DANIEL KIRIONKI AND NELLY PARANAI KINE VS OLE MUTAMPERIA OLODARU AND GIDEON PERE AND 1 Others

JUDGEMENT

1. The Appellant herein being aggrieved by the Judgement and Decree of Honourable D.K Matutu (hereinafter referred to as “the Trial Court”) pronounced on the 10.12.2019 in the proceedings known as KILGORIS PMCC ELC NO.99 OF 2018 (hereinafter referred to as “the Trial Court proceedings”) is seeking to appeal against the entire judgement on the following reasons; -
2. The Learned Trial Magistrate erred in law and fact in finding and holding that the Appellant herein had failed to tender and/or adduce sufficient and/or adequate evidence to prove unlawful entry onto and encroachment upon LR.NO.TRANSMARA/SHARTUKA/146 (hereinafter referred to as the suit property”) contrary to the evidence on record, which pointed out and/or established the existence of trespass.
3. The Learned Trial Magistrate erred in law and in fact in finding and holding that the 1^st Respondent herein was lawfully the registered proprietor and/or owner of LR.NO.TRANSMARA/SHARTUKA/971 which parcel of land was non-existent and thus incapable of ownership by the 1^st Respondent.
4. The Learned Trial Magistrate erred in law and in fact in finding and holding that LR.NO.TRANSMARA/SHARTUKA/971 existed and that the same had not been nullified vide the various Court proceedings and in particular Gazette Notice No. 6331 published on the 8^th day of June 2011 without appreciating the import, tenor and implication of the said Gazette Notice which touched on and/or nullified the Registration process culminating to inter alia the creation of LR.NO.TRANSMARA/SHARTUKA/971.
5. The Learned Trial Magistrate erred in law in finding and holding that the Title in respect of (sic) LR.NO.TRANSMARA/SHARTUKA/971 could not have been cancelled without hearing the title holder even though no pleadings and/or cross-suit had been laid before him challenging the validity and/or process culminating into the impugned cancellation whatsoever and howsoever.
6. The Learned Trial Magistrate equally erred in law in finding and holding that the procedure and law is that no titles are cancelled unless originals are surrended which contention and/or holding is erroneous and thus misconceived. In any event, the Learned Trial Magistrate misapprehended the inport of Gazette Notice No. 6331 published on 8^th day of June 2011.
7. On the other hand, the Learned Trial Magistrate erred in fact and in law in failing to appreciate the totality of the evidence (both documentary and oral) tendered before the Honourable Court and thereby proceeded to exercise his judicial discretion superficially and without undertaking the requisite analysis and/or evaluation of the evidence before him.
8. The Learned Trial Magistrate also erred in law in failing to appreciate and/or consider the tenor of the Appellant’s evidence that the purported LR.NO.TRANSMARA/SHARTUKA/971 (which was subsequently nullified) had been superimposed on the suit property and thus culminating into the offense of trespass.
9. IN THE ALTERNATIVE, the Learned Trial Magistrate erred in law in finding and holding that the suit property and LR.NO.TRANSMARA/SHARTUKA/971 were separate and distinct yet the totality of the evidence on record showered and/or pointed to the contrary, a fact which the Learned Trial Magistrate glossed over and/or otherwise refused to appreciate for reasons known to himself.
10. The Learned Trial Magistrate erred in law in failing and/or abducting his judicial mandate and essentially, the mandate requiring effective and effectual determination of disputes on merits and thus the failure has caused and/or occasioned a miscarriage of justice.
11. The Learned Trial Magistrate failed and/or neglected to cumulatively and exhaustively evaluate the entire evidence on record and hence failed to capture and decipher the salient issues and/or features of the suit before him (Trial Magistrate) and thus arrived at an erroneous conclusion, contrary to and in contradiction of the evidence on record.
12. The Learned Trial Magistrate erred in law in disregarding and/or ignoring the submissions mounted and/or filed by the Appellants herein, without assigning any plausible explanation and/or reasons whatsoever. Consequently, the Appellants herein have been subjected to unfair treatment and hence suffered a miscarriage of justice.
13. The Judgement of the Learned Trial Magistrate is convoluted and the issues raised by the Learned Trial Magistrate are slanted and thereby camouflaged the Judicial mind of the Trial Court from appreciating, discerning and/or understanding the true nature of the dispute. Consequently, the judgement of the Learned Trial Magistrate is a nullity.
14. The Appellants prayers in the Memorandum of Appeal dated 13.01.2020 (hereinafter referred to as “the present Appeal”) are as follows; -
15. The judgement and Decree of the Learned Trial Magistrate dated 10^th December 2019 be set-aside and/or quashed.
16. The Honourable Court be pleased to substitute in lieu of the Judgement dated 10^th December 2019 an order allowing the Appellant’s claim in terms of the Plaint dated 5^th of July 2012 vide KILGORIS PMCC ELC CASE NO. 99 OF 2018.
17. The Respondents herein be condemned to bear the costs incurred in the sub-ordinate Court.
18. Costs of the Appeal be borne by the Respondents jointly and severally.
19. Such further and/or other orders be granted as this Honourable Court may deem fit and expedient.
20. The present Appeal was duly served on the Respondents and admitted on the 05.07.2023 wherein the parties were directed to canvass the same by way of written submissions.
21. The Appellant in compliance with the directions issued on the 05.07.2023 prepared and filed their submissions on the 19.09.2023 while the Respondents filed theirs on the 11.12.2023.
22. Looking at the case of SELLE & ANOTHER-VERSUS- ASSOCIATED MOTOR BOAT CO.LTD & OTHERS (1968) EA 123 the Court observed as follows; -

