KEPTEIKAT NKURRUNA KIPRONO VS KILOKU DANIEL KERIAKOR KEPTEIKAT NKURRUNA KIPRONO VS KILOKU DANIEL KERIAKOR

JUDGEMENT

The Appellant herein filed a Memorandum of Appeal dated 12.06.2020 (hereinafter referred to as “the present Appeal”) against the Judgement and Decree pronounced on the 28.05.2020 (hereinafter referred to as “the Trial Court Judgement”) in the proceedings known as KILGORIS PM ELC CASE NO. 2 OF 2018 (hereinafter referred to as “the Trial Court proceedings”) premised on the following grounds; -
The Learned Trial Magistrate erred in not taking into consideration of the evidence adduced by the Appellant and his witnesses confirming that the Appellant has been on the land since 1968 and the Respondent got registration secretly and fraudulently.
The Learned Trial Magistrate erred in law and misdirected himself fundamentally by holding that the Appellant did not prove his case on a balance of probabilities.
The Learned Trial Magistrate erred in law by considering extraneous matters of just holding a title deed which had no basis of evidence on how he obtained it thus arriving at a wrong decision.
The Learned Trial Magistrate erred in failing to appreciate that the Plaint of the Appellant failed to establish a prima facie case with a probability of success.
In the circumstances, the Learned Trial Magistrate judgement was oppressive to the Appellant/Plaintiff as it amounted to aiding a trespasser.
The Learned Trial Magistrate Judgment was bad in law and against the weight of evidence.
Based on the grounds outlined hereinabove, the Appellant sought for the following Orders in the present Appeal; -
The Appeal be allowed.
The Trial Court Magistrate’s judgement be set-aside and the illegal title be cancelled the Court do make an order directing the land registrar Kilgoris issue title No.874 Nkararo adjudication section to the Appellant forthwith.
The Respondent be compelled to pay taxed costs of the Appeal.
The present Appeal was duly served on the Respondent who expressed his intention to oppose the same.
The Court directed that the present Appeal be canvassed by way of written submissions.
The Appellant in compliance with the above directions filed their written submissions dated 09.09.2024 while the Respondent originally filed his submissions on the 16.07.2024 and a supplementary submission on the 03.10.2024 after being given leave on the same date.
In the present Appeal, this Court is exercising its appellate jurisdiction and is guided by the authority of SELLE & ANOTHER-VERSUS- ASSOCIATED MOTOR BOAT CO.LTD & OTHERS (1968) EA 123 where the Court stated as follows; -

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

On the guidance of the above authority, this Court will now proceed to re-evaluate the evidence and judgement before the Trial Court and thereafter drawn its own conclusion as to whether or not the Appeal should be allowed.

