(Being an appeal against the judgment of E. Mulochi SRM delivered on 19th November 2024 in Kabarnet MCELC Case No. E022 of 2023).
Introduction
1. By a plaint dated 24th August 2023, the appellant instituted a suit in the lower court to wit Kabarnet CMC ELC Case No E022 of 2023 seeking judgment against the defendant for a permanent injunction to restrain the defendant by himself, his agents and servants from trespassing into, cultivating, cutting trees, grazing or in any other manner interfering with land title No. LR. No. Baringo/Kiboino ‘A’/8 measuring 0.91 ha (hereinafter referred to as the suit property); general damages for trespass, mesne profits, cost of the suit and interest.
2. As can be discerned from the averments/contentions in the plaint, the suit is premised on the grounds that the plaintiff is the lawful, equitable and registered owner of the suit property; that the defendant without any right, has trespassed and/or encroached onto the suit property and constructed a temporary structure thereon, thereby causing the appellant untold embarrassment.
3. Terming the actions of the respondent complained of illegal and lamenting that attempts to get the defendant vacate the suit property have been futile, the appellant who claimed to be in possession of the suit property, filed the suit hereto seeking the reliefs enumerated herein above.
4. The defendant filed a statement of defence dated 26th November 2023, denying the plaintiff’s contention that he is the lawful owner of the suit property. Contending that the suit property was irregularly created from the parcel of land known as Baringo/Kiboino A/1 measuring 27.8 hectares which belonged to Kabarnet Quarry Ltd, the defendant pleaded that the parcel of land known as Baringo/Kiboino A/1 was subdivided by one of the shareholders of the company after the death of other shareholders of the company without involvement of the representatives of the estates of the deceased shareholders of the company and without a resolution for transacting the business of the company.
5. The defendant blamed the sole surviving shareholder of the company, Charles Kabutie, for treating the assets of the company as his own in blatant breach of the applicable law/principles.
6. It was the defendant’s case that the actions of Charles Kabutie complained of threatened to deny them their rightful portion of the land belonging to the company where they had lived uninterrupted since 1992.
7. Claiming that he learnt of the plaintiff’s unilateral and unlawful decision sometime in 2011, the defendant pleaded that he had suffered in the hands of the plaintiff while defending his father’s interest in the company’s land.
8. The defendant contended that the dispute between him and the plaintiff concerning ownership of the suit property was resolved by Baringo County Commissioner who upon conducting hearing, ruled in favour of the founding shareholders of the company, who included his father.
9. The plaintiff filed a reply to defence, dated 16th February 2024, in which he admitted that the suit property is as a result of subdivision of land parcel No. Baringo/Kiboino A/1 measuring 27.8 hectares belonging to the company. The plaintiff further admitted that the larger parcel of land from which the suit property was created was acquired by Kabarnet Quarry Ltd in the year 1992. The plaintiff also admitted that the founding members of the company were the late Cherono Chemjor (the defendant’s father), the late Chebore (the plaintiff’s father) and Charles Kabutie. The plaintiff further admitted that the defendant’s father died in the year 2010.
10. When the case came up for hearing, the plaintiff who testified as PW1 admitted that he was not a member of the company but explained that he was given the suit property by his father. He acknowledged that the defendant’s father was a member of the company.
11. He informed the court that there was no boundary dispute between the defendant’s father and his father.
12. He further informed the court that he was given consent to transfer the land in 2012.
13. The plaintiff produced the following documentary exhibits in support of his case; copy of title deed, copy of consent, bundle of photographs and copy of certificate of official search as Pexbt 1-4 respectively.
14. P.W.2 Chepkoech Benson, told the court that the suit property belongs to the plaintiff; that the plaintiff has a title deed to the suit property and that the defendant has his own land.
15. Like P.W.1, P.W.2 told the court that there was no boundary dispute between the plaintiff and the defendant.
16. Concerning the structures erected in the suit property by the defendant, P.W.2 informed the court that the structures were erected in 2017.
17. In re-examination, P.W.2 stated that the plaintiff’s land is plot No.8 while that of the defendant is plot No. 11. The plots do not border each other.
18. The defendant who testified as D.W.1, relied on his witness statement, dated 15th July 2024 and produced the documents contained in his list of documents as Dexbt 1-6 (The court has noted that the list of documents and the documents are not part of the documents in the record of appeal and the lower court file).
