Onyango v Ochiel

5. 2. The Honourable Magistrate erred in law and in fact by disregarding the fact that the evidence of the defendant showed culpability on the part of the plainti and NOT vice versa. Based on the above grounds it is proposed to this court that this Appeal be allowed, the part of the judgment and orders be set aside and the court to grant any other orders it deems t and proper in the interest of justice. Submissions 3. Upon admission of the appeal, this court directed the appeal to be canvassed by way of submissions Appellants Submissions 4. The Appellant's submissions were led by Odhiambo Odera & Associates Advocates and are dated 5th March 2026. Rehashing the grounds of appeal, counsel identied two broad issues for determination, namely; whether the dispute before the subordinate court was a boundary dispute as opposed to a dispute on ownership and whether the subordinate court had jurisdiction to hear and determine the matter. 5. On the rst issue, counsel submitted that the dispute before the trial court was essentially a boundary dispute between land parcels UHOLO/MAGOYA/771 and UHOLO/MAGOYA/451, rather than a dispute on ownership. It was submitted that the pleadings and evidence demonstrated that the parties were neighbouring land owners and that the dispute concerned alleged encroachment and the position of the boundaries. Counsel contended that no party had challenged the validity of the other's title. 6. Counsel submitted that boundary disputes relating to registered land are governed by sections 18 and 19 of the Land Registration Act, 2012. It was urged that section 18(2) expressly provides that a court shall not entertain proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have rst been determined in accordance with the statutory procedure. Further, section 19 empowers the Land Registrar to ascertain and x boundaries. Reliance was placed on Azzuri Limited v Pink Properties Limited [2018] KECA 392 (KLR) and Willis Ocholla v Mary Ndege [2016] KEELC 754 (KLR), 7. On the issue of jurisdiction, counsel submitted that jurisdiction is fundamental and must be expressly conferred by law. Reliance was placed on Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, to urge that once the dispute was characterized as one concerning boundaries, the learned Magistrate ought to have referred the matter to the Land Registrar pursuant to the provisions of section 18 of the Land Registration Act. Also cited was Republic v Chief Magistrate's Court at Thika & another; Njoroge (Ex parte) [2023] KEELC 691 and Mwangi v Kaboro [2024] KEELC 6546 (KLR) . 8. Relying on Speaker of the National Assembly v James Njenga Karume it was further submitted, that where the law provides a specic dispute resolution mechanism, that procedure ought to be strictly followed. 9. Counsel consequently submitted that the learned Magistrate misdirected himself by treating the dispute as one of ownership instead of a boundary dispute and, in so doing, assumed jurisdiction over a matter which ought rst to have been dealt with by the Land Registrar. The Court was therefore urged to allow the appeal, set aside the judgment of the trial court and substitute the same with an order referring the boundary dispute to the Land Registrar for determination under sections 18 and 19 of the Land Registration Act. The Appellant also prayed for the costs of this appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 2

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Respondents Submissions 10. The Respondent's submissions were led by Maxwell O. Ogonda & Associates Advocates and are dated 2nd April 2026. Counsel submitted that the appeal lacked merit and ought to be dismissed with costs. 11. Counsel identied the principal issue as whether the dispute before the subordinate court was a boundary dispute as opposed to a dispute on ownership, and, in that regard, whether the subordinate court had jurisdiction to entertain and determine the Respondent's suit. 12. On the nature of the dispute, counsel asserted that the Respondent's Plaint was clear that he was the registered proprietor of UHOLO/MAGOYA/771 and that the Appellant had, without colour of right, authority or consent, trespassed and/or encroached upon the suit property, erected temporary structures and deposited building materials thereon. It was submitted that the reliefs sought in the Plaint were principally a permanent injunction and an eviction order. 13. Counsel further submitted that the Appellant's Statement of Defence dated 3rd January 2017 did not plead a boundary dispute touching on parcel UHOLO/MAGOYA/771. Rather, the Appellant sought an order compelling the County Surveyor to mark the boundaries of parcels UHOLO/ MAGOYA/142 and UHOLO/MAGOYA/451. It was therefore submitted that the Appellant could not depart from his pleadings and subsequently seek to characterize the entire dispute as a boundary dispute involving parcel 771. 14. Counsel contended that in any event, even if the dispute had initially involved a boundary issue, the same had been resolved by the District Land Registrar's report dated 25th April 2019, which was prepared pursuant to a court order issued on 5th September 2018 at the instance of the Appellant. It was submitted that the report and the accompanying map showed that parcel UHOLO/MAGOYA/771 was separated from parcel UHOLO/MAGOYA/451 by a road and that the two parcels had no common boundary. 15. It was therefore submitted that there could be no subsisting boundary dispute between parcels 771 and 451 capable of ousting the jurisdiction of the subordinate court. Counsel contended that the dispute before the trial court was ultimately one concerning ownership, trespass and eviction, and that the subordinate court therefore acted within its jurisdiction in determining the matter. 16. On ownership, counsel submitted that the Respondent had produced documents proving his ownership of the suit property, together with photographs showing structures erected thereon by the Appellant. Reliance was placed on section 26(1) of the Land Registration Act, which accords a certicate of title prima facie evidentiary value as proof of proprietorship unless the title is successfully impeached on the statutory grounds of fraud, misrepresentation, illegality, procedural impropriety or a corrupt scheme. 17. Counsel added that the Appellant had not proved ownership of any of the parcels referred to in his pleadings and evidence in a manner capable of defeating the Respondent's registered title. It was therefore urged that the trial court properly found that the balance of probabilities tilted in favour of the Respondent. 18. On the issue of jurisdiction, counsel reiterated that the Land Registrar's report dated 25th April 2019, prepared pursuant to the court order obtained by the Appellant, had settled the question whether parcels 771 and 451 shared a common boundary. Since the report established that the parcels were separated by a road, counsel submitted that there was no boundary between them requiring https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 3

