THAMSON NAMUNYU NJIBWAKALE VS PATRICK SITATI KISAKA THAMSON NAMUNYU NJIBWAKALE VS PATRICK SITATI KISAKA

Background.

This appeal is a contestation of the outcome of Kimilili SPM-ELC Case No. E022 of 2021 where THAMSON NAMUNYU NJIBWAKALE-the Appellant herein was the Plaintiff and PATRICK SITATI KISAKA –also the Respondent herein was the Defendant.
The said suit before the trial court was instituted by the Appellant vide a plaint dated 09/01/2019 where he averred that he was the registered owner of LR NO. Kimilili/Kamukuywa/192 (hereinafter referred to as the “suit land’) and that the Respondent was the legal administrator of the estate of the late Wycliffe Wanyonyi Kisaka who was the registered owner of LR No. Kimilili/Kamukuywa/191 which borders/neighbours his land. That the Respondent had encroached his land without his authority. He sought to have the Land Registrar and surveyor to ascertain/establish the boundary between the two parcels of land and costs of the suit.
The Respondent filed a statement of defence and counter-claim dated 06/07/2021 where he averred that his father William Kisaka Kibunguchi bought the suit land from the Appellant’s parents in the early 1950’s measuring about 6acres out of the suit land. That the Appellants father moved to Uganda after the sale and later returned in the year 1964 and occupied one acre of the suit land. That since the death of their respective fathers, the Appellant has declined to transfer the suit land to the estate of William Kisaka Kibunguchi. In his counter-claim, the Respondent averred that his father and their family as a whole have been in occupation of the suit land for over 61 years after the purchase was entered into between the years 1959 and 1962. The Respondent prayed for orders that the Appellant be evicted from the suit land, that all structures erected thereon be demolished under the supervision of the OCS Kimilili Police Station, and that the Appellant do execute the requisite transfer instruments, failure to which the Executive Officer of the Court be authorized to execute the same.
The suit before the trial court was agreed to proceed by way of viva voce evidence with the Appellant calling one witnesses and the Respondent called four witnesses in total.
PW1 Damson Namunyu Njibwakale testified that the Respondent was his neighbour but he relocated. It was his evidence that his land is 6 acres and that the respondent ploughed the land with a tractor destroying the boundaries. He denied the assertion that his father sold his claimed land as he had already died at the time. He produced as documentary evidence his list of documents filed in court on 09/01/2019 and 14/10/2021 as PExhibit 1-5. During cross-examination he testified that trees had been planted along the boundary of the two parcels of land and that these were destroyed by the Respondent. He also denied ever entering into an agreement for the sale of his claimed land.
DW1 Patrick Sitati Kisaka adopted his witness statement dated 06/07/2021 as his evidence in chief. He testified that his father William Kisaka bought plot no.192 vide an agreement dated 19/02/1959 produced as DExhibit 1 before he was born i.e. in 1964 and the Appellant has since been occupying 1 acre of the said land to date. That his father also bought other parcels totalling to 14 acres from the Appellant and his brothers through agreements date 16/08/1959. He testified that the Appellant never laid any claim even after the demise of his father and neither did his brothers. He testified that when his father died, succession proceedings followed wherein they included plot no. 191,192 and part of 193 as assets of the deceased and that he begun following up on the title of the land with the Appellant who was elusive.
It was further his evidence that the issue was reported to the area chief and even to the land disputes tribunal. That out of the 6 acres, he occupies 5 acres while the Appellant occupies 1 acre. In cross examination he testified that the agreement dated 1959 does not describe the parcel of land and the acreage purchased and that his father was listed as a witness while he is indicated as the purchaser. That the agreement of 1960 states 2 acres. He testified that he did not know whether his father protested to the registration of the Appellant as the owner of the suit land during the adjudication period. It was his evidence that he entered into the land in 2009. That his claim is for land measuring 14 acres and that there ought to be no boundary between plot no 191 and 192.
DW2 Thomas Namunyu Njibwakale testified that he is the Appellants son and the Respondents nephew. He adopted his witness statement dated 06/07/2021 as his evidence in chief. He testified that he resides in the suit land where they occupy 1acre while the Respondent occupies 5 acres. He testified that the Appellant sold the suit land and relocated his family to Uganda until 1964 when they returned to occupy the said acre.
DW3 John Khaoya Lukorito adopted his witness statement dated 28/07/2021 as his evidence in chief. It was his evidence that the Appellant is his step father and that he sold 2 acres of land to William Kisaka through an agreement where he was a witness. That the Appellant sold the land and relocated to Uganda. He could not confirm the total amount of acreage purchased by William Kisaka.
DW4 Allan Onyango Babu testified that he is the Land Registrar Bungoma County. He made reference to a report prepared by his predecessor dated 31/03/2021 when she visited the site i.e. LR No. Kimilili/Kamakuywa/192 and 191 for establishment of boundaries. That it was established that there have been boundaries existing from the year 1959 and that plot 192 measures 6 acres while 191 measures 11 acres. It was further established that plot 192 has been divided into two portions of 1 acre and 5 acres which are identifiable. Finally, it was observed that the issue was not a boundary dispute but a claim for land. In cross examination he testified that the two parcels of land are registered independently.
Upon determination of the evidence before it, the trial court dismissed the Appellants case and allowed the Respondents counter-claim in its entirety with costs.

