John Nyakondo & Another v James O. Orogo

appellants, John Nyakondo and James Nyakondo, in Chief Magistrate’s Court at Kisii “the trial court”. In the plaint, the respondent averred that he was the Page 2 of 15

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registered proprietor of all that piece or parcel of land known as North Mugirango / Boisanga /38, “the suit property”, while the appellants resided on parcel known as North Mugirango/Boisanga/40, “the neighbouring parcel”, registered in the name of their father Nyakondo Nyambega, now deceased. He alleged that the appellants had unlawfully entered and occupied one acre of his suit property, destroyed boundary features, claiming ownership thereof. He further pleaded that the deceased had mistakenly caused the land registrar to include the disputed acre in his neighbouring parcel. The respondent therefore sought for the rectification of the land register to reflect the correct acreage of the suit property, eviction of the appellants therefrom, costs of the suit, and any other or further relief that the trial court may deem fit and proper to grant. [3] In defending the suit, the appellants filed a joint statement of defence and counterclaim. They denied the allegations of trespass attributed to them by the respondent. They averred that the deceased was the registered proprietor of the neighbouring parcel upon first registration in 1973. They contended that the boundary between the two parcels of land had remained intact since adjudication and that the respondent had only begun laying a claim Page 3 of 15

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for an acre from the neighbouring parcel after obtaining title to the suit property. They alleged that the respondent Page 4 of 15

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had himself trespassed upon the neighbouring parcel by planting tea stumps and removing boundary marks. [4] By way of counterclaim, they sought the damages for trespass, eviction and delivery up of the suit property injunction, and costs. The respondent filed a reply and defence to the counterclaim, denying the appellants’ assertions and praying for dismissal of the defence and counterclaim with costs. [5] The trial court in its judgment held that the respondent had proved his claim and allowed it with costs and dismissed the appellants’ counterclaim with costs as well. It ordered the rectification of the register together with the eviction of the appellants from that portion of the suit property that they occupied as aforesaid. [6] Aggrieved by the judgment and decree of the trial court, the appellants filed an appeal in the ELC contending that the trial court misapprehended the evidence, erred in failing to hold that the respondent had trespassed on the neighbouring parcel without colour of right, and that the decision was against the weight of evidence tendered. [7] Upon hearing the appeal, the ELC in its judgment dismissed the appeal with costs, holding that the Page 5 of 15 respondent had indeed

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demonstrated ownership of the suit property and that the appellants had encroached upon It. Page 6 of 15

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[8] Still dissatisfied, the appellants lodged the present second and perhaps last appeal before us faulting the ELC for failing to properly analyze the evidence, misapprehending the record, failing to hold that the trial court’s proceedings were incomprehensible and wanting, for not finding that the respondent had failed to demonstrate lawful acquisition of the disputed portion and that first appellate court failed to ensure justice and fairness as far as possible. They urged this Court to allow the appeal, set aside the judgment and decree of the ELC and award them costs both for this appeal and in the two courts below. [9] The appeal was heard by way of written submissions with limited oral highlights. At the plenary hearing, Mr. Gichana, learned counsel, appeared for the appellants. There was no representation by the respondent despite ample evidence of service of the hearing notice on him by court. Nor did the respondent bother to file written submissions as directed by the Deputy Registrar of this Court. [10] Mr. Gichana, submitted that the dispute had in the past by consent of the parties, been referred to the District Land Registrar and Surveyor, Nyamira District, for resolution who subsequently filed a report which confirmed that the boundaries of the two parcels of land were properly marked and that the respondent had in fact Page 7 of 15

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trespassed into the neighbouring parcel by1.2 acres. Counsel argued that the award was Page 8 of 15

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read to the parties. Since then, no application had been made to review and set it aside under the then applicable law, hence the trial court was bound to enter judgment in terms of the award. He further contended that the respondent’s evidence was contradictory and untested, as cross-examination of the respondent by the appellants was unnecessarily curtailed by the trial court. Counsel stressed that the respondent failed to prove allegations of fraud or mistake attributed to the appellants, citing Kinyanjui Kamau v Kamau [2015] eKLR, where it was held that allegations of fraud must be strictly pleaded and proved to a higher standard than ordinary civil claims, though not beyond reasonable doubt. He also relied on Ndolo v Ndolo [2008] eKLR, where the court reiterated that fraud cannot be inferred but must be strictly proved. [11] Counsel submitted that the certified copies of the registers of the suit property and the neighbouring parcel showed that the suit property measured 2.6 hectares and was transferred to the respondent in 1981, whereas the neighbouring parcel measured 1.4 hectares and was registered in the appellants’ late father’s name in 1973. He argued that documentary evidence must prevail over oral testimony, and the respondent’s claim of an additional acre was unfounded therefor. He Page 9 of 15

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further argued that the first appellate court erred in concurring with the Page 10 of 15

