https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3443

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **CIVIL APPEAL NO. E073 OF 2024** **NAOMI BANZI ……………………….……………..………...APPELLANT** **=VERSUS=** **1. PAULINE MWAGAMBO MWATANDO** **2. PATRICK TSIMBA** **3. MWAGAMBO MWATANDO-THE CHAIRMAN** **4. ALEX NZARO-THE SECRETARY** **5. DAMA POLE- THE TREASURER (Sued as the Officials of Ukombozi Residence Committee) …....………………………………RESPONDENTS** ***(Being an Appeal against the Judgment of the Learned Honorable Magistrate James Ongondo (SPM) delivered at Malindi on 20th November, 2024, in MCELC No. 15 of 2018.*** **JUDGMENT** 1. The appellant herein, aggrieved and dissatisfied with the entire Judgment of the Learned Honorable Magistrate, Mr. James Ongondo (SPM), delivered at Malindi on 20th November, 2024, in **MCELC No. 15 of 2018**, appeals to this Court against the entire judgment on the following grounds: 2. **The Learned Honorable Magistrate erred in law and in fact by failing to recognize that, when dealing with unregistered land, the documents establishing ownership must show an unbroken chain leading to the root of the title, unlike disputes involving land registered under the statute.** 3. **The Learned Honorable Magistrate erred in law and in fact by failing to appreciate that the appellant’s unchallenged evidence was that she bought a parcel of land within the Ukombozi area, which would later be named the Ukombozi Residence Committee, measuring 120 feet by 110 feet, from John Nzai, one of the founders of the Ukombozi Residence Committee (Membership No. 13, thereof). That parcel of land was, upon demarcation, assigned Plot Nos. 170, 171, and 172, and the Respondents were nowhere present at the time the founders of the Ukombozi Residence Area were acquiring the land.** 4. **The Learned Honorable Magistrate erred in law and in fact by failing to appreciate that the 1st and 2nd respondents did not establish how they acquired the suit premises, being Plot Nos. 172 and 170, respectively, because Plot No. 171, measuring only 33 feet by 110 feet, was the portion of land allocated to the appellant. Yet, she had bought a parcel of land measuring approximately 120 feet by 110 feet, which covered Plot Nos. 170, 171, and 172.** 5. **The Learned Honorable Magistrate erred in law and in fact by failing to appreciate that the 3rd respondent, who was the Chairman of the Ukombozi Residence Committee, in collusion with his wife, the 1st respondent herein, falsified documents, particularly those relating to Plot No. 170 in favor of the latter, and likewise Plot No. 172, which was allocated to the 2nd respondent, despite overwhelming evidence of ownership and/or possession and/or occupation of all three portions of land by the appellant herein, who was in occupation of the three portions of land, measuring 120 feet by 110 feet, covering Plot Nos. 170, 171, and 172.** 6. **The Learned Honorable Magistrate erred in law and in fact by rejecting the evidence of both the appellant and the respondents, who had admitted that the appellant’s parcel of land was subdivided into three portions, on the ground that such evidence should have been presented through a surveyor’s report, even though the parties made no invitation to that effect.** 7. **The Learned Honorable Magistrate erred in law and in fact by finding that it was erroneous for the Appellant to sue the 1st respondent instead of Furaha Charo, the alleged original allottee of Plot No. 170, even though the proper and/or affected party was the latter.** 8. **The Learned Honorable Magistrate erred in law and in fact by readily accepting the allegations that the Area Chief served as an appellant forum for dissatisfied allottees of the suit premises, even though such allegations were not supported by any testimony and, in particular, by documentary evidence of the said chief's decision regarding attendance at the alleged meeting and the final orders of the Chief.** 9. **The Learned Honorable Magistrate erred in law and in fact by dismissing the appellant’s claim against the 2nd respondent, even though the 2nd respondent did not defend the suit.** 10. **The Learned Honorable Magistrate erred in law and in fact by disregarding the appellant’s evidence and placing greater emphasis on the respondents’ evidence, even though the appellant’s evidence was watertight and convincing.** 11. **The Learned Honorable Magistrate erred in law and in fact by dismissing the appellant’s suit, yet the evidence tendered in her favor warranted its success.** 12. The Appellant therefore seeks the following Orders: 13. **The appeal be allowed by setting aside the Judgment of the Learned Honorable Magistrate, Mr. James Ongondo (SPM), delivered at Malindi on 20th November, 2024, in MCELC No. 15 of 2018, and by substituting the Judgment with an order allowing the Appellant’s suit with costs.** 14. **The costs of this appeal are to be borne by the respondent.