https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4022

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CIVIL APPEAL NO. E075 OF 2023** **JOSEPH KARANJA MUHINJA** **………………….….…………….** **APPELLANT** **VERSUS** **FRANCIS KINUTHIA KAARA ……..………………..…….. 1ST RESPONDENT** **ELIJAH NGUGI NJOROGE …………………....………..… 2ND RESPONDENT** **PETER KARIUKI NGIGE ……………………...………..…. 3RD RESPONDENT** **STEPHEN THUO GITAU ……………...……………….…… 4TH RESPONDENT** **NEWTON KURIA GICHAU ………………………...…….… 5TH RESPONDENT** **ELIZABETH WAITHERA …………………………………… 6TH RESPONDENT** **MARAGARET NGAMI NDUNGU …………...…………….. 7TH RESPONDENT** **NDUNGU NJOROGE ………………...………………………. 8TH RESPONDENT** **RUIRU LAND REGISTRAR …………………………….….. 9TH RESPONDENT** ***(Being an Appeal from the judgment of the Hon. C. K. KISIANGANI Principal Magistrate delivered on 16th November, 2023 in MCL & E. Case No. E183 of 2021 RUIRU)*** **JUDGMENT** **Introduction** 1. In a judgment delivered on 16th November 2023, the Honourable C. K. Kisiangani, Principal Magistrate at Ruiru, found that the Appellant had failed to prove, on a balance of probabilities, his claim to ownership of and entitlement to the parcel of land known as Ruiru East/Block 1/1516. 2. Consequently, the learned Magistrate dismissed the suit with costs to the 1st to 8th Respondents. 3. Aggrieved by that decision, the Appellant lodged the present appeal vide a Memorandum of Appeal dated 14th November 2023 contending that the trial court erred both in fact and in law in dismissing his claim. In essence, the Appellant asserts that the learned Magistrate misapprehended the evidence on record, failed to properly appreciate the issues arising for determination, and consequently arrived at an erroneous conclusion regarding the ownership and entitlement to the suit property. 4. The Appellant's claim before the trial court was founded on an alleged purchase of parcel of land known as Ruiru East/Block 1/826 from one Kenneth Kariuki Githii pursuant to a sale agreement dated 7th August 1986. He asserted that, by virtue of that transaction, he acquired a valid interest in the said parcel. 5. The 1st to 6th Respondents, on the other hand, claimed ownership of parcel of land known as Ruiru East/Block 1/1516 and asserted a lawful entitlement thereto. 6. The record reveals that both the Appellant and the Respodents trace the origin of their respective parcels to ballot card No. 826 issued by Githunguri Constituency Ranching Company Limited. 7. Against that backdrop, the Appellant commenced proceedings before the trial court by way of a Plaint dated 21st December 2021. In the suit, the Appellant sought *inter alia* a declaration that the land arising from ballot card No. 826, namely parcel number Ruiru East/Block 1/826, belonged to him; an order directing the Land Registrar, Ruiru, to cancel title number Ruiru East/Block 1/1516 together with any titles that may have arisen from its subdivision; mesne profits in respect of the suit property; and costs of the suit. 8. At the trial, the Appellant testified as PW1 in support of his claim and adopted his witness statement and bundle of documents as part of his evidence. To establish his claim, the Appellant relied on *inter alia* the sale agreement dated 7th August 1986, a copy of the title deed issued to Kenneth Kariuki Githii for land parcel Ruiru East/Block 1/826, a copy of his title deed dated 13th August 1986, letter to the commissioner of lands dated 18th February 1986, application for consent, the letter of consent, a statement from Kenneth Kairuki Githii and the Green card. The Appellant maintained that the documents demonstrated that parcel Ruiru East/Block 1/826 was the parcel allocated pursuant to ballot card No. 826. 9. The suit was vehemently contested by the Respondents vide a statement of defence dated 6th January 2022. The 1st to 6th Respondent’s case was presented through the testimony of the 2nd and 7th Respondents who testified as DW1 and DW2 respectively. The 1st to 6th Respondents in disputing the Appellant's claim relied on their own documentary evidence, including *inter alia* the sale agreement dated 4th October 2007, a copy of the title deed for Ruiru East/Block 1/1516, a copy of the clearance dated 14th September 2007 from Githunguri Constituency Ranching Company Ltd, ballot card no. 826 to contend that parcel Ruiru East/Block 1/1516 emanated from ballot card no. 826. 