1. The Appellant filed this Appeal, dissatisfied with the judgment of the Principal Magistrate, Hon. E. Kanyiri, in Karatina Principal Magistrate’s ELC Case No. 8 of 2018, delivered on 29th May 2023. Their Memorandum of Appeal, dated 26th June 2023, sets out the grounds of appeal as follows:
a) The Learned Magistrate erred in law and in fact in concluding that the Appellant’s title could be impeached, and yet she observed that no evidence was adduced that pointed to her as being a party to any fraud or misrepresentation.
b) The Learned Magistrate erred in law and in fact in concluding that the conditions provided for impeachment of a title under Section 26(1)(b) of the Land Registration Act were met, and yet she was the fourth person to hold this title.
c) The Learned trial Magistrate erred in law and in fact in allowing her judgment to be influenced by some minor technicalities which did not go to the root of the title.
d) The Learned trial Magistrate erred in law and in fact in concluding that the Appellant’s title was impeachable, although the Respondent did not prove any fraud in her pleadings or in evidence.
2. The Appellant prays for the following orders:
a) The appeal is allowed with costs.
b) The Court be pleased to set aside the entire judgment of the trial court.
Summary of the case before the trial Court
3. The suit before the trial court was initially filed before the High Court at Nyeri as Civil case 31 of 2000, before it was transferred to the Principal Magistrate at Karatina since it was within the Court’s pecuniary jurisdiction.
4. The suit was instituted by Plaint dated 29th November 1999, in which the Plaintiff, who is the Appellant in this suit, averred that she is the registered owner of the suit property known as Konyu/Gakuyu/1082 and that the Defendant trespassed onto her land.
5. She prayed for an order that the Defendant vacate the suit land and for general damages for trespass.
6. The Defendant filed a statement of defense dated 28th March 2000, in which he denied the contents of the Plaint. Another statement is on record, dated 31st August 2015, filed by his wife, the Respondent herein, after his death, stating that the suit land was bequeathed to her deceased husband by Maina Ngari (Deceased) after he took care of him when he was elderly until his death, and that no fraud was involved. She claimed fraud in the manner in which the land was registered, alleging it was transferred from several owners.
7. The hearing began on the 17th of August 2022, and PW 1, the Plaintiff, adopted her witness statement dated 12th May 2025 as well as her filed bundle of documents. She stated that she bought land from one Josphat Kariuki under a sale agreement dated 10th April 1995 and found no one living on the land at the time, save for planted coffee.
8. Upon cross-examination, she stated that she bought the land in 1995 and that no one was on the land at that time. She went to Nyandarua and was called by someone who informed her that someone else was on her land. She denied knowing Maina Ngari and stated that she only knew Josphat, who sold her the land.
9. PW 2, Isaac Wanjohi Muriuki, gave evidence for the Plaintiff’s case and adopted his witness statement dated 30th January 2017. On cross-examination, he stated that the suit land belonged to Maina Ngari, who sold various portions, and that the Plaintiff bought the suit land from him when no one else was living on the land. He further stated that the Defendant's husband lived on a different side of the land, not on the suit land.
10. DW 1, the Defendant, gave her testimony, stating that she had been on the suit land for 40 years. She stated that the land belonged to Maina Ngari (Deceased), who was an uncle to her late husband, denied having trespassed on the land, and stated that the Plaintiff found her on the suit land. She denied knowing the said Josphat Kariuki Karanja and clarified that she does not live on the suit land, but works on it.
11. On cross-examination, the Defendant denied that Elizabeth Njeri was the legal wife of Maina Ngari and stated that the Green Card was falsified in her registration for the suit land. She also stated that she was unaware that the Plaintiff had purchased the suit land. This marked the close of the defense case.
12. Judgment was delivered by the trial court on May 29, 2023, in which the Learned Principal Magistrate found that the conditions for impeachment of a title under Section 26(1) of the Land Registration Act were met, that the title was obtained illegally and unprocedurally or through a corrupt scheme, and dismissed the suit with costs to the Defendant.
Appellant’s written submissions
13. Counsel for the Appellant submitted that the learned magistrate fundamentally erred in concluding that her title was liable to impeachment, despite the court’s express finding that no evidence was adduced implicating the Appellant in fraud, misrepresentation, or any impropriety. It was common ground before the trial court that the Appellant was a subsequent purchaser who acquired the property for value, followed the due process of transfer, and was not involved in any of the earlier transactions that formed the root of title.
