Background
The record of appeal filed herein dated 4/12/2025 shows that the appellant was the Defendant in HAMISI SPMC ELC CASE NO. E015 OF 2022 (herein called the suit) wherein she had been sued by the Respondent herein over a parcel of land known as TIRIKI/CHEPTULU/1411 (the suit land).
The Respondent's case in the suit was that he was the registered owner of the suit land while the appellant was the registered owner of the parcel of land known as TIRIKI/CHEPTULU/1410.
The Respondent's complaint in the suit was that the appellant had encroached onto the suit land by erecting structures on the common boundary, which structures encroached onto the suit land. That a boundary dispute in respect thereof was decided in favour of the Respondent by the Land Registrar, who found that the appellant had erected structures on her land parcel No. TIRIKI/CHEPTULU/1410, which structures encroached onto the suit land by a distance of 0.8 metres towards the Western side and 2 metres towards the Eastern side.
The Respondent therefore sought an order of mandatory injunction compelling the appellant to demolish the encroaching structures at the appellant's cost, failure to which the Respondent be at liberty to demolish, and an order that the OCS Cheptulu Police Station do supervise enforcement of the orders.
The record shows that the appellant filed Defendant's Statement of Defence and Counterclaim dated 10th December 2023, vide which she denied the Respondent's claim and averred that the creation of land parcel No. TIRIKI/CHEPTULU/1410 and 1411 from land parcel No. TIRIKI/CHEPTULU/1045 was done without her involvement; that the same was done when the structures in issue were already in situ for over 12 years and that the new boundaries were to abide by the already existing partitions. The appellant therefore prayed for cancellation of the sub-division of land parcel No. TIRIKI/CHEPTULU/1045 to pave the way for a fresh demarcation and amendment of the map to reflect the already existing partition.
The record further shows that the suit was heard before the trial court which, vide judgment dated 4th September 2025, dismissed the counterclaim with costs to the Respondent and allowed the Respondent's claim as contained in the plaint, and entered judgment in favour of the Respondent accordingly.
The Appeal
Aggrieved by the judgment, the appellant preferred the present appeal vide the Memorandum of Appeal dated 11 th September 2025. The grounds of appeal are that:
1. The learned trial Magistrate erred in law and in fact in dismissing the defence and counterclaim without assigning any reasons and/or considering them together with the defence evidence on record.
2. The learned trial Magistrate erred in law and in fact in holding that the Respondent had proved his case on a balance of probabilities, contrary to the evidence on record.
3. The learned trial Magistrate erred in law and in fact in handling the issues before him in a perfunctory manner, hence occasioning miscarriage of justice.
4. The learned trial Magistrate erred in law and in fact in disregarding the pleadings and the evidence of the appellant, hence occasioning a miscarriage of justice.
5. The trial Magistrate erred in law and in fact in arriving at a decision that was at variance with the plaintiff/Respondent’s pleadings.
6. The trial Magistrate erred in law and fact in failing to find that;
a. The structures in issue were constructed before the creation of the title in issue
b. The plaintiff/respondent took ownership of land parcel No. TIRIKI/CHEPTULU/1411 in 2021, 7 years after the creation of the title and 21 years after construction of the houses, in the face of the evidence on record
c. Creation of title is a process, and he had power based on the evidence on record to establish how the titles in issue were created, as raised by the Defendant in her evidence and pleadings on record.
d. The buildings to be demolished having preceded the creation of the title deeds, there was no way the building could be found to have encroached on the suit land as pleaded by the plaintiff/Respondent.
e. From evidence on record, the portion of land bought by the appellant and DW2 was, as explained by PW2, 0.05 Ha larger than the area on the title number TIRIKI/CHEPTULU/1410 expressed to be 0.03Ha.
f. The Defendant/appellant had made out a case for rectification of the register and map to reflect the position on the ground and the property actually bought by the appellant.
g. There was therefore evidence on record to confirm that subdivision of land parcel NO. TIRIKI/CHEPTULU/1045 was made in error contrary to the position on the ground and what was actually purchased by the Defendant/appellant.
h. From the evidence on record, there was no encroachment as alleged by the appellant onto the Respondent’s parcel of land, as her parcel of land had been reduced by the subdivision of land parcel NO. TIRIKI/CHEPTULU/1045.
