'
(Being an Appeal from the Judgement of Hon. V Karanja in Iten SPMC ELC 031 OF 2021 delivered on 16th December, 2024)
Introduction
1.By a plaint dated 23rd June, 2021 the plaintiff (now 1st respondent) instituted a suit in the lower court to wit Iten SPMC ELC civil suit No.EO30 of 2021 seeking judgment against the defendants (now appellants) for:-
a)A declaration that he (the plaintiff) is the sole and legal owner of land parcels comprising of title numbers Cherangany/Kacherop/1665, 1666, 1776, 1777, 1780 and 1781 (the suit properties);
b)An order of permanent injunction issued against the defendants, their agents, their heirs, relatives or anyone claiming through them restraining them from trespassing on the suit properties;
c)An order of eviction directed against the defendants to vacate the suit properties;
d)Costs of the suit;
e)Interest on (d) and (e) at court rates.
2.As can be discerned from the averments or contentions contained in the plaint, the 1st respondent’s case was premised on the grounds that he is the lawful owner of the suit properties; that the suit properties are as a result of subdivision of the original parcel of land Cherangany /Kapcherop/193; that he purchased the suit properties from the original owners in 1995 and that the sellers executed the necessary transfer documents leading to his registration as the proprietor of the suit properties.
3.The 1st respondent complained that the appellants who are relatives of the persons who sold the suit properties to him, had trepassed on the suit properties thereby depriving him of his use and enjoyment of the suit properties and causing him loss and damage.
4.The 1st respondent lamented that his efforts to get the appellants to stop the actions complained of were futile.
5.The appellants filed a statement of defence and counterclaim, dated 15th December, 2021 in which they acknowledged that the 1st respondent bought land parcel number 1665 and contended that the 1st respondent had been in unlawful possession of three acres of land belonging to the estate of Joseph Kipelio Kisang, deceased.
6.The appellants further contended that they are the beneficial owners of the suit properties.
7.By way of counterclaim, the appellants contended that their father, Kisang Kandagor (deceased) only sold 1 ½ acre of his land comprised in Cherangany/Kapcherop/ 193 to the1st respondent and ½ an acre to AIC Church in 1992; that their deceased father gave his three sons, Peter Kipkorir Kisang, Francis Kiyen Kisang and Joseph Kipelio Kisang 8.5 acres from land parcel number Cherangany /Kapcherop/193.
8.The appellants acknowledged that the 1st respondent had been in possession of the suit properties since 1995 but termed his possession and occupation of the suit property unlawful.
9.The appellants further contended that the 1st respondent in collusion with the District Land Registrar Elgeyo Marakwet, fraudulently transferred 3 acres of their father’s land to himself.
10.The appellants listed the particulars of fraud levelled against the 1st respondent and the Land Registrar in paragraph 24 of their defence and counterclaim thus:-
a)Presenting forged applications for consent, a forged letter of consent and a forged transfer to the 2nd defendant;
b)Undertaking transfer in a very abnormal speed;
c)The 3rd defendant was negligent and/or privy to fraud and conspiracy in acting on forged instruments of transfer of the subject land parcel to the defendant.
11.By way of counterclaim, the defendants/appellants sought judgment against the defendants in the counterclaim for:-
a)A declaration that the suit property forms part and parcel of the estate of Kisang Kendagor (deceased);
b)An order of cancellation of the titles fraudulently transferred from Joseph Kisang to the 1st defendant;
c)Mesne profits;
d)General damages and costs of the suit
e)Costs of the suit plus interest.
12.When the case came up for hearing, parties led evidence in support of their pleaded cases and at close of hearing filed submissions.
EVIDENCE
The Plaintiff’s Case
13.PW1 Patrick Chesir Kanda, relied on his statement dated 23rd June, 2021 after it was adopted as his evidence in chief. He also relied on the documents contained in his list of documents dated 23rd June, 2021 after they were adopted as his exhibits. These are:-
i)Official search for Cherangany/Kapcherop/1665, 1666, 1776, 1777, 1780 and 1781 (Pexbt 1);
ii)Copy of sale agreement dated 15th June, 1989 (Pexbt 2);
iii)Copies of green card for Cherangany/Kapcherop /1665, 1666, 1776, 1777, 1780 and 1781 (Pexbt 3).
14.PW1 stated that he was given the title deed by the Land Registrar. He stated that he bought the land from Kisang Kandagor; that the seller transferred the documents to him and that he followed the right channel to acquire ownership.
15.In cross examination he stated that his land parcels are 1665, 1666, 1776, 1772, 1780 and 1781; that he bought parcels 1665 and 1666 from the late Kisang Kandagor and bought land for his daughter elsewhere.
16.He informed the court that the appellants have not transferred parcels 1665 and 1666 to him.
17.He stated that the other parcels were from Cherangany /Kapcherop193 measuring11.6 hectares. He stated that Kandagor died in 2003; that he had three sons, Peter Kipkorir Sang, Francis Kiyeng Sang, Joseph Kibishon Sang and Taprandich a daughter, who owned parcel No. 1666.
18.In re-examination he stated:-
“193 was subdivided in 1992. About 1664 it was for the late Joseph Kibelion Kipsang
1964 was subdivided in (Joseph’s) 1775, 1776, 1777 (mine).
Joseph Kibelion sold me 1780, it had a shop.
176 sold me the plot in 1989. I constructed. I had issues with title deed 2018. The sale agreement were earlier. The documents show 1995. I have produced title deed, search, green card to prove ownership.”
