Bungu v Oudhu (Land Case Appeal E002 of 2025) [2026] KEELC 5069 (KLR) (23 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY** **ELCLA APPEAL NO. E002 OF 2025** PATRICK OCHIENG BUNGU..............................................APPELLANT **VERSUS** RICHARD OGURE OUDHU............................................RESPONDENT ***(Being an appeal against the judgment dated the 11th day of December 2024 by Hon. Onzere E.M. Principal Magistrate sitting at Ndhiwa Principal Magistrate Court)*** **JUDGEMENT** **Introduction** 1. This is a first appeal arising from the Judgment and Decree of Hon. E.M. Onzere (Principal Magistrate) delivered on 11th December 2024 in Ndhiwa CM ELC No. E001 of 2021. 2. In the impugned judgment, the learned trial magistrate entered judgment in favour of the respondent, who had been the defendant before the subordinate court by dismissing the plaintiff’s suit for failure to prove this case on a balance of probability with costs to the defendant. 3. Being dissatisfied with the whole of the judgment and decree, the appellant lodged the present appeal by a Memorandum of Appeal dated 7th January 2025, challenging both the findings of fact and law reached by the learned trial magistrate. 4. The grounds of appeal are that the learned trial magistrate erred in law and fact by; 5. Failing to evaluate the evidence on record before coming up with the conclusion to dismiss the appellant’s suit. 6. Not taking into account the evidence of the land surveyor who stated that there was no physical boundary between the appellant’s land being parcel No. 904 and parcel No. 1440 the respondent’s land and that the appellant is the one who is working on the land. 7. By not considering the fact that the respondent did not produce any sale agreement even after alleging that the father of the appellant sold to him the land in 1987. 8. By not appreciating that the objection proceedings were relating to land parcel number 921 and not parcel number 924 which parcel belongs to the appellant. 9. By failing to capture the fact that the objection case number cited by the respondent the same being objection number 49 of 1987 touched on different parties in the objection proceedings. 10. By dismissing the applicant’s case on procedural technically by citing the High court judges when the learned magistrates knew or ought to have known that article 159 (d) of the constitution of Kenya 2010 which states that judgment shall not be based in principle of technicality. 11. The appellants prays that the judgment be set aside. **Case before the trial Case** **Plaintiff’s Case** 1. The Plaintiff pleads that he is the registered owner of land parcel number West Nyokal/Kanyikela/1904 which was curved out of West Nyokal/Kanyikela/924 which was originally registered in the name of the plaintiff and his father, Hezron Bungu Nyausa. It is pleaded that in July 1993, the plaintiff leased 0.4Ha of the land to the defendant and period was to last for 10 years and after the lapse of the 10 years, the defendant requested to continue using land until he harvests his sugarcane and the same was allowed and the period was extended for another 6 years. The plaintiff pleads that at the end of the lease period, he approached the defendant to vacate the land but he declined and forcefully planted sugarcane on the land thus depriving the plaintiff use of the land. The plaintiff prays that the defendant be ordered to vacate the land and thereafter he be permanently restrained from trespassing on the land. The plaintiff also prays for mense profits together with costs of the suit and interest. 2. PW1 Patrick Ochieng Bungu relied on his statement filed in Court as his evidence in Chief and the statement reiterates the contents of the plaint. In his evidence in Court, he added that the defendant has planted maize, cassava and beans on the land and stated that the lease agreement was not reduced into writing since he trusted the defendant. In cross-examination, he stated that he does not have the lease agreement between himself and the defendant and that land parcel 1140 is different from 1903 and 1904. He stated that the defendant has trespassed on land parcel 1904 and stated that he does not know the acreage of the land. **Defence case** 1. Through the amended defence filed on 26th July 2022, the defendant denies the contents of the plaint and denies entering into any lease agreement with the plaintiff. He pleads that he bought his land number 1440 from the plaintiff and his father and during adjudication, an objection being no. 49 of 1987 was raised and he was given the land and he has been using the land since 1987. He states that he was registered as the owner of the land in 2008 and that the plaintiff has never used the land and prays that the suit be dismissed. 