(Being an appeal from the judgment of the Senior Principal Magistrate Hon. Celesa Okore (SPM) delivered on the 4th April, 2024 in Oyugis ELC No. 55 of 2019)
INTRODUCTION
1. This is an appeal arising from the judgment of Honourable Celes Okore Senior Principal Magistrate, delivered on 4th April, 2024 in Oyugis ELC No. 55 of 2019.
2. The Appellant filed an Amended Memorandum of Appeal dated 13th June, 2025 appealing against the said judgment on the following grounds: -
1. The Trial court misapprehended in substantial material respects the nature and legal tenets of the Respondent’s pleaded claim and as a result arrived at an erroneous and unjust decision.
2. The trial court’s finding that there was encroachment despite the evidence tendered constitutes failure and miscarriage of justice.
3. The Learned Trial Magistrate erred in law and in fact in disregarding the Appellant’s submissions.
4. The Learned Trial Magistrate erred in law and in fact in digressing from the main cause of action of boundary dispute and failing to make determination thereof.
5. The Learned Trial Magistrate erred in law and fact in disregarding the proof of occupation and ownership as presented by the appellant and failing to properly analyze the same and considering the evidence before him thus arriving at an erroneous decision.
6. The Learned Trial Magistrate erred in law and in fact by failing to consider the sworn statement of the Defendant where she asserted possession of the suit parcel known as EAST KASIPUL/KOKELO DUDI/423 for over 70 years.
7. The trial court erred in law and in fact in making finding and issuing an eviction order by disregarding the evidence of the Appellant stating that the Appellant has been in possession and occupation of the land parcel EAST KASIPUL/KOKELO DUDI/423.
8. The Learned Trial Magistrate erred in law and fact by failing to appreciate the law on unimpeachable ownership considering the Appellant has been in the parcel for over 70 years.
9. The Learned Trial Magistrate erred in law and in fact by deciding that the alleged transferor of the land parcel no. EAST KASIPUL/KOKELO DUDI/356 is deceased when in fact evidence of the Defendant shows otherwise.
10. The Learned Trial Magistrate erred in law in failing to accord any and thus due probative weight to the evidence tendered in support of the Appellant's case thus deciding the matter against the weight of evidence that had been adduced.
11. The judgment of the Trial Magistrate has occasioned a failure of justice and/or a miscarriage of justice.
3. The Appellant seeks orders setting aside the decision of the trial magistrate’s judgment and allowing the appeal. She also sought for costs of the appeal.
BRIEF FACTS
4. The Respondent had filed a plaint dated 16th July, 2019 seeking an order of permanent injunction to restrain the Respondent from trespassing onto land parcel EAST KASIPUL/KOKELO DUDI/356. She also sought for an order of eviction against the Appellant.
5. The Appellant filed her Amended Statement of Defence dated 4th May, 2021 where she did not dispute that the Respondent was the owner of EAST KASIPUL/KOKELO DUDI/356.
6. She averred that she has been in possession on EAST KASIPUL/KOKELO DUDI/453 for over 70 years.
7. The trial court heard the case and found that the Respondent had proved her case on a balance of probabilities and proceeded to issue an order of injunction against the Appellant.
8. The Appellant being dissatisfied with the judgment filed the present appeal which was canvassed by way of written submissions.
Submissions
9. Counsel for the Appellant filed his submissions dated 31st October, 2025 where he identified one issue for determination, whether the Appellant’s appeal is merited.
10. It was his submission that the trial court misdirected itself in considering that the Appellant’s claim was baseless and misconceived for having not pleaded adverse possession. He relied on the Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] KECA 248 (KLR) in citing Gulam Mariam Noordin v Julius Charo Karisa, Civil Appeal No 26 of 2015.
11. Counsel submits that the Respondent claimed that he purchased the suit property EASTKASIPUL/KAKELO DUI/356 from Joseph Arum Odila but failed to produce the sale agreement as proof of sale.
12. He further submits that the Respondent had the duty to ascertain who is in occupation of the land parcel before the alleged purchase. He cited the case of Mweu V Kiu Ranching and Farming Cooperative Society Ltd (1985) KLR 430.