14. On grounds two and three in the Memorandum of Appeal, the Appellant’s Counsel noted that the title was the fourth in a long sequence of transfers. The alleged clerical error relied on by the trial magistrate, relating to the RL9 and green card entries, concerned the very first registration events, long before the Appellant acquired any interest in the land. The Appellant had no participation, knowledge, or control over those historic registry processes.
15. On the ground that fraud is an allegation in law and must meet strict procedural and evidentiary requirements, the Appellant submitted that, in the present case, the Respondent did not plead fraud; did not plead illegal or unprocedural acquisition; and tendered no evidence demonstrating any wrongdoing. Despite this, the learned magistrate nonetheless reached a conclusion that implied illegality or fraudulent acquisition without any evidentiary foundation or statutory basis, contrary to the Court of Appeal’s holding in Vijay Morjaria v Nansingh Darbar [2000] eKLR.
16. The Appellant prayed that this Court be pleased to allow the appeal with costs, set aside the judgment of the lower court, and enter judgment as prayed in the plaint dated 29th November 1999.
The Respondent’s submissions
17. Counsel for the Respondent submitted that the learned Magistrate was correct in her decision, and that the reasoning was supported by numerous decisions of the upper Courts, as set out on pages 181, 182, and 184 of the record of appeal.
18. Counsel pointed out that the death certificate confirms that Maina Ngari, the original owner of the suit premises, died on November 30, 1978. However, on the green card, page 99 of the Record of the Appeal, Entry No. 1 dated February 4, 1994, records the issuance of a title deed for the suit premises to Maina Ngari, even though Maina Ngari had died in 1978.
19. Secondly, it was highlighted that entry no. 2 on the Green Card is dated February 1, 1994, which records the registration of the same title in the name of Elizabeth Wanjiru Maina.
20. The Respondent’s submission is that the learned magistrate was properly guided by the case of Elijah Makeri Nyangwra v Stephen Mungai Njuguna & Another [2013] eKLR, on page 184 of the record, where Munyao J answered the question of whether title is impeachable under section 26(1)(b) of the Land Registration Act.
21. The Respondent argues that the Appellant did not controvert the illegality of the unprocedural entries raised in the green card by the Defendant. Therefore, she did not prove that her title is indefeasible. It follows that after learning that the Respondent was on the land, Elizabeth Wanjeri sold it to Josphat Kariuki, who later sold it to the Appellant herein. In their view, Elizabeth did not pass a good title to either Josphat or the Appellant herein.
22. Counsel concluded that the appeal lacks merit and should be dismissed with costs.
Analysis and determination
23. The role of an appellate court was articulated in the case of Gitobu Imanyara & 2 others v Attorney General [2016] e KLR, where the Court of Appeal stated that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.”
24. The issue for determination is whether the Trial Magistrate erred in concluding that the Plaintiff’s title was impeachable. Upon re-evaluation of the evidence before the trial court, the Plaintiff submitted an agreement for the sale of the suit land, LR Konyu/Gakuyu/1082, dated 10th April 1995, wherein she was listed as the purchaser. Additionally, she produced copies of the title deed registered in the name of Josphat Kariuki Karanja, from whom she claimed to have acquired the suit land, as well as a copy of the title in her own name. The Defendant denied that the suit land was ever owned by either of the two individuals, asserting instead that the land belonged to one Maina Ngari, who bequeathed it to her late husband.
25. The Plaintiff produced a copy of her title deed. Section 26 of the Land Registration Act 2012 provides that a certificate of title is prima facie evidence of proprietorship.
“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.”
26. Thus, the title is indefeasible except for the two grounds cited in the Act. In this case, the title passed through several owners, as evidenced by the Defendant's Green Card. Therefore, we must investigate the title's origin to determine its authenticity. Munyao Sila J (as he then was) in the case of Elijah Makeri Nyangwara v Stephen Mungai Njuguna & Another [2013] KEELC 161 (KLR), which the Trial Court cited, found as follows:
“Is the title impeachable by virtue of Section 26(1) (b)? First, it needs to be appreciated that for Section 26 (1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions.
The evidence in this case puts no one in doubt that the title to the 1st defendant was obtained illegally, unprocedurally or through a corrupt scheme. The documents that conveyed title to him were forged. The title could not therefore have been obtained legally or procedurally.”
27. This position was affirmed by the Learned Judges of the Supreme Court in the case of Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), as follows:
“The acquisition of title cannot be construed only in the end result, the process of acquisition is material. It follows that if a document of title was not acquired through the proper process, the title itself cannot be said to be a good title. If this were not the position, then all one would need to do is to manufacture a Lease or Certificate of Title, at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein.”
