https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5217

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL NO. E002 OF 2026** EUSTACE KITHINJI MUTEA……………………………………APPELLANT VERSUS ABDULLAHI MUHAMUD HALAKE…….……...….…….1ST RESPONDENT DIKO HUKA GODANA………………………...………….2ND RESPONDENT COUNTY GOVERNMENT OF ISIOLO……….………….3RD RESPONDENT ***[Being an appeal from the Judgment and decree of the Learned Magistrate Hon. L.K. Mutai-Chief Magistrate, dated and delivered on the 12th February, 2026 in Isiolo CMELC No. 21 of 2019]*** **JUDGMENT** 1. The Appellant herein [who was the Plaintiff in the lower Court] approached the Court *vide* the Plaint dated 2nd May, 2017. The Plaint was thereafter amended, resting with the Amended Plaint dated 4th June, 2018; and wherein the Appellant sought various reliefs, pertaining to and concerning ownership of LR No. Isiolo Township/Block II/245 [hereinafter referred to as “the Suit Property”]. 2. The reliefs sought *vide* the Plaint were: 3. ***An order of eviction of the 1st and 2nd Defendants from LR No. Isiolo Township/Block II/245.*** 4. ***A declaration that the Plaintiff is the lawful owner of LR No. Isiolo Township/Block II/245.*** 5. ***Mesne profits.*** 6. ***An order of permanent injunction restraining the 1st and 2nd Defendants and/or their agents or servants from entering, developing, or in any other manner interfering with the Plaintiff’s possession of LR No. Isiolo Township/Block II/24***5. 7. ***Costs of the Suit.*** 8. ***Any other relief that the Court deems fit to grant.*** 9. The Appellant’s Suit was predicated on various assertions. The assertions were: The Appellant purchased the Suit Property from one, Kenneth Kirimi “M’Arimi; the Appellant caused the Suit Property to be transferred and registered in his name; the Appellant was issued with a Certificate of Lease; the Appellant is the lawful owner/proprietor of the Suit Property; and the Appellant is entitled to exclusive possession of the Suit Property. 10. Despite being the registered owner of the Suit Property, the Appellant contended that the 1st and 2nd Respondents entered upon and trespassed onto the Suit Property on or about the year 2017; the 1st and 2nd Respondents have no lawful rights to and in respect of the Suit property; and the actions of the 1st and 2nd Respondents constitute trespass. 11. The 1st and 2nd Respondents duly entered appearance and thereafter filed their Statement of Defence and Counterclaim. The Statement of Defence was dated 8th August, 2018. The 1st and 2nd Respondents denied the claims by the Appellant. In addition, the 1st and 2nd Respondents posited thus: The Suit Property, which is claimed by the Appellant is not the same as the portion of land occupied by the 1st and 2nd Respondents; the 1st and 2nd Respondents are in occupation of Plot No. Isiolo/Chechelesi/172; the 1st and 2nd Respondents have been in occupation of their plot since 1997; the claims by the Appellant are mischievous; and the Appellant has no rights to and in respect of the plots occupied by the 1st and 2nd Respondents. 12. Additionally, the 1st and 2nd Respondents have contended thus: The plot occupied by same was adjudicated to Kulo Kanchora and Regina Kanchora; thereafter the 1st and 2nd Respondents applied to be allocated the plot; the County Council of Isiolo [defunct]allocated the plots; and the 1st and 2nd Respondents are lawfully entitled to their plots. 13. The 3rd Respondent duly entered appearance and filed a Statement of Defence dated 27th September, 2018. The 3rd Respondent denied the claims by the Appellant. In addition, the 3rd Respondent contended that same is not privy to the process leading to the issuance of the Certificate of Lease on favour of the Appellant. 14. The Suit in the lower Court was heard and disposed of *vide* Judgment delivered on 12th February, 2026. The learned trial Magistrate [ Hon. Lucy K. Mutai-Chief Magistrate] found and held that the Appellant had neither established nor proven that the Certificate of Lease held in respect of the Suit Property was lawfully obtained. The trial Court concluded that the Appellant had not demonstrated rights to or entitlement over the Suit Property. To this end, the trial Court dismissed the Appellant’s Suit. 15. Conversely, the learned trial Magistrate found that the 1st and 2nd Respondents have proven the claims at the foot of the Counterclaim. The trial Court thereafter entered Judgment in favour of the 1st and 2nd Respondents. Moreover, the trial Court awarded costs of the Suit and the Counterclaim to the 1st and 2nd Respondents. 16. Dissatisfied, the Appellant has now approached this Court *vide* Memorandum of Appeal dated 19th February, 2026 and wherein the Appellant has canvassed various grounds. The grounds are not only repetitive but prolix in nature. 17. For brevity, it suffices to reproduce the grounds. 