https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3047

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ENVIRONEMENT AND LAND COURT LAND APPEAL NO. E032 OF 2024** **MERESA ONGORO………………………………………..1ST APPELLANT** **KENNEDY ODHIAMBO ONGORO…………………..…2ND APPELLANT** **VERSUS** **GABRIEL AKETCH MAJIWA……………………………..RESPONDENT** ***(Being an Appeal from the Judgement and Decree of Hon. Chrispine Noel Choka Oruo dated the 11th November, 2024, in the Rongo MCELC NO. 37 of 2019.)*** **JUDGEMENT** 1. The background of this case is that by way of Plaint dated 30th May 2017 the Respondent, then the Plaintiff sought the following orders in the trial court; 2. **An order of injunction restraining the defendants from trespassing and encroaching into the plaintiff land parcel number North Sakwa/Kakmasia/641.** 3. **Costs of this suit.** 4. **Any other relief the Honourable court may deem fit and just to grant.** 5. The Plaintiff pleaded that he was the registered proprietor and absolute owner of the parcel known as LR North Sakwa/Kakmasia/641. Further, sometime in the year 2012, the defendants encroached onto his land parcel and started cultivating it until to the time of filing suit. Despite the numerous appeals to the defendants to stop encroaching they ignored. 6. The Defendants entered appearance and filed Defence and counterclaim dated the 13th August 2021 in which the Defendants state that they had been staying on the suit parcel for many years without interruption and had thus acquired adverse rights over the suit land. Further, that the Plaintiff had never stayed on the suit property and there are no rights whatsoever that have been infringed over the suit property. 7. Further, the defendants denied the contents of the Plaint and pleaded that despite the alienation and registration of the plaintiff over the suit property, the Defendants/counter claimers occupation of the suit property was never interfered with. The registration of the suit property in favour of the plaintiff was carried on the face of the Defendants/Counter claimers occupation which is the subject to overriding interests in terms of Section 28 of the Land Registration Act. Further, that the registration of the plaintiff as the owner of the suit property on the face of their occupancy, long occupation, connotes, represents and/or constitutes the existence of a constructive trust. 8. In the Counterclaim, they prayed that the Plaintiff’s suit be dismissed with costs and judgment be entered in terms of the Counterclaim as follows; 9. **A Declaration that the transfer and the registration of the suit property that is L.R NORTH SAKWA/KAKAMASIA/641 in favour of the Plaintiff is subject to and vitiated by overriding interest in favour of the Defendants/Counter claimers.** 10. **A Declaration that the title deed in respect to L.R NORTH SAKWA/KAKAMASIA/641 is held in trust for the Defendant/ Counter claimers and an order to issue that there be a transfer of L.R NO NORTH SAKWA/KAKAMASIA/641 to and in favour of the Defendants/ Counter claimers.** 11. **An order compelling and/or directing the Plaintiff to execute the transfer and such incidental documents to facilitate the transfer and registration of L.R NORTH SAKWA/KAKAMASIA/641 to and in favour of the Defendant/ Counter claimers in default the Court Administrator be authorized to execute the said transfer documents.** 12. **A permanent injunction to issue restraining the Plaintiff either by themselves, servants, agents and/or anyone claiming under the Plaintiff from trespassing into, re- entering, entering, laying claim to, building and/or constructing thereon, fencing, cultivating, interfering with and/or any other manner over land parcel L.R NORTH SAKWA/KAKAMASIA/641 in any manner prejudicial to the interest of the Defendant/ Counter claimers.** 13. **Costs and interest of the Counter claim.** **Hearing at the trial court** 1. The plaintiff testified as PW1. He stated that the defendants were introduced to him after he had purchased a parcel on suit property. He produced the sale agreement as PExh 1 and the title deed to parcel of land as PExh 2. That they trespassed on his land, and he realized in 2012, that they were constructing in the land. They had planted blue gum, maize crops and sugar cane. He asked them to stop the encroachment and they did not heed to his call which he reported to the Assistant Chief. They were summoned to the Chiefs office, and the Assistant Chief wrote a letter to them dated 11/5/2015 which he produced as PExh 3. That he reported to the police and they were summoned. He went back to the Assistant Chief who wrote another letter dated 8.9.2015 produced as Pexh 4 to stop constructing and they did not stop. 2. He stated that he bought the parcel at Kshs. 4000/= and paid the whole amount for 4 acres. That he did a search for the parcel and produced a Certificate of official search as PExhibit 2. That the land was transferred to his name and was issued the Title Deed for North Sakwa/Kakmasia/641. 3. During cross examination, when referred to the sale agreement, he stated that he signed against the document and the seller did not have a wife then. The elder brother was since deceased. That the seller died in the year 2012 and his body was interred in parcel No. 540. He urged that the defendants were related to the seller and only farmed his parcel. 