Jacob Kiti Mbura & 2 Others v Hadija Betunga Bemwamba & Another

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Bemwamba and Stephen Munga Nzaka, as the plaintiffs, against the appellants herein, the District Lands Registrar, Kilifi, the Chief Lands Registrar and the Attorney General as the defendants in that suit. The claim was over a property known as Plot No. Kilifi/Kijipwa/245 (the suit property). 2. The suit was initially filed by Cosmas Nzaka Ndegwa (the deceased), who subsequently passed away on 16 th October 2017 and, the respondents, who were the deceased widow and son respectively, and the legal representatives of his estate, took it over. By their plaint dated 15 th November 2016 as amended on 15th February 2019, the respondents sought judgment against the six (6) defendants jointly and severally for: (a) A finding that the respondents are the lawful and/or legal owners of the suit premises being Plot No. Kilifi/Kijipwa/245 measuring approximately 0.996 Ha as the Legal Representatives of the Estate of the late Cosmas Nzaka Ndegwa (Deceased); (b) A nullification and/or revocation of the Title Deed for Plot No. Kilifi/Kijipwa/245 measuring approximately 0.0996 Ha and subsequently the same be registered in the names of the respondents and a Title Deed issued accordingly; and (c) Costs of this suit. MLD Civil Appeal E035 of 2021 Page 2 of 32

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3. It was the respondents’ position that their family had been in occupation of the suit property since 1984; that, sometime in 1990, the area was declared an adjudication section and the Ministry of Lands thereafter proceeded to allocate the same to the residents on the basis of occupation and/or possession; that while the parcel of land they occupied was adjudicated and declared to be Plot No. Kilifi/Kijipwa/245, the same was mistakenly and erroneously allocated to one Mbura Kufuja Munyu (now deceased), and thereafter to the appellants; and that the respondents only came to learn of the position in January 2016 but that, when they approached the appellants to negotiate and agree on the way forward, the appellants threatened to evict the them from the suit property. 4. In their joint statement of defence and counterclaim dated and filed on 10th February 2017, the appellants denied that the respondents had been in occupation of the suit property since 1984; and/or that the same was wrongly adjudicated to their father during the land adjudication exercise. They maintained MLD Civil Appeal E035 of 2021 Page 3 of 32

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that they are the registered owners entitled to the exclusive possession of the suit property which measures 2.5 acres following its transfer to their names on 13th January 2016 after due succession from their father, the original allotee; that the suit property was properly allocated and charged to the Settlement Fund Trustees (SFT) on 17 th July 1985; that their father duly paid the requisite loans, charges and fees due to the SFT, but that he died on 14 th June 1991 before the title could be discharged and registered in his name; that the appellants were, after succession, registered as the owners of the property; that the respondents were at one time tenants in a building owned by the 2 nd appellant adjacent to the suit property; and that, in 2007, the respondents trespassed onto the suit property and subsequently commenced construction of a dwelling house thereon without the appellants’ permission . 5. It was further pleaded that the respondents had wrongfully been holding themselves out as the true owners of the suit property and that, on 25th February 2016, they caused a restriction to be registered against the title at the Kilifi Land MLD Civil Appeal E035 of 2021 Page 4 of 32

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Registry forbidding any dealing or transaction therewith without their permission; and that the respondents were excavating building stones from the property without the appellants’ permission as a result of which the appellants suffered loss and damage. 6. By way of their counterclaim, the appellants prayed for judgment against the respondents for: (a) An order of vacant possession of the suit property being all that parcel of land situated at Msumarini Village within Kilifi County in the Republic of Kenya containing by measurement 2.5 acres or thereabouts and known as Title No. Kilifi/Kijipwa/245, the demolition of the respondents’ houses on the said suit property and the eviction of the (respondents) from the suit property. (b) An order directing the Land Registrar Kilifi Land Registry to remove the restriction registered against Title No. Kilifi/Kijipwa/245 on 25th February 2016 as Entry No. 6; (c) Costs of this suit and interest thereon at court rates; and (d) Any other relief that this Honourable Court may deem just to grant. 7. It was revealed in the course of the proceedings that the deceased had, prior to the institution of the suit the subject MLD Civil Appeal E035 of 2021 Page 5 of 32

