https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2974

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELC LAND APPEAL NO. E058 OF 2024** **JONATHAN KIBET MURKOMEN** ……....………….…...... **APPELLANT** **VERSUS** **YUNITA NYAKOWA MAKUVA** ………………..……....... **RESPONDENT** **JUDGMENT:** 1. This Appeal emanates from the judgment and decree of Hon. Mukabi Kimani (Principal Magistrate) in ELDORET CMELC NO. 172 of 2019 delivered on 22nd October, 2024. 2. Aggrieved by the said decision, the Appellant lodged the present Appeal against the judgment and decree vide the Memorandum of Appeal dated 15.11.2024 and Amended on 20th February, 2025 outlining the following grounds of Appeal that: - 1. **The learned magistrate erred in law and fact in holding that the defendant’s claim for adverse possession over Uasin Gishu/Kimumu Settlement Scheme/8316 (“the subject property”) succeeds and in so doing:** 2. **Exercised jurisdiction over a matter that is a preserve of the Environment and Land Court.** 3. **Disregarded the express provisions of section 38 of the Limitations of Actions Act which provides that claims for adverse possession fall within the ambit of/ are to be heard by the High Court.** 4. **The learned magistrate erred in law and fact in holding that the Defendant's claim for adverse possession over Uasin Gishu/Kimumu Settlement Scheme/8316 (“the subject property") succeeds and in so doing, granted a prayer/relief that was not sought in any of the prayers in the Defendant's counterclaim.** 5. **The learned magistrate erred in law and fact in holding that the Defendant's counterclaim for adverse possession succeeds. In making this finding, the learned magistrate disregarded the following:** 6. **The Appellant (Plaintiff in the counterclaim) was not the proper party in a claim for adverse possession as his claim/interest in the subject property commenced in 2017;** 7. **A claim for adverse possession as against the Appellant is untenable as the Appellant's interest in the subject property/land commenced in 2017 and not 2005;** 8. **The facts as contained in the counterclaim are unsupportive of a claim for adverse possession;** 9. **There was no prayer/relief for a declaration of adverse possession in the prayers sought in the Defendant's counter claim;** 10. **The learned magistrate erred in law and fact by making a finding that the Appellant had failed to prove ownership of the subject property and in so doing:** 11. **Disregarded the evidence tendered by the Appellant in form of a Title deed to the subject property which is prima facie proof ownership;** 12. **Disregarded the evidence tendered by the Appellant in the form of an official Search from the land registry indicating that the Appellant as the proprietor and absolute owner of Uasin Gishu/Kimumu Settlement Scheme/8316;** 13. **Disregarded the sworn statement by the seller and undisputed owner of the property-Kipruto Chepsitgei (PW1) as to the fact that he sold the subject property to the Appellant vide a land sale agreement dated 19th January 2017.** 14. **The learned magistrate erred in law and fact in making a finding that the subject property being Uasin Gishu/Kimumu Settlement Scheme/8316 belongs to the Defendant/Respondent solely on the basis of existence of an Agreement for sale and that she had been in occupation of the property since 2005 and in so doing:** 15. **Disregarded the fact that the Respondent had not tendered any evidence in the form of Title Deed to the subject property to prove ownership;** 16. **Disregarded the Appellant's evidence in the form of a title deed to the subject property which is prima facie evidence of ownership;** 17. **Disregarded the fact that a Title Deed is an indefeasible proof of ownership of the subject property and consequently the same takes precedence over an Agreement for Sale.** 18. **The learned magistrate erred in law and fact by upholding the Defendant's counterclaim in terms of prayer 1 & prayer 2 which prayers are: (a) a declaration that the transfer process leading to the issuance of the title deed in the name of the plaintiff is irregular and illegal; (b) nullification or cancellation of the Title Deed issued in the name of the Plaintiff in respect to land title number Uasin Gishu/Kimumu Settlement Scheme/8316. Such orders ought to have been made only when the Registrar of Lands is joined to the suit.** 19. **Having failed to appreciate and/or take into account the issues pleaded in (1),(2), (3), (4) (5) and (6) above, the learned magistrate erred in fact and in law arriving at a finding that the subject property belonged to the Respondent and consequently allowed the Counter-claim by the Respondent.** 20. Consequently, the Appellant sought the following Orders: - 21. This appeal be allowed. 22. The Judgment of the Chief Magistrates Court of Kenya at Eldoret (Hon,Mukabi Kimani delivered on 22nd October 2024 in **Magistrates ELC** **No. 172** **of 2019 Jonathan Kibet Murkomen -versus-Yunita *Nyakowa* Makuva** be reversed and/or set aside and be substituted with Orders for: 23. An order declaring the Appellant as the legal and beneficial owner of all that parcel of land known as **Uasin Gishu/Kimumu** ***Settlement*** **Scheme 8316;** 24. An order of permanent injunction restraining the Respondent whether by themselves, their agents, employees or anybody claiming under them or otherwise howsoever from trespassing, forcefully taking possession, demolishing any structure evicting and/or interfering with the Appellant's quiet possession of the parcel of land knownas **Uasin Gishu/Kimumu *Settlement Scheme* 8316;** 25. Any other reliefs as the court may deem fit to grant. 