28. A review of the Green Card produced by the Defendant before the Trial Court shows that the first registration entry was in favor of Maina Ngari on February 4, 1994. The Respondent argued that this was implausible because Maina Ngari died in 1978. However, title can be issued in the name of a deceased person, meaning it will be part of their estate.
29. The second entry on the suit property’s Green Card is questionable because it is dated 1st February 1994 in favor of Elizabeth Wanjeri Maina, three days before the first entry, contrary to the chronological order in which such entries are made. However, this may be explained as a clerical error in the order of registration of the owners of the suit land, because the Arbitration and succession proceedings produced show that the said Elizabeth Wanjeri inherited Land Parcel Konyu/Gakuyu/744 from the original owner, Maina Ngari. However, there is no evidence that the said parcel, measuring 0.9 acres, was the mother parcel from which the suit land, LR Konyu/Gakuyu/1082, measuring 0.36 acres, mutated. The questionable registration dates entered on the Green Card, in my view, point to an unprocedural transfer of title.
30. A fresh registration was made again on November 4, 1994, in favor of Josphat Kariuki Karanja, about whom none of the parties knew any details regarding how he acquired the said title. The Appellant then bought the suit property from him.
31. It is the settled position in law that one cannot pass a good title if one does not have a good title. In the case of Katana Kalume & another vs Municipal Council of Mombasa & another [2019] eKLR, the court cited the holding in Bishopsgate Motor Finance Corporation Ltd v Transport Brakes Ltd [1949] 1 KB 322, at pp. 336-337, where it was held as follows:
“In the development of our law, two principles have striven for masterly. The first is for the protection of property; no one can give a better title than he himself possesses."
32. The Court of Appeal in the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR expressed the following:
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”
33. From the foregoing, I thus hold that the Plaintiff indeed failed to prove that she has a good title and ownership over the suit property, and thus could not prove that the Respondent had actually trespassed onto her land. Hence, the trial Court did not err in finding that the Appellant’s title was impeachable and that the Plaintiff had failed to prove her case on a balance of probabilities.
34. Consequently, the appeal lacks merit and is dismissed with costs.
Dated, signed, and delivered electronically in Nyeri on this 30th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Maina for the Appellant
Kendi: Court Assistant
In the Absence of:
Ms. Wahome for the Respondent
a) The Learned Magistrate erred in law and in fact in concluding that the Appellant’s title could be impeached, and yet she observed that no evidence was adduced that pointed to her as being a party to any fraud or misrepresentation.
b) The Learned Magistrate erred in law and in fact in concluding that the conditions provided for impeachment of a title under Section 26(1)(b) of the Land Registration Act were met, and yet she was the fourth person to hold this title.
c) The Learned trial Magistrate erred in law and in fact in allowing her judgment to be influenced by some minor technicalities which did not go to the root of the title.
d) The Learned trial Magistrate erred in law and in fact in concluding that the Appellant’s title was impeachable, although the Respondent did not prove any fraud in her pleadings or in evidence.
2. The Appellant prays for the following orders:
a) The appeal is allowed with costs.
b) The Court be pleased to set aside the entire judgment of the trial court.
Summary of the case before the trial Court
3. The suit before the trial court was initially filed before the High Court at Nyeri as Civil case 31 of 2000, before it was transferred to the Principal Magistrate at Karatina since it was within the Court’s pecuniary jurisdiction.
4. The suit was instituted by Plaint dated 29th November 1999, in which the Plaintiff, who is the Appellant in this suit, averred that she is the registered owner of the suit property known as Konyu/Gakuyu/1082 and that the Defendant trespassed onto her land.
5. She prayed for an order that the Defendant vacate the suit land and for general damages for trespass.
6. The Defendant filed a statement of defense dated 28th March 2000, in which he denied the contents of the Plaint. Another statement is on record, dated 31st August 2015, filed by his wife, the Respondent herein, after his death, stating that the suit land was bequeathed to her deceased husband by Maina Ngari (Deceased) after he took care of him when he was elderly until his death, and that no fraud was involved. She claimed fraud in the manner in which the land was registered, alleging it was transferred from several owners.
7. The hearing began on the 17th of August 2022, and PW 1, the Plaintiff, adopted her witness statement dated 12th May 2025 as well as her filed bundle of documents. She stated that she bought land from one Josphat Kariuki under a sale agreement dated 10th April 1995 and found no one living on the land at the time, save for planted coffee.