4. **DW1** was **Meresa Ongoro** who denied trespassing and stated that she married Anderikus Ongoro in 1980 and lived together in the same parcel. That the plaintiff did not stop them from burying the deceased on the land and that her husband never told her that he gave Gabriel the parcel of land. That the Assistant Chief never wrote her a letter and the Plaintiff had never ordered her to leave the parcel of land neither did he come with an eviction order. 5. During cross examination she stated that she was not aware of the sale agreement between Plaintiff and her husband. 6. The trial court, upon considering the evidence and testimonies, the court dismissed the Defendants Counter claim and in addition make the following orders:- 7. **An order for an injunction is hereby issued restraining the Defendants from trespassing end encroaching into the Plaintiff's land parcel number NORTH SAKWA/KAKAMASIA/641.** 8. **General Damages for trespass for Kshs 200,000/=** 9. **Costs of the suit.** 10. **Costs of the Counterclaim.** 11. **Interest on (3) and (4) above to be awarded to the Plaintiff from the date of the judgment.** 12. Being dissatisfied with the decision of the trial court, the Appellant instituted the present Appeal vide a Memorandum of Appeal dated 4th December 2024. The Appeal is premised on the following grounds; 13. **That the Learned Trial Magistrate erred in Law and on fact in finding that the Respondent had proved his case on the required standard of proof, when the same was to the contrary.** 14. **That the Learned Trial Magistrate misdirected himself on Law in finding that the Appellants’ counter claim was not proved when there was overwhelming evidence to the contrary.** 15. **That the Learned Trial Magistrate misdirected himself both in Law and on fact in deliberately failing to properly analyze the evidence as presented before him by the parties, scrutinize the documents produced as evidence and apply the same to the relevant applicable Laws.** 16. **That the Learned Trial Magistrate abdicated his judicial duty to consider, appreciate, and where necessary, apply the relevant case Laws presented to him, and proceeding to apply irrelevant and distinguishable case laws, contrary to the well-established doctrine of stare-decisis.** 17. **That the Learned Trial Magistrate erred in Law in failing to find that whereas the Respondent purported to have a title over the subject suit parcel of Land, same had never occupied the same at any time.** 18. **That the Learned Trial Magistrate erred in Law and in fact in failing to find that the Appellants had proved their case on adverse possession as presented in their counterclaim.** 19. **That the Learned Trial Magistrate erred in Law in failing to consider the submissions filed by the Appellants and proceeding to selectively analyze a portion of evidence that was geared towards supporting the arguments put forth by the Respondent.** 20. **That the Judgement and decision by the Learned Trial Magistrate is against the weight of evidence on record.** 21. The Appeal was argued by way of written submissions. **Appellants’ submissions** 1. Counsel for the Appellant submitted that the Learned Trial Court erred in Law by holding that the Respondent’s Title was indefeasible, despite the Respondent having produced only a copy of the Title and an alleged acknowledgement for Kshs. 4,000/=, and failing to discharge the evidential burden of proving Lawful acquisition once the Appellants disputed the alleged sale. That the Respondent had the burden to proof that he had a title in respect of the suit Land and that he acquired the same procedurally. The basis upon which the Respondent acquired the suit parcel is said to have been through a sale that is alleged to have occurred on 22nd of September, 1982. Whereas the Respondent termed the same as a sale agreement, a copy that was produced in Court was titled as a receipt of payment of sale price dated the 22nd of September, 1982. The same was never attested to by any witness. 2. The Respondent did not produce and or adduce any evidence of the existence of a sale agreement between himself and the late Anderikus Ongoro in respect to the suit parcel. That the Search produced by the Respondent confirms that the Respondent was registered as the owner of the suit parcel on 22nd September, 1982 the same day the sale was allegedly concluded. Further, that no transfer forms, Land Control Board Consent, or other statutory instruments required under the Law at the time have been produced. 3. Counsel urged that it is implausible that all these steps could have been completed in a single day. That to put in context, the implication of this would be that the Respondent entered into a Sale Agreement on 22nd September, 1982. Upon such agreement, an application was made to the Land Control Board on the same day, and a consent to transfer duly issued. Thereafter, again on the same day, Transfer forms were duly prepared and an application for registration duly lodged at the Land Registry at Migori. 