https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3681

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT** **AT KILGORIS** **ELCLA E037OF 2025** **JOSEPH OLE NGOSHOI……………………………………..……………………..APPELLANT** **VERSUS** **KIRAMATISHO OLE NTUTU…………………………………….…………….1ST RESPONDENT** **LEKAKENY OLE NTUTU……………………………………..………………..2ND RESPONDENT** **JUDGMENT** 1. Aggrieved by the decision of Hon. M.I.G Moranga, Chief Magistrate delivered on 9th of July 2025 in Kilgoris ELC No. 39/2018, the Appellant Joseph Ole Ngoshoi, penned 7 grounds of Appeal and sought the following reliefs; - 2. That the Appeal be allowed. 3. That judgment of the Honourable Magistrate together with any other consequential orders therefrom be set aside, varied and/or reviewed. 4. Costs of the Appeal. 5. The grounds of Appeal penned by the Appellants are as follows; - 6. That the Learned Trial Magistrate erred in fact and in law by failing to acknowledge that the Appellant has always been in possession of the suit property which he legally purchased. 7. That the Learned Trial Magistrate erred in fact and in law by failing to determine the matter on merit having heard all parties. 8. That the Learned Trial Magistrate erred in fact and in law by determining the Respondent as the Bonafide owner of the suit property despite the Respondent confirming the process of acquiring the disputed 7 acres of land. 9. That the Learned Trial Magistrate erred in fact and in law by failing to consider the evidence of the Appellant that the transfer of the suit property was done procedurally and legally. 10. That the Learned Trial Magistrate erred in fact and in law by not putting sufficient weight and consideration to the Appellant evidence and submissions tendered hence arising at a fundamentally flawed determination. 11. That the Learned Trial Magistrate erred in law and in principle in finding the gaps in the Respondent case hence drawing her own inferences that were not supported by the evidence tendered during trial. 12. That the Learned Trial Magistrate erred in law in totally misdirecting herself on the evidence presented before him during trial hence arriving at a flawed decision occasioning a miscarriage of justice. 13. Upon admission of the Appeal, directions were issued for the disposal of the same by way of written submissions. 14. Mr. Miruka Learned Counsel appeared for the Appellant, while Mr. Obare appeared for the Respondent their submissions in respect of the Appeal for their respective clients are summarised as herebelow. **Appellant’s Submissions** 1. The Appellant framed and submitted on 5 issues for determination. 2. On issue No. 1, on whether the Appellant acquired title to the disputed portion of suit property lawfully? The Appellant submits that he was lawful registered as proprietor of the suit parcel hence bestowed with lawful and legitimate rights over and in respect of the suit land and places reliance on section 24(a) of Land Registration Act. 3. On issue No. 2, whether the occupation and/or possession of a portion of the suit land by Defendant constitutes to trespass. 4. The Appellant submit that having disputed the parcel of land lawfully the Respondent’s action on the suit property amounts to trespass which action denies the Appellants of his right to usage over the subject portion of property amounts to and/or constitutes trespass. 5. In support of this limb of submissions the Appellants rely on the decision in Fredrick Joshua Onyango Vs. Robert Sanganyi (2014) eKLR. 6. The Appellant submits that he is entitled to the reliefs sought and urges the court to allow the Appeal with costs. **Respondents’ Submissions** 1. On behalf of the Respondent’s Mr. Obare their learned counsel, framed and submitted on two issues for determination. 2. On issue No. 1, it is the Respondents submissions that whereas the first Agreement for sale was proper the Respondents disputed the 2nd Agreement for sale which had elements of overwriting on them hence trial court was right in finding that only 4 acres were sold. 3. The Respondent relied on section 27 of the Civil Procedure Act and submitted that costs followed the event; and he urged the court to disallow the Appeal with cots. **Issues for Determination** 1. Having analysed the record of Appeal, the submissions of the parties and considered the law the court frames the following as issues for determination. 