https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5158

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ISIOLO** **ELC APPEAL NO. E025 OF 2025** AMINA MOHAMUD SIBA [Suing in the capacity of the Administratix in the Estate of Mohamud Siba]……...……………..……………………APPELLANT VERSUS ABDULLAHI MUHAMUD SIBA…...…….……...….…….1ST RESPONDENT ABDIKADIR MOHAMUD SIBA……………...….……….2ND RESPONDENT IBRAHIM MOHAMUD SIBA………….……….………….3RD RESPONDENT ***[Being an appeal from the Judgment and Decree of the Learned Magistrate Hon. Willy Kipkoech-Principal Magistrate, dated and delivered at Moyale on the 1st September, 2025 in Moyale CMELC No. E001 of 2022]*** **JUDGMENT** 1. On the 1st September, 2025, the learned trial Magistrate [Hon. Willy K. Cheruiyot – Principal Magistrate] delivered a Judgment wherein same found that the Appellant herein had not proven her case to the requisite standard. The learned trial Magistrate found that the decisions and award of the District Land Disputes Tribunal and the Provincial Appeals Committee, were incapable of demonstrating the root of the Appellant’s claim of ownership of the suit land. 2. Arising from the foregoing holdings and findings, the learned trial Magistrate dismissed the Appellant’s Suit vide Amended Plaint dated 10th February, 2023. In addition, the learned trail Magistrate also condemned the Appellant to bear the costs of the Suit. 3. Dissatisfied, the Appellant has now approached this Court *vide* Memorandum of Appeal dated 18th September, 2025 and wherein the Appellant has raised nine [9] pertinent grounds. 4. The grounds are: 5. ***That the learned trial magistrate erred in law and fact in finding that the Appellant had failed to prove ownership of the suit plot on a balance of probabilities, despite overwhelming documentary and oral evidence.*** 6. ***That the learned trial magistrate erred in law by shifting the burden of proof to the appellant, while ignoring that the respondents bore the evidential burden to demonstrate lawful acquisition of title to the disputed property.*** 7. ***That the learned trial magistrate failed to give due weight to the proceedings and awards of the defunct land tribunal and the provincial appeals committee, which affirmed that the suit plot lawfully belonged to the appellant and her children.*** 8. ***That the learned trial magistrate erred in law and in fact by disregarding uncontroverted evidence that the respondent’s failed was only allowed temporary occupation of the suit plot as he sought alternative settlement and therefore had no proprietary interest capable of transmission to the respondents.*** 9. ***That the learned magistrate misdirected himself in failing to address and properly evaluate the Appellant’s evidence on fraud, particularly the fraudulent registration of the plot in the respondents’ father’s name which issue was also a live dispute before the defunct land disputes tribunal and the Provincial Appeals Committee, which affirmed that the suit plot lawfully belonged to the appellant.*** 10. ***That the learned magistrate erred in failing to apply the correct standard of proof for fraud and in ignoring material contradictions in the respondent’s testimony regarding the alleged ownership of the plot.*** 11. ***That the learned trial magistrate erred in dismissing the appellant’s suit in its entirety without considering equitable remedies available to protect the appellant and her children’s interests.*** 12. ***That the learned trial magistrate erred in condemning the appellant to costs despite the existence of the strong evidence supporting her claim, thereby unjustly penalizing her for seeking to protect her property.*** 13. ***That the judgment was against the weight of evidence produced by the appellant and applicable law.*** 14. The Appeal came up for directions on 5th May, 2026, whereupon learned Counsel of the Appellant intimated to the Court that same had filed and served the Record of Appeal. In addition, learned Counsel posited that the Record of Appeal was complete. Thereafter, Counsel sought directions as pertains to the disposal of the Appeal. Moreover, learned Counsel proposed to have the Appeal canvassed by way of written submissions. 15. With the concurrence of learned Counsel for the Respondents, the Court proceeded to issue directions. The directions were: The Appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of directions; the Respondents shall file and serve written submissions within 14 days from the date of service; and the Appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days of service. 16. The Appellant filed two [2] sets of written submissions. The first set is dated 26th June, 2026. The Supplementary Submissions are dated 20th July, 2026. Learned Counsel for the Appellant has raised and canvassed four [4] key issues. The issues are: The learned trial Magistrate failed to properly evaluate the evidence on record and thereby arrived at an erroneous conclusion; the learned trial Magistrate misapprehended and misapplied the incidence of burden and standard of proof as pertains to fraud; the learned trial Magistrate erred in dismissing the Appellant’s Suit merely on the basis that the decisions/ awards of the Tribunal, and Appeals Committee had not been adopted; and the learned trial Magistrate committed an error in declining to return a finding in favour of the Appellant. 