https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4482

Moses v Odiwuor (Environment and Land Appeal E019 of 2025) [2026] KEELC 4482 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4482 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Appeal E019 of 2025 FO Nyagaka, J July 9, 2026 Between Chandoh Oakley Moses Appellant and Beningno Odiwuor Respondent (Being an Appeal from the Judgement and decree of Hon. N. Wairimu SPM in Migori CMCELC No. E001 of 2021 delivered on the 15th of May 202) Judgment 1.By way of a Plaint dated 11th May 2017, the Respondent sought the following orders in the trial court.a.A declaration that the Plaintiff is the registered and lawful owner of LR. No. Suna West/ Wasweta 11/3012, the suit property.b.An order eviction be issued against the Defendant herein, his servants and/or agents and anyone claiming in his name from the suit property herein.c.A permanent injunction restraining the Defendant either by himself, agents, servants and/or anyone claiming under the Defendant from entering, re-entering, trespassing onto, cultivating, building structures, alienating, selling, leasing, interfering with the suit property herein or any portion of the same.d.General Damages for Trespass.e.Interest on (d) above at court rates.f.Costs of the suit and any other relief the Honourable Court may deem fit and expedient to grant. 2.The Appellant, then the Plaintiff, pleaded that on or about the 5th day of October 2012, the Appellant entered into a binding sale agreement with one Simion Odhiambo Kigocha, now Deceased, and then the registered owner of property LR No. Suna West/ Wasweta 11/1875 measuring approximately 1.23 Ha for a portion of land measuring approximately 0.33 Ha. He produced a copy of the sale Agreement produced as Plaintiff Exhibit 1. He pleaded that the vendor executed the necessary documents and transferred the said portion to his name and consequently, he became the registered owner of the portion known as LR No. Suna West/ Wasweta, II/3012. 3.He pleaded that sometime in 2013/2014, the defendant trespassed on the suit land and commenced to build structures and cultivate the land without his consent. This alleged trespass was the premise of the Appellants’ case. 4.The Respondent, then the defendant, entered Appearance and filed a Defence dated 29th June 2017. In it he averred that he resided on the parcel known as No. Suna West/ Wasweta II/ 3358 of which he was the sole proprietor of the indefeasible title thereto and the parcel did not relate to the suit land in any way. He denied all the allegations in the Plaint and urged the court to dismiss the suit. 5.The matter then went to full hearing. The Appellant called 3 witnesses whereas the Respondent called two. Upon considering their testimonies and the evidence tendered in court, the trial court dismissed the Appellants’ case with costs. 6.Being dissatisfied with this decision the Appellant instituted the present appeal vide a Memorandum of Appeal dated 12th June 2024 premised on the following grounds;1.The Learned Trial Magistrate erred in law and fact by making a finding that the Appellant had backdated his documents whereas there was no evidence led towards the same.2.The Learned Trial Magistrate misdirected her mind by failing to appreciate that since the Appellant was the first to purchase the suit property as evidenced in the proceedings and supervise documents and the Title Deed. He is the one who should have retained possession of his entire property and the Respondent whose title came after the Appellant’s be evicted.3.The Learned Trial Magistrate failed to appreciate that since the Respondent herein was the one who had stretched his property into the Appellant’s Land/property then the Appellant had the legal rights to evict the Respondent from the suit property herein.4.The Learned Trial Magistrate erred in law and fact by making a finding that the Appellant/Plaintiff’s suit fails while at the same time directing that the Appellant herein be compensated for the piece of land he lost to the Defendant.5.The Learned Trial Magistrate erred in law and fact by making an ambiguous order for compensation of the Plaintiff/Appellant, without giving specific time for compensation hence leaving the Appellant at the mercies of the Respondent and administrators referred to therein.6.The Learned Trial Magistrate erred in law and fact by making a finding that the Respondent had proved his case whereas the Sale Agreement relied on was faulty and he didn’t even table evidence of Land Control Board Consent signed by the purported seller.7.The Learned Trial Magistrate misdirected her mind by overlooking DW1 and DW2 testimonies that clearly stated that the deceased Land owner, Simion Odhiambo Kigocha did not show the Defendant the portion of Land nor signed the Sale Agreement, making the Respondent’s transactions to be faulty and questionable.8.The Learned Trial Magistrate erred in law and fact in failing to appreciate that Simion Odhiambo Kigocha-deceased owner of property No. Suna West/ Wasweta 11/1875 was the one who sold, signed agreement, subdivided and transferred the latter to the Appellant herein and not vice versa, therefore the reasoning that the Appellant/Plaintiff transferred land to himself before completing payments was not proper and should not even arise.9.By blaming the Appellant for having transferred the suit property to himself before completing payment, the Learned Magistrate erred in law and fact by failing to appreciate that it is the vendor who applied to the Land Control Board for consent to subdivide and transfer the suit property and not the Purchaser/Appellant and since it was the Vendor who occasioned the subdivision and