“A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.”

1. In essence therefore, this Honourable Court in exercising its Appellate jurisdiction is directed to relook at the pleadings before the Trial Court and the evidence adduced therein with a view of coming up with its own conclusions on the issues for determination.
2. The point of departure in the present Appeal is that the Appellants (who were also the Plaintiffs in the Trial Court Proceedings) filed a Plaint dated 05.07.2012 against the Defendants seeking for the following Orders; -
3. A declaration that LR.NO.TRANSMARA/SHARTUKA/149 (hereinafter referred to as the suit land) lawfully belongs to and forms part of the estate of JOSEPH MPAYIO OLE KINE (deceased.)
4. An order of eviction and demolition of the structures erected on LR.NO.TRANSMARA/SHARTUKA/149 by the Defendants.
5. Permanent injunction restraining the Defendants either by themselves, agents, servants and/or anyone claiming under the Defendants from re-entering, trespassing onto, cultivating, cutting down trees, interfering with and/or in any other manner, whatsoever dealing with the suit property that is LR.NO.TRANSMARA/SHARTUKA/149.
6. Costs of this suit be borne by the Defendants.
7. Such further and/or other relief as the Honourable Court may deem fit and expedient so to grant.
8. The Plaint was duly served on the Respondents who opposed the prayers sought therein through filing of a Joint Statement of Defence dated 10.08.2012.
9. The Respondents in the Joint Statement of Defence dated 10.08.2012 sought to have the Appellants Plaint dated 05.07.2012 dismissed with costs.
10. Upon service of the Joint Statement of Defence dated 10.08.2012, the Appellants responded by filing a Reply To Defence dated 28.08.2012 reiterating the facts contained in the Plaint dated 05.07.2012 and specifically denying the allegations by the Respondents.
11. Pleadings before the Trial Court subsequently closed and the matter was certified ready for hearing.

APPELLANT’S CASE IN THE TRIAL COURT.

