1. Being aggrieved with the whole of the judgment of Hon. Cyprian Waswa Seniro Resident Magistrate, delivered on the 25.04.2024 by Hon. Cyprian Waswa, Senior Resident Magistrate, between Nareyio Parningu and David Kononkoi, Michael Tomito Nampaso and Kilgoris Land Registrar in respect to Parcel No. Transmara/Olomismis/816, in Kilgoris CM the Appellant filed the Memorandum of Appeal dated 29.09.2025, and sought the following reliefs;
a) That the appeal be allowed and the judgment (ELC E030/23 Nareyio Parningu v David Kononkoi & 2 Others) be either set aside or varied.
b) A declaration that the Appellant is the rightful and lawful owner of all that land parcel No. Transmara/Olomismis/816 situated in Kilgoris.
c) A permanent injunction restraining the respondents, their servants, relatives, workmen, and agents from entering and/or from in any way interfering with land Parcel No. Transmara/Olomismis/816 situated in Kilgoris.
d) A declaration that the Respondents’ actions amount to intermeddling and illegal trespass onto the Appellant suit land.
e) An order compelling the 3rd Respondent to register and process a title in respect to land parcel No. Transmara/Olomismis/816 situated in Kilgoris in favour of the appellant.
f) General damages for trespass on private property.
g) Costs for this Appeal and the suit at the lower court.
h) Any other relief that the Honourable Court may deem fit.
2. The Appellants penned 6 grounds of Appeal as follows;
a) That the Hon. Magistrate erred in law and fact by failing to find that the Appellant is the lawful owner of the whole property named Transmara/Olomismis/816 situated in Kilgoris, even after providing all the relevant documentation and records as proof of ownership.
b) That, the Hon. Magistrate erred in law and fact, by failing to acknowledge the documents and list of ownership from Olomismis group ranch indicating the Appellant as the allottee of land number Transmara/Olomismis/816 appearing as serial number 816 whose production was never objected.
c) The Honorable Trial Magistrate erred in fact and law by failing to issue a permanent injunction to the respondents, allowing them to continue intermeddling with the appellant’s property causing more financial and emotional damage.
d) That the Learned Trial Magistrate erred in law and fact when he failed to appreciate the importance of unregistered property, where the Appellant provided necessary documents from Olomismis group ranch membership register, Land transfer forms duly signed and executed by parties, Land Board Consent forms duly signed by the Leaders of Olomismis Group Ranch, to herself, and adopted as evidence in chief.
e) That, the Honorable Trial Magistrate erred in law and fact, by failing to address the circumstances under which the Respondents became the owners of the suit property.
f) That the Honourable trial Magistrate erred in law and fact in relying on extraneous evidence to decide on Ownership, thus reaching an erroneous decision.
3. On the strength of the above grounds of Appeal, the Appellants sought for the reliefs set out at Paragraph 1 of this judgment.
4. Upon admission of the Appeal the court issued directions for disposal of the Appeal by way of written submissions which the court summarizes as herefollows;
Appellant’s Submissions
5. The Appellant’s submissions framed 5 issues for determination by this Honourable Court.
6. On issue No. 1, whether the Trial Magistrate erred in law and fact by failing to appreciate all the support documents as provided by the Appellant in support of unregistered land, the Appellant submits that she is the legal owner of the suit property having obtained the transfer documents from Olomismis Group Ranch duly executed by the management and leadership of the group ranch in her favour and that the Respondents lied in their pleadings. The Appellant relied on the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others (2014) eKLR, Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002 , and Section 24,25, and 26 of the LRA . In regard to the question of ownership, the Appellant relied on the case of Caroline Awinja Ochieng & Another v Jane Anne Mbithe Gitau & 2 Others [2015] eKLR and Nourse LJ in Sen v Headley [1991] Ch 425 at 437 .
7. On the same issue, the Appellant submits that the Trial Magistrate failed to examine the documents presented by the Appellant which, were it not for the caution lodged by the 1 st Respondent, she would have gotten the land registered in her favour and title deed issued by the land registrar.
