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( An Appeal form the Judgement of Hon R.T Ateya (PM) in Kabarnet Chief Magistrate’s Court E&L Case No. E021 of 2022 delivered on 22nd January, 2025)
Introduction
1.By a plaint dated 30th July, 2022 the plaintiff, now appellant, instituted a suit in the lower court to wit Kabarnet ELC Case No. E021 of 2022 seeking judgment against the defendant, now respondent, for the following reliefs/orders:-
a)That parcel No.3577 Kapkoiwa Adjudication Section be and is hereby cancelled from the register and the portion amalgamated with parcel No. 1350 and the same be registered in the name of the plaintiff;
b)That registering parcel No. 3577 in the name of the defendant was an error and the same is hereby rectified and the parcel restored back to parcel number 1350-Kapkoiwa Adjudication Section;
c)Mesne profit;
d)Costs;
e)Interest at court rate;
f)Any other relief that the Honourable court may deem fit to grant.
2.As can be discerned from the averments/contentions in the plaint, the appellant’s suit was premised on the grounds that he is the owner of the parcel of land known as Plot No.1350 from which the suit property, Plot No.3577, was created; that the suit property was, on account of fraud committed by the respondent during the process of land adjudication, recorded in the name of the respondent.
3.The particulars of fraud leveled against the respondent are listed in paragraph 12 of the plaint thus:-
a)Misleading the land officers that he (defendant) had actually exchanged his other land with the plaintiff a fact he knew to be false;
b)Misleading the plaintiff’s wife to believe that, he had exchanged another land with her husband, a fact, he (defendant) knew to be false;
c)Failing to honour his promises of offering his portion of land for exchange with that for the plaintiff;
d)Making a false and misleading promise over a land which does not exist for exchange.
4.The defendant filed a statement of defence dated 5th December, 2022 in which he denied the allegations leveled against him and contended that he exchanged the suit property with another parcel; that the appellant consolidated the suit property with his land Parcel No.1350 and also consolidated the parcel that was exchanged for the suit property with his land parcel number 1345 in Kapkoiwo adjudication section; that upon exchange of the land he, the defendant, immediately took possession of the portion given to him by the appellant; that the appellant’s mother objected to his possession of the exchanged portion and installed his son on the land thereby frustrating the mutual agreement for exchange hence he did not derive any benefit from the purported exchange; that as a result of the frustration by the appellant’s family, he filed objection proceedings to reclaim back his land which objection was allowed with the tacit consent of the appellant. The respondent further contended that the appellant’s suit was, by dint of Section 7 of the Limitation of Actions Act Cap 22 Laws of Kenya, time barred.
5.When the case came up for hearing, the parties by themselves and through their witnesses led evidence in support of their pleaded cases.
7.Upon considering the case urged before her, the learned trial magistrate stated/held:-
“The issue before court is whether registration of land parcel 3577 should be cancelled and the same be amalgamated with plot No.1350 belonging to the plaintiff.
The plaintiff’s claim is that the defendant obtained registration of plot No. 3577 fraudulently. The defendant raised an objection after adjudication in the year 2006 and the plaintiff’s wife conceded to the same leading to the subdivision of the original plot. The understanding was that the defendant was to give another portion of land to be registered in the plaintiff’s name. That the plaintiff’s wife was tricked during the fictitious objection case.
The defendant’s evidence is that he had indeed agreed to exchange land with the plaintiff but when he went to take possession, the plaintiff’s mother chased him from the land on the ground that the plaintiff didn’t have the authority to exchange land that didn’t belong to him. It was at that point that he raised an objection and got his land back.
It would have been instructive if the plaintiff had produced maps showing the different parcels of land in contention to assist the court have a mental picture of what was on the ground. Be that as it may, the plaintiff needed to prove his case on a balance of probability. He claims that the actions by the defendant were fraudulent. It is stated that the plaintiff had not been home for several years and that all this happened without his knowledge. The objection proceedings were attended by the wife to plaintiff. The decision was never appealed.
The defendant claimed the land in question was bought from DW3. That the parcel that he has registered in his name was not the one that belonged to the plaintiff….
From the above evidence, both parties claim that the other never fulfilled their end of the agreement to exchange land. There is however evidence that the plaintiff was aware of the objection proceedings and even sent a representative. As already stated, having a drawn representation of these parcels of land would have greatly assisted the court but none of the parties availed them.
The court is tasked to make its decision based on evidence before it, on a balance of probability. In the instance case, the balance tilts in favour of the defendant.
I find that the plaintiff has failed to prove his case and the same is hereby dismissed with costs to the defendant.”
8.Dissatisfied with the decision of the trial court, the appellant appealed to this court on the grounds that the learned trial magistrate erred by:-
i)Dismissing his case with costs without giving sufficient reasons;
ii)Relying on extraneous issues and facts in her judgment;
iii)Being biased in favour of the defendant;
iv) Failing to call for maps and drawings despite cknowledging that such evidence could have assisted her in resolving the dispute brought before her;
v)By giving credence to the defence witnesses’ evidence and yet it was a sham made up of concoctions, contradictions and hearsay and meant to corroborate the defendant’s evidence;
vi)Failing to evaluate the entire evidence and give cogent and legally sound reasons for the decision made;
vii)Not considering the evidence of the plaintiff and his witnesses in totality and more specifically that of PW3 which was vital in determination of the issue of exchange of land between the plaintiff and the defendant;
viii)Failing to interrogate further the allegation by the defendant (DW1) that he was chased by the plaintiff’s mother and brother from his share of the exchanged parcel of land;
ix)By giving a judgment which is not backed by convincing reasons.