18. The grounds are: 19. ***The learned trial magistrate erred in law and fact by failing to find that the appellant’s certificate of lease was issued following due process and no contrary evidence was adduced by the 1st,2nd and 3rd respondents to challenge the appellant’s title.*** 20. ***The learned trial magistrate erred in law and fact in that she failed to find that the 1st and 2nd respondents had no locus standi to challenge the appellant’s title as they had no evidence to demonstrate any ownership over the suit Plot No. Isiolo Township Block II/245.*** 21. ***The learned trial magistrate erred in law and fact in that she failed to find that the minutes which had been issued to Kulo Kanchora and Regina Kachora and which were adduced by the 1st and 2nd respondent were not capable of providing issuance of letter of allotment and lease to establish ownership of the suit plot as the same was no issued to them.*** 22. ***The learned magistrate erred in law and fact that she failed to find that the appellant was not required to the prove the root of his title as there were no evidence of any other title before the court to demonstrate the existence of more than one title over the suit property.*** 23. ***The learned trial magistrate erred in law and fact that she failed find that there was no evidence from the Ministry of Lands to demonstrate the appellant’s title was tainted with the illegality the first and second respondents having failed to plead and adduce in their defence and counter claim any particulars of fraud on the part of the appellant.*** 24. ***The learned trial magistrate erred in law and in fact in that she failed to find that the cancellation of titles and issuance of the same falls within the powers of the Ministry of Lands and the National Lands Commission has no jurisdiction and capacity to determine issuance, the legality of a title.*** 25. ***The learned trial magistrate erred in law and fact the failed to find that the appellant’s title had never been withdrawn or cancelled and therefore the first and second respondents challenge to same was not established.*** 26. ***The learned trial magistrate erred in law and fact by finding that the second respondent proved the root of their occupation over the suit property when there was no prayer for in their counter claim to support their claim.*** 27. ***The learned trial magistrate erred in law and fact in that she failed to find that the appellant’s title was protected by the provisions of Las and the report by the National Land Commission could not override the statutory provisions of Sections 25 and 26 of the Land Registration Act No. 3 of 2012.*** 28. ***The learned trial magistrate erred in law and fact in that she failed to consider the technical report dated 15.1.2024 and received in court on 13.2.24 which was produced by the Government Surveyor as part of the evidence before the court.*** 29. ***The learned trial magistrate erred in law and fact in that she failed to consider the appellant’s submissions and the judicial authorities therein.*** 30. ***Decision of the learned trial magistrate is against the weight of evidence and the same is bad in law.*** 31. The Appeal came up for directions on 11th June, 2026, whereupon learned Counsel of the Appellant intimated to the Court that same had filed and served the Record of Appeal. In addition, learned Counsel posited that the Record of Appeal was complete. Thereafter, Counsel sought directions as pertains to the disposal of the Appeal. Moreover, learned Counsel proposed to have the Appeal canvassed by way of written submissions. 32. With the concurrence of learned Counsel for the 1st and 2nd Respondents, albeit in the absence of Counsel for the 3rd Respondent, the Court proceeded to and issue directions. The directions were: The Appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of directions; the Respondents shall file and serve written submissions within 14 days from the date of service; and the Appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days of service. 33. The Appellant filed written submissions dated 19th June, 2026. The Appellant has raised two [2] key issues. The issues are: Whether the Appellant established lawful ownership of the Suit Property; and whether the 1st and 2nd Respondents were trespassers upon the Suit Property. 34. Regarding the first issue, learned Counsel for the Appellant has submitted that the Appellant tendered and adduced credible evidence before the trial Court showing purchase, acquisition and ultimate registration of the Suit Property in his name. In particular, learned Counsel has submitted that the Appellant adduced evidence to show that he purchased the Suit Property from Kenneth M’Arimi [hereinafter referred to as “the Vendor”] 35. Additionally, learned Counsel submitted that upon purchase of the Suit Property, the Vendor facilitated the transfer and registration of the Suit Property. In this regard, it was submitted that the Appellant was indeed issued with a Certificate of Lease. 