transfer, the Purchaser can be blamed for Vendor’s actions.10.By blaming the Purchaser for transfer before completing payment, the Learned Trial Magistrate vacated her role as an independent adjudicator and became the Complainant on behalf of the Vendor who never complained of the same.11.The Learned Trial Magistrate erred in law and fact by failing to appreciate the fact that the Surveyor testified in court that since the positioning of the Defendant/Respondent’s land coincidentally overlaps on the Appellant’s parcel therefore the Respondent should hand over the extra land and instead chose to go for compensation from a third party.12.The Learned Trial Magistrate misdirected her mind by ordering the Appellant to pay costs whereas she declined to evict the Respondent in the interest of peace while feeling it would be unfair to evict the Respondent.13.Having made a finding that the Respondent indeed had occupied and built his house on the Appellant’s Land and the Law being blind sword, it mattered not what developments the Respondent had made inside the Appellant’s property and ought to have evicted the Respondent to protect the Appellant’s rights and the Learned Trial Magistrate made a fatal mistake by not ordering eviction of the Respondent.14.The Learned Trial Magistrate erred in law and fact by refusing to evict the Respondent so as to protect the Appellant’s proprietary rights after finding that the Appellant was the owner of property No No. Suna West/ Wasweta II/3012 and the Respondent’s property was inside the Appellants’ property. 7.The parties prosecuted the appeal by way of written submissions. The appellant filed submissions on 27th January 2026 whereas the Respondents filed submissions on 16th February 2026. Appellants’ Submissions 8.Learned Counsel for the Appellant abridged the facts of the case and identified the issues for determination, and proceeded to submit on the same. Counsel analysed the trial courts’ decision and urged that the burden of proof lies on that person who would fail if no evidence at all were given on either side. Citing D.T. Dobie & Company(K) Ltd v Wanyonyi Wafula on burden of proof. Further, that other than the foregoing bare statements, there was no evidence attached to the Supporting Affidavits in proof that the Deceased had the children. 9.Counsel urged that the Respondent having failed to prove his case by way of evidence it follows that his claims and averments cannot hold any water as was stated in Daniel Toroitich Arap Moi Another v Mwangi Stephen Muriithi and another (2014) eKLR. 10.Counsel urged that the Appellant tabled proof of ownership of the suit property, he provided proof of the size of his property, the nature of encroachment and trespass into his property, he also provided the survey report which equally vindicated his claim and therefore discharged the burden of proof. Further, he urged that the court agreed that the Appellant had proved that he had purchased the suit property from the registered owner herein only to turn around and dismiss the suit based on the said erroneous conclusion. He stated that the Appellant never backdated his documents as there was no evidence that was led on the same. 11.Counsel urged that the Appellant led evidence of his ownership of property known as L.R. No. SUNA WEST WASWETA II/ 3012 which was originally a subdivision of L.R. No. Suna West/ Wasweta 11/ 1875. That from the evidence on record, it is clear that the Appellant was first to purchase his portion of the property and the Respondent came later on. Therefore, there is no way the respondent could have purchased his property before the Appellant herein. 12.Counsel submitted that the County surveyor visited the property and found that the Respondents’ property was overlapping, which was the main dispute before the Trial Court. That the Trial Court should have given orders to protect the Plaintiff from losing his portion of the property to the Defendant who should have done due diligence before purchasing his portion to confirm from the survey’s office using the records therein, where the portion of land he was purchasing was lying on the ground. Further, that the respondent was to surrender the land and pursue damages against the vendor. 13.Counsel urged that the Respondent did not disprove the ownership of parcel L.R. No. Suna West/ Wasweta II 3012 as belonging to the Appellant herein. Further, that the Respondent tabled a sale agreement, mutations and transfer documents that were not signed nor witnessed by the registered land owner herein. He reiterated that the Respondent did not provide any proof of taking any further steps to do due diligence and ascertain the ownership of the property he was purchasing and its ground position. Further, that the validity of the documents relied upon by the Respondent lacked the signatures of the registered owner of the land purchased by the Respondent which simply proved that the said registered owner never executed the said documents. He urged that the trial court’s decision was erroneous by relying on said documents. 14.Counsel urged that the issue of the validity of the transaction between the Appellant and one Simon Odhiambo Kigocha (deceased) who was the registered owner of the suit property herein was never in question. The evidence led by the Appellant was very clear, that the transfer documents were executed by the registered owner then who was the vendor who clearly had intentions of transferring the same to the Appellant and indeed did so and as such it cannot be true that the Appellant transferred the property to himself. That the Land Control Board Consent Applications are usually made and applied for by the vendor and in his name, it cannot then be true that the Appellant did this himself. The Learned Trial Magistrate forgot her role in the dispute herein and ventured into issues that were neither pleaded nor evidence led for the same. Reliance was placed on the case of INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & ANOTHER -VS- STEPHEN MUTINDA MULE. (2014) eKLR and the Appellant urged that the court erred in formulating a different case altogether. 