PLEADINGS BEFORE THE TRIAL COURT

The Appellant herein who was also the Plaintiff in the Trial Court proceedings filed a Plaint dated 31.10.2012 seeking for the following Orders against the Respondent herein who was the Defendant in the Trial Court proceedings; -
A declaration that the registration of the Defendant as the owner of Parcel No. 874 within Nkararo Adjudication Section is illegal.
That the registration of the Defendant as the owner of Parcel No. 874 within Nkararo Adjudication Section be cancelled and the Plaintiff be registered as the proprietor.
Costs of the suit and interest.
Any other relief the Honourable Court may deem just to grant.
The facts that the Appellant relied upon in seeking the above prayers can be summarised as below; -
The Appellant herein has been and is the beneficial owner of the property known as PLOT.NO.874 within Nkararo Adjudication Section since 1968.
However, in the year 2012, the Appellant discovered that the property known as PLOT.NO.874 within Nkararo Adjudication Section had been registered in the name of the Respondent.
The Appellant is of the view that the Respondent’s registration as the owner of PLOT.NO.874 within Nkararo Adjudication Section was done secretly and fraudulently.
The Appellant then pleaded the Particulars of Fraud under Paragraph 7 (a) of the Plaint dated 31.10.2012.
The Appellant’s prayer therefore was that the Respondent’s name on the property known as PLOT.NO.874 within Nkararo Adjudication Section be cancelled for being illegal and the said property be registered in his name.
The Plaint dated 31.10.2012 was duly served on the Respondent who filed a Defence dated 14.02.2013 to dispute the Appellant’s facts and prayers.
The Respondent in his Defence dated 14.02.2013 stated as follows; -
The Respondent re-affirmed that his registration as the owner of PLOT.NO.874 within Nkararo Adjudication Section was legal and in accordance with the law.
The Respondent also denied any fraudulent actions in the registration of the property known as PLOT.NO.874 within Nkararo Adjudication Section as alleged by the Appellant.
According to the Respondent, the Appellant is the owner two properties namely PLOT.NO.538 and PLOT NO.540 within Nkararo Adjudication Section which borders the property PLOT.NO.874 within Nkararo Adjudication Section.
The Respondent pleaded that the Adjudication of Nkararo Adjudication Section was completed on the 30.10.1990 and the Adjudication Register published for inspection.
However, the Appellant never lodged any objection against the Adjudication Record of PLOT.NO.874 within Nkararo Adjudication Section as envisaged in law hence the same was legally and lawfully registered in the name of the Respondent.
The Respondent stated that the Appellant’s occupation on the property known as PLOT.NO.874 within Nkararo Adjudication Section was therefore unlawful, illegal and amounted to trespass.
The Respondent concluded his Defence dated 14.02.2013 by seeking the Trial Court to dismiss the Plaint dated 31.10.2012 with Costs.
The Appellant upon service of the Defence dated 14.02.2013 did not file any Reply to the same and the pleadings were consequently closed.

