https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3122

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **CIVIL APPEAL NO. E017 OF 2022** **WILDAD BARASA EMOMERI ……………………..…..……. APPELLANT** **= VERSUS =** **HENDRICA ATYANG EMURUDU ……………..….… 1ST RESPONDENT** **EMMANUEL EKAMRAN EMONGOR ………………. 2ND RESPONDENT** **JUDGMENT** ***(Being an Appeal from the Judgement of Hon Mrs Lucy Ambasi CM delivered on 6th December 2022 in Busia CMCC ELC No. E53 of 2020)*** 1. By a plaint dated 13th October 2020, the plaintiffs now respondents, instituted a suit in the lower court to wit Busia CMCC ELC Case No. E53 of 2020 seeking judgment against the defendant, now appellant, for: - 2. An order of removal of the restriction registered over the title to L. R No.South/Teso/Asinge/1719 by the defendant on 4th August 2020; 3. An eviction order against the defendant, his agents and/or servants from the suit property; 4. A permanent injunction restraining the defendant by himself, his family, agents and/or servants from entering, occupying, using, wasting and/or otherwise interfering or dealing with the suit property to the plaintiffs’ detriment; 5. Damages and mesne profits 6. Costs of the suit 7. Interest on (d) above. 8. As can be discerned from the averments/contentions in the plaint, the plaintiff’s case is premised on the grounds that all times material to the suit, the plaintiffs were the registered proprietors of the suit property; that on or about 4th August 2020, the defendant without any colour of right or lawful justification, registered a restriction against dealings on the suit property claiming a purchaser’s interest and forcefully invaded the suit property, took possession and cultivated it. 9. Terming the defendant’s actions complained of trespass to land, the plaintiffs contended that they had never had any transaction with the defendant over the suit property. 10. The plaintiffs lamented that the action of the defendant complained of had caused them loss and damage. 11. The defendant filed a statement of defence and counterclaim, dated 17th November 2020, in which he denied the allegations levelled against him and contended that the registration of the suit property was obtained as a result of map/mutation disorientation. 12. Explaining that the suit property was a result of subdivision of LR No South/Teso/Asinge/29, the defendant contended that he was entitled to the suit property while the plaintiffs were entitled to 1721. 13. The defendant further pleaded that he had been in peaceful use, possession and occupation of the suit property since 2011. 14. By way of counterclaim, the defendant sought judgment against the plaintiffs for: - 15. An order de-registering the plaintiffs as the proprietors of the suit property and registering him as the proprietor thereof. 16. An order directing the plaintiffs to sign all relevant transfer documents in favour of him to enable him obtain title deed for the suit property in default the executive officer to sign the same. 17. The plaintiffs filed a reply to defence and a defence to counterclaim in which they denied the defendant’s claim that he bought the suit property from Okiboko Nyamori or at all. The plaintiffs contended that Okiboko Nyamori who allegedly sold the suit land to the defendant, had never been registered as the owner of the suit property and could not confer title or interest in respect thereof to the defendant. 18. Terming the defendant’s counterclaim bad in law and claiming that the counterclaim does not disclose any course action against them, the plaintiffs urged the court to dismiss it with costs to them. 19. When the case came up for hearing, the 1st plaintiff, Hendrica Etyang Emurudu, relied on the plaintiffs’ joint statement dated 13th October 2020, after it was adopted as her evidence in chief. She reiterated her claim that they did not sell the suit property to the defendant who was in occupation thereof. She produced the title deed and green card in respect of the suit property as Pexbt 1 and 2 respectively. 20. In cross examination, PW1 stated that the land is hers, that it was her husband’s land and that she did a succession case. PW1 acknowledged that the mother title for the suit property was South/Teso/Asinge/29 and that it was in the name of her husband’s father, Ilukor. 21. PW1 also acknowledged that the original parcel of land was subdivided by the administrator of the Estate of Ilukor, Okiboko Nyamori, and that numerous titles emerged in respect of the subdivision. However, she could not tell whether the sub-divisions that resulted therefrom were South/Teso/ Asinge/1699-1728. 1. PW1 acknowledged that the defendant farms in South/Teso/Asinge /1719 but stated that he has not built on the land. She however, contradicted herself by stating as follows: - **“The defendant is my neighbor and has a home and has planted trees and has lived there for some time”.** 1. On how she got registered as the proprietor of the suit property, PW1 stated that Ekiboko signed transfer documents for her. She denied having used fraud to cause transfer of the suit property to herself. 