Yego v Kemei & another (Environment and Land Appeal E004 of 2023) [2025] KEELC 8528 (KLR)

d. The Honourable learned Trial Magistrate erred in law and fact in failing to evaluate the Defendants evidence and to find that he had interest over the subject parcels of land (infra). i. The Honourable learned Trial Magistrate erred in law and fact in failing to put into consideration the report by the land surveyor that there was no demarcation done to distinguish the two parcels of land known as No. Songhor/songhor Block 4/243 and Songhor/songhor Block 4/532 (The 1st and 2nd subject parcels of land respectively) e. That the Honourable learned Trial Magistrate erred in law and fact by failing to consider that the Plaintifi is the rightful owner of the 1st and 2nd subject parcels of land. f. The learned Trial Magistrate equally erred in law and in fact in failing to uphold the doctrine of precedent. 3. So, the Appellant seeks that this appeal be allowed and that the Subordinate Court’s judgment set aside with costs. 4. The Appellant’s submissions 24th September 2025 referred to the grounds of appeal, the parties’ respective pleadings, the impugned judgment, the evidence before the trial Court, the surveyor’s report and that the Respondent fraudulently acquired the 2nd subject parcel of land. Counsel for the Appellant framed one issue for determination namely whether the Appellant is the rightful owner of the 2nd subject parcel of land. It was submitted that there was collusion between the 1st and 2nd Respondents in the sub division and registration of the 2nd subject parcel of land thus, reducing the appellant’s portion from 10.5 acres to 5.96 acres in area. That the Respondent purported to have bought the suit from Henry Cheruiyot Tuwei who has never been in actual possession of the same and the title deed exhibited in the suit does not confirm him as the proprietor thereof. 5. To buttress the submissions, counsel relied on the case of Alice Chemutai Too -vs- Nickson Kipkurui Korir & 2 others (2015) eKLR and the case of Mwania & 3 others -vs- Kitenye (2025) eKLR on absolute and indefeasible rights. Counsel thus, implored the Court to allow the appeal as prayed in the memorandum of appeal and set aside the impugned judgment with costs. 6. The 1st Respondent through Duncan Tallam filed submissions dated 12th November 2025 referring to the record inclusive of the parties’ respective pleadings, grounds of appeal and proceedings especially pages 25 and 26 that show that the Plaintifi gave evidence which was considered by the court. Reliance was made on the case of M’Riungu-vs-Republic (1983) KLR 455 that appeal be confined to questions of law and only interfere with the trial court’s decision if it is bad in law. It was submitted that the 1st Respondent is the rightful registered owner of the 2nd subject parcel of land which was proved by the certificate of title and the certificate of oficial search under section 26 of the Land Registration Act 2016 (2012). 7. It was therefore, submitted that the impugned judgment is solid as upon evaluation of the evidence on record, the trial Court found no merit in the Appellant’s suit. That there is nothing to prompt this court to overturn the trial court’s decision which should be upheld. That the appeal is not well structured, lacks merit and that the same should be dismissed with costs. 8. The 2nd Respondent did not participate both in the original suit and this appeal. 9. Notably, the instant appeal being the first one from the trial Court in the matter, I am obliged to review the record of the trial court, evaluate it and make independent determination whether the conclusion originally reached upon that evidence should stand. However, this is a jurisdiction which should be https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8528/eng@2025-12-03 2

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exercised with caution; see Mwanasokoni -vs Kenya Bus Services Ltd 1982-88 1KAR 278 restated in the case of Titus Ong’ang’a Nyachieo -vs- Martin Okioma Nyauma and 3 others 2017 eKLR. 10. The genesis of the dispute is that at the trial Court, the Appellant sued the Respondents and one Henry Cheruiyot Tuwei (3rd Defendant therein) by way of an amended plaint dated 26th April 2020 for the following principal orders; a. A declaration that the title deed purported to have been issued in favour of the 3rd Defendant over the 2nd subject parcel of land was obtained illegally, irregularly, unprocedural, was fraught with fraud and therefore the 1st Defendant had no legitimate proprietary right over the same. b. A declaration order to confirm that the Plaintifi is the absolute owner of the 1st and 2nd subject parcels of land and that the title in respect of the 2nd subject parcel of land in favour of the 1st Defendant is null and void. c. An order directing the land Registrar, Nandi Land Registry, to expunge from the record and/ or rectify the register by cancellation of all entries relating to the issuance of title deeds of the 2nd subject parcel of land in favour of the 1st and 3rd Defendants. d. There be a permanent injunction orders against the 1st Defendant/Respondent, his servants, agents and or assignee from in any way dealing with and or interfering with the Applicant’s/ Plaintifi’s quiet possession, use and or in any way engaging in acts inconsistent with the Plaintifi’s/Applicant’s rights as the owner of whole 1st and 2nd subject parcels of land 11. By the statement of defence and counter claim dated 3rd April 2019, the 1st Defendant stated that the Appellant is the owner of the 1st subject parcel of land and in occupation of the 2nd subject parcel of land. That the Appellants claim is a boundary dispute and the 1st respondent sought that the same be determined. 12. In the counter claim, the 1st Respondent prays that the Appellant’s the suit be dismissed on the following grounds; 13. 14. a. The plaint on adverse possession does not disclose a cause of action and the same ought to have been filed by way of originating summons under Order 37 rule 7 and Section 38 of Limitation of Action Act. b. The Plaintifi’s plaint is barred by limitation of Actions Act Cap 22 as the cause of action is alleged to have occurred in 1982 more than 30 years ago. Further, the 1st Defendant prayed that the suit be dismissed with costs and the judgment be entered in terms of the counterclaim thus; a) There be orders of this Court directing the County Surveyor and the Lands Registrar to determine the disputed boundaries between 1st and 2nd subject parcels of land and the Defendant be declared legal owner of the 2nd subject parcel of land. b) Costs of the counterclaim to the Defendant The Appellant (PW1) relied on her statement dated 21st March 2019 and a list of documents dated 25th March 2020 except number 4, the green card (P Exhibits 1 to 4) alongside the valuation report dated 4th June 2019 (P Exhibit 5) in her testimony. In his evidence, the 1st respondent (DW1) relied on his statement dated 23rd September 2021 as well as a list of documents dated 28th February 2020 (D Exhibits 1 to 8) and called a witness, Joyce Kazira Shabaya (DW2) who relied on her statement dated 23rd September 2021. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8528/eng@2025-12-03 3

