https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4367

Njiru v Kamunge & 2 others (Environment and Land Appeal E039 of 2025) [2026] KEELC 4367 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4367 (KLR) Republic of Kenya In the Environment and Land Court at Embu Environment and Land Appeal E039 of 2025 EC Cherono, J July 9, 2026 Between Joseph Njue Njiru Appellant and Ephantus Njagi Kamunge 1st Respondent Douglas Wakaba Njagi 2nd Respondent Jacob Njeru Karuraa 3rd Respondent (Being an appeal from the Judgment of Hon. Francis Kyambia (Chief Magistrate) delivered on 13th May 2025 in Embu CM-ELC No. 162 of 2018) Judgment 1.This is a first appeal arising from the judgment of the Chief Magistrate delivered on 13th May 2025 dismissing the Appellant's suit with costs. Being a first appellate court, this Court is under a duty to re-evaluate and reconsider the evidence tendered before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The principles governing the exercise of that jurisdiction were settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424. 2.The Appellant, who was the plaintiff before the subordinate court, had sought orders for the eviction of the Respondents from Land Parcel No. Gaturi/Githimu/4250, revocation of all subdivisions arising from Parcel No. Gaturi/Githimu/4249, rectification of the land register to reflect Parcel No. Gaturi/Githimu/4249 as measuring 1.21 hectares and Parcel No. Gaturi/Githimu/4250 as measuring 2.03 hectares, together with consequential amendment of the Registry Index Map and costs of the suit. His case was founded on the contention that during the subdivision of the original parcel Gaturi/Githimu/1264, the acreage and parcel numbers relating to Parcels No. 4249 and 4250 were erroneously interchanged at the Lands Registry, thereby resulting in the Respondents occupying land which properly belonged to him. 3.After hearing four witnesses for the plaintiff and three witnesses for the defence, the learned trial magistrate held that the dispute was essentially a boundary dispute falling within Sections 18 and 19 of the Land Registration Act, found himself bound by the findings of the Land Registrar, and further held that the Appellant had delayed unreasonably in bringing the claim after the subdivisions had been effected in 1987. Consequently, the suit was dismissed. 4.Being dissatisfied, the Appellant lodged the present appeal contending, among other grounds, that the learned magistrate erred in treating the matter as a boundary dispute; in failing to appreciate that the Land Registrar had identified an error in the registry records; in concluding that the Land Registrar had conclusively determined the dispute; in finding that delay defeated the claim; and in failing to appreciate the evidence demonstrating that the registry records contained an interchange of parcel numbers and acreage. 5.I have carefully considered the record of appeal, the evidence adduced before the trial court, the memorandum of appeal and the written submissions filed on behalf of the Appellant. The Respondents did not file submissions. 6.The central issue for determination is whether the learned trial magistrate properly appreciated the nature of the dispute and whether the evidence justified the dismissal of the Appellant's claim. 7.The evidence before the trial court establishes that Land Parcels Gaturi/Githimu/4249 and Gaturi/Githimu/4250 originated from the subdivision of the mother parcel Gaturi/Githimu/1264. It is equally not disputed that the Appellant became the registered proprietor of Parcel No. Gaturi/Githimu/4250 in 1987 after an exchange transaction with the late Stephen Njeru Kiboko. His complaint is that although the mutation sketches correctly reflected Parcel No. 4250 as measuring 2.03 hectares and Parcel No. 4249 as measuring 1.21 hectares, the entries made in the register and the resultant titles reflected the converse position. 8.To support his case, the Appellant relied upon the testimony of PW2, a licensed surveyor, who stated that the mutation form contained inconsistent entries and that the clerical recording on one page did not correspond with the survey sketch on another page. PW2 opined that there had been an interchange of parcel numbers and acreage during preparation of the registry records. The Appellant also relied upon the report prepared pursuant to the court order by the Land Registrar and County Surveyor dated 11th February 2021. 9.The Land Registrar (PW3) confirmed that inconsistencies existed in the mutation records and that there appeared to have been an interchange in the documentary entries relating to acreage. Likewise, the County Surveyor (PW4) acknowledged inconsistencies in the registry documentation. 19.However, a careful reading of the evidence reveals an equally important aspect which appears to have been overlooked by the Appellant. Both PW3 and PW4 consistently testified that notwithstanding the documentary inconsistencies, the physical occupation on the ground had remained unchanged since the original subdivision. PW3 confirmed during cross-examination that the Appellant occupies the same parcel reflected on the ground. PW4 was categorical that every proprietor occupies his respective parcel as demarcated during the original survey and that the apparent error existed only in the documentary records. He further testified that no proprietor was shown to have physically occupied another person's parcel. 11.That evidence was corroborated by the defence witnesses. The Respondents testified that they respectively purchased their parcels as subdivisions of Parcel No. 4249, were shown the parcels by their vendors, entered into possession lawfully and have remained in occupation for many years while undertaking substantial developments. Their evidence remained largely unchallenged. Indeed, DW3 testified that the Appellant himself encouraged him to purchase his parcel, an assertion which was never effectively rebutted. 