The appeal
Vide the Memorandum of Appeal dated 9th May, 2025, the Appellant appealed against the judgment and decree in KISUMU CMC Environment and Land Case No.326 of 2018 dated 30th September, 2024. The grounds of appeal are that;
(1) The learned Magistrate erred in law in dismissing the Plaintiff’s case, the Plaintiff having adduced sufficient evidence in support of his title, whereas the Defendant failed to explain how he acquired his title.
(2) The learned trial Magistrate erred both in law and fact by failing to appreciate that the Defendant’s title had encroached on the Plaintiff’s land despite the Plaintiff producing a surveyor’s report in support of the claim.
(3) The learned trial Magistrate erred in law and in fact in failing to appreciate that the Defendant’s title number KISUMU/KONYA/8064 was created over the Plaintiff’s parcel of land KISUMU/KONYA/4180, hence the claim of trespass by both the Plaintiff and the Defendant.
(4) The learned Magistrate erred in law and fact in not appreciating sufficiently or at all the pleadings and evidence adduced by the parties and considered extraneous factors, thus arriving at a manifestly wrong conclusion.
The Appellant therefore sought orders that;
(a) The appeal be allowed, and the judgment and decree of the trial court be set aside by allowing the prayers sought in the plaint.
(b) Costs of the suit in the lower court and the appeal be awarded to the Appellant.
Background
A brief background to the appeal is that the Appellant sued the Respondent in KISUMU ELC CASE NO.4 OF 2018 vide the plaint dated 11th January, 2018, over a land parcel known as KISUMU/KONYA/4180 measuring 0.048 hectares or thereabout (herein referred to as the suit land).
The Appellant’s case in the suit was that both the suit land and another parcel of land known as KISUMU/KONYA/4179 were resultant parcels of the subdivision of land parcel No. KISUMU/KONYA/2262.
The Appellant’s complaint in the suit was that the Respondent, without any justifiable reason, on or about 16th June, 2017, unlawfully entered onto the suit land and damaged the Appellant’s property and erected illegal structures thereon, thereby depriving the Appellant of the lawful use, access, and/or development of the land.
The Appellant therefore sought an order of permanent injunction, an order of eviction, general and special damages, and costs of the suit against the Respondent.
The record shows that in response to the Appellant’s claim, the Respondent filed Defendant’s Statement of Defence and counterclaim dated 20th April, 2018. The Respondent denied the Appellant’s claim and averred that he was the registered owner of a parcel of land known as KISUMU/KONYA/8064 measuring 0.09 Ha or thereabouts, which parcel of land he bought from Beatrice Wandolo. He claimed that in the year 2017, the Plaintiff (Appellant) unlawfully entered his land parcel No. KISUMU/KONYA/8064 without his (Respondent’s) permission and proceeded to construct a septic tank thereon, and that as a result, the Defendant’s (Respondent’s) land was damaged, wasted, polluted, and degraded, and that he had thus been deprived of the quiet use and enjoyment of his land.
By way of counterclaim, the Respondent sought orders of permanent injunction, an order directing the Appellant to remove the septic tank from the Respondent’s land parcel No. KISUMU/KONYA/8064 and to restore the land, general damages for trespass, costs of the counterclaim, and interest.
The record shows that the suit was later transferred to the Magistrate’s court vide court order dated 24th May, 2018, for hearing and disposal. It was consequently registered as KISUMU CMC EL CASE NO 326 OF 2018.
The record further shows that the suit was heard by the trial court, which vide the judgement delivered on 30th September, 2024, found that the Plaintiff (appellant herein) also failed to prove his case on a balance of probabilities and that in the same vein the Defendant (Respondent herein) failed to prove his counterclaim against the Plaintiff (appellant) on a balance of probabilities. The court proceeded to dismiss both the suit and the counterclaim and ordered each party to bear its own costs. Aggrieved by the judgment, the Appellant preferred the present appeal.
Submissions
Pursuant to directions given by the court on 22nd October, 2025, the appeal was heard by way of written submissions. On behalf of the Appellant, written submissions dated 5th May, 2026, were filed by the firm of Omondi Abande & Company Advocates, while on behalf of the Respondent, written submissions dated 29th May, 2026, were filed by Odongo Awino & Company Advocates.
Analysis and determination
This being a first appeal, this court is duty-bound to re-examine the evidence placed before the trial court so as to come to an independent conclusion and thereby determine whether the trial court erred or not.
The first ground of appeal challenges the trial court decision to dismiss the Plaintiff’s case, yet the Plaintiff adduced sufficient evidence in support of his title, and the Defendant failed to explain how he acquired his title.
It was submitted on behalf of the Appellant that the Appellant demonstrated a clear root of title dating back to 7th May, 1993, through a valid sale agreement and subsequent subdivision of parcel No. KISUMU/KONYA/2262. That, in contrast, the Respondents’ title No. KISUMU/KONYA/8064 was issued under highly suspicious circumstances.
