https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5308

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI** **ELCA NO. E013 OF 2024** **MOSES KARIUKI KINYUA..................................................1ST APPELLANT** **EMMANUEL MARUGA WACHIRA..................................2ND APPELLANT** **-VERSUS-** **JAMES KIRAGU GICHU..........................................................RESPONDENT** ***(An appeal against the judgment rendered by Hon. Faith Munyi on 7th March 2024, in the Nyeri Chief Magistrate's Environment and Land Court Case No. E007 of 2020).*** **JUDGMENT** 1. The Appellants herein have appealed against the judgment delivered by Hon. Faith Munyi on 7th March 2024, in **Nyeri Chief Magistrate's ELC Case No. E007 of 2020.** The Memorandum of Appeal, dated 5th April 2024, articulates that the appeal is founded upon the following grounds: 2. **The Learned Trial Magistrate erred both in law and in fact by dismissing the Appellants' case and evidence in favour of the Respondent.** 3. **The Learned Trial Magistrate erred both in law and in fact by making a finding that was not based on the pleadings and evidence, thereby departing from the facts.** 4. **The Learned Trial Magistrate erred both in law and in fact by finding that the Appellants had not proven their case on the balance of probabilities.** 5. **The Learned Trial Magistrate erred both in law and in fact by filling gaps in the Plaintiff’s/Respondent's case to make a finding in their favour.** 6. **The Learned Trial Magistrate erred both in law and in fact by outrightly favouring the Respondent and making a finding that would defeat the ends of justice despite being aware that the Appellants were entitled to a share in their ancestral land.** 7. The Appellants respectfully request that: 8. **This Appeal be allowed, the judgment delivered on 7th March, 2024 be set aside, and the Appellants' claim in the lower Court be upheld.** 9. **The Respondent shall bear costs associated with this appeal and those in the trial court.** **Summary of the suit before the Trial Court** 1. The suit in the trial court was instituted vide Plaint dated 16th September 2020, in which the Plaintiff, who is the Respondent herein, averred that at all material times to the suit, he has been the registered owner of LR. No. Ruguru/Gachika/1200, measuring 0.444 Ha. 2. That on or about the 16th of April 2020, the Defendants trespassed onto his land and maliciously destroyed and felled mature eucalyptus trees, gravellier trees, and other indigenous trees. Also, they destroyed the barbed and phobia boundary fence surrounding the entire Plaintiff’s land. 3. The Plaintiff thus prayed for the following orders: 4. **General damages for the loss and damage done.** 5. **An order of eviction against the Defendants to vacate the land.** 6. **A permanent injunction order restraining the Defendants from trespassing upon the Plaintiff’s land.** 7. **An order against the County Land Registrar to pick beacons and boundaries of the Plaintiff’s land.** 8. **Costs of the suit.** 9. The Defendants filed a joint statement of defence denying the allegations in the Plaint and averring that they have at all times been lawfully occupying the suit parcel of land, and that the registration of the suit land in the Plaintiff’s name was obtained through fraud. 10. The hearing of the suit commenced on 13 December 2022, when PW 1, the Plaintiff, gave his evidence, adopting his witness statement and his bundle of documents as evidence in chief. He stated that he bought the suit land from Robert Maina in 2012. 11. Upon cross-examination, he stated that he knew the seller, Robert Maina, who held a title deed to the suit land issued in 1997 and had, in turn, bought it from one Kariuki. He denied knowing whether the land was ancestral and denied knowledge of anyone buried there. 12. PW 2, Robert Maina, also gave evidence for the Plaintiff’s case and adopted his witness statement as his evidence in chief. Therein, he stated that he bought the suit land from Kariuki Mathira, his father’s older brother, for Ksh.46,000/= around 1993. In 1994, the larger parcel of land was demarcated into 6 portions: LR Numbers 1197, 1198, 1199, 1200, 1201, and 1202. LR 1200 was registered in his name on 25th February 1997, during the original owner's lifetime. He stated that he planted eucalyptus trees and gravellier trees, and erected a phobia fence all around, as well as barbed wire. 13. On 1st March 2012, he entered into a sale agreement with the Plaintiff herein, who bought the suit land for a consideration of Kshs.700,000/=. The land was duly transferred in the Plaintiff's name, and a title deed was issued to him. He was later informed of the destruction and interference with the suit property. As he could not travel due to the COVID-19 restrictions, he took photos to send to the Plaintiff and also reported the matter to Kiganjo Police Station on his behalf. 14. On cross-examination, PW 2 highlighted that the Defendants are his cousin’s children and that one of the original owner’s children threatened to commit suicide and pressured his father into selling the land. He stated that they followed due procedure and attended the Land Board to obtain consent before transferring the land to the Plaintiff. He also noted that 2 children were present when the surveyor visited the land during the subdivision process. 15. DW 1, the 1st Defendant, gave evidence for the Defence. He adopted his witness statement dated 16th September 2021 as his evidence-in-chief. In his statement, he denied trespassing onto the Plaintiff’s land and destroying vegetation, stating that nothing was planted by the Plaintiff as alleged. 16. DW 1’s statement was that he grew up on the suit land, was raised there by his deceased father, and that there are graveyards of his relatives there dating back to the 1980s. 17. He stated that the Plaintiff is a stranger to him and that he obtained the suit land through fraud, adding that the subdivisions were carried out without their knowledge. He further stated that his grandfather, Mr Kariuki Mathira, could not disinherit them and give the land to Robert Maina. 