Raburu & another v Machogu (Environment and Land Appeal E020 of 2025) [2026] KEELC 3291 (KLR) (21 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC LAND APPEAL NO. E020 OF 2025** **PETER DEDE RABURU…………………………………..1ST APPELLANT** **FRANCIS OWUOR OCHIENG………………………….2ND APPELLANT** **VERSUS** **DAVID MAREGWA MACHOGU……………………..……RESPONDENT** ***(Being an Appeal from the Judgement and decree of Hon. C.N.C. Oruo (PM) delivered on 29th May 2025 in Rongo ELC E009 of 2021)*** **JUDGEMENT** 1. By way of a Plaint dated 29th March 2021, the Respondent sought the following orders; 2. **An order for eviction and permanent injunction be issued restraining the Defendants whether by themselves or agents from trespassing and/or causing any further interference with the Plaintiff's parcel of land KAMAGAMBO/KAMWANGO/1060.** 3. **Damages for trespass.** 4. **Costs of this suit and interest at court rates.** 5. The Plaintiff pleaded that he was the registered proprietor of the suit land and the defendants encroached on the land in 2019 by grazing on it, cultivating and planting maize thereon. That the Area chief intervened as well as the County Surveyor Migori County who found out that the Defendants, indeed, encroached the Plaintiff’s parcel. He urged the court to allow the suit. 6. The Defendant filed an Amended Defence and Counterclaim where they averred that the suit land was registered in the name of KAMAGAMBO/KANYAJUOK/360 registered in the names of Dede Raburu and Ochieng Raburu in equal measure the same being ancestral land owned by the parents in equal share. Further, that it is not clear how the subdivision came into being. That the Plaintiffs appeared sometime in the year 2019 claiming a portion of the defendants ancestral home and offered no explanation as to how they and their father acquired the suit land. Further, that the plaintiffs and acquired the property fraudulently. 7. In the Counterclaim, the sought the following orders; 8. **A Declaration be made that the Defendant acquired land parcel number KAMAGAMBO/KANYAJUOK/1060 and part of KAMAGAMBO/KANYAJUOK/1059 fraudulently and the same be cancelled and reverted back to the original owner.** 9. **A rectification of the land register with regards to property known as KAMAGAMBO/KANYAJUOK/1060, KAMAGAMBO/KANYAJUOK/1059 be made by the land Registrar Migori.** 10. **Damages for trespass and Mesne profits.** 11. **A permanent order restraining the Defendants from interfering with the suit land.** 12. The matter then proceeded for hearing. 13. **PW1** was **David Miregwa Machogu** who adopted his witness statement as evidence in chief. His evidence in it and orally was that he was the registered proprietor of L.R No. KAMAGAMBO/KANYAJUOK/1060. That he succeeded his late father Machogu Indiege Wilson who was the original registered proprietor of the same. That in the year 2019, the Defendants began encroaching the suit parcel by grazing cattle on the land and cultivating the same. He urged that they approached the Defendants and told them to peacefully stop any activity on the suit parcel which they declined. That a survey report was conducted that also ascertained the Defendants encroachment. 14. During cross examination, he stated that the survey was a true picture of the situation on the land. Further, that he did not allow the defendants into the land. 15. **PW2** was **Omondi Ray Aloo** who stated that he carried out the survey and filed the surveyor report in respect of the suit land. He determined that the land was encroached by people not known to the Applicant. The Plaintiff’s case was closed at that juncture. 16. **DW1** was **Peter Odhiambo Dede** who testified that they sat with the family of Machogu and agreed to have the parcel returned to it so that they would proceed with the Succession of the Estate. The Plaintiff was present at the meeting. He grew up in the suit land that belonged to their grandfather which was subsequently registered in the names of his two sons, Dede Raburu and Ochieng Raburu in equal halves. He stated that he was not aware if his father took out a title deed for the parcel. The family of Machogu never showed them any sale agreement of the parcel. He prayed that the suit be dismissed with costs. 17. During cross examination, he stated that on 26th June 1979 David and Dede Raburu were the registered as owners. Then the land was registered in the name of Machogu Ndong Wilson through a transfer. That he was not aware if a surveyor visited the land. 18. **DW2** was **Francis Owuor Ochieng** who adopted his witness statement as evidence in chief. In it, he stated that the suit parcel is their ancestral land. Their grandfather gave his two sons Dede Raburu and Ochieng Raburu in equal halves. The parent land was Kamagambo/Kanyajuok/360 which was subdivided into two halves. The subdivision came up with two new numbers Kamagambo/Kanyajuok/1059 and Kamagambo/Kanyajuok/1060. After the death of their parents, Dede Raburu settled on Kamagambo/Kanyajuok 1059 while he settled on Kamagambo/Kanyajuok 1060. That traditionally, the ancestral land normally remains with the younger son who was his late father (Ochieng Raburu). He constructed a homestead in that parcel and has been living there since birth. 