(Being an appeal against the judgment and decree of J. P. Nandi (SPM) dated 23.09.2024 in Bondo MCELC No. 20 of 2018)
JUDGEMENT
1. The Appellant herein commenced suit by filing a Plaint in the High Court being HCCC No. 176 of 2011. The suit was on 23.01.2018 transferred to Bondo Magistrate’s Court for hearing, where it was assigned PM ELC No. 20 of 2018. In that suit, the Appellant herein claimed that he was the sole legal and registered proprietor of a parcel of land known as SIAYA/ NYAGUNDA/3655 (the suit property herein), having acquired the same on 10.11.2010. The Appellant further claimed that the Respondent had trespassed into his land and constructed a church building. He thus sought an eviction order against the Respondent and costs of the suit.
2. The Respondent filed its Written Statement of Defence and Counterclaim dated 18 th December, 2012 denying the Appellant’s allegations of trespass. The Respondent admitted that the Appellant was indeed registered as the owner of the suit property on 10.11.2010 as alleged, but averred that the said registration was procured through fraud. The Respondent however claimed to have purchased the suit land from the Appellant prior to adjudication for Kshs. 50,000/-. That the suit land was ultimately adjudicated in the name of the Respondent during the Adjudication process, but the Appellant fraudulently had the land registered in his name instead. The Respondent asserted that it has been in occupation since it purchased the land and termed the allegations of trespass outrageous and absurd.
3. During the hearing of the Defence case on 18.07.2024, the Respondent orally amended its defence by striking out the counterclaim and the reliefs sought thereunder. Upon being heard in the lower court, the trial magistrate found that the Appellant had not proved trespass and dismissed the suit.
4. The Appellant being aggrieved by the judgement of Hon J.P. Nandi dated and delivered on 23/09/2024 in Bondo Principal Magistrate Court PMCELCC No. 20 of 2018 lodged a Memorandum of Appeal raising the following grounds of appeal: -
(1) The learned trial magistrate erred in law and fact in dismissing the Appellant’s case while the same was proved on a balance of probabilities.
(2) The learned trial magistrate erred in law and fact in finding that the Appellant had not proved trespass contrary to the evidence on record.
(3) The learned trial magistrate erred in law and fact in dismissing the Appellants case against the evidence on record.
(4) The learned trial magistrate erred in law and fact in holding that the Appellants pleadings were at variance with the evidence on record.
(5) The trial magistrate erred in his findings and decision against the evidence on record.
5. On the basis of the above grounds the Appellant prayed that the Appeal be allowed by allowing the suit in the lower court with costs.
6. The Appeal was on 14 th July, 2025 certified ready for hearing before this court. The Court further directed that the appeal does proceed by way of written submissions. The parties complied with the said directions and filed their respective submissions.
Appellants Submissions
7. The Appellant filed his written submissions dated 10.11.2025 through the firm of K’Owinoh & Co. Advocates. The Appellant condensed the five (5) grounds of appeal herein into 3 issues, being, whether the Respondent is a trespasser on the suit parcel; whether the Appellant is entitled to the orders sought and the issue of costs.
8. On whether the Respondent is a trespasser, Counsel for the Appellant submitted that the Appellant has been the registered owner of the suit land since 10.11.2010 and a title was issued to him on 14.11.2010. Counsel submitted that during the adjudication process, the suit land was adjudicated in favour of the Respondent. That the Appellant filed an objection, vide Nyagunda Adjudication Objection No. 8296, which was allowed on 12.04.2001. Counsel submitted that per the Land Adjudication findings, the Respondent’s elders were to pay the Appellant KShs. 50,000/- for the land after constructing the church, but this was not done, thus the land was ordered to revert to the Appellant.
9. Counsel submitted that the Respondent failed to file any appeal within the 60-day under Section 29 of the Land Adjudication Act, and the findings became final pursuant to Section 30 of the Land Adjudication Act. That the Respondent attempted to challenge the decision on the Adjudication Objection vide Kisumu ELC Judicial Review Case No. 1A of 2016, but the same was dismissed vide judgment delivered on 01.02.2017. Counsel submitted that the Appellant is therefore registered as the absolute proprietor of the land. Counsel pointed out that the Respondent had testified that the suit land had been donated, however, in Kisumu ELC Judicial Review Case No. 1A of 2016, the Respondent claimed that it had purchased the land from the Appellant.
10. Counsel submitted that the Respondent’s evidence was at variance with its pleadings, and consequently, and asserted that parties are bound by their pleadings. Counsel thus faulted the trial magistrate for finding that it was the Appellant’s evidence that was at variance with his pleadings. Counsel further faulted the trial magistrate for holding that the Appellant failed to disclose when he had repudiated the agreement with the Respondent. Counsel argued that the repudiation was made clear by the filing of the adjudication objection challenging the registration of the Respondent on ground of non-payment of the purchase price.
11. Counsel for the Appellant further submitted that the trial magistrate erred in holding that at the time of the Appellant’s registration, the Respondent had acquired equitable rights over the land based on the long period of occupation. Counsel contends that the trial magistrate essentially held that adverse possession was applicable in the Respondent’s favour, yet the Respondent had not pleaded it in its Defence. Counsel argued that adverse possession cannot apply before the first registration, since there must be a registered proprietor against whom time can run. Counsel pointed out that the Appellant was first registered on 10.11.2010 and this suit was filed in 2011.
12. Counsel further argued that the original entry into the land was pursuant to an agreement, but when the Appellant filed the Adjudication Objection, the Respondent became a trespasser on the land. Counsel concludes that the Appellant had proved trespass against the Respondent contrary to the trial magistrate’s finding. Counsel states that having proved his case, the Appellant is entitled to the orders sought as well as costs. Counsel asked the court to allow the Appeal, set aside the trial magistrates judgment and allow the prayers as prayed for in the Plaint.