26. costs of this Appeal be awarded to the Appellant as against the respondent. 27. A brief background of the dispute herein to contextualize the appeal; the appellant herein (plaintiff in the trial court) filed a suit vide a Plaint dated 30.10.2019, seeking the following orders; 28. An order that the defendant (now respondent) be evicted from the plaintiff’s parcel of land known as UASIN GISHU/KIMUMU SETTLEMENT SCHEME/8316. 29. An order of permanent injunction restraining the defendant by herself, her servants or agents from pulling down the fence, trespassing onto, or in any way interfering with the plaintiff’s parcel of land known as UASIN GISHU/ KIMUMU SETTLEMENT SCHEME/8316. 30. Such further and/or other orders that this honourable court shall deem fit to grant. 31. Costs of this suit 32. It was the plaintiff’s claim that he is the legal and registered owner of all that parcel of land known as UASIN GUSHU/KIMUMU SETTLEMENT SCHEME/4598316 (hereinafter referred to as the ‘suit land’). That sometimes in September, 2019, the defendant without any color of right forcefully and unlawfully trespassed into the suit land, destroyed the fence, occupied his house, cut down trees and went ahead to cultivate his parcel. 33. It is further his claim that despite several pleas and demands to the defendant to vacate the suit land and to stop encroachment, the defendant has refused to take head or vacate the land. He outlined the particulars of trespass by the defendant. 34. In conclusion, he maintained that the defendant has no proprietary rights over the suit land and urged the court to allow his claim and enter judgment in his favor as sought. 35. The plaintiff’s suit was opposed. The defendant filed a Statement of Defence and Counter Claim dated 14.12.2021. 36. The defendant in her defence denied all the allegations raised against her by the plaintiff and put him to strict proof thereof. 37. It was the defendant’s claim that the registration of the suit land in the name of the plaintiff was obtained fraudulently and irregularly without following the due process laid in law. 38. She averred that she bought the suit land from one Mr. Kipruto Chepsitgei on 04.06.2005 and assumed possession, occupation and use thereof immediately upon payment of the purchase price. She added that she has remained thereon to date. 39. Therefore, by virtue of the said purchase, she obtained beneficial interests in respect to the land and the claim of trespass cannot be sustained against her. 40. In his counter-claim, the defendant sought the following orders against the plaintiff (defendant in the counter-claim): - 41. A declaration that the subject parcel of land known as Uasin Gishu/Kimumu Settlement Scheme/8316 belongs to the Defendant and that the transfer process leading to the issuance of a title deed in the name of the plaintiff with respect to the said parcel of land is irregular and illegal hence void ab initio. 42. Nullification or cancelation of the title deed issued in the name of the plaintiff with respect to the land title number Uasin Gishu/Kimumu Settlement Scheme/8316. 43. A permanent injunction restraining the plaintiff and his agents either severally or jointly from interfering with the defendant’s ownership, possession, occupation and use of the subject parcel being Uasin Gishu/Kimumu Settlement Scheme/8316. 44. Costs of the suit. 45. In the Counter- claim; it was pleaded that the suit land No. 8316 was originally known as parcel No. 156 owned and registered in the name of one Mr. Kipruto Chepsitgei. 46. It is her claim that she bought the said parcel of land from the original owner, Mr. Kipruto Chepsitgei vide a sale agreement dated 04.06.2005 at an agreed consideration price of Kshs. 65,000/- which she paid by cash in full. 47. It is further her claim that pursuant to the said sale, she took immediate possession, occupation and use of the suit land; where she has developed her home and continues to reside on to date. 48. Her claim against the plaintiff is that he fraudulently and/or irregularly obtained title deed in respect to the suit land in his name on 29.10.2018 in blatant disregard of her proprietary rights thereto. 49. She further contends that the said title deed held by the plaintiff was obtained without the requisite consent form the respective LCB thus rendering the transfer process void. 50. In addition, it was her claim that the said Mr. Kipruto Chepsitgei confirmed that he has neither sold nor transferred the suit land to the plaintiff which as a result renders the purported transfer illegal and irregular. 51. The Amended Statement of Defence and Counter-claim was served upon the plaintiff who filed a Reply to the Defence and Defence to Counter-claim dated 09.06.2022; wherein he denied the allegations made therein and reiterated the contents of the plaint in response thereto. 