15.Counsel urged that the County Surveyor gave an account of his findings and also suggestions on the way forward which of course the Court has a discretion to choose to follow or not. What the Court cannot choose to follow or not is what the findings on the ground were, which findings were never disputed nor challenged in trial by the Respondent herein and thus they remain the true position on the ground which is that the Respondent’s property overlaps into the Appellants property, this is a undisputed fact. 16.Counsel urged that the Appellant having established the same, then the only remaining issue between the Appellant and the Respondent was for Respondent to move out of the Appellants property peacefully or be forcefully evicted. Counsel maintained that this is what the Trial Court ought to have addressed taking into account the sentiments of the County Surveyor. 17.Counsel urged the court to allow the appeal with costs. Respondent’s Submissions 18.Learned Counsel for the Respondent submitted that Trespass is unlawful entry onto another’s land and, that the burden lay upon the Appellant under Sections 107-109 of the Evidence Act to prove unlawful intrusion. He stated that the surveyor’s report dated 25.09.2018 and relied on by Court established: (i) That the Appellant’s land on ground is 0.09Ha while on paper it is 0.33Ha and, (ii) That the Respondent’s land on ground is 0.19Ha while on paper it is 0.30Ha. 19.Further, that both parcels were subdivisions of No. Suna West/ Wasweta II/1875 and both parties were shown their respective boundaries by the same vendor. That the encroachment was not intentional or fraudulent and resulted from an error traceable to the deceased proprietor. 20.Counsel submitted that in CLERK & LINDSELL ON TORTS, trespass requires voluntary and unjustifiable intrusion. Further, that the Respondent’s occupation was pursuant to purchase and boundary identification by the registered owner. Reliance was placed on Kisumu Court of Appeal Civil Appeal No. 71 of 2015. It is the Respondent’s case that the Appellant has failed to prove not only unjustified intrusion by the Respondent, but also fraud, force, or deliberate encroachment by the Respondent. 21.On indefeasibility of title, Counsel urged that under Sections 24, 25 and 26 of the Land Registration Act, a registered proprietor acquires absolute ownership unless the title is impeached for fraud or illegality. He reiterated that no fraud was pleaded or proved against the Respondent. Reliance was placed on Elijah Makeri Nyangwara vs Stephen Mungai Njuguna and counsel posited that Section 80 of the Land Registration Act provides that rectification of the register affecting title can only occur in cases of fraud or mistake attributable to the proprietor. He urged that here, the mistake was attributable to the deceased original proprietor, not the Respondent. 22.Counsel submitted on injunctions, urging that an injunction is an equitable remedy and citing the case of Giella vs Cassman Brown & Co Ltd. He posited that the trial court correctly appreciated: That both parties are innocent purchasers; That the discrepancy originated from the deceased vendor and, That the Administrators of the estate are alive and capable of addressing compensation. Counsel urged that the balance of convenience favoured maintaining status quo and directing compensation through the estate rather than eviction. 23.Counsel urged that the magistrate exercised sound judicial discretion in fashioning a practical solution that: Preserved neighbourhood peace, recognized both parties’ legitimate purchases and, Directed compensation by the estate responsible for the error. 24.Counsel submitted that the proper party responsible for acreage discrepancies was the estate of the late Simon Odhiambo Kigocha. Further, that under Section 82 of the Law of Succession Act, only personal representatives may be sued on behalf of a deceased’s estate. He pointed out that the Appellant failed to enjoin the administrators, yet sought remedies arising from acts attributable to the deceased vendor. Counsel maintained that the trial court correctly identified the estate as the proper avenue for redress. 25.On damages, Counsel urged that General damages for trespass presuppose unlawful entry. That given that the Respondent lawfully purchased his portion, Occupation followed vendor-demarcated boundaries and that , and the acreage discrepancy originated from the deceased vendor; no wrongful intent or unlawful intrusion was proved. In the absence of established trespass, damages cannot lie. 26.Counsel urged the court to dismiss the appeal with costs. Analysis and Determination 27.I have anxiously considered this appeal. I have analysed the parties’ pleadings, starting with the Memorandum of Appeal and going to the plaintiff’s claim at the trial court and the defendant’s defence, the evidence, the law and the submissions herein now. I am of the view that the fourteen grounds of appeal can be collapsed into four as follows:a.The learned trial magistrate erred in law in finding the suit having failed yet he ordered that the appellant be compensated.b.The trial magistrate erred in law in ordering compensation without giving timelines.c.The learned trial magistrate vacated his role as an independent adjudicator by blaming the purchaser for transfer before completing payment.d.The learned trial magistrate erred in ordering the appellant to pay costs while declining to order eviction of the Respondent.e.Grounds 1, 2, 3, 6, 7, 9, 11, 13 and 14 revolve around analysis of the evidence tendered hence they are condensed into one: the learned trial magistrate erred in law and fact by failing to analyse the evidence well and applying it to the law hence arriving at a decision not merited. 