(Being an appeal from the judgment and decree of Hon. T.M. Olando PM delivered on the 16th March 2022 in the Chief Magistrate’s Court at Homabay ELC Case No. 32 of 2019, Joash Fredrick Othuon Achieng v Samuel Ochieng Onyango)
1. The Appellant filed the primary suit before the trial court vide his plaint dated 3rd June 2019. He sought a permanent injunction against the Respondent restraining him from trespassing onto land parcel number Homabay/Kothidha/3773.
2. The Respondent entered appearance and filed his Statement of Defence dated 17th July 2023. He denied the appellant’s averments and stated that the suit parcel claimed by the Appellant was non-existent, and if it did exist as a sub division of Homabay/Kothidha/364 then the sub division and subsequent registration in favour of the appellant was obtained fraudulently.
3. The matter proceeded for trial. Judgment was delivered on 16/3/2022. The trial court found that the appellant had failed to prove his case on a balance of probabilities and dismissed the suit with costs to the Respondent.
4. Being dissatisfied with the said Judgment/decree, the Appellant lodged this appeal vide the Memorandum of Appeal dated 23/2/2024. He raised six (6) grounds of appeal which were: -
a) That the learned magistrate erred in law and in fact in finding that the plaintiff’s title was fraudulent despite material evidence pointing to the contrary.
b) That the learned magistrate erred in law and in fact in finding that the agreement entered for sale of land between the appellant and the respondent was for an entirely different parcel from the suit parcel despite the glaring evidence on the face of the record.
c) That the learned magistrate erred in law and in fact considering extraneous factors being issues of fraud when the same was neither pleaded nor proved by parties.
d) That the learned magistrate erred in law and in fact in failing to properly and constructively evaluate the entire evidence on record.
e) That the learned magistrate erred in law and in fact in relying on the sale agreement between the respondent herein and Margaret Aoko Ng’ongo in regards to Homabay/Kotidha LR No. 364, which is separate from the suit parcel LR 3773 and thereby arriving at an erroneous decision with regard to ownership of the suit parcel in his impugned judgement.
f) That the learned magistrate erred in law and in fact on failing to hold that there was a subdivision which the plaintiff participated in as an Objector with the full knowledge and participation of the initial owners then.
5. The appeal was disposed of by written submissions. The Appellant submitted that the Respondent failed to plead the issue of fraud or prove it before the trial court. As such it was not clear how the magistrate came up with the said issue whereas he obtained the suit parcel through adjudication process and objection proceedings, and successfully got Certificate of Title.
6. That the trial magistrate ignored the testimony of DW4 who corroborated his case of having bought the suit parcel from Margaret Ng’ongo. Further, that the Respondent admitted not seeing the parcel that he bought nor did he do due diligence to find out its position on the ground as admitted by DW4.
7. That he proved trespass as defined in Section 3 and 4 of the Trespass Act by the provision of survey report that indicated that there had been trespass on 0.08 hectares (Ha) considering that the respondent admitted that Respondent in purchasing the suit parcel admitted that he had intermeddled in the deceased’s estate.
8. That having proved that he is the registered proprietor of the suit land, he was entitled to a permanent injunction as sought so as to protect his rights enshrined under Article 40 of the Constitution.
9. The Respondent on his part submitted that the Appellant did not produce any agreement awarding him land parcel number 3773 either as a gift or for free. Further, there was no agreement showing that the Appellant bought the suit property hence his registration as the owner of Homabay/Kothidha/3773 was fraudulent hence a nullity.
10. That the appellant herein had not proved the legality of how he acquired the title of the suit property and in the circumstance it was not enough to produce a certificate of title without establishing concretely how the same came to be as was held in the case of Kamau James Njendu v Serah Wanjiru & Another [2018] eKLR.