2. Whether or not the Appeal in merit, the court shall consider which between the plaintiff’s suit and the Defendant’s defence ought to have been upheld by the trial court? 3. What reliefs ought to issue. **Analysis and Determination** 1. In his Plaint, dated 28th of May 2013, the Appellant as Plaintiff pleaded *interalia* 2. That he is the registered owner of land parcel No. 273 Oldanyati Adjudication Section which land he purchased from 2nd Defendant at a cost of Kshs.80,000 for 4 acres initially, and a further 1 acre purchased later from the 2nd Defendant at a cost of Kshs.20,000/=, that he purchased a further 6 acres within parcel No. 321 in Oldanyati Adjudication section from one Nonkokwa Ene Ole Ntutu. 3. That Objection Proceedings were conducted before the lands Adjudication officer between the plaintiff and 2nd Defendant which resulted in a verdict in the plaintiff’s favour, as a result of which the parcels were consolidated demarcated and recorded in the plaintiff’s name whereof, he took possession of the same. 4. The plaintiff avers further that he was stopped from cultivating on the suit parcel on the strength that part of the suit parcel had been gifted to the 1st Defendant by the 2nd Defendant where the 2nd Defendant had not capacity to gift the suit property to another person which actions are illegally and amounts to violations of the plaintiff’s right to own property. 5. The plaintiff sought for permanent injunction against the Defendants, and a declaration of ownership of the suit property to him. 6. Damages 7. Costs of the suit. 8. The above plaintiff’s claim before the trial court is reproduced as part of the court’s duty as a first Appellate court, the duty to “***reconsider the evidence, evaluate it and draw its own conclusion”***. 9. The Defendants filed a statement of defence and counter-claim and pleaded as follows; - 10. They admitted sale of 4 acres only to the plaintiff, but denied the subsequent sale of 1 acre in plot number 273, Oldonyati Adjudication Scheme. 11. The defendants equally denied the existence of any Agreement for sale between the plaintiff and Nonkukua Ene Ole Ntutu. 12. The defendants admitted that objection proceedings had been conducted between the plaintiff and 2nd defendant where only the 4 acres out of plot No. 273 were awarded and curved out and transferred to the plaintiff. 13. That the plaintiff’s occupation of any extra portion other than the 4 acres legally belonging to the plaintiff the said occupation was done vide fraud and/or manipulation of the sale Agreement. 14. Particulars of fraud and/manipulation were specifically pleaded to include doctoring of the original land sale Agreement enhancing and/or increasing the portion of land lawfully sold among other particulars. 15. The 1st Defendant pleaded a counter-claim against the plaintiff in the main suit that upon the sale to the defendant in the counter-claim, the counter-claim caused a subdivision of plot 273 into two parcels and transferred plot 601 to the defendant in the counter-claim. 16. That between 2005 and 2009, the defendant in the counter-claim annexed/and/or excised a portion of plot 273 Oldonyati Adjudication section measuring 7 acres without permission and/or consent of the owner. 17. That in 2013, Lekakeny Ole Ntutu the 2nd defendant in the suit property transferred the entire plot number 273 Oldonyati Adjudication Section in favour of the counter-claimer who became the registered owner, and its upon the said registration that the counter-claimer found that the defendant in the counter-claim was laying a claim to a portion in excess of what was lawfully sold unto him, and he sought orders of eviction against the defendant in the counter-claim among other reliefs. 18. The trial court heard the testimony of the PW1 the Plaintiff in the main suit and produced a letter from the Land Adjudication Committee, consent by the Land Adjudication, copies of sale Agreements dated 22.01.2013 and 23.05.2003, and objection proceeding. P.W.2 also corroborated the testimony of P.W.1. The court heard equally the evidence of D.W.1 who challenged the 2nd Agreement for sale, on the ground that the same was not witnessed except by the chief who signed by way of his ID Number and a stamp. 19. D.W.2 denied the sale of the extra one acre to the plaintiff and denied appending his finger print on the agreement of 23.05.2003. 20. The witness produced D.Exhibit 1 a copy of Land Agreement dated 22.01.2003, certified copies of objection proceedings. 