9.The appellant prays that the judgment of the lower court be set aside and his appeal be allowed with costs.
10.Pursuant to directions given on 17th September, 2025 the appeal was disposed of by way of written submissions.
11.In his submissions filed on 2nd October, 2025 the appellant submits/contends that:-
i)The learned trial magistrate did not evaluate, in depth, the evidence presented by all the parties, their respective witnesses, the documents produced in evidence and the parties’ submissions. In that regard, the appellant refers to paragraph 14 of the lower court’s judgment where the learned trial magistrate indicates that she considered the evidence by the plaintiff and the defendants and their submissions and complains that the learned trial magistrate failed to show how she considered the evidence. The learned trial magistrate is also said to have failed to demonstrate how she considered the documents produced in evidence by the parties and the parties’ submissions.
ii)The honourable court was unable to show clearly why it thinks that the plaintiff failed to prove fraud against the defendant;
iii)The court failed to state the weight it gave to the letters written by the Land Adjudication Officer telling the defendant that he had reneged his promise to give the plaintiff land that he had promised in exchange for the one already given to him by the defendant thereby making the letters of no evidential value.
iv)The learned trial magistrate failed to appreciate that the defendant had made a continuing promise that he would give the plaintiff another land in exchange. In that regard, the appellant makes reference to PW3’s evidence to the effect that the defendant had promised to give the plaintiff land in exchange with the suit property, parcel number 3577. The respondent is said to have made the promise in the presence of the Land Adjudication Officer who later wrote several letters to the defendant to honour his promise or else return the suit property to the appellant.
v)As a result of the respondent’s promise, the appellant could not appeal against the objection decision. On account of that reason/explanation, the appellant submits that the learned trial magistrate erred when she blamed him for having failed to appeal against the decision of the Land Adjudication Officer.
vi)That the learned trial magistrate failed to interrogate the evidence of PW2 and PW3. The learned trial magistrate is also said to have failed to consider the evidence of the respondent to the effect that he inherited the suit property from his father vis a vis the evidence of DW3 to the effect that he is the one who sold the suit property to the respondent.
vii)That the contradictions in the testimony of the respondent and DW3 concerning the respondent’s claim to the suit property are critical in determination of the question as to whether the respondent acquired the suit property through inheritance or as a gift from DW3.
viii)That the learned trial magistrate accused the appellant to be a deceitful person without laying basis for doing so.
ix)That there are several unbelievable accounts offered by the respondent and his witnesses which, if they were properly evaluated by the learned trial magistrate, she may have not arrived at the conclusion she arrived at. For instance the appellant wonders why the respondent took very long to claim the suit property (from 1995 to 2006); failure by the respondent to disclose the number of the land which he had exchanged with the suit property and the respondent’s failure to join the Land Adjudication Officer to the suit yet he contended that he (the appellant) colluded with him (Land Adjudication Officer) and other land officers with the aim of taking away his land. The appellant also wonders why the respondent ignored several summons issued to him by the area leaders as well as the Land Adjudication Officer. The appellant further wonders why the Land Adjudication Officer wrote the letters he (appellant) produced in evidence if he knew that it was he (the appellant) who frustrated the issue of land exchange.
x)That the respondent confirms that parcel No. 1345 is still registered in his name meaning that he still owns it contrary to his claim that he had been frustrated by the appellant’s mother from taking possession of it.
xi)That the learned trial magistrate introduced extraneous issues into the judgment like need for maps yet his case was not a boundary dispute.
xii)That the learned trial magistrate was biased in her decision or outcome with no justification or reason given, accused him of being a deceitful witness and failed to consider and evaluate the respondent’s evidence which he submits is weak and contradictory.
12.On his part, the respondent identified three issues for the court’s determination. These are:-
i)Whether the trial court’s judgment complied with the provisions of order 21 Rule 4 of the Civil Procedure Rules;
ii)Whether the trial court incorporated extraneous matters or facts in its judgment and/or was biased towards the respondent; and
iii)Whether the respondent proved his case on a balance of probability.
13.On whether the trial court’s judgment complied with the provisions of Order 21 Rule 4 of the Civil Procedure Rules, the respondent submits that the purpose of the rule is to ensure that a judgment is reasoned, clear and demonstrates that the court applied its mind to the issues before it; that in the instant case, the trial magistrate summarized the case, the evidence presented by the parties, the issues for determination, gleaned pleadings (fraud, limitation, jurisdiction among others) analyzed them and rightly came to the conclusion that the appellant had failed to appeal against the objection ruling hence the claim on fraud was unsustainable.
14.The respondent further submits that in essence, the judgment reflects the case for the appellant and the defence advanced by the respondent. The respondent made reference to the case of Peter Ng’ang’a Muiruri vs. Credit Bank & another (2008)e KLR, where the test of a valid judgment was espoused by the Court of Appeal and submits that the judgment in the case hereto met that test. It is the respondent’s case that if there were any omissions in the judgment, they were minor and did not occasion the appellant any prejudice and/or affect the substance of the judgment. The respondent further submits that this court is clothed with power to re-evaluate the evidence tendered and arrive at its own independent decision, even though it did not have the benefit of the demeanor of the witnesses.