8. On issue No. 2, whether the Appellant is the rightful owner of all that piece of land known as Transmara/Olomismis/816 situated in Kilgoris, the Appellant submits that she is the owner of the suit property having been allocated the same by the Olomismis Group Ranch and has been in quiet possession and occupation of the same since 1989, producing the Olomismis Group Ranch Register showing that she’s the owner/allottee of Plot no. 816. The Appellant cited the case of Danson Kimani Gacina & Another v Embakasi Ranching Company Ltd [2014] eKLR, Wangui & 2 Others v Wangui & Another (Environment and Land Appeal 3 of 2021[2022] KEELC 3755 (KLR) (29 June 2022) (Judgment), Augustine Thuo v James Maina Thuita & Another [2020] eKLR , and Section 25 of the Land Registered Act 2012 .
9. On issue No. 3, whether the 1 st and 2 nd Respondents are trespassers on the said land parcel Transmara/Olomismis/816 situated in Kilgoris, the Appellant submits that the Respondents entered into the Appellant’s parcel when she was still living therein with her family and that, in itself, was actual notice of ownership and that the alleged sale agreement between the Respondents and Joel Paapai was faulty and a nullity citing Sections 24 (a) and 25 (1) of the Land Registration Act and Section 3 (1) of the Trespass Act, Cap 294 , and John Kiragu Kimani v Rural Electrification Authority (2018) eKLR .
10. On issue No. 4, whether the Appellant is entitled to the reliefs sought in the Memorandum of Appeal, the Appellant submits that she is the rightful and lawful owner of the suit property and entitled to trespass damages relying on the case of Philip Ayaya Aluchio v Crispinus Ngayo [2014] eKLR , and Fleetwood Enterprises Ltd v Kenya Power and Lighting Co. Ltd [2015] eKLR .
11. On issue No. 5, costs to this suit, the Appellant submits that the Respondents are 100% liable in this case for trespass, since the issue of awarding costs is at the discretion of court and costs follow the event.
12. The Appellant submits that this court has authority to allow the Appeal on the strengths of the above submissions.
1 st and 2 nd Respondents Submissions
13. The 1 st and 2 nd Respondents summarized their issues into one, whether the Appellant is the registered proprietor of the suit proprietor, the Respondents submit that the Appellant is not the registered proprietor of the said parcel of land citing the matter In The High Court of Kenya at Machakos Civil Appeal No. 102 of 2018 Kyalo Elly Joy v Samuel Gitahi Kanyeri, Section 109 of the Evidence Act, Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another (2005) , and Section 107 (1) of the Evidence Act .
14. On the same issue, the Defendants submit that a membership list is not a registration document and the Appellant’s name does not appear among the lawful allottees of the said group ranch citing the case In The High Court Of Kenya at Kisumu Civil Appeal No. 51 of 2013 Robert Ouma Njoga v Benjamin Osano Ondoro and Isca Adhiambo Okayo v Kenya Women Finance Trust KSM CA CIVIL APPEAL no. 19 of 2015 .
15. The Defendants also submit that the Appellant did not proof and meet the conditions for issuance of an order of permanent injunction citing the matter In The High Court at Mombasa Matrimonial Case E002 of 2024 QFG v AP, In The High Court at Mombasa Civil Suit E018 of 2020 Joy Kendi Kubai v Hellen Ochwangi and David Otieno Migore v South Nyanza Sugar Co. Ltd (2018) .
16. The 1 st and 2 nd Respondents submit that the appeal before this Honourable court is without merit and should be dismissed with costs to the 1 st and 2 nd Respondents.
17. The 3 rd Respondent did not file submissions.
Issues for Determination
18. Upon review of the Record of Appeal, the rival submissions and the consideration of the law, the court frames the following as issues for determination;
(i) Whether or not the plaintiff’s suit before the trial court was merited, in deciding this issue the court shall determine who between the plaintiff and the defendants was the Bonafide allottee of the suit parcel?