** 15. The appeal was canvassed through written submissions. I acknowledged receipt of submissions from counsel for the parties, which significantly assisted the Court in reaching its verdict. 16. Based on the record of appeal and the materials and submissions before me, the issues I frame for the determination of this Court are whether the trial Magistrate erred both in law and in fact by dismissing the appellant's suit in the Lower Court, and who should bear the costs of the appeal and in the Lower Court. 17. The principal function of the first Appellate Court is to review the decisions rendered by the trial Court. In executing this responsibility, the Court is mandated to examine the evidence submitted by the parties, as outlined in the case of **Abok James Odera t/a A.J Odera and Associates v John Patrick Machira t/a Machira and Co. Advocates [2013] eKLR**, and summarized herein: ***“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”*** 1. I have reviewed, reevaluated, and reassessed the materials and evidence presented before the trial court, as captured in the record of appeal. 2. The appellant's position was that she acquired a segment of land measuring 120 by 110 feet from Mr. John Nzai for a sum of Kshs. 30,000.00. This parcel had not been surveyed at the time of purchase. Subsequently, the land was subdivided into three parcels, numbered 170, 171, and 172. The appellant was designated as the owner of plot No.171. She expressed dissatisfaction with the allocation of the remaining two parcels to the 1st and 2nd respondents. The 1st respondent, on her part, claimed to have purchased her parcel from one Furaha Charo and furnished an agreement as evidence of this transaction. 3. Counsel for the appellant submitted that, according to the evidence tendered in the trial court, the suit premises were assigned Plot No. 171-Ukombozi but were later subdivided into 3 portions of land, creating Plot Nos. 170 and 172, and allocating Plot No. 170-Ukombozi to the 1st respondent and Plot No. 172-Ukombozi to the 2nd respondent. The appellant remained with Plot No. 171-Ukombozi, whose size was reduced to 0.101 acres, as the entire parcel measured 120 feet by 110 feet, equivalent to 0.303 acres. The said respondents did not adduce evidence to show how they acquired the suit land, other than a sale agreement executed in 2005, by which time the appellant had already purchased the suit premises in 1999. The suit land was therefore unavailable in 2005. 4. Counsel averred that the suit involves unregistered land, for which the law has remained silent on dispute resolution. However, case law holds that to prove ownership of unregistered land, there must be evidence of an unbroken chain of documentation leading to the root of title. See **Danson Kimani Gacina & another v Embakasi Ranching Company Ltd [2014] KEHC 8602 (KLR)**; **Caroline Awinja Ochieng & another v Jane Anne Mbithe Gitau & 2 others [2015] KEHC 4896 (KLR)**; and **Mekunde v Sanga [2024] KEELC 13729 (KLR)**. 5. Counsel avers that the trial Court's central error was its failure to apply settled legal principles governing disputes over unregistered land properly. The appellant produced a Sale Agreement dated October 15, 1999, confirming the purchase of a parcel of land measuring 120 ft by 110 ft. This document forms the foundation of her unbroken chain of documentation. 6. Counsel for the appellant further asserts that the respondents have not presented any credible evidence of their own root of title that could supersede the appellant's prior and documented claim. Their purported acquisition in 2005 pertains to land that, under legal consideration, was already occupied and owned by the appellant. 7. The counsel representing the respondent submitted that, notwithstanding the appellant's submission of a Sale Agreement confirming her purchase of the suit parcel in 1999, it is noteworthy that she acknowledged the parcel was unsurveyed. The appellant did not purchase plot No. 171, as claimed; rather, she acquired an unsurveyed plot within Ukombozi residence that had not been assigned a designated number. Testimony from the 1st respondent also corroborates that she purchased a segment of unsurveyed land within Ukombozi residence in 2005. Although both parties purchased their respective parcels years apart, each presented proof of purchase in the form of a Sale Agreement. The entire area was unsurveyed at the time of both transactions, a fact admitted by the appellant during cross-examination on page 95 of the record of appeal. This is further supported by the testimonies of the 1st respondent and her witnesses. The first respondent also provided evidence illustrating how she acquired her property. Accordingly, the trial court did not err in its finding that the appellant failed to substantiate her case. The appellant, in her submissions, has asserted that her parcel was subdivided into three portions, which were subsequently allocated to the respondents, thereby leaving her with only one portion. The 1st respondent contends that there is no evidence supporting the allegation that the appellant's parcel was subdivided into three portions. 