https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4661

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KABARNET** **ELCLA NO. EO12 OF 2024** **JULIUS SONGOL ..…………………...…… 1ST APPELLANT/APPLICANT** **KIPRUTO SONGOL …………………..…… 2ND APPELLANT/APPLICANT** **VERSUS** **ZAKARIA YATOR KIPKEBUT .……..………………...…… RESPONDENT** **JUDGMENT** **(Being an appeal from the Judgment of HON. P. KOSKEY (SENIOR PRINCIPAL MAGISTRATE) in KABARNET SENIOR PRINCIPAL MAGISTRATE’S COURT ELC CASE NO. 26 OF 2018 as consolidated with ELC CASE NO. 9 OF 2017)** 1. **JULIUS SONGOL** and **KIPRUTO SONGOL** (the 1st and 2nd Appellants respectively) have moved to this court to appeal the Judgment of **HON. PURITY KOSKEY (SPM)** delivered on 5th September 2024 in the above consolidated suits. The record however shows that the 1st Appellant was the sole plaintiff when the original suit was filed at **ELDORET ELC** as **E & L CASE NO. 27 OF 2016** against **ZAKARIA YATOR KIPKEBUT** the Respondent in this appeal. 2. The 1st Appellant’s case against the Respondent was that he was the registered proprietor of the land parcel **NO. BARINGO /KAPCHOMUSWO ‘A’/147** (the suit land) following the completion of the Land Adjudication process on 28th June 1988. However, the Respondent lodged an objection to the 1st Appellant’s title in 1990 long after the 60 days provided for in the law and the minister allowed the appeal. The 1st Appellant being dissatisfied with the Minister’s decision lodged a Judicial Review Application No. 93 of 2010 and obtained orders against the registration of the Respondent as the proprietor of the suit land. Despite the subsistence of the said orders, the Respondent was registered as the proprietor of the suit land and the 1st Appellant’s title thereto was cancelled. 3. The 1st Appellant filed a suit in subordinate court claiming that the process leading to the cancellation of his title was flawed, irregular and illegal and that the Respondent had already commenced proceedings in **KABARNET CIVIL SUIT NO. 37 OF 2011** seeking to evict him. 4. The 1st Appellant sought Judgment against the Respondent in the following terms: 5. **A declaration that the 1st Appellant in the absolute owner of the whole of the parcel of land known as BARINGO/KAPCHOMUSWO ‘A’/147.** 6. **A declaration that the proceedings in objection No. 229 of 1990, Appeal No. 74 of 1994 and the actions of the Land Registrar in cancelling the 1st Appellant’s title are illegal, irregular, null and void.** 7. **An order directing the Land Registrar Kabarnet to cancel the registration of the Respondent as the owner of the land parcel NO. BARINGO/KAPCHOMUSWO ‘A’/147 and in it’s place substitution of the 1st Appellant thereof.** 8. **A permanent injunction restraining the Respondent from trespassing or in any other manner interfering with the 1st Appellant’s possession, occupation and use of the land parcel NO. BARINGO/KAPCHOMUSWO ‘A’/147.** 9. **Costs of the suit.** 10. The Respondent filed a defence denying all the averments of the 1st Appellant and adding that the adjudication process ended on 28th June 1988 and the Minister’s appeal was dismissed on 4th June 2014. That the 1st Appellant’s Judicial Review Application was also dismissed and his title was never cancelled. He pleaded therefore that the 1st Appellant’s suit was res judicata having been dismissed in Judicial Review Application No. 93 of 2010 at **NAKURU HIGH COURT**. The suit should therefore be dismissed with costs. 11. On the other hand, the Respondent filed at **KABARNET PRINCIPAL MAGISTRATE’S COURT CIVIL CASE NO. 37 OF 2011** (Later **ELC CASE NO. 9 OF 2017**) against the two Appellants seeking orders that they had encroached onto the suit land which is registered in his name and of which he is in occupation. He sought Judgment against them in the following terms: 12. **A declaration that the Appellants have encroached onto the land parcel NO. BARINGO/KAPCHOMUSO ‘A’/147 and an order of eviction do issue to remove the Appellants together with all their developments in terms of structures from the encroached portions of the Respondent parcel NO. BARINGO /KAPCHOMUSO ‘A’/147 within 21 days from the date of the Decree.** 13. **A perpetual injunction restraining the Appellants from encroaching onto the Respondent’s parcel NO. BARINGO/KAPCHOMUSO ‘A’/147 or any portion thereof.** 14. **Costs of the suit.** 15. In their defence to that claim, the Appellants pleaded that they had appealed against the Minister’s decision vide **NAKURU HIGH COURT JUDICIAL REVIEW APPLICATION NO. 75 OF 1994** and the Minister’s decision had been stayed. 