17. Regarding the first issue, learned Counsel for the Appellant has submitted that the Appellant tendered and adduced in evidence copies of the proceedings of the Land Disputes Tribunal and the Provincial Appeals Committee, which showed that the dispute pertaining to and concerning ownership of the Suit Property had been heard and determined. In addition, learned Counsel posited that the two fora, had returned findings that the Suit Properties belonged to the Estate of Mohamud Siba [now deceased]. 18. Furthermore, learned Counsel submitted that upon the decisions and awards being handed down, Mohamed Siba [now deceased] felt aggrieved and filed an appeal before the High Court at Meru. However, it was submitted that the Appeal which was filed by Mohamed Siba abated upon the death of the deceased. Learned Counsel thereafter referenced the Order that was issued by the learned Judge on 20th May, 2021; and wherein the Judge marked the Appeal as dismissed on account of abatement. 19. It was submitted that the decisions and the award of the Land Disputes Tribunal and the Provincial Appeals Committee, remained in situ and thus same sufficed to prove the root of the Appellant’s title to and in respect of the Suit Property. Moreover, learned Counsel submitted that the said proceedings and decisions were relevant to the dispute before the Court, in accordance with the provisions of **Section 34(1) of the Evidence Act, Chapter 81 Laws of Kenya.** 20. Secondly, learned Counsel for the Appellant has submitted that the Appellant tendered and produced evidence to demonstrate that Mohamed had testified before the Land Disputes Tribunal and the Provincial Appeals Committee and posited that same had not been issued with a letter of allotment in respect of Plot No. 165 Moyale. 21. Despite the forgoing, it was contended that the said Mohamed Siba is reported to have been issued with a letter, confirming that the Suit Property belonged to him. Learned Counsel submitted that the registration of the Suit Property in favour of the said deceased, was undertaken by fraud. 22. Nevertheless, it has been submitted that even though the registration of the Suit Property in the name of Mohamed Siba [now deceased] was procured in the absence of credible documents, the learned trial Magistrate still found and held that the Appellant did not discharge the burden of proof. It was contended that the finding by the learned trial Magistrate that the Appellant had not demonstrated fraud, was based on misapprehension of the evidence on record and the law. 23. Additionally, it was submitted that it is the Respondents herein who were in possession of the documents [if any], that could explain how the Suit Property was registered in the name of Mohamed Siba. To this end, it was submitted that the Respondents bore the burden of demonstrating the regularity [if any] in the registration of the Suit Property in the name of Mohamed Siba. 24. Learned Counsel thereafter cited and referenced the provisions of **Section 112 of the Evidence Act, Chapter 18 Laws of Kenya.** It was contended that the said provision placed the burden of proof on the person who is knowledgeable of the exceptional and peculiar facts. In this case, it was posited that the Respondents bore the burden of proving that the impugned registration was lawful and not otherwise. 25. It was the further submission by learned Counsel for the Appellant that the evidence that was tendered by DW6 [the town administrator] was not helpful in demonstrating how the Suit Property was registered in the name of the Deceased. 26. Thirdly, it was submitted that the learned trial Magistrate erred in law in dismissing the Appellant’s Suit, yet the Appellant had tendered evidence to show that the Suit Property had been found to belong to the Appellant’s late husband; and that the Respondents’ father had only been allowed to stay thereon temporarily, as he looked for alternative settlement. Furthermore, it was submitted that the continued occupation of the Respondents’ father on the Suit Property long after the death of the Appellant’s husband was based on the permission of the Appellant. 27. Be that as it may, learned Counsel has submitted that the Respondents’ father [Mohamed Siba] did not acquire any interests over the Suit Property. To this end, it was submitted that the registration of the Suit Property in favour of Mohamed Siba [now deceased] was amenable to rectification in terms of **Section 80 [1] of the Land Registration Act, 2012.** 28. Lastly, it has been submitted that the Appellant tendered and placed before the trial Court coherent and plausible evidence to demonstrate entitlement to the Suit Property. However, it has been submitted that despite the evidence tendered by the Appellant, the learned trial Magistrate erred in declining to enter Judgment in favour of the Appellant. 