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of MLD Civil Appeal E035 of 2021 Page 6 of 32

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this appeal, also filed an Originating Summons being ELC Case No. 132 of 2016 (OS) on 31st May 2016 against the appellants seeking a declaration that he had acquired the suit property by virtue of adverse possession. However, that suit was withdrawn a week before the present suit was filed on 10th November 2016. 8. Subsequently, and by their plaint dated and filed herein on 5th January 2017, the appellants filed Malindi ELC Case No. 2 of 2017 against the deceased seeking virtually similar orders as set out in their counterclaim together with a prayer for an order of injunction restraining the respondents from continuing to remain in the suit property, selling, charging or in any manner dealing therewith. The suit the subject of this appeal, ELC No. 311 of 2016, was consolidated with the said ELC No. 2 of 2017 on 10th July 2019 by consent of the parties with ELC No. 311 of 2016 as the lead file. 9. At the trial, the respondents called one witness in support of their case. PW1- Hadija Betinga Bemwamba, the 1st respondent and the wife to the deceased testified that she has lived on the suit property since 1986 when she got MLD Civil Appeal E035 of 2021 Page 7 of 32

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married to the deceased. MLD Civil Appeal E035 of 2021 Page 8 of 32

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Adopting the deceased’s statement filed on 15th November 2016, PW1 told the Court that the deceased moved onto the parcel of land in 1984; that, as at the time they established a home on the suit property, it had neither been adjudicated nor demarcated; that, unknown to the deceased, the entire Kijipwa Area was declared an adjudication section around 1990; that their parcel of land was then adjudicated and designated as Plot No. Kilifi/Kijipwa/245 measuring approximately 0.0996 Ha; that it was erroneously allocated to Mbura Kufuja Munyu before being transferred to the appellants; that, upon discovering the erroneous allocation in 2016, they sought help from the National Land Commission but that, by then, the appellants had already been issued with a title deed; and that the appellants are their immediate neighbours, and that she had buried her daughter, Beatrice and the deceased, on the land on 21st June 2015 and 24th October 2017 respectively without any protest from the appellants. 10. On cross-examination, PW1 denied that they lived on a parcel of land owned by the 2nd appellant upon her marriage in 1986. MLD Civil Appeal E035 of 2021 Page 9 of 32

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She told the court that Kijipwa Settlement Scheme was initially private land, and that everyone who lived thereon before the Scheme was a squatter who were each allocated 2.5 acres; that they were on the land when surveyors arrived there, and that her husband was allocated the land; that she had nothing to show that her husband was allocated the land or that he made any payments to the authorities thereafter; and that they had lived well until November 2015 when the appellants who lived on a different parcel of land being Plot No. 277 started claiming the land. 11. PW1 further told the court that her husband placed a restriction on the land on 24th February 2016; that, in 1999, they had installed piped water and electricity on the land, although she had not carried any documents in regard to those installations to court; and that the officers at the Land Registrar’s office had given the title for the suit property to the wrong person and urged the Court to restore their title. 12. The appellants also called one witness in support of their case. DW1, Jacob Kiti Ngura Mbura, the 1st appellant and a brother MLD Civil Appeal E035 of 2021 Page 10 of 32

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to the 2nd and 3rd appellants, testified that, together with his brothers, they were now the registered proprietors of the suit property following its transfer to them from their father’s name on 13th January 2016; that the suit property had been allocated to their father, and that it was charged to the Settlement Fund Trustees (SFT) on 17 th July 1985; that their father had paid all the loans, charges and requisite fees due to the Settlement Funds Trustee, but died on 14 th June 1991 before the title was discharged and registered in his name; that their father had planted coconut and mango trees on the land after being allocated the same; that the respondents’ family were at some point tenants in a building owned by the 2nd appellant, and which was on a parcel of land adjacent to the suit property; that, in 2007, the respondents trespassed into the suit property and commenced construction of a dwelling house thereon without the appellants’ permission; that the respondents had been holding themselves out as the owners of the suit property and that, on 26th February 2016, they caused to be registered a restriction against the title to the suit property forbidding MLD Civil Appeal E035 of 2021 Page 11 of 32

