https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4212

Maleto & another v Thini & 4 others (Environment and Land Appeal E008 & E010 of 2025 (Consolidated)) [2026] KEELC 4212 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELC 4212 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Appeal E008 & E010 of 2025 (Consolidated) LN Gacheru, J June 29, 2026 Between Stanley Maleto Appellant and Bernard Maina Thini Respondent As consolidated with Environment and Land Appeal E010 of 2025 Between The County Government of Narok Appellant and Benard Maina Thini 1st Respondent Kayit Ole Kunguru 2nd Respondent Stanley Maleto 3rd Respondent Olomoya Kintet 4th Respondent Siloma Partoip 5th Respondent (Being consolidated Appeals arising from the Judgment of Hon. H. M. Nyaberi (C.M) delivered on the 13th day of May, 2025 in Narok CMCC NO. 200 OF 2013) Judgment 1.These consolidated appeals arise from the judgment of Hon. H. M. Nyaberi (Chief Magistrate) delivered on 13th May 2025, in Narok CMCC No. 200 of 2013, consolidated with Narok CMCC No. 57 of 2013. 2.The dispute before the trial court concerned the existence, location, and ownership of several plots within Block 4, Stadium Ward, Narok Township, namely Plots Nos. 304, 305, 306, 307, and 308. 3.In its Judgment, the trial court declared that the 1st Respondent ( Bernard Maina Thini) was the lawful owner of Plots Nos. 305, 306, and 307, found that Plot No. 304, did not exist on the ground, and upheld the 2nd Respondent’s claim over Plot No. 308. Dissatisfied with that determination, the Appellants herein lodged separate appeals, which were subsequently consolidated. 4.The 1st Appellant (Stanley Maleto) challenged the trial Court’s Judgment primarily on the grounds that the trial court determined un-pleaded issues, misapplied the burden of proof, relied on a letter of allotment as proof of ownership contrary to established law, and based its findings on evidence lacking probative value. 5.The 2nd Appellant (County Government of Narok) faults the trial court for disregarding the evidence of the allocating authority, failing to rely on the approved development plan; relying on an unapproved report, and making erroneous findings on the existence and ownership of the disputed plots. 6.The Respondents opposed the two Appeals, and Contended that the trial court properly evaluated the evidence and applied the law, and that the findings were supported by documentary evidence, expert testimony, and the ground visit conducted by the court. A. The Appeals The Memorandum of Appeal (ELCLA NO. E008 OF 2025) 7.Vide a Memorandum of Appeal dated 15th May 2025, the 1st Appellant( Stanley Maleto), challenged the entire Judgment and Decree of the trial court, which Judgment was delivered by Hon H.M. Nyaberi (C.M.) in Narok MCELC No. 57 of 2013, consolidated with Narok MCELC No. 200 of 2013 on the following grounds:1.That the learned trial magistrate erred in law, in analysis of the pleadings and evidence, and thereby made an erroneous finding.a.The trial magistrate made a finding that the appellant did not prove ownership of the parcel of land known as plot No. 304/ block 4, whereas the respondent stated in evidence that there was no ownership dispute, but the dispute was in respect to location of the parcels of land known as 304/ block 4 and 305 block 4.b.The court made a finding that the appellant failed to prove ownership of the parcel of land known as 304/ block 4, whereas the question before the court was the respondent’s proof of ownership of the parcel of land known as plot No. 305/ block 4, before he could prove invasion of the said land by the appellant.2.That the learned trial magistrate erred in law in finding that the respondent was the lawful purchaser of the parcel of land known as plot number 305/ block 4 contrary to the principle laid down by the Supreme Court (in Torino Enterprises Limited v Attorney General Petition E005 of 2022) as well as the ELC court (in Bubaki Investments Company Limited v National Land Commission and 2 others) to the effect that a letter of allotment is incapable of being conveyed as an interest in land.3.That the learned trial magistrate erred in law in disregarding the doctrine of stare decisis on the question of the status of letters of allotment in conveyance of property interest in land.4.That the learned trial judge erred in law in introducing the issue of ownership of the parcel of land known as plot number 304/ block 4 when the issue was never profiled by any of the parties as an issue.5.That the trial magistrate erred in law in failing to find that the respondent had the burden and the incidence of proof to demonstrate ownership of the parcel of land known as plot number 305/ block 4 as a prelude to a claim for trespass.6.That the trial magistrate erred in law in shifting the burden of proof to the appellant to prove ownership of the parcel of land known as plot number 304/ block 4.7.That the learned trial magistrate erred in law in failing to profile and consider the issue on whether the respondent had proved trespass/illegal annexation of plot number 305/ block 4 by the appellant in spite of submissions on that issue.8.That the trial magistrate erred in law and misapprehended the import of sections 107, 108, and 109 of the Evidence Act and arrived at the wrong conclusion.9.That the trial magistrate erred in law and in evidence in making a finding based on a survey report which was unapproved and whose maker was never called as a witness.10.That the trial magistrate erred in law in making a finding based on an unapproved survey report, which was denounced by the County Government Narok, which had originated the said report.11.That court erred in law in making a finding on the physical location of the parcels of land, which was inconsistent with the ground visit, the ground report, and the approved plan.12.That overall, the learned trial magistrate erred in law, pleadings, and evidence in making a finding which was inconsistent with the pleadings, the evidence before the court, the law of evidence, and principles of property rights established by the courts. 8.The 1st Appellant( Stanley Maleto) therefore urged this Court to allow the appeal and set aside in its entirety the judgment and Decree delivered on 13th May 2025. Further, the 1st Appellant urged the Court to substitute the said judgment with an order dismissing the Plaintiff’s suit in CMCC No. 200 of 2013, as contained in the Amended Plaint dated 18th November 2013. Further, the 1st Appellant further prayed that the costs of this Appeal, as well as the costs of the proceedings in the trial court, be awarded to and borne by the Respondent. The Memorandum of Appeal (ELCLA NO. E008 OF 2025) 9.Vide a Memorandum of Appeal dated 13th June 2025, the 2nd Appellant ( County Government of Narok),thereon challenged the entire Judgment and Decree of the trial Court in Narok MCELC No. 57 of 2013, as consolidated with Narok MCELC No. 200 of 2013 on the following grounds:1.That the learned trial Magistrate erred in fact and law after finding that the Appellant is the allocating authority responsible in issuing ownership documents, maintaining prior and current records and defining the physical location and dimensions, and yet failed to take into consideration the evidence produced by the Appellant.2.That the learned trial Magistrate erred in law and in fact in failing to rely and take into consideration the Narok County approved plan No. 112, Reference No. NRB/8/2015/01 local Reference No. R163/2015/01, while establishing the positions of the disputed plots under Block 4, Narok Township.3.That the learned trial Magistrate erred in law and evidence in relying on the report dated 29th March, 2019, and an unapproved plan produced by the 2nd Respondent in determining