11. That the Appellant also never called any official from the lands office to authenticate the genuineness of his title whereas where the authenticity of one’s title is in question. Additionally, that one has to rebut such allegations with evidence to the contrary as was held in the case of Falcom Global Logistics Co. Ltd v Management Committee of Eldama Ravine Boarding Primary School (2014) eKLR.
12. That case of trespass had not been made out against him by the appellant as he was a purchaser for value and is in possession of his rightful portion of purchased property since the year 2019 thus the appellant’s claim of trespass is unsubstantiated.
ISSUE, ANALYSIS AND DETERMINATION
13. This being a first appeal, the Court is duty bound to evaluate the evidence before the trial afresh and come to its own independent findings and conclusions. Refer to the case of Selles & Anor vs. Associated Motor Boat Co Ltd & Others [1968] EA 123.
14. Before the trial court, the Appellant testified as PW1 stating that he was the registered owner of the parcel land number Homabay/Kodhidha/3773. He produced in evidence a certificate of official search to show he was the owner. Further, that on the 16/5/2019 he went to the land and found the respondent clearing the land and digging a foundation and that the respondent informed him that he had been sold the land/ he had bought it. The appellant admitted that he knew Ng’ongo Onyango who had three wives one of whom, Margaret Ng’ongo, sold him three quarter (¾) of an acre for Kshs. 20,000/=.
15. PW2, Kipruto Toromo, a land adjudication officer from Homabay testified that in 2006 the appellant raised an objection over the sub division of parcel 364 leading up to parcels number 3713 and 3774. That the appellant was given parcel number 3776 whereas the land in issue herein is parcel number 3773. That there were no proceedings showing that the appellant was granted parcel number 3773. Title deeds in the area were issued in the year 2015.
16. In his Defence, the respondent testified as DW1 stating that he bought land from Margaret Ng’ongo vide an agreement for sale dated 15/5/2019. Later he was called by DCI officer after the appellant claimed the land parcel number Homabay/Kothidha/364. That prior to buying the land he conducted a search and found that it was registered in the name of Ng’ongo Onyango, Risper Okello Ng’ongo, Esther Auma Ng’ongo & Margaret Ng’ongo.
17. DW2, Margaret Ng’ongo testified that she sold land parcel number Homabay/Kothidha/364 to the respondent and that there had never been a dispute over the parcel until the appellant raised his claim. DW3, Joseph Odhiambo Maende and DW4, Elisha Opiyo Achieng both testified that they were witnesses to the sale agreement of a portion of land parcel number Homabay/Kothidha/364 to the respondent by Margaret Ng’ongo.
18. I have considered the evidence tendered before the trial court and the submissions made before me. Having perused the grounds of appeal pleaded by the appellant it is my view that the issues for determination are;
i. Whether the trial magistrate considered extraneous matters of fraud which were not pleaded in making his determination and,
ii. Whether the appellant proved his case in the trial court to warrant grant of the permanent injunction sought.
19. On the first ground, the appellant impugned the trial magistrate in making his decision for taking into consideration an issue of fraud which was never pleaded and/or proven.
20. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. They cannot trudge in adduction of evidence beyond their case as pleaded. See the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR.
21. The Respondent in his Statement of Defence at paragraph 9 pleaded;
“The defendant traverse that if by any chance the land parcel no. Homabay/Kothidha/3773 is a sub division of the land parcel No. Homabay/Kothidha/364 then the same has been sub divided and registered fraudulently and as such the plaintiff is liable to criminal prosecution.”
22. It is trite that an allegation of fraud must be specifically pleaded and proved. In Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, Tunoi, JA (as he then was) stated as follows:
“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently.It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from facts.”
23. In R.G. Patel v Lalji Makanji [1957] EA 314 the former Court of Appeal for East Africa stated as follows:
“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”
24. Taking into consideration the aforementioned and comparing it to the Respondent’s pleadings, it is clear that the he never pleaded fraud. He merely made a statement of fact based entirely on, and in response to, the averments made by the appellant in his Plaint. He ought to have pleaded fraud and proved it. Fraud cannot be inferred as the parties seemed to suggest in his evidence or contention that the Defendant did not prove how he got registered as owner. Since it was the Appellant who challenged the legality of the time, it was upon him, under Section 107 of the Evidence Act, to prove that indeed there was fraud. He did not. Thus, the limb where the magistrate found that the title was obtained by fraud would succeed. But it does not affect the content of the entire judgment as explained below.