16. The Appellants pleaded further that despite being served with the order of stay, the Respondent fraudulently transferred the suit land to himself by deceiving the Land Registrar. The Respondent’s suit was therefore an abuse of the court process in view of Judicial Review Application NO. 93 of 2010 and the Jurisdiction of the trial Court would be challenged. 17. The Appellants also counter-claimed that the Respondent had entered the suit land, cut down trees and destroyed the Appellants’ developments for which they sought damages. 18. The consolidated suit was heard by several magistrates before ending up with **HON. P. KOSGEY** **(Senior Principal Magistrate)** on 6th June 2024 who heard it to completion and delivered the impugned Judgment on 5th September 2024. 19. In her disposal orders, the trial Magistrate dismissed the Appellants’ claim in **KABARNET ELC CASE NO. 26 OF 2018** as well as their counter claim in **KABARNET ELC CASE NO. 9 OF 2017.** She entered Judgment for the Respondent as prayed in **KABARNET ELC CASE NO. 9 OF 2017**. 20. Aggrieved by that Judgment, the Appellants filed this appeal on 2nd October 2024 seeing to have the same varied, reviewed and or set aside. The following eight (8) grounds of appeal have been proffered: 21. **The trial magistrate erred in law and in fact in making a determination in favour of the Respondent herein essentially conferring legal interests on the basis of a decree arising from an appeal to the Minister that was null and void.** 22. **The trial magistrate erred in fact and in law in relying on extraneous issues to arrive at her decision.** 23. **The trial Magistrate erred in law and in fact in making a finding that the Respondent herein had proved his case on a balance of probability on the basis of a land claim that had no foundation in law.** 24. **The trial magistrate erred in law and in fact in making a determination and finding granting prayers that had neither been pleaded nor proved by the Respondent herein by way of evidence in his testimony in court.** 25. **The trial magistrate fundamentally erred in law and in fact in determining the matter and essentially making a decree conferring legal rights to the Respondent herein that were contrary to the provision of the Land Adjudication Act Cap 287 Laws of Kenya.** 26. **The trial magistrate erred in law and in fact in conferring upon the Respondent herein legal interests and rights over the suit land that lacked any legal foundation.** 27. **The trial magistrate erred in fact and in law in failing to objectively and conclusively determine all and or each issue placed and/or pleaded before her in her determination of the dispute between the parties in the proceedings giving rise to this appeal.** 28. **The trial magistrate’s finding and Judgment were thus factually unsound and legally unsustainable.** 29. The Appellants therefore seek the following orders: - 30. **That the Judgment based on the award in the Appeal to the Minister in Appeal No. 74 of 1994 is null and void ab initio.** 31. **An order upholding the Appellant’s claim to the suit land based on the award and the orders of dismissal of the Respondent’s objection to the District Land Adjudication and Settlement Officer BARINGO CENTRAL given on 19th April 1990 in objection cause No. 229 of 1990.** 32. **An order setting aside the Judgment requiring the Appellant to deliver vacant possession of the land parcel No. BARINGO/KAPCHOMUSO ‘A’/147.** 33. **The Respondent do bear the costs of this appeal.** 34. The court did direct that the appeal be canvassed by way of written submissions. However, only **MR. KIBET** instructed by the firm of **MIRUGI & COMPANY ADVOCATES** for the Appellant filed his submissions. The Respondent who is acting in person did not file his submissions even after time was extended. 35. I have considered the record, the appeal and the submissions by counsel. 36. I must start by stating that although the memorandum of appeal states that this appeal is against the Judgment delivered in **KABARNET ELC CASE NO. 26 OF 2018** on 5th September 2024, the fact is that the said Judgment was in respect of the consolidated suits being **KABARNET ELC CASE NO. 26 PF 2018 and KABARNET ELC CASE NO. 9 OF 2017**. That is clear from the heading at the impugned Judgment and which is what I have referred to in this Judgment. 37. This being a first appeal, I shall be guided by the principles set at in the case of **OKENO V R 1972 EA 32** where the then East African Court of Appeal set out the duty of an Appellate Court on a first appal and said; “**An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala Vs. R. 1957 EA. 570. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see PETERS V. SUNDAY POST 1958 E A 424.”