13. It was counsel’s submission that the Appellant’s occupation of EAST KASIPU/KAKELO DUDI/356 has been adverse against the registered owner and that the Respondent bought the property only to defeat the Appellant’s right interest in the land. He relied on the Court of Appeal case in Kigorwe & another V Ibua [2022] KECA 70 (KLR)
14. In conclusion, he urged the court to allow the appeal as prayed.
15. Counsel for the Respondent on the other hand filed his submissions dated 4th November, 2025 where he identified one issue for determination, whether the Appellant’s appeal is merited.
16. It was his submission that the Respondent lawfully purchased parcel No. EAST KASIPUL/KAKELO DUDI/356 from Joseph Arum Odila and a title deed issued in his name. He submits that the Appellant failed to produce any sale agreement or allotment letter as proof of ownership.
17. He submits that the trial court was right in its finding that the Respondent’s title was valid and unchallenged in law.
18. He further submits that the surveyor’s report and DW2 and DW3 testimonies confirmed that EAST KASIPUL/KAKELO DUDI/356 and EAST KASIPUL/KAKELO DUDI/423 were separate and that the Appellant’s homestead lied on 356 instead of 423. He submits that the trial court was right in finding that there was encroachment on the Respondent’s parcel.
19. Counsel submits that the Appellant failed to establish any possessory or proprietary claim over parcel EAST KASIPUL/KAKELO DUDI/356.
20. He went on to submit that the Appellant’s claim of having occupied the suit property for 70 years was unsupported by credible evidence. He further submits that the Appellant failed to establish continuous, exclusive or hostile possession. He relied on the case of Mtana Lewa V Kahindi Ngala Mwagandi [2015] eKLR
21. He submits that the evidence showed that any occupation by the Appellant or her family was with permission of the previous owner hence possession that begins with consent cannot be said to be adverse.
22. It was his submission that the Respondent’s title of EAST KASIPUL/KAKELO DUDI/356 was protected under Sections 24, 25 and 26 of the Land Registration Act which the trial court properly found.
23. In conclusion, her urged the court to dismiss the Appellant’s appeal with costs.
Analysis and Determination
24. Upon consideration of the grounds of appeal, pleadings, submissions and the authorities cited, the following issues are for determination:
1. Whether the appeal is merited.
2. Who should bear the cost of the appeal.
25. Being a first appeal, the court relies on a number of principles as set out in Selle and another V Associated Motor Boat Company Ltd and others [1968] 1 EA 123:
“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...”
26. Further, in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] KECA 208 (KLR) the court held that:
“This being a first appeal, this court’s mandate is to re-evaluate, re-assess and re-analyze the record and then determine whether the conclusions reached by the learned trial magistrate are to stand or not and to give reasons either way. I also bear in mind that I have neither seen nor heard the witnesses and I will therefore give due allowance in that respect.”
27. It was the Appellant’s case that the trial court misdirected itself in finding that she had encroached onto the Respondent’s parcel EAST KASIPUL/KAKELO DUDI/356.
28. She claims that she has been in occupation of the parcel and that the Respondent ought to have first ascertained her possession before purchasing the suit parcel from Joseph Arum Odila.
29. The Respondent on the other hand contends that he lawfully purchased EAST KASIPUL/KAKELO DUDI/356 from Joseph Arum Odila and that upon his attempt to take possession, he faced hostility from the Appellant who was in occupation.
30. He further contends that the surveyor’s report dated 28th September, 2020 confirmed that the Appellant had built a homestead on the Respondent’s parcel.
31. Section 107 of the Evidence Act provides that:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
32. Section 109 of the same Act provides:
“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 the fact shall lie on any particular person.”
33. It is this court’s view that the Respondent had the burden of proving that he was the rightful owner of EAST KASIPUL/KAKELO DUDI/356. It is not in dispute that he produced a copy of the title deed for the suit property which was in his name.
34. In addition, the Appellant failed to challenge the validity of the title issued to the Respondent. I have perused the court record. It is not in dispute that EAST KASIPUL/KAKELO DUDI/356 and EAST KASIPUL/KAKELO DUDI/423 are two distinct properties owned by the Respondent and Appellant respectively. It came out clearly from the evidence that the issue in contention was the alleged encroachment by the Appellant to the Respondent’s parcel, being, EAST KASIPUL/KAKELO DUDI/356.