15.On whether the trial court incorporated extraneous matters or facts in its judgment and/or was biased towards the respondent, the respondent submits that the trial court did not import and/or incorporate extraneous issues in its judgment, which were not pleaded by the parties; that a perusal of the judgment reveals that it was grounded on the pleadings, evidence adduced and the submissions proffered by the parties; that the court evaluated the evidence presented and applied the law relevant to the facts and came to the conclusion that the appellant claim was premised on deceit and concealment of material facts.
16.The appellant’s contention that the trial court descended onto the scene of litigation and incorporated extraneous issues into its judgment is said to be unfounded; that the trial court had the opportunity to observe the witnesses’ demeanor and rightly came to the conclusion that the plaintiff’s claim was founded on deceit, dishonesty and/or concealment of material facts from the court and that a perusal of the appellant’s pleadings, witness statements and evidence tendered reveals a choreographed deceit geared towards dispossessing the respondent his parcel of land.
17.As to whether the respondent proved his case on a balance of probabilities, the respondent has submitted/addressed the court as follows:-
“This is the crux of the matter which the appellant ought to be addressing himself on and not the allegation that the trial court failed to evaluate and/or incorporated extraneous issues into the judgment.
To avoid replicating ourselves on this subject head, we wish to associate ourselves with our submissions in the lower court, dated 27th September 2024 where we have substantially addressed the above issue.
We have demonstrated herein above that during land consolidation and adjudication at Kapkoiwo Adjudication Section the appellant and the respondent exchanged parcels of land in line with the terms of adjudication that owners with fragments attempt to consolidate them through exchange.
In the instant case, the exchange did take place as enunciated in the background herein above. However, it was frustrated by the appellant’s mother who took over the portion given to the respondent by the appellant prompting the respondent to file objection number 47 of 2006 to reclaim his land back which the appellant did not object to. In fact, he sent his spouse, PW3, with express instructions to concede to the objection. Consequently, the objection was allowed and the respondent’s parcel was excised from the appellant’s parcel of land No. Baringo/Kapkoiwo/1350 and given another number, Baringo/Kapkoiwo/3577.
The respondent has been in possession, occupation and use of the suit property since 2006 without any objection from the appellant and has peacefully utilized it and even bequeathed it to his son who has erected his matrimonial home therein without any objection from the appellant as aforesaid.
It is manifestly clear that the appellant was aware of the respondent’s possession and use of the property and chose not to do anything until 2018 when he started spinning a lie that the respondent had tricked his wife to give him a portion of his property in exchange of a property the respondent was to give him. This contention is unfounded in that he concedes in his demand notice of 5th November 2020 and pleadings that he authorized his spouse to represent him at the objection and concede to the respondent’s objection.
In his scheme of machinations against the respondent the objection filed by the respondent was the beginning of the exchange and that PW3 had conceded to the objection on the basis that the respondent was to give them another parcel of land in exchange which is unfounded.
To buttress his illegal claim on the respondent’s property he recruited the services of PW2 who unlawfully and illegally claimed that the suit property formed part of the parcel of land he had sold to the appellant which is unfounded as the respondent did not demonstrate that the suit property did not form part of land PW2 had sold to the appellant.
The appellant concedes to the exchange. However, when he was challenged on why he did not appeal against the objection ruling if he was dissatisfied, he alleges that the respondent kept re-assuring him that he would give him land. This contention is contradicted by his own pleadings and demand notice of 5th November 2020 where he states that he had send PW3 to represent him during objection proceedings and concede to the excision of the suit property. That upon excision of the suit property the respondent refused and/or reneged on their agreement.
It is clear from the proceedings that the appellant had authorized his spouse to represent him in the objection and was aware that the suit property had been ceded to the respondent and chose not to appeal. The respondent and his son have been on the suit property for a very long time and the appellant saw them every day for over 12 years and never raised any issue. It’s therefore our contention that the appellant’s claim on the suit property is unfounded.
As earlier stated, the appellant led choreographed deceitful and capricious evidence imbued with falsehoods and concealment of material facts from the court with the sole intention of defrauding and/or depriving the respondent of his parcel of land.
It is manifestly clear that the trial court was able to discern the deceitful acts of the appellant and correctly came to the conclusion that the appellant’s claim on the suit property is founded on deceit….
We submit that the appellant’s contention that the trial court failed to analyze and/or evaluate the evidence and/or issues and/or was biased against the appellant is unfounded. At any rate, his claim on the suit property, if any, was time barred and his failure to appeal against the objection ruling ousted the court’s jurisdiction.”
18.Arising from the foregoing submissions/explanations, the respondent urges this court to uphold the trial court’s judgment and dismiss the appeal with costs.
Analysis and determination
19.In exercise of the duty vested in this court as a first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard, see Selle & Another vs. Associated Motor Boat Co. Ltd (1968) E.A 123 and Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988) KLR 348.