the positioning of the disputed plots, albeit the Appellant distancing itself from the said documents.4.That the learned trial Magistrate erred in fact and law in finding that the Appellant only relied on current documents and failed to produce the past documents of the disputed plots.5.That the learned trial Magistrate erred in fact and evidence in questioning the ownership of Plot No. 304 Block 4, by the 3rd Respondent and yet the issue of ownership was not in question.6.THAT the learned trial Magistrate erred in law and fact by ignoring the contents of the valuation roll prepared by the Appellant and produced by the 1st Respondent in court, indicating the owners of the disputed plots in Block 4, Narok Township.7.That the learned trial Magistrate erred in fact and law in finding that the plot No. 304 Block 4 did not exist on the ground contrary to the Narok approved plan No. 112 and the information garnered during the ground visit that was spearheaded by the Director of Physical, Narok County, and the County Surveyor.8.That the learned trial Magistrate erred in law and fact in finding that the 1st Respondent is the owner of Plot No. 305 Block 4.9.That the learned trial Magistrate erred in law and fact in finding that Plot No. 308 Block 4 existed on the ground contrary to the evidence produced by the Appellant, indicating that the said plot did not exist on the ground.10.That the learned trial Magistrate erred in law and fact in finding that Plot No. 307 belonged to the 1st Respondent and not the 4th and 5th Respondents.11.That the learned trial Magistrate erred in fact in determining that the Appellant in its Statement of Defence dated 8th October, 2020, and filed on 25th October, 2020, averred that the 4th and 5th Respondents had never been allocated Plot No. 307 Block 4, and yet the said Statement of Defence referred to the 1st Respondent and not 4th and 5th Respondents.12.THAT the learned trial Magistrate erred in law and fact in determining that the allotment letter issued to the 4th and 5th Respondents by the Appellant in the year 2011, is null and void.13.That the learned trial Magistrate erred in fact and in law in failing to consider and apply the ratio decidendi in the Supreme Court case of Torino Enterprises Limited Vs Attorney General [2023] eKLR in respect to an allotment letter being incapable of transferring or passing a valid title.14.That overall, the learned trial Magistrate erred in law, evidence, interpretation of pleadings, and finding which was inconsistent to the evidence produced and the laws touching on allocation of property by the Appellant. 10.The 2nd Appellant prayed that this court be pleased to allow the Appeal and set aside the Judgment of the Learned Trial Magistrate delivered on 13th May 2025, together with the decree arising therefrom. The 2nd Appellant further urged this Court to substitute the said impugned Judgment with orders that the Plaintiff’s suit in CMCC No. 200 of 2013, be dismissed; that the Plaintiff’s suit in CMCC No. 57 of 2013, be allowed as prayed; and that the Counter-claim by the 1st Defendant therein be dismissed. The 2ND Appellant also sought for orders that the costs of this Appeal be awarded to the 2nd Appellant. 11.After the admissions of the two Appeals under Section 79B of the Civil Procedure Act, and their consolidation, the court directed that the Appeals be canvassed by way of written submissions, which directives were complied with. SUBMISSIONS The 1st Appellant’s Submissions( Stanley Maleto) 12.The 1st appellant( Stanley Maleto) filed his submissions dated 11th November 2025, through Githui& Co Advocates and submitted that the trial court’s judgment is fundamentally flawed in law and fact, and urged this Court to allow the appeal. 13.The 1st Appellants submissions are anchored on four key grounds: beingi.Determination of un-pleaded issues;ii.Misapplication of the burden of proof,iii.Improper reliance on a letter of allotment as proof of ownership,iv.Reliance on evidence lacking probative value. 14.On the first issue, the 1st appellant argued that the trial magistrate exceeded the scope of the dispute as framed by the pleadings. It was his argument that suit before the trial court was one of trespass, in which the 1st Respondent( Bernard Maina Thini) alleged ownership of Plot No. 305 Block 4, and accused the 1st appellant( Stanley Maleto) of unlawful invasion. Therefore, the 1st appellant’s defence was limited to denying trespass and asserting that he occupied Plot No. 304 Block 4. However, the trial court introduced and determined a new issue—whether Plot No. 304 Block 4 existed—which had not been pleaded by any of the parties. 15.The 1st appellant further submitted that this introduction of new issue amounted to a grave misdirection, since the law is settled that parties are bound by their pleadings, and that a court must confine itself to issues arising therefrom. Reliance was sought in the case of Levi Simiyu Makali v Koyi John Waluke & 2 others [2018] eKLR, which cited Raila Amolo Odinga & Another v IEBC & 2 others [2017] eKLR, wherein the courts underscored that any evidence not supported by pleadings goes to no issue. 16.Similarly, he relied on Pacific Frontier Seas Ltd v Kyengo & another (Civil Appeal 32 of 2018) [2022] KECA 396 (KLR), where it was held that courts cannot base decisions on un-pleaded issues. The 1st appellant further relied on Juma & 5 others v Mada Holdings t/a Baobab Sea Lodge Kilifi Limited [2025] KECA 817 (KLR) and Wanyeki v Kerai & another [2023] KECA 87 (KLR), which affirm the same principle. 17.Further, 1st Appellant argued that by introducing the issue of the existence of Plot No. 304, suo motu, the trial court descended into the arena of dispute and thereby occasioned a miscarriage of justice, which prejudiced the 1st Appellant. 18.On the second issue, the 1st appellant submitted that the trial court misapplied the principles governing the burden and standard of proof. It was his submissions that the 1st Respondent( Bernard Maina Thini), as plaintiff before the trial court, bore the legal burden under Section 107 of the Evidence Act to prove ownership of Plot No. 305 Block 4, which was the foundation of his claim in trespass. 19.Reliance was sought in the case of Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh [2021] eKLR, wherein the court reiterated that the legal burden remains constant throughout the trial, and rests upon the party asserting the claim. The 1st appellant argued that the 1st Respondent failed to discharge this burden, as he did not produce any valid document of title or evidence of transfer. He further argued that the trial court nonetheless shifted the burden to the 1st Appellant, which was erroneous. 20.He relied on the position in law, as stated in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR and applied in Rentco East Africa Limited v Dominic Mutua Ngonzi [2021] eKLR, wherein, the plaintiff must prove his case on a balance of probabilities, regardless of the strength or weakness of the defence. The 1st Appellant further submitted that the trial court erred in finding for the 1st Respondent in the absence of proof of ownership. 21.On the third issue, the 1st Appellant challenged the trial court’s reliance on a letter of allotment as proof of ownership. He argued that the 1st Respondent admitted that he neither accepted the allotment within the stipulated time, nor complied with the conditions therein, including payment of the requisite charges. The 1st Appellant further submitted that a letter of allotment, without compliance with its conditions, does not confer any proprietary interest in land. 22.He relied on Bubaki Investment Company Ltd v National Land Commission & 2 others [2015] eKLR, where the court held that failure to comply with the terms of an allotment letter causes the offer to lapse, thereby extinguishing any claim to the land. This position was further affirmed by the Supreme Court in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR), which held that a letter of allotment does not confer a transferable interest, unless it is perfected into title. 