1. The first Appellant’s witness at the Trial Court was the 2^nd Appellant NELLY PARANAI KIINE (PW1).
2. The 2^nd Appellant introduced himself as a resident of Shartuka and a farmer by occupation.
3. The 2^nd Appellant informed the Trial Court that the 1^st Appellant was his paternal uncle.
4. The 2^nd Appellant further stated that he was one of the legal administrators of JOSEPH MAPYIO OLE KIINE (deceased) pursuant to the Certificate of Confirmation of Grant issued on 17.07.2009 (PLAINTIFF EXHIBIT 1).
5. The 2^nd Appellant stated that he was familiar with the 1^s, 2^nd and 3^rd Respondents herein.
6. According to the 2^nd Appellant, the 2^nd and 3^rd Respondents herein are the sons of the 1^st Respondent.
7. The 2^nd Appellant informed the Trial Court that the property known as LR.NO.TRANSMARA/SHARTUKA/149 was registered in the name of the late JOSEPH MAPYIO OLE KIINE who took possession and utilised the same for his own benefit.
8. The 2^nd Appellant confirmed to the Trial Court that both his parents have passed on and were buried on the property known as LR.NO.TRANSMARA/SHARTUKA/149.
9. However, on or about November or December 2011, the 1^st, 2^nd and 3^rd Respondents encroached into the property known as LR.NO.TRANSMARA/SHARTUKA/149 by cultivating on it without the express authority of the 1^st and 2^nd Appellants.
10. These actions by the 1^st, 2^nd and 3^rd Respondents were reported to the local administration and well as the police who arrested and charged them in Court.
11. Unfortunately, the 1^st, 2^nd and 3^rd Respondents continued with their trespass on the property known as LR.NO.TRANSMARA/SHARTUKA/149 by first grazing their livestock on the same and later, the 2^nd and 3^rd Respondents constructed homes on the same.
12. The 2^nd Appellant informed the Trial Court that the actions by the 1^st, 2^nd and 3^rd Respondents occurred after the demise of her father who was the registered owner of the property known as LR.NO.TRANSMARA/SHARTUKA/149.
13. According to the 2^nd Appellant, the 1^st, 2^nd and 3^rd Respondents invaded and forcefully took possession of the property known as LR.NO.TRANSMARA/SHARTUKA/149 because she is a woman.
14. The 2^nd Appellant then produced a copy of the Certificate of Title dated 14/08/1998 for the property known as LR.NO.TRANSMARA/SHARTUKA/149 in the name of JOSEPH MAPYIO OLE KIINE (PLAINTIFF EXHIBIT 2)
15. The 2^nd Appellant informed the Trial Court that generally, the area known as SHARTUKA ADJUDICATION SECTION has had many cases relating to ownership of land therein.
16. The 2^nd Appellant produced a Ruling dated 04/06/2004, Ruling dated 24/06/2009 and a Judgement dated 17/12/2013 as (PLAINTIFF EXHIBITS 3(a)(b) and (c).
17. Further to that, the 2^nd Appellant referred to the Gazette Notice No. 6331 published on the 08.06.2011 as (PLAINTIFF EXHIBIT 4).
18. Prior to the Appellants filing the Trial Court proceedings, the 1^st Respondent had commenced other proceedings known as KISII CMCC CASE NO.677 OF 2009 but subsequently withdraw the same.
19. The 2^nd Appellant produced the Plaint and the Statement of Defence in the proceedings known as KISII CMCC CASE NO. 677 OF 2009 as (PLAINTIFF EXHIBIT 5 & 6).
20. Thereafter, the Decree issued in KISII CMCC CASE NO. 677 OF 2009 dated 03/07/2012 was produced as (PLANTIFF EXHIBIT 7).
21. The 2^nd Appellant presented the Demand Letter to the 1^st, 2^nd and 3^rd Respondents dated 15/05/2012 as (PLAINTIFF EXHIBIT 8).
22. According to the 2^nd Appellant, the 1^st, 2^nd and 3^rd Respondents were fully aware that the property known as LR.NO.TRANSMARA/SHARTUKA/149 belonged to her father who was also in occupation and possession of the same.
23. Consequently therefore, the actions by the 1^st, 2^nd and 3^rd Respondents were unlawful and illegal.
24. The 2^nd Appellant stated that she was not aware of the property known as LR.NO.TRANSMARA/SHARTUKA/971 which was being claimed by the 1^st, 2^nd and 3^rd Respondents.