36. Premised on the forgoing, learned Counsel for the Appellant has posited that the Appellant duly proved and demonstrated that same is the lawful and registered owner of the Suit Property. It was contended that on the basis of the Certificate of Lease, the Appellant is entitled to partake of and benefit from the rights in terms of **Sections 24 and 25 of the Land Registration Act, 2012 [2016].** 37. It has been submitted that despite the fact that the Appellant was the registered owner of the Suit Property, the learned trial Magistrate failed to return a finding in his favour. In this regard, it has been submitted that the learned Magistrate misapprehended and misapplied the law as pertains to registration and ownership of landed properties. 38. Furthermore, it has been submitted that other than the Certificate of Lease which was produced by the Appellant, the report by the County Surveyor dated 15th November, 2023, confirmed that the Appellant was the lawful owner of the Suit Property. It has been submitted that the learned trial Magistrate equally ignored and disregarded the said report. 39. *In a nutshell,* learned Counsel for the Appellant submitted that the Appellant tendered and placed before the trial Court sufficient evidence and material to vindicate ownership of the Suit Property. In any event, it has been submitted that the evidence by the Appellant was not controverted. 40. To buttress the forgoing submissions, learned Counsel has cited various decisions. The decisions are: **Arthi Highway Developers Ltd v Westend Butchery Ltd & 6 Others [2015] eKLR; Munya Maina v Hiram Gathiha [2013] eKLR; and Benja Properties Ltd v Syedna Mohammed & 4 Others [2015] eKLR**, respectively. 41. The second issue that has been canvassed by learned Counsel for the Appellant touches on the issue of trespass. It has been submitted that the 1st and 2nd Respondents have no rights to or interest over the Suit Property. Further, and in any event, it has been submitted that the claims by the 1st and 2nd Respondents are not legally tenable. 42. It has been submitted that the actions by the 1st and 2nd Respondents constitute trespass and hence the Appellant dully proved his case. In this respect, learned Counsel for the Appellant has cited the holding in the **Municipal Council of Eldoret v Titus Gatitu Njau [2020] eKLR**. 43. Flowing from the forgoing, learned Counsel for the Appellant has invited the Court to find and hold that the Appeal is meritorious. The Court has been implored to allow the Appeal; set aside the impugned Judgment; and enter Judgment in favour of the Appellant in terms of the Amended Plaint dated 4th June, 2018. 44. The 1st and 2nd Respondents filed written submissions dated 14th July, 2026. The named Respondents have raised two [2] key issues. The issues are: Whether the Appellant proved his case on a balance of probabilities; and whether the 1st and 2nd Respondents are entitled to the mesne profits. 45. Regarding the first issue, learned Counsel for the 1st and 2nd Respondent has submitted that the Appellant did not tender or adduce any credible evidence to demonstrate ownership of the Suit Property. In particular, it has been submitted that the Appellant merely produced his Certificate of Lease in respect of the Suit Property and no more. Counsel posited that the Certificate of Lease is an end product and same by and of itself, does not demonstrate that the process was complied with. 46. Additionally, is has been submitted that even though the Appellant contended that same had purchased the Suit Property from Kenneth Kirimi M’Árimi, same neither tendered nor produced a copy of the sale agreement [if any]. 47. In a nutshell, it has been submitted that the Appellant did not document the purchase of the Suit Property. Moreover, it has been submitted that the vendor who sold the land to the Appellant did not have any valid title and hence the Appellant could not by himself accrued any better title. Learned Counsel has thereafter cited and referenced the doctrine of *nemo dat quod non habet*. 48. To buttress the forgoing submissions, learned Counsel has referenced various decisions. The decisions are: **Munyu Maina v Hiram Gathiha Maina [2013] eKLR; Martin & 2 Others v Kamar & 5 Others [2016] KELC; Katende v Haridar & Co. Ltd [2008] 2 EA 174; and Lawrence Mukiri v Attorney General & 4 Others [2013] eKLR**, respectively. 49. The Second issue that has been canvassed by learned Counsel for the 1st and 2nd Respondents relate to the mesne profits. It has been contended that the 1st and 2nd Respondents are the lawful owners of the disputed ground. In addition, it has been pointed out that the trial Court found that the 1st and 2nd Respondents have proved their Counterclaim. However, it has been submitted that no award was made. To this end, learned Counsel has implored this Court to proceed and award mesne profits. 