Moses Digo v Joseph Hongo Olweny (Sued as a legal representative of the estate of Moses Olweny Digo, Deceased) & 5 others

commenced against the appellant and the 2 nd to 6th respondents by Jeyne Elizabeth Atieno Olweny on the strength of a Limited Grant of Letters of Administration Ad Litem that she had obtained in respect of the estate of Dr. Moses Olweny Digo (deceased). Jeyne Elizabeth Atieno Olweny, who was the widow of the deceased, averred that the deceased was the registered owner of all that parcel of land known as Title No. Kisumu/Nyalenda “B”/1039 (Suit property). She stated that the appellant, a son of the deceased’s stepbrother, was occupying the suit property and had put up several structures thereon without her permission; that he had refused to vacate the suit property even after being requested to do so; that the appellant had leased portions of the suit property to the 2 nd to 6th respondents and that the respondents had prevented her and members of her family from using the land. She sought judgment against the appellant and the 2 nd to 6th Respondents for a permanent injunction restraining them from entering, wasting, alienating or in any other way whatsoever interfering with the suit property, possession of the suit property, general damages for trespass, and the costs of the suit. ELCA NO. E033 OF 2024 JUDGMENT Page 2

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The suit was defended by the appellant and the 2 nd to 6th Respondents. The appellant, who filed a joint statement of defence with the 2nd, 3rd, 4th and 6th Respondents on 8th March 2021, contended that he had been conducting business on the suit property for over 20 years with the knowledge of Jeyne Elizabeth Atieno Olweny. The 2nd, 3rd, 4th and 6th Respondents, on their part, contended that they were strangers to the claim by Jeyne Elizabeth Atieno Olweny. In his defence filed on 19 th February 2021, the 5th Respondent averred that he was a stranger to the claim by Jeyne Elizabeth Atieno Olweny and that the plaint disclosed no cause of action against him. A full Grant of Letters of Administration in respect of the estate of the deceased was issued to Joseph Hongo Olweny Digo and Norris Digo Olweny on 25th May 2021, and the same was confirmed on 14th February 2022. On 16th June 2022, the plaint was amended to replace Jeyne Elizabeth Atieno Olweny as the plaintiff in the suit with Joseph Hongo Olweny. In the amended plaint, the plaintiff, now the 1st respondent herein, averred that the appellant had been granted permission to occupy and run a business of pottery and events on the suit property and that the appellant had refused to hand over possession of the ELCA NO. E033 OF 2024 JUDGMENT Page 3

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property to the 1st respondent, who wanted to develop the same despite the request made to him to do so. At the hearing of the suit before the lower court, the 1 st respondent adopted his witness statement dated 3 rd June 2022 as part of his evidence in chief and produced the documents attached to his list of documents of the same date as exhibits. He testified further that the appellant was his cousin, being a son of his deceased father’s step-brother; that the deceased invited the appellant’s mother who was operating a Kiosk business on a parcel of land opposite the suit property where she was paying rent to come and operate her Kiosk on the suit property; that the appellant also asked for permission to operate a Kiosk on the suit property which he was granted; that he later found several Kiosks on the suit property; that he asked the appellant to vacate the suit property and he declined to do so; that the 2nd, 3rd, and 4th respondents were the 1st respondent’s tenants; that his uncle had purported to sell a portion of the suit property to the 5 th respondent, and the deceased who was the registered owner of the suit property never transferred the said portion of land to the 5 th respondent. ELCA NO. E033 OF 2024 JUDGMENT Page 4

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The 5th respondent gave evidence as DW1. He adopted his witness statement dated 12th April 2023 as his evidence in chief. In the statement, he stated that he had no interest in the suit property and urged the court to dismiss the suit against him. The appellant gave evidence as DW2. He similarly adopted his witness statement dated 3rd April 2023 as his evidence in chief. In the statement, the appellant admitted that the suit property was registered in the name of the deceased and that the deceased was a stepbrother to his father, Godwins Digo Agoch; that the deceased gave his mother (DW2), Dorothy Digo, the suit property in 1998 so that she could occupy it and use it to take care of her children; that he occupied the land with his mother and operated an hotel business thereon until 2014, when his mother relocated to Bondo; that his mother left him in occupation of the suit property on which he continued to do business to meet his daily needs and those of his siblings; that the 1st respondent came to him in 2017 and asked him to vacate the suit property; that the property belonged to his grandfather and he had a right to occupy the same, despite the fact that it was registered in the name of the deceased; that all ELCA NO. E033 OF 2024 JUDGMENT Page 5