25. The 2^nd Appellant testified that her deceased father acquired proper and lawful ownership and title to the property known as LR.NO.TRANSMARA/SHARTUKA/149.
26. In conclusion therefore, the 2^nd Appellant was of the view that girls should be allowed to own land and the 1^st, 2^nd and 3^rd Respondents should be barred from interfering with her possession and occupation of the property known as LR.NO.TRANSMARA/SHARUKA/149.
27. On cross-examination, the 2^nd Appellant confirmed that she was one of the persons vested with the ownership of the property known as LR.NO.TRANSMARA/SHARTUKA/149.
28. The 2^nd Appellant admitted that she holds the said property known as LR.NO.TRANSMARA/SHARTUKA/149 on behalf of other family members of the late JOSEPH MAPYIO OLE KIINE.
29. However, the 2^nd Appellant confirmed that she is the one in occupation of the property known as LR.NO.TRANSMARA/SHARTUKA/149 which she occupies with other members of her extended family.
30. The 2^nd Appellant informed the Trial Court that the property known as LR.NO.TRANSMARA/SHARTUKA/149 was separated by a river with the property that is occupied by the 1^st, 2^nd and 3^rd Respondents.
31. According to the 2^nd Appellant, the 1^st Respondent does not live on the property occupied by the 2^nd and 3^rd Respondents.
32. It is only the 1^st Respondent’s wife who is also the mother of the 2^nd and 3^rd Respondents that lives on the property across the river.
33. The 2^nd Appellant denied any knowledge of the 1^st Respondent’s mother being buried within the property occupied by the 1^st Respondent’s wife and the 2^nd and 3^rd Respondents.
34. The 2^nd Appellant however confirmed that there had been a long outstanding dispute between her deceased father and the 1^st Respondent regarding the property known as LR.NO.TRANSMARA/SHARTUKA/149.
35. This dispute arose during the sub-division of SHARTUKA GROUP RANCH which both the 2^nd Appellant’s father and the 1^st Respondent were members.
36. According to the 2^nd Appellant, her late father had been allocated the property known as LR.NO.TRANSMARA/SHARTUKA/149 during the sub-division of 1992 and he took possession thereof.
37. Thereafter, the 2^nd Appellant was given a Title Deed and the mutation of the property known as LR.NO.TRANSMARA/SHARTUKA/149 by the Land Registrar confirming his ownership over the same.
38. Referring to the Mutation of the property known as LR.NO.TRANSMARA/SHARTUKA/149, the 2^nd Appellant was advised by the Land Registrar that the 1^st , 2^nd and 3^rd Respondents had actually encroached on the said property.
39. The 2^nd Appellant indicated that she was not aware if her deceased father had been a party in the proceedings produced as Plaintiff’s Exhibits 3 (a) (b) and (c).
40. However, what she confirmed to the Trial Court was that there has been a long-standing dispute which has now restricted them to only the portion which their homestead is located.
41. The rest of the property known as LR.NO.TRANSMARA/SHARTUKA/149 is being illegally occupied by the 1^st, 2^nd and 3^rd Respondents herein.
42. On re-examination, the 2^nd Appellant stated that he had the capacity and authority to institute the Trial Court proceedings without necessarily bringing in her uncles.
43. The 2^nd Appellant reiterated that the 2^nd and 3^rd Respondents were very violent during the entry and trespass into the property known as LR.NO.TRANSMARA/SHARTUKA/149 and caused serious bodily harm to her uncles.
44. Nevertheless, the 2^nd Appellant insisted that the property known as LR.NO.TRANSMARA/SHARTUKA/149 was lawfully registered in the name of her father.
45. The 2^nd Appellant further stated that she was not familiar with the property known as LR.NO.TRANSMARA/SHARTUKA/971 and did not have any interest in the said property.
46. In end the re-examination, the 2^nd Appellant sought to have the 1^st, 2^nd and 3^rd Respondents evicted from the property known as LR.NO.TRANSMARA/SHARTUKA/149.
47. At the end of this re-examination, the 2^nd Appellant was discharged from the witness box and the Appellants closed their case.