19. He further stated that their grandfather Raburu and grandmother Salome were both buried on parcel no. Kamagambo/Kanyajuok 1060. Subsequently Ochieng Raburu was also buried on the said parcel. His father had cultivated the said parcel and constructed his home on it. Further, sometime in March 2019 he received summons to appear before the Chief. He was accused by the plaintiffs that they were cultivating their land. 20. A meeting was convened on 26th April 2019, at the Chiefs office. It is at that point that he heard about the Machogu’s claim in the land. In the meeting, it was apparent that they had taken a parcel no Kamagambo/Kanyajuok 1060, which they agreed to return. They agreed to surrender the piece of land that was extra o the said land. 21. He stated that the green card produced by the Machogu was produced after they got theirs much earlier. The registry produced two different documents of the same. It was when he went to take out letters of administration that he realized that the plaintiff had already taken out letters of administration and confirmed the grant. He urged that neither KAMAGAMBO/KANYAJUOK/1060 nor KAMAGAMBO/IL\NYAJUOK/1059 went through a subsequent subdivision to enable acquisition of new titles and even the acreage being curved out from both parcels had discrepancies. 22. During cross examination he stated that he was not aware if his father sold the portion. He stated that he was there when the surveyor visited the land and so was DW1. That closed the defence case. 23. Upon the trial court considering the testimonies and the evidence tendered in court, it entered judgment in favor of the Plaintiff and dismissed the Defendants’ Counterclaim. 24. Being dissatisfied with the decision of the trial court, the Appellants instituted the present Appeal vide a Memorandum of Appeal dated 9th June 2025 premised on the following grounds; 25. **That the learned Magistrate erred in law and fact in arriving at a finding premised on a consent recorded by Advocates themselves without involving the litigants therefore limiting and/or depriving Appellants/Applicant’s rights to fair hearing and administrative action.** 26. **That the learned Magistrate erred in law and fact in holding that the Respondent Is lawfully the proprietor of parcel KAMAGAMBO/KAMWANGO/1060 measuring 1.5 Ha while the green card reads 1.51 Ha making it hard to believe which is the actual acreage of the suit land. Finding that such title still merits legal proof of indefeasibility with the uncertainty means the Honourable court relied on nothing hearsay that indeed in unsafe.** 27. **That, the Hon Magistrate erred In law and fact in arriving at a finding that legalizes purchaser title on verbal purchaser agreement without tangible documentary proof executed by deceased parties including land transfer documents supported by consent of Land Control Board authorizing land transfer dully signed by the common proprietors prior to their death.** 28. **That the Honourable court erred in law and fact in falling to pronounce itself on the Respondents written commitment in local chiefs office done on 24th April, 2019 to surrender extra portion of parcel KAMAGAMBO/KANYAJUOK/1060 to parcel KAMAGAMBO/KANYAJUOK/1059 without clarity on acreage to surrender.** 29. **That the Honourable Court erred in law and fact in falling lo pronounce itself on the 1.33 Ha portion of land being pan of parcel KAMAGAMBO/KANYAJUOK/360 measuring 6.2Ha which on subdivision produced parcel numbers; KAMAGAMBO/KANYAJUOK/1059 & 1060 each measuring 3.36 Ha and 1.5 Ha giving a total of 4.87 Ha remains unaccounted for.** 30. **That the Honourable Court erred in law fact in adopting an incomplete and unsubstantiated Surveyor's report as judgment of the Court without the Surveyor clarifying how the suit land relates to parcel KAMAGAMBO/KANYAJUOK/1059 and the 1.33 Ha.** 31. **That the Honourable Court erred in law and fact in failing to pronounce itself as a neutral arbiter to resolve the opaqueness as to whether the Respondent's undertaking to surrender extra portion was in relation to 1.33 Ha as aforesaid.** 32. The parties prosecuted the appeal by way of submissions. **Appellants’ Submissions** 1. Learned counsel for the Appellant submitted that the trial magistrate did not determine whether the plaintiffs suit was for an interest in land and was justiciable coming in 2021 for an interest in land allegedly acquired on 17th November 1977, with nil possession exercised by the Respondent, or, his predecessors in title. 