23.The 1st Appellant argued that since the 1st Respondent did not perfect the allotment letter by meeting the conditions, or prove any valid transfer from the original allottee, he had no legal interest capable of sustaining a claim in trespass. 24.On the final issue, the 1st Appellant submitted that the trial court relied on evidence that lacked probative value, and in particular, the trial court relied on an unapproved survey report that had been expunged from the record. He further submitted that a document which has been expunged cannot form the basis of a judicial determination. 25.Further, the 1st Appellant submitted that expert evidence must be produced by its maker to carry probative weight. He also argued that the trial court disregarded the approved development plans, and the testimony of the Physical Planner and Land Registrar, which confirmed that Plot No. 304, existed and that the 1st Respondent was not registered as the owner of any parcel within the Block 4. That by relying on inadmissible evidence, and disregarding credible testimony, the trial court fell into serious error both in law and in fact. 26.In conclusion, the 1st Appellant submitted that the impugned Judgment is unsustainable, and that the trial court acted outside the pleadings, misapplied the law on burden of proof, relied on a document that did not confer ownership, and based its findings on evidence devoid of probative value. 27.For these reasons, the 1st Appellant( Stanley Maleto) prayed that his Appeal be allowed, the Judgment of the trial court be set aside, and the 1st Respondent’s( Bernard Maina Thini) suit before the trial court in Narok CMCC NO 200 of 2013, be dismissed with costs. The 2nd Appellant’s submissions (The County Government of Narok) 28.The 2nd Appellant (County Government of Narok) filed its submissions dated 30th January 2026, through Cheruto & Co Advocates and urged the court to allow its Appeal. 29.The 2nd Appellant’s submissions are anchored on the contention that the learned trial Magistrate fundamentally erred in both law and fact by disregarding the evidence of the lawful allocating authority—namely the County Government of Narok—and instead relying on unverified and unapproved documents in determining ownership, and the physical status of the disputed plots. 30.The 2nd Appellant asserted that the trial court expressly acknowledged that the County Government of Narok, as successor to the defunct Narok County Council, is the legally mandated allocating authority responsible for issuing ownership documents, maintaining land records, and determining the physical location and dimensions of plots within the County. 31.In this regard, reliance was placed on the decision in Joseph Mutua Zakayo v County Government of Makueni & 9 Others [2020] eKLR, where the court affirmed that County Governments, having inherited the functions of local authorities, are best placed to ascertain the true ownership of plots within their jurisdiction. 32.The 2nd Appellant further submitted that despite this recognition, the trial court failed to give due weight to the documentary and oral evidence tendered by the witnesses for the 2nd Appellant, including official records and expert testimony, but relied on unapproved development, and documents that had been expunged. 33.In particular, the 2nd Appellant emphasized that the approved development plan for Narok Township—Plan No. 112 (Ref. No. NRB/8/2015/01)—was produced in evidence, and clearly delineated the Plots within Block 4, as comprising Plots 175, 304, 305, 306, and 307. It was its argument that this plan, duly approved by the relevant authorities, constituted the authoritative reference point for determining both the existence and positioning of the plots. 34.The 2nd Appellant also argued that the trial court erred by disregarding this approved plan, and instead relying on a report dated 28th March 2019, which was itself based on an unapproved plan. To underscore the legal position on the primacy of approved development plans, the 2nd Appellant cited Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), where the Supreme Court reaffirmed that allocation of unalienated government land must be preceded by a duly approved Part Development Plan. 35.Similarly, reliance was placed on Mutegi Mugwetwa v County Minister of Lands, Physical Planning, Energy & ICT County Government of Tharaka Nithi & Others [2019] eKLR, which held that once a development plan is approved, all developments must conform strictly to it. 36.Flowing from the foregoing, the 2nd Appellant submited that the trial court’s reliance on an unapproved plan and the resultant report led to erroneous findings, including the conclusion that Plot No. 304, did not exist, while Plot No. 308 did exist. According to the 2nd Appellant, the approved plan and evidence from the County Physical Planner and Surveyor clearly demonstrated the contrary—that Plot No. 304 do exist on the ground, while Plot No. 308, does not exist on the ground. 37.On the issue of ownership of Plots No. 305 and 307, the 2nd Appellant submitted that the trial court erred in declaring the 1st Respondent as the owner. It argued that official records, including the LAIFOMS system and the valuation roll (produced by the 1st Respondent), identified different allottees. Specifically, Plot No. 305 was allocated to Kapolondo Ole Ntimama, while Plot No. 307, was jointly allocated to Olomoya Kintet and Siloma Partoip. 38.The 2nd Appellant also argued that the 1st Respondent’s( Bernard Maina Thini) claim to Plot No. 305, was based on an alleged purchase from an allottee( Kapolondo Ole Ntimama) who had not perfected his title. In this regard, reliance was placed on the Supreme Court decision in Torino Enterprises Limited v Attorney General [2023] KESC, where it was held that an allotment letter does not confer a transferable interest in land unless and until the allottee perfects the title through registration. The court emphasized that an allottee cannot pass a valid title to a third party without registration. Therefore, it was the 2nd Appellant submissions that any purported transaction between the 1st Respondent and the original allottee was a nullity in law. 39.With respect to Plot No. 307, the 2nd Appellant argued that the trial court disregarded evidence demonstrating that the 4th and 5th Respondents were the lawful allottees, as confirmed by both the 2nd Appellant’s records and the valuation roll. Consequently, the declaration in favour of the 1st Respondent was, in their view, unsupported by evidence. 40.On the question of estoppel, the 2nd Appellant submited that they were not barred from seeking to expunge the report dated 28th March 2019. They contended that their application to expunge was made before the conclusion of the trial, and before the documents were formally relied upon. In support of this position, they cited Republic v Kenya Airports Authority [2018] eKLR, where the court held that withdrawal of an application does not amount to a judicial determination, and therefore cannot give rise to estoppel by record. The 2nd Appellant argued that the impugned report could not, in any event, supersede official ownership documents or an approved development plan. 41.In conclusion, the 2nd Appellant submitted that the trial court’s judgment was inconsistent with the evidence on record, and the applicable legal principles governing land allocation and ownership. It maintained that the court ignored critical documentary evidence from the allocating authority and instead relied on flawed and unapproved materials, leading to erroneous findings on both ownership and the existence of the disputed plots. 