The Respondent’s Submissions
13. The Respondent’s submissions filed through the firm of Odongo Awiro & C. Advocates, are dated 03.12.2025. Counsel argued the Appeal on four issues touching on constructive trust, overriding interests under Section 28 of the Land registration Act, the finding of the Adjudication Committee and whether it is proper to raise an issue that has not been pleaded.
14. Counsel submitted that the Appellant was obliged to disclose the existence of a 44-year-old church building on the land while procuring registration, and his failure to do so gave rise to an overriding interest against his title. Counsel submitted that courts recognise constructive trusts as an equitable remedy to prevent unjust enrichment. Counsel cited Macharia Mwangi & 87 Others vs Davidson Mwangi Kagiri (2014) eKLR , and submitted that a constructive trust may be imposed where a party has taken possession, made improvements and relied on an agreement to their detriment, even if the agreement is void for non-compliance with statutes like the Land Control Act.
15. Counsel admitted that the purchase price was not paid in full, but pointed out that the construction of the church, done with the Appellant’s knowledge after the sale, was a substantial improvement. Counsel argued that the developments coupled with the over 50 years possession, establishes detrimental reliance. Counsel further argues that the Appellant’s failure to enforce payment or evict the Respondent amounts to acquiescence, and he cannot now assert unencumbered ownership. Counsel submitted that the land was improved and occupied in good faith thus eviction would unjustly enrich the Appellant at the expense of a community institution, and cited Willy Kimutai Kitilit vs Michael Kibet (2018) eKLR .
16. Counsel submitted that the recognition of a certificate of title as prima facie proof of ownership under Section 26 of the Land Registration Act, is under Section 25 thereof, subject to overriding interests. Counsel cited Section 28 of the said Act, which includes trusts as one of the overriding interests. Counsel added that Constructive trusts are in the nature of equitable interests. The case of Satrose Ayuma & 11 Others vs Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others (2015) eKLR , was cited where it was held that equitable interests arising from possession and improvements override registered titles.
17. Counsel claims that the Appellant’s title was encumbered by the Respondent’s constructive trust, which predated it and is protected under Article 40 of the Constitution. Counsel urged that applying these principles, the trial court dismissed the claim in recognition of the Respondent’s equitable claim. Counsel argued that the decision of the Adjudication Committee did not bar equitable relief. Further that the said decision did not account for the Respondent’s 25 years possession and improvements on the land, thus the Appellant cannot rely on it to perpetrate an inequity after years of silence.
18. Counsel cited Order 2 Rule 15 of the Civil Procedure Rules and Independent Electoral and Boundaries Commission & Another vs Stephen Mutinda Mule & 3 Others (2014) eKLR , pointing that parties are bound by their pleadings. Counsel argued that the Appellant’s pleadings merely alleged entry without consent but did not explicitly claim trespass, damages or injunctions typical of such actions under the Trespass Act. Counsel argued that the omission was fatal and he could not now elevate it to ground of an appeal as it contravenes due process.
19. It was contended that trespass requires unlawful entry without right or license and relied on Maina vs Waweru & 2 Others (Environment and Land Appeal 10 od 2023) (2025) KEELC 791 (KLR) , That the Respondent’s entry in 1976 was consensual and authorised under the agreement. It is argued that the Appellant is estopped from denying consent due to his failure to enforce payment or evict them for decades, and drew support from Attorney General vs Nathan (2001)1 EA 1 . Counsel states that the trial court rightly ignored the Appellant’s unpleaded and unsubstantiated claim.
20. In conclusion, it is submitted that evicting a religious institution to satisfy an unpaid commercial claim from 1976 would violate the national values under Article 10 of the Constitution. That the Appellant’s title was procured in disregard of pre-existing equitable interests and was unlawfully acquired, thus not protected under Article 40 of the Constitution. Asserting the alleged constructive trust and overriding interests, Counsel prayed that the Appeal be dismissed with costs. Counsel further asked that the land be allowed to endure as a sanctuary nurtured by the Respondent, and not be used as a prize for dormant claims.
ANALYSIS AND DETERMINATION
21. This being a first appeal, this court is guided by the case of John Teleyio Ole Sawoyo vs. David Omwenga Maobe (2013) eKLR , where the Court held: -
“This being a first appeal we have the duty to reconsider both matters of fact and of law. On facts, we are duty bound to analyze the evidence afresh, re-evaluate it and arrive at our own independent conclusion but must bear in mind that the trial court had the advantage of hearing the witnesses testify and seeing their demeanour and should make allowance for the same.
Still on the duty of the first appellate Court, Hancox JA (as he then was), stated in Ephantus Mwangi & another vs. Duncan Mwangi Wambugu [1982-88] 1 KAR 278 at page 292, as follows: -
‘A Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did’. ”
22. As a first appellate court, therefore, this court has the onus to reconsider both matters of law and fact, bearing in mind that it did not have the advantage of seeing and hearing the witnesses.
23. I have examined the Memorandum of Appeal and the record of appeal. I have also considered the written submissions filed by the parties herein and analysed the relevant law. The following issues commend determination in this Appeal: -
(i) Whether the Respondent trespassed into the Appellant’s land; and
(ii) Whether the Respondent can claim the land by way of a constructive trust or an overriding interest on appeal;
(iii) Who bears the costs of this Appeal?
Whether the Respondent trespassed into the Appellant’s land
24. The main issue for determination is whether the Respondent trespassed into the Appellant’s land. Despite the Respondent’s claim that the Appellant did not plead it in the Plaint, this was the Appellant’s main complaint in the Plaint filed in the trial court. The Appellant accused the Respondent of trespassing into the suit property without his consent. The Respondent’s however denied this allegation, terming it outrageous and absurd. It therefore behoves this court to determine whether the Respondent indeed trespassed into the Appellant’s land.
