M’Atheru v M’Mukaria (Environment and Land Appeal E046 of 2026) [2026] KEELC 5219 (KLR) (4 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL NO. E046 OF 2026** ALBIONO MUNJURI M’ATHERU …………………………….APPELLANT ***VERSUS*** JOEL NTONJA M’MUKARIA ………………………………..RESPONDENT *[Being an Appeal against the whole judgment delivered on 08th April, 2026 by Honourable Dominic Macharia [SRM] in the ELC Court Of Kenya Maua vide ELC Court of Kenya at Maua Vide ELC Case Number 137 of 2019]* **JUDGMENT** 1. The Respondent herein [who was the plaintiff in the lower court] filed the plaint dated the 29.07.2019 and wherein same sought reliefs pertaining to and concerning ownership of LR. No. Nyambene/Kirindene A/3245 [hereinafter referred to as the suit property]. 1. The Respondent posited thus: The suit property belongs to and is registered in his name; he was issued with a certificate of title on the 01.03.2004; the certificate of title shows the acreage of the suit property; the Appellant herein invaded the suit property on the 24.07.2019; the Appellant demolished the timber house that was standing on the suit property; the Appellant also fenced the suit property; the Appellant has deprived him of usage of suit property; the actions of the Appellant constitute trespass; and that the Appellant ought to be evicted from the suit property. 2. The Appellant duly entered appearance and filed a statement of defence and counter claim. The statement of defence and counter claim is dated the 28.08.2019. The Appellant denied the assertions by/on behalf of the Respondent s. In addition, the Appellant posited thus: The suit property was illegally excised from LR No. Nyambene/Kirindine A/1; the acreage of the suit property was exaggerated; the Respondent was only entitled to 22 feet by 80 feet; the Respondent colluded with the Land adjudication and settlement officers and the Land Registrar to increase the acreage of the suit property; the Respondent also colluded with the land registry to change/shift the ground location of the suit property; and the disputed ground falls within LR No. Nyambene/Kirindine A/1; and that the Respondent has no lawful right to the disputed ground. 3. Additionally, the Appellant contended thus: The Respondent was a beneficiary of his [appellant’s] gift; the gift was only in respect of a portion measuring 22 feet by 80 feet; the Respondent resulted to fraud in enhancing the size of the land that was gifted; and the Appellant is now desirous to retake the entire portion of land that was gifted. 4. Furthermore, the Appellant ventured forward to particularized fraud as against the Respondent and the land Registrar – Meru North. In particular, the Appellant contended that the said officer had subdivided LR No. Nyambene/Kirindine A/1, albeit without the consent or authority of the appellant. To this end, the Appellant sought various reliefs including: Declaration that the subdivision of LR No. Nyambene/Kirindine A/1, was unlawful; permanent injunction; general damages; and costs. 5. The suit in the lower court was heard and disposed of vide judgment delivered on the 08.04.2026, wherein the learned trial magistrate [Hon. Dominic Machaira – SRM] found and held that the Respondent had proved his case to the requisite standard. On the contrary, the learned trial magistrate found that the Appellant had not proved/established the plea of fraud to the requisite standard. 6. In the end, the learned trial magistrate entered judgment in favour of the Respondent, while on the other hand dismissing the appellant’s counter claim. Notably, the learned trial magistrate declared that the Respondent is the lawful owner of LR. No. Nyambene/Kirindine A/3245; and decreed eviction of the appellant. 7. Dissatisfied, the Appellant has now approached this court vide memorandum of appeal dated the 04.05.2026. The Appellant has raised numerous and diverse grounds, most of which are repetitive. 8. The grounds are: 9. ***THAT the trial Court erred in Law and facts by completely failing to evaluate, mention, or consider the Appellant's ownership documents and oral testimony tendered by the Appellant's which clearly establish the Appellant's title over the suit property, thereby occasioning a miscarriage of justice.*** 10. ***THAT the trial court erred in law and facts by ignoring the Appellant's original Title deed which showed the intact acreage and boundaries, and instead relied on a contested title produced by the Respondent which were acquired illegally and without the knowledge of the Appellant.*** 11. ***THAT the trail court erred in law and facts in failing to appreciate the Appellant's evidence that the Respondent had unilaterally increased the measurements of the gift from 22ftx80ft to the current huge measurements on the title and changed ground position without the Appellant's knowledge or consent.*** 12. ***THAT the trial court erred in law and facts by basing its judgement on the Respondent 's shallow and in consisted evidence while dismissing the Appellant's substantial evidence regarding the illegal transfer of the alleged land parcel NYAMBENE/KIRINDINE"A/3245 which resulted from NYAMBENE/KIRINDINE "A .. /1 belonging to the Appellant herein.