https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5186

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E003 OF 2023** JAMIN JUMA WEKESA KEPHA SIMIYU JUMA PATRICK MUYONDO WEKESA …………APPELLANTS CAROLINE OMURONJE CHARLES WICHENJE VERSUS LAURENT MISIGO KISIBO............................................. RESPONDENT ***(Being an appeal against the judgment of Hon. Z.J Nyakundi (SPM) dated 29th December 2022, and delivered by Hon. R.S Kipng’eno (PM) on 12th January 2023 in Butali ELC No. 13 of 2021)*** **JUDGMENT** **Introduction** 1. This appeal arises from the judgment of Hon. Z.J. Nyakundi, Senior Principal Magistrate dated 29th December 2022 and delivered on 12th January 2023 by Hon. R.S Kipng’eno, Principal Magistrate in Butali ELC Case No. 13 of 2021, wherein the trial court found that the plaintiff (respondent herein) had proved, on the basis of the certificate of title and related transfer documents, that he was the registered proprietor of land parcel No. Kakamega/Lugari/2362. 2. The trial court held that the appellants had not established any lawful claim to the suit property, nor had they proved fraud, illegality or any other ground upon which the respondent’s title could be impeached under **section 26 of the Land Registration Act**. Consequently, judgment was entered in favor of the respondent, with orders for demarcation of the suit land, eviction of the appellants therefrom, a permanent injunction restraining further trespass, and costs of the suit. **Background** 1. The suit before the trial court was commenced by the plaintiff, Laurent Misigo Kisibo, by way of a plaint dated 9th April 2021, in which he pleaded that one Mark Kusienya Sinino, now deceased, was at all material times the registered proprietor of land parcel No. Kakamega/Lugari/101 measuring approximately 33.5 hectares. That the said parcel was subsequently subdivided into land parcel Nos. Kakamega/Lugari/2075, 2076, 2077, 2078 and 2079, all of which were registered in the name of Mark Kusienya Sinino, whereupon the original title was closed upon subdivision. 2. The plaintiff pleaded that he purchased a portion measuring one acre from the said Mark Kusienya Sinino, which portion was to be excised from land parcel No. Kakamega/Lugari/2075. That upon subdivision of parcel No. 2075, the same gave rise to land parcel Nos. Kakamega/Lugari/2361 and Kakamega/Lugari/2362, and that Mark Kusienya Sinino transferred land parcel No. Kakamega/Lugari/2362, measuring approximately 0.40 hectares, to him. 3. It was the plaintiff’s further case that the 3rd, 4th and 5th defendants, were the sons of one Alphonse Wekesa Sinino, a brother to Mark Kusienya Sinino, and had without any color of right invaded the land comprising Kakamega/Lugari/2076, 2077, 2078, 2079, 2361 and 2362, and had sold portions thereof to the 1st and 2nd defendants. That although the said parcels were reflected on the registry map, they had not been demarcated on the ground and boundary features had not been erected, thereby making it necessary for the Land Registrar and Land Surveyor to visit the land, demarcate the parcels and identify each portion. 4. He complained that the above acts by the defendants had denied him quiet possession and enjoyment of land parcel No. Kakamega/Lugari/2362. Further, that the 3rd, 4th and 5th defendants had their own land parcel, namely Bungoma/Kabisi/53, registered in the name of their father, Alphonse Wekesa Sinino. 5. He therefore sought, *inter alia*, orders directing the District Land Registrar and District Land Surveyor, Kakamega, to visit the suit property and demarcate land parcel Nos. Kakamega/Lugari/2076, 2077, 2078, 2079, 2361 and 2362; an eviction order against the defendants from land parcel No. Kakamega/Lugari/2362; a declaration that a portion of the said parcel, measuring approximately 0.40 hectares belonged to him; a permanent injunction restraining the defendants from trespassing thereon; costs of the suit; and any other relief the court deemed fit to grant. 6. No defence was filed. The suit proceeded to hearing through *viva voce* evidence. The plaintiff called three witnesses in support of his case, while the defence called one witness. **Plaintiff’s evidence** 1. PW1 was Laurent Misigo Kisibo, the plaintiff. He adopted his witness statement filed in court on 9th April, 2021 as his evidence in chief and produced the documents in his list of documents of even date as exhibits. His evidence was that land parcel No. Kakamega/Lugari/101 was originally registered in the name of Mark Kusienya Sinino, and that upon subdivision, it gave rise to parcel Nos. Kakamega/Lugari/2075, 2076, 2077, 2078 and 2079, all registered in the name of the said Mark Kusienya Sinino. That sometime in 2006, he purchased a portion measuring one acre from Mark Kusienya Sinino, which was to be excised from parcel No. Kakamega/Lugari/2075, and paid the full purchase price. That upon subdivision of parcel No. 2075, parcel Nos. Kakamega/Lugari/2361 and 2362 were created, and parcel No. Kakamega/Lugari/2362 was transferred and registered in his name. That the 3rd, 4th and 5th defendants, who were sons of Alphonse Wekesa Sinino, had invaded his land and sold portions thereof to the 1st and 2nd defendants. On cross-examination, he maintained that he bought the land from