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determination and, consequently, no basis upon which the subordinate court could be said to have improperly assumed jurisdiction. 19. Counsel submitted that Azzuri Limited v Pink Properties Limited was distinguishable because, unlike the present case the boundary issue in that case had not been determined by the Land Registrar before the court proceedings. In the instant appeal, the Land Registrar had led a report pursuant to a court order and the issue of the alleged boundary between parcels 771 and 451 had thereby been addressed. 20. Counsel similarly distinguished Willis Ocholla v Mary Ndege, urging that the decision emphasized the necessity of a Land Registrar's determination before a court can assume jurisdiction over a boundary dispute. It was submitted that, in the present case, such a report had in fact been led, thereby distinguishing the circumstances of the present appeal from those in Willis Ocholla. 21. In conclusion, counsel reiterated that the appeal lacked merit and urged the Court not to interfere with the judgment of the learned trial Magistrate delivered on 25th June 2024 in Ukwala ELC Case No. 62 of 2018. The Court was urged to dismiss the appeal with costs. Analysis And Determination 22. 23. I have examined and considered the record of the trial court; the memorandum of appeal; the pleadings; the evidence tendered before the subordinate court; the survey and Land Registrar's reports; and the parties' respective written submissions together with the authorities relied upon. In my view, the following are the issues that fall for determination in this appeal 1. Whether the dispute before the subordinate court was a boundary dispute or a dispute concerning ownership and trespass; 2. Whether the learned trial Magistrate had jurisdiction to hear and determine the suit within the meaning of sections 18 and 19 of the Land Registration Act; 3. Whether the Respondent proved ownership of UHOLO/MAGOYA/771 and established trespass and/or encroachment by the Appellant; 4. Whether the learned trial Magistrate properly evaluated and applied the evidence relating to the respective parcels of land, the survey reports and the Land Registrar's report; and 5. Who should bears the costs of the appeal. This is a rst appeal. The Court of Appeal in Peterson Ndung’u, Stephen Gichanga Gituro. N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani V Kenya Power & Lighting Company Ltd [ 2018] eKLR stated as follows regarding the duty of the rst appellate court: “ ………………..This being a rst appeal , we are reminded of our primary role as a rst appellate court namely to re-evaluate, re-assess and reanalyze the extracts on record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons why...............On a rst appeal from the High Court, the Court of Appeal should consider the evidence, evaluate itself and draw its own conclusions though it should always beware in mind it has neither seen nor heard the 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……....” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 4