42.Therefore, the 2nd appellant urged the court to find that the appeal is meritorious, to set aside the judgment and decree of the trial court in their entirety, and substitute the same with orders dismissing the 1st Respondent’s suit, while allowing the 4th and 5th Respondents’ claim, with costs awarded to the 2nd Appellant in accordance with Section 27 of the Civil Procedure Act. The 1st Respondent’s Submissions (Bernard Maina Thini) 43.The 1st Respondent, Bernard Maina Thini, opposed the consolidated Appeals and urged the court to uphold the judgment of the trial magistrate in Narok CMCC No. 200 of 2013. 44.The 1st Respondent filed his written submissions dated 14th January 2026, through Maina Ngaruiya & Co Advocates, and submitted that the two consolidated Appeals lack merit both in law and fact, and that the trial court properly evaluated the evidence before arriving at its decision, and the said Judgment should be upheld by this Court. 45.On the factual background, the 1st Respondent maintained that he is the lawful purchaser and occupier of Plot No. 305 Block 4, within Narok Township, having acquired the same from Kapolondo Ole Ntimama. It was his contention that the dispute before the trial court primarily concerned the physical positioning and extent of plots within Block 4, particularly the relationship between Plots Nos. 304 and 305. The 1st Appellant, on the other hand, claimed ownership of Plot No. 304, but denied any interest in Plot No. 305. 46.Addressing the first issue, on whether the trial magistrate erred in finding that Plot No. 304 does not exist, the 1st Respondent submitted that the court’s finding was well grounded in evidence. He argued that although the 1st Appellant alleged ownership and payment of land rates, documentary evidence from the County Government’s LAIFOMS system showed substantial arrears and a lack of proof of payment. 47.Further, reliance was placed on ground reports prepared by County officials, particularly the report dated 28th March 2019 by Erastus Mutuku, which indicated that Plot No. 304, did not exist on the ground. The 1st Respondent also argued that the County Government’s attempt to disown earlier reports and introduce contradictory evidence undermined its credibility, and the trial court was justified in treating such conduct with suspicion. 48.For the above submissions, reliance was placed on the doctrine of estoppel as articulated in Serah Njeri Mwobi v John Kimani Njoroge [2013] eKLR, where the court held that a party cannot approbate and reprobate by taking inconsistent positions. 49.The 1st Respondent further submitted that the applicable development plan, namely the Narok Town Zoning Plan Ref. No. R163/2016/01 supports the conclusion that Plot No. 304, does not exist, as it shows a sequence of plots beginning from Plots 305 to 308. He also invoked Section 42(2) of the Physical and Land Use Planning Act, 2019, and argued that any alteration of development plans must follow a prescribed statutory process, which was not demonstrated in respect of the Appellant’s claim. 50.On the second issue, being whether the trial court determined matters not pleaded, the 1st Respondent disputed the Appellants contention and arguments the trial court determined issues not pleaded. It was his submissions that the trial court remained within the scope of the pleadings, and that in a claim for trespass, the court must necessarily interrogate the existence, location, and ownership of the disputed property. Thus, determining whether Plot No. 304, existed was incidental and essential to resolving the dispute. 51.Reliance was placed in the case of Haji & Another v Pamha & 4 others (Environment & Land Case No. 6 of 2023) [2025] KEELC 3321 (KLR), for the proposition that a court is entitled to evaluate all evidence necessary to resolve the real issues in controversy. 52.On the issue of burden of proof, the 1st Respondent submitted that the trial court did not improperly shift the burden to the 1st Appellant. He argued that once the 1st Respondent as the plaintiff in Narok CMCC 200 OF 2013, established a prima facie case through evidence of purchase, possession, and payment of rates, the evidential burden shifted to the 1st Appellant to rebut that evidence. 53.For this submissions, reliance was placed in the case of Mutuku Kilumi v Daniel Ngoima Kimanzi [2018] eKLR, which in turn cited Mbuthia Macharia v Annah Mutua Ndunga & another [2017] eKLR, where the Court of Appeal clarified that although the legal burden remains constant, the evidential burden may shift depending on the evidence adduced. 54.Regarding the ownership of Plot No. 307, the 1st Respondent supported the trial court’s finding that he is the bona fide owner, and further submitted that the competing claim by Olomoyo Kindet and Siloma Partoip ,was riddled with inconsistencies, including contradictory testimony on acquisition, lack of an allotment letter, and failure to consistently pay land rates. 55.He further noted that the alleged developments on the suit plot were not corroborated by ground reports or the court’s site visit, which revealed the land to be vacant. Importantly, the 1st Respondent pointed out that the said parties( Olomoyo Kindet and Siloma Partoip), did not lodge an Appeal against the trial court’s determination, thereby reinforcing the correctness of the finding. 56.On costs, the 1st Respondent invokes Section 27 of the Civil Procedure Act, and submitted that costs follow the event., and since the Appeals lack merit, he urged the court to award him costs of the Appeal. 57.In conclusion, the 1st Respondent submitted that the trial magistrate properly analyzed the pleadings, evidence, and applicable law and arrived at a sound decision. He urged this appellate court to dismiss the instant Appeals in their entirety, and to uphold the lower court's judgment with costs. B. The 2nd Respondent’s submissions (Kanyit Ole Kunguru) 58.The 2nd Respondent, Kanyit Ole Kunguru, filed his submissions dated 16th January 2026, through S. Mogere & Co Advocates, and urged the court to dismiss the instant Appeals. 59.In a robust defence of the trial court’s judgment, the 2nd Respondent premised his opposition to the two Appeals on the argument that the decision of the trial court was sound in law, grounded in evidence, and should not be disturbed on appeal. The 2nd Respondent argued that the instant appeal is an attempt to unsettle a well-reasoned judgment, and to deny him the quiet enjoyment of his lawfully allocated property, namely Plot No. 308 Block 4, Narok Township. 60.Further, the 2nd Respondent submitted that the trial court carefully evaluated all the evidence presented, including valuation rolls, allotment documents, planning records, expert testimony, and even a ground visit, before arriving at its conclusions. He also argued that the court correctly found that Plot No. 308 exists on the ground, and was lawfully allocated to the him, and that this finding was supported by documentary evidence, such as allotment letters, receipts for rates and rent, permits, maps, and consistent occupation. 61.On the issue of whether the trial court properly considered the 2nd Appellant’s evidence as the allocating authority, the 2nd Respondent submitted that the court did indeed consider such evidence, but found it contradictory and unreliable. He emphasized that the 2nd Appellant’s own valuation rolls from 2008 and 2009, identified the Respondents as the owners of the disputed plots. He also argued that these official records, carried greater probative value than subsequent oral testimony that sought to contradict them. 62.In this regard, reliance was placed on Sections 107, 108, and 109 of the Evidence Act, which place the burden of proof on the party asserting a fact. It was his submissions that the Appellant, having alleged that the Respondents were not lawful owners, failed to discharge this burden, by calling sufficient evidence. 