2. He cited Sections 7 and 17 of the Limitation of Actions Act and urged that an action to recover land for which the title is by law extinguished is not maintainable. That the title in respect the Appellant’s Counterclaim was maintainable having only discovered the fraud, the cause of action, which he alleges in 2019, when the Respondent appeared and made a claim. He cited **Saggaf v Edams & 2 Others (Civil Suit E006 of 20231 [2024] KEELC 6978 (KLR) eKLR** in this regard. Counsel urged that the objection therein was taken as a preliminary point and further, that the Appellant herein takes a similar objection as a substantive point of the court’s jurisdiction. 3. On the validity of title number Kamagambo/Kanyajuok/1060, counsel faulted the trial courts’ analysis of the evidence and urged that there was no finding under this head. That the issue of there being no agreement for sale between “Machogu” and the Appellants’ deceased parents was raised but never evaluated. Further, no sale agreement was produced to support the claim of a land sale. Equally so, was the absence of Land Control Board Consent. None was produced. 4. Counsel cited section 3(3) Law of Contract Act and cited the cases of **Morgan v Stubenitskv 1977 KLR 188**, and **Hirani N. Githire v Wanjiku Munge 1979 KLR 50** on contracts on sale of land. He urged that without a Land Control Board Consent, a land sale is null and void. 5. Counsel submitted that the parent title for LR No. Kamagambo/Kanyajuok/ 1060 was LR No. Kamagambo/Kanyajuok/360. It measured 6.2 hectares and was equally subdivided and registered under the name of Dede Raburu and Ochieng Raburu on 17th October 1977. That the new numbers were Kamagambo/Kanyajuok/1059 and 1060 respectively. He highlighted the contents of the green card dated 18th March 2019. 6. On the size of land, Counsel urged that the title deed and the search certificate dated 12th April 2021, DExh-1 it showed that Kamagambo/Kanyajuok/ 1059 was measuring only 3.36 hectares contrary to 4.7 hectares as appears in the mutation form DExh-4. This raised the question as to where the balance of land measuring 1.34 went to. Counsel urged that a proper subdivision properly undertaken would not have caused the loss of such a large chunk of land unless the exercise was really never undertaken. DW2, the surveyor’s report, was not helpful to displace this fraudulent activity disclosed. The discrepancy in the land sizes go beyond the description of “approximate” to “distorted”. 7. He added that the integrity and propriety of the alleged sale, subdivision and certification was suspect and the trial magistrate, had he properly interrogated the evidence and exhibits could not have arrived at the decision he came to. It shows that the appellants had satisfactorily proved a fraud and that the certificate of title had been acquired illegally, unprocedurally and through a corrupt scheme, permitting the survey exercise, the registration exercise and its execution. 8. On Trespass, Counsel urged that having demonstrated that the Respondent did not prove a sale, this court must find that the Appellants were not trespassers and that this being their ancestral land, they were thereon by right. He cited **Bullen & Leake & Jacobs 16th Ed. Vol. 2** paragraph 99 at page 1715. That the Respondent was not in possession of the land. He only has a title deed issued to him after purporting to have conducted a succession process, and of being the new owner. It was without the consent or license of the appellant and the Counterclaim was thus proved. 9. Counsel urged the court to find that the Respondent was liable for pay damages for the trespass. An award of 500,000/= would in the circumstances be appropriate. Reliance was placed on **Nakuru Industries Ltd vs S.S Mehta & Sons HCC No. 360 of 2013 (2016) eKLR** where the court awarded the plaintiff 500,000/= for trespass. He urged the court to allow the Appeal with costs **Respondents’ submissions** 1. Counsel for the Respondent submitted that the only issue for determination is whether the Appeal is merited or not. That the Respondent herein acquired the suit parcel through inheritance duly succeeded his father Wilson Machogu (Deceased) and was duly registered as the proprietor of the suit parcel. Counsel urged that the cause of action arose from the year 2019 when the Appellants trespassed the suit parcel and started cultivating the same. The Respondent sought services of the County surveyor who visited the suit parcel and established the extent of trespass by the Appellants on the suit parcel. A report was filed and the same was produced as am exhibit in court during trial. 2. That the issues raised of adverse possession by the Appellants were never raised by the Appellants in the trial court. They pleaded fraud on part of the Respondent's father in acquisition of the suit parcel in their Defence and counterclaim, more so paragraph 16 of the counterclaim which they failed to prove. That the Respondent produced all manner of evidence and documents to prove his legal ownership of the suit parcel. He urged that the Appeal is meant to delay execution of fruits of his Judgment and the new issues raised should not be tolerated at all. He urged the court to dismiss the Appeal with costs. **Analysis and Determination** 1. 