(ii) Whether the 1 st and 2 nd defendants defence ought to be upheld.
(iii) What reliefs ought to issue.
(iv) Who bears the costs of the Appeal and the suit before the trial court.
Analysis and Determination
19. In order to determine the first issue and the Appeal generally the court is required and is under a duty as was stated in the case of Selle and Another Vs. Associated Motor Boat Limited , the duty to “ reconsider the evidence, evaluate it and draw its own conclusion”.
20. In her plaint dated 8 th of May 2023, the plaintiff Nareyio Parningu averred interalia that;
(i) She was the Bonafide proprietor of land parcel named Transmara/Olomismis/816 having acquired the same from Olomismis clan in Transmara.
(ii) That on or about September 2011 the 1 st Defendant trespassed into the plaintiff’s land at a time when the plaintiff was not around, and on enquiry the 1 st defendant indicated that he was on the suit land as a Tenant having entered into an Agreement of lease with the plaintiff’s son to lease the land for a period of 10 years.
(iii) That the plaintiff’s application for registration and processing of the title for her portion of land as sole owner was declined in 2017 on the strength of a caution lodged by the 1 st Defendant.
(iv) The plaintiff pleaded particulars of trespass attributed to the 1 st and 2 nd defendants.
(v) An on the strength of the above averments the plaintiff sought for a declaration that she was the rightful owner of Transmara/Olomismis/816, a permanent injunction restraining the Defendants, and a declaration that the Defendant’s actions amount to intermeddling and illegal trespass.
(vi) An order compelling the 3 rd Defendant to register and process a title in respect of Transmara/Olomismis/816 in favour of the plaintiff.
(vii) General damages to trespass.
(viii) Costs of the suit.
21. In their respective defences, the 1 st and 2 nd Defendants filed a joint defence while the 3 rd defendant filed a separate defence pleading interalia ;
(i) That the plaint was frivolous and false, and
(ii) that an injunction could not issue without legal basis.
22. On the part of the 3 rd Defendant, the 3 rd Defendant pleaded interalia that the suit was time barred, fatally defective, incompetent and an abuse of the court process.
23. The plaintiff testified as P.W.1 and her testimony is captured at pages 35 to 36 of the Record of Appeal. In essence the plaintiff produced the list of documents dated 11.12.2023 as P.Exhibit Nos. 1 to 12, and stated that she did not have a title deed to the suit property in cross-examination, but that she wrote a letter complaining about a caution that had been lodged on the suit property. She accused the 1 st and 2 nd defendants of taking her property.
24. The plaintiff testifying as P.W.1 placed reliance on her witness statements, and called two witnesses. P.W.2 Joel Saningo equally adopted his witness statement, he alluded to leasing the suit property to the Defendants but did not have the lease agreement neither a consent to lease the suit property that belonged to his mother. He stated that he had leased the suit property for 10 years to the 1 st Defendant.
25. P.W.3 adopted his witness statement.
26. On the part of the defence, the 1 st Defendant testified as D.W.1 he produced a search D.Exhibit 1 and photos of his home as D.Exhibit 2 he stated that he had not trespassed. In cross-examination, the witness stated that he was given the land by Mr. Bendard after he had been given by the group ranch chairman whose name he did not recall.
The parcel given to him was 816. He stated that he had an Agreement with Joel who sold him 12 acres, Joel was the son of the plaintiff, called Joel Paipai. The witness stated that the land belonged to the plaintiff but Joel had sold it to him, he was not given any document from the plaintiff he had paid 500,000 in 2011. He did not have the Agreement for sale, but he stated that he had bought and not leased and had place the caution, and the land belongs to the plaintiff.
27. After reviewing the evidence the learned trial magistrate found that registration of a person as proprietor conferred to him proprietary rights and since none of the parties had a title deed, the plaintiff could not enforce proprietary rights as the suit property was not registered in her name, and held that the plaintiff had failed to prove her case, the suit thus lacked merit and dismissed the same provoking this Appeal.
