https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4388

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC LAND APPEAL NO. E042 OF 2025** **REUBEN S. KWALANDA……………………..….….….. APPELLANT** **VERSUS** **RUFUS SHITANDA.…………….……………………….RESPONDENT** ***(Being an appeal against the judgment and decree of Hon. P. MUTUA (CM) delivered on 14th May 2025 in Kakamega CMCELC Case No. 221 of 2018)*** **JUDGMENT** **Introduction** 1. This appeal arose from the judgment of Hon. P. Mutua (CM) delivered on 14th May 2025 in Kakamega ELC Case No. 221 of 2018. In the impugned judgment, the learned trial magistrate found that to the extent that the transfer effected of parcel No. North Kabras/ Malava/2574 included the four acres belonging to the respondent that transfer was null and void. Therefore, the court proceeded to dismiss the appellants case with costs to the respondent. **Background** 1. By plaint dated 22nd January 2018, the plaintiff who is the appellant herein sued the respondent herein stating that he was the registered proprietor of land parcel No. North Kabras/Malava/2574. He complained that on 14th March 2007, the defendant unlawfully and without any right entered the suit property and erected structures thereon. He sought eviction and costs against the defendant. 2. The suit was opposed. By defence filed on 27th February 2018, the defendant denied the plaintiff’s claim and invited the plaintiff to strict proof. He denied entering and erecting structures on the plaintiff’s land. 3. The matter proceeded by way of viva voce evidence. The plaintiff presented four witnesses while the defendant presented two witnesses. **Plaintiff’s evidence** 1. PW1 was Reuben Kwalanda, the plaintiff. He testified that he was the registered proprietor of parcel No. North Kabras/Malava/2574, which he together with his sister Rhoda purchased from Esther Mwangale and Shitanda Mulupi. That the defendant invaded the land and put up structures thereon unlawfully. He produced 7 exhibits which included sale agreements, stamp duty payment, mutation, title deed, green card and search certificate. 2. In cross examination, he stated that he purchased 7 acres and a fraction. That apart from the acreage in the agreement he added several other pieces by way of purchase. He stated that he had not provided the Land Control Board consent and transfer instrument. That the defendant entered the suit property after he had purchased it. 3. In re examination he stated that he had three agreements. That the mutation form he produced was signed by the registered owner of the land and that the same indicated his parcel as 3.02 Ha. 4. PW2 was Esther Mwangale, the wife of Shitanda Mulupi the original owner of the suit property. She testified that her husband who had four wives had distributed his land among his wives and she got 7 acres. That she sold her share and left and that her husband executed the relevant transfer documents. She denied selling the defendant’s land. 5. On cross examination, she stated that together with her children they sold their land to one Rhoda and the plaintiff. That her husband attended the land control Board and kept the Land Control Board consent. That when the defendant and his siblings came to the land the plaintiff had already purchased it. 6. PW3 was Solomon Makuto Shitanda the son of PW2. He stated that they sold the suit property to the plaintiff 7. PW4 was Rhoda Kwalanda who stated that together with the plaintiff they purchased the suit property. That she bought 3.65 acres and the plaintiff bought the other portion whose acreage she could not tell. That she had not produced her sale agreement. That she gave the entire land to the plaintiff. That marked the close of the plaintiff’s case. **Defendant’s evidence** 1. DW1 was Benard Rufus Shitanda, the defendant. He adopted his witness statement dated 25th July 2022. His testimony was that his father Mulupi Shitanda inherited his mother Khandasi after the death of her husband one Shitanda Chikamai. That the two were blessed with two sons, namely; the defendant and one Allan Shitanda. That they continued living on the land belonging to his mother’s former husband until 1994, when Mulupi shitanda called him and allocated him four acres of land and that PW2 was unhappy with that state of affairs. That his father Mulupi Shitanda shared his land among his sons whereof he gave first born sons of each 4 acres each, while the rest of the sons got 3 acres each. That PW2’s sons got their share. He stated that the plaintiff obtained title by fraud and listed particulars of fraud. 2. In cross examination, he stated that his mother lives on the land of Allan Shitanda. Further that Esther’s (PW2) sons were given land by Mulupi Shitanda their father. That PW2 had four sons. That PW2’s firstborn son got 4 acres while the other 3 sons got 3 acres each and that therefore, she got a total of 13 acres. That PW2’s sons Luka and Solomon together with PW2 sold their land and relocated. That the plaintiff’s sister Rhoda bought land and gave it to the plaintiff. That the plaintiff did not buy any land. That the deceased gave him four acres but died before transferring title to him title. He conceded that the suit property was registered in the name of the plaintiff, but insisted that it was not true that he lived on the suit property. That he lives on the land his father gave him but he has no title. In reexamination, he stated that he did not inherit anything from Chikamai. That PW3 was his father’s third wife and had four sons, namely Luka, Solomon, Majimbo and Jackson and that Luka sold his share to the plaintiff’s sister. 