*** 13. ***THAT the trial court erred in law and facts in failing to visit the land in question to verify the actual ground position versus the maps, which would have revealed the Respondent 's illegal encroachment and shift in boundaries and blamed the Appellant who was the Defendant in the trial court for failing to produce official land adjudication office records. maps when the Appellant produced the original title deed and/or ownership*** 14. ***THAT the trial court erred in law and facts by failing to address the Appellant's contention that the transfer of the land was done illegally and without the Appellant's knowledge. which is a fundamental flaw in the Respondent 's claim of ownership*** 15. ***THAT the trial court erred in law and facts by failing to provide reasons in the judgement for dismissing the Appellant's evidence, thereby resulting in a miscarriage of justice when the trial court failed to mentioned any ownership documents that were relied by the Appellant's in the suit compared the shallow evidence relied by the Respondent.*** 16. ***THAT the trial court erred in law and facts by completely overlooking the evidence produced by the Appellant, specifically as evidenced on the D-Exhibit 1-12 as outlined in the Appellant's List of documents in the trial court.*** 17. ***THAT the judgement was against the weight of evidence regarding the sanctity of the original title held by the Appellant*** 18. ***THAT the trial court erred in law and facts in failing to find that the Respondent changed the position of the land gifted to him on the ground without the Appellant's knowledge or consent.*** 19. ***THAT the trial court erred in law and facts by failing to address the illegal alteration of land measurements from 22ftx80ft to the larger size as opposed by the Appellant*** 20. ***THAT the trail judgement is silent on the Appellant's evidence and documents which are a fundamental error of Law.*** 21. ***THAT the trial court displayed open bias and delivered a harsh judgement that did not reflect the weight of the evidence presented by the Appellant during the trial.*** 22. ***THAT the trial court erred in law and facts by upholding a transfer of land that was conducted illegally, fraudulently, and without the participation or knowledge of the registered owner of land parcel number NYAMBENE/KIRINDINE A /1 who is the Appellant herein***. 23. The appeal came up for directions on the 07.07.2026, whereupon the learned counsel for the Appellant intimated to the court that the same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. To this end, counsel sought directions as pertains to the disposal of the appeal. Moreover, learned counsel proposed to have the appeal canvassed by way of written submissions. 24. With the concurrence of the learned counsel for the Respondent, the court proceeded to and issued directions. The directions were: The appeal shall be canvassed by way of written submissions; the Appellant shall file and serve the written submissions within 10 days from the date of the directions; the Respondent shall file and serve written submissions within 10 days from the date of service; and the Appellant shall be at liberty to file and serve rejoinder submissions [if any] within 2 days from the date of service. 25. The Appellant filed written submissions dated the 17.07.2026 and wherein the Appellant has canvassed five [5] key issues. The issues are: The learned trial magistrate failed to properly evaluate and consider the evidence tendered by the appellant; the learned trial magistrate erred in law in upholding the Respondent ’s title to the suit property despite the fact that the title exceeded the portion of land that had been gifted; the learned trial magistrate erred in failing to visit the locus in quo for purposes of verifying the ground location; the learned trial magistrate misapprehended and misapplied the incidence of burden and standard of proof; and the judgment of the learned trial magistrate is contrary/perverse to the evidence on record. 26. Regarding the first issue, learned counsel for the Appellant has submitted that the Appellant tendered and adduced before the trial court credible evidence including, original title in respect of LR No. Nyambene/Kirindene A/1; copy of the letter dated the 24.07.1996 showing the portion of the land which was gifted; and copies of sketch maps/demarcation booklets, all of which it has been contended, demonstrated that the Appellant had only agreed to gift the Respondent a portion of land measuring 22 feet by 80 feet,out of his Land. 27. Be that as it may, it has been submitted that the learned trial magistrate disregarded the entirety of the evidence on record, and thus same arrived at a conclusion that is contrary to the evidence on record. In addition, it has been submitted that the learned trial magistrate also proceeded to and accepted the evidence of the Respondent, albeit without subjecting same to due interrogation. In this regard, it has been contended that the learned trial magistrate therefore failed to discern the defects and inconsistencies, in the evidence of the Respondent. 28. Secondly, it has been submitted that the Appellant tendered the evidence to demonstrate that same [appellant] only gifted to the Respondent a portion of the land measuring 22 Feet by 80 Feet, at a specific location near the appellant’s coffee plantation. However, it has been contended that the Appellant caused the portion of land to be expanded and enhanced to more than what was gifted. 