28. Upon review of the Record of Appeal, the court agrees with the learned trial magistrate that neither the plaintiff nor the Defendants are the registered proprietors of the suit property Transmara/Olomismis/816.
29. The plaintiff now Appellant had pleaded at paragraph 5 of her plaint to be the Bonafide proprietor of the suit parcel as opposed to being the registered owner.
30. Although the trial court found that the adjudication record had not been produced, the plaintiff produced an Area list/members register as P.Exhibit 2, as well as copies of transfer forms duly signed by officials of the group ranch as P.Exhibit 3, and copy of LCB consent from as P.Exhibit 4, the above documents indeed land weight to her claim of Bonafide ownership, noting that the transfer to her name could not be done due to the caution lodged by the first defendant and for good measure, the plaintiff had sought the registration of the suit parcel in her name as part of her reliefs.
31. It was therefore erroneous for the trial court to conclude that in absence of registration the plaintiff had not proven her case, yet her reliefs included the issue of registration of the suit parcel to her name.
32. The court finds that the plaintiff on a balance of probabilities proved entitlement to the suit parcel having being on the members list of the group ranch and having exhibited transfer documents though not registered as well as LCB consent in her favour.
33. On the other hand, the 1 st Defendant in his cross-examination stated that he had been allocated by the group ranch chairman the suit parcel, and on further cross-examination stated that he had bought from Joel the plaintiff’s son, a total of 12 acres. It follows therefrom that he could not have been allocated the said parcel and bought the it at the said time.
34. Indeed, the search he produced as D.Exhibit 1, reveals that he lodged a caution over the suit property as a purchaser.
35. The Agreement for sale was not exhibited by the Defendant, but in any event the same having been entered into between Joel Paipai and the 1 st Defendant, without the knowledge and/or consent of the plaintiff who is the Bonafide owner was a nullity.
36. In reaching the above I am guided by the doctrine of Nemo dat quod non Habet, which states that “ no one can give that one does not have”.
37. The said principle was applied in the decision in the case of Diamond Trust Bank Limited Vs. said Hamad Shamisi and 2 Others (2015) eKLR as was defined in the case of Daniel Kiprugat Maiywa Vs. Rebeccas Chepkurgat Maina (2019) eKLR which decision was quoted in the case of Geoffrey Kiptarbei Rono Vs. Johana Koren Rotich and Another 2021 eKLR, where the court held interalia
“The Nemo dat principle means one cannot give what he does not have”.
38. It follows therefrom that on a balance of probabilities the plaintiff case before the trial court was merited and the 1 st and 2 nd defendants had no defence against the said plaintiff and could only seek restitution from Joel Paipai and not the plaintiff.
39. Thus, in answer to issue No. 1, the court finds that the Appeal herein is merited as the plaintiff suit before the trial court had merits and that the learned trial magistrate erred in finding otherwise.
40. On what reliefs ought to issue, having found merits in the Appeal, the Appeal is hereby allowed and judgment is entered as prayed for in the plaint dated 8 th of May 2023.
41. As the plaintiff proved trespass, general damages for Trespass of Kshs.500,000/= are awarded to the plaintiff.
42. In order to facilitate the registration of the plaintiff as the proprietor of the suit parcel, the court directs the 3 rd Respondent herein to remove the caution that had been lodged by the 1 st and 2 nd Respondent and register the Appellant, as the proprietor of the suit property.
43. The plaintiff shall issue the requisite notice under section 152 of the Land Act before evicting the 1 st and 2 nd Respondents, and a permanent injunction issues after the said eviction against the 1 st and 2 nd Defendant restraining them, their agents, servants and/or employees from interfering with the plaintiff’s quiet possession of the suit land.
44. Costs of the Appeal and of the lower court are awarded to plaintiff but to be borne by the 1 st and 2 nd Respondents jointly and severally.