4. Further, the Respondent was able to procure the services of a valuer who visited the suit Land on the same day, prepared a valuation and enabled the Respondent to visit a Bank and duly made payment for Stamp Duty. He in some way managed to go back to the Lands offices and presented a receipt in proof of payment and thus managed to procure registration on the same day. 5. Counsel urged that the above is a procedural impossibility to be concluded in less than one day. He cited the case of Grace Wanjiru Chege v James Njuguna Mwaura & Another (2017) eKLR in this regard. Further, that a copy of agreement annexed to Defendant’s Replying Affidavit of 29/3/2009 shows that the said agreement was carried out on 11/2/2009. The transfer forms were signed on same date of 11/2/2009 (before the consent from Land Control Board was obtained). The following day on 12/2/2009, the consent from Land Control Board was obtained. Still on this day of 12/02/2009, Registration of Defendants as proprietors of the suit land was effected. The title was issued 10 months later on 13/12/2009. That it is however not plausible in Kenya that you enter into a land sale agreement on the same day that you sign transfer forms and the following day, you obtain registration at land office, unless the entire transaction is tainted with fraud. 6. Counsel urged that the trial Court did not scrutinize at all the highlighted glaring procedural irregularity and seems to have solely given credence on a copy of a receipt and certificate of Title. That amounted to a misdirection as he was bound to determine if the title waved by the Respondent was in the first place Lawful. 7. Counsel submitted that it is to be appreciated that whereas a Certificate of Title is prima facie evidence of ownership, it was incumbent for the Trial Court to verify that the said Title was lawfully acquired. Indeed, Section 26 (1) (b) of the Land Registration Act empowers Courts to impeach titles acquired illegally, un-procedurally or through a defective root transaction. 8. Once the Appellants disputed the alleged sale, and raised issues going to the root of title; inter alia, constructive trust and long occupation, the Respondent should have justified the Lawful acquisition of the Title beyond mere production of the Certificate and receipt. The failure to produce or prove the actual instruments of transfer, consent, stamp duty compliance or other foundational documents undermines the prima facie production. 9. Counsel urged that the contention that the issue of procedural irregularity was not pleaded or cannot be raised on appeal is untenable. The Appellants are not alleging fraud, which must be specifically pleaded, but are challenging the legality and procedural regularity of the Respondent’s root of title under Section 26 (1) (b) of the Land Registration Act. Moreover, the facts giving rise to the challenge emanate from the Respondent’s own documents on record and raise a pure question of Law. It is settled that such a point may be raised on appeal and that a Court cannot sanitize an illegality merely because it was not pleaded. Once the Respondent’s title was challenged, the burden lay upon him to demonstrate Lawful acquisition, which he failed to do. He cited the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR and Daudi Kiptugen v Commissioner of Lands & 4 Others [20151 eKLR in this regard. 10. On whether the Learned Trial Magistrate erred in failing to determine the claim by the Appellants on Constructive Trust and Adverse Possession, Counsel urged that the Appellants specifically pleaded and testified that the suit parcel is ancestral Land, that they have been in open, continuous, uninterrupted and exclusive occupation thereof for decades, and that they have buried their kin on the Land, facts which were not controverted by the Respondent. It is not disputed that the Respondent never pleaded nor proved that he ever took possession of the suit Land at any time since the alleged purchase in 1982. In fact, his own pleadings concede that the Appellants have been in occupation of the Land and cultivating it. 11. Counsel submitted that once a party pleads and adduces evidence of long, uninterrupted possession, the Trial Court is under a mandatory duty to interrogate whether such possession gives rise to overriding interests, constructive trust, or adverse possession, even where a Title is produced. He cited Isack M’Inanga Kiebia v Tsaava Theuri M’Lintari & Another [2018] eKLR and urged that the Trial Magistrate, however, failed entirely to analyze whether the Appellants’ occupation, burial of relatives, and uninterrupted possession gave rise to a constructive trust. This omission amounted to an error of Law. 12. Further, that the Appellants pleaded adverse possession in their Counterclaim and led evidence demonstrating that their possession exceeded Twelve (12) years, was open, notorious, exclusive, and adverse to the Respondent’s alleged Title. The Respondent did not produce any evidence to rebut the Appellants’ possession or to show that he had asserted his ownership rights within the statutory period. That the Trial Court dismissed the Counterclaim without applying the settled principles governing adverse possession, without analysing the evidence, and without making any findings on when time began to run. This failure amounts to a non-direction in law, rendering the dismissal of the Counterclaim unsafe. 