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their ancestral land was registered in the name of the deceased. The 2nd, 3rd, 4th, and 6th respondents did not give evidence in the lower court suit. After the close of evidence, the parties made written closing submissions. In a judgment delivered on 30 th May 2024, the lower court entered judgment in favour of the 1 st respondent against the appellant as prayed in the plaint, save for the claim for general damages for trespass, which was dismissed. The 1st respondent’s claim against the 2 nd, 3rd, 4th, 5th, and 6th respondents was dismissed. The lower court found that the deceased invited the appellant’s family to the suit property and permitted them to occupy a portion thereof for their upkeep and sustenance. The court observed that the appellant, who had erected structures for rental on the suit property, was now claiming ownership of the same. The court stated that because the appellant occupied the suit property with the deceased's permission, he was not a trespasser. The court found, however, that there was no evidence that the land was given to the appellant’s family as a gift. The court also noted that the appellant had not made a counterclaim in respect of the property, if he had any interest ELCA NO. E033 OF 2024 JUDGMENT Page 6

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in it. Regarding the 5th respondent’s claim, the court found that the person alleged to have sold a portion of the suit property to the 5th respondent was not the registered owner thereof and, as such, had no legal capacity to dispose of the property. In conclusion, the court found that the 1 st respondent had proved his case against the appellant on a balance of probabilities and granted the orders the subject of the present appeal. The appellant was dissatisfied with the lower court's judgment and decree and preferred this appeal. In his memorandum of appeal dated 13th June 2024, the appellant contended that the trial court, having found that he was not a trespasser, erred in issuing adverse orders against him; that the trial court erred in not appreciating that the appellant had lived on the suit property his entire life, the property having been given to his mother as a gift and that the effect of the orders given by the court was to displace him from the property which he occupied as of right; that the trial court erred in its finding that there was no evidence that the suit property was given to the appellant’s family as a gift; that the trial court proceeded from the false premise that the appellant’s father had purchased the suit property from the deceased, a fact that was not brought up in ELCA NO. E033 OF 2024 JUDGMENT Page 7

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evidence; that the trial court erred in its finding that the appellant had not laid a claim to the suit property; that the trial court erred in failing to find that the appellant had a rightful claim to the portion of the suit property in his possession, the same having been given to his mother as a gift by the deceased; and that the trial court proceeded on wrong principles in reaching its decision. The appellant prayed that the appeal be allowed, the trial court's judgment be set aside, and the suit be remitted to the trial court for retrial. The appeal was heard by way of written submissions. The appellant filed submissions dated 29 th August 2025, while the 1st respondent filed submissions dated 26 th September 2025. In his submissions, the appellant identified only one issue for determination in the appeal, namely, whether the trial court erred in issuing orders of eviction and a permanent injunction against the appellant. Citing Ngao v. Kitheka [2024]KECA 21 (KLR) and Archer & Another v. Archer & 2 Others [2023] KECA 298 (KLR), the appellant submitted that his deceased mother and her family, having been allowed to occupy the suit property for several years by the deceased, who was his father’s stepbrother, the ELCA NO. E033 OF 2024 trial court should JUDGMENT have found that a Page 8

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constructive trust had been created in favour of his family in respect of the suit property entitling them to the same. The appellant submitted that, as he was not a trespasser on the suit property, the trial court had no basis for its orders against him. In response, the 1st respondent submitted that mere possession and historical claims over land alone do not confer title to land. The 1st respondent submitted that the mere fact that the appellant had occupied the suit property with the permission of the deceased and, as such, was not a trespasser on the property did not confer upon him any right over the suit property enforceable in law. Citing Re Estate of the Late Gideon Manthi Nzioka (deceased) [2015]eKLR, the 1st respondent submitted that there was no evidence that the suit property was given by the deceased as a gift to the appellant’s mother. The 1st respondent submitted that the trial court could not be faulted for finding that the alleged gift was not proved. The 1 st respondent further submitted that the reliefs that had been sought against the appellant were rightly granted by the trial court and that the prayer for a retrial of the suit had no basis, as there was no miscarriage of justice or procedural irregularity in the proceedings before the trial court. ELCA NO. E033 OF 2024 JUDGMENT In conclusion, the 1 st Page 9

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respondent drew the attention of the court to the fact that the appellant did not include a certified copy of the decree appealed against in the record of appeal, and as such, the record was incomplete. The court was urged to dismiss the appeal with costs. Analysis and determination: I have considered the pleadings and proceedings of the lower court, the court's judgment, the grounds of appeal put forward by the appellant, and the parties' submissions. This being a first appeal, the court must reconsider and evaluate the evidence on record and draw its own conclusions on the lower court’s findings on the issues that were raised for determination before it. In Gitobu Imanyara & 2 Others v. Attorney General [2016] KECA 557 (KLR), the Court of Appeal stated as follows on the mandate of the court on a first appeal: “...this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are ELCA NO. E033 OF 2024 JUDGMENT Page 10