45. Judgment accordingly.
Dated at Kilgoris this 17 th day of September, 2026
Hon. M.N Mwanyale
Judge
In the presence of
CA – Sylvia/Clara
Mr. Ochwangi for the 1 st and 2 nd Appellant
Mr. Tuyia for the Respondent
Page 2 | 2
a) That the appeal be allowed and the judgment (ELC E030/23 Nareyio Parningu v David Kononkoi & 2 Others) be either set aside or varied.
b) A declaration that the Appellant is the rightful and lawful owner of all that land parcel No. Transmara/Olomismis/816 situated in Kilgoris.
c) A permanent injunction restraining the respondents, their servants, relatives, workmen, and agents from entering and/or from in any way interfering with land Parcel No. Transmara/Olomismis/816 situated in Kilgoris.
d) A declaration that the Respondents’ actions amount to intermeddling and illegal trespass onto the Appellant suit land.
e) An order compelling the 3rd Respondent to register and process a title in respect to land parcel No. Transmara/Olomismis/816 situated in Kilgoris in favour of the appellant.
f) General damages for trespass on private property.
g) Costs for this Appeal and the suit at the lower court.
h) Any other relief that the Honourable Court may deem fit.
2. The Appellants penned 6 grounds of Appeal as follows;
a) That the Hon. Magistrate erred in law and fact by failing to find that the Appellant is the lawful owner of the whole property named Transmara/Olomismis/816 situated in Kilgoris, even after providing all the relevant documentation and records as proof of ownership.
b) That, the Hon. Magistrate erred in law and fact, by failing to acknowledge the documents and list of ownership from Olomismis group ranch indicating the Appellant as the allottee of land number Transmara/Olomismis/816 appearing as serial number 816 whose production was never objected.
c) The Honorable Trial Magistrate erred in fact and law by failing to issue a permanent injunction to the respondents, allowing them to continue intermeddling with the appellant’s property causing more financial and emotional damage.
d) That the Learned Trial Magistrate erred in law and fact when he failed to appreciate the importance of unregistered property, where the Appellant provided necessary documents from Olomismis group ranch membership register, Land transfer forms duly signed and executed by parties, Land Board Consent forms duly signed by the Leaders of Olomismis Group Ranch, to herself, and adopted as evidence in chief.
e) That, the Honorable Trial Magistrate erred in law and fact, by failing to address the circumstances under which the Respondents became the owners of the suit property.
f) That the Honourable trial Magistrate erred in law and fact in relying on extraneous evidence to decide on Ownership, thus reaching an erroneous decision.
3. On the strength of the above grounds of Appeal, the Appellants sought for the reliefs set out at Paragraph 1 of this judgment.
4. Upon admission of the Appeal the court issued directions for disposal of the Appeal by way of written submissions which the court summarizes as herefollows;
Appellant’s Submissions
5. The Appellant’s submissions framed 5 issues for determination by this Honourable Court.
6. On issue No. 1, whether the Trial Magistrate erred in law and fact by failing to appreciate all the support documents as provided by the Appellant in support of unregistered land, the Appellant submits that she is the legal owner of the suit property having obtained the transfer documents from Olomismis Group Ranch duly executed by the management and leadership of the group ranch in her favour and that the Respondents lied in their pleadings. The Appellant relied on the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others (2014) eKLR, Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002 , and Section 24,25, and 26 of the LRA . In regard to the question of ownership, the Appellant relied on the case of Caroline Awinja Ochieng & Another v Jane Anne Mbithe Gitau & 2 Others [2015] eKLR and Nourse LJ in Sen v Headley [1991] Ch 425 at 437 .
7. On the same issue, the Appellant submits that the Trial Magistrate failed to examine the documents presented by the Appellant which, were it not for the caution lodged by the 1 st Respondent, she would have gotten the land registered in her favour and title deed issued by the land registrar.