Defendants case
19.DW1 Joel Kiplagat Kipkorir, relied on his witness statement dated 15th December, 2021 after it was adopted as his evidence in chief. He produced the documents contained in the defendants’ list of documents dated 15th December, 2021 and 12th May, 2022 after they were adopted as the defendants’ exhibits. These are:-
i)Land sale agreement dated 12th September,1992;
ii)Letter dated 5th April, 1994;
iii)Greencard for Land Title No. Cherangany/ Kapcherop/ 193
iv)Greencard for Land Title No. Cherangany/ Kapcherop/1662
v)Greencard for Land Title No. Cherangany/ Kapcherop/1663
vi)Greencard for Land Title No. Cherangany/ Kapcherop/1664
vii)Greencard for Land Title No. Cherangany /Kapcherop/1665
viii)Greencard for Land Title No. Cherangany/ Kapcherop/1666
ix)Greencard for Land Title No. Cherangany /Kapcherop/1667
x)Fees receipt dated 23rd September, 2021
xi)Letter dated 12th August, 2021.
20.In cross examination, he stated that the plaintiff is his neighbour; that his father was Peter Kisang Kipkorir who died in 2021; that his grandfather died in 2003.
21.He informed that court that his father had not subdivided their land which originally belonged to his grandfather by the time he died and they were yet to do succession.
22.He stated that the plaintiff forged documents though he had not reported the matter; that he did not report the matter because the search which he obtained from the Land Registrar showed the land was still intact.
23.He stated that the Land Registrar did not participate in the family meeting in relation to subdivision of the land.
24.In re-examination, he stated that he is the administrator of the estate of Kisang Kendagor; that he did a search; that the Land Registrar rejected to implement the succession matter but never gave a reason for the rejection. He explained that the land was subdivided and hence the reason the succession documents could not be implemented. He informed the court that parcel No. 1664 had issues; that it had been given to Joseph Kibelion.
25.DW2 Simion Kiprotich Kibelion, relied on his witness statement dated 15th December, 2021 after it was adopted as his evidence in chief.
26.In cross examination he stated that he is not related to Patrick Kandie; that Kendagor was his grandfather and that Joseph Kibelion is his father; that his father died in 2017 and Kisang Kandagor died in 2003; that they filed a succession cause later; that he could not tell why his father failed to do succession. He informed that court that Kendagor had 3 children (Francis Kisang aged 70 or thereabout, Taprandich aged 80 or thereabout and Selina aged about 70 years) and one who is deceased.
27.DW3 Abulraham Thamu, County Commissioner Kapcherop division, informed the court that vide minute 47/1992, land parcel 193 was subdivided into two.
28.In cross examination, he stated that land parcel 193 was subdivided into 6 portions; that the land does not exist and that a succession case cannot be filed on a none existent land.
29.DW4 Selly Kibelio, informed the court that Kisang Kandagor was her father in law. She relied on her witness statement dated 24th October, 2022 after it was adopted as her evidence in chief.
30.In cross examination, she stated that Joseph Kibelio was her husband but they were seperated; that he died in 2017 but she had come to claim her husband’s land. She informed the court that she did not know whether her father-in-law had subdivided the land or not but stated that her husband had never sold the land where she resides.
31.In re-examination, she stated that after they separated she placed a caution on the land which she has never removed.
32.DW5 Francis Kiyeng Kisang, relied on his witness statement dated 24th October, 2022 after it was adopted as his evidence in chief. He stated that Kendagor Kisang was his father.
33.In cross examination, he stated that his father, Kisang Kendagor, died in 2002; that he knows the plaintiff but has never done a case with him; that he was not aware that the plaintiff bought the land as they had already subdivided it.
34.DW6 Selina Kimoi, relied on her witness statement dated 24th October, 2024 after it was adopted as her evidence-in-chief.
35.In cross examination she stated that she knows the plaintiff; that her father, Kisang Kendagor, did not sell his land. She contradicted herself by stating that her father sold the land to the plaintiff but the land had not been subdivided.
36.DW7 Taprandich Kisang alias Kimoi Kisang, relied on her witness statement dated 24th October, 2022 after it was adopted as her evidence-in-chief. She stated that Kendagor Kisang is her father; that they never sold the land. She denied recording any statement with her advocate.
37.DW8 Ndeg Teberious Land Registrar, Elgeyo Marakwet, stated that he was served with court summons to avail land register for land parcel number Cherangany/ Kapcherop/193 registered in the name of Kisang Kendagor. He stated that parcel No. 193 was subdivided into six portions on 22nd June 1995; 1662-1666. He produced the green cards and stated as follows:-
“From the original number 1662-Patrick Chesir Kanda-22/6/1995-0.2 hectares;
1665-Patrick Chesir Kanda-0.6 hectares. The rest are in the name of Kisang Kendagor-1662, 1663, 1667, 1665 and 1666, were transfered to Patrick Chesir Kanda.
1666-0.2 hectares.
I do not have minutes of the Land Control Board.
I was not given the parcels for 1665 and 1666, 1662, 1663, 1667 remained under the deceased name Kisang Kendagor.
1664 was transferred to Joseph Kibelion. There was no caution registered against the parcel. It had been closed on subdivision.
1664 was subdivided into 1775, 1781. I do not have the relevant parcels for the parcels.’’
38.DW8 produced an unsigned Land Control Board application form as Dexbt 2 and stated that there was a consent from the land board for parcel 1664 but it was not signed by Joseph. He stated that Minute 65/1994-1666 showed transfer by Kisang Kandagor from consent for AIC; Minute 59/1999-1664 showed transfer of land as a gift but a caution had been placed; Minute 111/1994-1664 showed the transfer had been rejected on two attempts.
39.He denied having produced minutes showing the land was transferred to Joseph Kibelion. He stated that parcel No. 1776 is a subdivision of 1664; that the transfer form was for parcel No. 1665 which had the transfer, caution and Land Control Board; that parcel No. 1660 had not been subdivided, parcel No.1776 was cancelled surrendered by Patrick Kanda.