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registration of any dealings therewith; that they had also been excavating building stones from the land without the appellants’ permission; and that, as a result, the appellants had suffered loss and damage. They urged that the respondents be evicted from the land. 13. On cross-examination, DW1 testified that the deceased went to the suit property in 2007 and that he first rented the 2nd appellant’s house; that he had nothing to show that the deceased was paying rent to the 2 nd appellant; that it was true that there were people who had died and were buried on the land without any objection from them since they were initially unaware that the said Plot No. 245 belonged to them; that they only came to know this when they brought a surveyor to the land; that, all along, they resided in Plot No. 277; and that he was unaware of mistakes or errors in the Plot Numbers since he was living in Kwale at the time of the land adjudication exercise in 1994. MLD Civil Appeal E035 of 2021 Page 12 of 32

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14. The 4th, 5th and 6th defendants in the court below did not call any evidence despite having filed a statement of defence on 7th July 2017. 15. At the conclusion of the hearing, the learned Judge found that the property in dispute resulted from the establishment by the Government sometimes in the 1990s of what came to be known as Kijipwa Settlement Scheme within Kilifi County; that none of the parties called as a witness the Land Adjudication and Settlement Officer, and no records were provided from that office as to when and how land adjudication was done in the area; that it was curious that, while the appellants contended that the respondents trespassed onto what they considered their property in the year 2007, they seemingly took no action to evict them and continued to let the respondents enjoy the use and occupation of the said land peacefully until the year 2016 when they started calling for their eviction; that the three appellants did not give any basis for their claim to the land prior to the period of the adjudication process; that their claim to the land appeared to have started when the property was charged MLD Civil Appeal E035 of 2021 Page 13 of 32

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to the Settlement Fund Trustees; and that, whereas the appellants told the court that the charge was registered on 17th July 1985, there was no document making reference to their father as regards the disputed property until the year 1988. 16. The learned Judge further found that, by a letter dated 11th July 1988, the then Senior Land Adjudication and Settlement Officer, Nicholas Richa, invited the appellants’ father to call on his office to sign his land documents and to take with him Kshs 26 as payment for stamp/legal fees; that the call was apparently heeded a few months later and, on 7 th November 1988, the Settlement Fund Trustees offered the land to Mr. Mbura and asked him to take possession within six months, and to fulfil certain conditions associated with the charge; that, a year before his death, the SFT demanded, by a letter dated 9th August 1989, loan arrears in the sum of Kshs 217 from Mr. Mbura; that, by 30th September 1997, some seven years after his death, those arrears stood at Kshs 1810; and that, on 30th November 2015, the property was then transferred to the MLD Civil Appeal E035 of 2021 Page 14 of 32

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appellants before they were issued with a title on 13 th January 2016. 17. According to the learned Judge, the fact that the appellants who were living on Plot No. 277 had not known that the suit property also belonged to them till after they brought in a surveyor to the land, lent credence to the respondents’ claim that they had all along lived on the land with the appellants as their neighbours, and that the appellants only thought of evicting them upon learning in 2016, from the respondents themselves, that the property was registered in the name of their father. It was the learned Judge’s finding that, this being a Settlement Scheme where each squatter had been given land on the basis of what they occupied, it was unclear how the appellants’ father came to be registered as the owner of both Plot No. 245 and 277 within the Kijipwa Settlement Scheme. The learned Judge noted that, from a Ground Status Report dated 11 th June 2018 prepared by the National Land Commission following a complaint by the respondents, the Commission’s observation reflected the true position of how the MLD Civil Appeal E035 of 2021 Page 15 of 32

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appellants came to be registered as the proprietors of the suit property, which was due to an error or mistake that was not supported by the facts on the ground. The learned Judge found that, under section 26(1) of the Land Registration Act, a title deed can be challenged on the grounds that it was procured by fraud or misrepresentation to which the person is proved to be a party, or where it has been acquired illegally or unprocedurally; that from the material placed before him, the appellants were clearly residing in plot No. 277, and that there was no basis upon which they made payments to the Settlement Funds Trustees for the suit property, which they knew was occupied by the respondents; and that such payments could only be construed to have been aimed at misrepresenting the facts as to the person who was entitled to the suit property; that, in the premises, there was merit in the respondents’ suit which he allowed as prayed and dismissed the counterclaim by the appellants. He directed each party to bear their own costs. 18. Dissatisfied with that decision, the appellants preferred this appeal grounded on the fact that the learned Judge erred in MLD Civil Appeal E035 of 2021 Page 16 of 32