20.The evidence adduced before the lower court, and in particular, the proceedings of the objection proceedings (Pexbt 8) and the appellant’s demand letter dated 5th November, 2020 (Pexbt 2) show or suggest that there was exchange of land between the appellant and the respondent way before the objection proceedings were lodged. Whereas the plaintiff claims that the defendant promised to give him land in exchange to the land he got pursuant to the objection, the objection proceedings do not bear out that fact. The proceedings clearly indicate that the reason for objection was because the appellant had given the respondent a portion of land parcel number 1350 in exchange for a portion he, the respondent, had also given to the appellant. The appellant’s wife admitted/acknowledged the account offered by the respondent by stating as follows:-
“I am representing my husband and he is away at his place of work in Iten town. He has given the objector a portion of his land in exchange of another portion belonging to the objector.
On his behalf I accept the parcel to be subdivided so that the objector gets a separate plot No.”
21.In her testimony before court the appellant’s wife (PW3) stated as follows:-
“… Referred to objection document. I recall the document. I went to talk about Cherutoi’s land. Cherutoi told me that there was land to be exchanged. He told me that he had talked with my husband. I went gave him the land but he didn’t come to show me the portion he was to give my husband. My husband Joshua Chemwetich came and asked why Cherutoi had the land. That’s why we are in court.”
22.In re-examination, PW3 stated as follows:-
“Joshua Chemwetich is my husband. He bought land from John Cheptumo. My husband went to Iten in 2007. He took years before he came back. He went for work. He stayed for about two years. I put the objection in 2006. At the time, my husband wasn’t home. He came back after the land had changed. A year hadn’t passed when he came back. I never told him Cherutoi had the land. I told him when he came back. He went talked to Cherutoi. I never said I was appearing on behalf of my husband. The person at Chepsergon lands said he told the defendant to give me land. He was to continue tilling the land until he gave us the other portion. Cherutoi came measured the land for himself. He has tilled the land to date. My husband did not lodge an appeal. Son to defendant is living on the land. He has been living there for over 10 years. I don’t know the number of the land he was to give us. My husband never filed an objection on the defendant’s land. I don’t know Cherutich Chemwetich. I don’t know if my husband agreed to exchange land with the defendant. I don’t know about the exchange of land. It is not true we refused to give defendant land. We were buying the whole parcel of land. We want the land the defendant is occupying……………
We went to Mr. Chepsergon with defendant. We were to exchange land with Cherutoi. Defendant was to give me land. He never gave us the land but he took our portion. We would ask for the land and defendant told us to do what we wanted. The land previously belonged to John Cheptumo who sold us the land. The land belongs to us.”
23.I have considered the testimony of the appellant’s wife before the court and what she stated before the Land Registration Officer in the objection proceedings. I find that evidence to be contrary to what she stated before the Land Registration Officer. Whilst PW3 claimed that respondent promised to give them land, the objection proceedings do not bear out that fact. Instead, the proceedings indicate that exchange of the parcels had already taken place.
24.The respondent, through his testimony and the testimony of his witness, Miningwo Chemjor (DW3), led evidence to the effect that the appellant had offered a portion of his family’s land adjacent to the respondent’s parcel of land, plot No.1345, that the appellant’s family reneged on the agreement for exchange leading to filing of the objection proceedings by the respondent to get back his portion which he had exchanged with the appellant leading to its amalgamation with plot No. 1350 belonging to the appellant.
25.Upon considering the totality of the evidence adduced before her, the learned trial magistrate found the account offered by the respondent to be more believable compared to the account offered by the appellant whom she found not to be an honest witness.
26.Whilst the appellant faults the learned trial magistrate for finding him to not be a truthful witness, upon re-evaluation of the appellant’s pleaded case vis-à-vis the totality of the evidence adduced before the lower court, I find no basis for departing from the determination by the learned trial magistrate that the appellant is not a truthful witness. Whereas the appellant in his pleadings claimed that there was no agreement for exchange of land between him or his family with the respondent, the evidence adduced by the parties, both oral and documentary, shows that there was an agreement for exchange of land and that it is after the agreement was frustrated by the appellant’s family members that the objection proceedings were filed with a view of returning the land the appellant had gotten from the respondent pursuant to the agreement for exchange of land. Interestingly, despite having vehemently denied existence of any agreement of land between him and the respondent, the appellant appears to base his claim on the agreement or promise in respect thereof yet claims that the agreement was none existent.
27.Having carefully re-evaluated the evidence adduced before the lower court, I find it incapable of proving the pleaded fraud against the respondent. Like the learned trial magistrate, I find the account offered by the respondent and the respondent’s witnesses concerning the circumstances upon which the respondent acquired his interest to the suit property to be more believable than the account offered by the appellant.
28.Concerning the appellant’s claim that the learned trial magistrate failed to call for evidence in form of maps, it was not the duty of the court to help the parties patch their otherwise weak case. In that regard, see Section 107 of the Evidence Act which places the burden of proof on he who alleges and not the Court.
29.The upshot of the foregoing is that the appeal has no merit. Consequently, I dismiss it with costs to the respondent.
Dated, signed and delivered virtually at Kabarnet this 1st day of December, 2025.
In the presence of:
Ms Baraza for the appellant.
Mr. Chebii for the Respondent.
Court Assistant; Ian.