25. Thus, what did the trial magistrate do as pleaded on appeal? Did he consider the extraneous issue of fraud that had not been pleaded?
26. From the trial court’s judgement at page 3, after considering and analyzing the evidence before him, the trial magistrate notes;
“Though the plaintiff claimed to have bought the land from Margaret Ngongo, Margaret testified as defence witness and said that she never sold her land to the plaintiff.
The adjudication officer also failed to produce the objection proceeding in which the plaintiff was registered as the owner of the land neither did the plaintiff produce the sale agreement to prove that indeed Margaret sold to him the land.
From the evidence one can only conclude that the plaintiff was registered fraudulently as the owner of the land.
I thus find that the plaintiff has failed to prove his case on a balance of probabilities and the same is dismissed with costs to the defendant.”
27. From the above it is clear that when making those observations the trial magistrate was addressing himself to an issue that emanated from the pleadings and raised in the testimony presented by the respondent’s witnesses. It can then not be said that he was addressing himself to an extraneous issue.
28. In the circumstances I find that this limb of the appeal lacks merit and has to fail.
29. As to whether the appellant satisfied the court so as to justify grant of a permanent injunction, the starting point would be to address myself as to what a Permanent Injunction is.
30. The grant or refusal to grant an injunction is a matter of the exercise of discretion of the court which is exercised judiciously. An appellate court should never interfere with the discretion of the trial court unless it can be shown that the trial was clearly wrong in the manner it acted or used a wrong principle or took into account material he ought not have do so or left out hat which he ought to have considered. Thus, in Chepnyangoi & another v Mwangi (Civil Appeal E067 of 2023) [2024] KEHC 11020 (KLR) (20 September 2024) (Judgment) it was stated,
“It has long been held that an appellate Court should not interfere with exercise of discretion by a trial court unless it acted on a wrong principle, took into account irrelevant factors or failed to take into account relevant factors.”
31. Also, in the case of Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.m. Lubia and Olive Lubia [1985] eKLR Kneller. J.A, stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V. Manyoka [1961] E.A. 705, 709, 713; Lukenya Ranching and Farming Co-operatives Society Ltd V. Kavoloto [1970] E.A., 414, 418, 419. This Court follows the same principles.”
32. One thing is clear, that a permanent injunction is an order of the court requiring a person to do (for a mandatory injunction) or cease doing specific action (for a prohibitory) that is issued as a final judgement. It is also clear that such injunction is granted after the court has made a final determination in the case based on the evidence of the parties and pleadings. These orders prevent the Defendant from continuing with a particular action or behavior. See the case of Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR.
33. The circumstances under which the Court would grant a Mandatory Injunction was well stated out by the Court of Appeal in the Case of Malier Unissa Karim v Edward Oluoch Odumbe (2015) eKLR as follows: -
“The test for granting a Mandatory Injunction is different from that enunciated in the “Giella –Versus - Cassman Brown case which is the locus classicus case of Prohibitory Injunctions. The threshold in Mandatory is higher than the case of Prohibitory Injunction and the Court of Appeal in the case of “Kenya Breweries Ltd-Vs- Washington Okeyo (2002) EA 109” had the occasion to discuss and consider the principles that govern the grant of a Mandatory Injunction was correctly stated in Vol. 24 Halsbury Laws of England 4th Edition Paragraph 948 which states as follows:-
“A Mandatory Injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not normally be granted. However, it the case is clear and one which the Court thinks ought to be decided at once or if the act done is simple and summary one which can be easily remedied, or if the Defendant attempts to steal a match on the Plaintiff, a Mandatory Injunction will be granted on an Interlocutory application”.