28.Therefore, this court formulated two main issues for determination, which are whether the appeal is merited and the other is who to bear the costs thereof. The other three are minor, and the court proposes to begin with them first. They are, whether the trial court vacated its role as an independent adjudicator; whether the magistrate ordered compensation without giving timelines; whether the court erred in finding that the suit failed yet ordered for compensation of the appellant; and whether the court erred in ordering payment of costs by the appellant. 29.The principle upon which a first appellate court exercises jurisdiction is well settled. The task of a first appellate court was summarized in Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 30.Additionally, the Court of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows:“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions. 31.Other decisions have arrived at the same view. For instance, in Williamson Diamonds Ltd and another v Brown [1970] EA 1, the court held that:“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.” 32.This was stated in PIL Kenya Limited v Oppong [2009] KLR 442, where it was held that:“It is the duty…of a first appellate court to analyze and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses and their demeanour and giving allowance for that”. 33.Also, it was restated in in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123 wherein the Court of Appeal held:“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...” 34.It was additionally restated by the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows:“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions” 35.Lastly, in Gitobu Imanyara & 2 others Vs Attorney General [2016] eKLR the Court held as follows;“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” 36.With the guidance above, I now turn to analyse consider the issues. The first one is whether the trial court vacated its role as an independent adjudicator by blaming the purchaser’s action of transferring the land to himself before completing the payment. The appellant’s complaint or issue hereon is that the trial court blamed him on the action hence it ceased to be impartial. 37.The issue above should be considered in light of the finding of the trial magistrate. In the relevant paragraph the trial magistrate stated that “I have considered the discrepancies in the given by the parties especially by the plaintiff who seems to have tried transferred the sellers land into his name before he finished paying for it. His witnesses even extended the period from February 2013 when the plaintiff says he finished paying to July 2013 and his title did was issued in November 2012 This in my view does not reflect well on the part of the plaintiff.” This is the finding the appellant has with the finding of the court. 38.At the heart of the whole claim herein is the confusion on the ground regarding the settlement of the parties herein thereon. This court then has to make a finding on how the confusion arose and who is to blame for it. Does the finding of the trial court make him partial? In my humble view it does not. In real life, unless a transfer of interest in land is by way of a gift or transmission upon succession the purchaser completes payment for the land in issue before the vendor transfers it to him, unless there is a special clause in the agreement specifically providing for such a transfer before completion. I have carefully looked at the agreement relied on by the plaintiff. It is dated 5th October 2012. It is for a total consideration of KShs 100,000/= but paid in instalments. The subsequent instalment date is not indicated but the 3rd is shown to have been on 10/11/2022 and the fourth on 8th February 2013. 39.What is strange about the said agreement is that it purports to have been entered into on 5th October 2012 but the instalments are indicated to have occurred, without countersignatures thereto. The question that arises is, when was the agreement entered into? When were the payments of subsequent instalments made? Who witnessed them because it has not been shown that each of the witnesses were present at the dates shown. In my view the agreement was tailored to suit a completion date. 40.If I were wrong on the above analysis, then the persons who purported to be witnesses to the payments were not actually witnesses and all they stated was inadmissible hearsay. But even if the payments were completed, would it be that the intention of the parties was to sell the 0.33 Ha but since the Plaintiff had not completed the payment he was given the possession of the (smaller) portion he occupies and settled on but he wanted to outwit the seller hence he processed the title for the whole portion intended 0.33 Ha? In my humble view the finding of the trial magistrate on the placement of the cart before the horse in the sale transaction was right. She did not vacate her role as an independent adjudicator. 