Mwarome Jumbale & Others v Ahmed Mohammed Abdullahi

v. Eviction of the appellants from the suit property be done with the assistance of the OCS Kili Police Station; and vi. Costs of this suit and interest at Court rates. 2. The respondent’s case was that he was the registered proprietor of LR no 20252/12 situate in West of Kili Township measuring 0.3829 acres (the suit property); that, in or about the year 2015, he discovered that the appellants had encroached on the suit property and put up structures without his knowledge and or consent; that he was always desirous of developing the suit property; and that he, as a result of the appellants’ encroachment, suered loss and damage. 3. In their joint statement of defence dated 4th December 2017 and led on 6th December 2017, the appellants averred that the respondent’s title was not valid, having been acquired improperly and illegally; that they had been in actual, physical, continuous and uninterrupted occupation of the suit property for more than 21 years; that the respondent’s claim was misleading since some of the appellants sued in the suit had been sued in Malindi ELC Case No. 73 of 2015 by one Okomboli Ong’ong’a; that most of those sued were not in occupation of the suit property; that the suit was statutebarred; and that the orders sought could not issue since the respondent’s title was void ab initio. 4. Before the trial court, the respondent’s case was supported by the sole evidence of the respondent, who testied as PW1 and relied on his statement led on 5th October 2017. It was the respondent’s evidence that he was the registered owner of the suit property, and that the appellants had encroached thereon and constructed structures without his consent, approval or permission; that he had on numerous occasions requested the appellants to vacate the suit property, but that they ignored the requests and continued in their encroachment and trespass thereon; that he bought the suit property for Kshs 1 Million in July 2016 from one John Keen after following all due processes, after which he was issued with a title in his name although he did not have the agreement for sale with him in court; and that he discovered there were squatters on the land in 2016, the same year he bought the land. However, the respondent admitted that his title showed that the rst registration was done in 1997 and that the suit was led some 20 years later in the year 2017; that he had not lived on or occupied the land; and that he got the names of the appellants from their immediate neighbours and the area Chief. 5. The appellants relied on the evidence of the second appellant, Robert Gambo Bunju, who testied as DW1. According to him, the other 12 appellants were his relatives and neighbours, and that he had been verbally authorised by the them to testify on their behalf; that they did not know the respondent; that they had not invaded onto the respondent’s parcel of land; that they had also been sued in Malindi ELC 73 of 2015 by one Okomboli Ong’ong’a, who complained that they had trespassed onto the same property; that a number of the appellants, including himself had been charged with criminal cases for forcible detainer at the Kili Law Courts arising from a complaint led by the said Okomboli Ong’ong’a; that some of the appellants, such as the 3rd, 5th, 6th, 7th, 8th, 10th and 13th appellants did not reside on the suit property; that he had lived on the land for over 12 years; and that the suit ought to be dismissed since it was brought against wrong parties. 6. DW1 admitted that the other appellants had not led any statements in Court. He insisted that he did not live on the respondent’s land, and that the piece of land he was residing in was the one claimed by the said Okomboli Ong’ong’a in Malindi ELC Case No. 73 of 2015. 7. After considering the evidence before him, in his judgement dated 30th April 2021, the learned Judge noted that the respondent produced a copy of a Certicate of Title indicating that the parcel of land which previously belonged to an entity known as Coast Development Company Ltd was transferred to his name on 19th September 2016; that the Certicate of Postal Search dated 15th June 2017 produced https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1909/eng@2024-10-11 2