HEARING BEFORE THE TRIAL COURT

The hearing of the Trial Court proceedings commenced on the 09.01.2020 with the testimony of the Appellant as PW 1.
The Appellant introduced himself as a resident of Enoosaen whose occupation was farming.
The Appellant informed the Trial Court that he had recorded a witness statement dated 13.11.2012 which is adopted as his evidence in chief.
The Appellant stated that he is the owner of a property known as PLOT.NO.539 within Nkararo Adjudication Section which he has been in occupation.
However, the Appellant discovered that the property known as PLOT.NO.539 within Nkararo Adjudication Section has been sub-divided without his consent and/or knowledge and another property known as PLOT.NO.874 within Nkararo Adjudication Section created out of it.
The Appellant blamed the Respondent for this unlawful sub-division of his property known as PLOT.NO.539 within Nkararo Adjudication Section in collusion with the Survey offices.
The Appellant averred that the Respondent does not occupy the portion now recorded as PLOT.NO.874 within Nkararo Adjudication Section and therefore his name should be cancelled and replaced with that of the Appellant.
On cross-examination, the Appellant stated that he could not remember the Committee members of Nkararo Adjudication Section that were tasked with the mandate to demarcate the Adjudication Section.
However, the Appellant admitted that he was allocated land by the Nkararo Adjudication Committee.
The Appellant also admitted that the property known as PLOT.NO.874 within Nkararo Adjudication Section had been recorded in the name of the Respondent and issued with the relevant Adjudication Record to that effect.
The Appellant averred that on inspecting the Adjudication Record of PLOT.NO.874 within Nkararo Adjudication Section, he filed an Objection against the recording of the Respondent as the owner.
Unfortunately, the Appellant did not have any documents to confirm that indeed an Objection against PLOT.NO.874 within Nkararo Adjudication Section has been filed.
On re-examination, the Appellant reiterated that he was the one on the property known as PLOT.NO.874 within Nkararo Adjudication Section.
The Appellant then concluded his testimony and was discharged from the witness box.
The Appellant’s second witness was one BARABARA OLE NKURNA who was marked as PW 2.
PW 2 introduced himself as the elder brother to the Appellant and well versed with the issues before the Trial Court.
PW 2 confirmed that he was familiar with the property known as PLOT.NO.874 within Nkararo Adjudication Section.
According to PW 2, the property known as PLOT.NO.874 within Nkararo Adjudication Section was hived off from the Appellant’s property known as PLOT.NO.539 within Nkararo Adjudication Section.
Thereafter, the property known as PLOT.NO.874 within Nkararo Adjudication Section was registered in the name of the Respondent.
PW 2 averred that the exercise of sub-dividing the Appellant’s property known as PLOT.NO.539 within Nkararo Adjudication Section was done in secret and/or fraudulently hence surprised everyone.
PW 2 concluded his evidence in chief by adopting his witness statement dated 31.10.2012 as his evidence in chief and sought the Trial Court to grant the prayers sought in the Plaint dated 31.10.2012.
On cross-examination, PW 2 reiterated that the Appellant was his brother.
PW 2 similarly admitted that the demarcation and recording of Nkararo Adjudication Section was completed in the year 1990.
During this demarcation, the Appellant was recorded as the owner of the property known as PLOT.NO.539 within Nkararo Adjudication Section.
However, a portion of the property known as PLOT.NO.539 within Nkararo Adjudication Section is what was hived off to create the property known as PLOT.NO.874 within Nkararo Adjudication Section.
PW 2 confirmed that the property known as PLOT.NO.874 within Nkararo Adjudication Section is in the possession of the Respondent.
PW 2 averred that the Appellant did not file any Objection against the Respondent’s recording as the owner of the property known as PLOT.NO.874 within Nkararo Adjudication Section.
On re-examination, PW 2 stated that the Respondent was not in occupation of the property known as PLOT.NO.874 within Nkararo Adjudication Section.
At the end of this re-examination, PW 2 was discharged from the witness box.
The Appellant’s third witness was ODUBOI KILAI who was marked as PW 3.
PW 3 introduced himself as an Assistant Chief of Eldoric Sub-Location within Nkararo Adjudication Section.
PW 3 informed the Trial Court that the property known as PLOT.NO.874 within Nkararo Adjudication Section was created after the Adjudication had been completed.
PW 3 stated that he was familiar with the properties known as PLOT.NO.538, 539,542, 51 AND 40.
According to PW 3, the Appellant was recorded as the owner of the property known as PLOT.NO.539 within Nkararo Adjudication Section.
Thereafter, PLOT.NO. 539 within Nkararo Adjudication Section was sub-divided and PLOT.NO.874 within Nkararo Adjudication Section created.
The property known as PLOT.NO.874 within Nkararo Adjudication Section was subsequently recorded in the name of the Respondent.
However, PW 3 insisted that the person in occupation and use of PLOT.NO.874 within Nkararo Adjudication Section was the Appellant and the Respondent has never been in occupation and/or use of the same.
In essence, PW 3 averred that the sub-division of PLOT.NO. 539 within Nkararo Adjudication Section was not lawful and/or legal and therefore sought the Court to cancel the Respondent’s registration as the owner of the said property.
On cross-examination, PW 3 testified that the demarcation and adjudication of Nkararo Adjudication Section was completed in 1989.
According to PW 3, the Appellant was not demarcated any property within Nkararo Adjudication section.
Nevertheless, the Appellant filed an Objection and was subsequently recorded as the beneficial owner of the property known as PLOT.NO.539 within Nkararo Adjudication Section.
However, PW 3 could not ascertain the acreage of the property known as PLOT.NO.539 within Nkararo Adjudication Section which was recorded in the name of the Appellant.
PW 3 averred that the entity which had the authority to demarcate land within Nkararo Adjudication Section was the Adjudication Committee established therein.
On re-examination, PW 3 insisted that the Respondent never acquired the property known as PLOT.NO.874 within Nkararo Adjudication Section procedurally and/or lawfully.
Consequently, PW 3 sought the Trial Court to revoke the recording of the Respondent as the owner of PLOT.NO.874 within Nkararo Adjudication Section.
At the end of the re-examination, PW 3 was subsequently discharged from the witness box and the Appellant closed his case.
The Defence hearing also proceeded on the same date with the Respondent testifying as DW 1.
The Respondent introduced himself as a resident of Isampin although had previously resided in Nkararo.
The Respondent then confirmed that he had prepared a witness statement dated 15.10.2016 of which he adopted as his evidence in chief.
The Respondent proceeded to produce the following documents in support of his defence; -