2. DW1 Richard Ogure also relied on his statement filed alongside the amended defence. In cross-examination, he stated that he bought 0.45 Ha of the land from the plaintiff and his father but the agreement was not in writing. He stated that he did not lodge an objection during adjudication and stated that he cannot comment on proceedings relating to land number 921 since he was not a party to the proceedings. He said that he bought 70x70 feet of the land and was added an additional 10ft. The defendant stated that he has been on the land for 30 years and denied trespassing on the plaintiff’s land. 3. DW2 Joseph Agola Wawa is a retired Chief North Kanyikela and he testified that when he was in office, he arbitrated over the dispute between the plaintiff and the defendant whereby the defendant complained that the plaintiff had encroached on his land. He testified that he sent elders to the land and they went and corrected the boundary and the issue was resolved. In cross-examination, he stated that he did not take part in the sale agreement. 4. DW3 Caleb Onyango is a land surveyor and he produced his report in Court. In his report he stated that the parcels 1903, 1904 and 1440 exist on the ground and that land parcel 1903 and 1904 share a common boundary but there is no boundary dispute between the two parcels. The report further states that land parcel 1904 and 1440 ought to share a common boundary but the boundary is not on the ground and the plaintiff who owns parcel number 1904 is the one who is using the entire parcel together with the defendant’s land being land parcel 1440. He further stated that there is an access road passing through land parcel 1904 and that the red mark on the sketch map shows where the boundary of 1903 and 1904 ought to be. **Issues for Determination** 1. Having carefully considered the pleadings, the evidence adduced before the trial court, the judgment appealed from, the memorandum of appeal and the parties' respective submissions, the following issues arise for determination: 2. Whether the appellant proved, on a balance of probabilities, that the respondent trespassed onto land parcel No. **West Nyokal/Kanyikela/1904**. 3. Whether the appellant established a legal basis for the cancellation of the respondent's title to **West Nyokal/Kanyikela/1440** and the reversion of the same to parcel No. **West Nyokal/Kanyikela/924**. 4. Whether the learned trial magistrate erred in dismissing the appellant's suit. **Analysis and Determination** 1. This being a first appeal, this Court is obligated to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. In ***Selle & Another v Associated Motor Boat Co. Ltd & Others* [1968] EA 123**, the former Court of Appeal for East Africa stated that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. 2. The appellant instituted the suit before the subordinate court seeking orders of eviction against the respondent, a permanent injunction, mesne profits and, importantly. His case was that he was the registered proprietor of parcel No. **1904**, that he had leased part of it to the respondent in 1993 for ten years, later extending the lease by six years, but upon expiry of the lease the respondent refused to vacate and unlawfully remained on the land. 3. The respondent denied ever entering into a lease agreement with the appellant. Instead, he maintained that he had purchased his land from the appellant and his father during land adjudication in 1987, that the dispute had been resolved during adjudication, and that he was lawfully registered as proprietor of parcel No. **1440** in 2008. According to him, he had occupied his land continuously since 1987 and had never trespassed onto the appellant's parcel. 4. The appellant's claim was founded on trespass. The burden therefore rested upon him to prove that the respondent had unlawfully entered or remained on parcel No. 1904. Sections **107**, **108** and **109** of the Evidence Act place the burden of proof upon the party asserting the existence of facts. In the case of[***Kirugi and Another –vs- Kabiya & 3 Others***](https://kenyalaw.org/akn/ke/judgment/keca/1983/38) (1987) KLR 347 the Court of Appeal held that: **-“The burden was always on the plaintiff to prove his case on a balance of probabilities even if the case was heard as a formal proof. Likewise, failure by the defendant to contest the case does not absolve a plaintiff of the duty to prove the case to the required standard.”** 5. Similarly, in the case of [***Gichinga Kibutha –vs- Caroline Nduku***](https://kenyalaw.org/akn/ke/judgment/keelc/2018/3981)**, (2018) eKLR,** the court held that: **-“It is not automatic that instances where the evidence is not controverted the claimants shall have his way in court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.”** 6. There is no dispute that the appellant produced documentary evidence showing that he is the registered proprietor of **West Nyokal/Kanyikela/1904**. Ordinarily, registration confers legal ownership upon a proprietor. Indeed, **Section 24(a)** of the Land Registration Act provides: **"Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto."** Similarly, **Section 25(1)** of the Act provides: **"The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor together with all privileges and appurtenances belonging thereto..."** Further, **Section 26(1)** of the Land Registration Act provides: **"The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor 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—** **(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or** **(b) where the certificate of title has been acquired illegally, procedural or through a corrupt scheme."** 1. The effect of these provisions is that while registration confers indefeasible ownership, such title may only be impeached in the limited circumstances set out under Section 26(1). Consequently, the appellant bore the burden of demonstrating that the respondent was unlawfully occupying his land and, if eviction was sought, that the respondent's registration fell within the exceptions provided under Section 26. 2. Upon reconsidering the evidence, this Court finds that the appellant failed to discharge that burden. First, although the appellant's entire case rested upon the existence of a lease agreement allegedly entered into in 1993, he candidly admitted that the lease agreement was never reduced into writing. He equally failed to produce any independent evidence showing payment of rent, acknowledgement by the respondent, demand notices upon expiry of the lease or any witness who participated in or witnessed the alleged agreement. The alleged tenancy therefore remained unsupported by any independent evidence. 3. Secondly, the respondent consistently denied the existence of any lease and maintained that he occupied parcel No. 1440 as its registered owner. While he equally admitted that the alleged sale agreement had not been reduced into writing, the weakness in the respondent's explanation did not relieve the appellant from proving his own case. As was stated in ***Kirugi & Another v Kabiya & 3 Others* (supra)**, a plaintiff must succeed on the strength of his own evidence and not on the weakness of the defence. 4. The appellant has faulted the learned trial magistrate for allegedly ignoring the evidence of DW3, the County Surveyor. This Court has carefully examined both the survey report and the oral testimony. DW3 confirmed that parcels **1903**, **1904** and **1440** physically exist on the ground. He further stated that parcel No. 1904 and parcel No. 1440 ought to share a common boundary but that no physical boundary existed on the ground. More significantly, the surveyor testified that the appellant was utilizing parcel No. 1904 while the respondent was utilizing parcel No. 1440. He did not conclude that the respondent had encroached upon parcel No. 1904. Rather, his report pointed to an absence of a properly demarcated common boundary. 5. That evidence, in the Court's view, did not establish trespass. On the contrary, it disclosed a boundary uncertainty between two registered parcels which ought to be handled exclusively by the land registrar. Such evidence could not, without more, support the drastic orders of eviction sought by the appellant. 6. Under the Land Registration Act Cap 300 (now repealed) Section 21(4) deprived this Court the power to entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in that section. Section 18(2), the Land Registration Act, 2012 (LRA), similarly prohibits this Court from entertaining any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined as provided in that section. It provides as follows: **“The Court shall not entertain any action or other proceedings relating to a dispute as to the boundaries of registered land unless the boundaries have been determined in accordance with this section”.** 1. Under Section 19 of Land Registration Act, 2012 the duty to fix boundaries to registered land is vested in the Land Registrar. It provides as follows: **“19. (1) If the Registrar considers it desirable to indicate on a filed plan approved by the office or authority responsible for the survey of land, or otherwise to define in the register, the precise position of the boundaries of a parcel or any parts thereof, or if an interested person has made an application to the Registrar, the Registrar shall give notice to the owners and occupiers of the land adjoining the boundaries in question of the intention to ascertain and fix the boundaries.** **2) The Registrar shall, after giving all persons appearing in the register an opportunity of being heard, cause to be defined by survey, the precise position of the boundaries in question, file a plan containing the necessary particulars and make a note in the register that the boundaries have been fixed, and the plan shall be deemed to accurately define the boundaries of the parcel.