2. In re-examination, PW1 stated as follows: - **“Okiboko is the brother to my late husband and South/Teso/Asinge/29 was their father’s land. Defendant is not a relative. When South/Teso/Asinge/29 was sub-divided I was given 2 titles for South/Teso/Asinge/1719 and South/Teso/Asinge/1721. I use South/Teso/Asinge/1721. The defendant uses South/Teso/Asinge/1719 which I used to use. I never sold him the land. I did not cheat Okiboko. We never had a dispute. South/Teso/Asinge/1719 and South/Teso/Asinge /1721 are both mine”.** 1. The defendant who testified as DW1, informed the court that he has interest in South/Teso/Asinge/1719; that South/Teso/Asinge /1719 is a subdivision of South/Teso/Asinge/29; that he bought it from Moses Ekamuruon and that he settled in the suit property in 2011 and even buried his sister therein. He produced an official search in respect of South/Teso/Asinge/29, mutation, title for South/Teso/Asinge/1719, green card in respect of South/Teso/Asinge/1719, official search in respect of South/Teso/Asinge/1721, chief’s letter and sale agreement as Dexbt 1 to 7 respectively. 2. In cross examination DW1 stated as follows: - **“29 Was owned by Okiloko Nyamori. Dexbt 7-Sale 25/4/2011 from Moses, who was selling me part of South/Teso/Asinge/29. Moses bought the title from one of the widows of Ilukor, Josphine Adhiambo. We went to the land control board. I don’t have a consent. Succession had not been done. Moses was never a registered owner. Moses bought in 2001. He did not show me a land control board consent. The boundary was there when I bought but mutation was done in 2013.…. I am not a member of the family of Nyamori. I don’t know the arrangement the family had to distribute the land. I cultivate the land. My sister was buried thereon on 1/8/2020 and the plaintiff was the registered owner. Plaintiff was registered on 6/7/2020. I did not seek her permission to bury my sister there. I know Moses was using the land.”** 1. In re-examination DW1 stated as follows: - **“What I was buying from Moses was identified on the ground. Dexbt 2-Mutation shows receipt number and payment on 24/5/2013. I did not consult Hendrika plaintiff before burying and she never objected to the burial. Okiboko did not sign the documents in my favour. Moses sold his interest in South/Teso/Asinge South/Teso/Asinge/29 to me. Okiboko has not disputed my claim nor any other issue.”** 1. DW2 Okiboko Nyamori informed the court that he was the registered proprietor of South/Teso/Asinge/29; that the land belonged to his father and he subdivided it to settle people who all took their parcels; that he gave the defendant his share. His wife the 1st plaintiff, did not get two shares as she was only to get one share. 2. DW2’s evidence is to the effect that the suit property belongs to the defendant and that the 1st plaintiff misled him into signing transfer documents in her favour. 3. In cross examination DW2 stated as follows: - **“…. No. South/Teso/Asinge/29 was divided into 4 portions and the defendant was not to get a share. …the family agreed on every one’s share and the acreage was agreed at 2 acres. It was not in writing. It was 20 years ago…the 1st plaintiff got 2 acres…. Defendant bought the land long time ago, 20 years and it had been subdivided…I did not sign for the defendant any documents. I have not sued the 1st plaintiff for misleading to sign South/Teso/Asinge/1719. I did not take the defendant to the land control board. 1st plaintiff had South/Teso/Asinge /1719 as her part. She has the title. It is what her husband was entitled to.”** 1. In re-examination DW2 stated as follows: - **“South/Teso/Asinge/29 from my father was subdivided just once. Copy of Dexbt 2 - the mutation that created the subsequent numbers and each person was to get one portion. Defendant has always stayed on the same parcel of land and he has a house there. There were no other people who were to get land. There are so many people who bought land and I only sold to Wildad”.** 1. DW3 Moses Ekamuran Emuse, informed the court that he bought land from one Josephine Mukulo Adhiambo measuring 1½ in 2001; that they did not go to the land control board for consent and that he has no title deed for the land he bought. In 2010, he sold the entire land to the defendant. He was to give the defendant title but he did not do so. 2. At close of hearing parties filed submissions. 3. Upon considering the case urged before her, the learned trial magistrate entered judgment in favour of the plaintiffs in the following terms: - **“…This is a clear case of dispossession of land where a person, the defendant, comes and drives another, the plaintiffs out of her land. It is tantamount to ouster as the defendants actions are intend on driving them out of possession against the will of the plaintiffs who are in actual possession. It has the element of force or fraud aimed at dispossessing the plaintiffs…the defendants alleged fraud without setting out specific particulars of the same and also failed to lead evidence in support of the same…. In the circumstances, I hereby enter judgment in favour of the plaintiff against the defendants for: -** 1. **An eviction order against the defendant, his agents and/or servants from all that parcel of land known as LR No….1719;** 2. **….** 3. **General damages for trespass in Kshs. 50,000/-** 4. **Costs of this suit and interest at court rates.** **The defendant’s counterclaim is hereby struck out.”