RESPONDENTS CASE BEFORE THE TRIAL COURT.

1. The Respondents first witness was the 2^nd Respondent known as GIDEON LESHAN OLEPERE (DW1).
2. The 2^nd Respondent introduced himself as a resident of Shartuka Location.
3. The 2^nd Respondent informed the Trial Court that the 1^st Respondent was his father while the 3^rd Respondent was his younger brother.
4. The 2^nd Respondent admitted being familiar with the 1^st and 2^nd Appellants herein as well as JOSEPH MPAYIO OLE KIINE who is now deceased.
5. The 2^nd Respondent stated that he is the Chair of the Nyumba Kumi initiative within their area of residence.
6. The 2^nd Respondent informed the Trial Court that he occupies a property owned by the 1^st Respondent who is his father.
7. Consequently therefore, the 2^nd Respondent denied being in occupation of the property known as LR.NO.TRANSMARA/SHARTUKA/149.
8. The 2^nd Respondent stated that the property which is owned by the 1^st Respondent and which he is in possession is known as LR.NO.TRANSMARA/SHARTUKA/971 measuring approximately 20.89 Hectares.
9. The 2^nd Respondent confirmed that their family including the 3^rd Respondent and his mother have been in occupation of the property known as LR.NO.TRANSMARA/SHARTUKA/971 for over a period of 35 years.
10. The 2^nd Respondent further stated that all their cattle rearing and cultivation is done on the property known as LR.NO.TRANSMARA/SHARTUKA/149.
11. The 2^nd Respondent then produced a Certificate of Title for the property known as LR.NO.TRANSMARA/SHARTUKA/971 and an official search of the same property dated 31.08.2009 as (DEFENCE EXHIBIT 1 & 2).
12. According to the 2^nd Respondent, the 1^st Respondent was allocated the property known as LR.NO.TRANSMARA/SHARTUKA/971 in the year 1992.
13. The 2^nd Appellant’s father JOSEPH MPAYIO OLE KIINE was not allocated any land in the year 1992.
14. In the 2^nd Respondent’s testimony, the late JOSEPH MPAYIO OLE KIINE was allocated land in a different area known as ENKESHUI together with his other four brothers.
15. However, in 1982, the late JOSEPH MPAYIO OLE KIINE relocated from ENKESHUI to the current area which his family resides and was given land by one of his brothers who was the Vice Chair of Shartuka Group Ranch.
16. Referring to the 2^nd Appellant’s Exhibit 2, the 2^nd Respondent testified that there were titles that had been issued during the second sub-division of Shartuka Group Ranch under the leadership of one MOSES KORINKO.
17. It was during this second sub-division that the 1^st Respondent and his family came to learn that their land contained in the title known as LR.NO.TRANSMARA/SHARTUKA/971 had been reallocated to the late JOSEPH MPAYIO OLE KIINE and issued with a new title number known as LR.NO.TRANSMARA/SHARUKA/149.
18. According to the 2^nd Respondent, the title for the property known as LR.NO.TRANSMARA/SHARTUKA/971 was initially issued in the year 1992 and then reissued on 05.08.2009.
19. The reason the 1^st Respondent has a title dated 05.08.2009 was because they were asked to surrender the initial titles of the year 1992 and then re-issued with others in the year 2009.
20. However, despite this surrender and re-issuance of the title known as LR.NO.TRANSMARA/SHARTUKA/971, the 1^st Respondent and his family have been in actual possession and therefore it is not true that they invaded the Appellants land in the year 2009.
21. The 2^nd Respondent stated that if the Court was to evict them from the place they occupy, then they would become destitutes.
22. In conclusion therefore, he sought the Trial Court to dismiss the Appellants Plaint therein with costs.
23. On cross-examination, the 2^nd Respondent stated that he was 38 years old but did not have his Identification Card with him.
24. The 2^nd Respondent reiterated that the 1^st, 2^nd and 3^rd Respondents are in occupation of the property known as LR.NO.TRANSMARA/SHARTUKA/971.
25. According to the 2^nd Respondent, the Certificate of Title for the property known as LR.NO.TRANSMARA/SHARTUKA/971 was issued in the year 2009.
26. However, to the 2^nd Respondent’s knowledge, the 1^st Respondent was allocated the property known as LR.NO.TRANSMARA/SHARTUKA/971 in the year 1992.
27. On being referred to the Appellant’s Exhibit 2, the 2^nd Respondent confirmed that the Certificate of Title for the property known as LR.NO.TRANSMARA/SHARTUKA/149 was issued on the 14.08.1998 while that of LR.NO.TRANSMARA/SHARTUKA/971 was issued on the 05.08.2009.
28. Nevertheless, the 2^nd Respondent insisted that there was an initial title for the property known as LR.NO.TRANSMARA/SHARTUKA/971 which was issued in the year 1992 although he did not have any copy of the same or evidence to that effect.
29. The 2^nd Respondent was of the view that the late JOSEPH MPAYIO OLE KIINE was issued with a title known as LR.NO.TRANSMARA/SHARTUKA/149 in the year 1997 which was already being occupied by the 1^st Respondent herein and his family as LR.NO.TRANSMARA/SHARTUKA/971.
30. The 2^nd Respondent however admitted that the late JOSEPH MPAYIO OLE KIINE moved into the property being claimed by the 1^st Respondent in the year 1982 before he married and has lived on the same land until his demise in the year 2000.
31. At the demise of JOSEPH MPAYIE OLE KIINE, he was buried on the same property that is under dispute.