18. DW 2, Emannuel Wachira, the 2nd Defendant, gave evidence in Court and adopted his witness statement dated 16th September 2021 as his evidence in chief. He further stated that he grew up on the suit land and that the Plaintiff obtained the land through fraud. On cross-examination, he stated that they carried out succession for the entire parcel of land and that the Plaintiff was not part of the succession. 19. DW 3, Joseph Mwangi Kariuki, also adopted his witness statement as evidence. In it, he stated that he is the son of Kariuki Mathira, the original owner of LR Ruguru/Gachika/27, which was shared equally between his father's two wives (households). He denied that his father sold his portion to Robert Maina in 1995, stating that no family witness was called to attest to the purported sale. He prayed that the Court cancel the resulting subdivisions, stating that he wished his portion returned to him, since the sale of the suit land was fraudulent and illegal. 20. Judgment was delivered by the trial court, which was satisfied that the Plaintiff had proven his case on the balance of probabilities and found in favour of the Plaintiff. The Appellants seek to appeal from this decision. 21. The parties filed written submissions, which the Court has duly read and considered. **Analysis and determination.** 1. As the first appellate court, this tribunal is obliged to reassess the entirety of the evidence on record from a renewed perspective and with an impartial outlook. It must evaluate and re-examine the evidence presented in the trial court, bearing in mind that it did not have the opportunity to observe or hear the parties' testimonies. The role of an appellate court was articulated in the case of **Gitobu Imanyara & two others v Attorney General [2016] eKLR**, wherein the Court of Appeal stated that; ***“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.”*** 1. Having reviewed all the proceedings and pleadings filed in the trial court, as well as the rival submissions in this appeal, the questions for determination are as follows: 2. **Did the Respondent obtain the suit land through fraud?** 3. **Did the Court err in finding that the Appellants had trespassed onto the suit land?** 4. **Did the Court err in failing to find that the suit land was ancestral?** 5. **Did the Respondent obtain the suit land through fraud?** 6. The Appellants herein all claimed that the suit land belongs to them, having been brought up on it, and that the Respondent obtained it through fraud. On the other hand, the Respondent’s claim in the trial court was that he is the registered owner of LR No.Ruguru/Gachika/1200, measuring 0.444Ha, which he bought from Robert Maina in 2012. 7. The Respondent produced the Title Deed to the suit property, registered in his name on 22 May 2012. He also produced an Agreement for Sale dated 1 March 2012 between himself and the Vendor, Robert Maina Muthungu, bankers’ cheques as evidence of payment of the consideration price, Land Control Board Consent, KRA stamp duty payment receipts, and a Transfer Form signed by both himself and the purchaser. 8. Section 26(1) of the Land Registration Act Cap 300 provides that a Certificate of title is to be treated as prima facie evidence of absolute and indefeasible proprietorship, except in the following circumstances: ***“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—*** 1. ***on the ground of fraud or misrepresentation to which the person is proved to be a party; or*** 2. ***where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”*** 3. Since the Respondent is the registered owner of the suit parcel, it was incumbent upon the Appellants to prove their claim that the Respondent acquired it through fraud. The Court of Appeal, in the case of **Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR**, which was cited with approval by the Court in the case of **Jose Estates Limited v Muthumu Farm Limited & 2 others [2019] eKLR**, relied on by the Appellants, held that: ***“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. See Davy v Garrett (1878) 7 Ch. D 473 at 489.”*** 1. However, I note that the Appellants did not produce any evidence before the trial court, save for adopting their witness statements. Those statements remain hearsay, and there was no way to prove their allegation that any fraud occurred in the transactions that led to the Respondent acquiring the suit property. **b) Did the Court err in finding that the Appellants had trespassed onto the suit land?** 1. The Trial Court held that the Appellants had trespassed onto the suit property. Trespass, like fraud, must be proved. The Court of Appeal sitting at **Eldoret in Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR** cited with approval the references below: ***“In M’Mukanya v M’Mbijiwe (1984) KLR 761, the ingredients of the tort of trespass were revisited by this Court and restated as follows:*** ***“trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land which is different from ownership (See Thomson v Ward, (1953) 2QB 153.”*** ***Further, in Winfield & Jolowicz on Tort, Sweet & Maxwell, 19th Edition at page 428 states as follows:*** ***“Trespass to land, like the tort of trespass to goods, consists of interference with possession. Mere physical presence on the land does not necessarily amount to possession sufficient to bring an action for trespass. It is not necessary that the claimant should have some lawful interest in the land. This is not to say that legal title is irrelevant, for where the facts leave it uncertain which of several competing claimants has possession, it is in him who can prove title that can prove he has the right to possession. More generally, in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land.” [Emphasis supplied].