41.The second one is whether the magistrate ordered compensation without giving timelines. I have carefully looked at the judgment I the sentiments of the trial magistrate with regard to the recommendation of the surveyor which she adopted, as advise, that the administrators of the estate of the vendors to compensate the plaintiff an equivalent of 0.19 Ha. This was a mere recommendation. The recommendation of the court, as she stated, was based on Solomonic wisdom, which I agree with. The confusion began with both the plaintiff who did not complete the purchase price in time but proceeded to obtain title for what he had not bought or paid for, and the seller who settled him on the portion he pointed out to him. In any event, it appears that survey of the land was never done and beacons laid because if it was, then the plaintiff and the vendor could have been the very first ones to raise an issue when the defendant took occupation of the disputed part and began building on it. By completing the purchase price retrospectively (after transfer of land) and keeping quiet while the defendant settled on and built on the disputed portion both the appellant and the vendor constructively by their conduct held out to the defendant that he was settled on the proper part of the land. He, by that, acted to his detriment or prejudice. The plaintiff is estopped from resiling from that position. Estoppel operated herein and it should hold. 42.In any event, the recommendation of the trial magistrate was not the main determination in this the matter. It was only orbiter dictum which does not form then the basis of the judgment or decision. The finding was that the suit failed. That was all. Thus, the ground is no merited. 43.The third one is whether the court erred in finding that the suit failed yet ordered for compensation of the appellant. As I have stated above there was no finding on compensation to the appellant since in the first place it was no prayed for by him. Rather, that recommendation was it orbiter dictum. It was only advice based on the wisdom of the court, and she should be congratulated on it instead. Therefore, there was no error in that ‘finding’. 44.The fourth is whether the trial court erred in ordering that the costs be paid by the appellant. Section 27 of the Civil Procedure Act is clear on how the judge or judicial officer should handle the award of costs. They are awarded at the discretion of the court although they ordinarily follow the event. This was a matter of discretion. 45.Of discretion, regarding where the Court exercises it and an appeal arises therefrom the court has to consider whether exercised injudiciously and or proceeded on the wrong principles or included matters he ought not to have included or failed to take into account some he ought to have considered. Thus, in Supermarine Handling Services Ltd V Kenya Revenue Authority [2010] KECA 373 (KLR) the court held as follows:“…Thus, where a trial Court has exercised its discretion on costs, an appellate Court should not interfere unless the discretion has been exercised injudiciously or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule”. 46.Also, in Supermarine Handling Services Ltd versus Kenya Revenue Authority [2010] eKLR (Civil Appeal 85 of 2006) the Court stated :-“… Thus, where a trial Court has exercised its discretion on costs, an appellate Court should not interfere unless the discretion has been exercised injudiciously or on wrong principles. Where it gives no reason for its decision the Appellate Court will interfere if it is satisfied that the order is wrong. It will also interfere where reasons are given if it considers that those reasons do not constitute “good reason” within the meaning of the rule”. 47.Similarly, in Farah Awad Gullet v CMC Motors Group Limited [2018] eKLR the Court of Appeal held that:“…the Court of Appeal, in interfering with the exercise of discretion of the trial Judge appealed from, ought to satisfy itself that the exercise of that discretion either way was improper and therefore warrants interference.” 48.Moreover, in Edward Sargent versus Chotabha Jhaverbhat Patel [1949] 16 EACA 63, it was held that there is no bar to an appeal lying to an Appellate Court against an order made in the exercise of judicial discretion, but for the Appeal Court to interfere only if it be shown that the discretion was exercised injudiciously. 49.Furthermore, in Mbogo and Another v Shah [1968] EA 93 at 96 the court held:“For myself I like to put it in the words that a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been mis-justice.” 50.Also, in Agola v Ngodhe (An administrator to the Estate of Zakayo Ngodhe) (Environment and Land Appeal E025 of 2024) [2025] KEELC 1367 (KLR) (6 March 2025) (Judgment), this court stated;“As for the instant appeal, it is clear that it arose from the low court’s exercise of discretion. Regarding appeals of such nature, the appellate court will not normally interfere with the discretion of the trial court unless the trial magistrate or judge exercised the discretion wrongly, injudiciously or misdirected himself in some matter thereby arriving at a wrong decision, the decision clearly wrong.” 51.Also, in Nyaoke & 7 others v Ayaga (Environment and Land Appeal E024 of 2024) [2025] KEELC 7345 (KLR) (28 October 2025) (Judgment) this court held,“Again, it is worth of note that this is an appeal that challenges the exercise of discretion by the trial court. The principles that govern the instances that an appellant court may interfere with a decision arrived at by exercise of discretion by a court appealed from are now settled. This court must be cautious in deciding to interfere with the discretion of the trial court. If I must do so, I should not substitute my decision with the that of the trial court. I must consider and find, if I have to overturn that decision, that the trial court failed to act judiciously or was plainly wrong on principles that he proceeded on or considered or failed to consider factors which he ought not or ought to have considered, respectively.” 