Mark Sinino, who showed him the title to the land. 2. PW2 was James Wafula Nyongesa. He adopted his witness statement filed in court on 9th April 2021 as his evidence in chief and testified that he knew the plaintiff and was present when the plaintiff purchased the suit land from Mark Kusienya Sinino in 2006. That he accompanied the plaintiff to the seller’s home, where the seller produced documents showing ownership of the land, and thereafter the parties agreed on the sale of a portion measuring approximately 0.40 hectares at a consideration of Kshs. 200,000/=. He stated that the plaintiff paid the full purchase price and was shown the land, which was initially part of land parcel No. Kakamega/Lugari/101, later subdivided into several parcels including Kakamega/Lugari/2075, and subsequently into Kakamega/Lugari/2361 and 2362. That Mark Sinino later transferred parcel No. Kakamega/Lugari/2362 to the plaintiff, who obtained title and began using the land, but the defendants thereafter encroached upon it. He added that the defendants had their own land parcel, namely Bungoma/Kabisi/53, and that parcel No. Kakamega/Lugari/2362 was not involved in the other proceedings shown to him. 3. On cross-examination, he confirmed that there had been a criminal case relating to forcible detainer, that the plaintiff was advised to file a civil suit. 4. PW3 was Thomas Mutere Kusienya. He adopted his witness statement filed in court on 9th April 2021 and testified that he knew the plaintiff, and that in 2006 his father, Mark Kusienya Sinino, sold a portion of land measuring one acre to the plaintiff to raise money for treatment. He stated that the plaintiff paid the agreed purchase price of Kshs. 200,000/=, after which they accompanied him to the relevant offices for consent and the land was subsequently subdivided. His evidence was that parcel No. Kakamega/Lugari/2362 was a subdivision of parcel No. Kakamega/Lugari/2075, and that his father transferred parcel No. 2362 to the plaintiff, who was issued with a title deed. He further testified that when the plaintiff began working on the land, he was attacked and his items destroyed by the defendants. 5. On cross-examination, he stated that parcel No. 2075 originated from parcel No. 101, and maintained that parcel No. 2362 belonged to the plaintiff. That marked the close of the plaintiff’s case. **Defence evidence** 1. DW1 was John Juma Wakeda. His testimony was that there had been previous proceedings before the Lugari Land Disputes Tribunal involving Alphonse Wekesa and Mariko Kusienya over a portion of land parcel No. Kakamega/Lugari/101, and that there were also appeal proceedings and orders relating to the said land. He denied that the defendants had entered upon the plaintiff’s land, stating that the person in occupation was one Jackson Mukuba. On cross-examination, he stated that the land had been subdivided, that parcel No. 101 was registered in the name of Mariko Kusienya, but contended that the tribunal had found that the land belonged to Wekesa and not Mariko. On re-examination, he asserted that the original title was in the name of Mariko Kusienya, but alleged that the subdivisions were irregular and that his father’s interest arose from land which had allegedly been registered in Mariko’s name using his father’s national identity card. That marked the close of the defence case. 2. Upon considering the pleadings, evidence and submissions by the parties, the trial court found that the plaintiff had produced documentary evidence confirming that land parcel No. Kakamega/Lugari/2362 was registered in his name. The court held that, pursuant to **section 26 of the Land Registration Act**, the said title was *prima* *facie* evidence of ownership, and that the appellants had neither pleaded nor proved fraud, misrepresentation, illegality, procedural impropriety or any corrupt scheme capable of impeaching the plaintiff’s title. It further found that the appellants’ claim to the suit property was unsupported by evidence, particularly in view of the material showing that their father had his own parcel of land, namely Bungoma/Kabisi/53. Consequently, the court entered judgment in favor of the plaintiff, declared him the owner of the suit property, directed demarcation of the land by the Land Registrar and Land Surveyor, issued an eviction order and a permanent injunction against the defendants, and awarded costs of the suit to the plaintiff. 3. Having been dissatisfied with the trial court’s decision, the appellants proffered the present appeal vide a Memorandum of appeal dated 9th February 2023, citing the following grounds of appeal: 4. **The learned trial magistrate grossly erred in evaluation of the evidence before him.** 5. **The learned trial magistrate grossly erred in not considering the fact that the suit property was part of subdivisions of the original title No. Kakamega/Lugari/101 to alter court proceedings.** 6. **The learned trial magistrate grossly erred in not considering at all the evidence tendered in support of the appellants’ case.** 7. **The learned trial magistrate’s final orders will embarrass the court due to the fact that they are existing court orders in place which contradicts the judgment entered herein.