DW 1 EXHIBIT 1- A Copy of the Black Book of Nkararo Adjudication Section.

DW 1 EXHIBIT 2- A Copy of the Adjudication Record of PLOT.NO.874 within Nkararo Adjudication Section.

DW 1 EXHIBIT 3- A Letter of Confirmation of who is the beneficial owner of PLOT.NO.874 within Nkararo Adjudication Section.

The Respondent testified that he was allocated and recorded as the beneficial owner of PLOT.NO.874 within Nkararo Adjudication Section in the year 1990.
However, the Appellant herein is the one who has been unlawfully and illegally occupying the property known as PLOT.NO.874 within Nkararo Adjudication Section to his detriment.
The Respondent averred that the allocation and recording of his name as the beneficial owner of the property known as PLOT.NO.874 within Nkararo Adjudication Section was done by the Adjudication Committee.
The Respondent therefore denied that the property known as PLOT.NO.874 within Nkararo Adjudication Section had been unlawfully created and/or recorded in his name.
In concluding his evidence in chief, the Respondent sought the Trial Court to dismiss the Appellant suit with costs.
On cross-examination, the Respondent explained that he resides in his father’s land located in Isampin.
The Respondent stated that his father passed away and he was the only son.
The Respondent informed the Trial Court that he does not have any house on the property known as PLOT.NO.874 within Nkararo Adjudication Section and/or has not taken possession of the same.
The Respondent confirmed that he did not purchase the property known as PLOT.NO.874 within Nkararo Adjudication Section.
The Respondent denied any allegations that the Appellant was his relative.
On re-examination, the Respondent stated that the environment within Nkararo was not conducive to enable he occupy the property known as PLOT.NO.874 within Nkararo Adjudication Section as the Appellant was hostile to him.
At the end of this re-examination, the Respondent closed his testimony and was discharged from the witness box.
The Respondent’s second witness was WILSON RURAO who was marked as DW 2.
DW 2 informed the Trial Court that he had prepared a witness statement to which he adopted the same as his evidence in chief.
DW 2 testified that indeed the Respondent originally resided in Nkararo but later moved Isampin.
DW 2 confirmed that the Respondent is the lawful owner of the property known as PLOT.NO.874 within Nkararo Adjudication Section.
However, the Appellant is the one that has forcefully entered and occupied the Respondent’s property known as PLOT.NO.874 within Nkararo Adjudication Section.
DW 2 further denied that the Respondent’s property known as PLOT.NO.874 within Nkararo Adjudication Section was sub-divided and/or hived off from the Appellant’s property known as PLOT.NO.539 within Nkararo Adjudication Section.
DW 2 insisted that both the Appellant and the Respondent had their own allocations as contained in the details of the Adjudication Register.
The Appellant did not have any questions for cross-examination against DW 2.
In re-examination, DW 2 reiterated that the Appellant was the one in occupation of the Respondent’s property known as PLOT.NO.874 within Nkararo Adjudication Section.
DW 2 further admitted that the Respondent stays in Isampin and does not have any developments of the property known as PLOT.NO.874 within Nkararo Adjudication Section.
At the end of this re-examination, DW 2 was discharged from the witness box and the Respondent closed his case.
The Trial Court then directed the parties to file their final submissions in support of their positions.
The Appellant duly filled his final submissions dated 12.02.2020 while the Respondent filed his submissions date 31.01.2020.
The Court has gone through the pleadings filed by the parties, the testimonies of the witnesses, the evidence adduced and the final submissions by the parties and identify the following issues for determination; -

ISSUE NO.1 – WAS THE PROPERTY KNOWN AS PLOT.NO.874 WITHIN NKARARO ADJUDICATION SECTION A SUB-DIVISION OF THE PROPERTY KNOWN AS PLOT.NO.539 WITHIN NKARARO ADJUDICATION SECTION?