3. DW2 was Benedict Allan Shitanda, DW1’s brother. He stated that he supported DW1’s statement. In cross examination, he stated that he lived on parcel No. 3263 and that the same was not in his name but in the name of his father Mulupi Shitanda and that there was no other land in the name of his father. That PW3 sold his share to one Caleb but told court that he sold it to the plaintiff. In reexamination, he stated that the original parcel was No. 442. That marked the close of the defence case. 4. Upon consideration of the pleadings evidence and submissions, the trial court found that what was disputed is whether the plaintiff purchased part or the whole of the suit property. The trial court found that the plaintiff failed to show the land control board consent and the transfer instrument and therefore dismissed his case. 5. Aggrieved by the trial court’s judgment, the appellant proffered the present appeal vide Memorandum of appeal dated 5th June 2025 citing the following thirteen grounds of appeal; 6. **That the learned trial magistrate erred in law and fact by finding that the appellant's title was invalid despite clear evidence that the land was lawfully transferred to the appellant by the previous proprietor during his lifetime.** 7. **That the learned trial magistrate misdirected himself by concluding that the seller had no capacity to transfer land, contrary to documentary evidence of ownership and transfer by the legal registered owner.** 8. **That the trial court erred in law and fact by treating the respondent as a beneficiary or entitled to the land without any counterclaim or lawful documentation to that effect.** 9. **That the trial court erred in law and fact by failing to consider the legal effect of the respondent's mother had failed at previous litigation over the suit property prior to the transfer of the suit property to the appellant.** 10. **That the trial court erred in law and fact by failing to consider the fact that the respondent admitted that he was not given land by the deceased during his lifetime.** 11. **That the trial court erred in law and fact by failing to consider that the respondent did not oppose the sale of land to the appellant and that the Appellant took possession of the land without resistance, thereby confirming the appellant's ownership and occupation.** 12. **That the trial court erred in law and fact by disregarding the uncontroverted evidence from the respondent acknowledging that the appellant's sister lawfully purchased the suit land before it was transferred to the appellant thereby affirming the root of the appellant's title.** 13. **That the trial court erred in law and in fact by failing to give due weight to documentary evidence produced by the appellant, including the mutation form and KRA stamp duty receipt, which corroborated the lawful transfer and registration of the suit property in the appellant's name.** 14. **That the trial court erred in law and fact by importing issues not pleaded, such as alleged disinheritance, and determining the case on extraneous consideration.** 15. **That the trial court erred in law and fact by failing to appreciate the legal doctrine of indefeasibility of title which protects the appellant's registered title.** 16. **That the trial court erred in law and fact by dismissing the appellant's claim for eviction despite the respondent having no lawful claim, title or possession rights over the property.** 17. **The trial court erred in law and in principle by failing to consider the evidence in the survey report as produced by the appellant.** 18. **That the lower court judgment was against the weight of evidence and contrary to law.** 19. Consequently, he sought the following orders; 20. **This appeal be allowed** 21. **The judgment and decree of the subordinate court be set aside** 22. **That judgment be entered in favour of the appellant as prayed in the plaint** 23. **Costs of this appeal and the suit in the lower court be awarded to the appellant** 24. The appeal was canvassed by way of written submissions. On record are submissions filed by the appellant dated 17th July 2025 and those by the respondent dated 29th September 2025. **Appellant’s submissions** 1. The appellant isolated and submitted on four key issues for determination. On whether he had acquired good title capable of enforcement, the appellant submitted that he was the registered proprietor of land parcel No. North Kabras/Malava/2574 and had produced documentary evidence in support thereof, including the title deed, sale agreements, stamp duty receipt, mutation form and a copy of the green card for the suit property. He submitted that the land was lawfully transferred to him by the registered owner, and that his title was protected under **section 26(1) of the Land Registration Act**, there being no proof that the same had been obtained through fraud, misrepresentation or illegality. 2. The appellant further argued that the lower court failed to give due weight to the documents produced in support of his title and the evidence of the witnesses who confirmed the sale. He contended that PW2 and PW3 testified that the land had been sold to him, and that the respondent and his witness acknowledged that PW2 and her sons had sold their portion of land to the appellant, and thus claimed that the trial court erred in dismissing his claim despite the uncontroverted evidence of purchase, transfer and registration. 3. On whether the trial court misapplied the doctrine of inheritance to defeat his claim, the appellant submitted that the respondent’s defence was founded on an alleged inheritance claim, yet no succession proceedings had been filed and no court had declared the respondent a beneficiary of the estate of Mulupi Shitanda. He argued that the trial court wrongly imported succession issues into a claim for eviction and proceeded on the erroneous basis that the appellant had conspired with PW2 and her sons to disinherit the respondent. 