Janet Nafula Ruto v Joseph Maritim & 2 others [2019] KEELC 3816 (KLR)

The court held the dispute concerned land and whether the appellant encroached on an access road serving Plots 132 and 133. Section 3(1) of the Land Disputes Tribunals Act could not apply to registered land, and Section 21 RLA barring boundary proceedings did not apply since the question was whether a road of access existed. The appellant produced no evidence of a legally amended map closing the road. Further, jurisdiction should have been raised by preliminary objection at first instance, not at submissions stage.

The appellant relied only on cross-examination of PW2 regarding possible amendments to the RIM but did not produce her own evidence showing the map had been amended. Amendments to the RIM are lodged at ground level, not only at Survey Headquarters. The court applied the principle that he who alleges must prove, citing Sections 107 and 108 of the Evidence Act as discussed in Peter Kanithi Kimunya v Aden Guyo Haro, and found the trial court could not have arrived at a different decision.

The appellant argued under Order 21 rule 4 of the Civil Procedure Rules and Sections 27, 28 and 37 of the RLA that her absolute title should have been upheld and that fraud particulars were required under Order 2 rule 10. The court accepted the magistrate misframed the issues but held the error was not fatal because the real issue was the existence of the access road, and Plot 408 purportedly blocked access to the respondents' plots.