established
#- Section 18(2) of the Land Registration Act bars courts from entertaining boundary disputes unless boundaries have been determined and fixed by the Land Registrar, but a suit founded on encroachment and trespass is not a boundary dispute and a court clothed with jurisdiction may entertain it
- Only a Government or licensed surveyor within the meaning of Section 2 of the Survey Act may prepare a survey for the delimitation of boundaries of registered land, and evidence of an unlicensed surveyor cannot found a judgment
- A party who alleges trespass bears the evidentiary burden of proving it; a trial court errs in law by shifting that burden onto a defendant who has filed no counterclaim
Court orders
#- 1.The judgement and decree in Migori CMELC 49A of 2023 delivered on 22nd May 2025 is set aside and substituted with an order that the Plaintiff's suit in the trial court is dismissed
- 2.The Appellants shall have costs of this appeal and of the lower court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrates' Court Migori
- Migori CMELC 49A of 2023
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the Chief Magistrates' Court (appeal from Migori CMELC 49A of 2023)
Relief refused
#Appellants' prayer that the trial court decision be quashed (as distinct from set aside)
The court set aside the judgment and dismissed the plaintiff's suit rather than quashing it
Costs
The Appellants shall have costs of this appeal and of the lower court.
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.
my finding is that the trial Court was clothed with the requisite jurisdiction as the issue between the parties was encroachment and trespass, and not a boundary dispute.
The evidence of the witness was therefore not credible. The decision cannot be allowed to stand as it was based on the evidence of an unlicensed surveyor.
This was a gross misdirection on the part of the learned magistrate. She shifted the burden of proof yet the Appellants had not filed any claim on the land
The judgement and decree in Migori CMELC 49A of 2023 delivered on 22nd May 2025 is hereby set aside. It is substituted with relief that the Plaintiff's suit, in the trial court, is dismissed.
Issues in the judgment
#Paragraph numbering is internally inconsistent: numbering restarts at 7-11 after paragraph 23 for authorities already listed under 22-23, and the court uses inconsistent spellings of party names (Dolores Ogombo in the cause title, Dolores Apiyo Ogombo in evidence; Davis vs David Onyango)
The judgment records that counsel filed submissions dated January and March 2026 but the trial decision under appeal was delivered on 22nd May 2025 and the appeal memorandum on 18th June 2025; the memorandum of appeal as extracted in the judgment dates submissions before the impugned judgment period appears inconsistent with the appeal timeline
The court's finding on jurisdiction states it did not consider the res judicata argument but then proceeds to find the jurisdiction issue conclusively settled by the prior ruling, which is in tension with its stated approach
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogombo & 4 others v Sera & 4 others (Environment and Land Appeal E022 of 2025) [2026] KEELC 5254 (KLR)", Case Analysis (2026). Environment and Land Court Land Appeal No. E022 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5254/eng@2026-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.