25. I note that Counsel for the Respondent argued that the Appellant’s pleadings merely alleged entry without consent but did not explicitly claim trespass, damages or injunctions typical of such actions under the Trespass Act. Counsel argued that the omission was fatal and he could not now elevate it to a ground of appeal as it contravenes due process. The court respectfully disagrees with this proposition. I say so since the Appellant other than pleading that the Respondent had entered his land without consent, went on to expressly state at paragraph 3 of his Plaint that the Respondent’s actions amounted to trespass. The Appellant then set out the particulars of the alleged trespass on the part of the Respondent under the same paragraph.
26. In my view the Appellant has added no new claim to his case on appeal that was not already pleaded at the trial. The same cannot be said of the Respondent. I have not seen a claim for damages or injunction in this appeal. Moreover, even though the Respondent claims that the Appellant did not explicitly plead trespass, the Respondent at paragraph 5 of its Statement of Defence clearly stated that the allegations of trespass were outrageous and absurd. Clearly, therefore, the Respondent had no difficulty understanding that it was being accused of trespass into the Appellant’s land.
27. Turning to the issue of trespass, it is pertinent to highlight the definition of trespass. The Black’s Law Dictionary 9 th Edition at page 1642 defines trespass thus; -
“An unlawful act committed against the person or property of another; esp., wrongful entry on another’s real property” .
28. The Trespass Act does not expressly define the term trespass, but Section 3 thereof provides that: -
3. Trespass upon private land
(1) Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.
29. Since trespass connotes entry or remaining on another person’s land without consent, it follows that to determine this issue, the court must first address the question of ownership who the owner of the parcel of land known as Siaya/Nyaguda/3655 is. It has been admitted that the suit property herein is registered in the name of the Appellant. The record shows his registration was pursuant to adjudication process that was done in the 1980s.
30. My review of the Adjudication proceedings produced before the trial court, reveals that the Appellant had testified before the Committee that the Respondent had encroached into the Appellants portion of land, by what is described as 45 by 45 feet. When the Appellant raised the issue, he was approached by three church members and they agreed the church would pay the Appellant KShs. 50,000/- for the land. In 1976, they agreed that payment would be made after building the church. A witness testified before the Committee that as at the time of the adjudication proceedings in 2011, six years had passed since the completion of the church, but no payment had been made.
31. The above Adjudication Proceedings resulted in a decision made on 12.04.2002. The Adjudication Committee found that indeed, the Respondent was to pay the amount of KShs. 50,000/- upon completing the construction of the church building, but this had not been done. The Committee thus directed that the land should revert to the Appellant. The Respondent cannot claim decades of non-enforcement of payment, when the debt fell due upon the completion of the construction of the church. As at the time of the adjudication proceedings payment had only been due for 6 years.
32. However, this court notes a complaint was made to the Ministry of Lands and Settlement that the said proceedings were conducted ex-parte and vide letter dated 5 th June, 2001 the said proceedings were nullified. This letter notes that the decision of the Adjudication Committee had already been implemented, but the same was now null and void, and it advised that the parties would be summoned afresh to appear before the Land Adjudication Officer. Before this was done, the Respondent learnt that the land had been registered in the Appellant’s name.
33. The Respondent then lodged Kisumu ELC Judicial Review Case No.1A of 2016 (Formerly High Court Judicial Review Case No. 45 of 2011) seeking an order of Certiorari to quash the registration of the Appellant as proprietor of the suit land herein, as well as the Adjudication Objection Proceedings for reason that they were not given an opportunity to be heard. In a judgment delivered by Hon. Justice Kibunja on 01.02.2017, the Respondent’s suit was dismissed. The learned Judge stated thus; -
“f) That there is nothing in the objection proceedings to support the applicant’s claim that they sought for and were denied time to present other witnesses. That the 3 rd Respondent’s deposition that the church was represented by Vitalis Okere Adede who was heard has not been challenged.
g) That in view of the finding in (e) and (f) above, the court finds that the parties to the objection proceedings were given fair opportunity to present their case before the Land Adjudication Officer who in accordance with Section 26(2) of the Land Adjudication Act rendered a decision on 12 th April 2001 in favour of the 3 rd Respondent. That any party not satisfied should have filed an appeal to the Minister as provided for under Section 29 of Land Adjudication Act.
h) That the provision of Section 11(b) of the Land Adjudication Act empowers the land Adjudication Officer to “correct any error or supply any omission occurring in the adjudication register” . That power should not be taken to include nullifying the objection proceedings and decision undertaken in accordance with Section 26 of the Land Adjudication Act . That the provision of Section 29 of the Land Adjudication Act provides for appeals on determination of objection proceedings under Section 26 of the Act . That in view of the foregoing the Land Adjudication/Settlement Officer’s letter dated 5 th June 2001 purporting to nullify the decision in objection proceedings No.82/96/97 in respect of parcel number 3655 was in excess of his powers and therefore null and void ab initio. That it was unfortunate that the church did not take the option of filing an appeal on the objection proceedings decision to Minister in accordance with Section 29 of the Land Adjudication Act.
i) That Land Registrar Bondo cannot be faulted for registering the 3 rd Respondent as proprietor of land parcel Siaya/Nyaguda/3655 on 10 th November 2010 as the office was obligated under Section 28 of the Land Adjudication Act to cause the registration in receipt of the adjudication register.
…
n) That the application before the court is about the process in arriving at the decision rather than the merit of the decision. That the court having found that the parties were afforded fair hearing to present their case, that the objection proceedings were undertaken in accordance with Section 26 of the Land Adjudication Act and that the Applicant approached the court long after the expiry of the six months set by the law to seek for leave comes to the finding that the notice of motion dated 19 th October 2011 has no merit.”