32. The 2^nd Respondent informed the Trial Court that the 1^st , 2^nd and 3^rd Respondents are living in small houses within the property known as LR.NO.TRANSMARA/SHARTUKA/971 because the local administration prohibited them from putting up houses on the said property.
33. The 2^nd Respondent admitted that the property which is occupied by the Appellants and that occupied by the Respondents are divided by River Romosha.
34. The 2^nd Respondent stated that the 2^nd Appellant was born where they stay and her parents were also buried on the same property.
35. The 2^nd Respondent reiterated that the property known as LR.NO.TRANSMARA/SHARTUKA/971 was approximately 20.89 Hectares while the property known as LR.NO.TRANSMARA/SHARTUKA/149 was measuring approximately 20.64 Hectares.
36. In concluding his cross-examination, the 2^nd Respondent denied encroaching on the property known as LR.NO.TRANSMARA/SHARTUKA/149 and reiterated that the Respondents occupation and possession was strictly within the property known as LR.NO.TRANSMARA/SHARTUKA/971.
37. On re-examination, the 2^nd Respondent stated that the 1^st Respondent does not have any house on the property known as LR.NO.TRANSMARA/SHARTUKA/971.
38. Similarly, the 1^st Respondent wife’s house was burnt down in the year 2009 and now sleeps on a small house that was built for the cattle.
39. At the end of this re-examination, the 2^nd Respondent was discharged from the witness box thereof.
40. The Respondents second witness was JOEL TASUR (DW2).
41. DW 2 introduced himself as a businessman and a former Chairman of Shartuka Group Ranch.
42. DW 2 informed the Trial Court that both the late JOSEPH MPAYIO OLE KIINE and OLE MUTAMPERIA OLODARU (1^st Respondent) were members of Shartuka Group Ranch.
43. DW 2 further confirmed that the 2^nd Appellant is the daughter of the late JOSEPH MPAYIO OLE KIINE while the 2^nd and 3^rd Respondents are sons to the 1^st Respondent.
44. DW 2 stated that he was elected Chairman of Shartuka Group Ranch on the 11.05.1991 and tasked with a duty to adjudicate the Group Ranch asset amongst its registered members.
45. DW 2 proceeded to inform the Trial Court that indeed demarcation was done and the members allocated various portions of land.
46. During the sub-division undertaken by DW 2, the 1^st Respondent was allocated Plot.No. 971 which was subsequently titled as LR.NO.TRANSMARA/SHARTUKA/971.
47. However, DW 2 confirmed to the Trial Court that during demarcation, the late JOSEPH MPAYIO OLE KIINE and the 1^st Respondent were occupying the same portion of land.
48. Consequently therefore, it was decided by the demarcation committee that whoever between them that have lived longer than the other would be allocated the portion of land.
49. Based on this understanding, Parcel No. 971 which was later titled as LR.NO.TRANSMARA/SHARTUKA/971 was allocated to the 1^st Respondent while the late JOSEPH MPAYIE OLE KIINE was allocated Parcel No.1041.
50. The demarcation exercise and subsequent allocation of Shartuka Group Ranch was concluded in the year 1991 and the Group Ranch dissolved thereafter.
51. DW 2 thereafter produced the Letter of Consent (DEFENCE EXHIBIT 3) for registration of individual titles.
52. DW 2 also produced a List of illegal allottees of land within Shartuka Group Ranch as (DEFENCE EXHIBIT 4).
53. DW 2 however agreed that there was a second sub-division done by another committee created in the year 1996.
54. Consequently thereof, the implementation of these two sub-divisions is what has caused confusion within Shartuka Group Ranch.
55. According to DW 2, the property known as LR.NO.TRANSMARA/SHARTUKA/971 had been cancelled through a Gazette Notice.
56. On cross-examination, DW 2 stated that he has not been prosecuted for any wrongful acts while he was the Chairman on Shartuka Group Ranch.
57. DW 2 further confirmed that no one had questioned the membership of either the late JOSEPH MPAYIA OLE KIINE or the 1^st Respondent.
58. DW 2 stated that after the sub-division done in the year 1991, the Group Ranch was dissolved.
59. However, to DW 2 recollection, the property known as LR.NO.TRANSMARA/SHARTUKA/971 belonged to the 1^st Respondent.
60. On being referred to the Appellants Exhibit 2, DW 2 replied that the title of LR.NO.TRANSMARA/SHARTUKA/149 was issued in 1998 when he was no longer the Chairman of Shartuka Group Ranch.
61. Similarly, the title to the 1^st Respondent was issued in the year 2009 when he was not the Chairman of Shartuka Group Ranch.
62. DW 2 could not however confirm if the property known as LR.NO.TRANSMARA/SHARTUKA/149 ever existed or not.
63. On re-examination, DW 2 reiterated that what existed on the Ground was Parcel No. 971 which was occupied by the Late JOSEPH MPAYIE OLE KIINE and the 1^st Respondent.
64. At the end of this re-examination, DW 2 was discharged from the witness box and thereafter the Defence closed its case.
65. The Trial Court directed parties to file their final submissions to which the Appellants filed their submissions on 29.10.2019
66. The Honourable Court has indeed perused the pleadings, the evidence adduced at the hearing by way of testimony as well as the submissions by the parties and hereby identify the issues for determination as follows; -