50. In support of the forgoing submissions, learned Counsel has referenced the decision is **Rajan Shah T/A Rajan Shah & Partners v Bipin Shah [2016] eKLR**, where the Court highlighted the key features [elements] of mesne profits. 51. Thereafter, learned Counsel has contended that the Appeal is devoid of merit. The Court has been implored to dismiss the Appeal and to award costs to the 1st and 2nd Respondents. 52. The 3rd Respondent neither participated in the hearing of the Appeal nor filed any written submissions. 53. Having reviewed the Record of Appeal; the grounds of Appeal; the impugned Judgment; and upon consideration of the written submissions filed by/on behalf of the respective parties, two [2] key issues emerge for determination. The issues are: Whether the Appellant duly established and proved his case on a balance of probabilities; and whether the learned trial Magistrate correctly apprehended and applied the law as pertains ownership and title to landed property. 54. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding[s] and conclusion[s] arrived at by the trial magistrate accord with the evidence on record and the relevant/ applicable legal principles. 55. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding[s] and conclusion[s] of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 56. Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. For the avoidance of doubt, the jurisdiction cannot be exercised for the mere asking. **Section 78 of the Civil Procedure Act, Chapter 21**, regulates its exercise. 57. The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR).** The Court of Appeal expounded on the scope of the jurisdiction. The court stated thus: *“46. We also wish to be guided by the reasoning of this court in the case of* ***Mwana Sokoni versus Kenya Business Limited (1985) KLR*** *931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.”* 1. Recently, the Court of Appeal revisited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court highlighted the principle in the following manner: *“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the*[*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of* **County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) *and*****County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) –** [paragraphs 56 and 57 thereof]” 1. Back to the issues for determination. I shall address the issues sequentially. I beg to start with the 1st issue, namely; whether the Appellant proved/established his claim before the lower Court to the requisite standard or otherwise. To begin with, it is the Appellant who approached the lower Court seeking to partake of positive orders, to the effect that same was the lawful and registered proprietor of the Suit Property. In addition, it is the Appellant who posited that the 1st and 2nd Respondents who trespassed on the Suit Property. 2. Having approached the lower Court with the forgoing assertions, it was incumbent upon the Appellant to tender and adduce credible evidence to prove the various aspects of his claim. The burden of proof fell on the shoulders of the Appellant. The Appellant bore the obligation both on account of evidential and legal basis. 3. Suffice it to state that the law on the burden and standard of proof in civil matters is settled. In the case of **General & another v Hussein & 3 others [2025] KECA 1022 (KLR)**. The Court of Appeal stated thus: *“[39] The Law of Evidence, in all its complex glory, naturally revolves around two cardinal things: facts and proof. It is these two that combine to form evidence, which the court may or may not accept as showing the merit or otherwise of a party’s case. Some facts are however more important than others and it is not just expected but demanded that these facts be proved by the party seeking to rely on them. Section 3 (2) & (3) of the*[*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46)*provides as follows:2.A fact is proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it exists.3.A fact is disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist.* *[40] Section 107 (1) of the*[*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46)*provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Sub-Section (2) of the said provision provides that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In terms of Section 108 of the*[*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46)*, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”* 1. Did the Appellant prove his case to the requisite standard? Firstly, though the Appellant had contended that same is the lawful and registered owner of the Suit Property, the Appellant did not tender or adduce in evidence the documents underpinning the process that ultimately birthed the Certificate of Lease. The Appellant did not produce before the Court a copy of the letter of allotment[if any] that was issued in favour of the vendor; evidence of compliance with the terms of the letter of allotment, if at all, a copy of the sale agreement [if any] and a copy of the transfer instrument. 