63.Further reliance was placed on Wreck Motors Enterprises v Commissioner of Lands & Others [1997] eKLR, where the Court of Appeal held that public authorities are bound by their own records, and cannot arbitrarily repudiate them. Similarly, in Independent Electoral and Boundaries Commission v Stephen Mule & 3 Others [2014] eKLR, the Court emphasized that parties are bound by their pleadings, and cannot introduce contradictory evidence. The 2nd Respondent submits that the trial court correctly applied these principles in rejecting the 2nd Appellant’s inconsistent position. 64.On the question of whether the trial court erred in relying on the report dated 29th March 2019, and an alleged unapproved plan, the 2nd Respondent submitted that this ground is misconceived. He further argued that the trial court primarily relied on the approved Narok Town Development Plan No. 112 (NRB/8/2015/01), which had been duly sanctioned, and only used the 2019 ,report as corroborative evidence. 65.Further, the 2nd Respondent submitted that the court properly rejected reliance on draft or unapproved plans. In support of this position, reliance was placed on Republic v National Land Commission & Another ex parte Holborn Properties Limited [2016] eKLR, where it was held that development plans acquire legal force only upon approval and gazettement. 66.Similarly, in David Sironga Ole Tukai v Francis Arap Muge & 2 Others [2014] eKLR, the Court of Appeal emphasized that planning and allocation documents only confer rights when lawfully sanctioned. The 2nd Respondent further submitted that the trial court faithfully applied the law in relying on the approved plan. 67.Regarding the determination of the existence and ownership of the disputed plots, particularly Plot No. 308, the 2nd Respondent submitted that the trial court’s findings were firmly supported by evidence. The trial court is said to have harmonized the approved development plan with the actual position on the ground, as confirmed during a site visit and by expert testimony. 68.The 2nd Respondent also argued that the existence of Plot No. 308, was confirmed by the County Director of Physical Planning, and supported by documentary evidence, including valuation rolls and allotment records. It was his submissions that the 2nd Appellant’s assertion that Plot No 308, did not exist is described as a contradiction of its own records. 69.In support of the principle that lawfully allocated and developed land cannot be arbitrarily displaced, reliance was placed on Republic v City Council of Nairobi & 3 Others [2014] eKLR, where the court held that once land has been lawfully allocated, it cannot be reallocated without proper cancellation of the initial allocation. Further, in Kenya National Highways Authority v Shalien Masood Mughal & 5 Others [2017] eKLR, the Court of Appeal emphasized the need to align planning decisions with ground realities. The 2nd Respondent further submitted that the trial court properly applied these principles. 70.On the validity of the allotment letter issued to the 4th and 5th Respondents, the 2nd Respondent supported the trial court’s finding that the same was null and void due to non-compliance with the conditions of allocation. It was his further submissions that no evidence was produced to show payment of premiums, survey fees, or registration. 71.The 2nd Respondent reiterates the settled legal position that an allotment letter does not confer title, unless its conditions are fulfilled. In this regard, reliance was placed on Torino Enterprises Limited v Attorney General & 5 Others [2023] eKLR, where the Supreme Court held that an allotment letter alone is insufficient to confer a transferable interest in land. Consequently, the 2nd Respondent submitted that the trial court correctly applied this principle in invalidating the allotment letter relied upon by the 4th and 5th Respondents. 72.Finally, on the issue of costs, the 2nd Respondent submitted that the trial court properly exercised its discretion in awarding costs to the successful parties. Reliance was placed on Section 27 of the Civil Procedure Act, which provides that costs follow the event. 73.The 2nd Respondent cited Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR, where the Court of Appeal held that costs are meant to indemnify the successful party, and Republic v Minister for Agriculture ex parte W’Njuguna [2006] eKLR, which affirmed that costs should ordinarily follow the outcome of the case, unless there are good reasons to depart from that principle. The 2nd Respondent also argued that, having successfully defended his rights over a prolonged period, he is entitled to costs both in the trial court and on appeal. 74.In conclusion, the 2nd Respondent submitted that the instant appeals are devoid of merit, as the trial court correctly evaluated the evidence, applied the law, and reached a just decision. Therefore, he urged the appellate court to dismiss the two appeals in their entirety, uphold the Judgment of the trial court, affirms his ownership of Plot No. 308 Block 4, and award costs of the appeal and the lower court proceedings to the Respondents herein. C. ANALYSIS AND DETERMINATION 75.These are first Appeals, and therefore, this Court in its appellate jurisdiction is enjoined to re-evaluate, re-analyze, and reconsider the entire evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 76.The principles governing a first appellate court are well settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, and Peters v Sunday Post Ltd [1958] EA 424, where the court held;“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..." 77.The Court will, however, be slow to interfere with findings of fact unless the said findings are based on no evidence; are a misapprehension of the evidence; or are plainly wrong in principle. See Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR and Mwanasokoni v Kenya Bus Services Ltd [1985] eKLR. D. ISSUES FOR DETERMINATION 78.Having carefully considered the pleadings, the Records of the two appeals , and the rival submissions, the court finds following issues arise for determination:i.Whether the trial court determined matters outside the pleadings.ii.Whether the trial court misapprehended the law on burden and standard of proof.iii.Whether the trial court erred in its treatment of letters of allotment and ownership of the disputed plots.iv.Whether the trial court relied on inadmissible or unprobative evidence.v.Whether the trial court properly determined the existence, location, and ownership of the disputed plots, particularly Plot Nos. 304, 305, 306,307, and 308 Block 4.vi.Whether this Court should interfere with the findings of the trial court. I. Whether the trial court determined matters outside the pleadings 79.The 1st Appellant (Stanley Maleto), argued and submitted that the trial court introduced and determined the issue of the existence of Plot No. 304 Block 4, which was not pleaded by any of the parties herein. For this argument, the 1st Appellant relied on the case of Levi Simiyu Makali v Koyi John Waluke & 2 others [2018] eKLR and Raila Amolo Odinga & Another v IEBC & 2 others [2017] eKLR for the proposition that courts are bound by pleadings. 