ISSUE NO. 1- ARE THE APPELLANTS ENTITLED TO THE PROPERTY KNOWN AS LR.NO.TRANSMARA/SHARTUKA/149?

ISSUE NO. 2- HAVE THE RESPONDENTS HEREIN TRESPASSED AND/OR ENCROACHED ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/SHARTUKA/149 AS ALLEGED OR NOT?

ISSUE NO. 3- WHAT IS THE LEGALITY OF THE TWO TITLES KNOWN AS LR.NO.TRANSMARA/SHARTUKA/149 & LR.NO.TRANSMARA/SHARTUKA/971?

ISSUE NO.4- WHETHER THE APPELLANTS ARE ENTITLED TO THE PRAYERS SOUGHT IN THE PLAINT DATED 05.07.2012 OR NOT?

ISSUE NO.5- WHO BEARS THE COSTS OF THIS APPEAL?

1. This Honourable court having duly identified the above-mentioned issues for determination, the same will now be discussed and determined as hereinbelow; -

ISSUE NO. 1- ARE THE APPELLANTS ENTITLED TO THE PROPERTY KNOWN AS LR.NO.TRANSMARA/SHARTUKA/149?

1. The first issue that emanates from the Plaint dated 05.07.2012 filed by the Appellants is a declaration that the property known as LR.NO.TRANSMARA/SHARTUKA/149 belongs to the estate of JOSEPH MPAYIE OLE KIINE.
2. The 2^nd Appellant presented the Certificate of Title as PLAINTIFF EXHIBIT 2 in the name of the late JOSEPH MPAYIE OLE KIINE.
3. The 2^nd Respondent has confirmed that indeed the Certificate of Title to the property known as LR.NO.TRANSMARA/SHARTUKA/149 exists in the name of the Late JOSEPH MPAYIE OLE KIINE.
4. Section 26 of the Land Registration Act, No. 3 of 2012 provides that a Certificate of Title must always be held as conclusive evidence of proprietorship.
5. The Respondents in their Joint Statement of Defence dated 10.08.2012 categorically stated in Paragraph 7 that the Appellants had a right to enjoy their absolute and exclusive rights under their title known as LR.NO.TRANSMARA/SHARTUKA/149 but to the exclusion of the Respondent’s property known as LR.NO.TRANSMARA/SHARTUKA/971.
6. In essence therefore, the property known as LR.NO.TRANSMARA/SHARTUKA/149 duly belongs to the estate of the Late JOSEPH MPAYIE OLE KIINE as sought by the Appellants herein.

ISSUE NO. 2- HAVE THE RESPONDENTS HEREIN TRESPASSED AND/OR ENCROACHED ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/SHARTUKA/149 AS ALLEGED OR NOT?

1. The second issue for determination is whether or not the Respondents have encroached and/or trespassed into the Appellant’s property known as LR.NO.TRANSMARA/SHARTUKA/149 as alleged.
2. If indeed the Respondents have trespassed on the property known as LR.NO.TRANSMARA/SHARTUKA/149, then the Appellants seek for an order of eviction to issue thereof.
3. Section 107 of the Evidence Act, Cap 80 provides as follows; -
4. Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
5. When a person is bound to prove the existence of any fact it is said that the burden of proof lives on that person.
6. The interpretation of the above proviso of the Evidence Act, Cap 80 is that the burden of proving the acts of trespass by the Respondents was on the Appellants.
7. To be able to sufficiently prove any trespass by the Respondents, the Appellants were required to first and foremost establish the boundary demarcation around the property known as LR.NO.TRANSMARA/SHARTUKA/149.
8. For avoidance of doubt, such boundary markings can be drawn from the physical demarcation on the ground and if in doubt, then the Mutation held at the local Lands Department can be of guidance to the Appellants.
9. Once the boundary demarcation has been ascertained by the Appellants, then a Ground Report from either a Government Land Registrar and/or Surveyor would be able to establish any encroachment and to what extent such encroachment has occurred.
10. Unfortunately, the Appellants in this Appeal did not produce any evidence of where their boundary markings were and to what extent the encroachment by the Respondents has affected them.
11. The oral testimony by the 2^nd Appellant that the Respondents are grazing, cultivating and/or built on a portion of the property known as LR.NO.TRANSMARA/SHARTUKA/149 is not persuasive to this Honourable Court.
12. This Honourable Court has to first and foremost ascertain where the boundary of LR.NO.TRANSMARA/SHARTUKA/149 is and thereafter satisfy itself on whether there is an encroachment within those boundaries or not.
13. In the absence of these two ingredients, then this Honourable Court can not issue an order of eviction against the Respondents for trespass as sought by the Appellants herein.

ISSUE NO. 3- WHAT IS THE LEGAL STATUS OF THE TWO PROPERTIES KNOWN AS LR.NO.TRANSMARA/SHARTUKA/149 AND LR.NO.TRANSMARA/SHARTUKA/971.