21. The trial court analysed the evidence adduced and found that the first agreement of sale had the plaintiff’s signature, the 2nd agreement had a left thumb impression. 22. The 2nd Agreement did not have his name and ID card as opposed to the first Agreement. The witnesses particulars in the Agreement of 23.05.2003 without their signatures or thumbprint. PW2, dissolved the Agreement while Peter Rukare Mushiro and John Mekora Pere have not summoned to shed light on the 2nd Agreement. The Agreement of sale between Noonkokwa Ene Ole Ntutu in respect of purchase of 6 acres that formed the 7 acres in dispute was not produced, and reached the conclusion that the plaintiff proved entitlement to the 4 acres and not the extra 7 acres; and the plaintiff misrepresented facts to the Land Adjudication Officer and that the counter-claim had been proven, provoking this Appeal. 23. I have reviewed the two Agreements for sale, in view of the fact that the 2nd Agreement for sale was specifically denied by the Defendants and particulars of fraud against the 2nd Agreement were pleaded in the counter-claimer. 24. The first Agreement for sale was made on 22.01.2003, the same contains the particulars in terms of the identity card numbers of the vendor and the purchaser and their respective thumb prints including details of their respective witnesses and the Assistant Chief’s signature and identity card No. and the demarcation officer equally signed the same. 25. With respect to the 2nd Agreement for sale the same was prepared on 23.05.2003, the same misses the signature of the chief and the thumb print and/or signature of the witnesses. The above findings of the court were put across the P.W.2, who confirmed that his signature and the signature of the other was missing from the Agreement for sale. 26. In fact, PW2, stated that he was not a witness for 2nd Agreement int eh re-examination found at page 36 of the proceedings. 27. The Agreement in respect of the parcel measuring 6 acres purchased from Nonkokwa Ene Ole Ntutu on 16.12.2003 was not produced in evidence. 28. This court has reached the same conclusion as the trial court in the findings that the 2nd Agreement for sale dated 22.05.2003, had glaring disparities, and one witness PW2, who was also a witness in the said Agreement stated that he did not sign the same in his re-examination. 29. The other witnesses int eh said sale Agreement were not called to testify on its authenticity, and the court makes an inference that their testimony would have been adverse as was held in Bukenya and Another Vs. Uganda (1972) E.A page 550 where the court of Appeal held *interalia* ***“…….thirdly, while the director is not required to call a superfluity of witnesses, if he calls evidence that is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled under the general law of evidence to draw an inference that the evidence of those witnesses, if called would have been or would have tended to be adverse to the prosecution...”*** 30. In respect of the separate Agreement for sale dated 05.12.2003, for the purchase of 6 acres the said sale was required to be proven by an Agreement for sale in writing under section 3(3) of the law of contract Act, which section came into force in June 2003 as was observed in Peter Mbiri Michuki Vs. Samuel Mugo Michuki having failed to tender this Agreement for sale in evidence, the purchase of the 6 acres was not proven, just as the purchase of the additional 1 acre. 31. The court having reached the same conclusion as the trial court finds that the trial court did not err in law and in fact, in finding that the plaintiff’s claim of the extra 7 acres was not proven and the counter-claim in respect of the 7 acres succeeded, and the Appellant as Plaintiff proved ownership of 4 acres. In this regard and in answer to issue number 1, the court finds that the plaintiff’s claim was not merited but the counter-claim was merited rendering the Appeal before this court to lack merit too. 32. On what reliefs ought to issue, the court having found the Appeal to lack merit has no option but to dismiss the same and uphold the decision of the trial court. 33. Costs of the suit and counter-claim as well as the costs of the Appeal are awarded to the Respondent. Dated at Kilgoris 12th day of June 2026 Hon. M.N. Mwanyale Judge **In the presence of** CA – Sylvia/Clara Mr. Obare for Respondent Ms. Njoki for Appellant