34. The above decision by my brother Justice Kibunja essentially re-affirmed the validity of the Appellant’s title herein. Moreover, that decision has never been overturned by the Appellate court as the record does not bear any such decision. DW1 confirmed in cross examination there was no appeal that was filed against the High Court Judgement.
35. Section 26 of the Land Registration Act provides as follows: -
26. Certificate of title to be held as conclusive evidence of proprietorship
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2 ) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
36. Having reviewed the Record of Appeal, no other challenge was mounted against the Appellant’s title, and none was done successful on the grounds set out at Section 26 above, or for any other reason. Arisin from the Title Deed, Certificate of Official Search and Copy of the Register of the suit parcel produced, the registered proprietor of the land is the Appellant.
37. The Respondent’s contention that the Appellant was under a duty to disclose the existence of the church at the time of procuring registration of the suit property is, with respect, untenable and self-defeating. In its own pleadings, the Respondent expressly acknowledges that the suit property was initially adjudicated in favour of the church and that the Appellant subsequently lodged an objection during the adjudication process. It is not disputed that the existence and occupation of the church formed part of the matters canvassed during the adjudication objection proceedings. Consequently, the registration of the Appellant as proprietor, having arisen pursuant to the determination of the Adjudication Objection, was affected against the backdrop of facts that were fully within the knowledge of the adjudication authorities. In the circumstances, it cannot reasonably be contended that the Appellant procured registration through non-disclosure or concealment of the Respondent's occupation or existence on the suit property.
38. Having determined that the Appellant is in fact the owner of the land, the next step is to determine whether the existence of the Respondents on the suit land amounts to trespass as claimed by the Appellant. The court has noted there are varying narratives concerning how the Respondents gained initial entry into the suit property. Although the Appellant initiated the suit claiming that the Respondent entered the land without any colour of right or consent from him as the registered proprietor of the land. During the hearing however, he testified that he was selling the land to the Respondent for KShs. 50,000/-.
39. On how the Respondent got into the land, in its Statement of Defence filed in the lower court, the Respondent claimed to have purchased the land from the Appellant herein prior to the adjudication process. This averment was then repeated in Kisumu ELC Judicial Review Case No.1A of 2016 , where the learned judge notes in his judgment that the Respondent claimed to have purchased the land from the Appellant herein.
40. This court however notes that during the hearing by the trial court Denis Ambrose Achieng (DW1), a committee member in charge of the respondent church, testified that the land was in fact donated by one Wiliam Omiele (now deceased), a member of the church in the 1960s. DW2 expressly denied that the land was sold to the church by any person. Though he conceded he is the one who gave the advocate the facts for the case he stated if it was stated in the defence that the defendant purchased the land then he was not aware. The Respondent called one Wilfridah Ochieng (DW2), who told the trial court that she was a member of the Respondent church, and that William Omiele was her in-law. DW2 also told the court that the land was given to the church by one Opiyo, the father to Omiele. On cross-examination however, DW2 informed the court that William Omiele was in fact her husband, but reiterated that it was Omiele who gave the land to the church.
41. What I gather from these varying accounts is that at some point the Respondents had been allowed by the Appellant to use the land to build their church on the agreement that they would pay KShs. 50,000/-. Despite the varying accounts, this court is convinced that the deal between the Appellants and the Respondents was done in 1976. This remained the case until the Appellant realised that the Respondent had been allocated the land at adjudication, yet he had not been paid the agreed consideration for the land. He thereafter lodged an objection against the said allocation.
42. Counsel for the Appellant argues that the lodging of the objection was in itself a repudiation of the agreement between the Appellant and the Respondent. I do not however agree with this argument as the objection was only meant to secure the Appellants rights over the land and procure his registration thereof as the proprietor. Indeed, although this might have been the beginning of the misunderstanding between the parties herein, it did not amount to an express repudiation of the uncompleted sale of the land.
43. However, in his Plaint, the Plaintiff has averred that the Respondent refused to leave the land even after being asked to. That notwithstanding, the present proceedings commenced in the year 2011, and the Appellant’s relentlessness in ensuring that the Respondent is removed from the land, is proof enough that whatever permission was previously granted to the Respondent had been revoked. Consent having been revoked, the Respondent’s continuing presence on the land does in fact amount to trespass.
44. I note that Counsel for the Respondent cited Maina vs Waweru & 2 Others (Environment and Land Appeal 10 od 2023) (2025) KEELC 791 (KLR ) , and submitted that trespass requires unlawful entry without right or license. Counsel pointed out that the Respondent’s entry in 1976 was consensual and authorised under the agreement. Nevertheless, the fact the initial entry was consensual does not mean that trespass cannot arise. I have already outlined the definition of trespass elsewhere in this judgement, Trespass, as defined above denotes entry into land without permission, or remaining thereon after entry once permission has been withdrawn. It is important to note that pursuant to Section 3 of the Trespass Act and which I have reproduced, entry into land without consent or remaining on the land without consent is the very definition of trespass.
Whether the Respondent can claim the land by way of a constructive trust or an overriding interest on appeal
45. I must first point out that the Respondent in its pleadings never raised the issue of a constructive trust or equitable interests over the land and have only raised them in this appeal. It is a fundamental principle of the law that a party cannot introduce entirely new causes of action or fresh reliefs at the appeal stage. Appeals are strictly confined to the issues of fact and law that were originally pleaded, tried, and determined by the trial court. I’m however aware that where the issue touches on jurisdiction the court would be obligated to consider the same because jurisdiction is everything.
46. I note, however, that the trial magistrate alluded to it in his judgment, and held that: -
“The church has been on the suit land since 1976 to date according to the evidence of the Plaintiff. According to the evidence by the defendants the church has been on the suit land since 1952 with the first thatched church being done in 1961 and a permanent church in 1974. This was before adjudication. Thus, at the time the plaintiff got registration the defendant has acquired equitable rights over the suit land based on the long period they have been on the suit land.”