8. Upon cross-examination, she stated that she bought the land in 1995 and that no one was on the land at that time. She went to Nyandarua and was called by someone who informed her that someone else was on her land. She denied knowing Maina Ngari and stated that she only knew Josphat, who sold her the land.
9. PW 2, Isaac Wanjohi Muriuki, gave evidence for the Plaintiff’s case and adopted his witness statement dated 30th January 2017. On cross-examination, he stated that the suit land belonged to Maina Ngari, who sold various portions, and that the Plaintiff bought the suit land from him when no one else was living on the land. He further stated that the Defendant's husband lived on a different side of the land, not on the suit land.
10. DW 1, the Defendant, gave her testimony, stating that she had been on the suit land for 40 years. She stated that the land belonged to Maina Ngari (Deceased), who was an uncle to her late husband, denied having trespassed on the land, and stated that the Plaintiff found her on the suit land. She denied knowing the said Josphat Kariuki Karanja and clarified that she does not live on the suit land, but works on it.
11. On cross-examination, the Defendant denied that Elizabeth Njeri was the legal wife of Maina Ngari and stated that the Green Card was falsified in her registration for the suit land. She also stated that she was unaware that the Plaintiff had purchased the suit land. This marked the close of the defense case.
12. Judgment was delivered by the trial court on May 29, 2023, in which the Learned Principal Magistrate found that the conditions for impeachment of a title under Section 26(1) of the Land Registration Act were met, that the title was obtained illegally and unprocedurally or through a corrupt scheme, and dismissed the suit with costs to the Defendant.
Appellant’s written submissions
13. Counsel for the Appellant submitted that the learned magistrate fundamentally erred in concluding that her title was liable to impeachment, despite the court’s express finding that no evidence was adduced implicating the Appellant in fraud, misrepresentation, or any impropriety. It was common ground before the trial court that the Appellant was a subsequent purchaser who acquired the property for value, followed the due process of transfer, and was not involved in any of the earlier transactions that formed the root of title.
14. On grounds two and three in the Memorandum of Appeal, the Appellant’s Counsel noted that the title was the fourth in a long sequence of transfers. The alleged clerical error relied on by the trial magistrate, relating to the RL9 and green card entries, concerned the very first registration events, long before the Appellant acquired any interest in the land. The Appellant had no participation, knowledge, or control over those historic registry processes.
15. On the ground that fraud is an allegation in law and must meet strict procedural and evidentiary requirements, the Appellant submitted that, in the present case, the Respondent did not plead fraud; did not plead illegal or unprocedural acquisition; and tendered no evidence demonstrating any wrongdoing. Despite this, the learned magistrate nonetheless reached a conclusion that implied illegality or fraudulent acquisition without any evidentiary foundation or statutory basis, contrary to the Court of Appeal’s holding in Vijay Morjaria v Nansingh Darbar [2000] eKLR.
16. The Appellant prayed that this Court be pleased to allow the appeal with costs, set aside the judgment of the lower court, and enter judgment as prayed in the plaint dated 29th November 1999.
The Respondent’s submissions
17. Counsel for the Respondent submitted that the learned Magistrate was correct in her decision, and that the reasoning was supported by numerous decisions of the upper Courts, as set out on pages 181, 182, and 184 of the record of appeal.
18. Counsel pointed out that the death certificate confirms that Maina Ngari, the original owner of the suit premises, died on November 30, 1978. However, on the green card, page 99 of the Record of the Appeal, Entry No. 1 dated February 4, 1994, records the issuance of a title deed for the suit premises to Maina Ngari, even though Maina Ngari had died in 1978.
19. Secondly, it was highlighted that entry no. 2 on the Green Card is dated February 1, 1994, which records the registration of the same title in the name of Elizabeth Wanjiru Maina.
20. The Respondent’s submission is that the learned magistrate was properly guided by the case of Elijah Makeri Nyangwra v Stephen Mungai Njuguna & Another [2013] eKLR, on page 184 of the record, where Munyao J answered the question of whether title is impeachable under section 26(1)(b) of the Land Registration Act.
21. The Respondent argues that the Appellant did not controvert the illegality of the unprocedural entries raised in the green card by the Defendant. Therefore, she did not prove that her title is indefeasible. It follows that after learning that the Respondent was on the land, Elizabeth Wanjeri sold it to Josphat Kariuki, who later sold it to the Appellant herein. In their view, Elizabeth did not pass a good title to either Josphat or the Appellant herein.