29. In view of the forgoing, learned Counsel for the Appellant has submitted that the totality of the evidence on record demonstrated and showed that the Suit Property lawfully belongs to the Estate of Mohamud Siba (deceased). In this regard, it has been posited that the Judgment of the learned trial Magistrate is perverse to the evidence on record. 30. In the premises, learned Counsel for the Appellant has invited the Court to find that the Appeal is meritorious. The Court has been implored to allow the Appeal, set aside the impugned Judgment and to enter Judgment in terms of the Amended Plaint dated 10th February, 2023. 31. The Respondents filed written submissions dated 10th July, 2026 wherein same has raised seven [7] key issues. The issues are: Whether the Tribunal award conferred any enforceable legal rights; whether the abatement of the Appeal validated the Tribunal award; whether the burden of proof was improperly shifted; whether fraud was proved; whether the Respondents demonstrated a superior claim over the Suit Property; whether the Appellant established a basis for the rectification of the register; and whether there exists a basis for appellate interference. 32. Regarding the first issue, learned Counsel for the Respondents has submitted that the proceedings/decisions/awards of the Land Disputes Tribunals and Provincial Appeals Tribunal, which were relied upon by the Appellant, were devoid of probative value and legality. In particular, it was submitted that the said decisions/awards were never adopted as orders of the Court. In this regard, learned Counsel for the Respondents cited and referenced the provisions of **Sections 3 and 7 of the Land Dispute Tribunal Act, 1990** [now repealed]. 33. Premised on the foregoing, it has been submitted that the learned trial Magistrate was right and correct, in finding and holding that the impugned documents, namely, the proceedings and decisions, were devoid of any legal basis. 34. Secondly, it was submitted that insofar as the impugned awards and decisions were not adopted, same were therefore not enforceable. To this end, it has been contended that the said decisions were therefore not binding on the Court. In any event, it was submitted that the decisions did not confer any legal rights to the Appellant, over and in respect of the Suit Property. Instructively, learned Counsel posited that the decisions and award, remained mere recommendations incapable of conferring proprietary rights. 35. Thirdly, it was submitted that even though the Appeal, which had been filed by Mohamed Siba abated, following his death, the abatement of the Appeal did not validate the decision/ award of the Tribunal. Notably, it has been submitted that the impugned decisions/awards could not be used to accrue rights in favour of the Appellant. 36. Additionally, it was submitted that the fact that Mohamed Siba [had filed an appeal], did not by and of itself, constitute an order of stay. In this regard, it was submitted that the Appellant herein was still at liberty to proceed and cause the decisions of the Tribunal to be adopted. 37. Be that as it may, it has been submitted that insofar as the decision[s] of the Tribunal and the Appeals Committee, were not adopted, same ceased to have any validity. In any event, it has been submitted that abatement of proceedings merely terminates the proceedings, but does not determine the rights of the parties. 38. Next is the issue of burden of proof. Learned Counsel for the Respondents has submitted that it is the Appellant who filed the Suit in the lower Court and contended that the registration of Mohamed Siba [now deceased] was fraudulent. It has been contended that having made the said assertion, the Appellant was chargeable with the burden of proof. In this respect, learned Counsel for the Respondent has cited and referenced the provisions of Sections 107, 108 and 109 of the Evidence Act. 39. Moreover, it was submitted that the totality of the evidence tendered by the Appellant did not meet/satisfy the threshold, to warrant a finding of fraud. In any event, it was submitted that fraud requires to be established to the satisfaction of the Court. 40. To buttress the submissions pertaining to fraud, learned Counsel for the Respondents has cited various decisions. The decisions are: **Arthi Highway Developers Ltd v Cooperative Society Ltd [2015] KECA 816; Garden Neptune v Occident [1989] 1 Lloyd’s REP 305; Davy v Garret [1879] 7 Chancery Division 473**, respectively. 41. Learned Counsel for the Respondents has thereafter submitted that the Respondents herein tendered and produced before the Documentary record[s] from Moyale Sub-County, showing that the Suit Land was lawfully registered in the name of their Father. In particular, it has been contended that the Document is a confirmation Letter by the Town Administrator-Moyal Sub- County. 42. On the contrary, it has been submitted that the Appellant herein did not produce any official records to show/ underpin her claim to and in respect of the Suit Property. 43. Based on the foregoing, it has been submitted that the Respondents tendered and produced before the Court superior Documents, underpinning their rights to the suit property, unlike the Appellant, who is said to have relied on Tribunal proceedings and historical assertion[s], devoid of legal backing. 