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trial court’s decision that the appellants’ rights to the portion had been extinguished, yet the respondent had only begun laying claim over the portion in 1996, four years before the suit was filed. Counsel submitted that the respondent’s occupation of the disputed portion did not confer rights under adverse possession, nor could the court interfere with a first registration under section 143(1) of the repealed Registered Land Act, which barred rectification of first registration except in cases of fraud or mistake. [12] He also invoked sections 26 and 27 of the Land Adjudication Act, arguing that any objections to the adjudication process ought to have been raised during the adjudication process, and once finalized, the register was conclusive. Further reliance was placed on sections 24 and 25 of the Land Registration Act, which vest absolute ownership in a registered proprietor of land and protect such rights from defeat except as provided by law. [13] On damages, counsel argued that the respondent was a trespasser and should be condemned in damages. He cited Nakuru Industries Ltd v Mehta & Sons [2016] eKLR, and Willesden Investments Ltd v Kenya Hotel Properties Ltd (HCC No. 367 of 2000), in which the courts Page 11 of 15 awarded Kshs.500,000/- and

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Ksh.10,000,000/- respectively as damages for trespass. He urged that in the instant appeal, given the Page 12 of 15

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respondent’s occupation of the neighbouring parcel since 1996, an award of Kshs.10,000,000/- would be appropriate. Counsel further submitted that the proceedings as recorded before the trial court were incomprehensible, in particular the recording of the appellants’ testimony. He therefore contended that the first appellate court ought to have found the record defective and incapable of sustaining a valid judgment in the circumstances. [14] In conclusion, counsel submitted that the first appellate court erred in failing to uphold the sanctity of title, disregarding the report by the District Land Registrar and Surveyor and misapprehending the evidence. In the ultimate, counsel urged that the appeal be allowed as prayed. [15] This is a second appeal and it is settled law that on such an appeal, this court’s jurisdiction is confined to consideration of only issues of law and should pay homage to the concurrent factual findings of the two courts below. It will however only interfere if the concurrent factual findings were completely unsupported by evidence or legally perverse. See Kenya Breweries Ltd v Godfrey Odongo [2010] eKLR and Boniface Kamande & 2 Others v Republic [2010] eKLR. [16] From the onset, we must observe that most of the issues raised Page 13 of 15

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in the grounds of appeal as well as in the submissions by the appellants’ Page 14 of 15

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counsel are really issues of fact and therefore not amenable to our jurisdiction. In that conundrum, we however distil the following issues of law for resolution; whether: the first appellate court properly analyzed and considered the evidence on record; it rightly held that the proceedings of the trial court were sufficient and not incomprehensible and that the respondent had demonstrated lawful acquisition and entry into the neighbouring parcel. [17] On the first issue, the appellants have argued that the first appellate court failed to evaluate the totality of the evidence, particularly the joint report by District Land Registrar and surveyor which confirmed that the respondent had trespassed into the neighbouring parcel by 1.2 acres. They contended that it instead relied on oral testimony inconsistent with documentary evidence such as the registers for the two parcels of land. The duty of a first appellate court is well settled. In Selle v Associated Motor Boat Co. [1968] EA 123, the Court held that an appellate court must reconsider the evidence, evaluate it itself, and draw its own independent conclusions, though bearing in mind that it had neither seen nor heard the witnesses. Similarly, in Mwangi v Wambugu [1984] KLR 453, this Court emphasized that an appellate court must weigh conflicting evidence and determine whether the trial Page 15 of 15

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court properly appreciated the facts. Page 16 of 15

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[18] Applying these tenets, we must point out that there is no set format or rigid style or tool that a first appellate court employs when re- evaluating evidence. The adequacy of the review is measured by its substance rather than its length or structural layout. Each court applies own style, provided the analysis of the record is clear and self-evident. See Gichangi v Winrose [2022] KEHC 1411. Upon our review of the record, we are satisfied that the first appellate court did a sterling job in this regard. It properly evaluated the evidence before it as required. It thoroughly re-considered the joint report by the District Land registrar and Surveyor, the oral testimony of the parties, and the documentary evidence including the relevant registers to the parcels of land. It was entitled to weigh the probative value of each piece of evidence, and its conclusion that the respondent had established his claim was supported by the record and evidence which cannot be faulted. [19] We also observe that the two courts below reached identical conclusions on the facts, both affirming the respondent’s claim to ownership of the suit property. Such concurrent findings, firmly grounded on the evidentiary record, should not be lightly disturbed. As already stated, a second appellate court will only intervene where it is demonstrated that the said Page 17 of 15 courts misapprehended the

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evidence, applied erroneous principles, or reached conclusions so manifestly Page 18 of 15

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wrong as to occasion injustice. No such infirmity has been shown or demonstrated here to our satisfaction. [20] Turning on the second issue the record shows that the respondent pleaded that the suit property was his, while the appellants resided on neighbouring parcel. He alleged that the appellants’ late father had caused an error in registration, resulting in an extra acre being reflected in his neighbouring parcel. The appellants, on their part, produced certified copies of the registers showing that two parcels measured 2.6 hectares and 1.4 hectares respectively, both being first registrations. [21] The first appellate accepted the respondent’s evidence and dismissed the appellants’ version of events. The appellants argue that this amounted to a misapprehension of the evidence, since no proof of fraud or mistake was tendered. Section 143(1) of the repealed Registered Land Act provided that: “Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than a first registration) has been obtained, made or omitted by fraud or mistake.” [22] This provision makes it plain that a first registration cannot be rectified except on proof of fraud or mistake. The burden of proof lies Page 19 of 15