35. From the Appellant’s testimony, which the trial court rightly found, she admitted that the Respondent purchased EAST KASIPUL/KAKELO DUDI/356 from Joseph Arum Odila. Her witnesses also admitted to this fact, thereby corroborating her testimony. Her contention was that she has been in occupation of the said parcel and that the Respondent ought to have established that fact before purchasing the suit property.
36. It is this court’s view that the Appellant rightfully admitted that the Respondent bought the land. Therefore, she could not again turn around and claim that there was no evidence of a sale agreement. She cannot abate and reprobate or blow hot and cold at the same time.
37. The Appellant contends that she has been in occupation of the suit parcel for a long period of time thus adversely acquiring the parcel. She, however, failed to adduce evidence in support of having met the ingredients of adverse possession. Thus, this court is not satisfied that the appellant proved that aspect. In any event the claim was about encroachment, meaning the parties did not know at first how far into the other’s property their occupation was or where the boundary lay.
38. In the case of Mistry Valji v Janendra Raichand & 2 others [2016] KECA 538 (KLR) the court held that:
“adverse possession is not available to a party who is on the registered owner’s land with his consent or where the entry and occupation was lawful and based on some agreement. In other words where the title of the owner is admitted there can be no claim for adverse possession.”
39. Further, in the case of Alfred Warimo V Mulaa Sumba Baraza, Civil Appeal No. 186 of 2011 the court held as follows:
“It is equally established that adverse possession does not arise merely by occupation and use.”
40. It was also not disputed that the surveyor’s report 28th September, 2020 confirmed that the Appellant had encroached onto the Respondent’s parcel of land. Therefore, it was when the surveyor went to the ground and confirmed the encroachment that the parties discovered how far and that there was encroachment. Thus, the issue of adverse possession does not arise.
41. In the circumstances, it is this court’s view that the trial court rightfully found that the Appellant had encroached onto the Respondent’s parcel and this court shall not interfere with the finding.
42. The upshot of the foregoing is that the appeal is without merit and is hereby dismissed with costs to the Respondent.
43. Orders accordingly.
Judgment dated, signed and delivered virtually via the Teams Platform this 29th day of January 2026
Hon. Dr. iur Nyagaka
Judge
In the presence of,
Ms. Wabwire for Appellant
Mr. Anyul for the Respondent
INTRODUCTION
1. This is an appeal arising from the judgment of Honourable Celes Okore Senior Principal Magistrate, delivered on 4th April, 2024 in Oyugis ELC No. 55 of 2019.
2. The Appellant filed an Amended Memorandum of Appeal dated 13th June, 2025 appealing against the said judgment on the following grounds: -
1. The Trial court misapprehended in substantial material respects the nature and legal tenets of the Respondent’s pleaded claim and as a result arrived at an erroneous and unjust decision.
2. The trial court’s finding that there was encroachment despite the evidence tendered constitutes failure and miscarriage of justice.
3. The Learned Trial Magistrate erred in law and in fact in disregarding the Appellant’s submissions.
4. The Learned Trial Magistrate erred in law and in fact in digressing from the main cause of action of boundary dispute and failing to make determination thereof.
5. The Learned Trial Magistrate erred in law and fact in disregarding the proof of occupation and ownership as presented by the appellant and failing to properly analyze the same and considering the evidence before him thus arriving at an erroneous decision.
6. The Learned Trial Magistrate erred in law and in fact by failing to consider the sworn statement of the Defendant where she asserted possession of the suit parcel known as EAST KASIPUL/KOKELO DUDI/423 for over 70 years.
7. The trial court erred in law and in fact in making finding and issuing an eviction order by disregarding the evidence of the Appellant stating that the Appellant has been in possession and occupation of the land parcel EAST KASIPUL/KOKELO DUDI/423.
8. The Learned Trial Magistrate erred in law and fact by failing to appreciate the law on unimpeachable ownership considering the Appellant has been in the parcel for over 70 years.
9. The Learned Trial Magistrate erred in law and in fact by deciding that the alleged transferor of the land parcel no. EAST KASIPUL/KOKELO DUDI/356 is deceased when in fact evidence of the Defendant shows otherwise.
10. The Learned Trial Magistrate erred in law in failing to accord any and thus due probative weight to the evidence tendered in support of the Appellant's case thus deciding the matter against the weight of evidence that had been adduced.