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JUDGEMENT
1. The Appellant herein commenced suit by filing a Plaint in the High Court being HCCC No. 176 of 2011. The suit was on 23.01.2018 transferred to Bondo Magistrate’s Court for hearing, where it was assigned PM ELC No. 20 of 2018. In that suit, the Appellant herein claimed that he was the sole legal and registered proprietor of a parcel of land known as SIAYA/ NYAGUNDA/3655 (the suit property herein), having acquired the same on 10.11.2010. The Appellant further claimed that the Respondent had trespassed into his land and constructed a church building. He thus sought an eviction order against the Respondent and costs of the suit.
2. The Respondent filed its Written Statement of Defence and Counterclaim dated 18 th December, 2012 denying the Appellant’s allegations of trespass. The Respondent admitted that the Appellant was indeed registered as the owner of the suit property on 10.11.2010 as alleged, but averred that the said registration was procured through fraud. The Respondent however claimed to have purchased the suit land from the Appellant prior to adjudication for Kshs. 50,000/-. That the suit land was ultimately adjudicated in the name of the Respondent during the Adjudication process, but the Appellant fraudulently had the land registered in his name instead. The Respondent asserted that it has been in occupation since it purchased the land and termed the allegations of trespass outrageous and absurd.
3. During the hearing of the Defence case on 18.07.2024, the Respondent orally amended its defence by striking out the counterclaim and the reliefs sought thereunder. Upon being heard in the lower court, the trial magistrate found that the Appellant had not proved trespass and dismissed the suit.
4. The Appellant being aggrieved by the judgement of Hon J.P. Nandi dated and delivered on 23/09/2024 in Bondo Principal Magistrate Court PMCELCC No. 20 of 2018 lodged a Memorandum of Appeal raising the following grounds of appeal: -
(1) The learned trial magistrate erred in law and fact in dismissing the Appellant’s case while the same was proved on a balance of probabilities.
(2) The learned trial magistrate erred in law and fact in finding that the Appellant had not proved trespass contrary to the evidence on record.
(3) The learned trial magistrate erred in law and fact in dismissing the Appellants case against the evidence on record.
(4) The learned trial magistrate erred in law and fact in holding that the Appellants pleadings were at variance with the evidence on record.
(5) The trial magistrate erred in his findings and decision against the evidence on record.
5. On the basis of the above grounds the Appellant prayed that the Appeal be allowed by allowing the suit in the lower court with costs.
6. The Appeal was on 14 th July, 2025 certified ready for hearing before this court. The Court further directed that the appeal does proceed by way of written submissions. The parties complied with the said directions and filed their respective submissions.
Appellants Submissions
7. The Appellant filed his written submissions dated 10.11.2025 through the firm of K’Owinoh & Co. Advocates. The Appellant condensed the five (5) grounds of appeal herein into 3 issues, being, whether the Respondent is a trespasser on the suit parcel; whether the Appellant is entitled to the orders sought and the issue of costs.
8. On whether the Respondent is a trespasser, Counsel for the Appellant submitted that the Appellant has been the registered owner of the suit land since 10.11.2010 and a title was issued to him on 14.11.2010. Counsel submitted that during the adjudication process, the suit land was adjudicated in favour of the Respondent. That the Appellant filed an objection, vide Nyagunda Adjudication Objection No. 8296, which was allowed on 12.04.2001. Counsel submitted that per the Land Adjudication findings, the Respondent’s elders were to pay the Appellant KShs. 50,000/- for the land after constructing the church, but this was not done, thus the land was ordered to revert to the Appellant.
9. Counsel submitted that the Respondent failed to file any appeal within the 60-day under Section 29 of the Land Adjudication Act, and the findings became final pursuant to Section 30 of the Land Adjudication Act. That the Respondent attempted to challenge the decision on the Adjudication Objection vide Kisumu ELC Judicial Review Case No. 1A of 2016, but the same was dismissed vide judgment delivered on 01.02.2017. Counsel submitted that the Appellant is therefore registered as the absolute proprietor of the land. Counsel pointed out that the Respondent had testified that the suit land had been donated, however, in Kisumu ELC Judicial Review Case No. 1A of 2016, the Respondent claimed that it had purchased the land from the Appellant.
10. Counsel submitted that the Respondent’s evidence was at variance with its pleadings, and consequently, and asserted that parties are bound by their pleadings. Counsel thus faulted the trial magistrate for finding that it was the Appellant’s evidence that was at variance with his pleadings. Counsel further faulted the trial magistrate for holding that the Appellant failed to disclose when he had repudiated the agreement with the Respondent. Counsel argued that the repudiation was made clear by the filing of the adjudication objection challenging the registration of the Respondent on ground of non-payment of the purchase price.
11. Counsel for the Appellant further submitted that the trial magistrate erred in holding that at the time of the Appellant’s registration, the Respondent had acquired equitable rights over the land based on the long period of occupation. Counsel contends that the trial magistrate essentially held that adverse possession was applicable in the Respondent’s favour, yet the Respondent had not pleaded it in its Defence. Counsel argued that adverse possession cannot apply before the first registration, since there must be a registered proprietor against whom time can run. Counsel pointed out that the Appellant was first registered on 10.11.2010 and this suit was filed in 2011.
12. Counsel further argued that the original entry into the land was pursuant to an agreement, but when the Appellant filed the Adjudication Objection, the Respondent became a trespasser on the land. Counsel concludes that the Appellant had proved trespass against the Respondent contrary to the trial magistrate’s finding. Counsel states that having proved his case, the Appellant is entitled to the orders sought as well as costs. Counsel asked the court to allow the Appeal, set aside the trial magistrates judgment and allow the prayers as prayed for in the Plaint.