8. I agree with the appellant's submissions on how to address the process of ownership of unregistered land, which I find central to the matter before the trial court. The dictum by Onguto J. in **Coroline Awinja Ochieng & another v Jane Anne Mbithe Gitau & 2 others [2015] eKLR, citing Nourse LJ. in Sen v Headley [1991] Ch. 425 at 437**, is relevant: ***“…. It is the delivery of deeds documents that assist in proving not only dominion of unregistered land but also ownership. The deeds must establish an unbroken chain that leads to good root of title or title paramount. A good compilation of the documents or deeds relating to the property and concerning the claimant as well as any previous owners leading to the title paramount certainly prove ownership. It is such documents which are basically the essential indicia of title of unregistered land.”*** 1. In the case of **Danson Kimani Gacina and another v. Embakasi Ranching Company Ltd [2014] eKLR**, the Court held that: ***“The law on unregistered land, unlike on registered land, is slightly unclear. Proof of ownership in the case of the former is found in documentary evidence which lead to the root of title. There must be shown an unbroken chain of documents showing the true owner. Once proof of ownership is tendered then the holder of the documents showing the entitled to the protection of the law. There is no doubt that such proof will be on a balance of probabilities, but the court must be left in no doubt that the holder of the documents proved is the one entitled to the property.”*** 1. According to the record, the parties' ownership of their respective plots derives from purchases of unsurveyed plots. Numbers and other ownership documentation were regularized much later. 2. Members consented to a survey of the land and to designate some areas for amenities such as roads, schools, and hospitals, thereby reducing plot sizes. It was also agreed that members who were dissatisfied with the survey were to report to the chief; however, the appellant did not fulfill this obligation. 3. In the process of providing roads, some parcels were cut through, and the surveyor had to maneuver to create complete 50x100 plots. It was denied that the appellant's portion was subdivided into 3 plots. 4. The trial Court formulated the issues for determination as follows: whether the appellant had proved that portions 170, 171, and 172 were subdivisions of the plot she had purchased from Nzai and therefore the three plots belonged to her. 5. The trial Court concluded that: ***“The portion the plaintiff bought from Nzai measured 120x110 feet but there was no report from the surveyor to confirm the measurements. Neither the plaintiff nor the defendants presented reports to prove the acreage of the respective portions. It is therefore not true to state that the same plot gave rise to three portions measuring 50x100 feet upon subdivision.*** ***The first defendant stated that she bought her portion from Furaha Charo. Her evidence was corroborated by other defence witnesses. There is an agreement. to that effect. If indeed Plaintiff has claim on the portion complained of she would have sued Furaha Charo who had sold the same to the first defendant.*** ***The plaintiff had agreed to the allocations as done by the Ukombozi Committee. She did not complain to the chief if she was aggrieved by the allocations as indicated by the defendants and committee members. The plaintiff is therefore estopped from complaining and filing a suit when all along she had agreed to the mode of distribution adopted by the committee.*** ***In the end I find that the plaintiff has not proved her case on a balance of probabilities. She is not therefore entitled to the reliefs sought in the plaint. Each party to bear own costs.”*** 1. Looking at the entire record and seeing that the parties owned unregistered, unsurveyed plots which were later regularized, there is nothing on record to show that there was a deprivation of the appellant's plot and that there was a collision to subdivide and allocate the appellant's land to the respondents. 2. In conclusion, the appeal herein has no merit and is dismissed. The trial Court's judgment was sound and based on the evidence presented. The appellant has not justified why this Court should depart from that judgment. 3. Costs are awarded to the 1st respondent in both this appeal and the Lower Court. **Dated, signed, and delivered electronically in Nyeri on this 13th day of May, 2026** **E. K. MAKORI** **JUDGE** **In the presence of:** **Ms.Chengo for the Appellant** **Kendi: Court Assistant** **In the Absence of:** **Ms.Muronji for the 1st Respondent**