That evidence was led that the Respondent’s title was issued on 20th December, 2012, while the green card for the property was opened a day later on 21st December, 2012. Counsel submitted that this is a procedural impossibility that taints the title’s validity.
That under section 26(1)(b) of the Land Registration Act, a certificate of title can be impeached if it was acquired illegally, unprocedurally, or through a corrupt scheme.
Citing the case of Dina Management Ltd -vs- County Government Mombasa, where the court emphasized that registered proprietors must prove the legality of the root of their titles once the titles are challenged on grounds of fraud. Counsel submitted that the Respondent utterly failed to discharge that burden.
That the Respondent did not produce any transfer document, Land Control Board Consent, mutation forms, stamp duty receipt, or any sub-division document.
That the Respondent agreed that his land parcel measured 0.19 Ha, exceeding the mother title, which measured 0.11Ha, which was an impossibility in both law and fact.
That, on the other hand, the Appellant adduced credible eye witness and documentary evidence of physical interference with his land, including destruction of hedges, eucalyptus trees, and obstruction from septic tank access by the Respondent. That the trial court's dismissal of the Appellant’s case on the basis of boundary confusion without addressing the clear case of unlawful entry and interference by the Respondent, who failed to prove lawful interest over the suit property, was therefore a grave error in both law and fact.
It was submitted on behalf of the Respondent that the history of how the Appellant acquired to the suit land was irrelevant to the determination of the dispute. That parties are bound by their pleadings and that issues for the court’s determination flow from the pleadings.
The ownership was not an issue in the suit as each party had its own title. That the trial court was only to determine the issue of trespass based on the de facto position of the parcels on the ground as revealed by the survey.
The evidence placed before the trial court on this issue, as shown in the proceedings, comprised the Plaintiff’s testimony. The Plaintiff/Appellant testified as PW1. He adopted the contents of his witness statement, in which he had explained in detail the process of acquisition of title to the suit land and how the Respondent trespassed thereon.
The Appellant also produced exhibits, namely a copy of the title deed, a copy of the land sale agreement, a copy of the application for consent of the Land Control Board, a copy of the transfer of land, site pictures, and a copy of the tree assessment letter from Kenya Forestry Services.
On cross-examination, he stated that part of his land No. KISUMU/KONYA/4180 had been encroached by the Defendant, who came and cut the fence, entered onto the land with a group of people with power saws and police officers, and cut down trees.
On re-examination, he stated that parcel No. KISUMU/KONYA/8064 did not exist. He stated further that he did not know how the Defendant obtained his title.
A reading of the plaint shows that the main issue in controversy was trespass and/or encroachment. This is evident from paragraphs 7, 8, 9, and 10 of the plaint, where the Plaintiff pleaded how the Defendant, with others, unlawfully entered the suit land and how he (Defendant) damaged/destroyed property on the suit land. The prayers in the plaint, namely permanent injunction, eviction, and damages for trespass, are meant to remedy a tort of trespass.
Similarly, the counter-claim was based on the tort of trespass. This is clear from paragraphs 16, 17, 18, and 19 of the counterclaim.
The prayers in both the plaint and the counterclaim, namely permanent injunction, eviction, and damages for trespass, are meant to remedy a tort of trespass.
A reading of the judgment appealed against shows that the trial court dismissed both the suit and counterclaim on the grounds that trespass had not been proved. I find nothing in the judgment to show that the Plaintiff’s suit was dismissed because he had failed to prove title or ownership.
The 1st ground of the appeal has not been proved.
Ground 2 of the appeal faults for failing to appreciate that the Defendant’s title had encroached on the Plaintiff’s land despite the Plaintiff producing a surveyor’s report in support of the claim.
PW2 was a Surveyor. He testified and produced a surveyor’s report dated 24/11/2019 as an exhibit. He stated that his assignment was to confirm the position of the boundary between parcel numbers 4180 and 8064. On cross-examination, he stated that he could not say that plot No.8064 had encroached onto parcel No.4180. The report by PW2 is on page 79 of the Record of Appeal. Although the surveyor stated on cross-examination that parcel No 8064 had been hived from parcels 4180 and 3250, there is no conclusion in the said report that parcel No.8064 has trespassed onto Appellant’s land.
The surveyor seemed to suggest that there was a problem with the way the survey was done in the area where the suit land is situated. Some of his observations were that a comparison of the RIM and the ground situation reveals a discrepancy. That the depiction of parcel No. 2260 on RIM 7 extending a longer distance was a mistake. That parcel No.8064 lies between parcel No.4180 and 3250 on sheet 4.