12.With tremendous respect, I am unable to agree with the learned trial magistrate that the dispute before him was merely a boundary dispute contemplated under Sections 18 and 19 of the Land Registration Act. Those provisions principally deal with uncertainty regarding the position of boundaries between adjoining parcels. The dispute before the subordinate court concerned an alleged clerical interchange of parcel numbers, acreage and registry records following subdivision and the consequential rectification of titles. Such a dispute involves questions of title and rectification of the register which fall squarely within the jurisdiction of the courts exercising jurisdiction under Article 162(2)(b) of the Constitution and the Environment and Land Court Act. The court therefore had jurisdiction to determine the matter and erred in declining to interrogate the dispute on the mistaken premise that it was purely one of boundary determination. 13.Nevertheless, the fact that the trial court mischaracterized the dispute does not automatically entitle the Appellant to the remedies sought. An appellate court may uphold a decision where the ultimate conclusion is correct although the reasons given were erroneous. 14.The Appellant sought drastic remedies including eviction of the Respondents, cancellation of all subdivisions arising from Parcel No. 4249 and rectification of the land register. Such reliefs could only issue upon clear and cogent evidence establishing that the Respondents were unlawfully occupying the Appellant's land or had fraudulently procured registration of their titles. 15.Fraud was pleaded by the Appellant. However, it is now well settled that allegations of fraud must not only be specifically pleaded but must also be strictly proved to a standard higher than a balance of probabilities though not beyond reasonable doubt. This principle has been consistently affirmed in Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, Kinyanjui Kamau v George Kamau [2015] eKLR and Arthi Highway Developers Ltd v West End Butchery Ltd & Others [2015] eKLR. 16.Having independently reviewed the evidence, I find no proof that any of the Respondents participated in or had knowledge of the alleged clerical interchange during preparation of the registry records in 1987. On the contrary, the evidence demonstrates that they are subsequent purchasers who acquired their respective parcels years later and entered into possession after being shown the parcels by their vendors. No evidence was tendered demonstrating that they procured registration through fraud, misrepresentation or any illegal means. 17.Further, while the evidence points to inconsistencies in the mutation documents and registry entries, it equally establishes that the physical occupation of the land has remained consistent from the time of subdivision. The Appellant himself has remained in occupation of the parcel allocated to him since 1987. The Respondents have similarly occupied and extensively developed their respective parcels over many years. The Land Registrar and County Surveyor did not recommend the eviction of any proprietor. Their concern related principally to inconsistencies in registry documentation. 18.It is equally significant that the Appellant sought cancellation of all resultant subdivisions from Parcel No. 4249. Those subdivisions involve proprietors who are not parties to these proceedings. It would be contrary to the rules of natural justice and the constitutional guarantee of a fair hearing under Article 50 of the Constitution to cancel titles affecting persons who have neither been joined to the proceedings nor afforded an opportunity to be heard. As was stated by the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR, no adverse orders should be made against a person without according that person an opportunity to be heard. 19.The learned trial magistrate also relied on delay in bringing the suit. While I agree with the Appellant that delay alone cannot defeat a claim where an error is discovered much later, the lapse of over three decades before the dispute was raised is nevertheless a relevant consideration when the court is invited to disturb long-settled occupations, cancel titles and undo subdivisions affecting innocent purchasers who have extensively developed their land. Equity invariably leans against disturbing longstanding proprietary interests in the absence of compelling evidence of fraud or illegality. 20.Having re-evaluated the entire record, I am satisfied that although the learned trial magistrate erred in holding that the dispute was purely one of boundary determination under Sections 18 and 19 of the Land Registration Act, he ultimately reached the correct conclusion in dismissing the Appellant's suit. The evidence on record does not establish that the Respondents are occupying the Appellant's land or that they acquired their titles through fraud or any unlawful conduct. Neither does the evidence justify the far-reaching orders of eviction, cancellation of subdivisions and rectification of the register sought by the Appellant. 21.Accordingly, this appeal succeeds only to the limited extent that this Court sets aside the finding that the dispute was purely a boundary dispute outside the jurisdiction of the court. In all other respects, the appeal lacks merit. 22.The judgment of the Chief Magistrate delivered on 13th May 2025 dismissing the Appellant's suit is hereby upheld, albeit for the reasons set out in this judgment. 23.Given that the dispute appears to have arisen from historical inconsistencies in registry records rather than deliberate misconduct by the Respondents, and considering the peculiar circumstances of this matter, I direct that each party shall bear his own costs of this appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT EMBU THIS 9TH DAY OF JULY, 2026..................................................HON. E.C CHERONOELC JUDGE. EMBUIn the presence of;Mr. Andande for the AppellantM/S Migwi for the RespondentRuth – Court Assistant