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Also see Kenya Ports Authority Vs Modern Holdings Ltd (EA) Limited (2017) KECA 293 KLR. 24. The duty of an appellate court is further stipulated under Section 78 of the Civil Procedure Act which reads; “ Subject to such conditions and limitations as may be prescribed, an appellate court shall have power; (2,) (a) to determine a case nally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require the evidence to be taken; (e) to order a new trial. Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.” Whether the dispute before the subordinate court was a boundary dispute or a dispute concerning ownership and trespass; 25. I must state that the nature of a claim is derived from the pleadings. The nature of a dispute can never derive from the description it attaches in its submissions. The Court is enjoined to examine the pleadings and the reliefs sought. 26. The Respondent's case before the trial court as pleaded in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the plaint was, in substance, that he was the registered proprietor of UHOLO/MAGOYA/771, that the Appellant had entered upon that parcel, erected structures and deposited building materials thereon, and had thereby trespassed upon his property. The Respondent then sought, among other reliefs, a permanent injunction and eviction of the Appellant from parcel No. 771. 27. The Appellant, on the other hand, pleaded in paragraphs 4, 5, 6, 7, and 8 of the Defence dated 3/01/2017 that his occupation was on UHOLO/MAGOYA/451, which he claimed was registered in the names of his deceased relatives, and that the dispute arose because of an alleged uncertainty or alteration of the boundary between parcels 451 and 771. His Defence referred to the need for the County Surveyor to mark the boundaries and alleged that the Respondent had interfered with his development of parcel 451. 28. It is therefore correct, to an extent, for the Appellant to submit that the controversy had a boundary component. The evidence relating to parcels 451 and 771, the acreage of parcel 451, the Registry Index Map, the road of access and the survey report demonstrate that the location of the boundary between the parcels became relevant to the determination of the dispute. 29. However, the mere existence of a boundary component does not in my view convert the entire suit into a boundary reference under the provisions of sections 18 and 19 of the Land Registration Act. But what was the court ultimately called upon to determine? My review of the pleading is that the subordinate court was required to determine whether the Respondent owned parcel No. 771 and whether the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 5

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Appellant had unlawfully entered upon or occupied that parcel. Clearly this is a claim of ownership, trespass and entitlement to possession. Why do I say so? 30. A pure boundary dispute ordinarily asks the Registrar to ascertain and x the precise location of the common boundary between registered parcels. A trespass action, on the other hand, asks the Court to determine whether the defendant has unlawfully entered or remained upon land belonging to or lawfully possessed by the plainti and, where proved, to grant the appropriate relief. 31. I have read the Court of Appeal decision in Azzuri Limited v Pink Properties Limited [2018] KECA 392 (KLR). The Court learned judges dealt with a dispute involving allegations of trespass and encroachment between neighbouring registered proprietors. The Court emphasized that where the dispute is one concerning boundary in a general-boundary area, the statutory mechanism under the provisions of section 18 of the Land Registration Act must rst be followed. The Court noted that cadastral maps and led plans may indicate only approximate boundaries and that the Land Registrar has the statutory role in resolving such disputes. 32. The signicance of Azzuri case (Supra) to the present appeal, however, lies not merely in the proposition that a boundary dispute must rst go to the Land Registrar. It is also important to appreciate the factual stage at which that principle operates. In Azzuri, the boundary question remained unresolved and the court was confronted with an attempt to establish encroachment without the statutory boundary determination having rst been undertaken. The Court hence found the proceedings premature. 33. The position in the present appeal is dierent. The trial court did not simply rely upon a Registry Index Map and proceed to determine, from the map perse, where the boundary lay. The record shows that the trial court directed that the respective parcels be investigated and that reports from the survey and land registration authorities were placed before it. 34. I have perused the District Surveyor's report of 16th August 2017 and 5th April 2018 and which reveal that the same identied the neighbouring parcels to UHOLO/MAGOYA/771 and indicated that parcel 451 was to the west of parcel 771. Moreover the subsequent survey exercise found structures erected by the Appellant on parcel 771. 35. The subsequent Land Registrar's report of 25th April 2019 is more instructive. The Registrar stated that the parties had been taken to the ground in the presence of the relevant land and survey ocials and that the exercise was undertaken for purposes of addressing the relationship between parcels 771 and 451. The report concluded that the existing boundaries were the bona de boundaries reected in the land records and that the boundary between parcels 771 and 451 was a road of access. The Registrar further observed that there was consequently no boundary between the two parcels requiring determination and marking in the manner suggested. 36. The report further recorded the position of the Appellant himself concerning the alleged reduction of parcel 451 from approximately 0.6 hectares to 0.3 hectares and the alleged addition of the remaining acreage to parcel 771. Those allegations therefore did not remain completely uninvestigated; they formed part of the material considered in the survey exercise. 37. I therefore nd that although the dispute had a boundary aspect, it cannot properly be characterized, at the stage at which the trial court determined it, as an unresolved boundary dispute. Rather, the boundary question was an evidentiary question relevant to answering the ultimate question whether the Appellant's occupation and structures were situated upon parcel 771 or parcel 451. 38. Let me state that had the Land Registrar not undertaken the statutory exercise, and had the trial Court itself attempted to establish a general boundary merely from the Registry Index Map or oral https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 6