52.I have carefully considered the issue of the award of costs. I see no injudicious action or application of wrong principles on the part of the trial court. I find no reason to interfere with it. 53.Going to the main issue which is whether the appeal is merited I move to consider the evidence herein. In this analysis I begin by recalling the testimonies of the witnesses. As stated above the grounds condensed into this main one were hinged on the evidence of the witnesses. 54.It turns me to the evidence before the trial court. PW1 was Charles Oakley Moses who stated that the defendant trespassed on No. Suna West/ Wasweta 11/3012 which is registered under his name. That he bought the plot from Simon Odhiambo Kigodia. Further, that Defendant’s witness No. 2 and 3 were witnesses to this transaction. His title was issued on 01/11/2012. The boundaries of his land were shown to him by the seller when he bought the land. He further stated that according to the defendants’ agreement, the defendant bought his plot 1 year after him. That the report by surveyor confirms he owns plot No. 3012. 55.He stated that the surveyor agreed that his land was resold to the defendant without his knowledge, and upon conducting investigations, he realized that it is the same defendants who sold a portion of land 0.19 hectares out of 0.33 Hectares. 56.PW2 was Isaack Odhiambo Guto who stated that the owner of L.R. No. Suna West/ Wasweta II/ 1875 is Simon Odhiambo Kigocha. PW2 states that he was aware Simon sold part of land to the plaintiff in 2012. There was a sale agreement to which he witnessed. It was dated 05/10/2012. According to the sale agreement, No. Suna West/ Wasweta 11/1875, approximately 0.33 Ha were sold to Plaintiff for Kshs. 100,000/-. He stated that he signed the agreement and confirmed his signature. 57.It was his testimony that the plaintiff completed payments in terms of the agreement on 08/07/2013. He did not know if another buyer bought the property. According to agreement, witness for seller were his children and wives of his children. Further, that by the time the plaintiff bought the defendant was not there. That the defendant has constructed a permanent house on the plaintiff’s land in 2015 and when plaintiff bought it, it was vacant. 58.PW3 was Peter Wanjala, the County Surveyor. He stated that he received the order issued on 17/07/2018 directing him to visit land parcel No. Suna West/ Wasweta 11/3012 and 3358 in order to establish and fix their boundaries. He visited the suit land parcels on 25/09/2018, carried out the exercise ordered by Court and filed the report dated 25/09/2018. The same was filed on 17/05/2018 and all the parties attended the exercise. 59.His findings were as follows: - Land parcels no. 3358 belonging to the defendant is well fenced on the ground with an acreage of 0/19 Hectares although the registered acreage 0.30 Hectares this is the defendant land. The plaintiff's land 3012 is fenced on the ground measures 0.09 Hectares against the registered area 0.33 Hectares. He discovered there was ambiguity because the positioning of the defendant's land parcel on the ground. Coincidentally overlaps on parcel is actually the plaintiffs land by an acreage of 0.19 Hectares. 60.What the defendant was occupying on the ground was partly the plaintiffs land. He re-established the actual boundaries though he could not hand over the 0.19 Hectares to the plaintiff because the defendant was already in occupation of the land where he had established a permanent house, a gazebo and pit latrine and another house under construction. There were no ‘fundis’ at the site. He stated that the defendant should hand over the extra land. 61.During cross examination, he stated that on the ground 3358 is 0.19 Hectares and plot no. 3012 should be 0.28 Hectares out of Plot 3012 That there were Eucalyptus trees nearing maturity and 3358 had buildings some complete, others incomplete. That apart from maps one can talk to parties on where their boundaries are which he did and established that the 2 parties just bought land from same person. Mr. Simon Odhiambo deceased by the time he went to scene. He consulted the widow and son of the seller who verbally confessed that the deceased Simon Odhiambo has apparently sold part of land parcel no. 3012 to the defendant without their knowledge. They also confessed that developments had occasioned a big dispute between the buyers. 62.DW1 was Benigno Odiwuor who stated that his parcel was 3358. He bought the land and entrusted his surveyor to do search and they confirmed with the seller. Before purchasing the land, he visited it and met the family and the surveyor was present. He identified the property on the ground and the Mutation and other processes were done and the land was transferred to his name. When he signed the mutation form, it reflected the position on the ground and the seller put his thumbprint. 63.After he got the title, he did a search. He produced the Sale agreement dated 31/08/2013 D-exhibit 1 and a search dated 16/06/2017 as D-exhibit 2 and Mutation form D-exhibit 3. Further, he stated that the mutation form sketch was done at the site then they went and drew it in their office. He developed the property' fenced, and constructed a house after digging a well and was not confronted by anyone claiming the land. 64.During cross examination, he stated that he bought the land from the son of the title holder and did due diligence. The son and the father were in agreement and the owner of the land was Mr. Simon Kibocha. That the son is the one who took the money and the seller signed the agreement. 