https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4253

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **CIVIL APPEAL NO. E026 OF 2024** **MELISA ANYANGO ANDEDO……………………………APPELLANT** **VERSUS** **JOSEPHAT OKINDA MASIGA …………………………RESPONDENT** **JUDGMENT** ***(Being an Appeal from the Judgment of Hon. Anne Njeru SRM delivered on 8th October 2024 in Port Victoria ELC No. E003 of 2023)*** **Lower Court suit** 1. By a plaint dated 7th December 2023, the appellant instituted a suit in the lower court to wit Busia CMC ELC Case No.E003 of 2023 seeking judgment against the respondent for a declaration that the respondent had trespassed on the parcel of land known as L.R No. Samia Luanda/Mudoma/3477 (suit property); an order of eviction of the respondent from the suit property; a permanent injunction restraining the respondent by himself, his employees, agents, workers and/or servants from interfering with the suit property; costs of the suit; any other relief the court may deem fit to grant. 2. As can be discerned from the averments/contentions in the plaint, the appellant’s suit was premised on the grounds that the appellant is the owner of the suit property having bought it from James Kanja; that the respondent without any colour of right or justification or cause, had unlawfully entered into the suit property and awarded himself a portion of the suit property measuring 10m by 36m by 36m; that owing to the action of the respondent complained of, he could not properly utilize the suit property; that the suit property was in danger of being wasted and that his attempts to get the respondent vacate the suit property were futile. 3. The appellant further pleaded or contended that the respondent had fraudulently altered the mutation form for the suit property and awarded himself a portion of land measuring 10m by 36m by 36m. 4. The Respondent filed a statement of defence and counterclaim, dated 9th April 2024, in which he denied the allegations levelled against him and contended that the appellant’s suit was premised on a faulty/erroneous mutation drawn in 2015 establishing the suit property; that the portion of land claimed by the appellant falls within his parcel of land, L.R No. Samia Luanda-Mudoma/2296 which had been in existence since 2001. 5. The respondent further pleaded/contended that there was a boundary dispute over the suit property and his property; that the boundary dispute was resolved by the County Land Registrar and that the decision of the County Land Registrar was never reviewed and/or appealed from. 6. Terming the appellant’s suit incompetent, the respondent urged the court to dismiss the suit with costs to him. 7. By way of counterclaim, the respondent sought an order directing the County Surveyor and the County Land Registrar to cancel the Mutation Form which created the suit property and to draw a fresh mutation form for the suit property conforming to the old boundaries on the ground and amend the area map accordingly. The respondent also sought the costs of the counterclaim. 8. Upon considering the case urged before her, the trial court dismissed the appellant’s case with costs to the respondent. The trial court also dismissed the respondent counterclaim but with no order as to costs. 9. In dismissing the suits, the learned trial magistrate stated/held: **“ I have considered the history of the two parcels of land and found as follows:** 1. **The plaintiff’s parcel of land known as Samia/Luanda-Mudoma/3477 originated out of subdivision of Samia/Luanda-Mudoma/2591 measuring approximately 0.67 ha, alongside 2476 and 3475 (which are not in contention). This was done pursuant to a mutation drawn on 18/11/2009 and registered on 31st July 2015. The same at the time was owned by one Richard Egesa Small.** 2. **Defendant’s parcel parcel of land known as Samia/Luanda-Mudoma/1893 measuring approximately 1.49ha registered in the names of Jomo Obwora Okumu. The same birthed 2295 and 2229. The same was pursuant to a mutation drafted on 28/9/2001 and registered on 26/7/2002.** 3. **According to the surveyor’s report, dated 2/11/2023, the findings of the surveyor as well as the District Land Registrar, are to the effect that the disputed portion lies within the defendant’s parcel of land and not the plaintiff’s. The plaintiff did not offer any contradictory evidence to prove otherwise. She did not also call the said officers to cross examine them on the said findings. The report remained unchallenged and therefore no proof of trespass on the defendant.** 4. **Did the defendant then fraudulently interfere with the mutation creating the plaintiff’s land?** 5. **Plaintiff has not presented any evidence to prove the defendant’s involvement in the preparation of the plaintiff’s mutation form. It then beats logic how the defendant was able to influence the plaintiff’s mutation form prepared almost 14 years after that of his property was done.** 6. **I have taken into consideration the history of how the plaintiff’s land came into effect. The plaintiff bought the land from one James Kanja who in turn bought the same from PW3. In his testimony, PW3 bought the land from Lawrence Erungu who was a brother to PW4 who is the registered owner according to the mutation forms presented.** 7. **PW4 interestingly testified to not have had any involvement in the mutation or transfer of the land to anyone. According to him, he disowned the signature on the said mutation form and stated that he never at any time presented himself at the Land Control Board for any approval of subdivision of his land 2591 nor execute any documents to give rise to the plaintiff’s land.** 8. **The consequence of this therefore that the mutation registered in the year 2015 was marred with irregularities and therefore it is safe to infer that the mutation form used to birth the plaintiff’s land was fraudulently obtained.