29. It has been submitted that the Respondent did not justify the basis upon which same procured and obtained a portion of land that exceeded what had been gifted. To this end, learned counsel has submitted that the registration of a portion of land, beyond what was gifted cannot be allowed to stand. In any event, it has been contended that the learned trial magistrate failed to address the fundamental inconsistencies touching on and concerning the acreage of the suit property. 30. The next issue that has been argued by learned counsel for the Appellant touches and concerns the failure by the learned trial magistrate to visit the locus in quo and to discern the disputed ground of the suit property. In particular, it has been submitted that the appellant’s central complaint, related to the shifting of the ground that had been gifted to the Respondent and the enlargement of the acreage. 31. Despite the foregoing complaints, it has been submitted that the learned trial magistrate failed to visit the locus in quo and thus deprived himself, of the opportunity to verify the facts on the ground. Moreover, it has been submitted that a visitation to the locus in quo, would have enabled the learned trial magistrate to appreciate the physical realities, on the ground. 32. Additionally, it has been submitted that other than the failure by the learned trial magistrate to visit the locus in quo, the learned trial magistrate also criticized the Appellant for not producing the official adjudication maps, to show that the suit property had exceeded the lawful acreage. Besides, counsel has also contended that the learned trial magistrate also disregarded the documents [exhibits] that were tendered by the appellant. To this end, it has been submitted that the learned trial magistrate adopted a skewed and unbalanced approach, in evaluating the evidence on record. 33. The fourth issue that has been submitted upon touches on the shifting of the burden of proof. It has been submitted that the learned trial magistrate erred in law in shifting the burden of proof to Appellant to prove the assertion that the Respondent had accrued a portion of land, bigger than what was gifted, yet it was the Respondent who had asserted ownership to the suit property. Moreover, it has been submitted that it was incumbent upon the Respondent to prove how he acquired a portion of land bigger than the portion that was consented to by the appellant. 1. Learned counsel for the Appellant has also submitted that the learned trial magistrate also shifted the burden of proof to the appellant, to show that the entries contained in the official records that were tendered, were fraudulent. In any event, the learned trial magistrate has been accused of relying on the presumption of regularity attaching to the official records, while ignoring the evidence that was tendered. 2. The last issue that has been canvassed by the learned counsel for the Appellant touches on the manner the learned trial magistrate evaluated the evidence. It has been repeated that the learned trial magistrate did not interrogate the evidence on record, in an objective manner. Counsel has posited that the conclusions, which were arrived at by the learned trial magistrate, are perverse to the evidence. 3. Flowing from the foregoing, the learned counsel for the Appellant has invited the court to find and hold that the appeal is meritorious. The court has been implored to allow the appeal; set aside the impugned judgment; dismiss the Respondent ’s suit; and to enter judgment in terms of the counter claim. 4. The Respondent filed written submissions dated the 29.07.2026 and wherein the Respondent has highlighted three [3] key issues. The issues are: Whether the Respondent proved his claim to the requisite standard; whether the Appellant proved the plea of fraud; and whether the learned trial magistrate erred in failing to visit the locus in quo or otherwise. 5. Regarding the first issue, learned counsel for the Respondent has submitted that the Respondent tendered and produced before the lower court, evidence demonstrating that the suit property was lawfully adjudicated and thereafter registered in his name. In addition, it has been submitted that the Respondent also tendered a copy of the map, showing the ground location of the suit property and in particular, that the suit property was distinct from the appellant’s parcel of land. 6. It was the further submission by learned counsel for the Respondent that the Respondent, also tendered the evidence to demonstrate that same had erected a timber house on the suit property, but which timber house was demolished by the appellant. In short, it was submitted that the Respondent tendered evidence to demonstrate that same was indeed the lawful proprietor of the suit property. 7. The next issue touches on whether the Appellant proved that the suit property had been excised or subdivided from LR No. Nyambene/Kirindine A/1, belonging to the appellant. It was submitted that though the Appellant had contended that the suit property was excised from his land, no evidence was tendered to that effect. In any event, it has been submitted that the suit property is separate and distinct from the appellant’s land. Besides, counsel added that the certificate[s] of titles of the suit property and that of the appellant’s land, were issued on the same date. 1. In a nutshell, learned counsel for the Respondent has submitted that the Appellant did not prove the assertions contained at the foot of the counter claim. For good measure, it has been submitted that the burden of proving fraud, rested on the Appellant and not otherwise. 