13. On Whether the Learned Trial Magistrate erred in awarding the Respondent damages in the sum of Kshs. 200, 000/= despite the same not having been pleaded, Counsel urged that it is trite that parties are bound by their pleadings, and a Court cannot grant a relief that has neither been pleaded nor proved. This was aptly set out in the often-quoted case of Caltex Oil (Kenya) Limited v Rono Limited [2016] eKLR. 14. Counsel urged that whereas it is well settled in Law that Trespass is actionable per se, such a relief has to be pleaded in the pleadings or sought in the body of the prayers. He cited the case of Gandy v Caspair [1956] EACA 139 where the Court emphasized that it is a Rule that a relief not founded on the pleadings, cannot be granted. That in the instant case, the Respondent did not plead for the relief of General damages for Trespass in his Plaint at all. The relief for General Damages was raised for the first time by the Respondent in its submissions. As it has been held variously, submissions are not a substitute for pleadings. 15. Counsel urged that the award of Kshs. 200, 000/= by the Trial Court was evidently made without Jurisdiction, and not supported by pleadings, and thus is liable to be set aside on that ground alone. 16. Counsel urged the court to interfere with the impugned Judgment, set it aside, and substitute it with an order dismissing the Respondent’s case and allowing the Appellants’ Counter Claim, with costs. **Respondents’ Submissions** 1. Counsel for the Respondent submitted that the Respondent proved beyond reasonable doubt that the parcel of land number NORTH SAKWA/KAKAMASIA/641 belongs to him as indicated in the green card. He testified in court that he bought the said parcel from the 1st Appellant’s husband in the year 1982 and went further to produce a list of documents comprising of a land sale agreement, Title deed and copy of official search as captured at pages 9 to 14 of the record of Appeal. These documents were produced in court and the Appellants never challenged them at the trial court. 2. Counsel urged that the principle of indefensibility of title is well enshrined under section 25(1) of the Land Registration Act of 2012. This principle of land law is to the effect that once a certificate of Title is issued to a person, that person becomes the absolute Registered proprietor of that parcel of land with exclusive indefeasible rights title and interest vested on him by law. That the Respondent was issued with a valid title deed on 23rd September, 1982 and the same was produced as evidence in court, therefore the tittle issued to him cannot be defeated by a party unless there are very clear and cogent grounds as provided by section 26(1) that is to say the title was procured illegally, irregularly and fraudulently. 3. Counsel cited ELC NO. 65 of 2013, Christopher Kitur Kipwantbok = Vs- Vipulratilal Ddhia & 3 Others, and KLR ELC No.222 Of 2015(Kisumu), Victoria Distributors =V= Joseph Abwao Nyawira (unreported) and urged that a certificate of title once it has been issued to a person by the Registrar it confers proprietary interest to the person to whom the land is named. Furthermore, a copy of the title deed that was produced in court by the plaintiff as was never challenged by the defendant. That there was a written agreement between Anderikus Ongoro and the Respondent herein the agreement was produced in court as evidence and was never challenged by the Appellants at the trial court, the claim that the late Anderikus Ongoro never appended his signature on the agreement was not raised and it’s now a new evidence in this appeal brought without proper application made. The documentary evidence of sale agreement is enough proof that there was a valid contract between the Respondent herein and Anderikus Ongoro. 4. Counsel urge that the Respondent has been cultivating the said parcel of land and any time there was interference from the Appellants then he would report to the area chief. The Respondent has reported the Appellants severally and thus the Appellants’ claim of adverse possession was not proved. He urged that adverse possession can only be proved if the following conditions are proved as enshrined in section 38(1) of the Limitation of Actions Act, CAP 22 Laws of Kenya. 5. continuous and uninterrupted possession for a minimum of 12 years 6. open and notorious possession 7. exclusive possession 8. The occupation must be without the permission or consent of the registered owner. 9. Counsel urged that the Appellant’s counterclaim was rightfully dismissed since the Appellant did not prove their claim of adverse possession. 