The appellant seeks that the appeal be allowed with costs.
Submissions
Pursuant to directions given on 10/2/2026, the appeal was heard by way of written submissions. Written submissions dated 4 th May 2026 were filed by J. E. Namenge & Co., Advocates for and on behalf of the appellant. The Respondent's written submissions dated 25 th March 2026 were filed by Chemitei Melly & Associates on behalf of the Respondent.
Issues for Determination
Vide her submissions, the appellant framed 3 issues for determination herein, namely:
(a) Whether or not the plaintiff proved his case on a balance of probabilities;
(b) Whether on his part the defendant proved his counterclaim on a balance of probabilities, and in between;
(c) Whether the judgment in issue considered the evidence on record in its totality and applied the correct legal principles to the evidence on record.
The court adopts these issues as the issues for determination in the appeal.
Analysis and determination
This being a first appeal, t he guiding principles are that the court has a duty to consider the whole evidence produced before the trial court, re-evaluate it, and arrive at its own independent conclusion. While doing so, the court keeps in mind the fact that the trial court had the advantage, which this court does not have, of seeing and hearing the parties and their witnesses firsthand. In the case of Gitobu Imanyara & 2 others –vs- Attorney General [2016] e KLR, the court held that the principles upon which a first appellate court proceeds are well settled and stated that:-
“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.”
(Also see Selle & Another v Associated Motor Boat Company Ltd & Another (1968) IEA 123)
Guided accordingly, the court proceeds to analyze and determine the issues herein.
The 1 st issue for determination is whether or not the plaintiff proved his case on a balance of probabilities.
The appellant faults the trial court in grounds 2, 5 and part of ground 6 of appeal for finding that the Respondent had proved his case on a balance of probabilities.
In ground 5 of appeal, the appellant contends that the trial court erred in arriving at a decision that was at variance with the plaintiff's pleadings. In grounds 6(a), (b), (c) and (d), the appellant contends that the trial court erred in failing to find that the structures in issue were constructed before the creation of the title in issue, that the plaintiff/Respondent took ownership of the land parcel No. TIRIKI/CHEPTULU/1411 and 2021, 7 years after the creation of the title and 21 years after the construction of the houses, in the face of the evidence on record; that creation of title is a process and the court had power based on the evidence on record to establish how the titles in issue were created as raised by the Defendant in her evidence and pleadings on record, and that the building to be demolished having preceded the creation of the title deeds, there was no way the building could be found to have encroached the suit land as pleaded by the plaintiff/Respondent.
The plaintiff’s/Respondent's case was based on the tort of trespass/encroachment. The evidence placed before the trial court by the Respondent comprised his testimony, the exhibits that he produced, and the testimonies of PW2 and PW3.
The plaintiff (Respondent herein), who testified as PW1, adopted the content of his witness statement dated 18/4/2022 as his evidence in chief. His witness statement is on pages 40–42 of the record of appeal. He stated in the said witness statement that he was at all material times the registered owner of the parcel of land known as TIRIKI/CHEPTULU/1411 while the appellant was the registered owner of parcel No. TIRIKI/CHEPTULU/1410, which parcels of land are separated by a boundary; that the appellant built structures on the boundary; that the Respondent caused a boundary dispute to be lodged with the Land Registrar, vide which the Land Registrar established on 26 th October 2022 that the appellant had encroached onto his (Respondent's) land by 0.8 meters towards the western side and 2 meters towards the eastern side.
The record shows that the Respondent produced certificates of official search in respect of the two parcels of land. These confirmed that, as at the date thereof, land parcel No. TIRIKI/CHEPTULU/1411 was registered in the name of the Respondent while TIRIKI/CHEPTULU/1410 was registered in the name of the appellant. Both certificates of official search were dated 16th March 2023. The Respondent also produced a copy of the title deed dated 6th July 2007 in respect of the suit land in his name, and a copy of a court order in HAMISI MISC. CASE NO. E008 of 2022 granting/directing the OCS Cheptulu Police Station to provide security to the Respondent herein, and the land register during a boundary dispute determination, and marking involving parcel numbers TIRIKI/CHEPTULU/1410 and TIRIKI/CHEPTULU/1411.