** 1. Dissatisfied with the decision of the learned trial magistrate, the defendant appealed to this court on the grounds that the learned trial magistrate erred both in law and fact by: - 2. Holding that the plaintiffs had proved their case to the required standard in the absence of sufficient evidence to support such a finding; 3. Finding that the plaintiff had proved the fact of trespass against the defendant in the absence of any evidence to support such a finding; 4. Disregarding the defendant’s evidence in support of his counterclaim when there was overwhelming evidence to find in favour of the defendant; 5. Disregarding the evidence of the defendant to the effect that the defendant enjoyed overriding rights and interests over the suit parcel and erroneously proceeded to dismiss the defendant’s counterclaim; 6. Basing her decision on facts that were never pleaded and/or proved by way of evidence. 7. The defendant/appellant prays for the following orders: - 8. That the appeal be allowed, the judgment of the trial court be set aside and/or varied and the claim in Busia CMC ELC No. E53 of 2020 be dismissed. 9. That the appellant be granted costs of the appeal and costs in Busia CMC ELC No. E53 of 2020. 10. The appeal was disposed of by way of written submissions. 11. In his submissions dated 9th February 2026, The appellant submits as follows: - **“…. the learned trial magistrate erred in law and fact in holding that the plaintiffs proved their case on a balance of probabilities.** **Sections 107, 108 and 109 of the Evidence Act (Cap 80) are explicit that the burden of proof rests upon the party who alleges.** **Although the plaintiff produced a certificate of title, the root of title was directly challenged by the appellant through credible evidence of subdivision errors, misallocation, misleading execution of transfer documents and long prior occupation by the appellant.** **Once title was challenged, the plaintiffs were required to go beyond mere production of the title deed demonstrate the legality of its acquisition. The court in Munyu Maina v Hiram Gathiha Maina (2013) e KLR firmly held:-** **‘When registered proprietor’s root of title is under challenge, it is not sufficient to dangle the certificate of title as proof of ownership’.** **…the Court of Appeal affirmed this position in Attorney General v Torino Enterprises Ltd (2022) KECA 78 (KLR) stating that title is not immune to challenge where acquisition is disputed and in this case, the title was not protected. The trial court therefore misdirected itself by treating title as conclusive contrary to settled authority as stated above.”** 1. The appellant further submits that the learned trial magistrate erred in finding that trespass had been proved. In that regard, the appellant submits as follows: - **“Trespass is defined as unlawful entry upon land in possession of another. Possession, not registration alone, is the operative concept.** **The evidence on record was uncontested that:** 1. **The appellant had been in open and continuous occupation since 2011;** 2. **Permanent developments existed on the land;** 3. **A burial took place on the land without objection.”** **A person in actual, peaceful possession cannot be a trespasser. In Wambugu v. Njuguna (1983) KLR 172 the Court held possession is a matter of fact to be determined from the circumstances of occupation. The Court further held in Public Trustee v Wanduru 1984 (KLR) 314 that the proper inquiry is not who holds title but who is in possession. The trial court ignored these principles and wrongly branded the appellant a trespasser despite overwhelming evidence of long occupation.”** 1. The appellant further submits that the learned trial magistrate disregarded consistent and corroborated defence evidence from the appellant (DW1), the original proprietor (DW2) and the first purchaser (DW3). Based on the decision in the case of **Peter v Sunday Post Ltd (1958) EA 424**, the appellant submits that where a trial court fails to consider material evidence, an appellate court is entitled to interfere. The appellant has also made reliance on the case of **Abok James Odera t/a A.J Odera & associates v John Patrick Machira (2013) e KLR** where the Court of Appeal held that ignoring relevant evidence amounts to an error of law. 2. In the instant case, it is the appellant’s case that the learned trial magistrate ignored evidence that each beneficiary was entitled to only one parcel of land, admissions that the respondents already occupied parcel number 1721 and evidence of misrepresentation during execution of transfer documents. Arising from the foregoing, the appellant submits that rejection of his counterclaim was not based on evidence but on misdirection. 3. As to whether the learned trial magistrate failed to recognize overriding and equitable interests in the land the appellant submits as follows: - **“Section 28(b) of the Land Registration Act, 2012 expressly recognizes overriding interests including rights of persons in actual occupation. The appellant’s occupation was long standing, visible, uninterrupted and acknowledged by the respondents. Based on the decisions in Macharia Mwangi Maina & 84 others v Davidson Mwangi Kagiri (2014) eKLR and Samuel Kamere v Land Registrar, Kajiado (2023) e KLR, the appellant asserts that the learned trial magistrate erred in dismissing his counterclaim without addressing those statutory and jurisprudential protections.”