Some of the conclusions arrived at by the surveyor (PW2) were that on the ground, there are 5 other parcels, i.e., 3077, 3071, 4178, and 3250 after 2260. That parcel No.8064 appearing on sheet 7 was created by taking part of 4180 and 3250. That in view of this, it seems to be misplaced.
The record shows that a surveyor by the name David Mogaka Obare was also called as an expert witness. His testimony is on page 197 of the record of appeal. He produced a survey report dated 22nd June, 2023. He testified that he was tasked to visit the suit land parcel No.4180 and 8064 to determine the position of the septic tank and the felled trees. That they wanted to know the position of the septic tank between the two parcels of land. That they found the Septic tank to be on parcel No.2260, which was different from the two parcels.
From the evidence of the surveyors, I find, as the trial court found, that the Appellant did not prove encroachment. None of the reports was conclusive on the issue of encroachment.
The survey done by PW2 and the expert witness disclosed a problem involving the suit lands that can only be resolved by resurvey of the entire area with the concurrence of the owners of the neighbouring lands.
The second ground of appeal, therefore, fails.
The third ground of appeal faults the trial Magistrate for failing to appreciate that the Defendant’s title number KISUMU/KONYA/8064 was created over the Plaintiff’s parcel of land KISUMU/KONYA/4180, hence the claim of trespass by both the Plaintiff and the Defendant.
It was submitted on behalf of the Appellant that the evidence on record disclosed glaring inconsistencies in the creation of the Respondent’s title. That the Respondent failed to produce essential documentation to support a lawful subdivision process.
That the Appellant’s evidence, supported by survey findings and witness testimony, consistently showed that the Respondent’s parcel overlapped or encroached upon parcel No. KISUMU/KONYA/4180. That once encroachment is demonstrated, the registered proprietor is entitled to protection and appropriate relief. That the trial Magistrate’s failure to interrogate these material issues and the conclusion that neither party had proved trespass amounted to misdirection in both law and fact, resulting in a miscarriage of justice.
On behalf of the Respondent, it was submitted on this ground that the question of which party trespassed onto the other’s land was a question of fact. That the trial court relied on experts, the government surveyor. That the surveyor’s report was clear that the physical development did not lie on either party’s land.
That the survey reports have the presumption of regularity under section 43 of the Survey Act and sections 83 and 93 of the Evidence Act. That there is no legal basis upon which the trial court would have rejected the survey reports.
The record shows that the trial court relied on the reports by the surveyors to arrive at its findings and decision.
The last ground of appeal is that the trial court erred in not appreciating sufficiently or at all the pleadings and evidence adduced by the parties and considered extraneous factors, thus arriving at a manifestly wrong conclusion.
It was submitted on behalf of the Appellant that the judgment of the trial court is fundamentally flawed for misapprehending both the issues arising from the pleadings and the totality of the evidence adduced.
That firstly, the trial court misdirected itself by narrowing the dispute to the creation of a septic tank, treating it as determinative of the entire case. That the Applicant’s claim, as pleaded, concerned ownership, validity of title, boundary encroachment, and trespass. That the location of the Septic tank was just one evidentiary element within a broader dispute involving competing titles and physical interference with the land. That by elevating this one issue above all the others, the court considered extraneous factors and failed to determine the real questions in controversy.
That secondly, the trial court failed to evaluate material and uncontroverted evidence presented by the Appellant. That trial court placed undue reliance on isolated aspects of evidence, particularly the county surveyor’s report and the map numbering, without reconciling them with the credible evidence.
On behalf of the Respondent, it was submitted that the dismissal of the suit was not an error but a correct application of the law on the burden of proof. That the Appellant failed to discharge the burden of proof as provided for in sections 107 and 109 of the Evidence Act (Cap 80). That the trial court’s finding that both parcels had encroached onto parcel No. KISUMU/KONYA/2260 was a finding of fact that this court should not disturb. That the court’s finding was based on the surveyor’s report.
I have considered this ground of appeal. The septic tank submitted on by the Appellant was very central in the Appellant’s pleadings and testimony. In paragraph 10 of the plaint, the Appellant had pleaded that the Respondent had blocked his septic tank, leading to the spillage of wastes. He testified to the blockage of the septic tank and the loss and damage emanating therefrom.
The septic tank was also central in the reports by the surveyors. The burden of the Plaintiff was to prove on a balance of probabilities that the Defendant had encroached onto his land. Neither his own testimony nor the evidence of both surveyors supported his case.
I find that the trial court properly evaluated the evidence and did not err in its findings and decision.
I find no reason to interfere with the judgment and decree appealed against. The appeal is hereby dismissed.
Costs to the Respondent.
Orders accordingly.
Judgment dated and signed at Kisumu, delivered this 9th day of July, 2026, virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Atika: Court Assistant.
N/A for the Appellant.
Siwolo h/b for Odongo for the Respondent.
| ELC LA E031 OF 2025 JUDGMENT 2 |