ISSUE NO.2- WHO IS THE LAWFUL OWNEROF THE PROPERTY KNOWN AS PLOT.NO.874 WITHIN NKARARO ADJUDICATION SECTION PROPER & LEGAL?

ISSUE NO.3- IS THE PRESENT APPEAL MERITED?

ISSUE NO. 4- WHO BEARS THE COSTS OF THIS APPEAL?

The Court having identified the above issues for determination, then it shall proceed to analyse and make its own determination or whether or not the Trial Court erred in any manner to allow the present Appeal or not.

ISSUE NO.1 – WAS THE PROPERTY KNOWN AS PLOT.NO.874 WITHIN NKARARO ADJUDICATION SECTION A SUB-DIVISION OF THE PROPERTY KNOWN AS PLOT.NO.539 WITHIN NKARARO ADJUDICATION SECTION?

The first issue for determination is to establish the manner in which the property known as PLOT.NO.874 within Nkararo Adjudication Section was created.
According to the Plaint dated 31.10.2012, the Appellant expressly pleaded under Paragraph 3 that he was the owner of PLOT.NO.874 within Nkararo Adjudication Section having taken possession and occupation of the same since 1968.
However, in the year 2012, the Appellant discovered that the property known as PLOT.NO. 874 within Nkararo Adjudication Section has been unlawfully and/or fraudulently without his knowledge recorded in the name of the Respondent.
The Respondent on the other hand pleaded in his Defence dated 14.02.2013 that the property known as PLOT.NO.874 within Nkararo Adjudication Section was allocated to him by the Adjudication Committee of Nkararo Adjudication Section and subsequently issued with an Adjudication Record.
During the hearing in the Trial Court proceedings, the Appellant evidence as well as that of his witnesses was that he was an owner of PLOT.NO.539 within Nkararo Adjudication Section which was then fraudulently and/or illegally sub-divided and a portion of the same registered as PLOT.NO. 874 within Nkararo Adjudication Section.
The Respondent opposed the Appellant’s testimonies and stated that the property known as PLOT.NO.874 within Nkararo Adjudication Section was actually not a sub-division of PLOT.NO.539 within Nkararo Adjudication Section but an independent and original Adjudication by the Adjudication Committee which had been tasked to demarcate the Adjudication Section.
For this Court to decide on this issue, it is important to look at the provisions of the Evidence Act, Cap 80.
The provisions of Section 107 of the Evidence Act, Cap 80 provides as follows; -

“(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies in that person”

The Evidence Act, Cap 80 further expressly states as follows under Section 109; -

“The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by law that the proof of that fact shall lie on any particular person.”