44. Finally, the Respondents have submitted that the Appellant did not establish a basis to warrant the rectification of the Register of the Suit Property. It has been contended that rectification is not available, merely because a Party disputes ownership. 45. Flowing from the foregoing, Learned Counsel for the Respondents has submitted that the Appellant has not met the threshold to warrant the impeachment of the Judgment. In particular, it has been submitted that the subject Appeal is bereft of merits; and courts Dismissal. 46. Having reviewed the Record of Appeal; the grounds of Appeal; the impugned Judgment; and upon consideration of the written submissions filed by/on behalf of the respective parties, four [4] key issues emerge for determination. The issues are: Whether the Appellant duly established and proved his case on a balance of probabilities; whether the learned trial magistrate correctly apprehended and applied the legal principles in ascertaining the root of title or otherwise; whether the plea of fraud was established to the requisite standard or otherwise; and what reliefs [if any] ought to issue. 47. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding[s] and conclusion[s] arrived at by the trial magistrate accord with the evidence on record and the relevant/ applicable legal principles. 48. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding[s] and conclusion[s] of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 49. Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. For the avoidance of doubt, the jurisdiction cannot be exercised for the mere asking. The Jurisdiction cannot be exercised for the mere asking. It cannot be exercised at will. **Section 78 of the Civil Procedure Act**, regulates its exercise. 50. The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR).** The Court of Appeal expounded on the scope of the jurisdiction. 51. The court stated thus: *“46. We also wish to be guided by the reasoning of this court in the case of* ***Mwana Sokoni versus Kenya Business Limited (1985) KLR*** *931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.”* 1. Recently, the Court of Appeal revisited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court highlighted the principle in the following manner: *“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the*[*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of* **County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) *and*****County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) –** [paragraphs 56 and 57 thereof]” 1. Back to the issues for determination. I shall address the issues sequentially. I beg to start with the 1st issue, namely; whether the Appellant proved/established his claim before the lower Court to the requisite standard or otherwise. To begin with, the Appellant herein approached the Lower Court contending that the Suit Property belonged to her late husband, namely; Mohamud Siba [Deceased]. 2. Furthermore, the Appellant posited that the suit property was given to her late husband by the Deceased’s Father. Besides, the Appellant contended that the Respondents’ Father was given a plot in Moyale- Ethiopia. However, it was stated that the Respondents’ Father sold his plot and returned to Moyale- Kenya, where the suit property is situated. 3. It was the further testimony on behalf of the Appellant that when the Respondents’ Father came back, same was temporarily accommodated on the Suit plot, pending relocation. 4. Be that as it may, the Appellant posited that when her Husband passed on, the Respondents’ Father started to lay a claim over and in respect of the suit property. To this end, it was posited that a Dispute over the ownership of the Suit plot arose and was heard and determined by the District Land Disputes Tribunal. Suffice it to state that the Proceedings and decision of the Tribunal was tendered before the Lower Court. 5. Additionally, evidence was tendered that upon the delivery of the Decision by the District Land Disputes Tribunal, the Respondents’ Father was aggrieved and thus filed and an appeal before the Provincial Appeals Tribunal-Embu. For coherence, the filing of the appeal was duly conceded by the Respondents. 6. It is also instructive to underscore that the Appeal before the Provincial Appeal Tribunal was heard and determined. The Appeal was dismissed. The dismissal of the Appeal re-affirmed the position that the suit property belonged to the Estate of Mohamud Siba [now Deceased]. 7. Furthermore, evidence was tendered that upon the dismissal of the Appeal before the Provincial Appeals Tribunal, the Respondents’ Father was not satisfied and hence same filed another appeal before the High Court at Meru. However, the Appeal before the High Court was dismissed on account of abatement vide the order of the Court issued on the 20th day of May, 2021. 8. I wish to point out that the dismissal of the Appeal on account of abatement left the decision[s] of the District Land Disputes Tribunal; and the Provincial Appeals Tribunal, in situ. The position as pertains to ownership of the suit Land stood as it was decreed by the two bodies. 