The Respondent’s Submissions
13. The Respondent’s submissions filed through the firm of Odongo Awiro & C. Advocates, are dated 03.12.2025. Counsel argued the Appeal on four issues touching on constructive trust, overriding interests under Section 28 of the Land registration Act, the finding of the Adjudication Committee and whether it is proper to raise an issue that has not been pleaded.
14. Counsel submitted that the Appellant was obliged to disclose the existence of a 44-year-old church building on the land while procuring registration, and his failure to do so gave rise to an overriding interest against his title. Counsel submitted that courts recognise constructive trusts as an equitable remedy to prevent unjust enrichment. Counsel cited Macharia Mwangi & 87 Others vs Davidson Mwangi Kagiri (2014) eKLR , and submitted that a constructive trust may be imposed where a party has taken possession, made improvements and relied on an agreement to their detriment, even if the agreement is void for non-compliance with statutes like the Land Control Act.
15. Counsel admitted that the purchase price was not paid in full, but pointed out that the construction of the church, done with the Appellant’s knowledge after the sale, was a substantial improvement. Counsel argued that the developments coupled with the over 50 years possession, establishes detrimental reliance. Counsel further argues that the Appellant’s failure to enforce payment or evict the Respondent amounts to acquiescence, and he cannot now assert unencumbered ownership. Counsel submitted that the land was improved and occupied in good faith thus eviction would unjustly enrich the Appellant at the expense of a community institution, and cited Willy Kimutai Kitilit vs Michael Kibet (2018) eKLR .
16. Counsel submitted that the recognition of a certificate of title as prima facie proof of ownership under Section 26 of the Land Registration Act, is under Section 25 thereof, subject to overriding interests. Counsel cited Section 28 of the said Act, which includes trusts as one of the overriding interests. Counsel added that Constructive trusts are in the nature of equitable interests. The case of Satrose Ayuma & 11 Others vs Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others (2015) eKLR , was cited where it was held that equitable interests arising from possession and improvements override registered titles.
17. Counsel claims that the Appellant’s title was encumbered by the Respondent’s constructive trust, which predated it and is protected under Article 40 of the Constitution. Counsel urged that applying these principles, the trial court dismissed the claim in recognition of the Respondent’s equitable claim. Counsel argued that the decision of the Adjudication Committee did not bar equitable relief. Further that the said decision did not account for the Respondent’s 25 years possession and improvements on the land, thus the Appellant cannot rely on it to perpetrate an inequity after years of silence.
18. Counsel cited Order 2 Rule 15 of the Civil Procedure Rules and Independent Electoral and Boundaries Commission & Another vs Stephen Mutinda Mule & 3 Others (2014) eKLR , pointing that parties are bound by their pleadings. Counsel argued that the Appellant’s pleadings merely alleged entry without consent but did not explicitly claim trespass, damages or injunctions typical of such actions under the Trespass Act. Counsel argued that the omission was fatal and he could not now elevate it to ground of an appeal as it contravenes due process.
19. It was contended that trespass requires unlawful entry without right or license and relied on Maina vs Waweru & 2 Others (Environment and Land Appeal 10 od 2023) (2025) KEELC 791 (KLR) , That the Respondent’s entry in 1976 was consensual and authorised under the agreement. It is argued that the Appellant is estopped from denying consent due to his failure to enforce payment or evict them for decades, and drew support from Attorney General vs Nathan (2001)1 EA 1 . Counsel states that the trial court rightly ignored the Appellant’s unpleaded and unsubstantiated claim.
20. In conclusion, it is submitted that evicting a religious institution to satisfy an unpaid commercial claim from 1976 would violate the national values under Article 10 of the Constitution. That the Appellant’s title was procured in disregard of pre-existing equitable interests and was unlawfully acquired, thus not protected under Article 40 of the Constitution. Asserting the alleged constructive trust and overriding interests, Counsel prayed that the Appeal be dismissed with costs. Counsel further asked that the land be allowed to endure as a sanctuary nurtured by the Respondent, and not be used as a prize for dormant claims.
ANALYSIS AND DETERMINATION
21. This being a first appeal, this court is guided by the case of John Teleyio Ole Sawoyo vs. David Omwenga Maobe (2013) eKLR , where the Court held: -
“This being a first appeal we have the duty to reconsider both matters of fact and of law. On facts, we are duty bound to analyze the evidence afresh, re-evaluate it and arrive at our own independent conclusion but must bear in mind that the trial court had the advantage of hearing the witnesses testify and seeing their demeanour and should make allowance for the same.
Still on the duty of the first appellate Court, Hancox JA (as he then was), stated in Ephantus Mwangi & another vs. Duncan Mwangi Wambugu [1982-88] 1 KAR 278 at page 292, as follows: -
‘A Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did’. ”
22. As a first appellate court, therefore, this court has the onus to reconsider both matters of law and fact, bearing in mind that it did not have the advantage of seeing and hearing the witnesses.
23. I have examined the Memorandum of Appeal and the record of appeal. I have also considered the written submissions filed by the parties herein and analysed the relevant law. The following issues commend determination in this Appeal: -
(i) Whether the Respondent trespassed into the Appellant’s land; and
(ii) Whether the Respondent can claim the land by way of a constructive trust or an overriding interest on appeal;
(iii) Who bears the costs of this Appeal?
Whether the Respondent trespassed into the Appellant’s land
24. The main issue for determination is whether the Respondent trespassed into the Appellant’s land. Despite the Respondent’s claim that the Appellant did not plead it in the Plaint, this was the Appellant’s main complaint in the Plaint filed in the trial court. The Appellant accused the Respondent of trespassing into the suit property without his consent. The Respondent’s however denied this allegation, terming it outrageous and absurd. It therefore behoves this court to determine whether the Respondent indeed trespassed into the Appellant’s land.