40.In cross examination, he stated that parcel No. 193 does not exist; that it was subdivided in 1995; that the owner was Kisang Kandagor. He stated that Dexbt 1 dated 2nd April 2019, a search is a false representation. He stated that the documents by the counter claimers are null and void as parcel No. 193 was subdivided on 2nd June,1995 and there was a consent from the Land Control Board. He informed the court that there was an omission in the green card in the entry indicating that the land had not been subdivided yet it had been subdivided. He stated that there was no fraud; that the green card was not signed and the search was issued in 2019 as a result of the omission.
41.In re-examination, DW8 stated:-
“the omission should not be visited on the public. Dexbt 9 I cannot confirm whether there were issues.”
42.Upon considering the cases urged before her, the learned trial magistrate stated/held:-
“...From the evidence land parcel number Cherangany/Kapcherop/193 was originally registered in the name of Kisang Kandagor who passed on in 2003. The land was subdivided in 1995 into 6 portions and the original title deed No 193 was closed and new numbers issued as follows,1665, 1666, 1776, 1777, 1780 and 1781.
The plaintiff indicated that he had bought purchased land parcel number Cheragany/Kapcherop/1665 and 1666 from the original owner Kisang Kendagor (deceased); that in 1989 he also purchased land parcel No. Cherangany/Kapcherop/1776, 1777, 1780 and 1781 from Joseph Kibelio Kisang (deceased) and the son to Kisang Kandagor.
The defendants stated that the plaintiff fraudulently obtained title deeds; that he had bought 1½ acre from the late Kisang Kandagor and he never bought 3 acres of land from the late Joseph Kibelio who died in 2017.
The counter claimers produced a search for the year 2019 which indicated the details of ownership of Cherangany/Kapcherop/193 as Kisang Kandagor and the 3rd defendant (DW8) in cross examination stated that parcel number 193 does not exist since it was subdivided in 1995. That the there was no fraud since the land was subdivided in 1995, the green card was not signed and the search issued in 2019 was as a result of omission. DW3 stated in cross examination that the land was subdivided into 6 portions and it no longer exists and the succession cause could not be filed on an none existent land.
From the foregoing, it is clear that the plaintiff/1st defendant acquired ownership as a bona fide purchaser from the owners the late Kisang Kandagor and the late Joseph Kibelion and therefore he is the legal/rightful owner of the suit parcels of land, Cherangany/ Kapcherop 1665 , 1666, 1776, 1777, 1780, 1781....”
43.Dissatisfied with the decision of the trial court, the defendants/appellants appealed to this court on the grounds that the learned trial magistrate erred by:-
1.Failing to consider the defendants’/counterclaimers’ evidence on record;
2.Failing to consider the plaintiff’s evidence in cross examination;
3.Entering judgment for the plaintiff/1st defendant in the counterclaim without sufficient evidence;
4.Failing to properly evaluate the evidence on record thereby arriving at a wrong decision;
5.Shifting the legal and evidential burden of proof of the plaintiff’s case to the defendants’/counterclaimers;
6.Disregarding the fact that the mutation form for subdivision of land parcel Cherangany/Kapcherop /1664 was never signed by the proprietor and thus the purported subdivision that gave rise to the suit land parcels No. 1776, 1777, 1780 and 1781 is null and void ab initio;
7.Upholding the plaintiff’s title deed for parcel numbers 1666, 1776, 1777, 1780 and 1781 when the said title deeds were acquired illegally, unprocedurally and through a corrupt scheme;
8.Failing to find that the defendants/counterclaimers’ discharged the legal and evidential burden of proof of the counterclaim to the required standard thereby arriving at erroneous decision.
9.Ignoring the 3rd defendant’s (Land Registrar) evidence in the counterclaim that the plaintiff had returned the title deed for land parcel Cherangany/kapcherop 1775 for cancellation and yet he is the one who caused the same to be processed;
10.Holding that the plaintiff lawfully purchased the suit parcels No. 1666, 1776, 1777, 1780 and 1781 from the original proprietors without being shown the respective land sale agreements;
11.Failing to consider the defendants/counter claimers’ evidence that land parcel No. 1666 was transferred to AIC Church by the proprietor and that land parcel No. 1664 was never subdivided by the proprietor;
12.Failing to consider the glaring gaps in the plaintiff’s case thereby arriving at an erroneous decision.
44.The appellants pray that their appeal be allowed in its entirety with costs to them; that the judgment of the trial court delivered on 16th December, 2024 be set aside in its entirety and be substituted with an order allowing their counterclaim and dismissing the 1st respondent’s suit with costs to them.
45.Pursuant to directions given on 17th June, 2025 the appeal was disposed of by way of written submissions which l have read and considered.
SUBMISSIONS
Appellant’s submissions
46.In his submissions filed on 17th September, 2025 the appellants frame the following as the issues for the court’s determination-
i)Whether the trial court erred in law and in fact in entering judgment for the plaintiff/respondent in the absence of sufficient evidence?
ii)Whether the learned trial magistrate failed to consider material evidence by the defendants/counterclaimants /appellants;
iii)Whether the title deeds produced by the plaintiff/1st respondent were procedurally and lawfully acquired;
iv)Whether the burden of proof was wrongly shifted from the plaintiff/1st respondent to the appellants.