52. Upon close of pleadings, the matter was set down for hearing of the main suit. 53. The plaintiff’s case proceeded for hearing on 28.07.2023. The Plaintiff testified as PW2 and called 4 other witnesses who testified in support of his case. He thereafter closed his case. 54. The defence case proceeded for hearing on 14.11.2023; the defendant testified as DW1 and called 5 other witnesses to testify in support of her case. She thereafter closed her case. 55. Upon close of the defence case, parties filed and exchanged their rival written submissions. Consequently, the suit was determined vide the judgment issued on the 22.10.2024, whose effect was to dismiss the plaintiff’s case and allow the defendant’s counter-claim dated 14.12.2021. The trial court went on to hold that the defendant’s claim on adverse possession succeeds hence the instant appeal. 56. The Record of Appeal was admitted for hearing on 03.11.2025 and the court issued directions on the disposal of the appeal by way of written submissions. The appellant filed his submissions dated 5.12.2025 while the respondent filed her submissions dated 30.3.2026 together with authorities, which I have read and considered. **Analysis and Determination:** 1. This court’s jurisdiction as a first appellate court is to reappraise the evidence or issues which were before the trial court and make its own conclusion. This mandate does not however entail taking on board new issues which were never brought to the trial court’s attention or matters that were not subject of the trial court’s consideration or tribunal as in the instant case. See the Court of Appeal decision in ***Ol Pejeta Ranching Limited vs David Wanjau Muhoro [2017] eKLR***. 2. In case of ***Mbogo & Another*** ***vs Shah [1968] EA*, p.15**the court heldas follows; ***“An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been misjustice.”*** 1. I have carefully considered the grounds in the Amended Memorandum of Appeal, the Record of Appeal and the rival submissions in totality. Consequently, it is my considered view that the main issue for determination is whether this Court should interfere with the trial court’s findings and exercise of discretion by setting aside the judgment delivered on 22.10.2024 and allow the appeal. 2. I will proceed to determine the same on account of the following; - 3. **Who is the actual, beneficial, bonafide and registered owner of the suit land known as UASIN GISHU/KIMUMU SETTLEMENT SCHEME/8316** 4. **Whether the occupation and/or use of the suit land by the appellant amounts to trespass and/or encroachment.** 5. **Whether the appellant proved his claim against the respondent to warrant the grant of the orders sought in the plaint.** 6. **Whether the respondent proved her counter-claim to the required standard to warrant the grant of the orders sought in the Counter-claim.** 7. **Whether the appeal is merited.** 8. **Who should bear the costs of the present appeal.** 9. Having identified the above issues for determination, I will proceed to discuss the same as hereunder. **Who is the actual, beneficial, bonafide and registered owner of the suit land known as UASIN GISHU/KIMUMU SETTLEMENT SCHEME/8316;** 1. The issue of ownership of the suit land known as Uasin Gishu/Kimumu Settlement Scheme/8316 is at the center of the dispute between the parties herein. The same has been raised at grounds 4,5 and 7 of the Amended Memorandum of Appeal. 2. Both parties have laid ownership claims in respect to the suit land. The appellant avers that he is the rightful owner of the suit land, having purchased the same from Nicholas Shikuku vide a sale agreement dated 19.01.2017. That pursuant to the said sale, the land was transferred in his favor, registered and title deed thereto issued on 19.10.2018. 3. The respondent on the other hand has made ownership claim in respect to the suit parcel on account of purchase. It is her claim that she purchased the suit land from one Mr. Kipruto Chepsitgei and Jackson Kibiwott vide an agreement for sale dated 04.06.2005. That the said sale agreement was duly executed and witnessed and she paid the agreed consideration price of Kshs. 65,000/- by cash in full and final settlement. 4. That upon execution of the said sale agreement, she took immediate possession, occupation and use of the suit land, developed the same and has remained therein to date. Consequently, it is her contention that the claim on trespass cannot be sustained against her. Efforts to have the same transferred in her favor has been futile. 5. The appellant avers that he produced a copy of the title deed as well as a copy of certificate of official search in respect to the suit land. However, upon perusal of the trial court record as well as the Record of Appeal, I do note that during the examination in chief of the appellant, who testified as PW2, there was no production of the documents contained in the list of documents as exhibits in support of the appellant’s case. The court did not mark the said documents as plaintiff’s exhibits in support of the appellant’s case. 6. Be that as it may, it is clear from the pleadings filed in the trial court that the suit land is registered in the name of the appellant. In his amended memorandum of appeal, the appellant has argued that the said title deed should be taken as prima facie evidence of ownership. 