2. The Appellant only threw on the face of the trial Court the Certificate of Lease. According to the Appellant, the Certificate of Lease was sufficient proof of ownership. The Appellant forgot that a Certificate of Lease is an end product. The Certificate of Lease by and of itself , does not constitute proof validity/legality of the title. The Appellant was obligated to justify the root of his title. This could only be done by production of the background documents underpinning/anchoring the Certificate of Lease. 3. In the absence of the background documents to justify the root of the title, I am afraid that the Certificate of Lease, which was produced by the Appellant was an act in vain. The mere fact of ownership of a Certificate of Lease, irrespective of how same was acquired, cannot confer the Appellant with absolute rights to the Suit Property. 4. In the case of **Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR)**, the Supreme Court highlighted the obtaining jurisprudence and stated thus: *“[110] Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.”* 1. The other aspect of the Appellant’s claim was to the effect that the 1st and 2nd Respondents were trespassers. To be able to prove trespass, it was incumbent upon the Appellant to demonstrate that he was the lawful owner of the Suit Property, or he [Appellant] was entitled to immediate and exclusive possession of the Suit Property. I have pointed out that the Appellant has not proven ownership of the Suit Property. The question that remains is whether the Appellant was entitled to immediate possession? 2. The Appellant conceded during his testimony that even though he bought the Suit Property from Kenneth Kirimi MÁrimi, the same Appellant had never taken possession. On the contrary, evidence abound that it is the 1st and 2nd Respondents who had been in possession. Where is the foundation of the Appellant’s claim of trespass? 3. It was incumbent upon the Appellant to tender evidence and satisfy the trial Court on the key aspects of trespass. However, no evidence was tendered. The claim of trespass was mounted in vacuum. 4. In the case of **Doshi v Chemutut & 7 others [2025] KECA 776 (KLR)**, the Court of Appeal highlighted the key ingredients/elements that underpin the plea of trespass. In addition, the Court also illuminated the aspects that must be proven by a Claimant seeking to propagate the claim of trespass. The Court stated thus: ***“[39] Trespass, as stated by this Court in the case of Charles Ogejo Ochieng v Geoffrey Okumu [1995] KECA 169 (KLR), is an injury to a possessory right, and therefore the proper plaintiff in an action of trespass to land is the person who has title to it, or a person who is deemed to have been in possession at the time of the trespass. As for the ingredients of trespass, the Court in William Kamunge Gakui v Eustace Gitonga Gakui (Civil Appeal 16 of 2013) [2014] KECA 39 (KLR) stated that trespass is a violation of the right to possession, and that a plaintiff must prove that he has the right to immediate and exclusive possession of the land. Justice Chemutut did not name Mr. Doshi as a defendant in the suit.”*** 1. I have considered the totality of the evidence. I am afraid that the Appellant did not demonstrate that same was entitled to the reliefs sought. Moreover, I am in agreement, with the learned trial Magistrate that the Appellant did not prove the root of his title. Absent proof of the root of title, the Certificate of Lease, which was relied upon by the Appellant was incapable of vesting any legal right[s] to and in favour of the Appellant. 2. Next, is the issue of whether the learned trial Magistrate misapprehended and misapplied the law to the evidence that was tendered. The Counsel for the Appellant has contended that the learned trial Magistrate misapprehended the totality of the evidence that was tendered; failed to consider same; ignored the salient features of the evidence; and misapplied the legal principles, and thus arrived at an erroneous conclusion. 3. Firstly, learned Counsel for the Appellant has submitted that the learned trial Magistrate misapprehended the legal import and tenor of **Section 26 of the Land Registration Act, 2012**, which shows that a Certificate of Title or Lease constitutes prima facie evidence of ownership. In particular, it has been submitted that the learned trial Magistrate disregarded the Certificate of Lease, even though same had not been challenged. 4. Secondly, it has been submitted that the learned trial Magistrate disregarded the report dated 15th November, 2023 and which was filed by the County Surveyor. It has been posited that the said report confirmed that the Suit Property lawfully belonged to the Appellant. 