The Appeal.

Aggrieved by the trial court’s judgment, the Appellant preferred the current appeal on the following grounds;
The learned trial Magistrate erred in law and fact when she failed to appreciate the weight of evidence offered by the plaintiff that proved his title was unchallenged.
The learned trial magistrate erred in law and fact by holding that the High Court at Kitale conducted succession cause of the plaintiff''s title yet she saw the plaintiff alive with his title for parcel no. KIMILILI/KAMUKUYWA/192.
The learned trial magistrate erred in law and fact when she failed to resolve the serious contradictions, lack of evidence and variance of pleadings and evidence by the defence and in fact gave them a clean bill of health.
The learned trial magistrate erred in law and fact when she allowed a counter-claim that was not proved and ordered eviction of a legally registered owner of the title.
The learned trial magistrate erred in law and fact when she failed to hold that the claim by the respondent was statute barred, unenforceable and irredeemably defective.
The entire judgment was contrary to the tenets of justice and the veracity of the evidence tendered.
The Appellant sought to have this appeal allowed, the lower court judgment vacated and an order be made dismissing the counter-claim with costs and allowing the Appellant''s suit. He also sought for costs of the appeal.

Submissions on the appeal.

Directions were taken for the appeal to be canvassed by way of written submissions.
The Appellant filed submissions dated 30/06/2025 where he identified seven issues and submitted that the trial court erred in law and fact by dismissing his claim on grounds of jurisdiction pursuant to Section 18(2) of the Land Registration Act. That the dispute herein was a claim for land and not a boundary dispute and the prayers sought were declaratory in nature and for the eviction of a trespasser, therefore the trial court had jurisdiction according to Section 26(4)(b) of the Environment and Land Court Act and Section 7 and 9 of the Magistrates Court Act.
Secondly, it was submitted that the Appellant who holds a title issued on 15/01/2002 is protected under Section 26(1) of the Land Registration Act unless on grounds of fraud, corrupt scheme and misrepresentation which were not pleaded and proved. Reliance was placed in the case of Kuria Kiarie & 2 Others v. Sammy Magera (2018) KECA 467 (KLR). Thirdly, it was submitted that the trial court in refusing to grant an equitable relief of a temporary injunction despite the abundance of evidence supporting the grant of the order curtailed his right to property under Article 40 of the Constitution. Fourthly, it was submitted that the Respondents claim which was anchored on sale agreements dated 14/02/1959, 16/08/1959 and 14/02/1960 did not dislodge the Appellants claim as these agreements did not conform to the provisions of Section 3(3) of the Law of Contracts Act on agreements for disposition of land.
Fifthly, the Appellant argued that the Respondents claim was statute barred in accordance with Section 7 of the Limitation of Actions Act on claims for recovery of land. Reliance was placed in the case of Bosire Ogero v. Royal Media Services (2015) eKLR. Sixthly, it was submitted that the trial court erred in ordering for the eviction of the Appellant without making an order for the cancellation of his title, declaration of a trust or establishing adverse possession. He quoted the case of Waas Enterprises Limited v City Council of Nairobi & another (2014) KEELC 605(KLR). Lastly on the issue of costs, the Appellant sought to have the Respondent condemned to bear the same.
The Respondent on his part filed submissions dated 24/06/2025 and began by reminding this court on its mandate as a first appeal court by referring to the cases of Mwanasokoni -Vs- Kenya Bus Services Limited [1985] KLR 931 and Hahn -Vs- Singh [1985] KLR 716. The Respondent submitted that he produced sufficient evidence to prove that the land claimed by the Appellant belonged to him as was held by the Kamukuywa Land Disputes Tribunal and the trial court. It was submitted that the trial magistrate properly directed herself to all evidence on record as well as the exhibits produced to arrive at a just decision. The Respondent urged the court to dismiss the Appeal with costs.