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 the case of **Susan Munyi v Keshar Shiani (2013) eKLR** stated as follows: **“*As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions”*** 1. Moreover, in **Williamson Diamonds Ltd and another v Brown**[1970] EA 1, it 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 analyse 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. Similarly, the decision of **Gitobu Imanyara & 2 others Vs Attorney General [2016] eKLR** held as follows; ***“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this 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 allowances in this respect.”*** 1. The Respondent’s case was premised on the ownership of the land parcel known as KAMAGAMBO/KAMWANGO/1060. He urged that he was the registered owner of the land and the Appellants were trespassers. 2. This court has to look at whether the party alleging trespass is the owner of the suit land and if the party against whom he complains has gotten onto his land or part thereof without his permission. 3. Section 26(1) of the Land Act provides; **“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 –** **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, unprocedurally or through a corrupt scheme.”** 1. The Respondent, plaintiff in the lower court suit, produced a title deed and a green card as evidence of ownership of the suit land. From the evidence, particularly the green card, the suit land was purchased by Wilson Machogu from Dede Raburu and Ochieng Raburu for Kshs. 4,855/= on 21st August 1979 and a title was issued on that date. The Respondent then obtained ownership of the land through Succession Cause No. 119 of 2019 filed at Rongo Law Courts. 2. The plaintiff produced a title deed for KAMAGAMBO/KANYAJUOK/1060 registered in the name of David Miregwa Machogu. From the details in the title, the same was held in trust pursuant to Rongo Succession Cause No. 119 of 2019. These details are also captured in the Green Card which was produced. This was the Respondent’s evidence of ownership of the suit land and corroborated the pleadings and the testimonies of the witnesses. 3. On their part, the Appellants contended that the Respondent acquired the suit land fraudulently. It was thus clear that they acknowledged that indeed the Plaintiff was registered as the owner at the time of suit. On the averment of fraudulent registration, the appellants sought to have the title cancelled. 4. The enduring principle of law is that he who alleges must prove that fact or claim. This 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. 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. 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. But regarding fraud, a fundamental principle on it is that the same must be specifically pleaded and proved. The standard of proof must be higher than that of probabilities. This was aptly expressed in **Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR**, where Tunoi, JA (as he then was) stated as follows: **“It is well established that fraud must be specifically pleaded and that particulars of the 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 these acts were done fraudulently”** 1. Indeed, fraud cannot be inferred from facts. In **Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) vs Stephen Njoroge Macharia [2020] eKLR**, the Court of Appeal observed as follows: **“In the instant case, the appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a finding that indeed there was fraud….”** 1. Turning to the facts of the instant case, despite pleading fraud, the Appellants did not tender any sufficient evidence to prove it to the required. Looking at the evidence on record, it is clear that land parcel 1060 was a sub division of parcel No. 360 upon a purchase on 21st August 1979 by the late Machogu Indiege Wilson. It was then transmitted to the Respondent after his father died. 2. Additionally, there was a survey of the suit land that was conducted by PW2 during the Succession Cause. The Surveyor filed a Survey Report dated 11th April 2019 and the Surveyor conclusively determined that the parcel was registered in the name of their deceased father and, that the Appellants had encroached on the Respondent’s land. That cannot then found a basis for the appellants to succeed in their claim of fraud. Thus, having considered the record of the trial court and the submissions tendered herein, it is my considered view that the trial court correctly analysed the evidence in court, and the testimonies and arrived to a well-reasoned decision. 3. The Appellants appeal lacks merit and is hereby dismissed with costs to the Respondent. 4. Orders accordingly. **JUDGMENT Dated, Signed and Delivered virtually via the Teams Platform this 21st day of May 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **From 10:42 AM, in the presence of,** Mr. Oduk Advocate holding brief for Mr. Adingo for the Appellants Mr. Owaka Advocate for the Respondent (absent)