8. On issue No. 2, whether the Appellant is the rightful owner of all that piece of land known as Transmara/Olomismis/816 situated in Kilgoris, the Appellant submits that she is the owner of the suit property having been allocated the same by the Olomismis Group Ranch and has been in quiet possession and occupation of the same since 1989, producing the Olomismis Group Ranch Register showing that she’s the owner/allottee of Plot no. 816. The Appellant cited the case of Danson Kimani Gacina & Another v Embakasi Ranching Company Ltd [2014] eKLR, Wangui & 2 Others v Wangui & Another (Environment and Land Appeal 3 of 2021[2022] KEELC 3755 (KLR) (29 June 2022) (Judgment), Augustine Thuo v James Maina Thuita & Another [2020] eKLR , and Section 25 of the Land Registered Act 2012 .
9. On issue No. 3, whether the 1 st and 2 nd Respondents are trespassers on the said land parcel Transmara/Olomismis/816 situated in Kilgoris, the Appellant submits that the Respondents entered into the Appellant’s parcel when she was still living therein with her family and that, in itself, was actual notice of ownership and that the alleged sale agreement between the Respondents and Joel Paapai was faulty and a nullity citing Sections 24 (a) and 25 (1) of the Land Registration Act and Section 3 (1) of the Trespass Act, Cap 294 , and John Kiragu Kimani v Rural Electrification Authority (2018) eKLR .
10. On issue No. 4, whether the Appellant is entitled to the reliefs sought in the Memorandum of Appeal, the Appellant submits that she is the rightful and lawful owner of the suit property and entitled to trespass damages relying on the case of Philip Ayaya Aluchio v Crispinus Ngayo [2014] eKLR , and Fleetwood Enterprises Ltd v Kenya Power and Lighting Co. Ltd [2015] eKLR .
11. On issue No. 5, costs to this suit, the Appellant submits that the Respondents are 100% liable in this case for trespass, since the issue of awarding costs is at the discretion of court and costs follow the event.
12. The Appellant submits that this court has authority to allow the Appeal on the strengths of the above submissions.
1 st and 2 nd Respondents Submissions
13. The 1 st and 2 nd Respondents summarized their issues into one, whether the Appellant is the registered proprietor of the suit proprietor, the Respondents submit that the Appellant is not the registered proprietor of the said parcel of land citing the matter In The High Court of Kenya at Machakos Civil Appeal No. 102 of 2018 Kyalo Elly Joy v Samuel Gitahi Kanyeri, Section 109 of the Evidence Act, Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another (2005) , and Section 107 (1) of the Evidence Act .
14. On the same issue, the Defendants submit that a membership list is not a registration document and the Appellant’s name does not appear among the lawful allottees of the said group ranch citing the case In The High Court Of Kenya at Kisumu Civil Appeal No. 51 of 2013 Robert Ouma Njoga v Benjamin Osano Ondoro and Isca Adhiambo Okayo v Kenya Women Finance Trust KSM CA CIVIL APPEAL no. 19 of 2015 .
15. The Defendants also submit that the Appellant did not proof and meet the conditions for issuance of an order of permanent injunction citing the matter In The High Court at Mombasa Matrimonial Case E002 of 2024 QFG v AP, In The High Court at Mombasa Civil Suit E018 of 2020 Joy Kendi Kubai v Hellen Ochwangi and David Otieno Migore v South Nyanza Sugar Co. Ltd (2018) .
16. The 1 st and 2 nd Respondents submit that the appeal before this Honourable court is without merit and should be dismissed with costs to the 1 st and 2 nd Respondents.
17. The 3 rd Respondent did not file submissions.
Issues for Determination
18. Upon review of the Record of Appeal, the rival submissions and the consideration of the law, the court frames the following as issues for determination;
(i) Whether or not the plaintiff’s suit before the trial court was merited, in deciding this issue the court shall determine who between the plaintiff and the defendants was the Bonafide allottee of the suit parcel?
(ii) Whether the 1 st and 2 nd defendants defence ought to be upheld.
(iii) What reliefs ought to issue.
(iv) Who bears the costs of the Appeal and the suit before the trial court.