4. Lastly, on whether the respondent had any legal right to occupy the suit property, the appellant submitted that he was the lawful registered proprietor of the suit property. He contended that the respondent admitted that he had not been given any land by the late Mulupi Shitanda. That the respondent acknowledged that the appellant had purchased the land, and that the survey report produced before the trial court showed that the respondent occupied approximately four acres thereof. Relying on **Kazungu Ngari Yaa v Mistry Amra & Others [2016] eKLR** and **Mwangi & Another v Mwangi [1986] KLR 328**, he argued that mere occupation, without title or a lawful claim, could not defeat the rights of a registered proprietor. **Respondent’s submissions.** 1. On the appellant’s title, the respondent submitted that the appellant failed to prove the root of his title. That although the appellant initially claimed to have purchased the suit property from Mulupi Shitanda, he did not produce any sale agreement, Land Control Board consent, application for consent, or transfer documents executed by Mulupi Shitanda in his favour. The respondent further submitted that the appellant later contradicted himself by stating that the land was purchased for him by his sister from Esther Mwangale, one of Mulupi Shitanda’s wives, which contradiction was properly considered by the trial court. 2. The respondent further submitted that the appellant failed to account for the size of the land claimed. That the agreement dated 11th May 2004 showed that the appellant purchased 3.75 acres from Esther Mwangale, yet the appellant laid claim to a larger portion than what was reflected in the agreement. It was therefore the respondent’s submission that the trial court correctly found the appellant’s title to be suspect. 3. The respondent averred that **section 26(1) of the Land Registration Act** only protects a validly acquired title, and that such protection could not be available to the appellant where the root of the title was not proved. Relying on **Dina Management Limited v County Government of Mombasa & 5 Others [2021] e KLR**, he submitted that the appellant bore the burden of demonstrating that his title was legally, formally and procedurally acquired. He prayed for the court to dismiss the appeal with costs. **Analysis and determination** 1. The court has carefully considered the appeal, rival submissions and the entire record. The duty of this court as a first appellate court is to reanalyze the evidence presented before the trial court and make its own independent conclusions bearing in mind that it had no opportunity to see or hear witnesses and make due allowance for that. 2. In the case of **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR**, the court reiterated the duty of the first appellate court thus; **“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse 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. It is trite that the court should not unnecessarily deviate from the finding of the lower court unless there are compelling reasons to do so. In ***Peters v Sunday Post Ltd*** [1958] EA 424, the Court held that; **“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide”** 1. Having considered the appeal, the appellant’s grievance is that despite proving his claim before the trial court, the same was dismissed. He has faulted the trial court’s findings and conclusions insisting that the evidence presented before the trial court sufficiently proved his claim. He further argued that the trial court dealt with issues that did not arise from the pleadings and determined the matter as though the respondent had made a counterclaim. Therefore, the issue for this court’s determination is whether the trial court was wrong in dismissing the appellant’s claim. 2. In the instant case, the pleadings show that the appellant pleaded in his plaint that he was the registered proprietor of the parcel of land known as North Kabras/Malava/2574. His complaint was that the respondent had unlawfully entered that property and erected structures thereon. He sought eviction against the respondent. On the other hand, in his defence, the respondent denied the appellant’s claim and specifically denied having trespassed on the suit property. 3. The appellant is the registered proprietor of the suit property. That being the case, the dispute raised only one issue, namely; whether the respondent had trespassed on land parcel No. North Kabras/Malava/2574. However, the trial court framed the issue for trial as being whether the appellant herein bought the whole or part of the suit property. From the pleadings, no such issue arose. In any event, the respondent herein was neither the previous owner (or the administrator of his estate) nor the seller of the suit property for a dispute as to how much land was sold to arise. From the green card, the transfer was effected by the previous registered owner Shitanda Mulupi to the appellant on 28th March 2007. There was no pleading by the respondent to the effect that the said transfer was not done by Shitanda Mulupi. 4. It is trite that parties are bound by their pleadings, and the issues for determination arise from pleadings. In any dispute, each party’s case is anchored on their respective pleadings. Pleadings define a party’s case. A party’s case is their position on the dispute. Therefore, evidence follows pleadings and not the other way around. Evidence can neither be a substitute for pleadings nor can it be construed to have amended the pleadings. Parties tender evidence to substantiate and support their case and/or what they have pleaded. 5. Therefore, the extent of a party’s case is delineated by their pleadings. Pleadings shape the path and trajectory of a party’s case and the evidence presented ought to flow within the path and trajectory created by the pleadings as any departure or deviation therefrom renders the adduced evidence irrelevant. Thus, any evidence that transcends the limits of the pleadings by attempting to prove what was not pleaded, is irrelevant, ought to be disregarded and rejected. 