9. The foregoing evidence was duly placed before the Learned Trial Magistrate. However, the Learned Trial Magistrate swept the evidence aside by the stroke of a pen by contending that the decision[s] of the Tribunal[s] had not been adopted and thus same were not binding on the Court. 10. It is imperative to state and highlight that the proceedings and decisions of the Tribunal, were not placed before the Lower to bind the Lower on account of adoption. On the contrary, the proceedings; and decision[s], were placed before the Court to demonstrate that the dispute pertaining to ownership of the suit property, had been handled and determined by duly constituted Statutory bodies. 11. Additionally, the proceedings and the decision[s], constituted previous proceeding[s] before a judicial forum and thus the Lower court was obliged to take judicial notice of same. 12. **Section** **59 of the Evidence Act, Chapter 80 Laws of Kenya** are instructive. The sections state thus: ### **59. Facts judicially noticed.** **No fact of which the court shall take judicial notice need be proved.** 1. The proceeding[s] and the decisions of the Tribunal and the Provincial Appeals Board provided critical and cogent evidence showing the root of the Appellant’s claim of ownership. However, the Learned Trial magistrate failed to consider same. 2. I beg to state that by the stroke of a pen, the Learned Trial Magistrate effectively constituted himself as the High Court; and granted through the backdoor, the Orders that the Respondents’ had sought through the Appeal, namely; MERU HCCA NO. 76 of 2002. 3. The Learned Trial magistrate clearly misunderstood the Appellant’s case and thereby arrived at an erroneous conclusion. Suffice it to state that the Appellant tendered credible and plausible evidence to justify the root of her claim. In any event, the root of the Appellant’s title to the suit property had been vindicated by the duly constituted Statutory Bodies. The lack of adoption of the Decision[s] award of the Tribunal, did no take away the probative value[s] flowing therefrom. 4. I am convinced that the Appellant duly justified the root of her Title. The Appellant placed before the Court documents showing unbroken chain, showing the acquisition of the Suit property. The evidence was not rebutted. 5. In the case of **Presbyterian Foundation v Kibera Siranga Self Help Group NurserySchool[2023] KECA 371 (KLR**), the Court of Appeal illuminated the necessity to demonstrate the process birthing the title or entitlement to the land. The court highlighted the need to justify the root of the title. 6. The court stated thus: ***“The best evidence of ownership of immovable property is the title deed to it and that is why the question of the root of title is important. Root of title is the deed to which title to a property is ultimately traced to prove that the owner has good title. Accordingly, when there are competing interests as in this case, the parties are required to give evidence of title starting with a "good root of title." A good root of title and an unbroken chain of ownership is required. To be a good root of title, a document must satisfy each of the following requirements:*** ***(a) it must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question;*** ***(b) it must contain a recognizable description of the property;*** ***(c) it must not contain anything that casts any doubt on the title.*** 1. *In a nutshell*, my answer to issue number one [1] is two-fold. Firstly, the proceedings and decisions before the Land Disputes Tribunal and the Provincial Appeals Tribunal, were relevant and constituted credible evidence in an endeavour to discern the root of the Title in respect of the Suit Property. 2. Secondly, the Appellant indeed placed before the Court plausible evidence that anchor her claim of ownership of the Suit. The evidence by the Appellant was neither rebutted, nor impeached. 3. Next is the Issue as to whether the Learned Trial Magistrate, misapprehended the law and misapplied same in respect of the Dispute before him. It is important to underscore that the Respondents’ claim to and in respect of the Suit property was predicated on the Letter from the Town Administrator- Moyale Sub-County, which Letter indicated that the Suit Plot was registered in the name of Mohammed Siba [Now Deceased]. According to the Learned Trial Magistrate, the Letter in question sufficed to confirm and authenticate that the Suit Property Lawfully belonged to the Respondents’’ Father. 4. Even though the Learned Trial Magistrate believed and proceeded to act on the basis of the Letter and [sic] records available, but which records were not produced, the same failed to appreciate that the Respondents did not tender any primary document[s], to show how the impugned registration was undertaken. 5. Surely, the mere fact that the Respondents were able to procure the impugned Letter from the Town Administrator, by and of itself, does not speak to the record. If anything, the impugned Letter from the Town Administrator, may be equated [ I say, may be] with a Certificate of Title, which is an end product. 