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testimony, the Appellant's objection founded on sections 18 and 19 would warrant a positive serious consideration by the court. The statutory land administration machinery was engaged, the relevant authorities visited the ground, the parties participated in the process, and a report was produced. The trial court thereafter considered the report together with the other evidence. 39. This court is indeed emboldened by the decision of the Court of Appeal in Estate Sonrisa Limited v Macharia & another [2026] KECA 39 (KLR) which illustrates the importance of this distinction. The learned judges emphasized that where an encroachment question remained dependent upon an outstanding boundary determination, the Land Registrar and Government Surveyor had rst to determine the precise position of the boundaries before the court could properly proceed to grant consequential relief. 40. In the instant case , however, the relevant statutory administrative exercise had already been undertaken. The question before the trial court was therefore no longer whether it should itself undertake the initial statutory boundary determination, but what legal consequence should follow from the evidence and the Registrar's ndings. 41. It is the nding of the court that the dispute was therefore not purely a boundary dispute. It was principally a claim for protection of registered ownership, possession and relief against alleged trespass, although the determination of the alleged trespass called for a consideration of the relationship between parcels 771 and 451. Whether the learned trial Magistrate had jurisdiction to hear and determine the suit within the meaning of sections 18 and 19 of the Land Registration Act; 42. Jurisdiction is the fountain from which the exercise of all judicial power ows, and without it, a court of law is bereft of the power to take even a single step. The locus classicus on this remains the decision of the Court of Appeal in the case of “Owners of Motor Vessel “Lilian S” – Versus - Caltex Oil (Kenya) Limited (1989) IKLR” dealt with jurisdiction of the court thus: “ Jurisdiction is everything. Without it, a court has no powers to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of the proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion it is without jurisdiction…………where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before Judgement is given”. “......it is settled that jurisdiction is the life blood of any adjudication because a court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a court or tribunal without requisite jurisdiction is a nullity dead on arrival and of no legal eect whatever that is why an issue of jurisdiction is granted and fundamental in adjudication and has to be dealt with rst and foremost......” 43. The Court of Appeal in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (unreported) in a decision rendered on 8th February, 2022 expressed itself on the doctrine of jurisdiction in general as follows: “ Jurisdiction is everything, it is what gives a court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Dened”, Volume 3 at Page 113 denes court jurisdiction as follows: By jurisdiction https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 7

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is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. ….. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given”. 44. 45. Article 162(2)(b) of the Constitution states that this Court shall have jurisdiction over disputes relating to the environment, the use and occupation of, and title to land. In addition, Section 13 of the Environment and Land Court Act expounds on the jurisdiction of this Court as follows: “ (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes— (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land.” Section 26 of the Environment and Land Court Act donates to the Magistrate’s Court the powers to hear and determine Environment and Land related matters: 26. Sitting of the Court (1) The Court shall ensure reasonable and equitable access to its services in all Counties. (2) A sitting of the Court may be held at such places and at such times, as the Court may deem necessary for the expedient and proper discharge of its functions under this Act. (3) The Chief Justice may, by notice in the Gazette, appoint certain magistrates to preside over cases involving environment and land matters of any area of the country. (4) Subject to Article 169(2) of the Constitution, the Magistrate appointed under subsection (3) shall have jurisdiction and power to handle — (a) disputes relating to oences dened in any Act of Parliament dealing with environment and land; and (b) matters of civil nature involving occupation, title to land, provided that the value of the subject matter does not exceed the pecuniary jurisdiction as set out in the Magistrates' Courts Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 8