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( An Appeal form the Judgement of Hon R.T Ateya (PM) in Kabarnet Chief Magistrate’s Court E&L Case No. E021 of 2022 delivered on 22nd January, 2025)
Introduction
1.By a plaint dated 30th July, 2022 the plaintiff, now appellant, instituted a suit in the lower court to wit Kabarnet ELC Case No. E021 of 2022 seeking judgment against the defendant, now respondent, for the following reliefs/orders:-
a)That parcel No.3577 Kapkoiwa Adjudication Section be and is hereby cancelled from the register and the portion amalgamated with parcel No. 1350 and the same be registered in the name of the plaintiff;
b)That registering parcel No. 3577 in the name of the defendant was an error and the same is hereby rectified and the parcel restored back to parcel number 1350-Kapkoiwa Adjudication Section;
c)Mesne profit;
d)Costs;
e)Interest at court rate;
f)Any other relief that the Honourable court may deem fit to grant.
2.As can be discerned from the averments/contentions in the plaint, the appellant’s suit was premised on the grounds that he is the owner of the parcel of land known as Plot No.1350 from which the suit property, Plot No.3577, was created; that the suit property was, on account of fraud committed by the respondent during the process of land adjudication, recorded in the name of the respondent.
3.The particulars of fraud leveled against the respondent are listed in paragraph 12 of the plaint thus:-
a)Misleading the land officers that he (defendant) had actually exchanged his other land with the plaintiff a fact he knew to be false;
b)Misleading the plaintiff’s wife to believe that, he had exchanged another land with her husband, a fact, he (defendant) knew to be false;
c)Failing to honour his promises of offering his portion of land for exchange with that for the plaintiff;
d)Making a false and misleading promise over a land which does not exist for exchange.
4.The defendant filed a statement of defence dated 5th December, 2022 in which he denied the allegations leveled against him and contended that he exchanged the suit property with another parcel; that the appellant consolidated the suit property with his land Parcel No.1350 and also consolidated the parcel that was exchanged for the suit property with his land parcel number 1345 in Kapkoiwo adjudication section; that upon exchange of the land he, the defendant, immediately took possession of the portion given to him by the appellant; that the appellant’s mother objected to his possession of the exchanged portion and installed his son on the land thereby frustrating the mutual agreement for exchange hence he did not derive any benefit from the purported exchange; that as a result of the frustration by the appellant’s family, he filed objection proceedings to reclaim back his land which objection was allowed with the tacit consent of the appellant. The respondent further contended that the appellant’s suit was, by dint of Section 7 of the Limitation of Actions Act Cap 22 Laws of Kenya, time barred.
5.When the case came up for hearing, the parties by themselves and through their witnesses led evidence in support of their pleaded cases.
7.Upon considering the case urged before her, the learned trial magistrate stated/held:-
“The issue before court is whether registration of land parcel 3577 should be cancelled and the same be amalgamated with plot No.1350 belonging to the plaintiff.
The plaintiff’s claim is that the defendant obtained registration of plot No. 3577 fraudulently. The defendant raised an objection after adjudication in the year 2006 and the plaintiff’s wife conceded to the same leading to the subdivision of the original plot. The understanding was that the defendant was to give another portion of land to be registered in the plaintiff’s name. That the plaintiff’s wife was tricked during the fictitious objection case.
The defendant’s evidence is that he had indeed agreed to exchange land with the plaintiff but when he went to take possession, the plaintiff’s mother chased him from the land on the ground that the plaintiff didn’t have the authority to exchange land that didn’t belong to him. It was at that point that he raised an objection and got his land back.
It would have been instructive if the plaintiff had produced maps showing the different parcels of land in contention to assist the court have a mental picture of what was on the ground. Be that as it may, the plaintiff needed to prove his case on a balance of probability. He claims that the actions by the defendant were fraudulent. It is stated that the plaintiff had not been home for several years and that all this happened without his knowledge. The objection proceedings were attended by the wife to plaintiff. The decision was never appealed.
The defendant claimed the land in question was bought from DW3. That the parcel that he has registered in his name was not the one that belonged to the plaintiff….
From the above evidence, both parties claim that the other never fulfilled their end of the agreement to exchange land. There is however evidence that the plaintiff was aware of the objection proceedings and even sent a representative. As already stated, having a drawn representation of these parcels of land would have greatly assisted the court but none of the parties availed them.
The court is tasked to make its decision based on evidence before it, on a balance of probability. In the instance case, the balance tilts in favour of the defendant.
I find that the plaintiff has failed to prove his case and the same is hereby dismissed with costs to the defendant.”
8.Dissatisfied with the decision of the trial court, the appellant appealed to this court on the grounds that the learned trial magistrate erred by:-
i)Dismissing his case with costs without giving sufficient reasons;
ii)Relying on extraneous issues and facts in her judgment;
iii)Being biased in favour of the defendant;
iv) Failing to call for maps and drawings despite cknowledging that such evidence could have assisted her in resolving the dispute brought before her;
v)By giving credence to the defence witnesses’ evidence and yet it was a sham made up of concoctions, contradictions and hearsay and meant to corroborate the defendant’s evidence;
vi)Failing to evaluate the entire evidence and give cogent and legally sound reasons for the decision made;
vii)Not considering the evidence of the plaintiff and his witnesses in totality and more specifically that of PW3 which was vital in determination of the issue of exchange of land between the plaintiff and the defendant;
viii)Failing to interrogate further the allegation by the defendant (DW1) that he was chased by the plaintiff’s mother and brother from his share of the exchanged parcel of land;
ix)By giving a judgment which is not backed by convincing reasons.