22. Counsel concluded that the appeal lacks merit and should be dismissed with costs.
Analysis and determination
23. The role of an appellate court was articulated in the case of Gitobu Imanyara & 2 others v Attorney General [2016] e KLR, where the Court of Appeal stated that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.”
24. The issue for determination is whether the Trial Magistrate erred in concluding that the Plaintiff’s title was impeachable. Upon re-evaluation of the evidence before the trial court, the Plaintiff submitted an agreement for the sale of the suit land, LR Konyu/Gakuyu/1082, dated 10th April 1995, wherein she was listed as the purchaser. Additionally, she produced copies of the title deed registered in the name of Josphat Kariuki Karanja, from whom she claimed to have acquired the suit land, as well as a copy of the title in her own name. The Defendant denied that the suit land was ever owned by either of the two individuals, asserting instead that the land belonged to one Maina Ngari, who bequeathed it to her late husband.
25. The Plaintiff produced a copy of her title deed. Section 26 of the Land Registration Act 2012 provides that a certificate of title is prima facie evidence of proprietorship.
“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.”
26. Thus, the title is indefeasible except for the two grounds cited in the Act. In this case, the title passed through several owners, as evidenced by the Defendant's Green Card. Therefore, we must investigate the title's origin to determine its authenticity. Munyao Sila J (as he then was) in the case of Elijah Makeri Nyangwara v Stephen Mungai Njuguna & Another [2013] KEELC 161 (KLR), which the Trial Court cited, found as follows:
“Is the title impeachable by virtue of Section 26(1) (b)? First, it needs to be appreciated that for Section 26 (1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions.
The evidence in this case puts no one in doubt that the title to the 1st defendant was obtained illegally, unprocedurally or through a corrupt scheme. The documents that conveyed title to him were forged. The title could not therefore have been obtained legally or procedurally.”
27. This position was affirmed by the Learned Judges of the Supreme Court in the case of Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), as follows:
“The acquisition of title cannot be construed only in the end result, the process of acquisition is material. It follows that if a document of title was not acquired through the proper process, the title itself cannot be said to be a good title. If this were not the position, then all one would need to do is to manufacture a Lease or Certificate of Title, at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein.”
28. A review of the Green Card produced by the Defendant before the Trial Court shows that the first registration entry was in favor of Maina Ngari on February 4, 1994. The Respondent argued that this was implausible because Maina Ngari died in 1978. However, title can be issued in the name of a deceased person, meaning it will be part of their estate.
29. The second entry on the suit property’s Green Card is questionable because it is dated 1st February 1994 in favor of Elizabeth Wanjeri Maina, three days before the first entry, contrary to the chronological order in which such entries are made. However, this may be explained as a clerical error in the order of registration of the owners of the suit land, because the Arbitration and succession proceedings produced show that the said Elizabeth Wanjeri inherited Land Parcel Konyu/Gakuyu/744 from the original owner, Maina Ngari. However, there is no evidence that the said parcel, measuring 0.9 acres, was the mother parcel from which the suit land, LR Konyu/Gakuyu/1082, measuring 0.36 acres, mutated. The questionable registration dates entered on the Green Card, in my view, point to an unprocedural transfer of title.
30. A fresh registration was made again on November 4, 1994, in favor of Josphat Kariuki Karanja, about whom none of the parties knew any details regarding how he acquired the said title. The Appellant then bought the suit property from him.
31. It is the settled position in law that one cannot pass a good title if one does not have a good title. In the case of Katana Kalume & another vs Municipal Council of Mombasa & another [2019] eKLR, the court cited the holding in Bishopsgate Motor Finance Corporation Ltd v Transport Brakes Ltd [1949] 1 KB 322, at pp. 336-337, where it was held as follows:
“In the development of our law, two principles have striven for masterly. The first is for the protection of property; no one can give a better title than he himself possesses."
32. The Court of Appeal in the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR expressed the following:
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”
33. From the foregoing, I thus hold that the Plaintiff indeed failed to prove that she has a good title and ownership over the suit property, and thus could not prove that the Respondent had actually trespassed onto her land. Hence, the trial Court did not err in finding that the Appellant’s title was impeachable and that the Plaintiff had failed to prove her case on a balance of probabilities.
34. Consequently, the appeal lacks merit and is dismissed with costs.
Dated, signed, and delivered electronically in Nyeri on this 30th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Ms. Maina for the Appellant
Kendi: Court Assistant
In the Absence of:
Ms. Wahome for the Respondent