On cross-examination, the Respondent stated that he bought the land in the year 2021 and that when he bought the land, the appellant's house was already there; that he did not know when the Defendant built the house.
PW2 was the Land Registrar, Vihiga County. He testified and produced a boundary dispute report dated 26/10/2024. He stated that the appellant was not present during the hearing of the dispute, although summons had been sent to her. On cross-examination, PW2 stated that those present during the hearing of the boundary dispute were the Respondent, the Area Chief, and the Land Surveyor; that he had dispatched summons to the appellant and that the Area Chief told them that he had served the summons.
PW3 was the County Land Surveyor. He testified that he prepared a report in respect of the boundary dispute between TIRIKI/CHEPTULU/1411 and TIRIKI/CHEPTULU/1410. That his findings were that the parcels were a subdivision of TIRIKI/CHEPTULU/1045. That he found that there was an encroachment of 0.8 metres on the western side and 2 metres on the eastern side of TIRIKI/CHEPTULU/1411. He produced his report, mutation form, RIM, and a sketch map he had prepared.
The report produced by the Land Registrar/Surveyor as exhibit P4 is on pages 56 to 58 of the record of appeal. It shows that the following were present: the area Chief, area Assistant Chief — Daniel Mbogo Meru; a claimant — Nancy Agala; and police officers from Cheptulu police station. It shows that the evidence of the Respondent was taken, after which the survey proceeded. The survey report of even date, 26/10/22, on the same dispute is on page 62 of the record of appeal. It shows the findings of the land surveyor that there was encroachment as described.
The record shows that the appellant had denied ever encroaching onto the suit land. She faulted the Land Registrar and contended that the Land Registrar acted contrary to section 19(1)(2) in that the exercise, as he did not involve all occupants of the original land parcel No. TIRIKI/CHEPTULU/744 or TIRIKI/CHEPTULU/1045.
The Appellant testified as DW1. She adopted the contents of her witness statement dated 18/1/2024 as her evidence in chief. A copy of her witness statement is on pages 40–42 of the record. She stated in the witness statement that the parcel of land in issue was first bought by one Henry [Agala] from Mary [Angode] between 2000–2001; that he immediately constructed two houses on the portion he had bought, but that he again [sold a portion].
The appellant had stated in the witness statement that her brother, by the name Henry Agala, purchased a portion of land measuring 30ft by 48 feet from one Mary Sitrudia Angode, which portion was hived from TIRIKI/CHEPTULU/745. That he took up immediate vacant possession of the said portion and constructed 2 houses thereon. That the appellant purchased through her brother a portion of land hived from land parcel No. TIRIKI/CHEPTULU/1045 at a cost of Kshs. 150,000/-. That thereafter, the appellant and her brother developed their respective portions of land which they had purchased. That their respective houses, which are now in dispute, were constructed between the years 2000–2004 and are more than 22 years old. That the Respondent will lose nothing as the portion he seeks has never been part of his land.
On cross-examination, the Defendant stated that she was not involved in the meeting of fixing of the boundaries; that she did not have a problem with the previous owners of the Respondent's land. The Defendant produced Land Sale Agreements, Photographs and a copy of the Register as exhibits.
The appellant called one witness, one Henry Agala, who adopted the contents of his witness statement dated 18/1/2024. He testified as to how he bought the land for himself and for DW1 (the appellant).
It has been submitted in this appeal on behalf of the appellant that the surveyor found that the offending structures were 0.8m to the west and 2m to the east. That the Defendant (appellant) confirmed that the houses in dispute were constructed within the land sold to them by the original owner. That the Defendant had demonstrated that the houses were in situ when the sub-division of land parcel No. TIRIKI/CHEPTULU/1045 was carried out to create parcel Nos. TIRIKI/CHEPTULU/1410 and 1411. That the Respondent admitted that at the time he purchased the suit land, the house had already been constructed.