10. Counsel submitted that in their pleadings, the Appellants claimed that there was fraud and that proper legal procedure was not followed during transfer, however on cross examination the Appellants were not able to prove the claim of fraud at all. In the instant Appeal they now claim that the documents produced in court are forgery and that the seller did not append his signature on the sale agreement. Counsel urged that the claim of forgery is a new evidence being tabled by the Appellants at the Appeal stage as the same was never raised at the trail court. He cited Sections 26 and 103 of the Land Registration Act No. 3 of 2012 and submitted that the titles Sakwa/Kakmasia/641 has all along been in the name of the Respondent herein and any document that might be showing in the name of the Appellants is triggered by an illegal process, and are therefore condemned for breach of law and incapable of being regularized and or maintained. The same are incompetent, illegal, irregular null and void ab initio. 11. Counsel urged that the issue of transfer of property by conmen has been subject of litigation and courts have held that the mere possession of a title does not imply that the same cannot be challenged. The mere fact of holding a title does not in itself limit the power of this court as was held by Justice Onyancha in Alberta Mae Gacci - vs- Attorney General & 4 Others (2006) eKLR. Counsel cited Republic -vs- Minister for Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others Mombasa HCMCA No. 617 of 2003 [2006] 1 KLR (E&L) 563 and submitted that Section 26 of the Land Registration Act is categorical that a certificate of title is prima facie evidence that the person named therein is the proprietor of the land but the same can be challenged where the Certificate of title has been acquired fraudulently, unprocedurally or through corrupt practice. It’s our humble submission that this limb of appeal should fail since the said title acquired by the Respondent herein was legally acquired and the issue of its validity was never raised during trial. The court thus acted suo motto to meet the end of justice. 12. Counsel urged that the Appellant did not prove in court in any way that part or whole parcel No. Sakwa/Kakmasia/641 legally belongs to them, they didn’t produce any documentary evidence to support the claim that the suit property belongs to them. The exhibited Land Records does not show the Appellants as the owner of the suit property. On the other hand, the Respondent proved to court by the bundle of documents that were produced. 13. Counsel urged that it is trite law that any allegations of fraud must be pleaded and strictly proved. Reliance was placed on Kuria Kiarie & 2 Others -vs-Sammy Magera [2018] eKLR. Counsel urged that the title deed of No. Sakwa/Kakmasia/641 filed by the Respondent in this Honourable court was legally obtained and if there is any other document before court showing that the parcel belongs to the Appellants then that must have been obtained fraudulently. He urged the court to dismiss the Appeal with costs. **Analysis and determination­­** 1. This court has considered the law, the evidence tendered at the lower court and the submissions of the parties at this stage. This being an appeal on merits, it calls on this court to examine the law and the evidence of the parties on merits afresh and arrive at my own conclusion without substituting my finding for that of the trial court. In **Abok James Odera T/A A.J Odera & Associates Vs John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR** the Court held as follows; **“This being a first appeal, we are reminded of our primary role as a first Appellate Court namely, to re-evaluate, re-assess and reanalyse 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. Also,in **Williamson Diamonds Ltd and another v Brown [1970] EA 1**, the court held that: **“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.”** 1. Further, in **PIL Kenya Limited v Oppong [2009] KLR 442**, it was held that: **“It is the duty…of a first appellate court to analyze and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses and their demeanour and giving allowance for that”.** 1. The issue that arises for determination is; **Whether the trial court erred in allowing the Plaintiff’s suit and dismissing the Appellants’ Counterclaim.** Put differently, all the grounds of this appeal can be condensed into one: whether the appeal has merits or not. 2. The Respondents’ claim was premised on the allegation that he was the registered owner of the suit land, having purchased it in the year 1983. On their part, the Appellants’ claim on the land was premised on adverse possession. 3. It is trite law that he who alleges must prove, which position is succinctly captured in Sections 107, 109 and 112 of the Evidence Act. Section 107 provides as follows: **“ (1) 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.** **(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”** 1. In discussing the standard of proof in civil liability claims in this jurisdiction, the **Court of Appeal in Mumbi M'Nabea vs David M. Wachira [2016] eKLR** stated as follows: **“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not.”** 1. Sections 109 and 112 of the same Act states as follows: **“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.