Analysis and determination

I have read the memorandum of appeal, the record of appeal, written submissions filed by the parties and the court record generally and the issues that commend for determination from the six (6) grounds of appeal are: whether the Respondent established a legally enforceable interest in the Appellant’s land by way of purchase or occupation, and whether the trial court properly appreciated the Appellant’s indefeasible title.
The two issues shall be determined concurrently.
The Appellant’s case was anchored on the assertion that he is the registered, absolute and indefeasible proprietor of LR No. Kimilili/Kamukuywa/192. He complained that the Respondent, as administrator of the estate of the late Wycliffe Wanyonyi Kisaka who is the proprietor of the neighbouring parcel LR No. Kimilili/Kamukuywa/191 had unlawfully encroached onto his land. He sought for an order for establishment of boundaries between the two parcels of land.
The Respondent contended that his late father, William Kisaka Kibunguchi, purchased six (6) acres out of the Appellant’s parcel in the early 1950s and that he occupies 5acres of LR No. Kimilili/Kamukuywa/192 while the Appellant’s family occupies one (1) acre. He further claimed that his family has been in occupation of the said portion of five (5) acres for over sixty-one (61) years and therefore sought the eviction of the Appellant, demolition of structures erected thereon, and transfer of the disputed land to him.
Before proceeding to discuss the issues as set out above, it is imperative to state that on scrutiny of the Appellants pleadings, it is clear that he sought to have the boundary between his claimed land LR No. Kimilili/Kamukuywa/192 and LR No. Kimilili/Kamukuywa/191 established by the land registrar and surveyor. The Appellant attempted to amend his plaint and include a prayer for injunction but the trial court declined the proposed amendment and limited the Appellants intended amendment to his name only.
I agree with the trial court’s decision and its reliance on the provisions of Section 18 (2) of the Land Registration Act which provides that the determination of boundaries of a parcel of land in the first instance is a preserve of the Land Registrar. The said Section of the Act provides as follows;

“The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.”

Sections 18 (3) and 19 then follows with further provisions as to how the Land Registrar may go about making the determination, including receiving evidence as to the parcel’s boundaries and situation as may be necessary. Further, Mutungi J. in Ali Farah v Moses Ole Nasisit & 9 others [2016] eKLR held as follows;

“Sections 18 and 19 of the Land Registration Act 2012 gives power to the land registrar to have the boundary of any parcel of land established and fixed in the event of any dispute and in carrying out such exercise the land registrar is at liberty to receive such evidence as to the situation of the land parcel boundaries as may be necessary. Hence the Act recognizes that it is the land registrar acting in concert with the surveyor who would be best suited to resolve any issues relating to boundary disputes and not the courts. The land registrar has custody of all the necessary records and the surveyor in case of need renders the necessary technical support.”