11. The judgment of the Trial Magistrate has occasioned a failure of justice and/or a miscarriage of justice.
3. The Appellant seeks orders setting aside the decision of the trial magistrate’s judgment and allowing the appeal. She also sought for costs of the appeal.
BRIEF FACTS
4. The Respondent had filed a plaint dated 16th July, 2019 seeking an order of permanent injunction to restrain the Respondent from trespassing onto land parcel EAST KASIPUL/KOKELO DUDI/356. She also sought for an order of eviction against the Appellant.
5. The Appellant filed her Amended Statement of Defence dated 4th May, 2021 where she did not dispute that the Respondent was the owner of EAST KASIPUL/KOKELO DUDI/356.
6. She averred that she has been in possession on EAST KASIPUL/KOKELO DUDI/453 for over 70 years.
7. The trial court heard the case and found that the Respondent had proved her case on a balance of probabilities and proceeded to issue an order of injunction against the Appellant.
8. The Appellant being dissatisfied with the judgment filed the present appeal which was canvassed by way of written submissions.
Submissions
9. Counsel for the Appellant filed his submissions dated 31st October, 2025 where he identified one issue for determination, whether the Appellant’s appeal is merited.
10. It was his submission that the trial court misdirected itself in considering that the Appellant’s claim was baseless and misconceived for having not pleaded adverse possession. He relied on the Chevron (K) Ltd v Harrison Charo Wa Shutu [2016] KECA 248 (KLR) in citing Gulam Mariam Noordin v Julius Charo Karisa, Civil Appeal No 26 of 2015.
11. Counsel submits that the Respondent claimed that he purchased the suit property EASTKASIPUL/KAKELO DUI/356 from Joseph Arum Odila but failed to produce the sale agreement as proof of sale.
12. He further submits that the Respondent had the duty to ascertain who is in occupation of the land parcel before the alleged purchase. He cited the case of Mweu V Kiu Ranching and Farming Cooperative Society Ltd (1985) KLR 430.
13. It was counsel’s submission that the Appellant’s occupation of EAST KASIPU/KAKELO DUDI/356 has been adverse against the registered owner and that the Respondent bought the property only to defeat the Appellant’s right interest in the land. He relied on the Court of Appeal case in Kigorwe & another V Ibua [2022] KECA 70 (KLR)
14. In conclusion, he urged the court to allow the appeal as prayed.
15. Counsel for the Respondent on the other hand filed his submissions dated 4th November, 2025 where he identified one issue for determination, whether the Appellant’s appeal is merited.
16. It was his submission that the Respondent lawfully purchased parcel No. EAST KASIPUL/KAKELO DUDI/356 from Joseph Arum Odila and a title deed issued in his name. He submits that the Appellant failed to produce any sale agreement or allotment letter as proof of ownership.
17. He submits that the trial court was right in its finding that the Respondent’s title was valid and unchallenged in law.
18. He further submits that the surveyor’s report and DW2 and DW3 testimonies confirmed that EAST KASIPUL/KAKELO DUDI/356 and EAST KASIPUL/KAKELO DUDI/423 were separate and that the Appellant’s homestead lied on 356 instead of 423. He submits that the trial court was right in finding that there was encroachment on the Respondent’s parcel.
19. Counsel submits that the Appellant failed to establish any possessory or proprietary claim over parcel EAST KASIPUL/KAKELO DUDI/356.
20. He went on to submit that the Appellant’s claim of having occupied the suit property for 70 years was unsupported by credible evidence. He further submits that the Appellant failed to establish continuous, exclusive or hostile possession. He relied on the case of Mtana Lewa V Kahindi Ngala Mwagandi [2015] eKLR
21. He submits that the evidence showed that any occupation by the Appellant or her family was with permission of the previous owner hence possession that begins with consent cannot be said to be adverse.
22. It was his submission that the Respondent’s title of EAST KASIPUL/KAKELO DUDI/356 was protected under Sections 24, 25 and 26 of the Land Registration Act which the trial court properly found.
23. In conclusion, her urged the court to dismiss the Appellant’s appeal with costs.
Analysis and Determination
24. Upon consideration of the grounds of appeal, pleadings, submissions and the authorities cited, the following issues are for determination:
1. Whether the appeal is merited.
2. Who should bear the cost of the appeal.
25. Being a first appeal, the court relies on a number of principles as set out in Selle and another V Associated Motor Boat Company Ltd and others [1968] 1 EA 123:
“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...”