On behalf of the Respondent, it was submitted that the plaintiff/Respondent appreciated the procedure for ascertaining an encroachment on a common boundary under section 18 and 19 of the Land Registration Act and the Land Registration (General) Regulations, 2017. That having followed the procedure, the Respondent approached the court for redress. That the plaintiff/Respondent established that there is an existing encroachment by the appellant on land parcel No. TIRIKI/CHEPTULU/1411; therefore, proving his claim on a balance of probabilities.
I have considered the pleadings, evidence and the submissions and the judgment appealed against. I note that after considering the totality of the evidence, the trial court found that the Respondent had proved his case on a balance of probabilities.
I note further that the Respondent is the registered owner of the suit land. This was not contested. The encroachment onto the suit land was not denied and was confirmed by both the Land Registrar and Land Surveyor through the reports they produced.
The defence of the appellant was firstly that the structures complained of had been in existence before the Respondent became owner of the suit land, that the structures are on the land which they were shown by the seller from whom they (appellant and DW2) bought the land, that the problem occurred during the sub-division of the parent title No. TIRIKI/CHEPTULU/1045, and that the Land Registrar's report was erroneous. There was, however, no evidence to substantiate or corroborate these contentions. There was no evidence that the appellant had taken any steps to challenge the mutation that created the suit land and the appellant's land parcel No. TIRIKI/CHEPTULU/1411.
One of the exhibits placed before the trial court by the appellant was a copy of the title deed for the land parcel No. TIRIKI/CHEPTULU/1411, which measures 0.03 Ha. The title deed is dated 6 th October 2017. There was no evidence that she had taken any steps to challenge the size of the land as shown in the title deed.
There was also no other surveyor’s report to controvert the Land Registrar and Surveyor's report produced on behalf of the Respondent.
The law provides an avenue for challenging a decision of a Land Registrar arising from a boundary dispute. Regulation 40(6) of the Land Registration (General Regulations 2017 provides a right of appeal to any party who is aggrieved by the decision of the Land Registrar. No evidence was exhibited that the appellant had challenged, by way of appeal or review, the Land Registrar's report.
The standard of proof in a civil case is proof on a balance of probabilities. I find that the Respondent did prove his case on a balance of probabilities. I find that the trial court did not err in so finding.
The second issue for determination is whether the Defendant (appellant herein) proved his counterclaim on a balance of probabilities.
The counterclaim was based on a claim that the sub-division of land parcel No. TIRIKI/CHEPTULU/1045 to create the suit land was done without her involvement, and sought cancellation of the same. In considering the counterclaim, the trial court observed that, having found that the Respondent had proved his case against the appellant on a balance of probabilities, it then followed that the plaintiff (Respondent) was entitled to the prayers sought. The court then proceeded to dismiss the appellant's defence and counterclaim. The trial court did not err in doing so because there was no evidence adduced to prove that the subdivision was unlawful. Besides, the appellant had held the title arising from the subdivision since the year 2017, without complaint.
The last issue for determination is whether the judgment in issue considered the evidence on record in its totality and applied the correct legal principles to the evidence on record.
I find that the court appreciated the evidence properly and came to the right conclusions; it did not err in its findings. It is trite law that an appellate court can only interfere with the findings or decision of the trial court if the court misdirected itself on matters of fact and/or law by failing to take relevant factors into account or by considering irrelevant factors and thus arrive at a plainly wrong decision, as was held in the case of Ocean Freight Shipping Co. Ltd V. Oakdale Commodities Ltd (1997) eKLR Civil Appeal No. 198 of 1995. I find no reason to interfere with the findings and decision of the trial court in this case.
I find that the appeal lacks merit. The appeal is hereby dismissed. Costs are awarded to the Respondent.
Judgment dated and signed at Vihiga, delivered virtually this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang- Court Assistant.
Andya h/b for Namenge for the Appellant
Biwot for the Respondent.