1. The third issue for determination is which among the two properties known as LR.NO.TRANSMARA/SHARTUKA/149 and LR.NO.TRANSMARA/SHARTUKA/971 legally exists.
2. This issue about the validity of the two Certificates of Titles seem to have really dominated the hearing at the Trial Court as well as the grounds contained in the Memorandum of Appeal dated 13.01.2020.
3. However, a careful perusal of the Plaint dated 05.07.2012 shows that the validity of neither the property known as LR.NO.TRANSMARA/SHARTUKA/971 was never an issue before the Trial Court.
4. Similarly, a careful perusal of the Joint Statement of Defence filed on the 10.08.2012 confirms that the Respondents never raised any issue as to the legality of the Appellants property known as LR.NO.TRANSMARA/SHARTUKA/149.
5. However, the Appellants in the Reply to Defence dated 28.08.2012 pleaded that the Certificate of Title to the property known as LR.NO.TRANSMARA/SHARTUKA/971 had been fraudulently and illegally procured and therefore null and void.
6. It was on the basis of these allegations that the Respondents called DW 2 to give evidence relating to the Respondents Certificate of Title known as LR.NO.TRANSMARA/SHARTUKA/971.
7. It is settled law that parties are bound by their own pleadings.
8. The Appellant in their Plaint dated 05.07.2012 pleaded trespass as the cause of action and sought a relief of eviction orders.
9. That being the case, the Appellants could not challenge the Respondent’s Certificate of Title to the property known as LR.NO.TRANSMARA/SHARTUKA/971 by way of a Reply to the Defence.
10. If the Appellants so wished to challenge the legality of the Respondent’s Certificate of Title, then they were required to Amend the substantive Plaint dated 05.07.2012 to properly bring that issue before the Trial Court for determination.
11. The particulars of fraud and illegality required to be specifically pleaded and/or proved so that the Respondents would effectively rebut the same.
12. Unfortunately, none of this was done by the Appellants and therefore it is this Honourable Court’s view that any attempt to adjudicate on the issue of the legality relating to the two Certificates of Titles is misguided and erroneous.
13. In essence therefore and for avoidance of doubt, the issue of the validity relating to the two properties known as LR.NO.TRANSMARA/SHARTUKA/149 and LR.NO.TRANSMARA/SHARTUKA/971 is a separate and distinct issue which can be raised by either of the parties in another litigation if they so wish.

ISSUE NO.4- WHETHER THE APPELLANTS ARE ENTITLED TO THE PRAYERS SOUGHT IN THE PLAINT DATED 05.07.2012 OR NOT?

1. The fourth issue for determination is whether or not the Appellants were entitled to the prayers sought in the Plaint dated 05.07.2012?
2. The answer to this issue was dependent on the outcome of Issue No.2.
3. In Issue No.2, this Honourable Court was of the view that the Appellants did not place any evidence of encroachment and/or trespass by the Respondents herein on the property known as LR.NO.TRANSMARA/SHARTUKA/149.
4. For this reason, this Honourable Court is of the considered view that the Appellants are not deserving of the prayers sought in the Plaint dated 05.07.2012.

ISSUE NO.5- WHO BEARS THE COSTS OF THIS APPEAL?

1. The last issue for determination in the present Appeal is who should bear the costs of this Appeal.
2. Costs normally follow the outcome of the proceedings.
3. In this case, the Appellants will bear the costs of this Appeal.

CONCLUSION

1. In conclusion therefore, this Honourable Court hereby makes the following Orders as appertains the Memorandum of Appeal dated 13.01.2020; -
2. THE MEMORANDUM OF APPEAL DATED 13.01.2020 IS NOT MERITED AND THEREFORE DISMISSED FORTHWITH.
3. THE JUDGEMENT AND DECREE OF HON.D.K. MATUTU, PRINCIPAL MAGISTRATE PRONOUNCED ON THE 10^TH DECEMBER 2019 IN THE PROCEEDINGS KNOWN AS KILGORIS PMCC ELC CASE NO.99 OF 2018 IS HEREBY UPHELD.
4. THE APPELLANTS WILL BEAR THE COSTS OF THIS APPEAL.
5. FOR THE COMMON GOOD OF THE TWO PARTIES HEREIN, THE SUB-COUNTY LAND REGISTRAR IS HEREBY DIRECTED TO RE-ESTABLISH THE BOUNDARY MARKINGS BETWEEN THE TWO PROPERTIES KNOWN AS LR.NO.TRANSMARA/SHARTUKA/149 & LR.NO.TRANSMARA/SHARTUKA/971 WITHIN THE NEXT 90 DAYS FROM THE DATE OF THIS JUDGEMENT & FILE AN APPROPRIATE GROUND REPORT OF IMPLEMENTATION WITHIN 30 DAYS UPON COMPLETION OF RE-ESTABLISHING THE BOUNDARY MARKINGS BETWEEN THE TWO PROPERTIES.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 13^TH OF MARCH 2024.

IN THE PRESENCE OF:

COURT ASSISTANT:MR NGENO

ADVOCATE FOR THE APPELLANTS: MS. OCHWAL

ADVOCATE FOR THE RESPONDENTS: MR. BUNDE