Mboya v Mboyah

2. Background & Context 2. The suit property is land parcel known as Central Karachuonyo/kogweno Kawuor/1489, measuring approximately 1.23 hectares. 3. The dispute originates from ELC Case No. E009 of 2023, where judgment was delivered by the Hon. Principal Magistrate on February 14, 2025. 4. The core conict involves the Respondent's assertion that the Appellant unlawfully encroached, erected structures without permission in 2018, and attempted to unlawfully use the property as a burial site following the death of the Appellant's son. 3. Summary of Pleadings and Trial Evidence The Respondent’s Case (Plainti Below): 5. Asserted absolute ownership as the registered proprietor holding a valid title deed and ocial search certicate obtained through a completed succession process of their late father's estate, Paul Mboya Akoko (Succession Cause No. 69 of 2016). 6. Maintained that the Appellant entered the land without permission, whereas the Appellant already received his distinct separate share of the estate (parcel Central Karachuonyo/kogweno/kawuor/468) where he lives and has buried his family members. 7. Contended that challenges to succession, grants, or revocation applications belong strictly in the Family/Probate Court, not as a defense against a registered owner in an ELC trespass action. 8. Supported by testimony from PW1 (Daniel Rachuonyo Mboya) and PW2 (the Respondent), conrming family land allocation and valid succession. The Appellant’s Case (Defendant Below): 9. Testied as DW1, acknowledging the Respondent is his step-brother and that the land is registered in the Respondent's name, but arguing that the estate had never been shared equally and that he has a right to parcel No. 1489 after living there for 24 years. 10. Claimed that summons for revocation of the grant had been led, though the title has not been revoked. 4. Judicial Analysis on the Failure to File and Stamp a Defence to the Claim 11. The Trial Court's Procedural Finding: A crucial procedural aspect addressed both in the lower court and on appeal is the legal status and eect of the Appellant's failure to formally le and stamp a Statement of Defence. The trial magistrate expressly noted that while a copy of a defence appeared to have been served upon the plainti—evidenced by the Plainti's Reply to Defence and references during proceedings—an exhaustive search of both the electronic Court Tracking System (CTS) and the physical court le conrmed that the Statement of Defence had never been formally led in court. 12. The Appellate Record Discrepancy: Although an unstamped copy of what purported to be a Statement of Defence was bundled at pages 97 and 98 of the Record of Appeal, this Court emphasizes that a document does not acquire the legal status of a valid pleading merely by being reproduced in an appellate record. Pursuant to Order 42 Rule 13(4)(b) of the Civil Procedure Rules, an appellate court must be satised that pleadings properly formed part of the record before the trial court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5935/eng@2026-09-30 2

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13. The Binding Nature of Pleadings: Pleadings form the foundational architecture of civil litigation. As reiterated by the Court of Appeal in Okoth v Nyaberi & another [2024] KECA 427 and Galaxy Paints Company Limited v Falcon Guards Limited [2000] eKLR, parties are strictly bound by their pleadings, and a trial court may only render judgment on issues properly arising from them. The total omission of a duly led and stamped Statement of Defence meant that the Respondent's Plaint stood formally uncontroverted by a written defence in the lower court record. 14. Balancing First Appellate Duties and Oral Evidence: Notwithstanding this fatal procedural omission, this Court—mindful of its duty as a rst appellate court under Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123 and Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira [2013] eKLR—did not summarily discard or ignore the oral testimony tendered by the Appellant at trial. The Appellant participated as DW1, and his oral assertions regarding longterm occupation, family land use, and pending revocation proceedings were examined. However, it is trite law that oral evidence, submissions, or unled documents cannot cure the absolute absence of a formal pleading or introduce unpleaded substantive claims. Consequently, even when the Appellant's oral defense is fully accommodated, it fails to dislodge the Respondent's registered title. 5. Summary of Submissions & Legal Authorities The Respondent's Submissions: 15. Relied heavily on Sections 25 and 26 of the Land Registration Act, asserting that a registered proprietor enjoys absolute, indefeasible, and unencumbered rights to the ownership, use, and possession of land. 16. Submitted that a plainti instituting a suit for trespass needs only to establish a right to immediate and exclusive possession, drawing support from jurisprudence such as Ricks v Chebet & another [2025] KEELC 4247, Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR, and Ndunda v Sammy & 4 others [2025]. 17. Maintained that any grievances regarding succession distribution, concurrent grants, or applications for revocation must be channeled exclusively through the Probate Court rather than raised as an irregular collateral defense in an Environment and Land Court trespass claim. The Appellant's Submissions: 18. Anchored his appeal on principles of succession equity, contending that pending revocation proceedings cast a shadow over the root of the title and protect a co-beneciary from being classied as a legal trespasser. 19. Argued that the trial court failed to weigh the familial equity and the historical occupation of the land against the technical invocation of absolute registration. 6. Issues for Determination 20. Whether the Statement of Defence was properly led and formed part of the proceedings before the trial court. 21. Whether the Respondent's certicate of title acquired via succession transmission confers absolute and indefeasible rights under Sections 24, 25, and 26 of the Land Registration Act. 22. Whether the Appellant established a customary trust over parcel No. 1489. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5935/eng@2026-09-30 3