This Court notes that the Land Registrar’s report dated 31/03/2021 produced as D-Exhibit 5 confirms that the Registrar had already visited the locus in quo in relation to Kimilili ELC No. 18 of 2018. The report further indicates that the dispute between the parties transcended a mere boundary issue and instead, raised questions of ownership which fall outside the Registrar’s statutory mandate. In light of this, it is unclear why the Appellant chose to institute a fresh suit seeking another boundary determination instead of pursuing the proper legal avenues. If the Appellant was dissatisfied with the Registrar’s findings, his recourse is covered under Section 86 of the Act, and not through a fresh suit. I therefore agree with the trial court’s finding on the status of the Appellant’s case.
On the Respondents counter-claim, Section 24(a) of the Land Registration Act, 2012 vests in a registered proprietor absolute ownership of land, while Section 25(1) provides that such rights shall not be defeated except as provided for by law. Section 26(1) further stipulates that a certificate of title is prima facie evidence of ownership and is indefeasible save on grounds of fraud, misrepresentation, illegality, or where the title was acquired through a corrupt scheme. The Appellants title has been challenged and the position is as was stated in the case of Munyu Maina.Vs.. Hiram Gathiha Maina, Civil Appeal No.239 of 2009, where the Court of Appeal held that: -

“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”

The Respondent argued that he is entitled to the suit land which he claims was purchased by his deceased father from the Appellant and his brothers in the 1950’s and 60’s. He produced various agreements as D-Exhibit 1 and called witnesses who corroborated his evidence. Further and as stated in the Land Registrars report, the suit land is demarcated into two with the Appellant occupying 1 acre on the upper side of the said land and the Respondent occupying the remaining 5 acres. This position was further supported by the record of proceedings before the Kamukuywa Land Disputes Tribunal and reinforced by the oral testimony of DW2, both of which confirmed the narrative presented by the Respondent regarding long occupation and the historical dealings over the land.
From my analysis of the evidence, the Appellant did not rebut the evidence contained in the land registrars report and that of DW2 as stated in the preceding paragraph. In my view, the evidence presented a prima facie case that indeed there was a sale of portions of the suit land that led to the surrendering of possession. The Respondent’s occupation of the said 5acres in my view is consistent with the rights of a purchaser and later a beneficiary under succession. The Appellant offered no credible explanation as to how he came to be registered as the owner of the entire suit land to the exclusion of the Respondent’s beneficial interest arising from the sale. I am therefore persuaded that the Appellant’s registration was tainted with irregularity and is not deserving of the protection accorded to indefeasible titles.
However, from the agreements produced, it is not possible to ascertain with certainty the exact acreage that was sold, whether it was five (5) acres or the entire six (6) acres comprising the suit property. While the Respondent contends that his late father purchased the entire suit land, this Court has not been informed under what circumstances the Appellant remained in occupation of one (1) acre out of the six (6)acres since the year 1964. In the absence of conclusive evidence on this point, the more probable inference consistent with the evidence on record and the parties’ conduct is that only five (5) acres were sold to the Respondent’s late father leaving one (1) acre which is in the possession of the Appellant. Accordingly, I find and hold that the Respondent is entitled to five (5) acres and not the whole six (6) acres.
In the end, the judgment of the trial court is hereby set aside and substituted with the following disposal orders:
The Respondent’s counter–claim succeeds only to the extent of five (5) acres out of the six (6) acres comprised in the LR No. Kimilili/Kamukuywa/192(the suit land).
The Appellant shall execute all the necessary transfer instruments in favour of the Respondent to facilitate the transfer of five (5) acres within ninety (90) days from the date hereof, failing which the Executive Officer of this Court shall be authorized to execute the same in place of the Appellant.
An order of eviction is hereby issued against the Appellant from any portion of the suit land in excess of one (1) acre, together with demolition of all structures erected thereon, such eviction and demolition to be carried out after ninety (90) days under the supervision of the Officer Commanding Station (OCS), Kimilili Police Station.
For avoidance of doubt, the Appellant shall remain entitled to one (1) acre of the suit land, while the Respondent shall be registered as proprietor of five (5) acres.
Each party shall bear their own costs of the appeal.
It is so ordered.

DATED SIGNED and DELIVERED at BUNGOMA this 25^th day of September, 2025.

……………………………..

HON.E.C CHERONO

ELC JUDGE

In the presence of;

Mr Majanga for the Respondent.
Mr. Sichangi for the Appellant.
Bett C/A.