26. Further, in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] KECA 208 (KLR) the court held that:
“This being a first appeal, this court’s mandate is to re-evaluate, re-assess and re-analyze the record and then determine whether the conclusions reached by the learned trial magistrate are to stand or not and to give reasons either way. I also bear in mind that I have neither seen nor heard the witnesses and I will therefore give due allowance in that respect.”
27. It was the Appellant’s case that the trial court misdirected itself in finding that she had encroached onto the Respondent’s parcel EAST KASIPUL/KAKELO DUDI/356.
28. She claims that she has been in occupation of the parcel and that the Respondent ought to have first ascertained her possession before purchasing the suit parcel from Joseph Arum Odila.
29. The Respondent on the other hand contends that he lawfully purchased EAST KASIPUL/KAKELO DUDI/356 from Joseph Arum Odila and that upon his attempt to take possession, he faced hostility from the Appellant who was in occupation.
30. He further contends that the surveyor’s report dated 28th September, 2020 confirmed that the Appellant had built a homestead on the Respondent’s parcel.
31. Section 107 of the Evidence Act provides that:
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
32. Section 109 of the same Act provides:
“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 the fact shall lie on any particular person.”
33. It is this court’s view that the Respondent had the burden of proving that he was the rightful owner of EAST KASIPUL/KAKELO DUDI/356. It is not in dispute that he produced a copy of the title deed for the suit property which was in his name.
34. In addition, the Appellant failed to challenge the validity of the title issued to the Respondent. I have perused the court record. It is not in dispute that EAST KASIPUL/KAKELO DUDI/356 and EAST KASIPUL/KAKELO DUDI/423 are two distinct properties owned by the Respondent and Appellant respectively. It came out clearly from the evidence that the issue in contention was the alleged encroachment by the Appellant to the Respondent’s parcel, being, EAST KASIPUL/KAKELO DUDI/356.
35. From the Appellant’s testimony, which the trial court rightly found, she admitted that the Respondent purchased EAST KASIPUL/KAKELO DUDI/356 from Joseph Arum Odila. Her witnesses also admitted to this fact, thereby corroborating her testimony. Her contention was that she has been in occupation of the said parcel and that the Respondent ought to have established that fact before purchasing the suit property.
36. It is this court’s view that the Appellant rightfully admitted that the Respondent bought the land. Therefore, she could not again turn around and claim that there was no evidence of a sale agreement. She cannot abate and reprobate or blow hot and cold at the same time.
37. The Appellant contends that she has been in occupation of the suit parcel for a long period of time thus adversely acquiring the parcel. She, however, failed to adduce evidence in support of having met the ingredients of adverse possession. Thus, this court is not satisfied that the appellant proved that aspect. In any event the claim was about encroachment, meaning the parties did not know at first how far into the other’s property their occupation was or where the boundary lay.
38. In the case of Mistry Valji v Janendra Raichand & 2 others [2016] KECA 538 (KLR) the court held that:
“adverse possession is not available to a party who is on the registered owner’s land with his consent or where the entry and occupation was lawful and based on some agreement. In other words where the title of the owner is admitted there can be no claim for adverse possession.”
39. Further, in the case of Alfred Warimo V Mulaa Sumba Baraza, Civil Appeal No. 186 of 2011 the court held as follows:
“It is equally established that adverse possession does not arise merely by occupation and use.”
40. It was also not disputed that the surveyor’s report 28th September, 2020 confirmed that the Appellant had encroached onto the Respondent’s parcel of land. Therefore, it was when the surveyor went to the ground and confirmed the encroachment that the parties discovered how far and that there was encroachment. Thus, the issue of adverse possession does not arise.
41. In the circumstances, it is this court’s view that the trial court rightfully found that the Appellant had encroached onto the Respondent’s parcel and this court shall not interfere with the finding.
42. The upshot of the foregoing is that the appeal is without merit and is hereby dismissed with costs to the Respondent.
43. Orders accordingly.
Judgment dated, signed and delivered virtually via the Teams Platform this 29th day of January 2026
Hon. Dr. iur Nyagaka
Judge
In the presence of,
Ms. Wabwire for Appellant
Mr. Anyul for the Respondent