** 1. As to whether the learned trial magistrate relied on un pleaded and unproven matters, the appellant submits/addresses the court as follows: - **“…the judgment introduced concepts of force, ouster and violent dispossession yet none… were pleaded or proved.** **Parties are bound by their pleadings and courts may not determine issues outside them. In that regard, reference to IEBC v Stephen Mule & 3 others (2014) e KLR where the Court of Appeal held:** ***‘A court of law cannot pronounce judgment on issues not pleaded or which do not arise from the pleadings.’ By grounding its decision on extraneous matters, the trial court occasioned a miscarriage of justice.”*** 1. In conclusion, the appellant asserts that the plaintiffs did not prove trespass; that he had overriding equitable interests in the suit property; that the counterclaim was wrongly dismissed and that the judgment was against the weight of evidence and binding appellate authority. The appellant urges this court to interfere with the decision of the learned trial magistrate by allowing the appeal in its entirety, setting aside the judgment and decree delivered on 6th June 2022; dismissing the plaintiff’s suit in Busia ELC No. E53 of 2020; entering judgment for him as prayed in the counterclaim and awarding him the costs of the suit in the lower court and the costs of the appeal. 2. On their part, the respondents, through their submissions dated 24th February 2026, have submitted as follows: - 3. The appellant simply isolated 5 propositions of law and threw them at the court without linking them to the pleadings and evidence before the trial court; 4. This court has jurisdiction to re-evaluate, re-assess and re-consider evidence received by the trial court and come up with its own conclusion; 5. It is not in dispute that the respondents are the registered proprietors of the suit land; 6. The evidence of DW2 clearly shows that the respondents were the legitimate owners of the suit land; 7. DW1 stated that the suit property was the respondents’ part as that is what her deceased husband was entitled to. 8. No evidence was led to show that the portion allegedly sold to the appellant was the suit land. The sale agreement relied on by the appellant shows that the land that was sold was parcel No. 29 and not the suit land; sale was subject to grant of consent of the land control board and that if DW3 does not transfer the land to the buyer, the buyer would be entitled to refund of the purchase price. 9. That the appellant’s counterclaim was barred by limitation; 10. That the agreements relied on in support of the appellant’s case were nullities because the consent of the land control board was not obtained in respect thereof. 11. The agreement had an inbuilt remedy, refund of purchase price which remedy the appellant ought to have pursued. 12. DW2 who was allegedly misled into signing transfer forms in favour of the respondents has never taken out any proceedings against the respondents to recover the land; 13. The evidence by the respondents by far outweighed that of the appellant; 14. The only person who could sustain a case for misrepresentation is PW2 and not the appellant. 15. The appellant was a trespasser on the suit land in so far as he entered, was and remained on the land without the consent of the respondents. 16. Alleged permanent developments was not proved; 17. Alleged burial only made trespass continuous. 18. Once it was established that the respondents were the lawful owners of the land, the inevitable conclusion was that the appellant was a trespasser; 19. Allegation that the court disregarded the evidence of DW1, DW2 and DW3 is unsubstantiated; 20. The evidence by DW1 lacked probative value with regard to the suit land because he was not a member of the respondents’ family; 21. DW3’s evidence only went to show that he received money from the appellant purporting to sell him land but he never owned the land he was selling. 22. The allegation that each beneficiary was entitled to only one parcel was not substantiated; 23. Prayers in the counterclaim were not backed by any pleadings. 24. The only issue raised in the defence and counterclaim was map/mutation disorientation in respect of which no evidence was led capable of proving it. 25. The appellant’s occupation of the suit land amounted to trespass to land hence cannot form a basis for claiming that the court failed to consider the appellant’s overriding interest in it. 26. The appellant had no privity of contract with the respondents. 27. That the claim of overriding interest in land can only arise where the claimant’s interest in the land is based on customary trust. 28. The appellant was not a relative of the respondents to warrant the claim that he had an overriding interest in the suit land. 29. It is the appellant as opposed to the respondents, who raised and sought to rely on un pleaded issues like the alleged fraud in transfer of the suit land to the respondents and the alleged overriding interest. 30. Neither PW3 nor the person who sold the suit land to him, Josphine Adhiambo, had capacity to deal with the land. 31. The dealing with the land by PW3 and Josphine Adhiambo amounted to intermeddling with the estate of a deceased person. 