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(5) Appeals on matters from the designated magistrate's courts shall lie with the Environment and Land Court. (Emphasis added) 46. The Appellant's argument is premised upon the provisions of sections 18 and 19 of the Land Registration Act, Cap. 300 and that the subordinate court could not entertain the dispute until the common boundary between parcels 771 and 451 had rst been determined by the Land Registrar. 47. Section 18 of the Land Registration Act regulates boundaries of registered land. Subsection (1) recognizes that, unless the register records that the boundaries have been xed, the cadastral map and led plan indicate the approximate boundaries and approximate situation of the parcel. Subsection (2) provides, in substance, that the court shall not entertain proceedings relating to a dispute as to boundaries of registered land unless the boundaries have rst been determined in accordance with the statutory procedure. 48. Section 19 addresses xed boundaries and provides for the Registrar, after giving aected persons an opportunity to be heard, to cause the precise position of boundaries to be dened by survey, le the necessary plan and make an appropriate entry in the register. 49. It is therefore clear that Parliament has assigned the primary responsibility for the determination of boundaries to the Land Registrar, assisted by the survey authorities where necessary. 50. The above position has been armed in several decisions of the superior courts. In Azzuri Limited v Pink Properties Limited [2018] KECA 392 (KLR), the Court of Appeal held that a court should not circumvent the statutory mechanism for determining general boundaries. The Court stressed that section 18(2) prevents the court from entertaining a boundary dispute before the statutory determination has taken place. Also see Willis Ocholla v Mary Ndege (supra) and other authorities cited by Counsel for the appellant to demonstrate that the statutory procedure is mandatory. This court agrees with the positions taken in the said decisions. 51. I will ask whether on the facts of this particular case, the statutory precondition had been satised. The record reveals that the trial court did not ignore the boundary question. A survey process was undertaken. The Land Registrar subsequently participated in a site visit together with the surveyor and other relevant ocials. The parties were present. The report addressed the relationship between parcels 771 and 451. 52. Most importantly, the Registrar's report did not leave the boundary question unresolved. It stated that the existing boundaries were the bona de boundaries and that the purported boundary between parcels 771 and 451 was in fact a road of access. That nding is pertinent in my view for the reason that it settled the very uncertainty upon which the Appellant's jurisdictional objection rests. 53. The Appellant essentially invites this Court to treat the case as though no Registrar's determination ever occurred. I must decline that invitation. The Court must determine the appeal on the evidentiary record actually before it. 54. Additionally the land Registrar's report was not a unilateral document prepared in the absence of the parties. The record shows that the site visit involved the relevant ocials and the parties themselves. The Appellant's own position regarding parcel 451 and its alleged reduction in acreage was noted in the said report. 55. This is therefore not a case where the trial Magistrate arrogated to himself the statutory function of the Land Registrar. Rather, the Magistrate had before it the result of the statutory land administration process and was required to determine the legal consequences of that evidence in the context of the Respondent's claim for injunction and eviction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 9

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56. The distinction was also emphasized by the Court of Appeal in Estate Sonrisa Limited v Macharia & another [2026] KECA 39 (KLR). The Court explained that where the boundary question remains outstanding, a court acts prematurely if it proceeds to demolition or eviction before the Registrar and Surveyor have ascertained the precise boundaries. In that case, the Court specically directed the Land Registrar and Government Surveyor to determine whether encroachment had occurred. 57. The present case is dierent because the report relied upon by the trial court had already addressed the relationship between the parcels. I therefore with respect reject the submission that the subordinate court acted without jurisdiction merely because parcels 771 and 451 were discussed in the proceedings. 58. The fact that a trespass claim may require the court to understand where a parcel begins and ends does not mean that every trespass claim between adjoining registered proprietors becomes an unresolved boundary dispute within the meaning of the provisions of section 18(2). 59. The statutory bar applies where the boundary itself remains the matter requiring determination. It does not prevent a court from adjudicating a trespass claim where the relevant land authorities have already undertaken the boundary exercise and the evidence before the court establishes the position suciently for the court to determine the rights of the parties. 60. I consequently nd that the learned trial Magistrate had jurisdiction to determine the suit. Whether the Respondent proved ownership of UHOLO/MAGOYA/771 and established trespass and/or encroachment by the Appellant; 61. In analyzing this issue I will be addressing grounds 1, 4 and 5 of the Appeal. The Respondent pleaded that he was the registered proprietor of UHOLO/MAGOYA/771. In support of that assertion, he produced the title deed and an ocial search relating to the property. The trial court pointed that this claim of ownership was not disputed and applying the provisions of section 26(1) of the Land Registration Act held that the plainti was deserving of the protection of these provisions. The trial court then proceeded to nd that there was no evidence adduced to prove the Plainti was a party to any fraud or illegalities or any changes on the map and in any event the same were not particularized. 62. My review of the defence led shows it did not raise any allegations of fraud or misrepresentation and I will agree with the trial court. The defendant only pleaded that he occupies and possesses parcel Uholo/ Magoya/451 is not registered in his name but that of some relatives. That he has faced obstacles from the Plainti who disputes the boundary. That the suit is premature and prays that the court issues an order compelling the boundaries be marked by County Surveyor. 63. It was incumbent upon the plainti to proof rstly that he was the owner of the parcel Uholo/ Magoya/771 and secondly that the defendant was a trespasser into the said land and to what extend the said encroachment has ended up excising his land which he was not able to utilize. I have seen the title produced by the plainti in respect of UHOLO/MAGOYA/771 and the attendant Certicate of Ocial search dated 26/9/2016 conrming that the plainti is the registered proprietor. 64. The provisions of Section 24(a) of the Land Registration Act provides that registration of a person as proprietor of land vests in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. Section 25 protects the rights of a registered proprietor, subject to the qualications provided by law. Section 26 provides that a certicate of title is prima facie evidence that the person named therein is the absolute and indefeasible owner, subject to the statutory grounds upon which title may be challenged as follows;26 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 10