47.The appellant gives an exposition of the law regarding burden of proof and standard of proof in civil cases in respect of the case hereto and submits that the 1st respondent was unable to demonstrate the genesis of his purported acquisition of the suit parcels. It is the appellant’s case that he, the appellant, presented evidence that demonstrated that it was not possible for 1st respondent to have bought the suit parcels from the late Joseph Kibelio. In that regard, the appellant explains that the deceased’s widow, Jelly K. Kibelio had lodged a caution at the land’s registry expressly barring any transfer or sale of land without her consent. It is the apellant’s case that the caution remained unlifted at all material times. It is the appellant’s further case that he demonstrated that no legal subdivision of the parent title, Cherangani/Kapcherop/1664 had occurred. In that regard, he relied on the official search record dated 2nd April, 2019 and what he terms unauthenticated maps which confirmed that the land remained intact.
48.The appellant further submits/contends that the title deeds presented by the plaintiff were devoid of critical authentication features required under Section 27 of the Land Registration Act like name and registration number of the issuing Land Registrar and the official seal of the registry. It is the appellant’s case that those omissions cast serious doubt on the authenticity of the documents produced in evidence by the 1st respondent.
49.The appellant further submits that the 1st respondent’s credibility was undermined during cross examination because he was unable to produce either the sale agreements or receipts for paymen of stamp duty in respect of sale or transfer of the suit parcels claiming that they were stolen.
50.Based on the decisions in the cases of Daudi Kiptugen v. Commissioner of Lands & 4 others (2015) e KLR, Dina Management Ltd v. County Government of Mombasa & 5 others, the appellant urges this court to find that he has made up a case for setting aside the judgment of lower court and being granted the orders sought in the memorandum of appeal.
Respondent’s submissions
51.In his submissions filed on 22nd September, 2025, the 1st respondent has identified four issues for the court’s determination namely:-
i)Whether he is a bona fide purchaser;
ii)Whether the absence of the deceased’s signature on the Land Control Board Consent invalidates the transaction;
iii)Whether the trial court erred in its decision; and
iv)Who bears the costs of the suit?
52. Regarding the 1st issue, whether the 1st respondent is a bona fide purchaser, the 1st respondent submits as follows:-
“...The 1st respondent honestly purchased these parcels. It is important to note that these transactions happened during the lifetime of the deceased persons. Further the certificates of search show that the plaintiff/1st respondent, Patrick Chesir Kanda became the registered proprietor of these parcels in 1995 even in the case of where the titles were issues on a later date, 1776, 1666, 1665 and 1781.
The 1st respondent holds certificates of title to all the said parcels, titles whose validity has not been challenged by the land registrar.
Section 26 of LRA provides that a certificate of title is to be taken by the court as prima facie evidence that the person named therein is the absolute and indefeasible owner.
The appellants have not demonstrated any fraud, misrepresentation or illegality attributable to the respondent that would impeach his title under section 26(1)(a) or (b).
It is therefore our submission that the plaintiff is a bona fide purchaser. To emphasize we rely on section 24 of Land Registration Act No. 3 of 2012 which states that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land to together with all rights and privileges belonging or appurtenant thereto.”
53.On whether the absence of the deceased’s signature on the Land Control Board Consent invalidates the transaction, the respondent states/submits as follows:-
“It is not in dispute that that the consent form on record does not bear the swignature of the deceased vendor. However, the Land Control Board in its wisdom considered the application and allowed it in 1994.
Under Section of the Land Control Act, the validity of a controlled transaction depends on the consent of the Board not the physical signature of the vendor on the consent form. Once the Board has given approval, the transaction cannot be invalidated merely on account of an omission of signature where the substantive approval has been granted.
The Court of Appeal in the case of Sammy Likuyani Itaya v Wycliffe Itaya (2016) e KLR emphasized that the Board’s consent, once issued, cannot lightly be impeached unless fraud or collusion is proved. No such fraud or collusion has been pleaded or proved against the respondent.”
54.As to whether the trial court erred in its decision, the 1st respondent states/submits as follows:-
“The trial court found as as a matter of fact that the appellants had encroached upon the 1st respondent’s land. Evidence was adduced through the 1st respondent and corroborated by the testimony of the land registrar.
Trespass is an actionable tort irrespective of whether any damage is caused. The appellant, not being the registered propriertor nor having any legal interest had no right of entry upon the land.
The learned trial magistrate correctly found trespass proved and entered judgment for the respondent.....
It is noteworthy that the 1st respondent has had uninterrupted possession since 1995.
The judgment of the trial court was based on cogent evidence and proper application of the law. The Honourable court, being an appellate court, ought not to interfere with findings of fact unless they were based on no evidence or misapprehension of the evidence or unless the trial court applied the wrong principles.
In the present case, none of those grounds have been established by the appellants. The 1st respondent lawfully acquired title to the suit land, the Land Control Board consent was validly issued and the appellant’s occupation amounts to trespass to land.”
55.On costs, the 1st respondent has placed reliance on Section 27 of the Civil Procedure Act.
Analysis and determination
56.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 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.
57.The sole issue arising from the appeal is whether the learned trial magistrate properly directed herself on the issues of law and fact arising from the case presented before her.
58.Concerning that issue, upon re-evaluation of the case pleaded by the parties, the evidence adduced in respect thereof and the submissions by the parties, I find that the appellants did not prove their pleaded case to the required standard. They disclosed no reasonable ground for challenging the decision of the trial court. The learned trial magistrate aptly captured the issues of law and fact arising from the case presented before her and properly directed herself on the matters of law and fact arising therefrom.
59.The upshot of the foregoing is that the appeal lacks merit and is for dismissal. Consequently, I dismiss it with costs to the respondents.
60.Orders accordingly.
Judgment dated, signed and delivered at Iten this 26th day of November, 2025.
