(Being an Appeal from the Judgment of Hon Purity Koskey SPM delivered on 1st August 2023 in SPM ELC No. 2 of 2021)
Introduction:
1. By a plaint dated 14th January, 2021 the plaintiff now respondent, instituted a suit in the lower court to wit Kabarnet SPM ELC Case No. 2 of 2021 seeking judgment against the defendant, now appellant, for a permanent injunction stopping the defendant from further encroachment on LR No. Baringo/Bartolimo /576 (suit property); damages, cost plus interest; any other relief which the court may deem fit to grant.
2. The suit was premised on the grounds that the suit property belongs to the estate of Kimoi Komen, deceased; that sometime in December 2020, the defendant through its agents/employees trespassed into the suit property and fenced off a portion thereof, thereby meddling with the estate of the deceased.
3. The plaintiff lamented that attempts to get the defendant to stop the acts complained of were futile.
4. The defendant filed a statement of defence dated 15th February 2021, through which it denied the allegations levelled against it and contended that the parcel of land in dispute does not belong to the plaintiff; that the plaintiff has forged and fabricated documents to create the impression that the land in dispute belongs to him.
5. The defendant admitted that the plaintiff’s fence was uprooted but states that it was uprooted by the community and the donors of the land in question who have vowed not to allow grabbing of school land under their watch.
6. When the case came up for hearing, the plaintiff availed four witnesses, himself included, who led evidence in support of his case.
7. On its part, the defendant availed three witnesses who testified in support of its case.
8. Upon considering the case urged before it, the learned trial magistrate stated/held: -
“…It is not in dispute that the Plaintiff’s parcel is distinct from the Defendant’s. They are separate, being number 576 and 790 respectively…
The Defendants have not proved fraud, misrepresentation, corruption on the part of the Plaintiff. The Defendant cannot claim Plaintiff’s land by force. Their portion of 5.6 acres be marked for them. If they need expansion can only purchase more land including that of the Plaintiff and surrounding members of the community. The Plaintiff’s title should be respected and its sanctity maintained. I find the Plaintiff’s case proven on a balance of probability and make the following orders: -
a) A declaration that parcel number Baringo/Bartolimo/576 belongs to Kimoi Kigen, plaintiff being her administrator ad litem;
b) That the defendant be injuncted from encroaching, fencing or in any other manner dealing with it and any fence erected by the Defendant be removed from it forthwith.
The Defendant’s encroachment occasioned the filing of this case by the Plaintiff. I condemn the Defendant to pay Plaintiff costs of this suit.”
9. Dissatisfied with the judgment, the defendant appealed to this court on the grounds that the learned trial magistrate erred by: -
i) Finding that the plaintiff had proved his case on a balance of probability yet there was evidence to the contrary that the subject matter had no record with the Land Registrar;
ii) By relying wholly on the evidence of the plaintiff to the exclusion of the defendant’s witnesses’ evidence;
iii) Not finding that mistake by advocate should not be visited upon a client by failing to file submissions;
iv) Not finding that the suit as drawn and filed offended the Limitation of Actions Act on the period within which to file a claim on land;
v) Failing to enquire from the plaintiff how he obtained title to 576 yet there was evidence to the contrary by DW3 that there were no records in the lands office regarding the aforesaid title.
10. The defendant/appellant prays that the appeal be allowed, the plaintiff’s case in the lower court be dismissed with costs to it; an order compelling the plaintiff to disclose how he obtained title to 576; costs of the appeal.
11. The appeal was disposed off by way of written submissions.
Analysis and determination
12. In exercise of the duty vested in this court as a first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard, see Selle & Another –vs- Associated Motor Boat Co. Ltd (1968) E.A 123, Mwanasokoni –vs- Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga –vs- Kiruga & Another (1988) KLR 348.
13. From the pleadings filed in the lower court, the judgment appealed from, the grounds of appeal and submissions by the respective parties I find the issues for the court’s determination to be: -
i. Departure from pleadings;
ii. Whether the learned trial magistrate erred by allowing the plaintiff’s suit and dismissing the defendant’s defence.