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by the respondent indicated that the suit property measuring 0.3029 Ha was registered in his name; that the appellants’ position was that only one of them resided on the suit property while the rest resided on a parcel of land claimed by one Okomboli Ong’ong’a in Malindi ELC Case No. 73 of 2015; that the appellants’ disclosed that a number of them had criminal cases pending against them in respect of the property they live on following a complaint led by the plainti in Malindi ELC Case No. 73 of 2015; that a perusal of the copy of the plaint produced by the appellants revealed that some seven individuals had been sued therein for an illegal encroachment on a parcel of land known as Plot No. 20252/13, title Number CR 30853; that the parcel of land in that case was clearly a dierent parcel of land from the suit property which was described as LR no 20252/12, or CR No. 30852; and that, in Malindi ELC Case No. 73 of 2015, the 7 defendants named therein were accused of trespassing on the stated property on or about 3rd April 2015 and proceeded to build temporary structures thereon. 8. The learned Judge found that the respondent was not estopped or barred from making a claim against the appellants merely on the existence of the claim in Malindi ELC Case No. 73 of 2015; that the parcel of land for which the seven appellants were sued in Malindi ELC Case No. 73 of 2015 appeared, from the numbering, to be a plot adjacent to or neighbouring the suit property; that, since the appellants did not avail a copy of the statement of defence led by the named defendants in Malindi ELC Case No. 73 of 2015, it was not possible for the court to determine whether or not they had admitted that claim; that, since from the evidence of DW1 that case was still pending, it was more probable than not that the claim had not been admitted; that the mere presence of a party in one parcel of land did not necessarily mean that that party was not in the next parcel of land; that the Survey Report dated 22nd August 2017 prepared by P.M. Karanja & Associates produced in evidence by the respondent indicated that, within the suit property, there were four semi-permanent structures with iron roofs and six mud-walled houses with makuti thatched houses; that both the respondent and the appellants conrmed that the respondent neither resided on the suit property nor had structures thereon; that the respondent testied that the suit property belonged to him, and that the houses were built by the appellants without his consent; and that the appellants did not produce in evidence any other Survey Report to show that their structures alleged to be on a dierent parcel of land did not encroach the respondent’s land. 9. It was the learned Judge’s nding that there was nothing to demonstrate that those in occupation of the suit property had been in actual physical occupation thereof for more than 21 years as stated in the appellants’ pleadings; that Robert Gambo, DW1, as the sole witness recanted that statement during cross- examination and told the Court, without any evidence, that he had only lived on the land for more than 12 years; that there was no consent or authority given by the other 12 appellants to DW1 to represent them in the proceedings, and it was apparent that their statement of defence was unsupported and remained a mere denial of the respondent’s claim; and that there was no evidence to support the appellants’ contention that the respondent’s title was not valid, or that the same was acquired improperly and illegally. 10. The learned Judge made reference to section 26 of the Land Registration Act (which he erroneously referred to as Registered Land Act) on the sanctity of title to immovable property and cited the case of Vijay Morjaria v Nansingh Madhusingh Darbar & Another (2000) eKLR in support of the proposition that fraud is a serious accusation which procedurally has to be pleaded and proved. It was noted that the appellants neither led a counterclaim challenging the respondent’s title nor adduced evidence, compelling or otherwise, in support of their claim that the respondent’s title was invalid or that the same was acquired unprocedurally or illegally. 11. The learned Judge cited section 27(a) of the Land Registration Act detailing the rights of a registered owner of land and found that the presence of the appellants in the suit property derogated from the https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1909/eng@2024-10-11 3

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respondent’s rights as the registered proprietor of the suit property and found the respondent’s case against the appellants merited. Judgement was thus entered for the respondent as prayed in the plaint together with the costs of the suit. 12. Dissatised with the said judgement, the appellants preferred this appeal on the grounds that the learned Judge erred in law and fact: by reaching a nding that the appellants were trespassers on the respondent’s suit property; when he failed to analyse the evidence adduced by the appellants regarding Kili Criminal Case No. 332 of 2016; by failing to reach a nding that the respondent’s title was not validly and regularly acquired; by reaching a nding that there were no grounds to support the claims that the respondent’s title was acquired unprocedurally; when he failed to nd that no judgement could be entered against the 11th appellant who was deceased as at the time of the hearing of the suit; and when he failed to consider the evidence adduced, the appellants’ arguments, submissions and authorities in arriving at his decision. 13. When the appeal was called out for hearing on the GoTo virtual platform on 7th May 2024, learned counsel, Mr. Nyange, appeared for the appellants while learned counsel, Mr. Gakuo appeared for the respondent. Save for a brief highlight, learned counsel relied entirely on their written submissions. 14. The appellants’ submissions were dated 20th April 2024, and were led by Ms. Nyange Sharia Advocate. In their submissions, the appellants cited: section 63 of the Evidence Act; Halsbury’s Laws of England Vol. 15 3rd Ed. page 263 and Mayers v Akira Ranch Limited [1974] EA 169, submitting that the respondent’s evidence regarding his source of the names of the appellants was hearsay evidence and ought to have been rejected; section 107(1) of the Evidence Act, highlighting the burden of proof; Munyu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR and Daudi Kiptugen v Commissioner of Lands & 4 Others [2015] eKLR, submitting that, when a registered proprietor’s root of title is under challenge, it is not sucient to dangle the instrument of title as proof of ownership and stressing on the necessity of interrogating the process of acquisition of title; and Geeta Bharat Shah & 4 Others v Omar Said Mwatayari & Another [2009] KLR for the proposition that judgement should not be sustained if entered against a dead person. 15. Ms. Mutugi Gakuo & Kibara Advocates for the respondent led written submissions dated 2nd May 2024 in which they relied on: Peters v Sunday Post Limited [1958] EA 424, highlighting the duty of the appellate court to review and re-assess evidence and draw own conclusions; and Jephther O. Opande v Mary Atemo Gathiriga [2019] eKLR on the proposition that fraud must be specically pleaded. 16. This being a rst appeal, this Court’s mandate was espoused in Ng’ati Farmers’ Co-Operative Society Ltd. v Ledidi & 15 Others [2009] KLR 331 as follows: “ An appeal to this Court from a trial by the High Court is by way of re-trial and the principles upon which this court acts in such an appeal are well settled. Briey put they are that, this Court must 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 witness and should make due allowance in that respect. In particular, this Court is not bound necessarily to follow the trial Judge’s ndings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1909/eng@2024-10-11 4