9.The appellant prays that the judgment of the lower court be set aside and his appeal be allowed with costs.
10.Pursuant to directions given on 17th September, 2025 the appeal was disposed of by way of written submissions.
11.In his submissions filed on 2nd October, 2025 the appellant submits/contends that:-
i)The learned trial magistrate did not evaluate, in depth, the evidence presented by all the parties, their respective witnesses, the documents produced in evidence and the parties’ submissions. In that regard, the appellant refers to paragraph 14 of the lower court’s judgment where the learned trial magistrate indicates that she considered the evidence by the plaintiff and the defendants and their submissions and complains that the learned trial magistrate failed to show how she considered the evidence. The learned trial magistrate is also said to have failed to demonstrate how she considered the documents produced in evidence by the parties and the parties’ submissions.
ii)The honourable court was unable to show clearly why it thinks that the plaintiff failed to prove fraud against the defendant;
iii)The court failed to state the weight it gave to the letters written by the Land Adjudication Officer telling the defendant that he had reneged his promise to give the plaintiff land that he had promised in exchange for the one already given to him by the defendant thereby making the letters of no evidential value.
iv)The learned trial magistrate failed to appreciate that the defendant had made a continuing promise that he would give the plaintiff another land in exchange. In that regard, the appellant makes reference to PW3’s evidence to the effect that the defendant had promised to give the plaintiff land in exchange with the suit property, parcel number 3577. The respondent is said to have made the promise in the presence of the Land Adjudication Officer who later wrote several letters to the defendant to honour his promise or else return the suit property to the appellant.
v)As a result of the respondent’s promise, the appellant could not appeal against the objection decision. On account of that reason/explanation, the appellant submits that the learned trial magistrate erred when she blamed him for having failed to appeal against the decision of the Land Adjudication Officer.
vi)That the learned trial magistrate failed to interrogate the evidence of PW2 and PW3. The learned trial magistrate is also said to have failed to consider the evidence of the respondent to the effect that he inherited the suit property from his father vis a vis the evidence of DW3 to the effect that he is the one who sold the suit property to the respondent.
vii)That the contradictions in the testimony of the respondent and DW3 concerning the respondent’s claim to the suit property are critical in determination of the question as to whether the respondent acquired the suit property through inheritance or as a gift from DW3.
viii)That the learned trial magistrate accused the appellant to be a deceitful person without laying basis for doing so.
ix)That there are several unbelievable accounts offered by the respondent and his witnesses which, if they were properly evaluated by the learned trial magistrate, she may have not arrived at the conclusion she arrived at. For instance the appellant wonders why the respondent took very long to claim the suit property (from 1995 to 2006); failure by the respondent to disclose the number of the land which he had exchanged with the suit property and the respondent’s failure to join the Land Adjudication Officer to the suit yet he contended that he (the appellant) colluded with him (Land Adjudication Officer) and other land officers with the aim of taking away his land. The appellant also wonders why the respondent ignored several summons issued to him by the area leaders as well as the Land Adjudication Officer. The appellant further wonders why the Land Adjudication Officer wrote the letters he (appellant) produced in evidence if he knew that it was he (the appellant) who frustrated the issue of land exchange.
x)That the respondent confirms that parcel No. 1345 is still registered in his name meaning that he still owns it contrary to his claim that he had been frustrated by the appellant’s mother from taking possession of it.
xi)That the learned trial magistrate introduced extraneous issues into the judgment like need for maps yet his case was not a boundary dispute.
xii)That the learned trial magistrate was biased in her decision or outcome with no justification or reason given, accused him of being a deceitful witness and failed to consider and evaluate the respondent’s evidence which he submits is weak and contradictory.
12.On his part, the respondent identified three issues for the court’s determination. These are:-
i)Whether the trial court’s judgment complied with the provisions of order 21 Rule 4 of the Civil Procedure Rules;
ii)Whether the trial court incorporated extraneous matters or facts in its judgment and/or was biased towards the respondent; and
iii)Whether the respondent proved his case on a balance of probability.
13.On whether the trial court’s judgment complied with the provisions of Order 21 Rule 4 of the Civil Procedure Rules, the respondent submits that the purpose of the rule is to ensure that a judgment is reasoned, clear and demonstrates that the court applied its mind to the issues before it; that in the instant case, the trial magistrate summarized the case, the evidence presented by the parties, the issues for determination, gleaned pleadings (fraud, limitation, jurisdiction among others) analyzed them and rightly came to the conclusion that the appellant had failed to appeal against the objection ruling hence the claim on fraud was unsustainable.
14.The respondent further submits that in essence, the judgment reflects the case for the appellant and the defence advanced by the respondent. The respondent made reference to the case of Peter Ng’ang’a Muiruri vs. Credit Bank & another (2008)e KLR, where the test of a valid judgment was espoused by the Court of Appeal and submits that the judgment in the case hereto met that test. It is the respondent’s case that if there were any omissions in the judgment, they were minor and did not occasion the appellant any prejudice and/or affect the substance of the judgment. The respondent further submits that this court is clothed with power to re-evaluate the evidence tendered and arrive at its own independent decision, even though it did not have the benefit of the demeanor of the witnesses.