80.The court in Levi above decided cases, the courts held that ‘’ it is now trite in law that parties are bound by their pleadings and that any evidence led by any parties which does not support the averments in gather pleadings goes to no issue and must be disregarded’’ 81.Therefore, if this court is to find and hold that the trial court considered issues that were not pleaded by the parties, then as held by the courts above, the court will disregard that finding and holding, since as submitted by the 1st Appellant, the court has to remain loyal to the pleaded matters, and pronounce itself only on pleaded matters. 82.From the submissions herein, the Respondents, have argued that the issue of existence and location of the plots was central to the determination of trespass and therefore the issue of existence of plot No 304 Block 4 properly fell within the court’s mandate. 83.The law is settled that parties are bound by their pleadings, and a court should not determine matters not pleaded or raised by the parties in the pleadings. This principle has been reiterated in various determinations of our courts, such as in Independent Electoral and Boundaries Commission v Stephen Mule & 3 Others [2014] eKLR and Pacific Frontier Seas Ltd v Kyengo & another [2022] KECA 396 (KLR). 84.In the instant case, the dispute revolved around alleged trespass onto Plot No. 305 Block 4, wherein the 1st Respondent (Bernard Maina Thini) alleged that the 1st Appellant herein (Stanley Maleto) trespassed unto his plot No 305 Block 4. On his part, the 1st Appellant( Stanley Maleto) asserted that his occupation was on Plot No. 304 Block 4, which had rightful been allocated to him, and he did not trespass upon the 1st Respondent alleged plot No 305 Block 4. 85.In his pleadings, the 1st Respondent( Bernard Maina Thini) did not question the existence of Plot No 304 Block 4, and whether the same was allocated to the 1st Appellant( Stanley Maleto) or not. The issue in dispute before the trial court was trespass upon Plot No 305 Block 4. If the said issue of existence of Plot No 304 Block 4, had been pleaded, maybe the 1st Appellant would have called evidence to prove or disapprove existence of the said Plot No 304 block 4, and how he acquired it, and whether he had fulfilled the conditions contained in the letter of allotment. The question of whether Plot No. 304 existed, and its relationship to Plot No. 305, was therefore introduced by the trial court at the determination stage. 86.Though the question of whether Plot No. 304 existed or not, and how it related spatially to Plot No. 305, was extensively dealt by the trial court in its determination, the said issue was not pleaded by the 1st Respondent in his pleadings, and the 1st Appellant herein could not plead to it and or call evidence to support his acquisition and ownership of the same, since his duty was to deny or admit trespass on plot No 305. 87.It is evident that introduction of this extraneous issue disadvantaged the 1st Appellant. See the case of Robin Angus Paul & 2 others v Miriam Hemed Kale [2019] KECA 781 (KLR) and Coastal Bottlers Ltd vs George Karanja Civil Appeal No 13 of 2015, where the Court Of Appeal while citing Galaxy Paints Company Ltd v Falcon Guards Ltd, Civil Appeal No. 219 of 1998, held that:- ““The issues for determination in a suit generally flowed from the pleadings and the trial court could only pronounce judgment on the issues arising from such issues as the parties framed for the court’s determination.” 88.Further, in the case of William Muthee Muthami v Bank of Baroda [2014] eKLR), gthe Court of Appeal restated the principle thus:-“It is a firmly established rule of evidence that the evidence produced in court to prove a claim must flow from the pleadings.” 89.From the pleadings before the trial court, the two issues presented for determination were; the ownership of plot No 305 Block 4, and whether there was illegal invasion or trespass by the 1st Appellant, and not whether plot No 304 Block 4 existed or not, which issue was raised by the trial court at the determination stage. 90.This court in its appellate jurisdiction concurs with the Appellants submissions that the 1st Appellate was prepared to defend the suit on the allegation of trespass only and illegal invasion of plot No 305 block 4, and he prepared his defence and evidence to respond to that accusation, but not to respond to either plot 304 block 4 existed or not. 91.The court finds that the issue of existence of plot No 304 Block 4 was an extraneous issue introduced by the court, and was not embedded in the pleadings and evidence. Therefore, this court finds and holds that the, introduction of the issue of non-existence of plot No 304 Block 4, disadvantaged the 1st Appellant( Stanley Maleto), as parties are bound by their pleadings. 92.Accordingly, this Court finds and holds that the trial magistrate determined un-pleaded issue, which issue was so central as it touched on ownership, which is key in determining the issue of trespass. The court finds and holds that this ground succeeds. II. Whether the trial court misapprehended the burden and standard of proof 93.The 1st Appellant argued that the trial court shifted the burden of proof contrary to Sections 107–109 of the Evidence Act. For this argument, the 1st Appellant relied on these cases; Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR and Alice Wanjiru Ruhiu v Messiac Assembly of Yahweh [2021] eKLR, wherein the court held that; the legal burden is discharged by way of evidence, with the opposing party having a correspondence duty to adduce evidence in rebuttal. This constitutes the evidential burden … 94.The 1st Respondent( Bernard Maina Thini), as Plaintiff, bore the initial burden of proving ownership or lawful possession of Plot No. 305 Block 4 as a basis for the claim in trespass. However, once a prima facie case was established through evidence of purchase, possession, payment of rates, and supporting documentation, the evidential burden shifted to the Appellants to rebut that evidence. See these cases; Mbuthia Macharia v Annah Mutua Ndunga & Another [2017] eKLR and Mutuku Kilumi v Daniel Ngoima Kimanzi [2018] eKLR. 95.The available evidence as contained in the Record of Appeal shows that the 1st Respondent( Bernard Maina Thini) produced evidence, including allotment documentation, receipts, valuation roll entries, and sale agreement. The 1st Respondent testified that he purchased Plot 305 Block 4 from KapolonTo Ole Ntimama, and he produced a sale agreement to that effect. 96.The 1st Appellant argued and submitted that the holding of the trial court that “ there is no Counter-claim that Kapolonto Ole Ntimama had repudiated the sale agreement that was entered with the 1st Plaintiff for plot No 305/4” was in error as ownership of this parcel of land was denied by the County Government of Narok. 97.However, once the 1st Respondent(Bernard Maina Thini) produced evidence of such purchase, and the fact that the County Government of Narok denied that the 1st Respondent( Bernard Maina Thini), was the owner of the said plot, then the evidential burden of proof shifted to it( County Government of Narok), and it needed to call evidence to proof that indeed the said parcel of land is owned by Kapolonto Ole Ntimama, and he did not sell and or transfer the said plot to Bernard Maina Thini. 98.That was not done, and the trial court did not err in holding that there is no evidence that Kapolonto Ole Ntimama had repudiated the sale agreement. Consequently, this court finds and holds that the trial court did not shift the burden of proof or misapprehend the standard of burden of proof. 99.The 1st Respondent, as plaintiff, bore the burden of establishing his right to Plot No. 305 as the foundation of his claim in trespass. The record shows that he adduced evidence of purchase, payment of rates, entries in the valuation roll. This evidence, taken together, established a prima facie case of having purchased the said plot from Kapolonto Ole Ntimama. 