10. The matter proceeded to a full hearing before the trial court culminating in the judgment delivered on 16th November 2023 dismissing the Appellant suit with costs. Dissatisfied with that outcome, the Appellant has now invited this Court to revisit the findings and conclusions reached by the trial court. **The Appeal and Submissions** 11. A perusal of the Memorandum of Appeal dated 14th December 2023 reveals that the grounds of appeal may be condensed into three broad complaints, namely: whether the trial court properly evaluated the evidence before it; whether it correctly determined the parties' competing claims arising from Ballot Card No. 826; and whether its ultimate conclusion dismissing the Appellant's suit was justified on the evidence and the law. 12. On the strength of the foregoing grounds, the Appellant urges this Court to interfere with the judgment of the trial court. He invites the Court to set aside the impugned decision, allow the appeal, and further prays for the costs of this appeal. 13. Counsel for the Appellant submits that the appeal turns on the proper identification of the parcel attributable to ballot card No. 826. They contend that the Ruiru East/Block 1/826 emanated from the ballot and the Appellant is therefore entitled to the prayers sought. 14. Counsel for the Appellant further submits that the evidence placed before the trial court demonstrated that parcel Ruiru East/Block 1/826 emanated from the said ballot allocation issued by Githunguri Constituency Ranching Company Limited and that the Appellant has consequently established a lawful entitlement thereto. Learned counsel for the Appellant maintained that the trial court failed to properly appreciate the documentary evidence tracing the Appellant's claim to the ballot card and, as a result, arrived at an erroneous conclusion. The Court is accordingly urged to allow the appeal and grant the reliefs sought in the Plaint. 15. Learned counsel for the 1st to 6th Respondents submits that the dispute ultimately turns on whether parcels Ruiru East/Block 1/826 and Ruiru East/Block 1/1516 were one and the same property. Counsel contends that although the Appellant asserted that parcel Ruiru East/Block 1/826 emanated from Ballot No. 826, he failed to produce the ballot card or any other cogent evidence linking the ballot allocation to the suit property. It is therefore submitted that the Appellant's claim remains unsubstantiated. 16. Counsel for the Respondents submits that the 1st Respondent demonstrated a lawful proprietary interest in parcel Ruiru East/Block 1/1516 which he subsequently subdivided and transferred to the 2nd to 6th Respondents. In support of that contention, the Respondents produced *inter alia* the title documents relating to parcel Ruiru East/Block 1/1516 together with a letter dated 14th September 2007 from Githunguri Constituency Ranching Company Limited confirming, according to the company's records, that the 1st Respondent was the registered proprietor of parcel Ruiru East/Block 1/1516 and the holder of Ballot No. 826. Counsel submits that this evidence firmly established the genesis of the 1st Respondent's title and vindicated the trial court's findings. On that basis, the Court is urged to uphold the impugned judgment in its entirety and dismiss the appeal with costs. **Issues for Determination** 17. Having considered the appeal, the record of the trial court, and the rival submissions of counsel, the key question falling for determination is: *whether the trial court erred in finding that the Appellant had failed to establish his entitlement to parcel Ruiru East/Block 1/1516*. **Analysis and Determination** 18. This being a first appeal, the Court is enjoined to subject the entire record to a fresh and exhaustive scrutiny, to re-evaluate the evidence adduced before the trial court, and to draw its own independent conclusions therefrom. In undertaking this task, the Court remains mindful that it neither saw nor heard the witnesses testify and must therefore accord due deference to the trial court's advantage in assessing their demeanour and credibility. The governing principles are well settled and find classic expression in **Selle v Associated Motor Boat Co. Ltd [1968] EA 123** 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 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 or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).” 19. The controversy before the Court arises from the competing narratives advanced as to the root of ballot card no. 826. The Appellant's case is that the ballot found expression in parcel Ruiru East/Block 1/826 and that parcel Ruiru East/Block 1/1516 was subsequently and improperly associated with the allocation. The Respondents, on the other hand, maintained that parcel Ruiru East/Block 1/1516 was the parcel lawfully traceable to Ballot No. 826. 20. The dispute is therefore not one of ownership in the conventional sense. It is a dispute as to origin. Beneath the competing claims to the land lies a more fundamental inquiry: what parcel, if any, emerged from the allocation represented by ballot no. 826? 