6. However, where the root of the registration of the Property is under challenge, the Title holder/ Document holder, cannot merely flung [dangle] the end document; and imagine that same shall suffice. Quite clearly, the Learned Trial Magistrate needed to interrogate the Letter further and to ascertain, how same came by. 7. Had the Learned Trial Magistrate heeded the ratio in the case of **Maina v Maina [2013] KECA 94 (KLR**) no doubt, same would have come to a contrary position. 8. The court of Appeal stated as hereunder: ***“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”*** 1. It is also instructive to reference the decision of the Supreme Court in **Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR), where the apex court reaffirmed the legal position thus:** ***“Further, we cannot, on the basis of indefeasibility of title, sanction irregularities and illegalities in the allocation of public land. It is not enough for a party to state that they have a lease or title to the property. In the case of***[***Funzi Development Ltd & others v County Council of Kwale***](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/882)***, Mombasa Civil Appeal No 252 of 2005 [2014] eKLR the Court of Appeal, which decision this court affirmed, stated that:“...a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of title sanction an illegality or gives its seal of approval to an illegal or irregularly obtained title.”*** 1. The court ventured forward and added thus: ***110.“Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.”*** 1. Moreover, it is important to highlight that the Learned Trial Magistrate also misapprehended the import and tenor of Section 7 of the Land Disputes Tribunal Act, 1990 [now repealed]. The said Section touched on and concerned the adoption of the award of the Tribunal for purposes of enforcement as a Judgment of the Court. However, in respect of the subject matter, the Appellant was not before the Court for adoption. Neither was she before the Court for [sic] enforcement of the awards. On the contrary, the Appellant was before the court seeking declaration of ownership of the Suit Land; and was using the Proceedings and award as part of the evidence before the Court. 2. To my mind, there is a distinction between enforcement of the award and deployment of the proceeding[s] and the award as evidence to prove a fact. The learned Trial Magistrate conflated the issue of enforcement of an award; and deployment of same, as evidence. Similarly, the Learned Trial Magistrate also misconstrued what constitutes probative value, to be attached to a document. 3. Flowing from the foregoing, it is my finding that the Learned Trial Magistrate misapprehended and misapplied the relevant Legal principles and the law; and thus same arrived at wrong conclusion[s] and findings. 4. Turning to the question of Fraud, I wish to state that the Law on fraud is now well settled. There are a plethora of decisions that have re-affirmed the established position that fraud must not only be pleaded, but must be particularised. In addition, once same has be pleaded and particularised, then the claimant must tender plausible evidence. 5. Furthermore, it is trite that the standard of proof is to the satisfaction of the Court. Put differently, the standard of proof is the intermediate standard, that is, the standard of proof between the balance of probabilities and beyond reasonable doubt. 6. The foregoing position was illuminated in the case of **Doshi v Chemutut & 7 others [2025] KECA 776 (KLR),** where the court of appeal reaffirmed the obtaining jurisprudence thus: **41.….“*In the often-cited decision of this Court in the case of Vijay Morjaria v Nansingh Madhusingh Dabar & Another [2000] eKLR, Tunoi, JA. stated that:“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. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”*** ***42.In the same vein, the Court in the case of Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR reiterated that:“It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo [2008] 1 KLR (G&F) 742 wherein the Court stated that:“...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...”*** 1. Did the Appellant prove fraud? The Appellant tendered evidence to show that the suit plot had been the subject of previous proceedings before the District Land Disputes Tribunal. Moreover, the Appellant produced the proceeding[s] as part of the Exhibits before the Court. 2. During the proceedings before the Provincial Appeal Board [Committee], the Respondents’ Father conceded that same had not been issued with a Letter of allotment by the County Council of Moyale. For brevity, it suffices to reproduce the evidence of the Respondents’ Father. The same stated thus: **Q. Do you have a letter showing that the County Council of Moyale allotted the plot to you?** **A. I do not have ant Letter from either District Commissioner or the County Council.