5. Thirdly, it has been submitted that the learned trial magistrate paid undue premium to the report by the National Land Commission which indicated that the Appellant’s title was questionable. However, it has been submitted that the learned trial Magistrate failed to appreciate that the findings and conclusions at the foot of the report by the National Land Commission could not by itself, invalidate the Certificate of Title. 6. Despite the forgoing submissions, what is apparent is that the Appellant bore the duty of placing before the Court the evidence to justify the root of his title. He failed to do so. The Report by the County Surveyor and not the Land Registrar, could not help the Appellant’s case. For good measure, it is common ground that a County Surveyor cannot authenticate the validity of a title. Such mandate falls within the jurisdiction of the Chief Land Registrar and designated registrars, who are the custodian[s] of records. 7. As pertains to the complaints touching on the report by the National Land Commission, it suffices to state that same merely pointed out the loopholes that were evident in the process underpinning the Appellant’s Certificate of Lease. I do not see how the Appellant can complain about the Report, yet he did not produce the background documents, to prove the root of his title. 8. I have examined the Judgment of the learned trial Magistrate and I am convinced that the learned trial magistrate correctly apprehended and correctly applied the applicable legal principles in discerning whether or not the Appellant had proved his case; and more particularly, the root of his Title. Simply put, the learned trial Magistrate reiterated the established principle that was espoused in the case of **Munyu Maina v Hiram Gathiha Maina [2013] eKLR; and re-affirmed in Dina Management Limited versus The County Government of Mombasa and 6 Others [2023] eklrt.].** 9. I have not discerned any improper analysis of the evidence that can vitiate the impugned Judgment. 10. Before concluding on this Appeal, there are two incidental issues that deserve mention and a short discussion. The first issue relates to the finding of the trial Court that the 1st and 2nd Respondents had proved their Counterclaim. I really do not understand the import of what was proved. However, there is no gainsaying that the 1st and 2nd Respondents did not prove ownership of the land claimed insofar as minutes of the County Council of Isiolo [now defunct] cannot bestow title. [See the holding of the Court of Appeal in the case of **Wreck Motors Enterprises Limited versus Commissioner of Lands [1997] eklr].** 11. The second incidental issue relates to the submission by learned Counsel for the Respondents who has invited the Court to assess and award mesne profits. I wish to state that if the 1st and 2nd Respondents were aggrieved by the failure of the learned trial Magistrate to award mesne profits, it behoved the 1st and 2nd Respondents to file an appeal or cross-appeal [if the latter is provided for under the **Civil Procedure Rules**]. 12. Nevertheless, learned Counsel for the 1st and 2nd Respondent cannot be heard to seek positive reliefs out of the subject Appeal. The plea for an award of Mesne Profits, is legally untenable. **Conclusion** 1. The Appellant had approached this Court seeking to impugn the Judgment of the trial Court. It was incumbent upon the Appellant to demonstrate the errors or infractions [if any] that were committed by the trial Court. However, I wish to point out that non was highlighted. 2. Moreover, it is common ground that this Court can only depart from the factual findings and conclusions of the trial Court if and only if, certain parameters are met. The parameters are well explained in the case of **Mwanasokoni v Kenya Bus Services Ltd [1985] eKLR**. Simply put, the parameters have not been met. 3. In the premises, my conclusion is that the Appeal is devoid of merit; and same is a sure candidate for dismissal. **Final orders** 1. Flowing from the foregoing analysis, the final orders that commend themselves to the Court are: 2. ***The Appeal be and is hereby Dismissed.*** 3. ***The Judgment of the trial Magistrate dated 12th February, 2026 be and is hereby affirmed, save for the aspect which found that the 1st and 2nd Respondents proved their Counterclaim.*** 4. ***Costs of the Appeal be and are hereby awarded to the 1st and 2nd Respondents only.*** 5. ***The 1st and 2nd Respondents shall also have costs in the lower court.*** 6. ***The Costs in terms of clause [iii] and [iv] shall be agreed upon and in default be taxed in the conventional manner.*** 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 04TH DAY OF AUGUST, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo/Mukami Ms. Bett holding brief for Mr. Kiogora Ariithi for the Appellant Ms. Gikundi for the 1st and 2nd Respondents N/A for the 3rd Respondent