** 9. **What then is the effect of the mutation form and subsequent title thereto? The same are null and void and ought to be cancelled…However, the counterclaim by the defendant has been kind enough to pray for cancellation of the mutation form and redrafting of the same to conform with the proper status quo. Be that as it may, the same cannot be issued on an illegality.** **The upshot of this matter is therefore** 1. **That the plaintiff’s suit is hereby dismissed with costs to the defendant.** 2. **That the defendant’s counterclaim is hereby dismissed with no order to costs.”** **Appeal** 1. Dissatisfied with the decision of the trial court, the appellant appealed to this court on the grounds that the learned trial magistrate erred in law and fact by: - 2. Relying on a survey report not produced by the maker and shifting the burden of calling defence witnesses to the plaintiff; 3. Purporting to cancel his title on ground of fraud yet the no such relief was sought in the pleadings; 4. Purporting to selectively cancel his title, L. R No. Samia/Lunda-Mudoma/3477 without evidence and hearing him on the allegations. 5. The appellant prays that the appeal be allowed with costs; that the judgment of the lower court be set aside and be substituted with an order allowing her appeal with costs. 6. The appeal was disposed of by way of written submissions. **Appellant’s Submission** 1. In her submissions dated 20th April 2026, the appellant has framed two issues for the court’s determination namely; whether the learned trial magistrate erred in cancellation of his title for L.R No. Samia-Luanda/Mudoma/3477 and whether the learned trial magistrate erred in relying on a surveyor’s report not produced by the maker. 2. On the learned trial magistrate erred in cancellation of his title for L.R No. Samia-Luanda/Mudoma/3477 the appellant has submitted/addressed the court as follows: - **“…It is clear that the respondent in the counterclaim never sought for an order for cancellation of L.R No.Samia-Luanda/Mudoma/3477. It is clear that what was sought was cancellation of mutation and redrawing a mutation that conforms with the old boundaries. The main claim was for trespass in which the respondent herein sought for the orders that the appellant had encroached on his land** *(not factually correct. It is the appellant who sought an order to the effect that the respondent had encroached on his parcel of land).* **Cancellation of a mutation does not necessarily mean cancellation of a title as the power to collect, amend/alter (Section 23 of Survey Act) amalgamation and combination of mutations rests with the surveyor as provided in section 31 of the Survey Act.** **Whereas it is appreciated that the Counterclaim was dismissed, the holding of the learned magistrate at paragraph 9 of the judgment was made in error and has the effect of extinguishing the interests of the appellant in the property and the same should not be allowed to stand.** **It is clear that the learned trial magistrate acknowledged that the respondent herein had not sought that order as seen in paragraph 10 and thus there was no basis for the learned magistrate reaching the conclusion captured in paragraph 9 of the judgment.** **We submit that the court was restricted to the facts as pleaded and not to come up with facts and reach a determination as seen in the authority cited in paragraph 9 which essentially involved fraud as pleaded in the case unlike in this one where fraud was not pleaded.”** 1. As to whether the learned trial magistrate erred in relying on a surveyor’s report not produced by the maker, the appellant submits/addresses the court as follows: - **“While the learned magistrate dealing with issue of trespass at paragraph 3 of the judgment she relied on the report entirely and blamed the appellant for not calling the surveyor for cross examination. The import of the statement is that the said surveyor did not produce the report despite contention having been raised by the appellant. Other than the issue of cross examination, the surveyor was helpful in explaining how he arrived at the report. It is not lost that the parcels were based on approximations.”** 1. In conclusion, the appellant submits that to the extent that the learned magistrate ordered for cancellation of title, the same should be set aside and the appeal allowed as prayed. **Respondent’s submission** 1. In his submissions dated 11th May 2026, the respondent has submitted/addressed the Court as follows: - **“…A look at page 47 of the Record of Appeal exhibits the Mutation Form for land parcel No. Samia/Luanda-Mudoma/2591. Its registered owner was named Richard Egesa Small. The said Mutation Form shows that Richard Egesa Small proceeded to subdivide parcel No.Samia/Luanda-Mudoma/2591 into parcel No.Samia/Luanda/Mudoma 3475, 3476 and 3477. The said Mutation Form shows that Richard Egesa Small transferred the subdivision title No. Samia/Luanda-Mudoma/3477 to other buyers who eventually resold the same to the appellant herein. The judgment of the lower court at page 133 reads thus:** **“However, the counterclaim by the defendant has been kind enough to pray for cancellation of the mutation form and redrafting of the same to conform with the proper status quo. Be that as it may, the same cannot be issued on an illegality.** **The upshot of this matter is therefore** 1. **That the plaintiff’s suit is hereby dismissed with costs to the defendant.** 2. **That the defendant’s counterclaim is hereby dismissed with no order to costs.”** **The above final findings are reproduced in the decree which was prepared by the lower court. It forms the last page of the Record of Appeal.