Moretet Ole Barta (suing As The Legal Representative To The Estate of The Late Oloishuro Ole Barta Kura) v Ali Farah & 1 other

The appellant alleged the parcel was unprocedurally created from her late husband's parcel and converted from a public utility (cattle dip), but adduced no independent evidence to invalidate the respondents' title under section 98(1) of the Evidence Act and produced no authentic documents showing unconstitutional creation or public-utility reservation. Registration of parcel No. 8 dated back to 1977 following adjudication.

Trespass depends on ownership and boundaries, which had to be determined first. The Land Registrar and Surveyor, on the court's orders and at the appellant's own application, visited the site, found distinct boundary markings and uprooted beacons, and determined the appellant's encroachment. The report was admitted as evidence, was uncontroverted, and was not appealed against, so the trial court correctly relied on it.

The appellant herself applied for the Registrar to visit the ground and for the report to be admitted as evidence, and the trial court granted those prayers. The court reasoned that boundary determination is for the Land Registrar and courts are slow to interfere with such findings; the boundary had to be established before a trespass action could be entertained. The report was uncontroverted expert evidence created after a site visit attended by both parties.

Although Rule 107 of the Court of Appeal Rules, 2022 permits an appellate court to consider matters not before the trial court, the court held that raising the public-utility issue at appeal stage, when it should have been pleaded and specifically raised before the ELC, was an afterthought intended to steal a match. Submissions are not pleadings and cannot amount to evidence.