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that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. See Selle and Another v. Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v. Brown [1970] E.A.L. As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters –vs- Sunday Post Ltd [1958] EA 424. In its own words: “Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.”” In Kenya Ports Authority v. Kuston (Kenya) Limited [2009] 2EA 212, the Court of Appeal stated that: “On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the ELCA NO. E033 OF 2024 JUDGMENT Page 11

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witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” It is also settled that, as it reconsiders and re-evaluates the evidence afresh, the first appellate court will not interfere with the findings of fact by the trial court unless they were not based on evidence at all, or they were based on a misapprehension of the evidence, or where it is demonstrated that the court acted on wrong principles in reaching its conclusion. See Peter v. Sunday Post Ltd. [1958] E.A 424 and Makube v. Nyamuro[1983] KLR 403. As correctly pointed out by the appellant in his submissions, the appellant’s seven grounds of appeal can be summarised into only one ground, namely, whether the 1 st respondent proved its case against the appellant before the trial court, and as such was entitled to the orders granted by that court. The 1 st respondent sued the appellant, among others, for trespassing on the suit property, owned by his deceased father of whose estate he was the administrator. ELCA NO. E033 OF 2024 JUDGMENT Page 12

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Trespass is defined as any intrusion by a person on the land in the possession of another without any justifiable cause. See Clerk & Lindsell on Torts, 18 th Edition, page 923, paragraph 1801. In Gitwany Investments Limited v. Tajmal Limited & 3 others [2006] eKLR, it was held that title to land carries with it legal possession. In the Court of Appeal, Fourth District, Division 1, California, in Ralphs Grocery Co. v. Victory Consultants Inc. (2017) 17Cal. App.5th 245, 261; CACI No. 2000, the court stated that: “In the instant Respondents for action, Appellants have trespass. “Trespass is interference with possession of property.” sued unlawful (Staples v. Hoefke (1987)189 Cal.App. 3d 1397,1406). The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was substantial factor in causing the harm. (See CACI No. 2000).” I am satisfied from the evidence on record that the 1 st respondent proved that his deceased father was the registered owner of the suit property. The appellant did not dispute the ELCA NO. E033 OF 2024 JUDGMENT Page 13

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deceased’s title. In my view, the appellant raised a vague claim over the suit property whose basis was not clearly set out. It was unclear whether the appellant was claiming the suit property in his own right or on behalf of his mother, father, or his family at large, and on what basis. As rightly pointed out by the trial court in the impugned judgment, although the appellant raised the issue of long occupation of the land in question by his family, he did not lodge a cross-claim against the 1st respondent based on that occupation. In his submissions, the appellant, who had realised that he did not claim any legally recognised interest in the suit property before the trial court, contended that he was entitled to the suit property by virtue of constructive trust. I accept that this could have been a valid defence, given the facts of the case. However, the issue of constructive trust was not pleaded. The issue has been raised for the first time on appeal. This court cannot determine issues that were not raised before trial and on which the trial court never expressed an opinion in the judgment being challenged. It was common ground that the appellant entered and occupied the suit property with the deceased's permission. The appellant ELCA NO. E033 OF 2024 JUDGMENT Page 14

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also admitted that the 1st respondent demanded possession of the suit property from him, which, in my view, amounted to a revocation of the license the appellant had been granted to occupy the property. The appellant did not deny that his continued occupation after the 1 st respondent demanded possession was without the 1 st respondent’s permission. As the owner of the suit property, the 1st respondent was entitled to quiet possession and enjoyment of the property after the revocation of the license granted to the appellant to occupy it. Since the appellant had no legal or beneficial interest in the suit property, he had no reasonable excuse or justifiable cause for being on the suit property. Contrary to the trial court’s finding, the appellant was a trespasser on the suit property, the landowner having revoked the permission he had granted to the appellant to occupy the property. It is my finding that the 1st respondent proved his case against the appellant on a balance of probabilities and that he was entitled to the orders granted by the trial court. Conclusion In conclusion, I find no merit in the appeal. The appeal is dismissed with costs to the 1st respondent. ELCA NO. E033 OF 2024 JUDGMENT Page 15

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Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this 28th day of September 2026 E.K.WABWOTO JUDGE Judgment delivered virtually through Microsoft Teams Video Platform in the presence of: N/A for the Appellant N/A for the Respondent Joanne Omondi -Court Assistant ELCA NO. E033 OF 2024 JUDGMENT Page 16

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