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17. This mandate was reiterated in the case of Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212 as follows: “ On a rst 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.” 18. We are, however, conscious as cautioned by the predecessor to this Court in Peters v Sunday Post Ltd [1958] EA 424 that: “ It is a strong thing for an appellate court to dier from the nding, on a question of fact, of the judge who tried the case and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court might itself have come to a dierent conclusion.” 19. According to the appellants, the court failed to make a nding that they were not in occupation of the suit property, and that the respondent did not call any evidence placing them on the suit property. It was noted that, in his evidence-in-chief, the respondent told the court that he did not reside on the suit property, and that the demand letter was addressed to a person other than the appellants; that the respondent admitted that the names of the appellants were supplied to him by the immediate neighbours and a retired area Chief, none of whom was called to testify; that the information allegedly received by the respondent from the said persons was inadmissible hearsay; that, in light of the foregoing, and since the respondent had never occupied the suit property, he was unable to tell who was in occupation or had trespassed on the suit property, and when; that the burden, which was on the respondent to demonstrate who the trespassers on the suit property were was not discharged by proof on a balance of probabilities; that, although the learned Judge found evidence of encroachment from the surveyor’s report, the report did not give the names of those in occupation as the appellants; and that the appellants’ evidence was that they occupied a separate and distinct land which was the subject of Malindi ELC No. 73 of 2015. 20. In response, the respondent submitted that the learned Judge correctly found that the appellants were trespassing on the suit property based on the Certicate of Title, Certicate of Ocial Search and the Survey Report that showed the boundaries of the suit property and revealed that there were four semipermanent structures on the suit property; and that the learned Judge correctly held that the appellants did not produce any survey report or other evidence showing that their structures were on a dierent parcel of land. 21. Section 3(1) of the Trespass Act provides that: “ 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 shall be guilty of an oence...” https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1909/eng@2024-10-11 5