** 1. See also the case of **SELLE AND ANOTHER V. ASSOCIATED MOTOR BOAT COMPANY LTD & OTHERS 1968 E. A 123** as well as **MWANASOKONI V. KENYA BUS SERVICES LTD 1985 KLR 931 (1985 eKLR).** 2. In the case of **ABOK JAMES ODERA t/a A. J. ODERA & ASSOCIATES V. JOHN PATRICK MACHIRA & COMPANY ADVOCATES C.A CIVIL APPEAL NO. 161 OF 1999 [2013 eKLR],** the court of Appeal similarly captured the duty of a first appellate court in the following words. **“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate 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. The court then went on to cite the following passage from the case of **KENYA PORTS AUTHORITY V. KUSTON (KENYA) LTD 2009 2 E. A 212:** “**On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence."** 1. I shall be guided by those precedents and others in determining this appeal. 2. Grounds No. 1, 5 and 6 can be considered together. Therein, the trial magistrate is faulted to have erred in law and in fact by relying on a decree arising from his Minister’s Appeal which was null and void ab initio and conferring rights on the Respondent contrary to the provisions of the Land Adjudication Act and which lacked any legal foundation. 3. As is already now clear both from the record and the submissions by Counsel for the Appellants, the genesis of this dispute started in 1975 when the suit land was declared an adjudication section. The 1st Appellant was recorded as the rightful owner of the suit land which he had purchased in the early 1970’s. His ownership was confirmed even after objection proceedings were filed in case **No. 311 of 1990** by one **JOHN K. KANDAGOR**. The Respondent herein who was not a party to the proceedings surfaced over 4 years later, filed an appeal which was heard by a District Commissioner who was not even gazetted and the process culminated in the 1st Appellant being stripped of his ownership of the suit land whose title was issued to the Respondent. Armed with the title to the suit land, the Respondent has sought the eviction of the Appellants from the suit land by filing **KABARNET ELC CASE NO. 26 OF 2018**. He has also subdivided the suit land to create land parcels **No. 3718** and **3719**. Counsel for the Appellants has submitted that all this was done despite subsisting Judicial Review orders prohibiting the registration of the suit land in the name of the Respondent. The thrust of the Appellants’ appeal is that the objection proceedings could only have been properly lodged within 60 days of the completion of the adjudication register and the appeal should equally have been within the statutory time lines. 4. This is how the Appellants’ counsel has submitted at page 3 of his submissions; “ **Your Lordship, the Respondnet’s claim to land parcel NO. BARINGO/KAPCHOMUSO ‘A’/147 rests precariously upon a decree at the Minister’s Appeal No. 75 of 1995. That decree however, was born of illegality and nurtured in procedural impropriety. The Land Adjudication Act Cap 284 is clear, objections must be lodged within sixty (60) days at the notice of completion of the adjudication register, and appeals to the Minister must follow within the statutory timelines. The Respondent’s Appeal No. 75 of 1994 to objection No. 311 of 1990 were both lodged long after the statutory window had closed”** 1. There is no doubt that the exposition of the law by the Appellants’ counsel is correct up to the point. **Section 29(1) of the Land Adjudication Act** provides that:- 2. “**Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by-** 3. **delivering to the Minister an appeal in writing specifying the grounds of appeal; and** 4. **sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final”. Emphasis mine.** 5. Clearly, the Appeal to the Minister was lodged out of time and the resultant decree was illegal, null and void. The 1st Appellant was alive to this illegality and he did the right thing by filing at the **HIGH COURT NAKURU, JUDICIAL REVIEW APPLICATION NO. 93 OF 2010** seeking all those orders which led to the Minister’s Appeal which had confirmed the Respondent as the proprietor of the suit land. That application was dated 8th October 2010 and was placed before **JUSTICE ANYARA EMUKULE** on 11th October 2010 who granted leave to the 1st Appellant to institute Judicial Review Application for an order to remove to the court for questioning the proceedings and Judgment of the District Commissioner Baringo and the Appeal to the Minister. An order of prohibition was also issued directing the Land Adjudication Officer Baringo from amending the Land Adjudication Records in respect of the suit land as well as the