25. I note that Counsel for the Respondent argued that the Appellant’s pleadings merely alleged entry without consent but did not explicitly claim trespass, damages or injunctions typical of such actions under the Trespass Act. Counsel argued that the omission was fatal and he could not now elevate it to a ground of appeal as it contravenes due process. The court respectfully disagrees with this proposition. I say so since the Appellant other than pleading that the Respondent had entered his land without consent, went on to expressly state at paragraph 3 of his Plaint that the Respondent’s actions amounted to trespass. The Appellant then set out the particulars of the alleged trespass on the part of the Respondent under the same paragraph.
26. In my view the Appellant has added no new claim to his case on appeal that was not already pleaded at the trial. The same cannot be said of the Respondent. I have not seen a claim for damages or injunction in this appeal. Moreover, even though the Respondent claims that the Appellant did not explicitly plead trespass, the Respondent at paragraph 5 of its Statement of Defence clearly stated that the allegations of trespass were outrageous and absurd. Clearly, therefore, the Respondent had no difficulty understanding that it was being accused of trespass into the Appellant’s land.
27. Turning to the issue of trespass, it is pertinent to highlight the definition of trespass. The Black’s Law Dictionary 9 th Edition at page 1642 defines trespass thus; -
“An unlawful act committed against the person or property of another; esp., wrongful entry on another’s real property” .
28. The Trespass Act does not expressly define the term trespass, but Section 3 thereof provides that: -
3. Trespass upon private land
(1) Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an offence.
29. Since trespass connotes entry or remaining on another person’s land without consent, it follows that to determine this issue, the court must first address the question of ownership who the owner of the parcel of land known as Siaya/Nyaguda/3655 is. It has been admitted that the suit property herein is registered in the name of the Appellant. The record shows his registration was pursuant to adjudication process that was done in the 1980s.
30. My review of the Adjudication proceedings produced before the trial court, reveals that the Appellant had testified before the Committee that the Respondent had encroached into the Appellants portion of land, by what is described as 45 by 45 feet. When the Appellant raised the issue, he was approached by three church members and they agreed the church would pay the Appellant KShs. 50,000/- for the land. In 1976, they agreed that payment would be made after building the church. A witness testified before the Committee that as at the time of the adjudication proceedings in 2011, six years had passed since the completion of the church, but no payment had been made.
31. The above Adjudication Proceedings resulted in a decision made on 12.04.2002. The Adjudication Committee found that indeed, the Respondent was to pay the amount of KShs. 50,000/- upon completing the construction of the church building, but this had not been done. The Committee thus directed that the land should revert to the Appellant. The Respondent cannot claim decades of non-enforcement of payment, when the debt fell due upon the completion of the construction of the church. As at the time of the adjudication proceedings payment had only been due for 6 years.
32. However, this court notes a complaint was made to the Ministry of Lands and Settlement that the said proceedings were conducted ex-parte and vide letter dated 5 th June, 2001 the said proceedings were nullified. This letter notes that the decision of the Adjudication Committee had already been implemented, but the same was now null and void, and it advised that the parties would be summoned afresh to appear before the Land Adjudication Officer. Before this was done, the Respondent learnt that the land had been registered in the Appellant’s name.
33. The Respondent then lodged Kisumu ELC Judicial Review Case No.1A of 2016 (Formerly High Court Judicial Review Case No. 45 of 2011) seeking an order of Certiorari to quash the registration of the Appellant as proprietor of the suit land herein, as well as the Adjudication Objection Proceedings for reason that they were not given an opportunity to be heard. In a judgment delivered by Hon. Justice Kibunja on 01.02.2017, the Respondent’s suit was dismissed. The learned Judge stated thus; -
“f) That there is nothing in the objection proceedings to support the applicant’s claim that they sought for and were denied time to present other witnesses. That the 3 rd Respondent’s deposition that the church was represented by Vitalis Okere Adede who was heard has not been challenged.
g) That in view of the finding in (e) and (f) above, the court finds that the parties to the objection proceedings were given fair opportunity to present their case before the Land Adjudication Officer who in accordance with Section 26(2) of the Land Adjudication Act rendered a decision on 12 th April 2001 in favour of the 3 rd Respondent. That any party not satisfied should have filed an appeal to the Minister as provided for under Section 29 of Land Adjudication Act.
h) That the provision of Section 11(b) of the Land Adjudication Act empowers the land Adjudication Officer to “correct any error or supply any omission occurring in the adjudication register” . That power should not be taken to include nullifying the objection proceedings and decision undertaken in accordance with Section 26 of the Land Adjudication Act . That the provision of Section 29 of the Land Adjudication Act provides for appeals on determination of objection proceedings under Section 26 of the Act . That in view of the foregoing the Land Adjudication/Settlement Officer’s letter dated 5 th June 2001 purporting to nullify the decision in objection proceedings No.82/96/97 in respect of parcel number 3655 was in excess of his powers and therefore null and void ab initio. That it was unfortunate that the church did not take the option of filing an appeal on the objection proceedings decision to Minister in accordance with Section 29 of the Land Adjudication Act.
i) That Land Registrar Bondo cannot be faulted for registering the 3 rd Respondent as proprietor of land parcel Siaya/Nyaguda/3655 on 10 th November 2010 as the office was obligated under Section 28 of the Land Adjudication Act to cause the registration in receipt of the adjudication register.
…
n) That the application before the court is about the process in arriving at the decision rather than the merit of the decision. That the court having found that the parties were afforded fair hearing to present their case, that the objection proceedings were undertaken in accordance with Section 26 of the Land Adjudication Act and that the Applicant approached the court long after the expiry of the six months set by the law to seek for leave comes to the finding that the notice of motion dated 19 th October 2011 has no merit.”