** 8. **The learned trial magistrate had no jurisdiction to issue orders if survey and erection of boundary features more so against 3rd parties who were not part of this suit.** 9. **The learned trial magistrate exhibited actual bias against the appellants.** 10. The appellants prayed that the entire trial court judgment be set aside, with costs. 11. The appeal was canvassed by way of written submissions. On record are submissions by the appellant dated 3rd October 2025 and submissions by the respondent dated 8th October 2025; both of which this court has carefully considered. **Appellants’ submissions.** 1. The appellants submitted that the suit property, Kakamega/ Lugari/2362, was a subdivision of the original parcel No. Kakamega/Lugari/101, which had previously been the subject of proceedings before the Lugari Land Disputes Tribunal and in Award No. 106 of 2000. That there existed prior proceedings and orders relating to the same land, including an order stopping dealings, which the trial court failed to adequately consider. 2. Further, that the trial court placed undue emphasis on the respondent’s proprietorship of Kakamega/Lugari/2362 and misapplied **section 26 of the Land Registration Act**. They argued that the court relied on matters that did not sufficiently answer the history of the dispute and failed to appreciate that the parcel in question emanated from land that had been contested in earlier proceedings. 3. The appellants contended that the respondent was, in effect, attempting to re-litigate matters that had previously been dealt with in respect of the original parcel No. Kakamega/Lugari/101, merely under the guise of the resultant title No. Kakamega/Lugari/2362. As such, it was their position that the suit before the trial court was *res* *judicata*, since the dispute substantially related to the same subject matter and ought not to have been re-opened in fresh proceedings. **Respondent’s submissions.** 1. The respondent submitted that the trial court properly considered the pleadings and evidence before it and correctly found that he had lawfully acquired land parcel No. Kakamega/Lugari/2362 from Mark Kusienya Sinino, the registered proprietor of the original parcel No. Kakamega/Lugari/101. He submitted that upon subdivision of the original parcel, parcel No. Kakamega/Lugari/2362 was created and transferred to him in accordance with the law. That he was the absolute and indefeasible proprietor of land parcel No. Kakamega/Lugari/2362, and that his title was protected under **section 26 of the Land Registration Act.** He argued that the appellants had not proved fraud, misrepresentation, illegality, procedural impropriety or any corrupt scheme capable of impeaching his title. 2. It was the respondent’s submission that the appellants had not produced any documentary evidence showing that they had any lawful claim over the suit property or over the original parcel No. Kakamega/Lugari/101. He contended that the appellants were relying on bare allegations and previous disputes which did not establish any proprietary interest in the suit land. 3. The respondent argued that the appellants would not suffer any loss since they had their own parcel of land, being parcel No. 53 in Bungoma, and that they ought to relocate therefrom instead of interfering with his quiet possession and enjoyment of the suit property. **Analysis and determination** 1. The court has carefully considered the appeal, the entire trial court record and the parties’ rival submissions. The role of this court as a first appellant court is to re-evaluate the facts and the law and make its own independent conclusions bearing in mind that it had no opportunity to see or hear witnesses and make due allowance for that. This position was stated in the case of **Selle & Another –vs- Associated Motion Boat Co. Ltd & Others (1968) EA 123.** 2. The duty of the first appellate court was discussed in the case of ***Gitobu Imanyara & 2 Others v. Attorney General [2016] eKLR,*** where the Court of Appeal stated as follows; **‘‘An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must consider the evidence, evaluate it itself and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”** 1. Having considered the grounds of appeal the issues that arise for the court’s consideration are whether the trial court had jurisdiction to make orders in regard to the boundaries of the suit property and whether the trial court was right in allowing the respondent’s claim. 2. The respondent’s claim as framed in his plaint was that he purchased a portion of land measuring 1 acre from one Mark Kusienya Sinino now deceased, to be curved from land parcel No. Kakamega/Lugari/2075. That parcel No. 2075 was one of five parcels arising from the subdivision of parcel No. Kakamega/Lugari/101 owned by the deceased. That parcel No. Kakamega/Lugari/2075 was subdivided into Kakamega/Lugari/2361 and 2362. That parcel No. 2362 measuring one acre was transferred to the respondent by the deceased. 