65.He stated that the property he bought was a sub division of 3011. That he paid Kshs. 120,000/- for the property, 80,000/- in KCB and the balance cash. That there appears to be forgery by the plaintiff as he may have back dated the documents. There was nothing on the ground to show the land was his. When referred to the survey report dated 25/09/2018 he stated that it was his first time seeing this document and that the person was sold non-existent land. 66.DW2 was Samuel Otieno Odhiambo, who stated that his father sold land parcel No. Suna West/ Wasweta 2/3011 to Beningno Odiwuor. That the Defendant went to the surveyor he checked on the land and then came to them and they showed him the physical position of the parcel he had bought. After some years, he heard that Moses Chando had come to the land to claim and he confirmed that Moses was also sold land by his father from the same parcel but his position was different from that sold to the defendant. He maintained he was a witness to the transaction. 67.The germane issue for determination is; Whether the trial court erred in dismissing the Appellants’ suit. 68.The Appellants’ suit in the trial court was premised on the allegation that the respondent had trespassed on his parcel of land known as SUNA EAST WASWETA II/3012 and occasioned him great losses by encroaching on the land and building structures on it. On his part, the Respondent contended that his parcel was no. 3358 and had nothing to do with the suit parcel. 69.To resolve the issue, the County Surveyor visited the suit land and testified as PW3. In his findings he established that the defendant was occupying on the ground was partly the land of the Appellant, with an overlap of 0.19 Ha. The trial court found that the error in the apportionment of the acreage was mainly the fault of the vendor who sold to both the parties the land they occupied and further, that the Plaintiff was entitled to General Damages as compensation for the overlap of the parcels. However, the trial court was of the opinion that the estate of the vendor was not a party of the suit and therefore the order for general damages could not issue. 70.Of critical importance was the evidence of the PW3 who testified that when he visited the ground he found an overlap of the plaintiff and defendant’s parcel of land. One glaring piece of evidence that was missing from his oral and documentary evidence was the Registry Map Sheet number that he used because the parcel No. 1875 was subdivided to give rise to the plaintiff’s parcel of land and that which then the Defendant sold to give rise to the Defendant’s other number. It is important that whenever surveyors visit any parcel of land to survey the same they confirm that they are using the latest Registry Map Sheet or if not, they indicate in the report which Sheet number they used. For a long time, I have often noted that untruthful surveyors hide under this confusion and rely on maps that sui a certain party yet when subdivisions of an area occur Registry Index Maps are amended in accordance with subsequent subdivisions. 71.Having said that the outstanding question for consideration is, was the trial court then wrong in the finding that general damages were no to be payable? First, it is worth of note that the plaintiff prayed for general damages for trespass. As I have found out, PW2’s evidence did not confirm as of certainty how the overlap came about since he did not state which sheet map number he used and if it was the latest reflecting the Defendant’s parcel number as being in existence. What his report states is that the Plaintiff’s and Defendant’s parcel numbers were generated from successive subdivisions of the parcel No. Suna West/ Wasweta II/1875. The Registry Index Map must have been amended to accommodate the two successive subdivisions. This critical document was not brought to court to confirm the factoring in of the subdivisions and the specific ground delineation and coordinates. There is a possibility that the two parcels of land exist on the ground in accordance with their approximate sizes but the wrong RIM was used to carry out the survey, or none was used at all since the Report does not capture this critical information. It only refers to mutations instead. Mutations only serve as guides for proper survey to be conducted on the ground. The Plaintiff did not avail any evidence whatsoever before the trial court to evidence any survey prior to his settlement on the land or before the survey by PW3 was carried out. 72.Since, in terms of Section 107, 108, 109 and 112 of the Evidence Act, the burden lies on he who alleges a fact to prove it unless the law shifts the burden to another, it was upon the appellant to avail all that critical evidence before the trial court. He cannot shift it to the Defendant/Respondent. 73.I am, therefore, in agreement with the finding of the trial court. The liability for the discrepancies in the acreages is solely on the vendor of the suit land. PW1 testified that when he purchased the suit land, he was shown the boundaries by the seller of the land. This was also confirmed by PW2’s testimony. DW1 also testified that when he purchased the land, the seller showed him his boundaries and he relied on that information to settle on the land. Then, in light of the evidence whose fault was this confusion on this settlement or part in dispute? Who should have been sued on this overlap? Who made the mistake on the settlement on this portion in dispute? Starting with the parties’ agreement of purchase, the Plaintiff claims he entered into the agreement on 05/10/2012. The completion date is put between somewhere in February 2013 (according to the PW1) and 08th July 2013 (according to PW2). It is not in contention that both Plaintiff and the defendant were settled on the ground by the seller, and the Defendant had built on the part he settled since then up to the time of suit and survey. PW3 found (according to his Report dated 25/09/2018) that the Plaintiff had planted eucalyptus trees on his remaining parcel portion of No. 3012. 