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on the party alleging fraud. In Kinyanjui Kamau v. George Kamau Njoroge (supra), this Court allegation reaffirmed that fraud is a grave Page 20 of 15

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that cannot simply be presumed from the set of facts, second guessed, or inferred from ambiguous circumstances but must be proved by cogent evidence. It must be explicitly detailed in the pleadings and proved using compelling and cogent evidence. See also Ndolo v Ndolo (supra). [23] Upon our re-evaluation of the evidence, we are satisfied that the first appellate court, correctly apprehended and appreciated the evidence. The respondent’s claim was firmly anchored in his pleadings and cohered with the factual findings of the trial court. The respondent’s claim was in any event based on trespass and mistake and not fraud. It was the appellants who in their defence and counterclaim accused the respondent of fraud. The duty therefore fell on them to prove the alleged fraud which they neither discharged, nor did they demonstrate that the respondent’s title was tainted or unlawfully procured. In those circumstances, the first appellate court was entitled to uphold the respondent’s claim and dismiss the appellants’ defence and counterclaim. The reasoning was judicious and the first appellate court’s determination stands on sound footing. [24] On the third issue, the appellants argued that the proceedings before the trial court were contradictory and incomprehensible, Page 21 of 15

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particularly in the recording of their testimony. Counsel’s submissions on this aspect of the appeal were flippant to say the but Page 22 of 15 least,

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nonetheless he argued that the first appellate court ought in the circumstances to have found the record defective and incapable of sustaining a valid judgment. We have examined the record of the trial court. The proceedings, though not perfect in expression, were sufficiently clear to capture the essence of the evidence adduced by both parties. The trial court recorded the respondent’s claim that his suit property had been encroached upon by the appellants, and the appellants’ defence and counterclaim that the neighbouring parcel was lawfully registered in the name of the deceased. The trial court weighed the evidence and entered judgment in favour of the respondent. [25] The governing principle is that proceedings are not vitiated by mere stylistic imperfections; what matters is whether they are materially defective or incapable of sustaining judicial findings. See Boyer v. Callouret [1969] E.A. 385. In the seminal decision, this Court established that a wrong procedure or lack of formal perfection will not invalidate proceedings as long as it does not affect the court's jurisdiction and causes no material prejudice to the opposing party's case. [26] In the present appeal, the record of the trial court was intelligible, the evidence was faithfully captured, and the trial court's Page 23 of 15

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conclusions were properly anchored on the material availed to it. The appellants have Page 24 of 15

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not demonstrated any substantive defect that would undermine the validity of the judgment and decree of the trial court or indeed the first appellate court. Accordingly, we are satisfied that the first appellate court was right to hold the proceedings, legible, sufficient and not incomprehensible. [27] On whether the first appellate court correctly found that the respondent had demonstrated lawful acquisition and entry into neighbouring parcel, the record shows that the neighbouring parcel was first registered in the name of the deceased during land adjudication in 1973, while the suit property was registered in the name of the respondent’s predecessor and later transferred to him in 1981. The respondent alleged that an error occurred in registration, resulting in an extra acre being reflected in the neighbouring parcel and sought rectification of the register. [28] The trial court accepted the respondent’s account and dismissed the appellants’ defence and counterclaim. On appeal, the ELC reevaluated the entire evidentiary record and found that the respondent’s claim was consistent with the pleadings and supported by the trial court’s findings. The appellants, though alleging misdirection, failed to discharge the burden of proving fraud or mistake. The law is Page 25 of 15

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settled: Section absolute 24(a) of the Page 26 of 15 Land Registration Act, vests

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ownership in the registered proprietor of the land together with all rights and privileges appurtenant thereto; section 25(1) protects such rights from defeat except as provided by law; and under section 143(1) of the repealed Registered Land Act, rectification of the register could not affect a first registration unless fraud or mistake was strictly proved. This Court has consistently upheld these principles. See for instance Wambugu v Njuguna [1983] KLR 172 and Kinyanjui Kamau v Kamau (supra). [29] In the absence of such proof, the first appellate court was entitled to uphold the respondent’s claim and dismiss the appellants’ defence and counterclaim. [30] Having said as much, we are satisfied that the first appellate court correctly found that the respondent had demonstrated lawful acquisition and the appellants’ unlawful entry into the suit property. The concurrent findings of fact by the two courts below on this aspect are sound and will not be disturbed. [31] In the end having weighed the record, we are satisfied that the appeal is wholly devoid of merit. The concurrent findings of fact by both the two courts below stand unassailable, being firmly anchored on the evidence and the law. Accordingly, the appeal is dismissed in its entirety Page 27 of 15

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with no order as to costs as the respondent did not, in any way, participate in the appeal. Dated and delivered at Kisumu this 25th day of September, 2026. ASIKE-MAKHANDIA ………………. ………………… JUDGE OF APPEAL E.C. MWITA ……………….………………… JUDGE OF APPEAL B. ONGAYA ………………... ……………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 28 of 15

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