3. That the 3rd, 4th and 5th appellants invaded the entire parcel formerly known as parcel No. Kakamega/Lugari/101 and sold portions thereof to the 1st and 2nd respondents. His complaint was that although parcel Nos. Kakamega/Lugari/2076, 2077, 2078, 2079, 2361 and 2362 are reflected in the map, there was no demarcation for those parcels on the ground and no boundary features were placed on the ground to show the boundaries thereof. He sought orders for the Land Registrar to demarcate the ground and place boundary features on the ground; a declaration that parcel No. Kakamega/Lugari/2362 was his, a permanent injunction to restrain the appellants from trespassing on his land as well as costs of the suit. 4. Regarding the respondent’s prayer that the Land Registrar and surveyor do visit and demarcate parcel Nos. Kakamega/Lugari/2076, 2077, 2078, 2079, 2361 and 2362, having considered the official search certificates produced by the respondent, parcel Nos 2076 and 2077 are registered in the names of Mark Kusienya Sinino (deceased); parcel No. 2078 is in the name of Jane Muhonja Omwami; parcel Nos. 2079 and 2361 were in the name of Mark Kusienya Sinino and parcel No. 2362 is in the name of the respondent. While this suit was filed in 2021, the searches produced are dated 26th September 2007; 19th February 2007 and 14th April 2014 respectively, hence the court cannot ascertain ownership of the said five parcels as at the time of filing suit. The estate of Mark Kusienya and Jane Muhonja Omwami were not parties to the suit before the trial court, hence the orders made by the trial court in regard to their parcels of land condemned them unheard, contrary to Article 50 of the Constitution of Kenya which provides for the right to a fair hearing. 5. On whether the court had jurisdiction to determine the boundary dispute regarding the suit property, section 18 of the Land Registration Act places the jurisdiction to hear and determine boundary disputes in regard to general boundaries in the Land Registrar and specifically bars the court from trying such disputes. The same provides as follows; **“18. Boundaries** | | | | | --- | --- | --- | | **(1)** | **Except where, in accordance with section 20, it is noted in the register that the boundaries of a parcel have been fixed, the cadastral map and any filed plan shall be deemed to indicate the approximate boundaries and the approximate situation only of the parcel.** | | | **(2)** | | **The court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section.** | | | | | --- | --- | | **(3)** | **Except where, it is noted in the register that the boundaries of a parcel have been fixed, the Registrar may, in any proceedings concerning the parcel, receive such evidence as to its boundaries and situation as may be necessary:** **Provided that where all the boundaries are defined under section 19 (3), the determination of the position of any uncertain boundary shall be done as stipulated in the Survey Act (Cap. 299).”** | 1. Regulation 40 of the Land Registration (General) Regulations (Legal Notice No. 278 of 2017) provides for re-establishing a missing boundary or ascertaining a boundary in a dispute as follows; **“Application for re-establishing a missing boundary or ascertainment of a boundary in dispute;** * + 1. **An interested person may apply to the Registrar for the ascertaining of a missing boundary or a boundary in dispute under section 18(3) of the Act in Form LRA 23 set out in the Sixth Schedule.** 2. **The Registrar shall issue a notice in Form LRA 24 set out in the Sixth Schedule to all persons appearing in the register that may be affected or such other persons as the Registrar may deem necessary for resolution of the dispute if a person has complied with paragraph *(1)*.** 3. **The Registrar shall notify the office responsible for survey of land of the intended hearing of a boundary dispute and require their attendance if a person has complied with paragraph *(1)*.** 4. **In determining a boundary dispute lodged in accordance with paragraph *(1)*, the Registrar shall be guided by the recommendation of the office responsible for survey of land.** 5. **The Registrar shall, after giving all persons appearing for the hearing in accordance with the notifications sent under paragraphs *(1)* and *(2)* an opportunity to be heard, make a determination of the dispute and inform the parties accordingly.** 6. **Any party aggrieved by the decision of the Registrar made under paragraph *(5)* may, within thirty days of the date of notification, appeal the decision to the Court.** 7. **Upon expiry of thirty days, the Registrar shall—** - 1. **Cause to be defined by survey the precise position of the boundaries in question;** 2. **File a plan approved by the authority responsible for survey of land containing the necessary particulars; and** 3. **Make a note in the register that the boundaries have been fixed, and thereupon the plan shall be deemed to define accurately the boundaries of the parcel.** 8. **A dispute for determination of a boundary and or parcel shall, unless in the case of special circumstances, be completed within a period not exceeding six months from the date of filing the application.”** 1. It therefore follows that the jurisdiction to resolve disputes relating to general boundaries in the first instance is vested in the Land Registrar. 2. In the case of **Nzau v Kemei & 2 others (Environment & Land Case 70 of 2023)[2025] KEELC 526 (KLR) (12 February 2025) (Ruling) [2025] KEELC 526 (KLR),** the court held that the Environment and Land court had no original jurisdiction to determine a boundary dispute concerning general boundaries. 