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(1) The certicate of title issued by the registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certicate and the title of that proprietor shall not be subject to challenge, except – (a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) Where the certicate of title has been acquired illegally, unprocedurally, or through a corrupt scheme. 65. Therefore once the Respondent produced his title and ocial search, the evidential burden shifted to the Appellant to establish that the land belonged to him or his relatives. The Appellant did not produce a competing registered title to UHOLO/MAGOYA/771. Indeed, the Land Registrar's report provided substantial support for the Respondent's position concerning the physical relationship between parcels 771 and 451. 66. The report indicated that the existing boundaries were the bona de boundaries reected in the land records and that the Appellant was not one of the registered proprietors whose applications had resulted in the resurvey and map amendments. More importantly, the report stated that the Appellant had no land registered in his own name and that the road of access separated parcels 771 and 451. I do not understand that nding to mean that the Appellant was necessarily without any conceivable benecial or succession interest in land. The point is narrower: the Appellant did not establish a registered proprietary interest in parcel 771 capable of defeating the Respondent's registered title. 67. But what about the evidence of occupation by the Appellant which the Plainti was to proof. The survey exercise identied structures erected by the Appellant on parcel 771. The Respondent also produced photographs showing the structures. The trial Magistrate expressly found that the Appellant did not dispute that the structures depicted had been put up by him. For me that evidence was not displaced by any reliable evidence establishing that the structures were actually situated within parcel 451. The Appellant's assertion that he believed himself to be developing parcel 451 could not, without more, answer the objective evidence generated by the survey and land registration authorities. 68. Section 3(1) of the Trespass Act Cap 294 denes trespass as: “ Any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of an oence." 69. Section 152A of the Land Act 2016 states as follows: “ A person shall not unlawfully occupy Private, Community or Public Land." 70. Clerk & Lindsell on Torts, Sweet & Maxwell, 18th Edition, at page 923, denes trespass to land as follows: “ Trespass to land consists of any unjustiable intrusion by one person upon land in the possession of another." https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 11

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71. The authors of Salmond on the Law of Trespass Fourteenth Edition at page 67 dene trespass thus; “ The wrong of trespass to land (trespass quare clausum fregit) consists in the act of (1) entering upon land in the possession of the plainti, or (2) remaining upon such land, or (3) placing or projecting any material object upon it - in each case without lawful justication." 72. The authors of Wineld & Jolowicz on Tort, Sweet & Maxwell, 19th Edition, page 428, discussed as follows: “ Trespass to land, like the tort of trespass to goods, consists of interference with possession. Mere physical presence on the land does not necessarily amount to possession sucient to bring an action for trespass. It is not necessary that the claimant should have some lawful interest in the land. This is not to say that legal title is irrelevant, for where the facts leave it uncertain which of several competing claimants has possession, it is in him who can prove title that can prove he has the right to possession. More generally, in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land." 73. Trespass is about unlawful intrusion upon land in the possession or ownership of another. In Bajaber Limited v Ramadhan & another [2025] KEELC 5241 (KLR), the ELC observed that unlawful entry, remaining upon land, erecting structures, cultivating or otherwise occupying another's private land without lawful justication may constitute trespass. The court further considered the position of a registered proprietor and recognized that registration confers proprietary rights enabling the proprietor to protect the land against unlawful intrusion. 74. Arising from the foregoing, three key requirements must be proved by the person pleading trespass namely, ownership or possession of the property, absence of permission of the owner of the land or person in possession and continuing to remain therein. 75. In the present matter, the Respondent established that he was the registered proprietor of UHOLO/ MAGOYA/771; that the Appellant had entered upon and erected structures in the area identied through the survey evidence as parcel 771; and that the Appellant had not demonstrated a legal right to occupy that parcel. 76. In my view, the evidence was sucient to establish trespass on a balance of probabilities. The Appellant's reliance on parcel 451 does not provide a defence to trespass upon parcel 771. A person who has a right or claim over one parcel cannot, I must emphasize without lawful justication, occupy an adjoining parcel merely because he believes the latter forms part of the former. 77. This court nds therefore that the Respondent proved both his proprietary interest in parcel 771 and the Appellant's unlawful occupation/encroachment thereon. Whether the learned trial Magistrate properly evaluated and applied the evidence relating to the respective parcels of land, the survey reports and the Land Registrar's report; 78. This issue goes to the substratum of the Appellant's position that the trial court failed to appreciate his evidence and instead adopted the Respondent's case without properly interrogating the competing claims. 79. As already stated, this Court must independently re-evaluate the evidence. The fact that the trial court reached a particular conclusion does not relieve this Court of that obligation. At the same time, I’m https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 12