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law MLD Civil Appeal E035 of 2021 Page 17 of 32

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and in fact: by failing to analyse and appreciate the evidence on record, particularly with regard to the nature of the exhibits produced, more so those of the appellants hence arriving at findings that were wholly against the weight of evidence; in placing reliance on a purported report of the National Land Commission, which report it was self-evident that the appellants never participated in the process that produced the report; in making an inference in his findings that the appellants’ title was open to challenge on the ground that the same had been procured by fraud or misrepresentation or otherwise acquired illegally or unprocedurally when, in fact, there was no evidence tendered to that effect; in failing to appreciate the intricate process of allotment of land by the Settlement Fund Trustees, which is quite distinct from the process of land adjudication; and in failing to consider that the appellants’ father had an allotment, rightfully charged the property to the Settlement Fund Trustees, and even payment was therefor, and which commenced completed by appellants upon his demise. MLD Civil Appeal E035 of 2021 Page 18 of 32 the

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19. We heard this appeal on the Court’s virtual GoTo platform on 7th May 2024 during which learned counsel Mr. Apollo Muinde appeared for the appellants while learned counsel Mrs. Chengo held brief for Mr. Kenga for the appellants. Both counsel substantially relied on their written submissions. 20. In their submissions dated 18th May 2023 and filed by M/s. Apollo Muinde & Partners Advocates, the appellants cited the cases of Selle v Associated Motor Boat Co. Ltd [1968] EA 123; and Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212, submitting on the mandate of this Court to reconsider the evidence, evaluate it itself and draw own conclusions; evaluate, re-assess and analyse the evidence; Embakasi Properties Limited & Another v Commissioner of Lands & Another [2019] eKLR (Embakasi), highlighting the principle that, although a certificate of title is prima facie evidence of ownership, that ownership can be challenged on MLD Civil Appeal E035 of 2021 Page 19 of 32

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the grounds of fraud or misrepresentation to which the proprietor is a party, or where it was acquired illegally, unprocedurally or through a corrupt scheme; and Macfoy v United Africa Ltd MLD Civil Appeal E035 of 2021 Page 20 of 32

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[1961] 3 All ER 1169 to support the submission that the decision of the National Land Commission was a nullity. 21. On their part, the respondents relied on the submissions dated 6th May 2024 filed by M/s. Kenya & Co Advocates. In their submissions, the respondents relied on Kisumu ELC No. 708 of 2015 – Kenya Anti-Corruption Commission v Online Enterprises Limited & Others; Eldoret ELC No. 787 of 2012 – Daudi Kiptugen v Commissioner of Lands & Others ; and Kisii Petition No. 9 of 2017 – Samuel D. Omwenga Angwenyi v National Land Commission & Others. However, they did not explain the relevance of each of the said decisions in their submissions. We recommend to parties, when citing judicial authorities to explain in the body of the submissions their relevance instead of throwing them, as it were, at the Court to feed its imagination. 22. The appeal before us is a first appeal from the decision of the Environment and Land Court sitting as the trial court. This Court is therefore not only mandated but is enjoined to MLD Civil Appeal E035 of 2021 Page 21 of 32

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re- evaluate that evidence as well as the impugned judgment and MLD Civil Appeal E035 of 2021 Page 22 of 32

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arrive at its independent judgment on whether or not to allow the appeal. We are empowered to subject the whole of the evidence to fresh and exhaustive scrutiny and make our own conclusions thereon, bearing in mind that we did not have the opportunity of seeing and hearing the witnesses first-hand. See Selle & another v Associated Motor Boat Co. Ltd. & others [1968] EA 123. 23. While we appreciate that we may, in appropriate cases, reverse or affirm the findings of the trial court in Peters v Sunday Post Limited [1958] EA 424, the predecessor to this Court, stated that: “Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide.” 24. With respect to findings of fact by the trial court, this MLD Civil Appeal E035 of 2021 Page 23 of 32