** 1. The appellant has also challenged the learned magistrate's reliance upon adjudication proceedings, contending that the objection proceedings referred to parcel No. 921 rather than parcel No. 924 and that the parties were different. Indeed, upon re-evaluation of the record, this Court agrees that the respondent's evidence concerning the adjudication proceedings was not entirely satisfactory. During cross-examination, the respondent admitted that he was unable to comment on proceedings relating to parcel No. 921 because he was not a party thereto. Consequently, the evidential value of those proceedings was considerably weakened. 2. However, even if those proceedings were disregarded entirely, the appellant's case would still fail. The appellant still bore the burden of proving that the respondent had unlawfully occupied parcel No. 1904. That burden was not discharged merely by exposing inconsistencies in the respondent's evidence. 3. More importantly, this Court notes that although the appellant sought eviction of the respondent from No. **West Nyokal/Kanyikela/1904**, his plaint contained no plea whatsoever on why eviction order should be issued. The plaint merely pleaded trespass founded upon an alleged lease agreement. 4. During the hearing, however, evidence emerged suggesting that the respondent may have irregularly acquired parcel No. 1440 or that there were inconsistencies in the adjudication process. Those matters may well have raised suspicion of fraud. Nevertheless, parties are bound by their pleadings, and courts equally determine disputes based upon the issues arising from those pleadings. 5. In ***Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others* [2014] eKLR**, the Court of Appeal reaffirmed the long-settled principle that parties are bound by their pleadings and that a court should not pronounce itself on matters not pleaded. 6. Fraud, in particular, is not a matter that may be inferred from testimony alone. It must be distinctly pleaded and strictly proved. In ***Vijay Morjaria v Nansingh Madhusingh Darbar & Another* [2000] eKLR**, the Court of Appeal held: **"It is well established that fraud must be specifically pleaded and that particulars of fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that those acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts."** 1. Likewise, in ***Evans Otieno Nyakwana v Cleophas Bwana Ongaro* [2015] eKLR**, the Court held that allegations of fraud must not only be specifically pleaded but proved by evidence of a standard higher than a balance of probabilities though not beyond reasonable doubt. Mere suspicion or inconsistencies cannot amount to proof of fraud. 2. Having reconsidered the plaint filed before the subordinate court, this Court finds that there was absolutely no pleading of fraud or any particulars thereof. Consequently, notwithstanding the oral evidence that emerged during trial, the learned trial magistrate could not lawfully evict the respondent as the evidence on record did not establish that the respondent had trespassed onto the appellant's land. On the contrary, the evidence of DW3, Caleb Onyango, the Land Surveyor, was unequivocal. He testified that parcel Nos. **West Nyokal/Kanyikela/1904** and **West Nyokal/Kanyikela/1440** ought to share a common boundary, but that the boundary was not physically identifiable on the ground. More significantly, he stated that ***"the proprietor of land parcel No. 1904, who is the plaintiff, is the one using the entire parcel together with the defendant's land being parcel No. 1440."*** This expert evidence was neither rebutted nor displaced by any contrary survey evidence. Therefore, it is the appellant who has encroached on to the defendant’s land. 3. The appellant further contended that the learned trial magistrate dismissed the suit on procedural technicalities contrary to Article 159(2)(d) of the Constitution. This argument is without merit. A careful reading of the judgment demonstrates that the dismissal was founded on failure to prove the case on a balance of probabilities. That is a substantive evidentiary issue and not a procedural technicality capable of being cured by Article 159(2)(d). 4. Ultimately, having independently analysed the entire record, this Court finds that the learned trial magistrate correctly appreciated the applicable law and evidence. Although portions of the respondent's evidence were inconsistent, the appellant equally failed to establish the alleged lease. The appellant therefore failed to prove his case on the requisite standard. 5. Accordingly, this Court finds no basis upon which to interfere with the judgment of the trial court. All the grounds of appeal consequently fail. 6. Accordingly, this Court makes the following orders: 1. The appeal is hereby dismissed. 2. The Judgment and Decree of the Principal Magistrate in Ndhiwa CM ELC No. E001 of 2021 delivered on 11th December 2024 are hereby upheld. 3. The appellant shall bear the costs of this appeal. 4. It is so ordered. **Judgement dated and delivered at Homa Bay via the teams’ platform this 23rd day of July 2026.** In the presence of ; 1. Mr. Osoro for the Appellant- Present 2. Mr. Ongoso for the Respondent - Present 3. Court Assistant; Ms. Awino . JUSTICE J.W WANYONYI, JUDGE