District Land Registrar Baringo from cancelling the 1st Appellant’s registration as proprietor of the suit land. The leave was also to operate as a stay of execution and restrained the Respondent from entering the suit land pursuant to that Judgment. The 1st Appellant was directed to institute the Judicial Review Application within twenty one (21) days. 6. Unfortunately, however, inspite of having been granted leave and even an order of stay of execution of the Judgment and decree of the minister, the 1st Appellant did not file the substantive Judicial Review Application as directed. And on 4th June 2014, the matter came up again before the same Judge who dismissed the application. The Coram and orders made on that day are as follows: **“ 4.6.2014** **Before: HON. ANYARA EMUKULE JUDGE** **Emmanuel: Court Clerk** **N/A for applicant** **N/A for respondent** **Court: Suit dismissed in terms of Order 12 rule 2 of the Civil Procedure Rules 2010.** **ANYARA EMUKULE** **JUDGE** **4/6/2010”** The date 4/6/2010 at the bottom of the proceedings must be a typographical error. The correct date is 4/6/2014 appearing at the top of the proceedings. 1. The 1st Appellant having failed to prosecute his Judicial Review Application some four (4) years after leave had been granted, it was obvious that the decision of the Appeals Minister and all that had transpired before in relation to the suit land remained in force and has to be effected. The registration of the Respondent as the proprietor of the suit land remained un-disturbed. 2. The trial magistrate was alive to all the above and there was nothing which she could have done in the circumstances other than to uphold the Respondent’s title to the suit land and grant him the prayers which he sought in his claim. 3. The trial magistrate addressed these issues in paragraphs 24 to 29 of the impugned Judgment as follows:- **24:** **“I find that ownership regarding the suit parcel of land formerly known as 147 was determined by a quasi-judicial body as provided under Section 29(3) of the Land Adjudication Act. It has not been denied that the dispute was between the same parties or between parties under whom they or any of them claim and litigating under the same title”.** **25: “ I find that delving into the ownership of the suit land will amount to res judicata.”** **26: “In the case of Robert Kulinga Nyamu C Musembi Mutungo & Another 2022 eKLR, it was held that Section 29 of the Land Adjudication Act that the Minister’s decision is final is couched in mandatory terms. If the legislature meant to give the right to a party to re-litigate a dispute which had been heard through the entire dispute resolution process provided under the Land Adjudication Act, nothing would have been easier than to state so clearly”.** **27: “The decision of the Minister dated 13/7/2010 therefore shall stand. The same matter cannot be re-litigated in the ELC Court”.** **28: “I consequently find that the prayers sought by Julius Songol and Kipruto Songol in Kabarnet ELC Case 26 of 2018 and their counter claim in ELC 9 of 2017 have not been proved and the same is dismissed with costs to Zachariah Yator Kipkebut”.** **29: “Judgment is consequently entered for the Plaintiff (Zachariah Yator Kipkebut) in the following terms as prayed in Elc 9 of 2017.”** 1. The trial Magistrate than proceeded to grant the Respondent the orders as sought in **KABARNET ELC CASE NO. 9 OF 2017.** 2. It must be clear by now that the legality or otherwise of the decision of the Minister on Appeal was not an issue for consideration by the trial magistrate in the consolidated suits. Indeed the trial magistrate would not have had any jurisdiction to venture into that discussion and she correctly steered away from it. The decision of the Minister on Appeal was binding on her. Whether the said decision was null and void ab initio or lacked legal foundation as it was contrary to the provisions of the Land Adjudication Act was a matter to be litigated in the Judicial Review Application but which was dismissed for want of prosecution. 3. Grounds No. 1, 5 and 6 of the Memorandum of appeal have no basis. They are hereby dismissed. 4. In grounds No. 2, 3 and 7, the trial Magistrate is assailed for arriving at a decision by relying on extraneous issues, making a finding that had no foundation in law and in failing to objectively and conclusively determine every issue which had been placed before her. In supporting those grounds, counsel for the Appellants has made the following strong submissions at page 5 and 6: **“ Your Lordship, the Respondent’s testimony itself was riddled with contradictions. He alleged encroachment by the Appellants yet admitted that they had erected homes and kiosks on the land decades earlier. He relied on the Minister’s Appeal lodged out of time yet failed to prove how he was lawfully enjoined when he was not a party in Objection No. 229 of 1990”.