14. On departure of pleadings, it is noteworthy that the defendant did not in his statement of defence plead that the plaintiff’s suit was time barred. It introduced the defence of time bar in its evidence and in the appeal thereby violating Order 2 Rule 6 of the Civil Procedure Rules which prohibits parties from departing from their pleadings unless by way of amendment of their pleadings. The defendant also violated Order 2 Rule 4 of the Civil Procedure Rules which requires parties to specifically plead time bar. In that regard, see the said provisions of the law which provide as follows:-
“A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant statute of limitation or any fact showing illegality-
(a) Which he alleges makes any claim or defence of the opposite party not maintainable;
(b)…
(c)…
(2) Without prejudice to Sub-rule (1) a defendant to an action for recovery of land shall plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant shall not be sufficient
Order 2 Rule 6 on the other hand provides as follows: -
“No party may in any pleading make an allegation of fact, or raise any allegation of fact, or new ground of claim inconsistent with a previous pleading of his in the same suit.”
16. It is trite law that parties are bound by their pleadings and that any evidence not aligned with the pleadings cannot be considered. In that regard, see the case of Raila Amollo Odinga & Another –vs- Independent Electoral & Boundaries Commission & 2 others (2017) eKLR where the Supreme Court stated:-
“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.”
17. As to whether the learned trial magistrate erred by allowing the plaintiff’s suit and dismissing the defendant’s defence, it is noteworthy that both the plaintiff and the defendant produced title deeds to their parcels of land.
18. Whilst the plaintiff through its witnesses, particularly D.W.1 claimed that the school land measures 9 acres, the documentary evidence produced by D.W.2 and D.W.3 did not support the evidence of D.W.1.
19. Regarding the size of land owned by the school, the documentary evidence produced by D.W.2 and D.W.3, namely title deed for parcel number 790 which belongs to the school and the certificate of search issued in respect thereof shows that the school land measures 5.6 acres and not 9 acres as claimed by the defendant, through D.W.1.
20. Whereas the defendant claimed or contended that the plaintiff’s ownership document concerning his parcel of land 576 were forged and/or fabricated, it did not lead any evidence capable of proving that the title deed held by the plaintiff in respect of 576 was a forgery either to the required standard of proof or at all.
21. The defendant being the party who desired judgment based on the claim that the plaintiff’s title or ownership documents were a forgery or fabricated, was the one who had the burden of proving that the ownership documents held by the plaintiff were either a forgery and/or fabricated. In that regard, see Sections 107, 108, 109 and 110 of the Evidence Act, Cap 80 Laws of Kenya, which respectively provides as follows: -
“Whoever desires any court to give judgment as to any legal right or liability dependent on existence of facts which he asserts must prove that those facts exists; The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side; The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person and The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.
22. In the circumstances of this case, the defendant being the one who desired judgment on the allegation that the documents of ownership held by the plaintiff were forged or fabricated was required to prove the alleged forgery on a standard higher than on a balance of probabilities but lower than on beyond reasonable doubt. In that regard, see Ndolo –v- Ndolo [2008] 1KLR (G &F) 742, where the Court stated that:
“…Since the Respondent was making serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases…….”.
23. In the instant case, other than relying on the evidence of D.W.3 to the effect that the land registry had no green card concerning the title held by the plaintiff in respect of parcel number 576, the defendant did not lead any evidence capable of proving that the title held by the plaintiff over the suit property was a forgery or fabricated.
24. It is noteworthy that other than stating that the land registry had no records concerning the title held by the plaintiff, D.W.3 did not state or suggest that the title held by the plaintiff was a forgery or fabricated. To the contrary. His evidence suggests that it is possible for a party to have a title deed whose green card or land records are missing, in which case, the holder of the title would be required to apply for reconstruction of the records.
25. In view of the foregoing, I find the appeal to be lacking in merits and dismiss it with costs to the plaintiff/respondent.
Dated, signed and delivered virtually at Kabarnet this 17th day of March, 2025.
In the presence of:
- MS. Waithaka holding brief for Ms. Jepkirui for the Appellant.
- Mr. Chepkilot for the Respondent.
- Court Assistant – Ian.