** 1. The foregoing reproduction [excerpt] relates to the proceedings of the 29th day of May, 2002. The question that does arise is, How was it possible for [sic] the registration to be done in the name of Mohammed Siba [now Deceased in 1995? 2. Surely, the County Council of Moyale could not have undertaken the registration in the name of Mohammed Siba [ deceased], long before same could be issued with a Letter of allotment. What becomes apparent is to the effect that the rate-payment receipts and the Letter by the Town Administrator, were fraudulent. 3. What is Fraud? The answer to the question is derivable from the holding of court of appeal in the case of Arthi **Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR).** The court referenced black’s law dictionary and stated thus: “***Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional . As applied to contracts, it is the cause of an error bearing on a material part of the contract,created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another”.*** 1. I have said enough to show that the Learned Trial Magistrate equally misapprehended the evidence and particularly, the aspects underpinning fraud. Had the Learned Trial Magistrate reviewed the totality of the evidence, same would have arrived at the conclusion that fraud was duly proven. 2. Regarding the reliefs, I wish to state that the appellant herein sought numerous and diverse reliefs. The appellant sought a declaration that the suit property belongs to and constitute part of the estate of Mohamud Siba [deceased]. I have reviewed the totality of the evidence that was tendered before the trial court. I am convinced that the declaration is merited. 3. The Appellant also sought a declaration that the occupation of the suit property by the 1st, 2nd and 3rd respondents and the offensive activities thereon, constitute trespass. The fact the named respondents have been in occupation of the suit property is not in contest. The question is, whether the impugned occupation is lawful. 4. I have found and held that the suit property lawfully belongs to the estate of Mohamud Siba [deceased]. It then means that any third party, the named respondents not excepted, can only take possession or remain in possession of the suit property, with the consent of the owner or duly authorised agents. Where the actions are not sanctioned by the owner of the land or the authorized agents, the impugned actions constitute trespass. 5. In the case of **Church Commissioners for Kenya of the Anglican Church of Kenya v Wayuga [2024] KECA 1048 (KLR),** the court of appeal highlighted the elements that constitutes trespass thus: 6. “***Trespass is described under the***[***Trespass Act***](https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1048/aknkeact196248)***Cap 294 to mean “any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof”. On the other hand, a continuing trespass is defined in Jowitt’s Dictionary of English Law 2nd Edition (page or paragraph?) as follows:-“A continuing trespass is one which is permanent in its nature; as where a person builds on his own land so that part of the building overhangs his neighbor’s land”.In Black’s Law Dictionary 8th Edition (page or paragraph?), a continuing trespass is defined as:-“A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property.” Finally, in Clerk & Lindsel on Torts 16th Edition, paragraph 23 - 01, it is stated that:-“Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues.”*** 1. The court went further and stated as hereunder: ***“From the above definitions of the term “trespass” by the eminent learned authors, it is clear that any unauthorized entry whether present or continuous is trespass. In this case, it is indeed common ground that the appellant entered into and has remained in occupation of the suit property. The appellant’s continued occupation of the said property from the 1st date of entry in so far as it is unauthorized by the respondent amounts to trespass and remains as such to date. The respondent’s claim for trespass being a continued tort is, therefore, not time barred.”*** 1. Guided by the holding in the decision [*supra*], I encounter no difficulty in finding and holding that the occupation of the suit property by the 1st, 2nd and 3rd Respondents and the consequential activities thereon, constitute trespass. 2. Is the appellant entitled to general damages for trespass? It is settled law that trespass is actionable *per se*. To this end, the claimant only needs to prove the acts constituting trespass. Once trespass is proven, the court is obliged to offer compensation. 3. In the case of **Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] KECA 536 (KLR),** the Court of Appeal restated the position of the law thus: *The law is that trespass to land is actionable per se (without proof of any damage). In****Park Towers Ltd v John Mithamo Njika & 7 others******[2014] eKLR****it was stated:* ***“I agree with the learned Judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded damages. The court in such circumstances is under a duty to assess the damages*** ***awardable depending on the unique facts and circumstances of each case...”