https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4502

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC APPEAL NO. 13 OF 2013** **PATRICK BWIRE NYABOLA ……………….……...…….. APPELLANT** **= VERSUS =** **GABRIEL PETER MBONDA ……….……………… 1ST RESPONDENT** **CATHOLIC DIOCESE OF BUNGOMA** **SISENYE PARISH …………….…..……………..…... 2ND RESPONDENT** (Being an appeal from the judgment delivered by **HON. I. T. MASIBA, SENIOR RESIDENT MAGISTRATE** on 17th April 2013 in **BUSIA CHIEF MAGISTRATE’S COURT CIVIL CASE NO 355** of **2005**) **J U D G M E N T** 1. **PATRICK BWIRE NYABOLA** (the Appellant) was the plaintiff in **BUSIA CHIEF MAGISTRATE CIVIL CASE NO 355** of **2005**. By his plaint, dated 18th October 2005 and amended on 2nd November 2005, he sought judgment against **GABRIEL, PETER, MBINDA** and **THE CATHOLIC DIOCESE, BUNGOMA, SISENYE, SUB-PARISH,** (the 1st and 2nd Respondents respectively) in the following terms with respect to the land parcel **NO** **BUNYALA/BULEMIA/465** (the suit land). 2. **An order of permanent injunction against the Respondents, their agents, servants, and or by themselves, restraining them from any usage of the suit land or any part thereof.** 3. **Cancellation of the land parcel NO BUNYALA/BULEMIA/2259 and the amalgamation of the portions to BUNYALA/BULEMIA/465.** 4. The basis of the Appellant’s claim was that he was among the four registered owners of the suit land the others being his deceased father and his two brothers. That the 1st Respondent held himself out to be the owner of the suit land and sold a portion thereof to the 2nd Respondent being the land parcel **NO BUNYALA/BULEMIA/2259** through fraud particulars of which were pleaded in paragraph 6 of the amended plaint. 5. The Respondents filed separate defences, both dated 12th December 2005 in which they denied all the allegations of fraud levelled against them. They pleaded further that the Appellant’s suit was bad in law, res judicata and that the Appellant lacked the capacity to file the claim and that the Court lacked jurisdiction to determine it. 6. The suit was heard by **HON. I. T. MAISIBA, SENIOR RESIDENT MAGISTRATE** who, vide a judgment delivered on 17th April 2013, (not 24th April 2013 as per the Memorandum of Appeal), dismissed the Appellant’s suit with costs. 7. Aggrieved by that judgment, the Appellant filed this appeal on 6th May 2011 seeking orders that the prayers in **BUSIA CHIEF MAGISTRATE’S COURT, CIVIL CASE NO.355** of **2005** be allowed as prayed. He also sought costs of the appeal and in the trial Court. The following four (4) grounds of appeal have been raised: 8. That the learned trial magistrate erred in law and in fact in dismissing the Appellant’s suit when the evidence and submissions on record were in favour of the Appellant. 9. That the learned trial magistrate erred in law and in fact in dismissing the Appellant’s claim when there was sufficient evidence to prove ownership of **L.R. NO BUNYALA/BULEMIA/465.** 10. That the learned trial magistrate erred in law and in fact in dismissing the Appellant’s claim when the evidence tendered by the Respondent indeed was in support of the Appellant. 11. That the learned trial magistrate erred in law and in fact in dismissing the Appellant’s claim when the law and facts were in favour of the Appellant. 12. The appeal has been canvassed by way of written submissions. The same have been filed by **MR. OUMA** instructed by the firm of **B. M. OUMA** & **COMPANY ADVOCATES** for the Appellant, and by **MR. FWAYA,** instructed by the firm of **GABRIEL FWAYA ADVOCATES** for the 2nd Respondent. I should mention at this stage that the 1st Respondent passed away in the course of these proceedings and this appeal is now only against the 2nd Respondent. 13. This is a first appeal and my duty is to reconsider and re-evaluate the evidence which was before the trial magistrate and draw my own conclusions. A first appellate Court considers both the law and the evidence. I shall be guided by the precedents set out by the superior Courts. One such precedent is the decision of the then East Africa Court of Appeal in the case of **OKENO -V- R 1972, EA 32,** where it was stated that: **“An appellant on a first appeal is entitled to except the evidence as a whole to be submitted to a fresh and exhaustive examination (PANDYA -V- R 1957, EA 336) and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its conclusion – SHANTILAL M. RUWALA -V- L 1957, EA 570. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses. See PETERS -V- SUNDAY, POST, 1958, EA 424.”