100.The County Government submissions was to the effect that the said plot belongs to Kapolonto Ole Ntimama, but not the 1st Respondent. However, the 1st Respondent produced documents to show that he purchased the same, whether he met the conditions on the letter of allotment is another all together. However, this court finds and holds that once the sale agreement and was produced by the 1st Respondent, the evidential burden shifted to the 2nd Appellant to rebut the claim that there suit plot belongs to Kapolonto Ole Ntimama, and not the 1st Respondent. 101.The evidence tendered by the Appellants, particularly that of the County Government, was inconsistent, especially in light of its own valuation records which identified the Respondents as owners of the disputed plots. In those circumstances, the trial court did not shift the legal burden of proof but properly applied the principle that the evidential burden may shift depending on the state of the evidence. This ground also fails. 102.This Court finds that the trial magistrate properly applied the principles on burden of proof and did not shift the legal burden, but correctly evaluated the evidential burden in light of the evidence presented. III. Whether the trial court erred on letters of allotment and ownership 103.A central issue concerns whether the Respondents established ownership through allotment letters and an alleged purchase. 104.The Appellants heavily relied on Torino Enterprises Limited v Attorney General [2023] KESC, to argue that a letter of allotment does not confer ownership unless perfected. That proposition is correct in principle: an allotment letter, standing alone, does not confer an indefeasible title unless its conditions are fulfilled. 105.The Respondents conceded that an allotment letter alone is insufficient but argued that they had demonstrated occupation, payment of rates, and recognition in official records. 106.The Supreme Court in Torino Enterprises Limited v Attorney General [2023] KESC 79 (KLR) held that an allotment letter does not confer a transferable interest unless conditions are fulfilled and registration effected. Similarly, in Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), the Court emphasized the centrality of proper allocation processes. 107.However, the law also recognizes that an allotment letter, coupled with compliance with its conditions and evidence of possession, can confer enforceable proprietary rights. See Wreck Motors Enterprises v Commissioner of Lands [1997] eKLR and Joseph Arap Ngok v Justice Moijo Ole Keiuwa & 5 Others [1997] eKLR. Further, in claims such as trespass, the plaintiff need not only demonstrate absolute title, but only a better right to possession than the defendant. See Park Towers Ltd v John Mithamo Njika & 7 Others [2014] eKLR. 108.In the present case, the trial court did not treat the allotment letter in isolation. It considered the totality of evidence, including valuation rolls, receipts, occupation, and planning records. The 1st Respondent (Bernard Maina Thini) demonstrated that after purchase of he was issued with an allotment letter. 109.The Appellants correctly submit that a letter of allotment does not, in itself, confer an indefeasible title unless its conditions are fulfilled and the allotment is perfected through registration. That proposition reflects settled law. However, the present dispute was not a contest over registered title, but a claim in trespass, where the threshold is whether the claimant has a better right to possession than the alleged trespasser. The 1st Respondent’s claim was not predicated solely on an allotment letter. It was supported by evidence of purchase and payment of rates. 110.While it may be true that no perfected title was demonstrated, the totality of the evidence established that the 1st Respondent ( Bernard Maina Thini) was issued with an allotment letter after he purchased the Plot from Kapolonto Ole Ntimama. Further, the 1st Appellate claims is ownership of Plot No 304, block 4, which he bases it on the letter of Allotment too. This Court therefore finds no error in the trial court’s approach to the issue of allotment and ownership. IV. Whether the trial court relied on inadmissible or unprobative evidence 111.The Appellants have argued that the trial court relied on an unapproved report whose maker was not called to give evidence and support that report. Expert evidence should ideally be produced by its maker, and the weight to be attached depends on the totality of evidence. The trial court heavily relied on the impugned an unapproved report, which was not produced by the County Government as the said County Government had denounced the same. Though the Report was attached to the list of documents, it was not produced as exhibits, and thus remained as an allegation. The maker of the report was not called for cross examination. See the case of Chepkemoi v Maasai Mara University [2024] KEELRC 774 (KLR). 112.Further, the Appellants challenged the reliance on the Survey report and unapproved Planning documents. Though it is trite that expert evidence is advisory and not binding on the court.( See Shah & Another v Shah & Others [2003] 1 EA 290.), it is evident that the trial court heavily relied on the impugned Survey Report, which was not produced by the County Government of Narok, though it was attached to the list of documents, it was not part of its eventual exhibits that were produced to support its case. Further, the said County Government of Narok( 2nd Appellant) submitted and argued that the said Survey Report was prepared from un-approved development plan, which did not reflect the official position on the ground. 113.A careful re-examination of the available evidence as contained in the two Records of Appeal show and confirms that the trial court based its findings on the said Survey report and the alleged an un-approved development plan, which was denounced by the County Government. The impugned Survey report, was therefore of limited evidential weight, and was not corroborated by the Approved plan Ref No that was produced by the witnesses from the Country Government of Narok, which denounced the impugned Survey Report and gave contrary evidence. Therefore, this court finds and holds that the trial court’s findings were founded on inadmissible or unreliable evidence. 114.Consequently, this Court is satisfied that the trial court erred in its evaluation of the evidence and did rely on inadmissible material. V. Whether the trial court properly determined the existence and ownership of the plots 115.This is the crux of the appeal. The Appellants contended that Plot No. 304 Block 4 exists and was allocated to 1st Appellant Stanley Maleto, while Plot No. 308 Block 4 does not as confirmed by the documents and records kept by the 2nd Appellant( County Government of Narok). On their part, the Respondents maintain the opposite, and insist that Plot No 308 Block 4 is in existence and was allocated to 2nd Respondent, Kayit Ole Kunguru. 116.Further, the 2nd Appellant argued and submitted that Plot No 307 Block 4, was allocated to Olomoyo Kintet and Siloma Partoip, and belongs to them , but not the 1st Respondent. The trial court found and held that Plot No 307, belongs to 1st Respondent( Bernard Maina Thini), and not the 4th and 5th Respondents herein. 117.Further, the Appellants argued and contended that the trial court disregarded the approved development plan Ref No. and wrongly found that Plot No. 304 did not exist and that Plot No. 308 existed, and belonged to the 2nd Respondent herein. The County Government insist that Plot No 308 Block 4 does not exist. 118.The County Government( 2nd Appellant) relied on Mutegi Mugwetwa v County Minister of Lands, Physical Planning, Energy & ICT County Government of Tharaka Nithi & Others [2019] eKLR and Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), to support its argument and submissions. 