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15. In the foregone, the issues for determination are contained in the grounds of appeal which are condensed to whether; a. Is the Appellant or the 1st Respondent the lawful owner of the 2nd subject parcel of land and b. The appeal is meritorious. 16. The Trial Court stated the parties’ respective claims as per the pleadings in brief at pages 1 and 2 of the judgment. The same is shown in page 6 of the record of appeal. 17. Further, the Trial Court considered the evidence adduced by the respective parties. That the burden of proof was upon the party who alleges to prove the existence of facts as stipulated under section 106 of the Evidence Act Chapter 80 Laws of Kenya. 18. By the consent order of 26th June 2019 between the parties before the Trial Court, the Land Registrar and the County Land Surveyor were directed to visit the 1st and 2nd subject parcels of land within fortyfive (45) days from that date to determine the position on the ground in presence of both parties and prepare and file a comprehensive report in court. This was in consonant with Sections 18 and 19 of the Land Registration Act 2016 (2012) as boundary was raised in the 1st respondent’s statement of defence and counter claim. 19. It is notable that Nandi County Surveyor’s Report dated 7th January 2020 contained at page 124 of the record of appeal was never an exhibit before the Trial Court. Nevertheless, upon consideration of the observations and findings in the report, there is no physical boundary separating the 1st and 2nd subject parcels of land. 20. exhibit 5 reveals that the 2nd subject parcel of land is approximately 1.2006 hectares in area. That it is unoccupied and registered in the name of the 1st respondent. 21. Further, D Exhibits 1, 2 and 8 being title deed, green card and certificate of oficial search in respect of the 2nd subject parcel of land respectively show its area to be approximately 1,2006 hectares. That the same is registered in the name of the 1st Respondent as at 5th April 2012. 22. In paragraph 13 of the amended plaint, particulars of fraud including alleged grabbing of the appellant’s land, are reset out. However, PW1 did not present any material evidence to distinctly prove fraud to the requisite standard as I subscribe to the Court of Appeal decision in the case of Kuria Kiarie & 2 others-vs-Sammy Magera (2018) eKLR and Ndolo -vs- Ndolo (2008) 1 KLR (G & F) 742. 23. During cross examination, PW1 stated as follows; “ The defendant encroached over my land. I bought 10.5 acres but I do not have anything to show……” 24. In arriving at the impugned judgment, the learned trial magistrate observed, inter alia; “ The Plaintifi has not adduced any solid evidence to support her oral allegation. That the Defendants are his neighbors and that their parcels of land are larger than she anticipated is not evidence that they stole her land.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8528/eng@2025-12-03 4

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25. Also, the Learned Trial Magistrate noted that; “ She (PW1) did not avail evidence from the company in which they all had shares to buttress her allegations.” 26. Indeed, DW2 testified that she was married to the late Henry Tuwei Cheruiyot under customary law. That her deceased husband was a shareholder in Nandi Hills Farmers Ltd Maraba Estate which distributed shares to its members. 27. Clearly, DW1 stated that he bought the 2nd subject parcel of land from the deceased husband of DW2 after due diligence and confirmation of registration as regards owner thereof. DW2 did afirm that the land was sold to DW1 to raise school fees for their children. 28. In re-examination, DW1 succinctly stated; ‘I obtained my title lawfully through sale.’ 29. Consent to transfer (D Exhibit 5), minutes of Tinderet Land Control Board (D Exhibit 6) and transfer (D Exhibit 7) reveal that the 2nd subject parcel of land got transferred lawfully and procedurally and without any encumbrances from the deceased husband of DW2 to DW1. They all fortify the title (D Exhibit 1) that the 1st respondent is the lawful owner of the said land; see Munyu Maina-vs-Hiram Gathiha Maina (2013) eKLR and Katende-vs-Haridar & Company Ltd (2008) 2 EA 173. 30. Having considered the entire record of appeal, I find that the counter claim succeeds to the extent that the 1st Respondent proved to the requisite standard that he is the lawful owner of the 2nd subject parcel of land. Further, the appellant failed to prove her claim including fraud to the requisite standard. So, the Trial Court’s judgment is legally valid and hereby upheld accordingly. 31. Thus, the present appeal originated by way of the memorandum of appeal dated 9th March 2023 lacks merit. The same is hereby dismissed with costs of the original suit together with the counter claim and this appeal to the 1st Respondent. 32. It is so ordered. DATED and DELIVERED AT KAPSABET THIS 3RD DAY OF DECEMBER 2025. HON G M A ONGONDO JUDGE In the presence of; Mr Kibichii instructed by Kipsei learned Counsel for the Appellant Mr D Tallam learned Counsel for the 1st Respondent Walter, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8528/eng@2025-12-03 5

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