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Court’s position as stated by Hancox, (as was), in he then MLD Civil Appeal E035 of 2021 JA Page 24 of 32

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Mohammed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KLR 661; [1986-1989] EA 183 is that: “The appellate Court only interferes with the trial Court’s findings of fact if it is shown that he took into account facts or factors which he should have not taken into account, or that he failed to take into account matters of which he should have taken into account, that he misapprehended the effect of the evidence or that he demonstrably acted on wrong principles in reaching the findings he did.” 25. Having carefully considered the record of appeal, the impugned judgment, the rival submissions of learned counsel for the appellants and for the respondents, the cited authorities and the law, we find that three main issues commend themselves for our determination, namely: whether the appellants’ title to the suit property was lawfully obtained and thus indefeasible, or whether the same was acquired by mistake and/or misrepresentation; whether the appellants are entitled to vacant possession of the suit property; and who should bear the costs of both the appeal and the proceedings before the trial court. 26. The appellants submitted that the decision of the trial court went wholly against the weight of the evidence; that the MLD Civil Appeal E035 of 2021 Page 25 of 32

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inalienable rights to land encapsulated in Article 40 of the Constitution as expounded in section 24 of the Land Registration Act dictates that the registration of a person as a proprietor of land vests in that person the absolute ownership of the land together with all the rights and privileges belonging or appurtenant thereto; that under, section 26 of the Land Registration Act as interpreted in Embakasi Properties Limited & Another v Commissioner of Lands & another (supra), a transfer or transmission by a proprietor is taken as prima facie evidence that the person named therein is the absolute and indefeasible owner, subject encumbrances, easements, restrictions and only to conditions endorsed in the certificate; that the title cannot be challenged except on grounds of fraud or misrepresentation to which the person is a party, or where the certificate has been acquired illegally or unprocedurally or through a corrupt scheme; and that none of the said rigid prerequisite were pleaded or proved in order to surmount the evidential requirement. MLD Civil Appeal E035 of 2021 Page 26 of 32

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27. It was further submitted that the information sent in the statutory notice sent to the Attorney General claimed that the deceased had evidence from the adjudication records that he occupied Plot No. Kilifi/Kijipwa/244, but this evidence was not adduced; that the same information was confirmed in the evidence of PW1 and hence the respondents knew the plot that was theirs, but chose to claim the appellants’ plot; that the learned Judge placed too much reliance on the report and subsequent letter from the chairman of the National Land Commission, and yet the issues under review did not meet the criteria of access to the jurisdiction of the National Land Commission under Article 67(1) of the Constitution as read with section 15 of the National Land Commission Act; and that the said report having been secretly crafted ought not to have been the basis upon which the appellants’ right to land could be impeached when it was arrived at without the appellants’ participation. 28. The appellants noted that the land in question was acquired by way of settlement programs through the Settlement Fund MLD Civil Appeal E035 of 2021 Page 27 of 32

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Trustees; that the respondents misdirected the learned Judge into believing that the area was subjected to land adjudication; that, under the land adjudication, the Government is a neutral party while adjudicating and demarcating parcels of land to people who are already settled thereon; that under such settlement programs and allocations, the Government allocates mainly trust land or Government land, and that it is through this process of settlement that the appellants, through their father, came to own the land; that at the time the family was making payments to the SFT, the trustees were deemed to hold the land in trust for the appellants; and that the land only ceased to be Government land on 13 th January 2016 when the same was discharged and registered in the appellants’ father’s name and that, therefore, the respondents could not lay any claim to the land. 29. The respondents’ response was that the trial court analysed and considered all the documentary evidence; that in the status report, it was revealed that a complaint was made by the deceased that there was an error and/or mistake and/or MLD Civil Appeal E035 of 2021 Page 28 of 32