32. The court cannot allow the appellant gain interest in the suit land from a process that was out rightly criminal. 33. The appeal lacks merit and as such ought to be dismissed with costs. 34. In exercise of the duty vested in this court as a first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard see **Selle & Another vs. Associated Motor Boat Co. Ltd (1968) E.A 123** and **Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR** and **Kiruga vs. Kiruga & Another (1988) KLR 348**. 35. Whilst the respondents in their pleadings claimed that the appellant entered the suit property in August 2020 or thereabout, the evidence adduced before the lower court and which evidence was not controverted by the respondents, is that the appellant was in use and occupation of the suit property long before the time he allegedly trespassed into the suit property. 36. The evidence adduced in the lower court further shows that the appellant’s use and occupation of the suit property was on account of a sale agreement executed between him and the beneficial owners of the portion he bought. Whereas the evidence adduced suggests that at the time the appellant gained his interest in the suit property the suit property comprised part of the Estate of a deceased person which had not been administered, I note that the respondents did not base their claim on the alleged want of capacity of the persons who sold the suit property to appellant but alleged trespass which occurred in August 2020 which fact was not proven. 37. The totality of the evidence adduced in the case before the lower court comprised in the conduct of the parties to the dispute, particularly the respondents who despite being aware of the activities of the appellant and/or his predecessor in entitlement to the suit property (DW3), negates a finding that the respondents were the rightful owners of the suit land. 38. The person who caused the suit property to be transferred to the respondent led evidence to the effect that he was misled to transfer the property to the respondents and that according to their family arrangement, each family member was entitled to only one portion of land measuring 2 acres. Based on that evidence and the conduct of the respondents of failing to take action on the appellant or even raise a complaint against him when he began using the land and even burying his relative therein, I have no basis for disbelieving the evidence of DW2 to the effect that the 1st respondent misled him into signing transfer documents in respect of the suit property in her favour. 39. Although there are issues of law raised in the respondents’ pleading touching on the capacity of the person who sold the suit land to the appellant to sell the suit property to him, I reiterate my determination that in the circumstances of this case, where the respondents had not based their case on the alleged lack of capacity by the persons who sold the land to the appellant or the appellant’s predecessor in claim to the suit property, the respondents could not rely on the alleged want of capacity or alleged intermeddling with the estate of a deceased person to defeat the appellant’s interest in the suit land. 40. It is also noteworthy that at the time the suit property was handed over to the appellant by the persons who had beneficial interest in it, the respondents had not gained any proprietary interest in it on which their claim for trespass against the appellant could hinge. It is the considered view of this Court that the only person who could sustain a claim against the interest of the appellant in the suit property is DW2, in his capacity as Administrator of the Estate of his deceased father. I say so because, at the time the appellant got his interest in the suit land, the suit land belonged to the Estate of his father. DW2, who is the representative of the Estate of his father comprised in the suit property, led evidence to the effect that the suit property belongs to the appellant and that he was misled by the 1st respondent to sign transfer documents in her favour. 41. In view of the foregoing, I find and hold that the respondents did not prove their pleaded case against the appellant, which is that the appellant was a trespasser to the suit parcel having forcefully entered into it in August, 2020. Conversely, the appellant proved that his entry into the suit property was on account of a sale agreement, which agreement despite having been entered into with persons who had no capacity to deal with the suit property, was acknowledge by the administrator of the Estate, DW2. 42. The upshot of the foregoing is that I find the appeal to be merited and l allow it as prayed in the Memorandum of appeal. That is to say; I allow the appeal, set aside the judgment of the trial court in Busia CMC ELC No. E53 of 2020 and substitute it with a judgment dismissing the respondents’ case with costs to the appellant and allowing the appellant’s counterclaim. I also award the costs of the counterclaim and the appeal to the appellant. 43. Orders accordingly. **Judgement, dated, signed and delivered at Busia this 18th day of May, 2026.** **L. N. WAITHAKA** **JUDGE** **In the presence of:-** Ms. Omollo for the Appellant. Mr. Omondi for the Respondent Court Assistant: Tracy