2. To buttress the submissions that the Appellant was enjoined to prove fraud to the requisite standard, learned counsel for the Respondent has cited various decisions. The decisions are: **Njuguna versus Mugo and 4 others [2026] KECA 647; Philip Okoth versus Odongo and 4 others [2025] KECA 1622 and Akoth [sued as the Philip Okoth] versus Odongo [2025] KECA**, respectively. 3. The last issue that has been submitted upon by learned counsel for the Respondent touches on and concerns visitation to the locus in quo. It has been contended that the learned trial magistrate was not enjoined to visit the locus in quo and to gather evidence for the appellant. On the contrary, it has been submitted that the Appellant bore the responsibility of adducing credible evidence before the trial court. In addition, it has been submitted that no application for visitation to the locus in quo was made to the court and hence the submission by the learned counsel for the appellant, are based on misapprehension of the law. 1. Flowing from the foregoing, learned counsel for the Respondent has submitted that the appeal is devoid of merits. On the contrary, it has been submitted that the judgment of the trial magistrate, took into account the evidence on record and properly applied the law. The court has been implored to dismiss the appeal; affirm the judgment of the lower court; and to award costs to the Respondent s. 2. Having reviewed the record of appeal; the grounds of appeal, which are prolix in nature; the impugned judgment; and upon consideration of the written submissions by and on behalf of the respective parties, three [3] issues emerge for determination. The issues are: Whether the Respondent duly proved /established his claim to the requisite standard; Whether the Appellant proved the plea of fraud or otherwise; and Whether the acts complained of, constituted trespass or otherwise. 3. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding and conclusion arrived at by the trial magistrate accord with the evidence on record and the legal principles. 4. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 5. Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked at will. **Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya,** regulates its exercise. 6. The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR).** The Court of Appeal expounded on the scope of the jurisdiction. 7. The court stated thus: *“46. We also wish to be guided by the reasoning of this court in the case of* ***Mwana Sokoni versus Kenya Business Limited (1985) KLR*** *931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.”* 1. Recently, the Court of Appeal revisited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court highlighted the principle in the following manner: *“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the*[*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appealare limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of* **County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) *and*****County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) –** [paragraphs 56 and 57 thereof]” 1. Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I beg to start with the issue, whether the Respondent herein dully proved his claim to the requisite standard. To begin with, it suffices to reiterate that the Respondent is the one who approached the lower court, contending inter alia: The suit property lawfully belongs to him; and that the Appellant and unlawfully invaded the suit property and demolished the structures standing thereon. 2. Having approached the lower court, with the foregoing assertions, the burden of proof lay on the shoulder of the Respondent. This position was reaffirmed in the case of the **General & another v Hussein & 3 others [2025] KECA 1022 (KLR)** where the court of appeal stated thus: ***“The Law of Evidence, in all its complex glory, naturally revolves around two cardinal things: facts and proof. It is these two that combine to form evidence, which the court may or may not accept as showing the merit or otherwise of a party’s case. Some facts are however more important than others and it is not just expected but demanded that these facts be proved by the party seeking to rely on them. Section 3 (2) & (3) of the***[***Evidence Act***](https://kenyalaw.org/akn/ke/act/1963/46)***provides as follows:2.A fact is proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it exists.3.A fact is disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist.*** ***40.Section 107 (1) of the***[***Evidence Act***](https://kenyalaw.org/akn/ke/act/1963/46)***provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Sub-Section (2) of the said provision provides that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In terms of Section 108 of the***[***Evidence Act***](https://kenyalaw.org/akn/ke/act/1963/46)***, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side”*** 1. Did the Respondent prove his case? The Respondent tendered evidence and demonstrated that the suit property was birthed out of the adjudication and demarcation process. In addition, the Respondent produced before the court a copy of the map showing the ground location of the suit property vis a viz the parcel of land belonging to and registered in the name of the appellant. Besides, the Appellant also tendered a copy of the certificate of the official such which showed that the suit property was first registered on the 01.03.2004. Moreover, the search shows that the suit property is not a subdivision of the Appellant parcel of land. 2. The evidence that was tendered by the Respondent, was neither impeached nor controverted. Suffice it to underscore that even though the Appellant had posited that the land was subdivided out of his [appellant’s] land, no evidence was tendered to that effect. 3. Again, the Appellant had posited that he is the one who gifted a portion of land measuring 22 feet by 80 feet to the Respondent and thereafter propagated a document namely; a letter dated 24.07.1996, however, the Appellant did not prove that the letter in question, has any nexus or correlations with the suit property. In any event, the said letter does not even show that the same was ever received by the demarcation office; or acted upon. 4. It is common ground that if the said letter was ever received by the demarcation office [which is not the case], the recipient would have affixed the requisite stamp to acknowledge receipt. Besides, there is no gainsaying that the adjudication department would have acted upon the letter by generating an objection, to facilitate the subdivision of the parent land. 5. No such evidence was ever tendered by the appellant. Moreover, there is no evidence that was tendered to show that the suit property came out of or arose from the sub division of the appellant’s land. The bottom line is to the effect that the evidence which was tendered by the Respondent, speaking to ownership of the suit property, was not rebutted. 6. To my mind, the Respondent tendered credible evidence to confirm that the suit property lawfully belonged to him. Moreover, it suffices to state that the learned trial magistrate indeed evaluated the evidence by the Respondent and came to the conclusion that same was credible and believable. I have no basis to depart from the findings and conclusions by the learned trial magistrate. The conclusion[s] accord with the evidence on record. 7. Moving onto the next issue, namely; whether the Appellant proved the plea of fraud. It is common ground that fraud must not only be pleaded and particularized, but same must be proven to the intermediate standard. This is the standard that sits between the balance of the probabilities and beyond reasonable doubt, the latter which applies to criminal matters. 8. The law as pertains to proving fraud is now well settled. In the case of **Kiarie & 2 others v Magera [2018] KECA 467 (KLR**), the Court of Appeal reiterated the established position in the following terms: ***“The law is clear and we take it from the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” [Emphasis added].The same procedure goes for allegations of misrepresentation and illegality. See Order 2 Rule 4 of the Civil Procedure Rules.*** ***26.As regards the standard of proof, this Court in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR expressed itself as follows;-“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases...”...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts."*** 1. Did the Appellant prove fraud? The Appellant raised several assertions. Firstly, the Appellant asserted that same is the one who gifted the Respondent with a portion of land measuring 22 feet by 80 feet. In addition, the Appellant posited that the gifted portion, was to be curved out of his parcel of land. However, the Appellant did not demonstrate any nexus between the suit property and his parcel of land. 2. Secondly, the Appellant had also contended that though he gifted the Respondent, the designated portion of land, the Respondent colluded with the land adjudication and settlement office; and the land registrar, to increase the acreage and to shift the ground location of the suit property. Yet again, no evidence was tendered. 3. Thirdly, the Appellant posited that the suit property was illegally and unlawfully curved out of LR No.Nyambene /Kirindine A /1, but the certificate of official search, which was tendered by the Respondent, showed that the suit property and the appellant’s land, were all registered on the 01.03.2004. The two parcels of land, could not have been registered on the same date, if the suit property, was indeed, a sub-division of the appellants’ land. 4. Further and at any rate, it is not lost on me that the Appellant did not tender any evidence to demonstrate that his parcel of land, namely; Nyambene/Kirindine A/1, was ever subdivided. In any event, there is no gainsaying that if [and I say if], the suit property was curved out of or subdivided from the Appellant’s parcel of land, then the two parcels could not have been registered on the same date. Surely, it was incumbent upon the Appellant to place such evidence before the trial court. For good measure, the trial court could only rely on the credible evidence and not bare assertions. 