7. The Court of Appeal in ***Munyu Maina vs Hiram Gathiha Maina [2013] eKLR*** held that where an instrument of title is challenged, such proprietor must go beyond the instrument to prove legality: ***“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”*** 1. Guided by the Court of Appeal decision above, the burden of proof shifted to the appellant upon the challenge raised on the process of acquisition of the title deed in his name by the respondent. The appellant therefore had a duty to demonstrate and sufficiently prove the root of his title in respect of the suit land by proving the legality of his acquisition and going beyond the instrument. 2. I have critically considered the pleadings, the testimony of the PW1, PW2, PW3 and PW4 as well as the testimony of DW1, DW2, DW3 and DW4 in totality. 3. The appellant who testified as PW2 during cross-examination confirmed that he had neither obtained the requisite consent from the LCB nor produced the necessary transfer documents in support of his case. It is therefore not clear and certain that whether the procedure used in the transfer and subsequent registration of the of the title deed in the name of the appellant was fully complied with and was therefore lawful and procedural. 4. Further, this court has noted the discrepancies surrounding the purchase of the suit land by one Nicholas Shikuku, who subsequently sold the same to the appellant. It is important to note that the sale agreement produced by the appellant witness PW4 was dated 26.02.2009. By that time, the sale agreement between the respondent and Kipruto Chepsitgei dated 04.06.2005 had already been completed. 5. Even though Nicholas Shikuku, who testified as PW4 maintained that there was a previous sale agreement between him and the Kipruto Chepsitgei entered in the year 2005, and that the same had burnt down, there was no evidence in support of the said averments. 6. The question that therefore follows is whether Nicholas Shikuku passed a good title to the appellant herein. My answer is in the negative for the reason that the sale agreement issued between the said Nicholas and Kipruto was after the initial sale agreement by the respondent and the same Kipruto in respect to the suit land. 7. In addition, Mr. Kipruto Chepsitgei, who testified as PW1 on cross-examination and re-examination testified that he does not know Nicholas Shikuku and has never sold the same to him. 8. To this end therefore, in the absence of any supporting documents to justify and support his registration as the owner of the suit land and having failed to satisfactorily explain the root of his title to the required standard, this court is unable to find that the appellant herein is the absolute and indefeasible owner of the suit land herein. This court cannot, based on the indefeasibility of title sanction irregularities and illegalities. In essence therefore, this court finds that the appellant has failed to prove his ownership claims to the required standard. 9. The appellant is at liberty to file for the necessary recourse against the said vendor Mr. Nicholas Shikuku, who subsequently sold the suit parcel to the appellant herein. 10. The respondent has also maintained that she is the rightful owner of the suit land. However, I must point out that save for the sale agreement dated 04.06.2005 produced as Dexh. 1 and the Extract of the Green Card, the respondent did not adduce any ownership document. Be that as it may, I find that from the testimonial evidence, I find that the respondent is the beneficial owner of the suit land. **Whether the occupation and/or use of the suit land by the appellant amounts to trespass and/or encroachment;** 1. It was the appellant’s claim that sometimes in September 2019, the respondent without any color of right, justification, authority or consent entered, trespassed into and/or encroached into the suit land and has refused to yield vacant possession despite several demands. 2. The respondent denied the said claims of trespass and/or encroachment and maintained that her possession, occupation and use of the suit land was pursuant to a valid sale and thus the claims on trespass cannot be sustained against her. 3. Section 3 (1) of the Trespass Act, Cap 294provides 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.”*** 1. In view of the finding in issue No. (i) above, this court is of the considered view that the respondent’s occupation, possession and use does not amount to trespass and/or encroachment as alleged by the appellant. **Whether the appellant proved his claim against the respondent to warrant the grant of the orders sought in the plaint;** 1. This issue seeks to examine and re-evaluate whether the appellant proved his case in the trial court to warrant the grant of the orders sought in the plaint. 