** Counsel added further that; “ **Your Lordship, the Land Adjudication Act is not a mere procedural guide. It is the statutory compass that ensures fairness, certainty and finality in the delicate process of land allocation. It provides strict timelines for objections and appeals and it prescribes the jurisdictional boundaries within which Adjudication Officers and the Minister must act. The Trial Magistrate, however, disregarded this statutory framework and thereby conferred rights upon the Respondent that were not only unsupported by the evidence and the law but directly contrary to the Act itself”** 1. Again, counsel for the Appellants has made very strong submissions. However, those submissions could only have been useful to the Appellants’ case if made in the Judicial Review Application **No. 93 of 2010** at the High Court in Nakuru. They could not aid the Appellants’ case in the trial court and neither can they assist him in this appeal. By the time the Trial Magistrate was determining the consolidated suits, the Respondent already had the title to the suit land issued way back on 26th May 2011 and the 1st Appellant had missed an opportunity to challenge it when he did not prosecute his Judicial Review Application **No. 93 of 2010** at the High Court in Nakuru. It was too late for the Trial magistrate to interrogate the validity or otherwise of the 1st Appellants’ title to the suit land. And neither can this court purport to do so in this appeal. 2. Grounds No. 2, 3 and 7 are also dismissed for want of merit. 3. Finally, in grounds No. 4 and 8, the Trial Magistrate is alleged to have erred both in law and in fact by granting prayers that had neither been pleaded nor proved by the Respondent and making a finding that was unsound and legally unsustainable. 4. In his plaint filed in **KABARNET PRINCIPAL MAGISTRATE’S COURT CIVIL CASE NO. 37 OF 2011 (Later ELC CASE NO. 9 OF 2017),** the Respondent had sought Judgment against the Appellants in the following terms in paragraph 11 (a), (b) and (c): 5. “**A declaration that the defendants have encroached into the Plaintiff’s parcel number BARINGO/ KAPCHOMUSO ‘A’/147 and an order of eviction do issue to remove the defendants together with all their developments in terms of structures from the encroached portions of the Plaintiff’s parcel number BARINGO/KAPCHOMUSO ‘A’/147 within 21 days from the date of service of the Decree”.** 6. **“A perpetual injunction restraining the defendants from encroaching onto the Plaintiff’s parcel number BARINGO/KAPCHOMUSO ‘A’/147 or any other portion thereof”.** 7. **“ Costs of this suit”.** 8. Counsel for the Appellants has made the following submission at page 4 with regard to those grounds: “ **My Lord, the Learned Trial Magistrate descended into error by granting reliefs that were neither pleaded nor proved and by relying on matters extraneous to the pleadings and the evidence before her. The Respondent’s case was anchored on a title deed procured from an irregular Appeal to the Minister.** **Additionally, the Trial Magistrate went further in granting eviction orders that were not supported by cogent evidence, thereby stretching the Respondent’s claim beyond its pleaded boundaries. Courts are creatures of law, bound to adjudicate only on what is pleaded and proved. To stray beyond that is to substitute judicial discretion for advocacy effectively denying the Appellants’ the fairness of a trial conducted within the four corners of the pleadings”.** 1. Counsel then cites the case of **IEBC V. STEPHEN MUTINDA MULE & OTHERS 2014 eKLR** and also the case of **GALAXY PAINTS CO. LTD V. FALCON GUARDS LTD 2000 eKLR** where the court of Appeal stated that parties are bound by their pleadings and the court cannot grant reliefs which have not been sought and further, that courts have no jurisdiction to make findings on matters not raised by the parties. Counsel goes on to make the following submissions at page 5: “**By granting eviction orders and treating the Respondent’s title as un-impeachable without interrogating its foundation, the Trial Magistrate acted outside the pleadings and evidence. Your Lordship, the Respondent’s testimony itself was riddled with contradictions. He alleged encroachment by the Appellants yet admitted that they had erected homes and kiosks on the land decades earlier. He relied on the Minister’s Appeal lodged out of time, yet failed to prove how he was lawfully enjoined when he was not a party in Objection No. 229 of 1990”** 1. The Trial Magistrate entered judgment for the Respondent against the Appellants in the following terms as per paragraph 29 of the impugned judgment: 2. “**A declaration that the Plaintiff Zacharia Yator Kipkebut is the rightful owner of the suit land formerly known as Baringo/Kapchomuswo ‘A’/147.