15.On whether the trial court incorporated extraneous matters or facts in its judgment and/or was biased towards the respondent, the respondent submits that the trial court did not import and/or incorporate extraneous issues in its judgment, which were not pleaded by the parties; that a perusal of the judgment reveals that it was grounded on the pleadings, evidence adduced and the submissions proffered by the parties; that the court evaluated the evidence presented and applied the law relevant to the facts and came to the conclusion that the appellant claim was premised on deceit and concealment of material facts.
16.The appellant’s contention that the trial court descended onto the scene of litigation and incorporated extraneous issues into its judgment is said to be unfounded; that the trial court had the opportunity to observe the witnesses’ demeanor and rightly came to the conclusion that the plaintiff’s claim was founded on deceit, dishonesty and/or concealment of material facts from the court and that a perusal of the appellant’s pleadings, witness statements and evidence tendered reveals a choreographed deceit geared towards dispossessing the respondent his parcel of land.
17.As to whether the respondent proved his case on a balance of probabilities, the respondent has submitted/addressed the court as follows:-
“This is the crux of the matter which the appellant ought to be addressing himself on and not the allegation that the trial court failed to evaluate and/or incorporated extraneous issues into the judgment.
To avoid replicating ourselves on this subject head, we wish to associate ourselves with our submissions in the lower court, dated 27th September 2024 where we have substantially addressed the above issue.
We have demonstrated herein above that during land consolidation and adjudication at Kapkoiwo Adjudication Section the appellant and the respondent exchanged parcels of land in line with the terms of adjudication that owners with fragments attempt to consolidate them through exchange.
In the instant case, the exchange did take place as enunciated in the background herein above. However, it was frustrated by the appellant’s mother who took over the portion given to the respondent by the appellant prompting the respondent to file objection number 47 of 2006 to reclaim his land back which the appellant did not object to. In fact, he sent his spouse, PW3, with express instructions to concede to the objection. Consequently, the objection was allowed and the respondent’s parcel was excised from the appellant’s parcel of land No. Baringo/Kapkoiwo/1350 and given another number, Baringo/Kapkoiwo/3577.
The respondent has been in possession, occupation and use of the suit property since 2006 without any objection from the appellant and has peacefully utilized it and even bequeathed it to his son who has erected his matrimonial home therein without any objection from the appellant as aforesaid.
It is manifestly clear that the appellant was aware of the respondent’s possession and use of the property and chose not to do anything until 2018 when he started spinning a lie that the respondent had tricked his wife to give him a portion of his property in exchange of a property the respondent was to give him. This contention is unfounded in that he concedes in his demand notice of 5th November 2020 and pleadings that he authorized his spouse to represent him at the objection and concede to the respondent’s objection.
In his scheme of machinations against the respondent the objection filed by the respondent was the beginning of the exchange and that PW3 had conceded to the objection on the basis that the respondent was to give them another parcel of land in exchange which is unfounded.
To buttress his illegal claim on the respondent’s property he recruited the services of PW2 who unlawfully and illegally claimed that the suit property formed part of the parcel of land he had sold to the appellant which is unfounded as the respondent did not demonstrate that the suit property did not form part of land PW2 had sold to the appellant.
The appellant concedes to the exchange. However, when he was challenged on why he did not appeal against the objection ruling if he was dissatisfied, he alleges that the respondent kept re-assuring him that he would give him land. This contention is contradicted by his own pleadings and demand notice of 5th November 2020 where he states that he had send PW3 to represent him during objection proceedings and concede to the excision of the suit property. That upon excision of the suit property the respondent refused and/or reneged on their agreement.
It is clear from the proceedings that the appellant had authorized his spouse to represent him in the objection and was aware that the suit property had been ceded to the respondent and chose not to appeal. The respondent and his son have been on the suit property for a very long time and the appellant saw them every day for over 12 years and never raised any issue. It’s therefore our contention that the appellant’s claim on the suit property is unfounded.
As earlier stated, the appellant led choreographed deceitful and capricious evidence imbued with falsehoods and concealment of material facts from the court with the sole intention of defrauding and/or depriving the respondent of his parcel of land.
It is manifestly clear that the trial court was able to discern the deceitful acts of the appellant and correctly came to the conclusion that the appellant’s claim on the suit property is founded on deceit….
We submit that the appellant’s contention that the trial court failed to analyze and/or evaluate the evidence and/or issues and/or was biased against the appellant is unfounded. At any rate, his claim on the suit property, if any, was time barred and his failure to appeal against the objection ruling ousted the court’s jurisdiction.”
18.Arising from the foregoing submissions/explanations, the respondent urges this court to uphold the trial court’s judgment and dismiss the appeal with costs.
Analysis and determination
19.In exercise of the duty vested in this court as a first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard, see Selle & Another vs. Associated Motor Boat Co. Ltd (1968) E.A 123 and Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988) KLR 348.