Judgment delivered virtually in the presence of:-
N/A for the Appellant
N/A for the 1st Respondent
Mr. Kutei holding brief for Mr. Kwame for the 2nd & 3rd Respondents
Court Asst.: Christine '
(Being an Appeal from the Judgement of Hon. V Karanja in Iten SPMC ELC 031 OF 2021 delivered on 16th December, 2024)
Introduction
1.By a plaint dated 23rd June, 2021 the plaintiff (now 1st respondent) instituted a suit in the lower court to wit Iten SPMC ELC civil suit No.EO30 of 2021 seeking judgment against the defendants (now appellants) for:-
a)A declaration that he (the plaintiff) is the sole and legal owner of land parcels comprising of title numbers Cherangany/Kacherop/1665, 1666, 1776, 1777, 1780 and 1781 (the suit properties);
b)An order of permanent injunction issued against the defendants, their agents, their heirs, relatives or anyone claiming through them restraining them from trespassing on the suit properties;
c)An order of eviction directed against the defendants to vacate the suit properties;
d)Costs of the suit;
e)Interest on (d) and (e) at court rates.
2.As can be discerned from the averments or contentions contained in the plaint, the 1st respondent’s case was premised on the grounds that he is the lawful owner of the suit properties; that the suit properties are as a result of subdivision of the original parcel of land Cherangany /Kapcherop/193; that he purchased the suit properties from the original owners in 1995 and that the sellers executed the necessary transfer documents leading to his registration as the proprietor of the suit properties.
3.The 1st respondent complained that the appellants who are relatives of the persons who sold the suit properties to him, had trepassed on the suit properties thereby depriving him of his use and enjoyment of the suit properties and causing him loss and damage.
4.The 1st respondent lamented that his efforts to get the appellants to stop the actions complained of were futile.
5.The appellants filed a statement of defence and counterclaim, dated 15th December, 2021 in which they acknowledged that the 1st respondent bought land parcel number 1665 and contended that the 1st respondent had been in unlawful possession of three acres of land belonging to the estate of Joseph Kipelio Kisang, deceased.
6.The appellants further contended that they are the beneficial owners of the suit properties.
7.By way of counterclaim, the appellants contended that their father, Kisang Kandagor (deceased) only sold 1 ½ acre of his land comprised in Cherangany/Kapcherop/ 193 to the1st respondent and ½ an acre to AIC Church in 1992; that their deceased father gave his three sons, Peter Kipkorir Kisang, Francis Kiyen Kisang and Joseph Kipelio Kisang 8.5 acres from land parcel number Cherangany /Kapcherop/193.
8.The appellants acknowledged that the 1st respondent had been in possession of the suit properties since 1995 but termed his possession and occupation of the suit property unlawful.
9.The appellants further contended that the 1st respondent in collusion with the District Land Registrar Elgeyo Marakwet, fraudulently transferred 3 acres of their father’s land to himself.
10.The appellants listed the particulars of fraud levelled against the 1st respondent and the Land Registrar in paragraph 24 of their defence and counterclaim thus:-
a)Presenting forged applications for consent, a forged letter of consent and a forged transfer to the 2nd defendant;
b)Undertaking transfer in a very abnormal speed;
c)The 3rd defendant was negligent and/or privy to fraud and conspiracy in acting on forged instruments of transfer of the subject land parcel to the defendant.
11.By way of counterclaim, the defendants/appellants sought judgment against the defendants in the counterclaim for:-
a)A declaration that the suit property forms part and parcel of the estate of Kisang Kendagor (deceased);
b)An order of cancellation of the titles fraudulently transferred from Joseph Kisang to the 1st defendant;
c)Mesne profits;
d)General damages and costs of the suit
e)Costs of the suit plus interest.
12.When the case came up for hearing, parties led evidence in support of their pleaded cases and at close of hearing filed submissions.
EVIDENCE
The Plaintiff’s Case
13.PW1 Patrick Chesir Kanda, relied on his statement dated 23rd June, 2021 after it was adopted as his evidence in chief. He also relied on the documents contained in his list of documents dated 23rd June, 2021 after they were adopted as his exhibits. These are:-
i)Official search for Cherangany/Kapcherop/1665, 1666, 1776, 1777, 1780 and 1781 (Pexbt 1);
ii)Copy of sale agreement dated 15th June, 1989 (Pexbt 2);
iii)Copies of green card for Cherangany/Kapcherop /1665, 1666, 1776, 1777, 1780 and 1781 (Pexbt 3).
14.PW1 stated that he was given the title deed by the Land Registrar. He stated that he bought the land from Kisang Kandagor; that the seller transferred the documents to him and that he followed the right channel to acquire ownership.
15.In cross examination he stated that his land parcels are 1665, 1666, 1776, 1772, 1780 and 1781; that he bought parcels 1665 and 1666 from the late Kisang Kandagor and bought land for his daughter elsewhere.
16.He informed the court that the appellants have not transferred parcels 1665 and 1666 to him.
17.He stated that the other parcels were from Cherangany /Kapcherop193 measuring11.6 hectares. He stated that Kandagor died in 2003; that he had three sons, Peter Kipkorir Sang, Francis Kiyeng Sang, Joseph Kibishon Sang and Taprandich a daughter, who owned parcel No. 1666.
18.In re-examination he stated:-
“193 was subdivided in 1992. About 1664 it was for the late Joseph Kibelion Kipsang
1964 was subdivided in (Joseph’s) 1775, 1776, 1777 (mine).
Joseph Kibelion sold me 1780, it had a shop.
176 sold me the plot in 1989. I constructed. I had issues with title deed 2018. The sale agreement were earlier. The documents show 1995. I have produced title deed, search, green card to prove ownership.”