Clearly, from the above two provisions, the burden of proof that the property known as PLOT.NO.874 within Nkararo Adjudication Section belongs to the Appellant falls on the Appellant’s shoulder.
In the alternative, the burden of proof that the Respondent’s property known as PLOT.NO.874 within Nkararo Adjudication Section was a sub-division of the Appellant’s property known as PLOT.NO.539 within Nkararo Adjudication Section similarly falls on the Appellant’s shoulders.
To start with the first scenario that the property known as PLOT.NO.874 within Nkararo Adjudication Section belongs to the Appellant, the evidence on record only refer to the testimonies of the Appellant and his witnesses to that effect.
Actually, the testimonies of the Appellant and his witnesses only point to the fact that the property known as PLOT.NO.874 within Nkararo Adjudication Section is in occupation and use of the Appellant.
Going through the Trial Court proceedings, this Court takes judicial notice that the Appellant and/or his witnesses did not produce any documentary evidence to proof that the property known as PLOT.NO.874 within Nkararo Adjudication Section was recorded in the name of the Appellant.
The fact that the Appellant is in occupation of the property known as PLOT.NO.874 within Nkararo Adjudication Section does not automatically recognise him as the rightful owner of the said portion of land.
The Appellant having been in occupation a portion of land within a Trust Land as described by the Repealed Land Adjudication Act, Cap 284 can only claim ownership rights through an Adjudication Record after the Adjudication Register is issued under Section 24 of the Land Adjudication Act.
The Appellant unfortunately did not produce any documentary evidence from the Adjudication Committee of Nkararo Adjudication Section and/or a certified Copy of the Adjudication Register of Nkararo Adjudication Section to confirm his ownership of the property known as PLOT.NO.874 within Nkararo Adjudication Section.
Consequently, this Court is of the considered view and finding that the Appellant has not proved any legal ownership rights over the property known as PLOT NO. 874 within Nkararo Adjudication Section.
Secondly, the Appellant during the Trial Court proceedings alleged that the property known as PLOT.NO.874 within Nkararo Adjudication Section was unlawfully and fraudulently sub-divided and/or hived off from his property known as PLOT.NO.539 within Nkararo Adjudication Section.
The Appellant went further to plead under Paragraph 7 of the Plaint dated 31.10.2012 one particular of the fraud undertaken by the Respondent in the creation of the property known as PLOT.NO.874 within Nkararo Adjudication Section.
The particular of fraud pleaded by the Appellant in the Plaint dated 31.10.2012 is that the Respondent was registered as the owner of the property known as PLOT.NO.874 within Nkararo Adjudication Section.
As stated earlier, again the burden of proof that the property known as PLOT.NO.874 within Nkararo Adjudication Section was hived off from the Appellant’s property known as PLOT.NO.539 within Nkararo Adjudication Section falls on the Appellant.
According to the Trial Court proceedings, the Appellant and/or his witnesses did not produce any documents to ascertain their ownership rights over the property known as PLOT.NO.539 within Nkararo Adjudication Section.
For the Appellant to proof that the property known as PLOT.NO.874 within Nkararo Adjudication Section was sub-divided and/or hived from his property known as PLOT.NO.539 within Nkararo Adjudication Section, the first document that was required to be produced before the Trial Court was the Adjudication Register provided for under Section 24 of the Land Adjudication Act, Cap 284.
The production of the Adjudication Register under Section 284 of the Land Adjudication Act, Cap 284 would have contained two crucial documents namely the Adjudication Record of PLOT.NO.539 within Nkararo Adjudication Section and the Demarcation Map of the particular property.
The significance of the Adjudication Record would have been to confirm that the property known as PLOT.NO.539 within Nkararo Adjudication Section belongs the Appellant and the Demarcation Map would give the approved boundaries of the said property which has been recorded in the name of the Appellant.
The Appellant then would rely on the Demarcation Map relating to the property known as PLOT.NO.539 within Nkararo Adjudication Section to demonstrate the area and/or portion that was hived off and/or sub-divided to create the new property known as PLOT.NO.874 within Nkararo Adjudication Section.
Unfortunately, the Appellant and/or his witnesses did not provide any Demarcation Map issued under Section 24 of the Land Registration Act, Cap 284 to demonstrate the original size of their property known as PLOT.NO.539 within Nkararo Adjudication Section and/or how it was interfered through the hiving off and/or sub-division of the same to create the Respondent’s property known as PLOT.NO.874 within Nkararo Adjudication Section.
In essence, this Court makes a finding that there is no proof placed before the Trial Court by the Appellant that the property known as PLOT.NO.874 within Nkararo Adjudication Section was ever fraudulently hived off and/or is a sub-division of the property known as PLOT.NO.539 within Nkararo Adjudication Section as alleged.