** In the case of **MWANASOKONI** **-V- KENYA BUS SERVICES LTD 1985 KECA 82 KLR [CA CIVIL APPEAL NO. 35** of **1985],** the Court added that: **“But the jurisdiction (to review the evidence) should be exercised with caution; it is not enough that the appellate Court might itself have come to a different conclusion.** **Accordingly, only when the finding of fact that is challenged on appeal is based on no evidence or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the finding he did, will this Court interfere with it – see EPHANTUS MWANGI & ANOTHER -V- WAMBUGU 1983/84 2KCA 100 at page 118.”** In **ODERA T/A A. J. ODERA & ASSOCIATES -V- MACHIRA T/A MACHIRA & CO ADVOCATES C.A. CIVIL APPEAL NO 161 of 1999 [2013 KECA 208 KLR],** the judges expressed themselves as follows with regard to the duty of a first appellate Court: **“This being a first appeal, we are reminded of our primary role as a first appellate Court namely, to re-evaluate, reassess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned judge are to stand or not and give reasons either way.”** Based on the above precedents, among others, and having considered the record of the trial Court and the submissions by counsel, the swift decision in this appeal is whether the land parcel **NO BUNYALA/BULEMIA/2259** was fraudulently created by the 2nd Respondent from the suit land and whether the two parcels should now be amalgamated back to the suit land and the 2nd Respondent permanently injuncted from the usage thereof. 1. In paragraphs 5b and 6(1) of his amended plaint, the Appellant pleaded: **5(b) “The 1st defendant fraudulently caused the records at the Land’s office to create LR NO BUNYALA/BULEMIA/2259 from the plaintiff’s LR NO BUNYALA/BULEMIA/465. This action has deprived the plaintiff 2.4 Ha of his land.”** **6(1) “He has falsely misled the 2nd defendant regarding ownership of LR NO BUNYALA/BULEMIA/465 and falsely created LR BUNYALA/BULEMIA/2259.”** On its part, the 2nd Respondent pleaded in paragraphs 8 and 9 of its defence that: **8: “The 2nd defendant avers that it is the sole absolute registered owner of BUMALA/BUNDONGA/2259 (sic) which is designated on map sheet NO 27 which it has embarked to develop including building a church.”** **9: “The 2nd defendant averse that LR BUNYALA/BUNDONGA/465 (sic) borders BUNYALA/BUNDONGA/2259 (sic) and the two parcels are designated on different maps.”** The reference to the land parcels **BUNYALA/BUDONGA/4165** and **2259** is obviously a typographical error. The land parcels the subject of this suit are **BUNYALA/BULEMIA** not **BUNYALA/BUDONGO.** 1. The thrust of the Appellant’s case was that the land parcel **NO BUNYALA/ BULEMIA/2259** which is registered in the name of the 2nd Respondent is in fact part of the suit land which is registered in the name of the Appellant. When he testified before the trial Court on 22nd November 2007, this is what the Appellant said: **“There is a query in our land which the 1st defendant was allowed to use for some time and he suddenly obtained title NO 2259. We did not consent to the issue of that title. We didn’t sign as (sic) transfer for the 1st defendant. We didn’t sub-divide our land at any one time.”** And in his submissions, the Appellant’s counsel states as follows in paragraphs 8 and 9 (page 2): **“The 1st defendant just brought his friends the adjudication officers and went on to create a portion for himself and as we speak now the portion he gifted the Catholic Church is part and parcel of BUNYALA/BULUMIA/465 (sic) which the plaintiff’s father has never sold him and if he did, then the consent of the plaintiff was necessary. The tribunal the matter went to the 1st Respondent did not produce the sale agreement.** **The plaintiff received information in 2005 that the 2nd Respondent had planned to build a church on his land he protested as he has never sold part of BUNYALA/BULUMIA/465 (sic) as such the illegally created number BUNYALA/BULUMIA/2259 (sic) by 1st Respondent can only be ascertained on BUNYALA/BULUMIA/465 (sic) the property of the plaintiff.”** Again, I must repeat that the land in dispute is **BUNYALA/BULEMIA** not **BUNYALA/BUDONGO** or **BUNYALA BULUMIA.** 1. On his part, when he testified in the trial Court on 12th September 2012, the 1st Respondent who is now deceased and who purchased the land parcel **NO BUNYALA/BULEMIA/2259** and which he subsequently transferred to the 2nd Respondent said at paragraph 14 of his testimony (page 104 of the record) that: **“It is not true my land was caved (sic) off from BUNYALA/BULEMIA/465.”