19. In cross-examination, he admitted that Samson Chebore was the plaintiff’s father. He also admitted that the land in question is not in the name of Charles Kangogo; that he does not have title to the land; that Kiboino (a) and Kiboino (b) are different pieces of land; that his father was a member of Kabarnet quarry; that Kiboino 11, 17 and 20 are not theirs and he does not know who owns the parcels; that the plaintiff is currently blind but was not blind in 2014; that he was threatened by Charles Chebore and not Charles Kangogo; that according to his statement, the subject matter is Baringo/Kiboino A/1; that the plot titles of Baringo/Kiboinoi A/B, paragraph 11(a) and that they had a case with Charles Kabutei and Charles Kangogo.
20. In reexamination, he stated that he lives in Kaboino A/1 and not A/8; that he did a case with Charles Kabutie; that Charles Chebore and Charles Kangogo are sons of Chebore (they are brothers); that his father was there in the 1992 case; that the court ruled that the land belongs to Charles Kabutie, Samson Chebore and Cherono Chemjor (his father); that A/1 was owned by Kabarnet quarry members which was a group (Kabutie, Chebore and Chereno Chemjor).
21. It is on the basis of the foregoing, pleadings and evidence, that the learned trial magistrate found the plaintiff’s case to be not proved and dismissed it with costs to the defendant. In doing so, the learned trial magistrate inter alia stated/held: -
“…there is doubt as to whether the plaintiff acquired his title procedurally…
DW1 told the court that he had resided on the suit property uninterrupted since 1992…if he were a trespasser, PW1 would not have waited for such a duly long period without seeking to have him evicted. Consequently, I find his suit unfounded and dismiss it. In conclusion, I dismiss PW1’s entire claim with costs to DW1…”
22. Dissatisfied with the judgment of the trial magistrate, the plaintiff appealed to this court on 16 grounds which can be reduced to six broad grounds. These are that the learned trial magistrate erred by:-
(i) By failing to determine that the appellant is the rightful owner of the suit property;
(ii) Determining that the appellant did not acquire his title procedurally;
(iii) Failing to find that the respondent’s actions on the suit property constitutes actionable trespass to land;
(iv) Failing to find that the suit property and the parcel of land known as Baringo/Kiboino/”A” 1 are different and distinct;
(v) Considering issues that were neither raised, pleaded nor submitted upon by the respondent while making his decision;
(vi) Dismissing his case with costs to the respondent.
23. Directions were given on 17th February 2025 that the appeal would be disposed of by way of written submissions.
Appellant’s submissions
24. In his submissions filed on 27th March 2025, the appellant identified the following as the issues for determination: -
(i) Whether the appellant is the rightful owner of the suit property?
(ii) Whether the appellant’s registration of title was procedural?
(iii) Whether the respondent pleaded fraud and proved it against the appellant?
(iv) Whether the respondent’s action of interference with the suit property constitutes actionable trespass; and
(v) Whether the appellant is entitled to costs.
25. On grounds 1, 2, 3, 4, 5, 6, 7, 10 and 11 of the appeal, which relate to issues (i) and (ii) above, it is submitted that the appellant proved that he is the rightful owner of the suit property by giving evidence and producing documents to support his case which evidence remained uncontroverted by the respondent. It is pointed out that the appellant produced the following documentary exhibits in support of his case; a copy of title deed, copy of consent, bundle of photographs and copy of certificate of official search as Pexbt 1-4 respectively. The appellant submits that the evidence he produced, which shows that the suit property belongs to him, was not properly analyzed by the trial court thereby arriving at an erroneous conclusion.
26. It is pointed out that the respondent never filed a counterclaim claiming the suit property and/or challenging the title held by the appellant and/or praying for cancellation of the title issued in the name of the appellant. It is further submitted that the respondent did not lead any evidence to demonstrate that the title held by the appellant was acquired illegally, un procedurally and/or through corrupt scheme.
27. Based on the provisions of sections 24, 25 and 26 of the Land Registration Act, 2012 and the decision in the cases of Vijay Morjaria vs. Nansigh Madhusingh Darbar & another (2000) e KLR, regarding how fraud ought to be pleaded and proved, the appellant submits that the respondent neither pleaded and/or specifically particularized and proved allegations of fraud against the appellant nor produced any document in court to show that fraud was ever reported to the police.