Analysis and Determination
19. In order to determine the first issue and the Appeal generally the court is required and is under a duty as was stated in the case of Selle and Another Vs. Associated Motor Boat Limited , the duty to “ reconsider the evidence, evaluate it and draw its own conclusion”.
20. In her plaint dated 8 th of May 2023, the plaintiff Nareyio Parningu averred interalia that;
(i) She was the Bonafide proprietor of land parcel named Transmara/Olomismis/816 having acquired the same from Olomismis clan in Transmara.
(ii) That on or about September 2011 the 1 st Defendant trespassed into the plaintiff’s land at a time when the plaintiff was not around, and on enquiry the 1 st defendant indicated that he was on the suit land as a Tenant having entered into an Agreement of lease with the plaintiff’s son to lease the land for a period of 10 years.
(iii) That the plaintiff’s application for registration and processing of the title for her portion of land as sole owner was declined in 2017 on the strength of a caution lodged by the 1 st Defendant.
(iv) The plaintiff pleaded particulars of trespass attributed to the 1 st and 2 nd defendants.
(v) An on the strength of the above averments the plaintiff sought for a declaration that she was the rightful owner of Transmara/Olomismis/816, a permanent injunction restraining the Defendants, and a declaration that the Defendant’s actions amount to intermeddling and illegal trespass.
(vi) An order compelling the 3 rd Defendant to register and process a title in respect of Transmara/Olomismis/816 in favour of the plaintiff.
(vii) General damages to trespass.
(viii) Costs of the suit.
21. In their respective defences, the 1 st and 2 nd Defendants filed a joint defence while the 3 rd defendant filed a separate defence pleading interalia ;
(i) That the plaint was frivolous and false, and
(ii) that an injunction could not issue without legal basis.
22. On the part of the 3 rd Defendant, the 3 rd Defendant pleaded interalia that the suit was time barred, fatally defective, incompetent and an abuse of the court process.
23. The plaintiff testified as P.W.1 and her testimony is captured at pages 35 to 36 of the Record of Appeal. In essence the plaintiff produced the list of documents dated 11.12.2023 as P.Exhibit Nos. 1 to 12, and stated that she did not have a title deed to the suit property in cross-examination, but that she wrote a letter complaining about a caution that had been lodged on the suit property. She accused the 1 st and 2 nd defendants of taking her property.
24. The plaintiff testifying as P.W.1 placed reliance on her witness statements, and called two witnesses. P.W.2 Joel Saningo equally adopted his witness statement, he alluded to leasing the suit property to the Defendants but did not have the lease agreement neither a consent to lease the suit property that belonged to his mother. He stated that he had leased the suit property for 10 years to the 1 st Defendant.
25. P.W.3 adopted his witness statement.
26. On the part of the defence, the 1 st Defendant testified as D.W.1 he produced a search D.Exhibit 1 and photos of his home as D.Exhibit 2 he stated that he had not trespassed. In cross-examination, the witness stated that he was given the land by Mr. Bendard after he had been given by the group ranch chairman whose name he did not recall.
The parcel given to him was 816. He stated that he had an Agreement with Joel who sold him 12 acres, Joel was the son of the plaintiff, called Joel Paipai. The witness stated that the land belonged to the plaintiff but Joel had sold it to him, he was not given any document from the plaintiff he had paid 500,000 in 2011. He did not have the Agreement for sale, but he stated that he had bought and not leased and had place the caution, and the land belongs to the plaintiff.
27. After reviewing the evidence the learned trial magistrate found that registration of a person as proprietor conferred to him proprietary rights and since none of the parties had a title deed, the plaintiff could not enforce proprietary rights as the suit property was not registered in her name, and held that the plaintiff had failed to prove her case, the suit thus lacked merit and dismissed the same provoking this Appeal.
28. Upon review of the Record of Appeal, the court agrees with the learned trial magistrate that neither the plaintiff nor the Defendants are the registered proprietors of the suit property Transmara/Olomismis/816.