Defendants case
19.DW1 Joel Kiplagat Kipkorir, relied on his witness statement dated 15th December, 2021 after it was adopted as his evidence in chief. He produced the documents contained in the defendants’ list of documents dated 15th December, 2021 and 12th May, 2022 after they were adopted as the defendants’ exhibits. These are:-
i)Land sale agreement dated 12th September,1992;
ii)Letter dated 5th April, 1994;
iii)Greencard for Land Title No. Cherangany/ Kapcherop/ 193
iv)Greencard for Land Title No. Cherangany/ Kapcherop/1662
v)Greencard for Land Title No. Cherangany/ Kapcherop/1663
vi)Greencard for Land Title No. Cherangany/ Kapcherop/1664
vii)Greencard for Land Title No. Cherangany /Kapcherop/1665
viii)Greencard for Land Title No. Cherangany/ Kapcherop/1666
ix)Greencard for Land Title No. Cherangany /Kapcherop/1667
x)Fees receipt dated 23rd September, 2021
xi)Letter dated 12th August, 2021.
20.In cross examination, he stated that the plaintiff is his neighbour; that his father was Peter Kisang Kipkorir who died in 2021; that his grandfather died in 2003.
21.He informed that court that his father had not subdivided their land which originally belonged to his grandfather by the time he died and they were yet to do succession.
22.He stated that the plaintiff forged documents though he had not reported the matter; that he did not report the matter because the search which he obtained from the Land Registrar showed the land was still intact.
23.He stated that the Land Registrar did not participate in the family meeting in relation to subdivision of the land.
24.In re-examination, he stated that he is the administrator of the estate of Kisang Kendagor; that he did a search; that the Land Registrar rejected to implement the succession matter but never gave a reason for the rejection. He explained that the land was subdivided and hence the reason the succession documents could not be implemented. He informed the court that parcel No. 1664 had issues; that it had been given to Joseph Kibelion.
25.DW2 Simion Kiprotich Kibelion, relied on his witness statement dated 15th December, 2021 after it was adopted as his evidence in chief.
26.In cross examination he stated that he is not related to Patrick Kandie; that Kendagor was his grandfather and that Joseph Kibelion is his father; that his father died in 2017 and Kisang Kandagor died in 2003; that they filed a succession cause later; that he could not tell why his father failed to do succession. He informed that court that Kendagor had 3 children (Francis Kisang aged 70 or thereabout, Taprandich aged 80 or thereabout and Selina aged about 70 years) and one who is deceased.
27.DW3 Abulraham Thamu, County Commissioner Kapcherop division, informed the court that vide minute 47/1992, land parcel 193 was subdivided into two.
28.In cross examination, he stated that land parcel 193 was subdivided into 6 portions; that the land does not exist and that a succession case cannot be filed on a none existent land.
29.DW4 Selly Kibelio, informed the court that Kisang Kandagor was her father in law. She relied on her witness statement dated 24th October, 2022 after it was adopted as her evidence in chief.
30.In cross examination, she stated that Joseph Kibelio was her husband but they were seperated; that he died in 2017 but she had come to claim her husband’s land. She informed the court that she did not know whether her father-in-law had subdivided the land or not but stated that her husband had never sold the land where she resides.
31.In re-examination, she stated that after they separated she placed a caution on the land which she has never removed.
32.DW5 Francis Kiyeng Kisang, relied on his witness statement dated 24th October, 2022 after it was adopted as his evidence in chief. He stated that Kendagor Kisang was his father.
33.In cross examination, he stated that his father, Kisang Kendagor, died in 2002; that he knows the plaintiff but has never done a case with him; that he was not aware that the plaintiff bought the land as they had already subdivided it.
34.DW6 Selina Kimoi, relied on her witness statement dated 24th October, 2024 after it was adopted as her evidence-in-chief.
35.In cross examination she stated that she knows the plaintiff; that her father, Kisang Kendagor, did not sell his land. She contradicted herself by stating that her father sold the land to the plaintiff but the land had not been subdivided.
36.DW7 Taprandich Kisang alias Kimoi Kisang, relied on her witness statement dated 24th October, 2022 after it was adopted as her evidence-in-chief. She stated that Kendagor Kisang is her father; that they never sold the land. She denied recording any statement with her advocate.
37.DW8 Ndeg Teberious Land Registrar, Elgeyo Marakwet, stated that he was served with court summons to avail land register for land parcel number Cherangany/ Kapcherop/193 registered in the name of Kisang Kendagor. He stated that parcel No. 193 was subdivided into six portions on 22nd June 1995; 1662-1666. He produced the green cards and stated as follows:-
“From the original number 1662-Patrick Chesir Kanda-22/6/1995-0.2 hectares;
1665-Patrick Chesir Kanda-0.6 hectares. The rest are in the name of Kisang Kendagor-1662, 1663, 1667, 1665 and 1666, were transfered to Patrick Chesir Kanda.
1666-0.2 hectares.
I do not have minutes of the Land Control Board.
I was not given the parcels for 1665 and 1666, 1662, 1663, 1667 remained under the deceased name Kisang Kendagor.
1664 was transferred to Joseph Kibelion. There was no caution registered against the parcel. It had been closed on subdivision.
1664 was subdivided into 1775, 1781. I do not have the relevant parcels for the parcels.’’
38.DW8 produced an unsigned Land Control Board application form as Dexbt 2 and stated that there was a consent from the land board for parcel 1664 but it was not signed by Joseph. He stated that Minute 65/1994-1666 showed transfer by Kisang Kandagor from consent for AIC; Minute 59/1999-1664 showed transfer of land as a gift but a caution had been placed; Minute 111/1994-1664 showed the transfer had been rejected on two attempts.
39.He denied having produced minutes showing the land was transferred to Joseph Kibelion. He stated that parcel No. 1776 is a subdivision of 1664; that the transfer form was for parcel No. 1665 which had the transfer, caution and Land Control Board; that parcel No. 1660 had not been subdivided, parcel No.1776 was cancelled surrendered by Patrick Kanda.