** **112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”** 1. It was the upon the Plaintiff to prove that the Defendants had trespassed onto his land. On their part, having filed the counterclaim which was finally dismissed, it was obligatory for the Defendants to prove that their occupation on the law was lawful. In determining the ownership of land, Section 26(1) of the Land Act is instructive thus; **“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –** * 1. **On the ground of fraud or misrepresentation to which the person is proved to be a party; or** 2. **Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”** 1. The Plaintiff proved that he was the registered owner of the land. The Defendant did not adduce evidence that his title was fraudulently, illegally, or by misrepresentation or corruptly acquired. In support of his ownership of the land and validity of his title, the Respondent, on his part, produced a sale agreement dated 26th September 1983 as proof of the sale of the suit land to him. Additionally, he produced the title deed and the certificate of official search as confirmation of the registration of the land in his name. No evidence was led by the Appellants to prove that the title was defeasible on the basis of fraud, or misrepresentation or other head as above. 2. On their part, the Appellants’ counterclaim was, in a nutshell, based on the doctrine of adverse possession. It needs not be gainsaid that jurisdiction is quite essential in the determination of suits. In **Owners of the Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Ltd [1989] eKLR**, the Court of Appeal had the following to say on jurisdiction; **“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”** 1. The trial court did not have the jurisdiction to entertain a claim on adverse possession. It did no venture into that. 2. The Court of Appeal in the case of **Pauline Chemuge Sugawara Vs Nairuko Ene Mutarakwa Kiruti (sued in her capacity as administrator of the estate of Mutarakwa Kirui Lopas alias) Civil appeal E141 of 2022 (2024)** held that; **‘notwithstanding the expansion of the jurisdiction of environment and land usage to the Magistrates Courts, it is instructive that under Section 9 (a) of the Magistrates Court Act, various matters are specified for determination, but claims for adverse possession are not included in that section. And that, it is only the Environment and Land Court which has jurisdiction to hear and determine claims for adverse possession.’** 1. The Defendant only claimed that she resided on the suit parcel of land. She did not have produce ant evidence to confirm that she resided on the whole of the suit parcel of the land or part thereof. No survey report did she produce to show that. They also did not adduce evidence to indicate when they began occupying the land hence it left it for the court to agree with the Plaintiff that they did so in 2012. In any event the parcel of land in issue was a general boundary one whose boundary and extent had not been fixed by the land registrar as no report was produced to confirm that. It follows that I arrive at a similar finding as the trial court that the plaintiff that the appellants’ occupation of the plaintiff’s land parcel No. 641 was a case of encroachment. They therefore trespassed onto the plaintiff’s land. It follows that the court did not err in the dismissal of the Counterclaim. **b) Whether the trial court erred in its award of general damages** 1. The principles guiding an Appellate court when considering whether to disturb damages awarded in the trial court was laid down in **Butt vs. Khan [1981] KLR 349** as follows; **- an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate.** 1. The trial court awarded the Respondent Kshs. 200,000/= as General Damages for trespass. One fact was clear: the suit land was not registered in the name of the Appellants. Trespass is the wrongful occupation of another’s land. The Appellants did trespass on the suit land as per the findings of the survey. This was not contested. 2. In **Kiambu Dairy, Farmers Co-operative Society Limited vs. Rhoda Njeri & 30 Others [2018] eKLR**, the court held; **- the extend of an award of compensatory damages lies in the discretion of the trial court and interference therewith on appeal must be approached with a measure of circumspection and well settled principles.** 1. However, a party is bound by its pleadings, and a court is bound to make its decisions following the pleadings as filed. I have considered the Plaint filed and there was no prayer for trespass or general damages for trespass. It follows that the trial court erred in principle in awarding damages that had not been pleaded. This therefore meets the threshold for an Appellate court to interfere with a decision on award of general damages. 2. The upshot of the foregoing is that the Appeal only succeeds to the extent that the award of general damages is set aside. The rest of the Appeal is dismissed in its entirety. 3. The above being the finding of the court, each party shall bear its own costs. 4. Orders accordingly. **JUDGMENT dated, signed and delivered virtually via the Teams Platform this 20th day of May 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** From **15: 30** hours, **in the presence of,** Akanga Advocate holding brief for Joshua Ondieki Marita for Appellant Ms. Kirindo Advocate for the Respondent.