Kitivi & another v Musyoki & another (Environment and Land Appeal E019 of 2021) [2024] KEELC 5269 (KLR)

The court applied Section 26 of the Land Registration Act, holding that a certificate of title is prima facie evidence of absolute ownership challengeable only on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corruption. The appellants instead alleged co-allotment by Katelembo, on which they adduced no evidence, while a Katelembo director testified the property was allocated solely to Joseph Mbondo. The trial court's finding that the plaintiffs proved their case was therefore correct.

Section 28 enumerates specific overriding interests, including trusts including customary trusts. The appellants raised overriding interest as a distinct ground from customary trust without specifying which interest applied. Since nothing was pleaded, the trial court was entitled to disregard it. Parties are bound by their pleadings, and the second ground of appeal accordingly failed for want of particularization.

The defence pleaded only that the appellants' mother co-owned the suit property with the respondents' father as co-allottees of Katelembo; customary trust appeared only in submissions. Relying on Daniel Toroitich Arap Moi v. Mwangi Stephen Muriithi, the court held that submissions cannot take the place of evidence. The trial court rightly noted the variance between pleadings and submissions, so the third ground failed.

The appellate court reviewed the trial judgment and found that the magistrate gave a summary of each witness's evidence, the pleadings and submissions, interrogated the evidence, and made clear findings on ownership. Absent specificity from the appellants about what was omitted, the first ground of appeal failed for lack of justification.