28. The appellant further submits that the process that was used to register the appellant as the proprietor of the suit property was procedural and devoid of fraud thus the holding and/or inferring of fraud by the trial court was an error in law because fraud was neither pleaded nor proved as required by law.
29. On whether the respondent’s action of interference constitutes actionable trespass which issue relates to grounds 12 and 16 of the appeal, it is the appellant’s contention that the learned trial magistrate failed to analyze, evaluate and find that the respondent’s actions on the suit property constituted actionable trespass.
30. Maintaining that the respondent trespassed into the suit property, the appellant submits that where trespass is proved, a party need not prove that he/she suffered any specific damage or loss to be awarded damages. Based on the decision in the case of Park Towers Ltd vs. John Mithamo Njika & 7 others (2014) eKLR, the appellant submits that once trespass is proved, the trial court is obligated to assess damages awardable to the claimant depending on the unique facts and circumstances of the case. In the circumstances of this case, the appellant proposes damages of Kshs. 1,000,000/- on the ground that trespass commenced in 2017 and continued for a long period of time.
31. The appellant further submits that the learned trial magistrate failed to completely analyze and evaluate his submissions relating to the respondent’s actionable trespass thereby arriving at a wrong conclusion.
32. With regard to ground 9 of the appeal, that the learned trial magistrate considered issues that were neither raised, pleaded nor submitted upon by the respondent while making his decision, the appellant flags three incidences/observations in the court’s decision which he claims are not supported by the pleadings. These are: consideration of allegations of fraud that were neither raised, pleaded nor submitted upon by the respondent; determination that the respondent had been living on the suit property uninterrupted since 1992 (which fact according to the trial court was not in dispute).
33. Terming the conclusion of the learned trial magistrate that the respondent was in occupation of the suit property since 1992 erroneous, based on the testimony of P.W.2 to the effect that the temporary structures erected by the respondent in the suit property were erected in 2017, the appellant submits that the finding by the trial magistrate that the respondent had been in occupation of the suit property since 1992 is erroneous.
34. The learned trial magistrate is also faulted for considering the concept of legitimate expectation when it was neither pleaded nor raised by the respondent.
35. On grounds 8, 13 and 14 of the appeal, which relate to the contention that the learned trial magistrate erred by failing to find that the suit property and the parcel of land known as Baringo/Kiboino/”A” 1 are different and distinct, the appellant refers to the answer provided by the respondent during cross examination to the effect that he was referring to Baringo/Kiboino/”A” a none existent/wrong parcel, according to the appellant, thereby leaving the appellant’s suit unchallenged. Based on the evidence of P.W.2 to the effect that the appellant’s parcel of land is parcel No. 8 while that of the defendant is parcel number 11, the appellant maintains that his case was uncontroverted and faults the learned trial magistrate for having found against him.
36. In view of the foregoing, the appellant urges this court to find his appeal merited, allow it and award him the costs of the appeal.
Respondent’s submissions
37. In his submissions dated 18th March, 2021 and filed on 30th April 2025, the respondent has identified two issues for the court’s determination. These are: -
(i) Whether the trial magistrate erred in finding that the appellant acquired his title un procedurally and
(ii) whether the trial magistrate erred by finding that the appellant did not prove his case against the respondent on the claims of trespass.
38. Concerning the appellant’s contention that the learned trial magistrate erred by shifting the burden of proof of fraudulent allegations against him, the respondent makes reference to section 107, 109 and 112 of the Evidence Act Cap 80 Laws of Kenya and the Halbury’s Laws of England, 4th Edition, Volume 17, at paragraph 13 and submits that legal burden is discharged by way of evidence; that once the legal burden is discharged, the opposing party has a corresponding duty of adducing evidence in rebuttal and that the legal burden of proof and the evidential burden of proof keeps shifting in the course of trial.
39. The respondent submits that the learned trial magistrate thoroughly analyzed the evidence presented by all the witnesses and correctly noted that the respondent had clearly enumerated the particulars of fraud. The respondent points out that the learned trial magistrate questioned why the appellant had allowed the respondent to continue occupying the suit property for an extended period before seeking eviction. The respondent further points out that the learned trial magistrate examined the fact that both the appellant and the respondent’s fathers were the original owners of the suit property and raised concerns why only the appellant was involved in the acquisition of the title to the suit property. Because those critical questions remained unanswered, the learned trial magistrate proceeded to state that he was unable to find that the appellant’s certificate of title was unimpeachable.