ELCLA E015/2025 JUDGEMENT Page 2
The record of appeal filed herein dated 4/12/2025 shows that the appellant was the Defendant in HAMISI SPMC ELC CASE NO. E015 OF 2022 (herein called the suit) wherein she had been sued by the Respondent herein over a parcel of land known as TIRIKI/CHEPTULU/1411 (the suit land).
The Respondent's case in the suit was that he was the registered owner of the suit land while the appellant was the registered owner of the parcel of land known as TIRIKI/CHEPTULU/1410.
The Respondent's complaint in the suit was that the appellant had encroached onto the suit land by erecting structures on the common boundary, which structures encroached onto the suit land. That a boundary dispute in respect thereof was decided in favour of the Respondent by the Land Registrar, who found that the appellant had erected structures on her land parcel No. TIRIKI/CHEPTULU/1410, which structures encroached onto the suit land by a distance of 0.8 metres towards the Western side and 2 metres towards the Eastern side.
The Respondent therefore sought an order of mandatory injunction compelling the appellant to demolish the encroaching structures at the appellant's cost, failure to which the Respondent be at liberty to demolish, and an order that the OCS Cheptulu Police Station do supervise enforcement of the orders.
The record shows that the appellant filed Defendant's Statement of Defence and Counterclaim dated 10th December 2023, vide which she denied the Respondent's claim and averred that the creation of land parcel No. TIRIKI/CHEPTULU/1410 and 1411 from land parcel No. TIRIKI/CHEPTULU/1045 was done without her involvement; that the same was done when the structures in issue were already in situ for over 12 years and that the new boundaries were to abide by the already existing partitions. The appellant therefore prayed for cancellation of the sub-division of land parcel No. TIRIKI/CHEPTULU/1045 to pave the way for a fresh demarcation and amendment of the map to reflect the already existing partition.
The record further shows that the suit was heard before the trial court which, vide judgment dated 4th September 2025, dismissed the counterclaim with costs to the Respondent and allowed the Respondent's claim as contained in the plaint, and entered judgment in favour of the Respondent accordingly.
The Appeal
Aggrieved by the judgment, the appellant preferred the present appeal vide the Memorandum of Appeal dated 11 th September 2025. The grounds of appeal are that:
1. The learned trial Magistrate erred in law and in fact in dismissing the defence and counterclaim without assigning any reasons and/or considering them together with the defence evidence on record.
2. The learned trial Magistrate erred in law and in fact in holding that the Respondent had proved his case on a balance of probabilities, contrary to the evidence on record.
3. The learned trial Magistrate erred in law and in fact in handling the issues before him in a perfunctory manner, hence occasioning miscarriage of justice.
4. The learned trial Magistrate erred in law and in fact in disregarding the pleadings and the evidence of the appellant, hence occasioning a miscarriage of justice.
5. The trial Magistrate erred in law and in fact in arriving at a decision that was at variance with the plaintiff/Respondent’s pleadings.
6. The trial Magistrate erred in law and fact in failing to find that;
a. The structures in issue were constructed before the creation of the title in issue
b. The plaintiff/respondent took ownership of land parcel No. TIRIKI/CHEPTULU/1411 in 2021, 7 years after the creation of the title and 21 years after construction of the houses, in the face of the evidence on record
c. Creation of title is a process, and he had power based on the evidence on record to establish how the titles in issue were created, as raised by the Defendant in her evidence and pleadings on record.
d. The buildings to be demolished having preceded the creation of the title deeds, there was no way the building could be found to have encroached on the suit land as pleaded by the plaintiff/Respondent.
e. From evidence on record, the portion of land bought by the appellant and DW2 was, as explained by PW2, 0.05 Ha larger than the area on the title number TIRIKI/CHEPTULU/1410 expressed to be 0.03Ha.
f. The Defendant/appellant had made out a case for rectification of the register and map to reflect the position on the ground and the property actually bought by the appellant.
g. There was therefore evidence on record to confirm that subdivision of land parcel NO. TIRIKI/CHEPTULU/1045 was made in error contrary to the position on the ground and what was actually purchased by the Defendant/appellant.
h. From the evidence on record, there was no encroachment as alleged by the appellant onto the Respondent’s parcel of land, as her parcel of land had been reduced by the subdivision of land parcel NO. TIRIKI/CHEPTULU/1045.