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misrepresentation of fact during the allotment process, which the appellants acknowledged in their evidence when they stated that they did not initially know that plot 245 was theirs; that the said report only made recommendations to be considered by any appropriate institution and did not allocate the suit property to the respondents; that the respondents’ actual an/or physical possession or occupation of the suit property was admitted without any objection; that the respondents’ amended plaint pleaded acts and/or particulars of mistake and misrepresentation which were proved by documentary evidence tendered; and that the late Mbura Kufuja Munyu misrepresented himself as the occupier and/or possessor and/or owner of the suit property when paying the allocation fees. 30. In this case, it was not in doubt that the appellants were the registered title holders of the suit property. Section 26 of the Land Registration Act provides that: (1) The Certificate 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 MLD Civil Appeal E035 of 2021 Page 29 of 32

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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 certificate, and the title of that proprietor shall not be subject to challenge except(a) On the ground of fraud of misrepresentation to which the person is proved to be a party; or (b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. (2) ………. 31. It is therefore clear that the prima facie absolute and indefeasible title may be challenged where certain grounds enumerated in section 26 of the Land Registration Act are satisfied. In appreciation of that fact, this Court Embakasi Properties Limited & Another v Commissioner of Lands & another (supra) held that: “Although it has been held time without end that the certificate 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 MLD Civil Appeal E035 of 2021 Page 30 of 32 in

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26 of the Land Registration Act, 2012 though not as emphatic as section 23 aforesaid on the conclusive nature of ownership, confirms that MLD Civil Appeal E035 of 2021 Page 31 of 32

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the certificate 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.” 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 sufficient 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. In this case, the respondents’ case was that their family had been in occupation of the suit property since 1984 before MLD Civil Appeal E035 of 2021 Page 32 of 32

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the area was declared an adjudication section in 1990 when the MLD Civil Appeal E035 of 2021 Page 33 of 32

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Ministry of Lands allocated the land to the residents on the basis of occupation and/or possession. However, the suit property which was their adjudicated parcel of land and which they occupied, was mistakenly and erroneously allocated to the appellants’ father, Mbura Kufuja Munyu (now deceased), and thereafter to the appellants, a fact which did not come to the knowledge of the respondents till January 2016. However, upon that fact coming to light, they approached the appellants to negotiate and agree on the way forward, but the appellants instead threatened to evict the them from the suit property. 34. The appellants’ case was that they were the registered owners entitled to the exclusive possession of the suit property following its transfer to their names on 13 th January 2016 after due succession from their father, the original allottee. In their view, the suit property was properly allocated and the same was charged to the SFT on 17th July 1985 and that, although their late father paid the requisite loans, charges and fees due to the SFT, he died on 14th June 1991 before the title would be discharged and registered in his name. It was after that that the MLD Civil Appeal E035 of 2021 Page 34 of 32

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appellants were registered as the owners of the property upon due succession. According to them, the respondents were mere tenants of the 2nd appellant in an adjacent building before they trespassed onto the suit property in the year 2007 and commenced construction of a dwelling house thereon without the appellants’ permission. 35. The respondents, through PW1, the 1st respondent, stuck to their case as pleaded and added that the appellants resided on the adjacent land plot no. 277 Kijipwa, and that DW1’s daughter and the deceased were buried on the suit property on 21st June 2015 and 24th October 2017 respectively. It was her evidence that, when the land was acquired by the Government upon establishment of Kijipwa Settlement Scheme, each squatter was allocated 2.5 acres. 36. In his evidence, DW1, the 1st appellant, while maintaining that the suit property belonged to their father, the deceased trespassed thereon in 2012. He, however, admitted that in his witness statement, he indicated that the deceased trespassed on the land in 2007. He, in his own evidence stated that: MLD Civil Appeal E035 of 2021 Page 35 of 32

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“It is true there are people who died and were buried on the land. We never objected to the burial. It is true we had not known that plot 245 was ours. When we brought a surveyor, that is when we learnt that plot 245 was ours. We were in 277. I do not know if there were any mistakes or errors on the plot numbers. Presently we reside in plot 277 and Nzakas stay in 245. I was not there during the land adjudication and demarcation. That was in 1994. I was working in Kwale.” 37. From the evidence of DW1, and from their inaction in the face of what would have been an obvious trespass by the respondent on the suit property, it is clear that all the parties knew that they were occupying their respective plots. We agree with the learned Judge’s finding: “That in my view would appear to lend credence to the Plaintiffs claim that they had all along lived on the land with the Defendants as their neighbours and that the Defendants only thought of evicting them upon learning sometime around 2016 from the Plaintiffs themselves that the property was registered in the name of their father.” 38. Whereas the evidence of PW1 was that of a person who was present during the process of the acquisition of the suit property, DW1’s evidence was clearly not based on his own knowledge. PW1 explained that, during the process of MLD Civil Appeal E035 of 2021 Page 36 of 32