20.The evidence adduced before the lower court, and in particular, the proceedings of the objection proceedings (Pexbt 8) and the appellant’s demand letter dated 5th November, 2020 (Pexbt 2) show or suggest that there was exchange of land between the appellant and the respondent way before the objection proceedings were lodged. Whereas the plaintiff claims that the defendant promised to give him land in exchange to the land he got pursuant to the objection, the objection proceedings do not bear out that fact. The proceedings clearly indicate that the reason for objection was because the appellant had given the respondent a portion of land parcel number 1350 in exchange for a portion he, the respondent, had also given to the appellant. The appellant’s wife admitted/acknowledged the account offered by the respondent by stating as follows:-
“I am representing my husband and he is away at his place of work in Iten town. He has given the objector a portion of his land in exchange of another portion belonging to the objector.
On his behalf I accept the parcel to be subdivided so that the objector gets a separate plot No.”
21.In her testimony before court the appellant’s wife (PW3) stated as follows:-
“… Referred to objection document. I recall the document. I went to talk about Cherutoi’s land. Cherutoi told me that there was land to be exchanged. He told me that he had talked with my husband. I went gave him the land but he didn’t come to show me the portion he was to give my husband. My husband Joshua Chemwetich came and asked why Cherutoi had the land. That’s why we are in court.”
22.In re-examination, PW3 stated as follows:-
“Joshua Chemwetich is my husband. He bought land from John Cheptumo. My husband went to Iten in 2007. He took years before he came back. He went for work. He stayed for about two years. I put the objection in 2006. At the time, my husband wasn’t home. He came back after the land had changed. A year hadn’t passed when he came back. I never told him Cherutoi had the land. I told him when he came back. He went talked to Cherutoi. I never said I was appearing on behalf of my husband. The person at Chepsergon lands said he told the defendant to give me land. He was to continue tilling the land until he gave us the other portion. Cherutoi came measured the land for himself. He has tilled the land to date. My husband did not lodge an appeal. Son to defendant is living on the land. He has been living there for over 10 years. I don’t know the number of the land he was to give us. My husband never filed an objection on the defendant’s land. I don’t know Cherutich Chemwetich. I don’t know if my husband agreed to exchange land with the defendant. I don’t know about the exchange of land. It is not true we refused to give defendant land. We were buying the whole parcel of land. We want the land the defendant is occupying……………
We went to Mr. Chepsergon with defendant. We were to exchange land with Cherutoi. Defendant was to give me land. He never gave us the land but he took our portion. We would ask for the land and defendant told us to do what we wanted. The land previously belonged to John Cheptumo who sold us the land. The land belongs to us.”
23.I have considered the testimony of the appellant’s wife before the court and what she stated before the Land Registration Officer in the objection proceedings. I find that evidence to be contrary to what she stated before the Land Registration Officer. Whilst PW3 claimed that respondent promised to give them land, the objection proceedings do not bear out that fact. Instead, the proceedings indicate that exchange of the parcels had already taken place.
24.The respondent, through his testimony and the testimony of his witness, Miningwo Chemjor (DW3), led evidence to the effect that the appellant had offered a portion of his family’s land adjacent to the respondent’s parcel of land, plot No.1345, that the appellant’s family reneged on the agreement for exchange leading to filing of the objection proceedings by the respondent to get back his portion which he had exchanged with the appellant leading to its amalgamation with plot No. 1350 belonging to the appellant.
25.Upon considering the totality of the evidence adduced before her, the learned trial magistrate found the account offered by the respondent to be more believable compared to the account offered by the appellant whom she found not to be an honest witness.
26.Whilst the appellant faults the learned trial magistrate for finding him to not be a truthful witness, upon re-evaluation of the appellant’s pleaded case vis-à-vis the totality of the evidence adduced before the lower court, I find no basis for departing from the determination by the learned trial magistrate that the appellant is not a truthful witness. Whereas the appellant in his pleadings claimed that there was no agreement for exchange of land between him or his family with the respondent, the evidence adduced by the parties, both oral and documentary, shows that there was an agreement for exchange of land and that it is after the agreement was frustrated by the appellant’s family members that the objection proceedings were filed with a view of returning the land the appellant had gotten from the respondent pursuant to the agreement for exchange of land. Interestingly, despite having vehemently denied existence of any agreement of land between him and the respondent, the appellant appears to base his claim on the agreement or promise in respect thereof yet claims that the agreement was none existent.
27.Having carefully re-evaluated the evidence adduced before the lower court, I find it incapable of proving the pleaded fraud against the respondent. Like the learned trial magistrate, I find the account offered by the respondent and the respondent’s witnesses concerning the circumstances upon which the respondent acquired his interest to the suit property to be more believable than the account offered by the appellant.
28.Concerning the appellant’s claim that the learned trial magistrate failed to call for evidence in form of maps, it was not the duty of the court to help the parties patch their otherwise weak case. In that regard, see Section 107 of the Evidence Act which places the burden of proof on he who alleges and not the Court.
29.The upshot of the foregoing is that the appeal has no merit. Consequently, I dismiss it with costs to the respondent.
Dated, signed and delivered virtually at Kabarnet this 1st day of December, 2025.
In the presence of:
Ms Baraza for the appellant.
Mr. Chebii for the Respondent.
Court Assistant; Ian.
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