1. The Respondent herein sued the Appellant vide a Plaint dated 10/05/2019 in Bungoma CM-ELC NO.17 of 2019 where he sought for an order to curve out or subdivide a portion of land measuring 7 acres forming part of land parcel no. Ndivisi/Ndivisi/733 and have it registered in his name. The Appellant entered appearance and filed a defence dated 17/06/2019 refuting the Respondent’s claim.
2. The suit before the trial court was agreed to proceed by way of viva voce evidence.
3. PW1 Rashid Masai Mutoro adopted his witness statement as his evidence in chief. She also produced into evidence his list of documents. He further testified that the land belonged to their father namely Mutoro Wasilwa and had been surveyed. He stated that his land was plot no.4381 while the Appellants suit was 4382.He testified that the Land Dispute Tribunal awarded him 7 acres out of the 14.9 acres of land parcel Ndivisi/Ndivisi/733.
4. DW1 Ben Lubisia Mutoro testified that the Respondent was not entitled to the claimed 7 acres as land parcel Ndivisi/Ndivisi/733 which measured 51 was shared to him and his elder brothers with him getting 14.9 acres (parcel 733), David Wanyonyi Mutoro-20acres(parcel 757) and Mafwefwe Mutoro-16.3acres((parcel 734). That the Respondent was to get 5 acres from David Wanyonyi from the total 20 acres given to him. That the Respondent sold apportion of his land to one Envoy Wafula who ended up suing them but he (the Appellant) successfully recovered costs from the said sale. That the Respondent later sued him before the Land Disputes Tribunal (LDT) in case no.55 of 2005 and he was awarded 7 acres. That the Appellant thereafter filed a JR 283/2005 and Mics. Application 6/2006 where the court held that the LDT did not have jurisdiction. He testified that the Respondent fraudulently subdivided land parcel no.733 into two portions i.e 4381 and 4382 fraudulently without his consent or a court order.
5. Upon considering the materials placed before it, the subordinate entered judgment in favour of the Respondent with costs and ordered the defendant/Appellant to surrender/transfer of 7 acres from Land Parcel Ndivisi/Ndivisi/733 to the Respondent within 2 weeks of the impugned judgment.
6. Aggrieved by the subordinate’s court’s decision, the Appellant preferred the current appeal on the following grounds;
a) THAT the learned Presiding Magistrate erred in law and fact allowing the Tribunal award in contravention of Sections 8(2) and 13(3) of the Land Disputes Tribunal Act No. 18 of 1990 under Registered Land Act CAP 300 Laws of KENYA.
b) The learned Magistrate contravened Section 143(1) of Limitation of Actions Act No. 22 of the Registered Land Act CAP 300 Laws of KENYA. THAT the learned trial Magistrate erred in law and fact allowing Ndivisi Tribunal award when the tribunal failed to provide Green Card extracts showing proprietorship of suit land by (1) LOICE NASIMIYU MUTORO and (2) BEN LUBISIA MUTORO who were sued as objectors/owners.
c) THAT the learned trial Magistrate erred in law and fact in allowing the award when the respondent failed to provide panel with green card extracts from Land Registry showing (1) LOICE NASIMIYU MUTORO and (2) BEN LUBISIA MUTORO were proprietors of the suit land.
d) THAT the learned Magistrate erred in law allowing the tribunal award when only the appellant was sued instead of the two objectors named in the decree as filed on 14th May 2019.
e) THAT the learned Magistrate erred in Law and fact allowing award deliberately knowing that the Land Disputes Tribunal Act No. 18 of 1990 was repealed and expunged from Laws of Kenya by 2010 Constitution of KENYA.
f) THAT the learned Magistrate erred in Law and fact allowing award when 68 years' claim is heavily denied by Section 143(1) of Limitation of Actions Act No. 22 of Registered Land Act and Sections 8(2) and 13(3) of the repealed Land Disputes Tribunal Act No. 18 of 1990 CАР 300 Registered Land Act under which the claim was lodged.
g) THAT the respondent lodged the claim on 5th day of 2005 with the Tribunal a date and timing was 42 years from 16th July, 1963 when suit land was absolutely registered by the Appellant.
h) THAT the learned Magistrate erred in Law and fact allowing award when on record on 12th April, 2024 the Honourable Court received from Land Administration Registry, BUNGOMA, Green Card extracts dated 25th March 2024 and 8th April, 2024 confirming proprietorship suit land to appellant through Sub-County Criminal Investigations office, WEBUYE. Similarly, the trial Magistrate received a Certified Copy of CORRECTION OF NAME OF NDIVISI/NDIVISI/733 form signed by Land Registrar on 2nd May, 1985 and confirmed by ALFAYO WEKESA KHAOYA - Assistant Chief, NDIVISI Sub-location and JOHN SIFUMA, Senior Chief, NDIVISI Location on 10th May, 1985, from NYONGESA MUTORO to BEN LUBISIA MUTORO as true owner of the parcel.