The appellant seeks that the appeal be allowed with costs.
Submissions
Pursuant to directions given on 10/2/2026, the appeal was heard by way of written submissions. Written submissions dated 4 th May 2026 were filed by J. E. Namenge & Co., Advocates for and on behalf of the appellant. The Respondent's written submissions dated 25 th March 2026 were filed by Chemitei Melly & Associates on behalf of the Respondent.
Issues for Determination
Vide her submissions, the appellant framed 3 issues for determination herein, namely:
(a) Whether or not the plaintiff proved his case on a balance of probabilities;
(b) Whether on his part the defendant proved his counterclaim on a balance of probabilities, and in between;
(c) Whether the judgment in issue considered the evidence on record in its totality and applied the correct legal principles to the evidence on record.
The court adopts these issues as the issues for determination in the appeal.
Analysis and determination
This being a first appeal, t he guiding principles are that the court has a duty to consider the whole evidence produced before the trial court, re-evaluate it, and arrive at its own independent conclusion. While doing so, the court keeps in mind the fact that the trial court had the advantage, which this court does not have, of seeing and hearing the parties and their witnesses firsthand. In the case of Gitobu Imanyara & 2 others –vs- Attorney General [2016] e KLR, the court held that the principles upon which a first appellate court proceeds are well settled and stated that:-
“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.”
(Also see Selle & Another v Associated Motor Boat Company Ltd & Another (1968) IEA 123)
Guided accordingly, the court proceeds to analyze and determine the issues herein.
The 1 st issue for determination is whether or not the plaintiff proved his case on a balance of probabilities.
The appellant faults the trial court in grounds 2, 5 and part of ground 6 of appeal for finding that the Respondent had proved his case on a balance of probabilities.
In ground 5 of appeal, the appellant contends that the trial court erred in arriving at a decision that was at variance with the plaintiff's pleadings. In grounds 6(a), (b), (c) and (d), the appellant contends that the trial court erred in failing to find that the structures in issue were constructed before the creation of the title in issue, that the plaintiff/Respondent took ownership of the land parcel No. TIRIKI/CHEPTULU/1411 and 2021, 7 years after the creation of the title and 21 years after the construction of the houses, in the face of the evidence on record; that creation of title is a process and the court had power based on the evidence on record to establish how the titles in issue were created as raised by the Defendant in her evidence and pleadings on record, and that the building to be demolished having preceded the creation of the title deeds, there was no way the building could be found to have encroached the suit land as pleaded by the plaintiff/Respondent.
The plaintiff’s/Respondent's case was based on the tort of trespass/encroachment. The evidence placed before the trial court by the Respondent comprised his testimony, the exhibits that he produced, and the testimonies of PW2 and PW3.
The plaintiff (Respondent herein), who testified as PW1, adopted the content of his witness statement dated 18/4/2022 as his evidence in chief. His witness statement is on pages 40–42 of the record of appeal. He stated in the said witness statement that he was at all material times the registered owner of the parcel of land known as TIRIKI/CHEPTULU/1411 while the appellant was the registered owner of parcel No. TIRIKI/CHEPTULU/1410, which parcels of land are separated by a boundary; that the appellant built structures on the boundary; that the Respondent caused a boundary dispute to be lodged with the Land Registrar, vide which the Land Registrar established on 26 th October 2022 that the appellant had encroached onto his (Respondent's) land by 0.8 meters towards the western side and 2 meters towards the eastern side.
The record shows that the Respondent produced certificates of official search in respect of the two parcels of land. These confirmed that, as at the date thereof, land parcel No. TIRIKI/CHEPTULU/1411 was registered in the name of the Respondent while TIRIKI/CHEPTULU/1410 was registered in the name of the appellant. Both certificates of official search were dated 16th March 2023. The Respondent also produced a copy of the title deed dated 6th July 2007 in respect of the suit land in his name, and a copy of a court order in HAMISI MISC. CASE NO. E008 of 2022 granting/directing the OCS Cheptulu Police Station to provide security to the Respondent herein, and the land register during a boundary dispute determination, and marking involving parcel numbers TIRIKI/CHEPTULU/1410 and TIRIKI/CHEPTULU/1411.