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22. In the case of Muthiora v Marion Muthama Kiara (Suing on behalf of the Estate of Erastus Muthamia Kiara - Deceased) (Civil Appeal 43 of 2017) [2022] KECA 28 (KLR) it was held that: “ …any unauthorized entry whether present or continuous is trespass.” 23. It is clear that, for one to be liable in trespass, it has to be shown that he, without consent of the occupier, unlawfully entered onto the land belonging to the proprietor. The issue for determination is therefore whether evidence was adduced that placed the appellants on the suit property. In his evidence, the respondent was categorical that the structures on the suit property, which were conrmed by the survey report, belonged to the appellants. Whereas it is true that the respondent relied on the information received from other people to identify the trespassers, in their defence, the appellants took issue with the manner in which the respondent acquired the suit property. Although the appellants asserted that “in any event most defendants sued are not in occupation of the suit property”, it was nevertheless pleaded that “they have been in actual, physical, continuous, uninterrupted occupation of the suit property for more than 21 years”. This plea was admitted by DW1 in cross-examination. In light of the foregoing, it is clear that the appellants’ defence was an evasive defence. While challenging the respondent’s title for being improperly obtained, the appellants insisted that they were in occupation of the suit property lawfully having been in possession for more than 21 years. That was an express admission of occupation of the suit land. The subsequent pleading that “in any event” not all of them were in occupation did not help in clarifying the matter, but only made the defence vague. We associate ourselves with this Court’s holding in Choitram v Nazari Civil Appeal No. 8 of 1982 [1984] KLR 327.(1982-88) 1 KAR 437; [1976-1985] EA 53 that: “ Pleadings should not be a masterpiece of obscurity. They should be precise, models of clarity and simplicity of expression. The judge has to understand them in order to understand the case…An admission by necessary implication may also arise where a defendant denies an allegation in the plaint evasively.” 24. Considering the respondent’s clear evidence that the appellants were in occupation of the suit property, the appellants’ obscure defence, the fact that not all appellants testied and DW1 who testied had not obtained formal authority to testify on behalf of the other appellants contrary to Order 1 rule 13(2) of the Civil Procedure Rules, we cannot fault the learned Judge’s remarks that: “ Both the Plainti and the Defendants conrm that the Plainti neither resides on the suit property nor does he have structures thereon. The Plainti testied before this Court that the suit property belongs to him and that the houses were built by the Defendants without his consent. As it were, the Defendants did not produce in evidence any other Survey Report to show that their structures alleged to be on a dierent parcel of land did not encroach the Plainti’s land.” 25. The appellants submitted that the learned Judge did not make any nding regarding Kili Criminal Case No. 332 of 2016 in which the appellants were charged with oence of forcible detainer based on a complaint by one Okomboli Ong’ong’a. In the appellants’ view, the existence of the said criminal case is evidence that they were not on the respondent’s property. The respondent countered this submission by contending that the said criminal proceedings were irrelevant to the case before the trial court and that nothing in law precludes criminal and civil cases involving similar parties from running concurrently. 26. It is true that the record does not reveal that the learned Judge dealt with the bearing, if any, of the criminal proceedings to the civil matter before him. However, that does not necessarily mean that the https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1909/eng@2024-10-11 6

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decision must be upset. We appreciate the position of this Court in the case of Ng’ati Farmers’ Cooperative Society Ltd v Ledidi & 15 others [2009] KLR 331 that an appeal to this Court from a trial by the High Court is by way of re-trial and that, in that capacity, we must reconsider the evidence, evaluate it ourselves and draw our own conclusions while bear in mind that we neither saw nor heard the witness and to make due allowance in that respect. 27. In our view, the undetermined criminal proceedings could not be the basis for a nding that the appellants were not in occupation of the suit property. The appellants ought to have adduced evidence independent of the said criminal proceedings, showing that they were not on the suit property. Whereas the burden of proof was on the respondent to show that the appellants were trespassers, as the appellants were asserting that they were on a separate land, they had the evidential burden to prove that assertion since section 109 of the Evidence Act provides that: The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 28. In our view, the mere fact that a person is charged with trespassing on one property does not necessarily mean that the same person cannot trespass onto another. 29. In the appellants’ submissions, the validity or otherwise of the sale and transfer of the suit property to the respondent must be considered in light of the special conditions and the provisions under the Registration of Titles Act and the Government Lands Act particularly requiring that the consent of the Commissioner of Lands be obtained in such transactions. It was submitted that the learned Judge ought to have gone beyond the title document and investigated the root of the title. In response, the respondent submitted that the learned Judge reached a nding that the respondent’s title was valid and regular. 30. In his judgement, the learned Judge expressed himself on the issue as hereunder: “ 30. Indeed, while the Defendants boldly pleaded that the Plainti’s title was not valid and that the same was acquired improperly and illegally, they did not place anything before this Court in support of that contention. In this respect, Section 26 of the Registered Land Act provides as follows: 1. 2. The Certicate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certicate, and the title of that proprietor shall not be subject to challenge excepta. On the ground of fraud of misrepresentation to which the person is proved to be a party; or b. Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. ……… https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1909/eng@2024-10-11 7