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also aware that I must not interfere unless the trial court misdirected itself, failed to take account of material evidence, or reached a conclusion unsupported by the evidence. 80. Having reconsidered the evidence, this court is unable to nd such a misdirection and I will demonstrate why shortly. The evidence concerning parcel 771 81. The Respondent's documentary evidence established the registration of UHOLO/MAGOYA/771 in his name. That evidence was not displaced by a competing title. The title deed and ocial search therefore constituted prima facie evidence of his proprietorship under section 26 of the Land Registration Act. Kenyan courts have consistently recognized that sections 24, 25 and 26 confer and protect the proprietary rights of a registered proprietor, subject to the statutory exceptions. See, for example, Rogito v Mogaka & another [2025] KEELC 2948 (KLR). The survey evidence 82. The District Surveyor's report of 16th August 2017 identied the neighbouring parcels to parcel 771. It did not support the Appellant's contention that parcel 450, for example, shared a common boundary with parcel 771; rather, it identied the parcels which bordered parcel 771 and assisted in placing the competing parcels within their geographical context. 83. The later survey exercise was more directly relevant. It was undertaken following applications involving the registered proprietors and the power of attorney relating to parcel 771. The exercise involved revisiting the ground and comparing the physical features with the registered survey information. The survey report found structures erected on parcel 771 by the Appellant. That nding was particularly signicant because the principal factual dispute was not simply whether the Appellant had structures on land somewhere in the locality. It was where those structures stood in relation to the registered parcels. 84. The Appellant's case required the court to accept that his occupation was on parcel 451 notwithstanding the survey evidence identifying his structures on parcel 771. The trial court was entitled to prefer the objective survey evidence over an assertion of occupation unsupported by an equivalent technical report. The Land Registrar's report 85. The Land Registrar's report was even more important because it brought together the cadastral, survey and registration aspects of the dispute. The report recorded that the relevant ocials visited the disputed site and that the parties were present. The purpose was to mark or clarify the relationship between parcels 771 and 451 pursuant to the court's directions. The report recorded that parcel 771 had been created from parcel 142 and that, following applications by registered proprietors, a resurvey was undertaken and amendments made to the map. 86. Most importantly, the Registrar stated that the existing boundaries were the bona de boundaries accepted by the registered proprietors and that the Appellant was not one of them. The Registrar further found that the purported boundary between parcels 771 and 451 was a road of access, which was motorable and not blocked. That conclusion substantially weakened the Appellant's argument that the physical occupation in question resulted from a mere uncertainty as to the boundary. If the road of access separates the parcels, then the Appellant could not successfully establish, without further evidence, that structures erected on the opposite side of that road were lawfully situated within parcel 451. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 13