119.The Respondents maintained that the court properly relied on the expert reports and available evidence to arrive at its determination, which was sound and grounded. They urged this court to uphold the trial court’s determination to the effect that plot No 308 exists, and plot No 304 does not exist. 120.It is trite that the law recognizes the primacy of Approved development Plans. In the case of Republic v National Land Commission & Another ex parte Holborn Properties Limited [2016] eKLR, the court emphasized that only Approved plans have legal force. Further in Kenya National Highways Authority v Shalien Masood Mughal & 5 Others [2017] eKLR, the Court held that Approved plans align with the realities on the ground. Therefore, this court finds that the Approved plans No 112 Ref No NRB/8/2015/01, as produced by the County Government of Narok reflects the reality on the ground, given that it is the County Government which possesses and retains the records of the impugned plots. 121.The trial court considered both the Survey Report by Mr. E. Mutuku, which was denounced by the County Government, and development plans which were unapproved, and went ahead to question the Approved plans. This court finds and holds that the trial court’s findings were based on a Survey Report which was not produced by the party that had introduced it in court, and on Un-approved development plans. Therefore, there is sufficient basis to disturb the said findings of the trial court. 122.Having considered the available evidence, this court comes to a conclusion that the evidence on record confirms that the trial court based it findings mainly on the questioned survey Report and the an unapproved Plans, which were denounced by the County Government of Narok (2nd Appellant), who are the custodian of all ownership documents, over Plots No 304 and 308 Block 4. The 2nd Appellant argued and submitted that Plot No 304 Block 4, exist on the Ground and is owned by Stanley Maleto, the 1st Appellant, and there was no good Ground for the trial court to doubt that evidence. 123.Further, the 2nd Appellant argued and submitted that Plot No 308 Block 4, does not exist, and as custodian of ownership documents, they were better placed to confirm the ownership or existence of the said Plot. This court in its appellate Jurisdiction finds and holds that Plot 308 Block 4 does not exist, as testified by the witnesses from the 2nd Appellant’s office. 124.Therefore on the issue of Plot No. 308 Block 4, the court finds that the witness from the County Government of Narok( 2nd Appellant), who are the custodian of the documents and records testified that the said plot did not exist. This court finds and holds that plot No 308 does not exist, and was not lawfully allocated to the 2nd Respondent( Kayit Ole Kunguru); 125.Further, on the trial Court’s finding that Plot No. 304 block 4, does not exist on the ground, this court finds and holds that the said holding was erroneous and proceeds to upset the same 126.However, the 2nd Appellant argued and submitted that Plot No 305 Block 4, does not belong to 1st Respondent, but to one KapolonTo Ole Ntimama. However, there is evidence that KapolonTo Ole Ntimama sold this plot to 1st Respondent( Bernard Maina Thini). 127.Consequently, this court finds and holds that the available evidence as contained in the Record of Appeal supports the trial court’s findings that: Plot No. 305 Block 4 ,which was initially owned by Kapolondo Ole Ntimama, was lawfully sold to 1st Respondent; The 2nd Appellant ground that the trial court erred in holding as it did therefore fails. 128.The evidence adduced by the 4th and 5th Respondent over Plot No. 307 Block 4, was not consistent did not prove that the said plot belong to the 4th and 5th Respondents; Therefore, this court finds no reason to fault the trial court’s findings that Plot No 307 Block 4 belongs to the 1st Respondent, and not the 4th and 5th Respondents. 129.Further, it is also evident from the Record of Appeal that the 1st Respondent expressly testified that he purchased Plot No. 306 Block 4 from Letenya Ole Dikirr (also referred to as Leitela Ole Tipis). There was no evidence adduced to controvert that evidence, and this court holds that the 1st Respondent owns plot No 306 Block 4, and the trial court did not err in holding so. 130.Having found and held that it is evident from the Records of Appeal that the Appellants relied on the approved development plan to assert that Plot No. 304 block 4 did exist, while Plot No. 308 block 4, did not exist, and given that the 2nd Appellant (County Government of Narok) are the custodian of the records of ownership and approved plans, it is not clear on why the trial court doubted that evidence, and this court proceeds to upset its determination on the issue of plots No 304 and 308 Block 4 Approved development plans are undoubtedly important, and they reflect the reality on the ground. VI. Whether this Court should interfere with the findings of the trial court 131.Having re-evaluated the entire evidence adduced before the trial court, as reflected in the two Records of Appeals, this Court in its appellate jurisdiction finds and holds that the trial erred in making a finding on un-pleaded issue, therefore getting into error that plot No 304/ 4, does not exist, which issue was not pleaded, and thus the 1st Appellant did not have an opportunity to present his Defence on whether the plot exists or not. It is trite that parties are bound by their pleading, and the trial court was in error in making a finding on un pleaded issue. 132.Further, the Appellants have demonstrated that the trial court based its findings on a Survey Report that was denounced by the County Government( 2ND Appellant) , and also on Un-approved Development Plans, and thus the findings and determination were based on no evidence, therefore, there was misapprehension of evidence. Therefore, this Court proceeds to determine the consolidated Appeals on the following terms. E. Conclusion 133.Having analyzed the available evidence, the Court finds and holds that the ELCA E008 /2025 has merit, and it succeeds. However, ELCA EO10/2025, partially succeeds. The court enters judgement as follows 134.Accordingly:a.In Regard to ELCLA NO E008 of 2025, the said Appeal succeeds entirely and the Plaintiff’s suit in Narok CMCC NO 200 od 2013, is dismissed entirely with costs to the 1st Appellant.b.The Judgment of the trial court delivered on 13th May 2025 IN REGARD TO Narok CMCC No. 200 of 2013 is hereby upset and set aside, and substituted with the following findings; That the 1st Appellant Stanley Maleto is declared the owner of plot No 304 Block 4.c.In regard to ELCLA No. E010 OF 2025, the said Appeal succeeds partially in terms of prayer No (A) and the fact that plot No 308 Block 4, does not exist. However, the court upholds the trial court’s findings that plot No 307 Block 4, belongs to the 1st Respondent (Bernard Maina Thini) and not the 4th and 5th Respondents. Thus prayer (B) of the said Appeal is dismissed. 135.Since the 2nd Appeal (E010 OF 2025) has partially succeeded, on the issue of Costs, the court direct each party to bear its own costs.It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAROK THIS 29TH DAY OF JUNE 2026.L.GACHERUJUDGEDelivered online in the presence ofElijah Meyoki…Court Assistant.Ms. Alwala H/B for Mr. Githui for Appellant in ELCA E008 OF 2025/3rd Respondent in ELCA E010 OF 2025Ms. Lyona H/B for Mr. Maina Ngaruiya for Respondent in ELCA E008 OF 2025/ 1st Respondent in ELCA E010 OF 2025Ms Cheruto for Appellant in ELCA E010 OF 2025Ms. Mogere for 2nd Respondent in ELCA E010 OF 2025N/A for 4TH and 5TH Respondents ELCA E010 OF 2025