21. A consideration of the record shows that both sides placed reliance upon documentary material emanating from the allocation process undertaken by Githunguri Constituency Ranching Company Limited. The inquiry encompasses the extent to which the documentary trail discloses continuity between the original allocation, the subsequent identification of the parcel, and the eventual assertion of rights over the land. 22. That inquiry is further informed by Sections 112 and 116 of the Evidence Act. 23. Section 112 of the Evidence Act provides that: *“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”* 24. Section 116 on the other hand provides that: *“When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”* 25. These provisions embody a principle of enduring relevance in disputes concerning land, that is, the law places the burden of explanation where knowledge resides and the burden of rebuttal where possession is shown. Thus, a party who traces his claim through a particular process of allocation or transfer bears the evidential burden of explaining the origin and legitimacy of that claim, those matters being peculiarly within his knowledge. 26. Equally, possession is not an evidentiary neutral. While it does not, without more, confer title, it is a circumstance to which the law attaches significance and which demands an answer from the party who contests the interest thereby asserted. 27. The Appellant therefore bore the burden of providing a credible evidentiary basis for displacing the Respondents' claim over Ruiru East/Block 1/1516. 28. It is now settled that where rival claims to land spring from a common source, the inquiry cannot begin and end with the production of a document of title. The court must examine the lineage of each claim and the process by which the asserted rights emerged, for the validity of a title is often illuminated not by its existence alone, but by the legality and regularity of the journey that produced it. 29. That principle was succinctly articulated by the Court of Appeal in ***Munyu Maina v Hiram Gathiha Maina* [2013] eKLR** where the court stated: *“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.”* 30. Essentially, a challenge to the root of title is not answered by the production of title documents alone. It invites scrutiny of the entire transactional and evidential history through which the asserted right is said to have arisen. The decisive question becomes not whether a document exists, but whether the process that produced it withstands legal examination. 31. In the present case, that question yielded no satisfactory answer as to the origin of the Appellant's claimed interest. The Appellant contended that Ballot No. 826 gave rise to parcel Ruiru East/Block 1/826 and that the land presently comprised in parcel Ruiru East/Block 1/1516, together with its resultant subdivisions, was improperly registered and ought therefore to be cancelled. However, the evidentiary basis for that contention was not established. The Appellant produced the title to Ruiru East/Block 1/826 but did not produce the ballot allegedly corresponding to his claim, nor did he tender any records or confirmation from Githunguri Constituency Ranching Company Limited demonstrating that ballot no. 826 was allocated to the parcel now known as Ruiru East/Block 1/826. 31. Conversely, the Respondents placed before the Court documentary evidence tracing the origin of parcel Ruiru East/Block 1/1516 to ballot no. 826. That evidence provided a discernible chain connecting the allocation process to the title under challenge. 32. The dispute is not merely about the existence of competing titles; it concerned the identity of the land generated by ballot no. 826. The burden lay upon the Appellant to demonstrate, on a balance of probabilities, that the ballot upon which he relied culminated in parcel Ruiru East/Block 1/826 and not parcel Ruiru East/Block 1/1516. 33. Having reconsidered the evidence on record, I find that the Appellant has not discharged that burden. The evidential link between ballot no. 826 and parcel Ruiru East/Block 1/826 remains unestablished. 34. In the circumstances, the Appellant's challenge to the Respondents' title lacks the evidentiary foundation necessary to succeed. 35. Accordingly, I find no basis upon which to interfere with the trial court's findings on ownership of the suit property. The Appellant failed to prove his claim on a balance of probabilities, and the appeal on this issue is therefore devoid of merit. 36. The appeal is hereby dismissed with costs to the Respondents. It is so Ordered. **Dated, Signed and Delivered virtually at Thika this 29th day of May 2026** …………………….. **J. M. ONYANGO** **JUDGE** **In the presence of:** Mr Muthomi for the 1st – 6th Respondents No appearance for the Appellants Court Assistant: Hinga