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87. I therefore nd no error in the trial court's reliance upon the Registrar's report. The Appellant's acreage argument 88. I note from the submissions led in the trial court ,the Appellant placed considerable reliance on the contention that parcel 451 had originally measured approximately 0.6 hectares but was subsequently reduced to approximately 0.3 hectares, with the alleged balance being incorporated into parcel 771. This allegation indeed had the potential of aecting the root or extent of the registered titles. However, the diculty for the Appellant is twofold. Firstly, the evidence did not establish, with the degree of certainty required, that the Respondent had unlawfully acquired a portion of parcel 451. Secondly, the Appellant's submissions attempted to enlarge the controversy beyond the pleaded Defence by introducing arguments concerning alleged illegality, fraud, defective succession processes and irregular acquisition. 89. My review of the defence led shows it did not raise any allegations of fraud or misrepresentation and I will agree with the trial court. The defendant only pleaded that he occupies and possesses parcel Uholo/ Magoya/451 is not registered in his name but that of some relatives. That he has faced obstacles from the Plainti who disputes the boundary. That the suit is premature and prays that the court issues an order compelling the boundaries be marked by County Surveyor. 90. The law is settled that parties are bound by their pleadings. The Court of Appeal in Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR emphasized that parties are bound by their pleadings and that a court should not determine a case on a basis that is materially dierent from the case pleaded by the parties. A party is entitled to know the case it has to meet and to have the opportunity to adduce evidence specically directed at that case. 91. In the present matter, the Defence took the position that the Appellant occupied parcel 451 and sought intervention concerning survey and boundaries. It did not seek cancellation or rectication of the Respondent's title on grounds of fraud or illegal acquisition. 92. The Appellant could not therefore transform the character of the proceedings through submissions alone and invite the court to make a nal nding that the Respondent's title was fraudulent or illegally acquired without a properly pleaded and proved case. Whether the trial court ignored the Appellant's evidence 93. I have also considered the Appellant's contention that the trial Magistrate failed to consider his evidence. My review of the judgment demonstrates that the learned Magistrate considered the Appellant's contention that he occupied parcel 451, his assertion concerning his deceased relatives, the survey issue and the documentary evidence. In my considered view the Appellant essentially challenges the conclusion drawn from that evidence. A court does not fail to consider evidence merely because it ultimately rejects the interpretation urged by one party. The duty of the court is to consider material evidence and give reasons for the conclusion reached which the trial court did. 94. In this case, the trial court gave reasons for preferring the Respondent's title and the technical evidence concerning the location of the Appellant's structures. The conclusion reached was supported by the title documents, photographs, survey evidence and Land Registrar's report. 95. I therefore nd no basis upon which this court sitting in exercise of its appellate jurisdiction should interfere with the trial court's factual ndings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 14

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Whether the reliefs of injunction and eviction were justied 96. Having found that the Respondent was the registered proprietor and that the Appellant had unlawfully occupied or encroached upon the parcel, the consequential reliefs granted by the trial court were to me available to the Respondent. 97. Section 24 of the Land Registration Act vests the registered proprietor with the rights and privileges belonging to the land, while section 25 protects those rights. The right to exclude an unlawful trespasser is fundamental for proprietorship. 98. It is now established that a registered proprietor is entitled to protect the land from unauthorized occupation and construction. In Bajaber Limited v Ramadhan & another [2025] KEELC 5241 (KLR), the court considered unauthorized entry, occupation and construction upon registered land and granted injunctive and consequential relief against the trespassers. 99. In the present case, the permanent injunction was not granted merely because the Respondent held a title deed. It was a consequence of the additional nding that the Appellant had entered upon and constructed on the Respondent's land without establishing any lawful right to do so. Similarly, the eviction order was a necessary consequence of the nding that the Appellant was in occupation of land to which he had not established any proprietary or other lawful right. 100. I therefore nd that the learned magistrate did not err. Who should bear the costs of the appeal. 101. It is now well established that the award of costs is the discretion of the court. This principle is codied under the provision of Section 27(1) of the Civil Procedure Act, Cap. 21, of the Laws of Kenya which provides: “ Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 102. In the present case, the Respondent has successfully defended the judgment of the subordinate court. The Respondent is therefore entitled to the costs of the appeal. 103. The upshot of the foregoing is that none of the grounds of appeal has merit and accordingly are dismissed in entirety. The judgment and decree of the subordinate court in Ukwala Magistrate's Court Environment and Land Case No. 62 of 2018 (formerly Kisumu ELC No. 269 of 2016) delivered on 25 June 2024 is hereby upheld. 104. The Appellant shall bear the costs of this appeal. DELIVERED AND DATED THIS 7TH DAY OF OCTOBER 2026 HON. LADY JUSTICE A.E. DENA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 15

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7/10/2026 Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of: N/A for the Appellant Mr. Ariho for Respondent Court Assistant: Victor Bwire https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6270/eng@2026-10-07 16

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