ISSUE NO.2- WHO IS THE LAWFUL THE OWNER OF THE PROPERTY KNOWN AS PLOT.NO.874 WITHIN NKARARO ADJUDICATION SECTION PROPER & LEGAL?

The second issue for determination is whether or not the Appellant is the lawful owner of the property known as PLOT.NO.874 within Nkararo Adjudication Section.
The Appellant and his witnesses testified that the property known as PLOT.NO.874 within Nkararo Adjudication Section is in the occupation and use of the Appellant and should therefore be registered in his name.
The Appellant and/or his witnesses did not produce and/or place in the Trial Court proceedings any documentary evidence to proof this allegation.
The Respondent on the other hand admitted that indeed the property known as PLOT.NO.874 within Nkararo Adjudication Section was in the occupation and use of the Appellant.
However, the Appellant pleaded and testified that his inability to occupy and use the property known As PLOT NO.874 within Nkararo Adjudication Section was because of the Appellant’s unlawful occupation of the same.
The Respondent produced in the Trial Court proceedings produced three crucial documents to proof his ownership of PLOT.NO.874 within Nkararo Adjudication Section.
The first document was a copy of the Adjudication Record of PLOT.NO.874 within Nkararo Adjudication Section, a Copy of an Extract of the Black Book and a letter dated 22.04.2008 from the offices of the Land Adjudication & Settlement Officer handling Nkararo Adjudication Section.
The testimony of the Appellant and his witnesses is that the property known as PLOT NO.874 within Nkararo Adjudication Section should be registered in the name of the Appellant because it was hived off and/or sub-divided from the property known as PLOT NO. 539 within Nkararo Adjudication Section.
However, this Court has made a finding that the property known as PLOT.NO.874 within Nkararo Adjudication Section is not a sub-division of the property known as PLOT.NO.539 within Nkararo Adjudication Section.
Further to that, this Court has also made a finding that the property known as PLOT.NO.874 within Nkararo Adjudication Section was never recorded in the name of the Appellant at any given time.
According to the testimony of PW 2, the Adjudication Register of Nkararo Adjudication Register was indeed published for inspection way back in 1990 and there has never been any Objection filed by the Appellant and/or any determination made therein bestowing ownership of PLOT.NO.874 within Nkararo Adjudication Section on the Appellant.
Consequently therefore, this Court is of the considered opinion that the property known as PLOT NO. 874 within Nkararo Adjudication Section was properly and lawfully registered in the name of the Respondent herein.

ISSUE NO.3- IS THE PRESENT APPEAL MERITED?

The third issue for determination is whether or not this Appeal is merited.
Based on the determination of Issue No. 1 and 2 hereinabove, this Court does not see any grounds upon which it can interfere with the judgement and decree pronounced by the Trial Court and therefore this present Appeal is not merited.

ISSUE NO. 4- WHO BEARS THE COSTS OF THIS APPEAL?

The Appeal having been found not to be merited, then the Appellant is also condemned to pay costs.

CONCLUSION

In conclusion, this Court hereby makes the following Orders in determination of the present Appeal; -
THE MEMORANDUM OF APPEAL DATED 12.06.2020 IS NOT MERITED AND THEREFORE DISMISSED FORTHWITH.
THE APPELLANT IS CONDEMNED TO PAY THE COSTS OF THIS APPEAL TO THE RESPONDENT.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 7^TH OF OCTOBER 2024.

EMMANUEL.M.WASHE

JUDGE

IN THE PRESENCE OF:

COURT ASSISTANT: MR. NGENO

ADVOCATE FOR THE APPELLANT: MR. OCHWANGI (N/A)

ADVOCATE FOR THE RESPONDENT: MR. OBARE