34. A prohibitory injunction, such as the relief the appellant sought, is granted to a party who proves that he is the lawful owner of the property in issue and the defendant is predisposed to interfering with it to the damage and injury of the owner and that such would result in damage.
35. Further the same Court of appeal in the case of Jay Super Power Cash and Carry Ltd v Nairobi City Council and 20 others CA 111/2002” held that:-
“This Court has recognized and held in the past that it is the trespasser who should give way pending the determination of the dispute and it is no answer that the alleged acts of trespass are compensable in damages. A wrong doer cannot keep what he has taken balance he can pay for it”.
36. I have considered the facts herein and before the trial court. The Appellant sort to have the case decided at once hence his prayer for a permanent injunction against the Respondent from interfering with land parcel number Homabay/Kothidha/3773. In his testimony he averred that he was the proprietor of the suit parcel. He stated that the parcel was a subdivision of land parcel number 364 and that it was following his objection that he was registered as a proprietor.
37. The appellant’s testimony was corroborated in part by PW2, Kipruto Toromo, the Land Adjudication Officer from Homabay County. However, the Officer specified that the land assigned to the appellant following adjudication/ objection was land parcel number Homabay/Kothidha/3776 and not the suit parcel as claimed by the appellant. Further, PW2 did not provide any documents to substantiate the appellant’s averments that the adjudication led to him being granted land parcel number Homabay/Kothidha/3773.
38. Juxtaposed against this evidence was that presented by the respondent. He testified that he bought a portion of land parcel Homabay/Kothidha/364 from one Margaret Ng’ongo, a widower to one Ngonjo Onyango who was the registered proprietor. The Respondent adduced a sale agreement to this effect dated 15/5/2019 His testimony was corroborated by his witnesses DW3, Joseph Odhiambo Maende and DW4, Elisha Opiyo Achieng who witnessed the sale.
39. DW2, Margaret Ng’ongo testified that she sold a portion of land parcel Homabay/Kothidha/364 to the respondent vide sale agreement dated 15/5/2019 and that she only came to know about the appellant’s claim sometime after the sale. Thus, the appellant was not the legal owner of the suit land and he cannot be entitled to claim rights over it.
40. Taking all the aforementioned into consideration, it is clear that the appellant failed to prove his claim against the respondent. The appellant’s claim was for a permanent injunction on land parcel number Homabay/Kothidha/3773. According to PW2, this was not the portion allocated to the appellant. No evidence was adduced by PW2 to confirm that the appellant was the registered proprietor of the suit parcel save for the Certificate of Search produced by the appellant as P Exhibit 2. A Certificate of Official Search is not evidence of ownership of land. It is the title thereto or the certificate of lease that proves ownership when one’s name is entered thereon as owner.
41. In the Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment) case, the Supreme Court ruled that a title document is not sufficient proof of ownership if the title's origin was irregular or illegal. The court emphasized that a bona fide purchaser's claim is not automatically valid just because they have a title, and they must demonstrate that the property's acquisition process was lawful from the beginning.
42. It was upon the appellant to adduce additional evidence to show that he had acquired land parcel number Homabay/Kothidha/3773 and that the said parcel had emanated from a sub division of land parcel number Homabay/Kothidha/364. PW2, the Land Adjudication Officer also did not provide any records showing the proceedings which granted the appellant the suit parcel.
43. It is trite law that he who alleges must prove. In civil matters, the burden of proof is on he who alleges a fact as enshrined in sections 107 and 108 of the Evidence Act. It is not so high as in criminal cases: only on a balance of probabilities. This simple hurdle the appellant could not pass.
44. The appellant herein failed to discharge the burden of proof in his favour and as such I uphold the trial court’s decision on dismissing his claim. The upshot of all the above is that I find that this appeal lacks merit and I proceed to dismiss it with costs to the Respondent.
45. Orders accordingly.