2. The appellant in his plaint sought an order for eviction and permanent injunction against the respondent from the suit land. 3. In light of the finding in issue no. (i) above which is to the effect that the appellant has failed to prove his ownership claims to the required standard, this court finds that the he is not entitled to the grant of orders of eviction of the respondent form the suit land of an order of permanent injunction, restraining the respondent from occupation and use of the suit land as sought. 4. In the premises, this court finds that the appellant is not entitled to the orders sought against the respondent in the plaint. Consequently, prayer no. (b) sought in the amended memorandum of appeal is not merited and the same fails. **Whether the respondent proved her counter-claim to the required standard to warrant the grant of the orders sought in the Counter-claim;** 1. The respondent in her counter-claim sought declaratory orders that she is the owner of the suit land. She also sought an order of nullification and/or cancellation of the title deed held by the appellant, permanent injunction as well as costs of the suit. 2. The appellant in response to the claims by the respondent in the counter-claim reiterated that the contents of his plaint and maintained that he is the actual and rightful owner of the suit land and urged the court to dismiss the counter-claim with costs. 3. The appellant having failed to satisfactorily explain and demonstrate the root of his title deed, this court finds that the same is ripe for nullification for the reasons outlined in issue no. (i) above, which I do not seek to restate. A title in respect to a parcel ofland is an end product of a process. If the process that was followed prior to the issuance of the title did not comply with the law, then such cannot be held as an indefeasible title as the same should be nullified. See Supreme Court decision in ***Ding Management Ltd vs County Government of Mombasa & 5 others*** Petition 8 ***(E010 of 2021 KESC 30 KLR*** (21April, 2023). 4. Consequently, this court finds that the respondent is entitled to orders (b) and (c) in the counter-claim. **Whether the appeal is merited;** 1. The duty of an appellate court is now well settled; an appellate court will not interfere with findings of fact unless they are based on no evidence, a misapprehension of the evidence, or the wrong application of legal principles. 2. The appellant in his amended memorandum od appeal at grounds 1, 2 and 3 has challenged the decision of the trial court on account of the doctrine of adverse possession. 3. It is the appellant’s claim that the trial court exercised jurisdiction in a matter that is a preserve of the ELC, granted orders that were not sought in the counter-claim nor proved by the facts as contained in the pleadings. 4. I have carefully looked at the respondent’s statement of defence and counter-claim dated 14.12.2021 contained at page 70-75 of the Record of Appeal and it is important to point out that there was no such order of adverse possession sought in the counter-claim. 5. It is well settled principle of law that a court cannot grant a relief that was not sought in the pleadings and/or prayed for. To this end, I agree with the appellant that the trial court erred in finding that the defendant’s counter-claim on adverse possession was merited. The same was neither pleaded nor sought and the court therefore misapprehended itself in arriving at the said finding. 6. Taking the totality of the determination of the issues above, this court finds that the appeal is not merited save on the issue of adverse possession as contained in grounds 1,2 and 3 of the amended memorandum of appeal and as discussed above **Who should bear the costs of the present appeal*;*** 1. The general rule is that costs shall follow the event in accordance with the proviso to section 27 of the Civil Procedure Act unless the court directs otherwise. 2. In view of the circumstances of this case and the findings above, which are to the effect that the appeal is partially merited on account of the issue of adverse possession alone, this court finds that it is necessary for each party to bear their own costs of the appeal. **CONCLUSION:** 1. In the upshot, I accordingly find that the Amended Memorandum of Appeal dated 20th February, 2025 is **partially merited** and the court hereby makes the following orders: - 2. **The appeal is allowed only to the extent of grounds 1,2 and 3 in the Memorandum of Appeal in respect to the issue of adverse possession.** 3. **Consequently, the trial court’s finding vide the judgement dated 22nd October, 2024 be and is hereby set aside and the same substituted with an order for the Nullification of the title deed in respect to the parcel of land known as UASIN GISHU/KIMUMU SETTLEMENT SCHEME/8316 issued in the name of Jonathan Kibet Murkomen.** 4. **An order of permanent injunction be and is hereby issued restraining the appellant either by himself, agents and/or servants from interfering with the respondent’s possession, occupation and use of the parcel of land known as UASIN GISHU/KIMUMU SETTLEMENT SCHEME/8316.** 5. **Each party to bear their own costs of the appeal.** 6. It is so ordered. **DATED**, **SIGNED** and **DELIVERED** in **ELDORET** this **14th** day of **MAY, 2026.** **HON. C. K. YANO** **JUDGE** In the virtual presence of: - Ms. Soi for Appellant Ms. Chelogoi for Respondent Court Assistant – Laban