40. The respondent acknowledges that the burden of proving the pleaded fraud rested with him and submits that the learned magistrate after perusing the appellant’s title deed, noted that it was issued on 25th August 2022 as per the respondent’s defense. The magistrate is said to have observed that the respondent had been living on the suit property uninterrupted since 1992 and had established a home there, a fact which was not disputed by the appellant. The respondent also points out that the appellant acknowledged that his father and the respondent’s father were both members of Kabarnet Quarry Limited.
41. In view of the foregoing, the respondent submits that the trial magistrate, in his judgment, was able to appreciate the facts from the evidence and the law applicable. It is further submitted/contended that the appellant had not disputed the continuous and uninterrupted possession of the suit property by the respondent. He also acknowledged that they had ownership jointly but only the appellant was involved in the acquisition of the title.
42. As to whether the learned trial magistrate erred by finding that the appellant did not prove his case against the respondent on the claims of trespass, the respondent points out that the learned trial magistrate determined that the respondent could not be labelled a trespasser because he had been in the suit property for a long period of time, since 1992 and submits that the learned trial magistrate correctly found that the appellant failed to establish a claim of trespass given the long standing possession of the suit property by him (the respondent).
43. It is the respondent’s case that his possession of the suit property is lawful as it stems from his rightful occupation of the suit property as a beneficiary of his father’s interest in the larger parcel of land from which the suit property was created.
44. It is the respondent’s further case that the appellant slept on his right by failing to take action against him (he had been in use and possession of the suit property for a long period of time) thereby compromising his right to seek equitable reliefs against the respondent.
45. It is the respondent case that the long period he has been in occupation of the suit property coupled with the appellant’s failure to take action against him within reasonable time, raises serious doubt as to the validity of the trespass claim.
46. Based on the provisions of Section 3(1) of the trespass Act regarding what amounts to trespass to land, the respondent maintains that on account of his legal right to the suit property, through inheritance of his father’s share of the larger parcel of land from which the suit property was created, the claim for trespass cannot lie against him.
47. In view of the foregoing, the respondent urges this court to dismiss the appeal with costs to him.
Analysis and determination
48. 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 and Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988) KLR 348.
49. From the pleadings filed in this case, the evidence and the submissions filed by the parties, it is either common ground and/or uncontroverted that the suit property was created from the original parcel of land known as Baringo/Kiboino “A”/1 which belonged to Kabarnet Quarry Limited (hereinafter referred as the Company). Although the appellant produced evidence showing that he acquired the suit property from the company as a beneficiary of his father’s share of the company’s land comprised in the original parcel, there is evidence that as at the time the appellant obtained the documents that led to subdivision of the original parcel and creation of the parcels allegedly given to the appellant and respondent, some of the shareholders of the company were dead thereby vitiating the company’s ability to transact or give consent for the transaction that led to registration of the plaintiff as the owner of the suit property which has a nexus with the original parcel belonging to the company. Although the respondent did not expressly plead fraud in the process that led to acquisition of the suit property, he did plead that the process was irregular in that the original suit property belonged to the company and was disposed of by one shareholder of the company resolution of the company.
50. The totality of the evidence produced before the trial court clearly demonstrated the pleaded irregularity in that it was proved that the suit property was created from land that belonged to the company in circumstances the company could not have given consent or approval in dealings with its land.
51. The evidence adduced before the lower court also showed that the respondent was in use and occupation of the suit property and had been in use of the suit property as at the time the plaintiff acquired his title to the suit property. The evidence adduced before the lower court shows that the respondent’s use and occupation of the suit property was on account of being a beneficiary of the original parcel and not as a trespasser to the suit property as contended by the plaintiff.
52. In the circumstances of this case, it is the considered view of this court that the use and occupation of the suit property or a portion thereof, is an overriding interest in the title held by the plaintiff.
53. In view of the foregoing, I do find and hold that the learned trial magistrate properly directed himself on the issues of law and fact regarding the case presented before him and cannot be reasonably faulted for determining that the plaintiff did not prove his pleaded case against the defendant.
54. The upshot of the foregoing is that the appeal has no merits. Consequently, I dismiss it with costs to the respondent.
55. Orders Accordingly
Dated, signed and delivered virtually at Kabarnet this 20th day of June, 2025.
In the presence of:-
Mr. Kagunza for the Appellant
Mr. Otieno for the Respondent
Court Assistant: Lilian