40.In cross examination, he stated that parcel No. 193 does not exist; that it was subdivided in 1995; that the owner was Kisang Kandagor. He stated that Dexbt 1 dated 2nd April 2019, a search is a false representation. He stated that the documents by the counter claimers are null and void as parcel No. 193 was subdivided on 2nd June,1995 and there was a consent from the Land Control Board. He informed the court that there was an omission in the green card in the entry indicating that the land had not been subdivided yet it had been subdivided. He stated that there was no fraud; that the green card was not signed and the search was issued in 2019 as a result of the omission.
41.In re-examination, DW8 stated:-
“the omission should not be visited on the public. Dexbt 9 I cannot confirm whether there were issues.”
42.Upon considering the cases urged before her, the learned trial magistrate stated/held:-
“...From the evidence land parcel number Cherangany/Kapcherop/193 was originally registered in the name of Kisang Kandagor who passed on in 2003. The land was subdivided in 1995 into 6 portions and the original title deed No 193 was closed and new numbers issued as follows,1665, 1666, 1776, 1777, 1780 and 1781.
The plaintiff indicated that he had bought purchased land parcel number Cheragany/Kapcherop/1665 and 1666 from the original owner Kisang Kendagor (deceased); that in 1989 he also purchased land parcel No. Cherangany/Kapcherop/1776, 1777, 1780 and 1781 from Joseph Kibelio Kisang (deceased) and the son to Kisang Kandagor.
The defendants stated that the plaintiff fraudulently obtained title deeds; that he had bought 1½ acre from the late Kisang Kandagor and he never bought 3 acres of land from the late Joseph Kibelio who died in 2017.
The counter claimers produced a search for the year 2019 which indicated the details of ownership of Cherangany/Kapcherop/193 as Kisang Kandagor and the 3rd defendant (DW8) in cross examination stated that parcel number 193 does not exist since it was subdivided in 1995. That the there was no fraud since the land was subdivided in 1995, the green card was not signed and the search issued in 2019 was as a result of omission. DW3 stated in cross examination that the land was subdivided into 6 portions and it no longer exists and the succession cause could not be filed on an none existent land.
From the foregoing, it is clear that the plaintiff/1st defendant acquired ownership as a bona fide purchaser from the owners the late Kisang Kandagor and the late Joseph Kibelion and therefore he is the legal/rightful owner of the suit parcels of land, Cherangany/ Kapcherop 1665 , 1666, 1776, 1777, 1780, 1781....”
43.Dissatisfied with the decision of the trial court, the defendants/appellants appealed to this court on the grounds that the learned trial magistrate erred by:-
1.Failing to consider the defendants’/counterclaimers’ evidence on record;
2.Failing to consider the plaintiff’s evidence in cross examination;
3.Entering judgment for the plaintiff/1st defendant in the counterclaim without sufficient evidence;
4.Failing to properly evaluate the evidence on record thereby arriving at a wrong decision;
5.Shifting the legal and evidential burden of proof of the plaintiff’s case to the defendants’/counterclaimers;
6.Disregarding the fact that the mutation form for subdivision of land parcel Cherangany/Kapcherop /1664 was never signed by the proprietor and thus the purported subdivision that gave rise to the suit land parcels No. 1776, 1777, 1780 and 1781 is null and void ab initio;
7.Upholding the plaintiff’s title deed for parcel numbers 1666, 1776, 1777, 1780 and 1781 when the said title deeds were acquired illegally, unprocedurally and through a corrupt scheme;
8.Failing to find that the defendants/counterclaimers’ discharged the legal and evidential burden of proof of the counterclaim to the required standard thereby arriving at erroneous decision.
9.Ignoring the 3rd defendant’s (Land Registrar) evidence in the counterclaim that the plaintiff had returned the title deed for land parcel Cherangany/kapcherop 1775 for cancellation and yet he is the one who caused the same to be processed;
10.Holding that the plaintiff lawfully purchased the suit parcels No. 1666, 1776, 1777, 1780 and 1781 from the original proprietors without being shown the respective land sale agreements;
11.Failing to consider the defendants/counter claimers’ evidence that land parcel No. 1666 was transferred to AIC Church by the proprietor and that land parcel No. 1664 was never subdivided by the proprietor;
12.Failing to consider the glaring gaps in the plaintiff’s case thereby arriving at an erroneous decision.
44.The appellants pray that their appeal be allowed in its entirety with costs to them; that the judgment of the trial court delivered on 16th December, 2024 be set aside in its entirety and be substituted with an order allowing their counterclaim and dismissing the 1st respondent’s suit with costs to them.
45.Pursuant to directions given on 17th June, 2025 the appeal was disposed of by way of written submissions which l have read and considered.
SUBMISSIONS
Appellant’s submissions
46.In his submissions filed on 17th September, 2025 the appellants frame the following as the issues for the court’s determination-
i)Whether the trial court erred in law and in fact in entering judgment for the plaintiff/respondent in the absence of sufficient evidence?
ii)Whether the learned trial magistrate failed to consider material evidence by the defendants/counterclaimants /appellants;
iii)Whether the title deeds produced by the plaintiff/1st respondent were procedurally and lawfully acquired;
iv)Whether the burden of proof was wrongly shifted from the plaintiff/1st respondent to the appellants.