6. In the case of **Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) e KLR,** the Supreme Court of Kenyaheld as follows; **“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”** 1. Similarly, in the case of **Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] e KLR,** the court held as follows; **“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others (2014) e KLR which cited with approval the decision of the Supreme court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings;-** **“….it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with he averments of the pleadings goes to no issue and must be disregarded….** **….in fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”** 1. In the instant case, in the defence, the respondent did not challenge the legality of the appellant’s title or plead that the appellant only purchased part of the suit property. In addition, he did not plead fraud or illegality against the appellant’s title. In any event, as seen from the mutation provided, the owner of the suit property Shitanda Mulupi executed the mutation forms creating title No. North Kabras/Malava/2574 in 1998. The suit property was just one among several others created by that mutation. The respondent is not the administrator of the estate of Mulupi Shitanda, and Mulupi Shitanda did not challenge the process of the appellant’s acquisition of title of the suit property, neither did the respondent in his defence. The wife and son of Mulupi Shitanda who were PW2 and PW3 confirmed selling the suit property to the appellant. 2. The respondent in his evidence confirmed that PW2 and her sons Luka and Solomon sold their property and relocated. The mere fact that the respondent chose in his witness statement dated 25th July 2022, to state that the appellant obtained title by fraud, and went ahead to state the particulars of fraud, did not in my view, alter the issues raised in the pleadings. Issues flow from pleadings and not from evidence and therefore, the trial court was wrong in framing the issue to be; how much land was purchased by the appellant, when that was not the question raised in the pleadings. 3. In addition, although the trial court took the view that the appellant conspired with PW2 and her sons who were opposed to the respondent inheriting his father’s land, and had the whole land registered in the plaintiff’s name, the issue of the respondent’s inheritance is not one of the issues that arose for determination before the trial court, and in any event, the trial court as constituted was an Environment and Land Court and not a Probate and Administration Court, hence had no jurisdiction to determine matters of inheritance. I therefore find and hold that the trial court was wrong in framing issues that did not arise from the parties pleadings and failed to determine the only issue that arose from the pleadings which was whether the respondent had trespassed on the suit property. 4. On the question as to whether there was trespass or not, the suit property is registered in the name of the appellant. Sections 24, 25 and 26 of the Land Registration Act provide for interests, rights and privileges of registered proprietors of land. They provide as follows; ### **“24. Interest conferred by registration** **Subject to this Act—(a)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; and(b)the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.** ### **25. Rights of a proprietor** **(1)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, free from all other interests and claims whatsoever, but subject—(a)to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and(b)to such liabilities, rights and interests as affect the same and are declared by**[**section 28**](https://kenyalaw.org/akn/ke/act/2012/3/eng%402022-12-31#part_II__sec_28)**not to require noting on the register, unless the contrary is expressed in the register.(2)Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.** ### **26. Certificate of title to be held as conclusive evidence of proprietorship** **(1)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, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, 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. Therefore, a registered proprietor of land has rights and privileges conferred by registration, which he or she enjoys to the exclusion of third parties including the respondent herein. 2. In this case, in the defence, the respondent did not challenge the appellant’s title under section 26 of the Land Registration Act. Therefore, the appellant is entitled to enjoy quiet possession of his parcel of land without interference from the respondent. The respondent did not plead and prove any justification for his presence on the suit property and therefore he is a trespasser. In the premises, I find and hold that the appellant herein proved his case on the required standard before the trial court and therefore the trial court was erred in dismissing his claim. 3. For the above reasons, I find and hold that this appeal succeeds. The trial court’s judgment dated 14th May 2025 is hereby set aside and substituted with an order allowing the appellant’s plaint dated 22nd January 2018. In the premises, I make the following orders; 4. **The respondent herein shall vacate land parcel No. North Kabras/Malava/2574 within 90 days of this judgement. In default, eviction to issue.** 5. **The costs of this appeal and those of the suit in the court below, are hereby awarded to the appellant.** 6. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 8TH DAY OF JULY 2026** 1. **NYUKURI** **JUDGE** **In the presence of;** Appellant in person Mr. Nyikuli for the respondent Court Assistant- Delphine