i) THAT the learned Magistrate erred in law and fact allowing award when on record on case file, copy of letter of consent Form No. 313380 of correction of name from NYONGESA MUTORO to BEN LUBISIA MUTORO dated 12th September, 1985 signed by District Officer, WEBUYE/Chairman, WEBUYE Land Control Board as proof of right proprietorship, filed on 18th June, 2019 September 1985 was the only time the Appellant applied and appeared before Land Control Board, never again as falsely claimed by LOTIATIA on letter of Consent Form No. 04423290 and minutes of 9/7/2020.
j) THAT the learned Magistrate erred in law allowing the award when respondent lied in paragraph three (3) “THAT THERE IS NO ANY OTHER SUIT PENDING AND THERE HAVE BEEN NO PREVIOUS PROCEEDINGS BETWEEN THE PLAINTIFF AND THE DEFENDANT OVER SAME SUBJEЕСТ МАТТTER AND THAT THE CAUSE OF ACTION RELATES TO THE PLAINTIFF NAMED IN THE PLAINT." WEBUYE Court Civil Case No. 95 of 1992 decree was filed, High Court.
k) Civil Appeal HCCA 62 of 1997 memorandum of appeal HCCA 62 of 1997 Civil Warrant of arrest issued against respondent, Letter from WETANGULA & CO. ADVOCATES to respondent among others were filed on 18th June, 2019 by Appellant. Memorandum of MISC. APPLCATIO NO. 6 of 2006 Judicial Review was also filed.
l) THAT the learned Magistrate erred in law allowing award when the respondent ought to have moved to Court of Appeal if aggrieved by High Court HCCA Judgement but not come down to Land Disputes Tribunal. High Court HCCA no. 62 of 1997 Judgement was allowed against the respondent.
m) THAT the learned Magistrate erred in law and fact allowing the award when HCCA NO. 62 OF 1997, High Court Judicial Review Misc. APPLICATION NO. 6of 2006 and this appeal are undisputed protest by appellant against respondent's encroachment upon the suit land.
n) THAT the appellant never slept on his rights but used his intelligence prowess to dragnet and caught LOTIATIA KIPKECH Phone 0710952215 - Chair Person Land Control Board, AMOS SIMIYU WASIKE-0724292219, Count Surveyor and Respondent - 0706911971 in the Criminal Act of conspiracy to defraud the appellant of his property the suit land. It is the respondent who slept on his rights by not perusing his 5-acre land from NDIVISI/NDIVISI/767 in the name of WANYONYI MUTORO; his demand letter dated 15TH March, 1986 refers.
o) THAT the appellant rightly got his suit land share from WANYONYI MUTORO who shared out Late MUTORO WASILWA'S unregistered land measuring 51.3 - acres to WANYONYI RASHID, MAFWEFE and LUBISIA in 1959 during its first land adjudication in NDIVISI location. WANYONYI became administrator after the demise of MUTORO on 8th March, 1953 intestate laid to rest at MULACHI VILLAGE.
p) THAT the learned Magistrate erred in law allowing award when on Wednesday 20 December,2023 having been sworn the appellant testified and demanded as hereunder.
q) THAT the persons of (1) KIPKECH, (2) WASIKE and respondent to produce BEN LUBISIA MUTORO who applied to Land Control Board attended and signed documents, applied to County Surveyor, attended Survey Works and signed documents and that LUBISIA should not be retired Intelligence Officer of NIS. That demand has not been rescinded.
r) THAT LUBISIA has never applied to Board and Survey for which the learned Trial Magistrate has ordered signing of transfer documents in two weeks' time commencing judgement date.
s) THAT the judgement is incredible, ill conceived, vague, intended to shield the respondent from preferred criminal charges against him. DCI investigates crimes even in civil matters for Criminal justice; not otherwise.
t) THAT the learned Magistrate erred in law allowing award when all documents filed in Court by respondent do not show joint ownership, except the appellant.
u) THAT the learned Magistrate erred in law in allowing award when there is a restriction on the Suitland pending criminal justice arising from crimes against the person of appellant and his property, Suitland.
v) THAT the learned Magistrate erred in law allowing award when contravened Section 40 (2) (a) (b) protection of rights to property of the 2010 constitution of Kenya; such that ancestral lands must be guarded, protected and defended by all means available.
w) THAT in paragraph No. 9 of his statement on 14th May, 2019, the respondent stated that "THE LAND WAS SURVEYED". He failed to file and serve the survey report to Appellant.
x) THAT the learned magistrate erred in fact pressuring the appellant to produce Judicial Review Judgement in respect of MISC. APP. No. 6 of 2006 but deliberately to produce survey report. That the absence of survey report transformed the matter from civil to criminal such that Honourable court now dealing with criminal matters squarely arising from survey and land control reports placed before courts.
yz) THAT the respondent is now enjoying court protection and disposing of portions of suit land to unsuspecting purchasers who have threatened the appellant's life and property. ROBERT KILWAKE Phone No. 0720818952 is a culprit.