47.The appellant gives an exposition of the law regarding burden of proof and standard of proof in civil cases in respect of the case hereto and submits that the 1st respondent was unable to demonstrate the genesis of his purported acquisition of the suit parcels. It is the appellant’s case that he, the appellant, presented evidence that demonstrated that it was not possible for 1st respondent to have bought the suit parcels from the late Joseph Kibelio. In that regard, the appellant explains that the deceased’s widow, Jelly K. Kibelio had lodged a caution at the land’s registry expressly barring any transfer or sale of land without her consent. It is the apellant’s case that the caution remained unlifted at all material times. It is the appellant’s further case that he demonstrated that no legal subdivision of the parent title, Cherangani/Kapcherop/1664 had occurred. In that regard, he relied on the official search record dated 2nd April, 2019 and what he terms unauthenticated maps which confirmed that the land remained intact.
48.The appellant further submits/contends that the title deeds presented by the plaintiff were devoid of critical authentication features required under Section 27 of the Land Registration Act like name and registration number of the issuing Land Registrar and the official seal of the registry. It is the appellant’s case that those omissions cast serious doubt on the authenticity of the documents produced in evidence by the 1st respondent.
49.The appellant further submits that the 1st respondent’s credibility was undermined during cross examination because he was unable to produce either the sale agreements or receipts for paymen of stamp duty in respect of sale or transfer of the suit parcels claiming that they were stolen.
50.Based on the decisions in the cases of Daudi Kiptugen v. Commissioner of Lands & 4 others (2015) e KLR, Dina Management Ltd v. County Government of Mombasa & 5 others, the appellant urges this court to find that he has made up a case for setting aside the judgment of lower court and being granted the orders sought in the memorandum of appeal.
Respondent’s submissions
51.In his submissions filed on 22nd September, 2025, the 1st respondent has identified four issues for the court’s determination namely:-
i)Whether he is a bona fide purchaser;
ii)Whether the absence of the deceased’s signature on the Land Control Board Consent invalidates the transaction;
iii)Whether the trial court erred in its decision; and
iv)Who bears the costs of the suit?
52. Regarding the 1st issue, whether the 1st respondent is a bona fide purchaser, the 1st respondent submits as follows:-
“...The 1st respondent honestly purchased these parcels. It is important to note that these transactions happened during the lifetime of the deceased persons. Further the certificates of search show that the plaintiff/1st respondent, Patrick Chesir Kanda became the registered proprietor of these parcels in 1995 even in the case of where the titles were issues on a later date, 1776, 1666, 1665 and 1781.
The 1st respondent holds certificates of title to all the said parcels, titles whose validity has not been challenged by the land registrar.
Section 26 of LRA provides that a certificate of title is to be taken by the court as prima facie evidence that the person named therein is the absolute and indefeasible owner.
The appellants have not demonstrated any fraud, misrepresentation or illegality attributable to the respondent that would impeach his title under section 26(1)(a) or (b).
It is therefore our submission that the plaintiff is a bona fide purchaser. To emphasize we rely on section 24 of Land Registration Act No. 3 of 2012 which states that the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land to together with all rights and privileges belonging or appurtenant thereto.”
53.On whether the absence of the deceased’s signature on the Land Control Board Consent invalidates the transaction, the respondent states/submits as follows:-
“It is not in dispute that that the consent form on record does not bear the swignature of the deceased vendor. However, the Land Control Board in its wisdom considered the application and allowed it in 1994.
Under Section of the Land Control Act, the validity of a controlled transaction depends on the consent of the Board not the physical signature of the vendor on the consent form. Once the Board has given approval, the transaction cannot be invalidated merely on account of an omission of signature where the substantive approval has been granted.
The Court of Appeal in the case of Sammy Likuyani Itaya v Wycliffe Itaya (2016) e KLR emphasized that the Board’s consent, once issued, cannot lightly be impeached unless fraud or collusion is proved. No such fraud or collusion has been pleaded or proved against the respondent.”
54.As to whether the trial court erred in its decision, the 1st respondent states/submits as follows:-
“The trial court found as as a matter of fact that the appellants had encroached upon the 1st respondent’s land. Evidence was adduced through the 1st respondent and corroborated by the testimony of the land registrar.
Trespass is an actionable tort irrespective of whether any damage is caused. The appellant, not being the registered propriertor nor having any legal interest had no right of entry upon the land.
The learned trial magistrate correctly found trespass proved and entered judgment for the respondent.....
It is noteworthy that the 1st respondent has had uninterrupted possession since 1995.
The judgment of the trial court was based on cogent evidence and proper application of the law. The Honourable court, being an appellate court, ought not to interfere with findings of fact unless they were based on no evidence or misapprehension of the evidence or unless the trial court applied the wrong principles.
In the present case, none of those grounds have been established by the appellants. The 1st respondent lawfully acquired title to the suit land, the Land Control Board consent was validly issued and the appellant’s occupation amounts to trespass to land.”
55.On costs, the 1st respondent has placed reliance on Section 27 of the Civil Procedure Act.
Analysis and determination
56.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 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.
57.The sole issue arising from the appeal is whether the learned trial magistrate properly directed herself on the issues of law and fact arising from the case presented before her.
58.Concerning that issue, upon re-evaluation of the case pleaded by the parties, the evidence adduced in respect thereof and the submissions by the parties, I find that the appellants did not prove their pleaded case to the required standard. They disclosed no reasonable ground for challenging the decision of the trial court. The learned trial magistrate aptly captured the issues of law and fact arising from the case presented before her and properly directed herself on the matters of law and fact arising therefrom.
59.The upshot of the foregoing is that the appeal lacks merit and is for dismissal. Consequently, I dismiss it with costs to the respondents.
60.Orders accordingly.
Judgment dated, signed and delivered at Iten this 26th day of November, 2025.
Judgment delivered virtually in the presence of:-
N/A for the Appellant
N/A for the 1st Respondent
Mr. Kutei holding brief for Mr. Kwame for the 2nd & 3rd Respondents
Court Asst.: Christine '