On cross-examination, the Respondent stated that he bought the land in the year 2021 and that when he bought the land, the appellant's house was already there; that he did not know when the Defendant built the house.
PW2 was the Land Registrar, Vihiga County. He testified and produced a boundary dispute report dated 26/10/2024. He stated that the appellant was not present during the hearing of the dispute, although summons had been sent to her. On cross-examination, PW2 stated that those present during the hearing of the boundary dispute were the Respondent, the Area Chief, and the Land Surveyor; that he had dispatched summons to the appellant and that the Area Chief told them that he had served the summons.
PW3 was the County Land Surveyor. He testified that he prepared a report in respect of the boundary dispute between TIRIKI/CHEPTULU/1411 and TIRIKI/CHEPTULU/1410. That his findings were that the parcels were a subdivision of TIRIKI/CHEPTULU/1045. That he found that there was an encroachment of 0.8 metres on the western side and 2 metres on the eastern side of TIRIKI/CHEPTULU/1411. He produced his report, mutation form, RIM, and a sketch map he had prepared.
The report produced by the Land Registrar/Surveyor as exhibit P4 is on pages 56 to 58 of the record of appeal. It shows that the following were present: the area Chief, area Assistant Chief — Daniel Mbogo Meru; a claimant — Nancy Agala; and police officers from Cheptulu police station. It shows that the evidence of the Respondent was taken, after which the survey proceeded. The survey report of even date, 26/10/22, on the same dispute is on page 62 of the record of appeal. It shows the findings of the land surveyor that there was encroachment as described.
The record shows that the appellant had denied ever encroaching onto the suit land. She faulted the Land Registrar and contended that the Land Registrar acted contrary to section 19(1)(2) in that the exercise, as he did not involve all occupants of the original land parcel No. TIRIKI/CHEPTULU/744 or TIRIKI/CHEPTULU/1045.
The Appellant testified as DW1. She adopted the contents of her witness statement dated 18/1/2024 as her evidence in chief. A copy of her witness statement is on pages 40–42 of the record. She stated in the witness statement that the parcel of land in issue was first bought by one Henry [Agala] from Mary [Angode] between 2000–2001; that he immediately constructed two houses on the portion he had bought, but that he again [sold a portion].
The appellant had stated in the witness statement that her brother, by the name Henry Agala, purchased a portion of land measuring 30ft by 48 feet from one Mary Sitrudia Angode, which portion was hived from TIRIKI/CHEPTULU/745. That he took up immediate vacant possession of the said portion and constructed 2 houses thereon. That the appellant purchased through her brother a portion of land hived from land parcel No. TIRIKI/CHEPTULU/1045 at a cost of Kshs. 150,000/-. That thereafter, the appellant and her brother developed their respective portions of land which they had purchased. That their respective houses, which are now in dispute, were constructed between the years 2000–2004 and are more than 22 years old. That the Respondent will lose nothing as the portion he seeks has never been part of his land.
On cross-examination, the Defendant stated that she was not involved in the meeting of fixing of the boundaries; that she did not have a problem with the previous owners of the Respondent's land. The Defendant produced Land Sale Agreements, Photographs and a copy of the Register as exhibits.
The appellant called one witness, one Henry Agala, who adopted the contents of his witness statement dated 18/1/2024. He testified as to how he bought the land for himself and for DW1 (the appellant).
It has been submitted in this appeal on behalf of the appellant that the surveyor found that the offending structures were 0.8m to the west and 2m to the east. That the Defendant (appellant) confirmed that the houses in dispute were constructed within the land sold to them by the original owner. That the Defendant had demonstrated that the houses were in situ when the sub-division of land parcel No. TIRIKI/CHEPTULU/1045 was carried out to create parcel Nos. TIRIKI/CHEPTULU/1410 and 1411. That the Respondent admitted that at the time he purchased the suit land, the house had already been constructed.