74.This turns me to the brief analysis I made when determining the first issue above (at paragraphs 36 to 40). What is not in dispute is that both the appellant and the respondent bought portions of land from the vendor Simon Odhiambo Kigocha. This was confirmed by PW2 who testified that he witnessed the agreement being entered on 5th December 2012. A careful perusal of the agreement relied on by the plaintiff shows that, indeed, it is dated 5th October 2012. It is for a total consideration of KShs 100,000/= but paid in instalments. The subsequent instalment date is not indicated but the 3rd is shown to have been on 10/11/2022 and the fourth on 8th February 2013. 75.PW2 witnessed the agreement on 05/12/2012. Nowhere does he show or even the agreement show that the payment of the subsequent instalments was witnessed by anyone other than the person who affixed his finger prints in front of the sums and dates indicated. The question that arises is, were the instalments ever paid? Indeed, does the insertion of the subsequent payments absent of signatures of the witnesses to confirm them not bring suspicion as to the authenticity of the agreement? Was the agreement not altered without permission? Who can vouch for the purported completion payments? When were the payments of subsequent instalments made? 76.Does the insertion of the dates of the instalments not mean the document was backdated as the trial court found out? Hereat I agree with the court and I find the ground of appeal on the finding of backdating to be of no merit. This is because, if the agreement was not backdated how could a date of 10/11/2012 and 08/02/213 be inscribed in the document made on 05/10/2012 without all the signatories to the document being brought on board to witness the changes. Who witnessed the changes because it has not been shown that each of the witnesses were present at the dates shown? In my view the agreement was tailored to suit a completion date. This uncertainty about the completion dates of the agreement shows nothing but doubt as to which part of the land the claimant settled on. This cannot be shifted to the Defendant/ Respondent who was an innocent purchaser. 77.I state that he was an innocent purchaser because when he was settled on the portion he occupies and built on the portion was unoccupied. Otherwise the one in possession would have raised the concern immediately and stopped him from taking possession. 78.In light of this evidence, it is important to address the allegations of trespass. The provision of Section 3 (1) of the Trespass Act, Cap 294 provides that:“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 offence.” 79.By its very definition, trespass requires that one party enter another party’s parcel of land without his permission. However, in the present circumstances, the alleged trespass was occasioned by a vendor selling parcels of land to the parties and misleading them on the borders of the land. It is my considered view that this cannot be considered trespass in the circumstances. 80.It follows that though the parcels of land overlap, the liability of the overlap was not occasioned by the Defendant but that of the seller and it is him who owed compensation to the Appellant. This is because PW3 acknowledges that the Defendant’s title exists and that his parcel of land overlaps with that of the Appellant. That is not trespass as properly defined by the act because the Respondent too owns that specific portion that he occupies. He cannot be said to have trespassed onto the land which is his. As I have stated above, the evidence of PW3 was not clear as to which Registry Map Sheet or RIM he used when he visited the ground to carry out the survey. Was it the initial one arising from the subdivision of parcel No. 1875 or he subsequent one of the remaining portion of the initial parcel? Since the Respondent was a bona fide purchaser for value who was shown and settled on the parcel said to be overlapping with the appellant’s he cannot be said to be a trespasser. If the court were to go by the plaintiff’s claim and find that an overlap is treated as trespass, it could be said of the appellant too, by the same court, that since his parcel is said to overlap with that of the defendant, he too is a trespasser. The Plaintiff did not prove his case to the required standard of a balance of probabilities. In the circumstances, the trial courts’ decision was legally sound and therefore, I find no reason to interfere with it. 81.There is one issue which this court considers that the trial court was silent on which was one of the reliefs sought but which the appellant did not bother to belabour on appeal because it was pretty straightforward. It is the relief sought that the appellant to be declared that he was he owner of parcel No. Suna West/ Wasweta II/3012. The trial court was silent on that but there is not dispute that he is the owner of the said parcel of land. 82.The upshot of the foregoing is that the Appeal is not merited and is dismissed. These parties herein are neighbours in this settlement place which is in dispute. Thus, each party to hear their own costs. 83.It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 9TH DAY OF JULY 2026.HON. DR. IUR NYAGAKAJUDGEFrom 11:32 AM, in the presence of,Mr. Adawo for the AppellantMr. Kisia for the Respondent