** **At page 22 of the Record of Appeal, one Richard Egesa Small whose name appeared on the Mutation Form for parcel number No. Samia/Luanda-Mudoma/2591 stated in cross examination as follows:** **“I know the defendant herein. His land neighbours that of the plaintiff, 3477. I don’t know his parcel number. My land borders that of the defendant. He has constructed a permanent house on the parcel of land. I live around 1 KM away from the defendant’s land. I don’t remember signing any document for the plaintiff herein. My land is 2592. I did not sign any Mutation Form for parcel of land 2591. Page 2 is not my signature. I did not sign page 4 of the Mutation as Well. My name is in it but I did not sign the said Form. 2591 was the one that birthed 3477, 3475 and 3476 at no time did we subdivide the land with a surveyor. I don’t know these documents. I attended a Board in Busia. There was no Board in Funyula then in 1986. The Mutation Form is dated 2010. I never went to Funyula myself to attend a board in 2010. The Mutation Form has no name nor stamp of the surveyor who did the Mutation. I don’t know any woman called Natabona.** **From the above quote, there was evidence on the trial court’s record to show that the Mutation Form for land parcel No. Samia/Luanda-Mudoma/2591 and the Transfer Form for the subdivision title No.Samia-Luanda-Mudoma/3477 were prepared fraudulently. The owner of the land stated that he never employed any surveyor to prepare the Mutation Form. He also testified that he was not present during the preparation of such forged Mutation Form. The land owner Richard asserted that he never signed such Mutation Form and the Land Transfer Form and he never attended any subdivision and transfer Land Control Board meetings to facilitate the creation and subsequent transfer of the suit title.** **On the basis of such quoted evidence where the owner of the parent suit parcel No.Samia/Luanda-Mudoma/2591 had disowned ever signing its Mutation Form which is claimed to have given rise to land parcel No.Samia/Luanda-Mudoma/3477 and its Transfer Form, the Trial Court was justified proposing that the said suspect Mutation Form, the Transfer Form and subsequent titles be cancelled for Fraud. The lower court in its final part of the judgment and in its decree declined to cancel any title deed. The appeal on the ground of cancellation of the appellant’s title is misconceived and should be dismissed with costs.** **The decree is the final document that defines the final determined rights of the parties to any litigation. The decree forming the last page of the Record of appeal does not contain any order which directs the cancellation of any title. The appellant failed to appreciate the result in the decree. Her appeal is totally unnecessary and is misdirected. The appellate court can still review the whole evidence and exhibits which were led and produced before the trial court and make its own and appropriate conclusions.** **We urge the court to find no merit in the appeal.** **When the respondent testified in his defence at page 124 he produced the defence documents numbered 1 to 11 as defence exhibits 1 to 11. There was no valid demand for the surveyor’s report to be marked for identification for a later production by the surveyor himself. Since the appellant failed to raise any objection in the trial court against the production of the survey report, the complaints now being raised in the appeal do not suffice and the court should dismiss the same with costs to the respondents.** **Analysis and determination** 1. In exercise of the duty vested in this court as a first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard, see **Selle & Another vs. Associated Motor Boat Co. Ltd (1968) E.A 123** and **Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR** and **Kiruga vs. Kiruga & Another (1988) KLR 348**. 2. A review of the totality of the evidence adduced in the lower court shows that the appellant did not prove his pleaded case against the respondent. Whilst the learned trial magistrate made a finding based on the evidence adduced before her that there was irregularity and fraud in the process that led to creation of the title held by the appellant in respect of the suit property, Samia-Luanda/Mudoma/3477, which have the effect of vitiating the title held by the appellant, it is clear from the judgment and the decree of the lower court that the learned trial magistrate did not cancel the title held by the appellant as claimed by the appellant. The claim by the appellant that the learned trial magistrate cancelled his title deed over the parcel of land known as Samia-Luanda/Mudoma/3477 is therefore ill-advised and premised on a misapprehension of the judgment of the lower court. 3. Concerning the contention that the learned trial magistrate erred in relying on the report of the surveyor when the same was not produced by its maker, I note from the record of the lower court that the report was produced without any objection by the appellant. Having failed to object to the production of that report in evidence, the appellant cannot fault the learned trial magistrate for relying on the report of the surveyor in the circumstances. I also note that the report of the surveyor is not the only evidence the learned magistrate used in determining the case presented before her. 4. The upshot of the foregoing is that I find the appeal to be lacking in merits and l dismiss it with costs to the respondent. 5. Orders accordingly. **Ruling dated, signed and delivered at Nyahururu this 2nd day of July, 2026 through Microsoft teams.** **L. N. WAITHAKA** **JUDGE** **In the presence of: -** Mr. Otieno for the Appellant Mr. Wanyama for the Respondent Court Assistant: Ajwang