34. The above decision by my brother Justice Kibunja essentially re-affirmed the validity of the Appellant’s title herein. Moreover, that decision has never been overturned by the Appellate court as the record does not bear any such decision. DW1 confirmed in cross examination there was no appeal that was filed against the High Court Judgement.
35. Section 26 of the Land Registration Act provides as follows: -
26. Certificate of title to be held as conclusive evidence of proprietorship
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2 ) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
36. Having reviewed the Record of Appeal, no other challenge was mounted against the Appellant’s title, and none was done successful on the grounds set out at Section 26 above, or for any other reason. Arisin from the Title Deed, Certificate of Official Search and Copy of the Register of the suit parcel produced, the registered proprietor of the land is the Appellant.
37. The Respondent’s contention that the Appellant was under a duty to disclose the existence of the church at the time of procuring registration of the suit property is, with respect, untenable and self-defeating. In its own pleadings, the Respondent expressly acknowledges that the suit property was initially adjudicated in favour of the church and that the Appellant subsequently lodged an objection during the adjudication process. It is not disputed that the existence and occupation of the church formed part of the matters canvassed during the adjudication objection proceedings. Consequently, the registration of the Appellant as proprietor, having arisen pursuant to the determination of the Adjudication Objection, was affected against the backdrop of facts that were fully within the knowledge of the adjudication authorities. In the circumstances, it cannot reasonably be contended that the Appellant procured registration through non-disclosure or concealment of the Respondent's occupation or existence on the suit property.
38. Having determined that the Appellant is in fact the owner of the land, the next step is to determine whether the existence of the Respondents on the suit land amounts to trespass as claimed by the Appellant. The court has noted there are varying narratives concerning how the Respondents gained initial entry into the suit property. Although the Appellant initiated the suit claiming that the Respondent entered the land without any colour of right or consent from him as the registered proprietor of the land. During the hearing however, he testified that he was selling the land to the Respondent for KShs. 50,000/-.
39. On how the Respondent got into the land, in its Statement of Defence filed in the lower court, the Respondent claimed to have purchased the land from the Appellant herein prior to the adjudication process. This averment was then repeated in Kisumu ELC Judicial Review Case No.1A of 2016 , where the learned judge notes in his judgment that the Respondent claimed to have purchased the land from the Appellant herein.
40. This court however notes that during the hearing by the trial court Denis Ambrose Achieng (DW1), a committee member in charge of the respondent church, testified that the land was in fact donated by one Wiliam Omiele (now deceased), a member of the church in the 1960s. DW2 expressly denied that the land was sold to the church by any person. Though he conceded he is the one who gave the advocate the facts for the case he stated if it was stated in the defence that the defendant purchased the land then he was not aware. The Respondent called one Wilfridah Ochieng (DW2), who told the trial court that she was a member of the Respondent church, and that William Omiele was her in-law. DW2 also told the court that the land was given to the church by one Opiyo, the father to Omiele. On cross-examination however, DW2 informed the court that William Omiele was in fact her husband, but reiterated that it was Omiele who gave the land to the church.
41. What I gather from these varying accounts is that at some point the Respondents had been allowed by the Appellant to use the land to build their church on the agreement that they would pay KShs. 50,000/-. Despite the varying accounts, this court is convinced that the deal between the Appellants and the Respondents was done in 1976. This remained the case until the Appellant realised that the Respondent had been allocated the land at adjudication, yet he had not been paid the agreed consideration for the land. He thereafter lodged an objection against the said allocation.
42. Counsel for the Appellant argues that the lodging of the objection was in itself a repudiation of the agreement between the Appellant and the Respondent. I do not however agree with this argument as the objection was only meant to secure the Appellants rights over the land and procure his registration thereof as the proprietor. Indeed, although this might have been the beginning of the misunderstanding between the parties herein, it did not amount to an express repudiation of the uncompleted sale of the land.
43. However, in his Plaint, the Plaintiff has averred that the Respondent refused to leave the land even after being asked to. That notwithstanding, the present proceedings commenced in the year 2011, and the Appellant’s relentlessness in ensuring that the Respondent is removed from the land, is proof enough that whatever permission was previously granted to the Respondent had been revoked. Consent having been revoked, the Respondent’s continuing presence on the land does in fact amount to trespass.
44. I note that Counsel for the Respondent cited Maina vs Waweru & 2 Others (Environment and Land Appeal 10 od 2023) (2025) KEELC 791 (KLR ) , and submitted that trespass requires unlawful entry without right or license. Counsel pointed out that the Respondent’s entry in 1976 was consensual and authorised under the agreement. Nevertheless, the fact the initial entry was consensual does not mean that trespass cannot arise. I have already outlined the definition of trespass elsewhere in this judgement, Trespass, as defined above denotes entry into land without permission, or remaining thereon after entry once permission has been withdrawn. It is important to note that pursuant to Section 3 of the Trespass Act and which I have reproduced, entry into land without consent or remaining on the land without consent is the very definition of trespass.
Whether the Respondent can claim the land by way of a constructive trust or an overriding interest on appeal
45. I must first point out that the Respondent in its pleadings never raised the issue of a constructive trust or equitable interests over the land and have only raised them in this appeal. It is a fundamental principle of the law that a party cannot introduce entirely new causes of action or fresh reliefs at the appeal stage. Appeals are strictly confined to the issues of fact and law that were originally pleaded, tried, and determined by the trial court. I’m however aware that where the issue touches on jurisdiction the court would be obligated to consider the same because jurisdiction is everything.
46. I note, however, that the trial magistrate alluded to it in his judgment, and held that: -
“The church has been on the suit land since 1976 to date according to the evidence of the Plaintiff. According to the evidence by the defendants the church has been on the suit land since 1952 with the first thatched church being done in 1961 and a permanent church in 1974. This was before adjudication. Thus, at the time the plaintiff got registration the defendant has acquired equitable rights over the suit land based on the long period they have been on the suit land.”
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