1. Additionally, the Appellant had contended that the Respondent had colluded with the land adjudication and settlement officer; and the Land Registrar to shift the ground location of the suit property to somewhere else, other than its original place. The connotation, if I hear the appellant correctly, is to the effect that the ground position of the suit property moved. Such assertions, if at all, could only have been proven by production of the authenticated Registry Index Maps, which would show the original placement of [sic] the suit property and the subsequent placement, if at all. 2. In the absence of such kind of evidence, the assertions by the Appellant, remain mere assertions. Same are incapable of vindicating the claims by/on behalf of the appellant. [See the holding of the Court of Appeal in the case of **CMC Aviation Limited versus Crusair Limited** **[1978] eKLR**]. 3. Sadly, the Appellant did not tender any evidence to vindicate the assertions, pertaining to fraud. I repeat that the Appellant ought to have placed before the trial court evidence. None was tendered. In any event, the appellant’s claims are loud on assertions and allegations, but silent on proof. 4. I am afraid that the Appellant did not prove his case. The learned trial magistrate was correct in his finding that the Appellant had failed to dislodge/rebut the presumptions of regularity. I agree with the learned trial magistrate, pertaining to his reliance on the presumptions of regularity of official records, unless same is rebutted. 5. In the case of **Chief Land Registrar & 5 others v Koech & 3 others [2018] KECA 27 (KLR),** the Court of Appeal illuminated the presumption of regularity of official records in the following manner: ***“There is a presumption that all acts done by a public official has lawfully been done and that all procedures have been duly followed. The onus is on the 1st and 4th Respondent s to prove otherwise. They have failed to do this. A bare allegation that a lawful procedure was not followed is not proof of the allegation”*** 1. My answer to issue number two is that the Appellant did not prove the assertions of fraud. 2. Turning to the question of trespass, the Appellant herein conceded that he indeed entered upon and took possession of the suit property. In fact, the Appellant posits that he is the one who has developed the suit land. The evidence by the Appellant both while testifying in chief and during cross examination, leaves no doubt, that the Appellant has indeed trespassed on to the suit property. In fact, the Appellant contended that he was reclaiming the suit property because he considered same to be his. Quite clearly, the learned trial magistrate was right in finding and holding that trespass was established /proven. 3. What constitutes trespass was illuminated in the case of **Doshi v Chemutut & 7 others [2025] KECA 776 (KLR).** The court of appeal stated thus: ***“Trespass, as stated by this Court in the case of Charles Ogejo Ochieng v Geoffrey Okumu [1995] KECA 169 (KLR), is an injury to a possessory right, and therefore the proper plaintiff in an action of trespass to land is the person who has title to it, or a person who is deemed to have been in possession at the time of the trespass. As for the ingredients of trespass, the Court in William Kamunge Gakui v Eustace Gitonga Gakui (Civil Appeal 16 of 2013) [2014] KECA 39 (KLR) stated that trespass is a violation of the right to possession, and that a plaintiff must prove that he has the right to immediate and exclusive possession of the land. Justice Chemutut did not name Mr. Doshi as a defendant in the suit”*** **Conclusion:** 1. The Appellant had contended that learned trial magistrate misapprehended and misappreciated the totality of the evidence on record. However, the Appellant has failed to demonstrate which aspect of the evidence [if any] was misapprehended. On the contrary, the judgment of the trial court has duly taken into account and appreciated every bit of the evidence. 2. It is crystal clear that the Appellant did not prove his case. In fact, the Appellant acknowledges as much, when he accuses the trial court of not going into the locus in quo, ostensibly, to help him [appellant] to gather evidence. Sadly, it is never the business of the court to assist parties, prove their claims. [See the holding of the Court of Appeal in the case of **Stanley Mombo Amuti v Kenya Anti-Corruption Commission [2019] KECA 783 (KLR) – Paragraphs 82 and 83 thereof].** 1. *In a nutshell*, it is my finding and holding that the Appellant has not established any error or infraction, in the judgment of the learned trial magistrate. Suffice it to state that the judgment is well reasoned. It deserves affirmation. 2. Without belaboring the point, I hereby affirm the judgment. **Final orders:** 61.Flowing from the foregoing, the final orders that commend themselves to the court are: 1. ***The Appeal be and is hereby Dismissed.*** 2. ***The Judgment of the learned trial magistrate dated the 08.04.2026 and the consequential decree arising therefrom, be and are hereby affirmed.*** 3. ***Costs of the appeal be and are hereby awarded to the Respondent.*** 4. ***The cost in terms of clause [iii] shall be agreed upon and in default be taxed in the conventional manner.*** 5. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 04TH DAY OF AUGUST, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo Ms. Githinji for the Appellant Mr. Nkunja Kaberia for the Respondent