*** 1. Next is the quantum awardable on account of trespass. The trespass complained of has subsisted for an extended duration of time. The ascertainment of quantum of damages payable is dependent on the various factors. The factors include: The extent of the acreage trespassed onto; the duration of trespass; the nature of the activities complained of; the conduct of the trespassers; and diminution in the value of the land [if any]. 2. I have considered the various factors and I come to the conclusion that an award of Kshs. 3,000,000/= would suffice on account of general damages for trespass. I am alive to the fact that computation of damages for trespass is not a mathematical exercise, but same is an exercise of discretion. **Conclusion** 1. The Appellant had approached this Court seeking to impugn the Judgment of the trial Court. It was incumbent upon the Appellant to demonstrate the errors or infractions [if any] that were committed by the trial Court. 2. While addressing the thematic issue[s] highlighted in the body of the Judgment, I have isolated various aspects, where the Learned Trial Magistrate misapprehended the fact[s] and the Law. In particular, I have shown that the Learned Trial conflated probative value to be attached to evidentiary Exhibits; and enforcement under **Section 7 of the Land Disputes Tribunal Act, 1990 [now repealed].** 3. Similarly, the Learned Trial Magistrate treated a Letter produced by the Town Administrator, Moyale Sub- County, as water proof evidence of ownership, even though, no background documents, were tendered to show how the registration of the suit plot was undertaken. 4. Equally, I have pointed out that the Learned Trial Magistrate failed to review the totality of the Evidence on record and thus arrived at finding[s] and conclusions, which were perverse to the evidence on record. 5. It is common ground that this Court can only depart from the factual findings and conclusions of the trial Court, if and only if, certain parameters are met. The parameters are well explained in the case of **Mwanasokoni v Kenya Bus Services Ltd [1985] eKLR**. 6. To my mind, the Appellant has satisfied me that a proper basis exists, to warrant the interference with the impugned Judgment. I feel obligated to and do hereby impeach the Judgment. **Final orders** 1. Flowing from the foregoing analysis, the final orders that commend themselves to the Court are: 2. ***The Appeal be and is hereby Allowed.*** 3. ***The Judgment of the trial Magistrate dated 1st September, 2025 be and is hereby set aside.*** 4. ***In lieu thereof, Judgment be and is hereby entered in favour of the Appellant thus:*** 5. ***A declaration be and is hereby issued to the effect that the suit property, namely; Plot No. 2 – Manyatta Burji Location [LND 16/89 Vol VII/140 or similarly known as Plot number 165 – Moyale, belongs to and constitute part of the estate of Mohamud Siba [deceased].*** 6. ***The 4th Respondent [The County Government of Marsabit] be and is hereby directed to revoke and cancel the registration of plot number 165 – Moyale in the name of Mohamed Siba [deceased].*** 7. ***The 4th Respondent [The County Government of Marsabit] be and is hereby directed to register Plot Number 2 Manyatta Burji [Plot No. 165 – Moyale] in the name of Mohamud Siba [deceased].*** 8. ***The 1st, 2nd and 3rd Respondents be and are hereby directed to vacate and hand over vacant possession of the suit property within 90 days from the date hereof.*** 9. ***In default by the 1st , 2nd and 3rd Respondents to vacate the suit property in compliance with clause [d] above, the appellant herein shall proceed*** ***to levy eviction against the named Respondents.*** 10. ***To this end, an eviction and demolition order shall issue to the appellant’s nominated auctioneers.*** 11. ***In the event of the eviction being levied by the appellant, the costs and expenses arising therefrom shall be certified by the Deputy Registrar and same shall be recoverable as part of costs of the suit.*** 12. ***There be and is hereby issued an order of permanent injunction to restrain the 1st, 2nd and 3rd respondents from entering upon, remaining on, constructing upon or in any other manner interfering with the appellant’s quiet enjoyment and possession of the suit property.*** 13. ***The appellant be and is hereby awarded general damages in the sum of Kshs. 3,000,000/= only to be borne by the 1st, 2nd and 3rd Respondents.*** 14. ***The award on account of general damages in terms of clause [i] above shall accrue interest at court rates [14%] per annum from the date of the judgment until payment in full.*** 1. ***The prayer for Mense profits be and is hereby declined.*** 1. **Costs of the Appeal be and are hereby awarded to the Appellant.** 2. **The appellant shall also have costs of the suit in lower court.** 3. ***The costs in terms of clause [iv] and [v] shall be agreed upon and in default be taxed in the conventional manner.*** 87.It is so ordered. **DATED, SIGNED AND DELIVERED AT ISIOLO THIS 04TH DAY OF AUGUST, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo Ms. Akinyi holding brief for Mr. Yusuf for the Appellant Mr. Ibrahim for the 1st , 2nd and 3rd Respondents. N/a for the 4th Respondents.