*** 1. The Respondent proved ownership of the land by registered title. He also reported the trespass to the Directorate of Criminal Investigations (DCI), which directed the Kenya Forest Office, Nyeri County, to visit the site and ascertain the extent of the damage, vide letter dated 29th August 2020. The Appellants did not deny being on the suit land and stated that it belonged to them. In my view, this was sufficient evidence of trespass. **c)Did the Court err in failing to find that the suit land was ancestral?** 1. The Appellants also claim that the suit land is their ancestral land, that their grandfather, Kariuki Mathira, the original owner of LR Ruguru/Gachika/27, had no right to sell it, and that their consent was not obtained before the sale. However, it has been held that parents do not require their children’s consent, or in this case their grandchildren’s consent, to sell land registered in their name. In the case of **Oganga & another v Orangi & 3 others (Environment & Land Case 466 of 2015) [2023] KEELC 16348 (KLR) (22 March 2023) (Judgment)**, the ELC (Munyao J.) held as follows: ***“The 2nd and 3rd defendants of course complain that they were not involved in the sale. Was the 1st defendant under any legal obligation to involve them in such a sale? I do not think so, and Mr. Nyamurongi did not refer me to any law or any authority which asserts that a parent must consult and obtain consent of his children before disposing of his/her free land. In fact, it is despicable, if not outrageous, for a child to assert that his father or mother must subdivide his land in a particular way, and proceed to sue his parent because he/she does not wish to deal with the land in the way proposed by the child. I can do no better than echo the words of Mugo J, delivered in the case of***[***Teresisa Kwamboka Mauti (suing as the Administratrix of the estate of David Mauti Nyarango (deceased) & Another vs Ezekiel Nyarango Mauti & 5 Others***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keelc/2022/601)***(2022) eKLR. In that case, the plaintiff sued his father in law (father to her deceased husband) to compel him to subdivide his land and give her what she thought would be the share of her late husband in the property of his father. In dismissing the suit, the Honourable Judge, without mincing his words, rendered himself as follows:-“It is very shameful, sickening, disgusting, dishonourable and disgraceful that the First Plaintiff has the audacity to urge this Court to grant orders “restraining the 1st Defendant from entering or interfering in any manner with the 14 Acres comprised in L.R. NO. North Mugirango/Nyankono Settlement Scheme/17” on the misguided and misinformed basis that she has acquired “equitable interest” over the same. Section 24(a) of the***[***Land Registration Act***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2012/3)***states as follows:*** ***- “the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto”.*** ***No one can deny any proprietor of land such rights and privileges. I find it as spiting a parent when one goes to court to have him ordered not to enter his legally acquired land, from his hard earned labour and that he be ordered to distribute it among some of his children and more so when such children are living and earning a living out of the said land… It is a sign of insensitivity, selfishness, thoughtlessness, heedlessness and ungratefulness.”*** 1. Once ancestral land is registered into individual titles, the communal land rights are extinguished and individual registered rights subsist, unless there is customary trust. In **Mukangu v Mbui KLR [E&L] 1**, the Court of Appeal held as follows: “***Rights under Customary Law are subject to rights under written law and are excluded under the clear language of sections 27 and 28 of the Registered Land Act. Customary Law rights in land are extinguished upon registration of that land under the Act, and rights under customary law are not overriding interests under section 30 of the Act. However, since the same registration recognizes trusts in general terms without specifically excluding trusts originating from customary law and since African Customary Laws in Kenya, generally, have the concept or notion of a trust inherent in them where a person holding a piece of land in a fiduciary capacity under any of the customary laws has the piece of land registered in his name under the Act with tshe relevant instrument of an acquisition either describing him or not describing him by the fiduciary capacity, that registration signifies recognition, by the Registered Land Act, of the consequent trust with the legal effect of transforming the trust from customary law to the previsions of the Act because, according to the provision to section 28, such registration does not “relieve a proprietor from any duty or obligation to which he is subject as a trustee.”*** 1. The Appellants did not make a counter-claim for customary trust, which yet again, must also be proven. They produced no evidence of a trust. The Court of Appeal in the case of **Phillicery Nduku Mumo v Nzuki Makau [2002] eKLR** found that: ***“On our own consideration of the evidence on record we agree with the learned judge that Customary Law trust had been proved. It is trite that trust is a question of fact and has to be proved******by evidence. This Court said so in Wambugi v Kimani [1992] 2 KAR 58”*** 1. In conclusion, my considered view and findings are that there is no need to disturb the finding of the trial court, for the reasons set out above. 2. The Appeal is dismissed with costs. **Dated, signed, and delivered electronically in Nyeri on this 5th day of August, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Mr. Karanja Maina for the Appellants** **Ms. Leah Maina for the Respondent** **Denis: Court Assistant**