3. It is clear from the titles of the suit property that the boundaries thereof are general boundaries. Therefore, in ordering the Land Registrar to demarcate the boundaries of the suit property which are in regard to general boundaries, the trial court acted without jurisdiction. If indeed there was no demarcation or boundary features on the ground as contended by the respondent, he ought to have filed a boundary dispute before the Land Registrar against the owners of the parcels abutting his parcel. 4. In the premises, I find and hold that the trial court had no jurisdiction to order the Land Registrar and surveyor to demarcate parcel No. Kakamega/Lugari/2362. 5. Regarding the merits of the respondent’s claim in regard to the other prayers stated in the plaint, the record shows that no defence and witness statements for the appellant were filed. However, the appellants presented evidence before the trial court. There having been no defence, the appellant’s evidence was irrelevant and of no legal consequence as evidence without pleadings can only be disregarded. 6. The fact that there was no defence means that the respondent’s claim was unopposed. That notwithstanding, the onus of proof was still on the respondent to prove his claim. Section 107 of the Evidence Act places the burden of proof on the plaintiff. (See **Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334**) 7. The respondent’s claim was fairly straight forward. He stated that he purchased one acre of land from the late Mark Kusienya Sinino to be hived from parcel No. Kakamega/Lugari/2075 and that upon subdivision of that parcel his title No. Kakamega/Lugari/2362 was created and transferred to him by the deceased but that the appellants had trespassed on his land. He sought eviction and injunction against the appellants. 8. The fact that the respondent was the registered proprietor of parcel No. Kakamega/Lugari/2362 was not disputed as no defence was filed. 9. Section 26 of the Land Registration Act provide for indefeasibility of title as follows; **“Certificate of title to be held as conclusive evidence of proprietorship** **(1) The certificate 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 the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, 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 certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”** 1. Thus, registration of land vests in the proprietor thereof absolute and indefeasible rights unless there is proof that the acquisition of the said title was by fraud, misrepresentation, illegality, want of procedure or corruption. In the case of **Dina Management Limited v County Government of Mombasa & 5 Others,** the Supreme Court of Kenya held that a title obtained unlawfully cannot confer lawful ownership. 2. In the instant case, no defence was filed challenging the legality of the respondent’s title. Therefore, the respondent’s title confers on him absolute and indefeasible rights. Sections 24 and 25 of the Land registration Act provides for interests and rights conferred by registration. Thus, a registered proprietor of land is entitled to quiet and exclusive enjoyment of the same. Therefore, registration of land protects the interests and rights of the registered proprietor who enjoys absolute and indefeasible rights to the exclusion of everyone else. 3. In the instant case, the appellants did not plead the basis for their interference with the suit property and therefore their interference amounts to trespass. 4. In the instant case, no defence was filed challenging the manner of acquisition of the respondent’s title. The evidence given by the appellants was irrelevant for want of pleadings. In the premises, I am satisfied that the respondent proved to be the lawful proprietor of the suit property. The appellants did not contest by way of defence that they were indeed in trespass of the suit property. That being the case, there is no lawful justification for the appellants’ presence on the suit property. Therefore, the trial court was right in ordering permanent injunction and eviction against the appellants. 5. In the premises, the judgment of the trial court is hereby set aside and substituted with the following orders; 6. **The lower court had no jurisdiction to order the Land Registrar and surveyor to demarcate the boundaries of the suit property.** 7. **A declaration is hereby made that the parcel No. Kakamega/Lugari/2362 is the property of the respondent herein.** 8. **The appellants shall vacate parcel No. Kakamega/Lugari/2362 within 90 days of this judgment and in default, eviction orders to issue.** 9. **An order of permanent injunction is hereby issued restraining the appellants herein by themselves, agents or servants from trespassing on parcel No. Kakamega/Lugari/2362. For avoidance of doubt, this order shall take effect upon lapse of 90 days from the date of this judgment.** 10. **The costs of the suit in the lower court are awarded to the respondent.** 11. In view of the findings made in this appeal, each party shall bear its own costs of the appeal. 12. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 21ST DAY OF JULY 2026.** 1. **NYUKURI** **JUDGE** **In the presence of;** Mr. Mondia for the appellants The respondent in person. Court Assistant: Delphine