** In his submissions at paragraphs 23 and 24 (iv) and (v), counsel for the 2nd Respondent says: **23: “The Appellant’s case was that the land parcel NO LR BUNYALA/BULEMIA/2259 was fraudulently and illegally created from BUNYALA/BULEMIA/345 (sic) and thereafter acquired by the 1st Respondent.”** **24 (iv): The records do not show that BUNYALA/BULEMIA/2259 is a creation (sub-division) of 465.”** **(v): That the records show NO 2259 is owned by the Catholic Diocese of Bungoma, the position has not changed.** The Appellant’s own witness **FRED N. O. MALEOVI**, the then Land Registrar Busia testified as **PW2**. When he was cross-examined by the 2nd Respondent’s counsel, **MR. FWAYA** on 18th December 2008, he said at page 81 of the record that: **“My records do not show that BUNYALA/BULEMIA/2259 is a creation on BUNYALA/BULEMIA/465. I am not aware of falsification of records. GABRIEL MBINDA once owned BUNYALA/BULEMIA/2259. BUNYALA/BULEMIA/2259 is owned by the Catholic Diocese of Bungoma. 465 position has not changed. That is all.”** The registers for the suit land and the land parcel **NO** **BUNYALA/BULEMIA/2259** shows that they were both registered as first registrations on 2nd October 1985. The Land Registrar was clear in his testimony that the land parcel **NO** **BUNYALA/BULEMIA/2259** was not created from the suit land. Therefore, the suggestion by the Appellant that the land parcel **NO** **BUNYALA/BULEMIA/2259** was part of the suit land on which the 2nd Respondent had trespassed and for which the Appellant was therefore seeking an amalgamation of the two parcels of land was clearly far-fetched and bound to fail. There was no evidence to warrant the orders sought in the amended plaint and the trial magistrate was not in error, either in law or in fact, in dismissing the Appellant’s suit. The Court must dismiss this appeal against the 2nd Respondent. 1. As against the 1st Respondent, he is deceased and was never substituted. The appeal against him is incompetent. It is for striking out. 2. And even as regards the 2nd Respondent, the record of appeal, some of the pages are illegible - see for example page 68. An incomplete record cannot sustain any appeal. Ideally, it should suffer the safe fate as the appeal against the 1st Respondent. 3. Ultimately, however, there was no evidence led in the subordinate Court to sustain the allegations of fraud as alleged against the 2nd Respondent with regard to the manner in which the land parcel **NO** **BUNYALA/BULEMIA/2259** was acquired. And certainly, there was no evidence to warrant the amalgamation of the two land parcels number **NO** **BUNYALA/BULEMIA/465** and **2259** as sought by the Appellant. There can be no reason for this Court to interfere with the decision of the trial magistrate. 4. Finally, and perhaps most fundamentally, the suit in the trial Court was statute barred from its inception when it was filed firstly on 18th October 2005 before being amended on 2nd November 2005. The suit land and the land parcel **NO** **BUNYALA/BULEMIA/2259** were both registered on 2nd October 1985. The suit was therefore filed 20 years later and in contravention of **Section 7** of the **Limitation of Actions Act**, which provides that; **7: “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action occurred to him or, if it first occurred to some person through whom he claims, to that person.”** The Appellant’s suit was dead on arrival, and although that issue was not raised in the trial Court, it is an issue of law touching on the Court’s jurisdiction. It can be raised by the Court *suo moto* at any time including on appeal - **ADERO & ANOTHER -V- ULINZI SACCO SOCIETY LIMITED 2002 I KLR 577.** 1. The Appellant was not entitled to the orders sought. Those orders were stale. 2. Ultimately therefore, and having considered this appeal, I make the following dispositive orders: 3. **The appeal against the first Respondent is struck out with no orders as to costs.** 4. **The appeal against the second Respondent is dismissed with costs both here and in the Court below.** **BOAZ N. OLAO** **JUDGE** **16TH JULY 2026** **Judgment dated, signed and delivered by way of electronic mail on this 16th day of July 2026 with notice to the parties.** **Right of Appeal** **BOAZ N. OLAO** **JUDGE** **16TH JULY 2026** Explanatory notes: This judgment was due on 22nd January 2026. However, I was transferred to Iten Court w.e.f. 15th January 2026 and therefore I had to prioritize pending hearings hence the delay. The same is regretted. **BOAZ N. OLAO** **JUDGE** **16TH JULY 2026**