) THAT intelligence officers in service and retirement produce factual, reliable and accurate reports, hardly presumption and assumption reports.
7. The Appellant seeks an order that the appeal be allowed with costs, reinstatement of the recommended criminal charges, a stay of execution of the impugned judgment, and any further orders the Court may deem just.
8. The appeal was agreed to be canvassed by way of written submissions. The Appellant filed submissions dated 18/11/2025 which this curt has carefully considered.
Analysis and determination.
9. I have carefully considered this memorandum of appeal, the record of proceedings before the lower court as well as the written submissions filed by the appellant. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions. See Peters -vs- Sunday Post Limited [1958] E.A 424.
10. From the voluminous grounds of appeal, this court discerns that the issue for determination is whether the trial court properly directed itself in reaching its decision.
11. The Respondent’s case before the trial court was that he was entitled to seven acres forming part of land parcel number Ndivisi/Ndivisi/733, which is registered in the Appellant’s name. He contended that he was the beneficial owner of the said portion and had been in occupation thereof since 1951, during which period he had established his homestead and raised his family. It was his position that his entitlement to the seven acres had been conclusively determined in Land Disputes Tribunal Case No. 55 of 2005, wherein the Tribunal awarded him the said acreage. The award was subsequently adopted as a judgment of the Senior Resident Magistrate’s Court at Webuye and thereby became a valid and enforceable court order.
12. The Appellant, in opposition, asserted that the Respondent was not entitled to the seven acres but was instead only entitled to five acres held by their elder brother. He argued further that he had instituted judicial review proceedings challenging the jurisdiction of the Land Disputes Tribunal to adjudicate a dispute over registered land. Although the record confirms that leave to commence judicial review was granted, no evidence was tendered to demonstrate that the proceedings were prosecuted to conclusion or that an order of certiorari was ever issued quashing the Tribunal’s award. In the absence of such proof, the Appellant’s contention that the Tribunal’s decision was rendered without jurisdiction remains unsubstantiated
13. The Appellant also relied on Webuye RMCC No. 95 of 1992, a suit filed by one Envoy Wafula against the parties herein. In that suit, it emerged that the Respondent had leased a portion of Ndivisi/Ndivisi/733 to the complainant and that the Appellant had thereafter obstructed the complainant from utilizing the leased land. The matter was determined against the Respondent, who was ordered to pay costs and damages. The Appellant stated that he preferred an appeal, but the outcome thereof was not disclosed. More importantly, it is evident that this earlier suit did not address or determine the ownership or beneficial entitlement to the seven acres now in dispute. Accordingly, it has no bearing on the issues before the subordinate court.
14. In the result, it is necessary to restate that the decision of the Land Disputes Tribunal, having been duly adopted as an order of the court, acquired the status of a valid, binding judgment. No evidence was placed before the trial court to show that the award was ever appealed against, reviewed, or quashed by a court of competent jurisdiction. In those circumstances, the Tribunal’s determination remained valid, binding and enforceable and the trial court was entitled to rely upon it in determining the Respondent’s claim to the seven (7) acres.
15. See the case of Florence Nyaboke Machani v Mogere Amosi Ombui & 2 Others [2014] eKLR the court stated thus:
“It is trite law that a valid judgment of a court unless overturned by an appellate court remains a judgment of court and is enforceable, the issue of jurisdiction notwithstanding. The plaintiff had all avenues to impugn the award as well as the judgment. He did nothing. As sarcastically put by counsel for the defendants in his submissions, the plaintiff chose to sleep on his rights like the Alaskan fox which went into hibernation and forgot that winter was over. In the meantime, the 1st defendant’s rights to the suit premises crystallized. Equity assists the vigilant and not the indolent. The plaintiff has come to court too late in the day and accordingly, the declaratory relief must fail. I doubt that even the remedy of the declaration is available to the plaintiff to impugn a valid court judgment and decree.”
16. Consequently, I find that this appeal lacks merit and the same is hereby dismissed with no order as to costs, considering the relation between the parties herein.
17. Orders accordingly
DATED SIGNED and DELIVERED VIRTUALLY at EMBU this 12TH day of FEBRUARY, 2026.
……………………………..
HON.E.C CHERONO
ELC JUDGE
In the presence of;
1.Appellant/Advocate-absent.
2. Respondent/Advocate-absent.
3. Diana Kemboi C/A.
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