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adjudication, each squatter was allocated 2.5 acres. This evidence was not challenged by the appellants. The appellants did not explain how their father got two plots when each squatter was getting a plot each. In his own evidence, DW1 could not tell whether the registration of the suit property in their name was as a result of a mistake or not. In those circumstances, we agree with the learned Judge’s sentiments that: “This having been a Settlement Scheme where each squatter had been given land on the basis of what they occupied, it was unclear to me how the Defendants father came to be registered as the owner of both Plot No. 245 and 277 within the Kijipwa Settlement Scheme.” 39. The learned Judge was therefore justified when he: “found it rather curious that while the 1 st, 2nd and 3rd Defendants contend that the Plaintiffs trespassed onto what they considered their property in the year 2007, they seemingly took no action to evict them and continued to let the Plaintiffs enjoy the use and occupation of the said land peacefully until the year 2016 when they started calling for their eviction.” 40. From the two versions presented before, it is clear that the appellants were unable to prove the root of their title whether it was issued to their father as the rightful owner MLD Civil Appeal E035 of 2021 Page 37 of 32

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of the suit MLD Civil Appeal E035 of 2021 Page 38 of 32

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property or it was mistakenly issued. As correctly found by the learned Judge: “It was also interesting to note that the three Defendants do not give any basis for their claim to the land prior to the period the adjudication process was undertaken in the area. Their claim to the land appears to me to start from the point in time when the property was charged to the Settlement Fund Trustees. While they told the Court the Charge was registered on 17th July 1985, I did not find any document making reference to their father as regards the disputed property until the year 1988.” 41. In our view, this was clearly a case where two parties were allocated parcels of land which they respectively occupied and thereafter lived peacefully as neighbours until the deceased realised that the parcel of land he occupied was not in his names. It was upon approaching the appellants to correct the error that the appellants realised that they ought to claim the respondents’ plot since it was also in their names. In our view, even without the report of the National Land Commission, the respondents’ case that the suit land was registered in the name of the appellants by mistake was unassailable. This was a case where a party was taking advantage of a mistake made in the registration of titles to MLD Civil Appeal E035 of 2021 Page 39 of 32

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deprive an otherwise rightful owner of MLD Civil Appeal E035 of 2021 Page 40 of 32

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land, his plot. “Mistake”, according to Black’s Law Dictionary, 10th edition page 1153 is: “An error, misconception, misunderstanding; an erroneous belief.” 42. or It is our considered view that it was this mistake or error that led to the unprocedural registration of the suit land into the name of the appellants’ father. Apart from that, we agree that the appellants’ father, by paying for the suit property instead of his rightful plot, ONLY misrepresented to the adjudication officers that the suit property belonged to him. We find no reason for faulting the learned Judge in his finding that: “the Defendants were clearly residing in Plot No. 277 and there was no basis upon which they made payments to the Settlement Funds Trustees for the suit property which they knew was occupied by the Plaintiffs. Such payments can only be construed to have been aimed at misrepresenting the facts as to the person who was entitled to the suit property.” 43. Having arrived at the above conclusion, we find that the appellants were not entitled to vacant possession of the suit property, and that judgement in favour of the respondents was MLD Civil Appeal E035 of 2021 Page 41 of 32

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properly entered and the appellants’’ counterclaim rightly dismissed. 44. We find no merit in this appeal which we hereby dismiss with costs to the respondents. 45. Judgement accordingly. Dated and delivered at Mombasa this 11th day of October 2024 A. K. MURGOR ……………………….. JUDGE OF APPEAL DR. K. I. LAIBUTA C.Arb, FCIArb. …………...…............ JUDGE OF APPEAL G. V. ODUNGA …. …………………......... JUDGE OF APPEAL I certify that this is the true copy of the original signed DEPUTY REGISTRAR MLD Civil Appeal E035 of 2021 Page 42 of 32

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