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31. It is now well settled law that fraud is a serious accusation which procedurally has to be pleaded and proved. In this respect, I nd guidance in the words of Tunoi JA (as he then was) in Vijay Morjaria v Nansingh Madhusingh Darbar & another (2000) eKLR where the Learned Judge observed as follows:“ It is well established that fraud must be specically 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 distinctly proved, and it is not allowable to leave fraud to be inferred upon from the facts.’ 32. The Defendants before me have neither led a Counterclaim challenging the Plainti’s title nor have they brought any evidence compelling or otherwise in support of their claim that the Plainti’s title is invalid and or that the same was acquired unprocedurally or illegally. That being the case, I found no ground to fault the Plainti’s title. 33. In respect of the right of a registered owner of land, Section 27 (a) of the Registered Land Act provides thus: - 34. 31. a) The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto: - b) …… In the circumstances herein I am persuaded that the presence of the Defendants in the suit property derogates from the Plaintis rights as the registered proprietor of the suit property.” The question regarding the indefeasibility of title has now been well settled in this jurisdiction. This Court in Embakasi Properties Limited & Another v Commissioner of Lands & another [2019] eKLR, while appreciating section 26 of the Land Registration Act, held that: “ Although it has been held time without end that the certicate of title is: “… conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof,” it is equally true that ownership can only be challenged on the ground of fraud or misrepresentation to which the proprietor named is proved to be a party. See section 23 of the repealed Registration of Titles Act. Section 26 of the Land Registration Act, 2012 though not as emphatic as section 23 aforesaid on the conclusive nature of ownership, conrms that the certicate is prima facie evidence that the person named as proprietor is the absolute and indefeasible owner. It adds that apart from encumbrances, easements, restrictions to which the title is subject, there is no guarantee of the title if it is acquired by fraud or misrepresentation or where it has been acquired “illegally, unprocedurally or through a corrupt scheme.” https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1909/eng@2024-10-11 8

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32. In cases where the very process of acquisition of the land in question is under challenge, it is not enough to simply rely on the instrument of title. That is our understanding of this Court’s decision in Munyu Maina v Hiram Gathina Maina [2013] eKLR where it held that: “ …when a registered proprietor’s root of title is under challenge, it is not sucient to dangle the instrument of title as proof of ownership. It is this instrument that is under challenge and the registered proprietor must go beyond the instrument and prove 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.” 33. The foregoing decisions should not be understood to be watering down the importance of title to land. Neither is it the law that, once allegations are made, however spurious, the registered proprietor is thereby called upon to prove the root of title. To hold that would open oodgates to those referred to by this Court in Mirugi Kariuki v Attorney General [1990-1994] EA 156; [1992] KLR 8 as “busybodies, cranks and other mischief-makers” to conjure up fanciful allegations simply to vex those owning properties for their own amusement. Our view is that, where credible allegations are made and basis laid for believing that acquisition of property may not have followed proper channels, it is then that the registered proprietor is thereby called upon to adduce evidence showing the process through which that title was acquired. 34. In this case, apart from bare pleadings of impropriety, illegality and fraud, no evidence was led to support the allegations. In those circumstances, we nd that no occasion had arisen to justify the respondent delving into the root of his title. In our view, in the absence of a counterclaim, the respondent had no such responsibility as the suit was not one in which the title was under challenge, but one for trespass. 35. According to the appellants, no judgement could be entered against the 11th appellant, Elvis Deche, who was deceased. It was contended that the entry of judgement as prayed in the plaint was therefore erroneous as there was evidence of the said appellant’s death. The respondent’s position was that the appellants did not notify the trial court that any of the appellants was dead at the time of the hearing of the suit. In any event, it was submitted that such development would have had no substantial bearing on the eventual outcome of the case before the learned Judge. 36. We have considered the evidence on record and agree that the learned Judge’s attention was not drawn to the fact of the death of the 11th appellant. However, the record as put to us contains an illegible document that purports to be a copy of the death certicate. We can barely make out the name of the deceased while the date of death is indecipherable. Rule 13(2) of the Rules of this Court provides that: Each document prepared for use in the Court shall be clear and easily legible and may be produced by printing, photography, other appropriate technology or any combination of media but shall not be handwritten except for appellants acting in person in criminal appeals. 37. In those circumstances, we are unable to make any determination on that issue which, in any event, as the respondent has rightly pointed out, does not go to the substance of the trial court’s determination. 38. In the premises, we nd no merit in this appeal which we hereby dismiss with costs to the respondent. 39. We so order. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1909/eng@2024-10-11 9

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DATED AND DELIVERED AT MOMBASA THIS 11TH DAY OF OCTOBER, 2024. A. K. MURGOR ……………………………………………… JUDGE OF APPEAL DR. K. I. LAIBUTA CArb, FCIArb. ……………………………………………… JUDGE OF APPEAL G. V. ODUNGA ……………………………………………… JUDGE OF APPEAL I certify that this is the true copy of the original signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1909/eng@2024-10-11 10

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