On behalf of the Respondent, it was submitted that the plaintiff/Respondent appreciated the procedure for ascertaining an encroachment on a common boundary under section 18 and 19 of the Land Registration Act and the Land Registration (General) Regulations, 2017. That having followed the procedure, the Respondent approached the court for redress. That the plaintiff/Respondent established that there is an existing encroachment by the appellant on land parcel No. TIRIKI/CHEPTULU/1411; therefore, proving his claim on a balance of probabilities.
I have considered the pleadings, evidence and the submissions and the judgment appealed against. I note that after considering the totality of the evidence, the trial court found that the Respondent had proved his case on a balance of probabilities.
I note further that the Respondent is the registered owner of the suit land. This was not contested. The encroachment onto the suit land was not denied and was confirmed by both the Land Registrar and Land Surveyor through the reports they produced.
The defence of the appellant was firstly that the structures complained of had been in existence before the Respondent became owner of the suit land, that the structures are on the land which they were shown by the seller from whom they (appellant and DW2) bought the land, that the problem occurred during the sub-division of the parent title No. TIRIKI/CHEPTULU/1045, and that the Land Registrar's report was erroneous. There was, however, no evidence to substantiate or corroborate these contentions. There was no evidence that the appellant had taken any steps to challenge the mutation that created the suit land and the appellant's land parcel No. TIRIKI/CHEPTULU/1411.
One of the exhibits placed before the trial court by the appellant was a copy of the title deed for the land parcel No. TIRIKI/CHEPTULU/1411, which measures 0.03 Ha. The title deed is dated 6 th October 2017. There was no evidence that she had taken any steps to challenge the size of the land as shown in the title deed.
There was also no other surveyor’s report to controvert the Land Registrar and Surveyor's report produced on behalf of the Respondent.
The law provides an avenue for challenging a decision of a Land Registrar arising from a boundary dispute. Regulation 40(6) of the Land Registration (General Regulations 2017 provides a right of appeal to any party who is aggrieved by the decision of the Land Registrar. No evidence was exhibited that the appellant had challenged, by way of appeal or review, the Land Registrar's report.
The standard of proof in a civil case is proof on a balance of probabilities. I find that the Respondent did prove his case on a balance of probabilities. I find that the trial court did not err in so finding.
The second issue for determination is whether the Defendant (appellant herein) proved his counterclaim on a balance of probabilities.
The counterclaim was based on a claim that the sub-division of land parcel No. TIRIKI/CHEPTULU/1045 to create the suit land was done without her involvement, and sought cancellation of the same. In considering the counterclaim, the trial court observed that, having found that the Respondent had proved his case against the appellant on a balance of probabilities, it then followed that the plaintiff (Respondent) was entitled to the prayers sought. The court then proceeded to dismiss the appellant's defence and counterclaim. The trial court did not err in doing so because there was no evidence adduced to prove that the subdivision was unlawful. Besides, the appellant had held the title arising from the subdivision since the year 2017, without complaint.
The last issue for determination is whether the judgment in issue considered the evidence on record in its totality and applied the correct legal principles to the evidence on record.
I find that the court appreciated the evidence properly and came to the right conclusions; it did not err in its findings. It is trite law that an appellate court can only interfere with the findings or decision of the trial court if the court misdirected itself on matters of fact and/or law by failing to take relevant factors into account or by considering irrelevant factors and thus arrive at a plainly wrong decision, as was held in the case of Ocean Freight Shipping Co. Ltd V. Oakdale Commodities Ltd (1997) eKLR Civil Appeal No. 198 of 1995. I find no reason to interfere with the findings and decision of the trial court in this case.
I find that the appeal lacks merit. The appeal is hereby dismissed. Costs are awarded to the Respondent.
Judgment dated and signed at Vihiga, delivered virtually this 17 th day of September 2026.
E. ASATI,
JUDGE.
In the presence of:
Sang- Court Assistant.
Andya h/b for Namenge for the Appellant
Biwot for the Respondent.
ELCLA E015/2025 JUDGEMENT Page 2