29. The plaintiff now Appellant had pleaded at paragraph 5 of her plaint to be the Bonafide proprietor of the suit parcel as opposed to being the registered owner.
30. Although the trial court found that the adjudication record had not been produced, the plaintiff produced an Area list/members register as P.Exhibit 2, as well as copies of transfer forms duly signed by officials of the group ranch as P.Exhibit 3, and copy of LCB consent from as P.Exhibit 4, the above documents indeed land weight to her claim of Bonafide ownership, noting that the transfer to her name could not be done due to the caution lodged by the first defendant and for good measure, the plaintiff had sought the registration of the suit parcel in her name as part of her reliefs.
31. It was therefore erroneous for the trial court to conclude that in absence of registration the plaintiff had not proven her case, yet her reliefs included the issue of registration of the suit parcel to her name.
32. The court finds that the plaintiff on a balance of probabilities proved entitlement to the suit parcel having being on the members list of the group ranch and having exhibited transfer documents though not registered as well as LCB consent in her favour.
33. On the other hand, the 1 st Defendant in his cross-examination stated that he had been allocated by the group ranch chairman the suit parcel, and on further cross-examination stated that he had bought from Joel the plaintiff’s son, a total of 12 acres. It follows therefrom that he could not have been allocated the said parcel and bought the it at the said time.
34. Indeed, the search he produced as D.Exhibit 1, reveals that he lodged a caution over the suit property as a purchaser.
35. The Agreement for sale was not exhibited by the Defendant, but in any event the same having been entered into between Joel Paipai and the 1 st Defendant, without the knowledge and/or consent of the plaintiff who is the Bonafide owner was a nullity.
36. In reaching the above I am guided by the doctrine of Nemo dat quod non Habet, which states that “ no one can give that one does not have”.
37. The said principle was applied in the decision in the case of Diamond Trust Bank Limited Vs. said Hamad Shamisi and 2 Others (2015) eKLR as was defined in the case of Daniel Kiprugat Maiywa Vs. Rebeccas Chepkurgat Maina (2019) eKLR which decision was quoted in the case of Geoffrey Kiptarbei Rono Vs. Johana Koren Rotich and Another 2021 eKLR, where the court held interalia
“The Nemo dat principle means one cannot give what he does not have”.
38. It follows therefrom that on a balance of probabilities the plaintiff case before the trial court was merited and the 1 st and 2 nd defendants had no defence against the said plaintiff and could only seek restitution from Joel Paipai and not the plaintiff.
39. Thus, in answer to issue No. 1, the court finds that the Appeal herein is merited as the plaintiff suit before the trial court had merits and that the learned trial magistrate erred in finding otherwise.
40. On what reliefs ought to issue, having found merits in the Appeal, the Appeal is hereby allowed and judgment is entered as prayed for in the plaint dated 8 th of May 2023.
41. As the plaintiff proved trespass, general damages for Trespass of Kshs.500,000/= are awarded to the plaintiff.
42. In order to facilitate the registration of the plaintiff as the proprietor of the suit parcel, the court directs the 3 rd Respondent herein to remove the caution that had been lodged by the 1 st and 2 nd Respondent and register the Appellant, as the proprietor of the suit property.
43. The plaintiff shall issue the requisite notice under section 152 of the Land Act before evicting the 1 st and 2 nd Respondents, and a permanent injunction issues after the said eviction against the 1 st and 2 nd Defendant restraining them, their agents, servants and/or employees from interfering with the plaintiff’s quiet possession of the suit land.
44. Costs of the Appeal and of the lower court are awarded to plaintiff but to be borne by the 1 st and 2 nd Respondents jointly and severally.
45. Judgment accordingly.
Dated at Kilgoris this 17 th day of September, 2026
Hon. M.N Mwanyale
Judge
In the presence of
CA – Sylvia/Clara
Mr. Ochwangi for the 1 st and 2 nd Appellant
Mr. Tuyia for the Respondent
Page 2 | 2