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23. Whether an Environment and Land Court adjudicating a claim of trespass can entertain collateral challenges to a registered title based on pending probate revocation applications. 24. Whether the Respondent proved trespass and whether eviction and permanent injunction orders were properly issued. 25. Who should bear the costs of the appeal and trial court proceedings. 7. Judicial Analysis and Detailed Resolution of the Grounds of Appeal. 26. The issue of ling a defence has already been addressed above. Ground 1: Failure to Consider Succession Entitlement as a Beneciary 27. Appellant’s Argument: The trial court failed to appreciate that the Respondent acquired the suit property through a succession process in an estate where the Appellant is a co-beneciary entitled to occupy the land. 28. Analysis & Case Law: While the Appellant is a beneciary of the estate of Paul Mboya, a beneciary cannot unilaterally occupy a parcel specically transmitted and registered to another family member under a nalized distribution without formal legal recourse. As highlighted by the Supreme Court of Kenya in Isack M'inanga Kiebia v Isaaya Theuri M'lintari & another [2018] eKLR, and echoed in Gichuki & another v Njenga & 3 others [2026] KECA 374, a claim of entitlement or trust requires concrete, high-quality evidence demonstrating that the holding was explicitly for the claimant's benet. Evidence from PW1 and PW2 established that the estate was distributed and the Appellant was allocated his own distinct share (Parcel No. 468). The trial court committed no error in nding that mere status as a beneciary does not grant a blanket license to occupy parcels legally registered to other family members. Ground 2: Failure to Consider Customary Trust and Fiduciary Holding 29. Appellant’s Argument: The trial court erred in failing to treat the Respondent's title as one held in trust for the beneciaries of the estate of Paul Mboya. 30. Analysis & Case Law: Under Section 28(b) of the Land Registration Act, registered land is subject to overriding interests including customary trusts. However, pursuant to Sections 107 to 109 of the Evidence Act, the legal and evidential burden of proving a trust rests squarely on the person asserting it (Muga & another v Ogola & 4 others [2024] KEELC 7137; Jackson Mwiti M'Rinyiru v Silas M'Rinyiru Mbui [2020] KEELC 3868). The court can never simply imply a trust without clear proof of intention. In this matter, the Appellant failed to tender evidence establishing that parcel No. 1489 was intended to be held in trust for him, particularly in light of evidence showing he received his own portion of the family land. Ground 3: Disregarding Concurrent Grants, Pending Revocation, and Lack of Involvement 31. Appellant’s Argument: The trial court disregarded evidence of competing grants, pending revocation applications in the succession cause, and the Appellant's lack of participation in the initial transmission. 32. Analysis & Case Law: The Court of Appeal in Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna [2017] eKLR rmly established that a certicate of title obtained through a succession process remains valid, legal, and indefeasible until it is formally revoked or annulled by a court exercising competent probate jurisdiction. Furthermore, matters of probate, succession, and grant revocation fall strictly https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5935/eng@2026-09-30 4

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within the exclusive domain of the Family/Probate Court, and cannot be introduced as an informal collateral challenge to undermine a registered title in an ordinary Environment and Land Court trespass suit (Reinhard v Hefti & 4 others [2023] KECA 939). Pending revocation proceedings, without an explicit order of stay or an actual cancellation of the title, do not strip a registered proprietor of their statutory shield under Section 26(1) of the Land Registration Act. This regional position is reinforced in Uganda (Kampala Bottlers Ltd v Damanico (U) Ltd [1992] KALR 1) and Zambia (David Nzooma Lumanyenda Kafuko Muzumbwa v Chief Chamuka), where courts maintain that an ocial certicate of title serves as an invincible legal shield against unnalized administrative or collateral complaints. Ground 4 & 5: Individual Case Assessment, Weight of Evidence, and Eviction Orders 33. Appellant’s Argument: The trial magistrate failed to assess the case based on its unique facts and wrongly issued eviction orders against the weight of the evidence. 34. Analysis & Case Law: As a rst appellate court guided by the principles in Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123 and Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira [2013] eKLR, this Court has thoroughly re-evaluated the record. The Respondent established that he holds absolute proprietorship over parcel No. 1489. Under the tort of trespass, a plainti need only prove a right to immediate and exclusive possession (Ricks v Chebet & another [2025] KEELC 4247; Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR). Because the Appellant failed to establish a lawful proprietary right, trust, or license to occupy the suit property, his unauthorized presence constituted actionable trespass (Charles Ogejo Ochieng v Georey Okumu [1995] KECA 169). Consequently, the orders for eviction and permanent injunction were properly and lawfully issued. 8. Disposition on Costs 35. While Section 27 of the Civil Procedure Act dictates that costs follow the event, this Court takes cognizance of the close familial relationship (step-brothers) between the litigants arising from their late father's estate. In the interests of preserving family harmony, it is just and equitable to depart from the general rule. 9. Final Orders 36. Accordingly, upon a harmonious synthesis of statute, equity, and regional Commonwealth jurisprudence, this appeal is weighed and found wanting. The nal orders of this Court are as follows: 1. The Appeal dated 22nd February 2025 is hereby dismissed in its entirety for lack of merit. 2. The judgment, decree, and consequential orders of the Hon. Samson Ongeri (Senior Principal Magistrate) delivered on February 14, 2025, in Oyugis Principal Magistrate’s Court ELC Case No. E009 of 2023 are armed in all respects. 3. The orders of eviction and permanent injunction issued against the Appellant stand fully reinforced. 4. To foster familial reconciliation between the warring blood brothers, each party shall bear his own costs both in the trial court and in this appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5935/eng@2026-09-30 5

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DATED, SIGNED, AND DELIVERED VIRTUALLY AT HOMA BAY THIS 30TH DAY OF SEPTEMBER, 2026. JUSTICE J.W WANYONYI JUDGE In the Presence of; Nanda for the Respondent – present Ogutu for Mboya for the Applicant, Present Awino, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5935/eng@2026-09-30 6

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