** 3. **A declaration that the defendants (Julius Songol and Kipruto Songol) have encroached into the Plaintiff’s land formerly known as Baringo/Kapchomuso ‘A’/147”.** 4. **“An order of eviction do issue to remove the defendants together with all their developments in terms of structures from the encroached portions of the Plaintiff’s parcel of land formerly known as Baringo/Kapchomuso ‘A’/147 (the suit land) within 90 days. Time will start running when the decree is served upon them”.** 5. **“A permanent injunction is hereby issued restraining the defendants from encroaching onto the Plaintiff’s parcel of land formerly known as Baringo/Kapchomuso ‘A’/147”.** 6. **Costs of the suit is awarded to the Plaintiff Zachariah Yator Kipkebut against the defendants jointly and severally.”** 7. A perusal of the Respondent’s plaint filed in **KABARNET ELC CASE NO. 9 OF 2017** (Formerly **KABARNET CIVIL SUIT NO. 37 OF 2011**) read together with the disposal orders issued by the Trial Magistrate shows that the only remedy which had not been specifically pleaded by the Respondent and which the Trial Magistrate issued is prayer No. (a) which is the declaration that the Respondent is the rightful owner of the suit land. It is therefore correct that the Trial Magistrate erred in law and in fact in granting an order which was not sought by the Respondent. 8. Having said so, the orders declaring the Respondent as the owner of the suit land was really superfluous. That issue had already come to a close following the decision in the Minister’s appeal vide the order of 25th November 1999 and which had not been set aside. It did not call for further determination by the Trial Magistrate. Indeed in paragraph 25 of the impugned Judgment, if I may repeat, the Trial Magistrate has addressed herself as follows: **25: “I find that delving again into the ownership of the** **suit land will amount to res judicata”.** 1. The Trial Magistrate therefore gave that issue a wide berth, and rightly so in her judgment. Yet she proceeded to make the order of declaration in paragraph 29 (a) of the impugned judgment to the effect that the Respondent is the rightful owner of the suit land. That was not necessary. Nonetheless, no prejudice has been caused to the Appellant because that issue had long been settled following the Minister’s Appeal. Nothing therefore turns on that in this appeal because the Appellants were not denied any benefit in the suit land which they already enjoyed and neither was the Respondent awarded any benefit which he did not already enjoy. 2. The Appellants’ Counsel ends his submissions at page 9 as follows: “**The law must not be twisted into an accomplice of fraud contrary to the provision of Article 40 of the Constitution which protects rights that does not sanctify titles obtained through illegality. As the Court of Appeal held in Arthi Highway Developers Ltd V. West End Butchery Ltd & others 2015 eKLR, fraudulent titles cannot be allowed to dispossess rightful owners. The soil that the Appellants have nurtured since 1975 should not be lost to a decree that was void from its inception”.** 1. And after citing the orders sought in this appeal, Counsel ends his submissions thus; “ **In granting these prayers, this Honourable Court will not only restore the Appellants to their rightful land but also re-affirm the principle that Justice must never be sacrificed at the other of illegality.”** 1. This court must reiterate that the Trial Magistrate was not considering an appeal from the decision of the Minister and which, by law, was final. The impact of Article 40 of the Constitution as relates to the Respondent’s title to her suit land was not therefore an issue within her domain. The opportunity to do so was lost when Judicial Review Application No. 93 of 2010 was dismissed on 4th June 2014 at the High Court in Nakuru. 2. Ultimately therefore and having considered this appeal, I make the following disposal orders; 3. **The appeal is devoid of merit and is hereby dismissed.** 4. **Costs to the Respondent both here and in the court below.** **BOAZ N. OLAO** **JUDGE** **21ST JULY, 2026** **Judgment dated, signed and delivered by way of electronic mail on this 21st day of July 2026. Right of appeal.** **BOAZ N. OLAO** **JUDGE** **21ST JULY, 2026**