Simon v Tasur

3. The suit was originally led in Kisii HCCC 345/2012 but was later transferred to Kilgoris PMCC following jurisdictional re-organisation pursuant to Gazette Notice No. 5178 of 2016. At trial, the court heard viva voce evidence from both parties, considered documentary evidence including Gazette Notices, and court decrees, and ultimately dismissed the Plainti’s claim. In essence, the trial court held that the Respondent had established valid registration to LR 970 and that the Appellant had not proved trespass. 4. Dissatised, the Appellant led the present appeal on 6th September 2019, advancing several grounds which will be outlined later in this judgment. The Respondent opposed the appeal by way of a replying memorandum, urging its dismissal on grounds of want of merit and initially contending that it had abated under Order 24 of the Civil Procedure Rules following the death of the original Appellant. 5. The record shows, however, that on 16th September 2020, an application was led seeking leave to substitute the deceased Appellant, Ole Lkisira Simion, with his legal representative. On 21st October 2020, both parties appeared before me; the application was unopposed, and substitution was allowed as prayed. The appeal has therefore proceeded on its merits in the name of the substituted Appellant. B. Appellant’s Case Before the Trial Court 6. Through a Plaint dated 24th September 2012, the Appellant, then the Plainti, averred that the Respondent had trespassed onto his land known as LR No. Transmara/Shartuka/178 (hereinafter “LR No. 178”), measuring approximately 20.64 hectares. He stated that he was a member of the Shartuka Group Ranch, and that upon the subdivision and dissolution of the ranch, he was allocated LR No. 178 and issued with a title deed in 2003, thereby acquiring exclusive possession and the right to exclude all others. 7. He averred that sometime in 2007, he had permitted the Respondent, a neighbour and fellow group ranch member, to graze cattle on a small portion of LR No. 178 under a temporary licence. This licence, he asserted, did not grant the Respondent any rights of occupation or development. However, he claimed that the Respondent breached this arrangement by exceeding the scope of the licence and erecting permanent houses and commercial structures on the land without consent. 8. When challenged about the encroachment, the Respondent maintained that the occupied portion fell within LR No. Transmara/Shartuka/970 (hereinafter “LR No. 970”), which he claimed was registered in his name. The Appellant’s position was that LR No. 970 did not exist in law or on the ground, and that the Respondent was using this number to justify what amounted to unlawful trespass on LR No. 178. 9. The Appellant testied that he had made inquiries with the Land Registrar, Trans-Mara East/West Sub-Counties, and was informed that LR No. 970 was absent from the Registry Index Map (RIM) and that its title had been cancelled pursuant to lawful court orders. He called PW2, the Land Registrar, who conrmed in evidence that LR No. 970 was non-existent both in the ocial records and on the ground, and that only LR No. 178 was mapped at the disputed location. 10. The Appellant also produced Kenya Gazette Notices and superior court decisions—including Kakamega HCC Misc. Application No. 103 of 2003, Kisii HCC Misc. Application No. 52 of 2009 (Judicial Review), and Kenya Gazette Notice No. 6331 of 8th June 2011 which, he contended, had nullied the area list and registry maps under which LR No. 970 was purportedly created. 11. On the strength of this evidence, the Appellant urged the court to nd that the Respondent’s continued occupation and construction on LR No. 178 constituted trespass. He prayed for a https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22661/eng@2023-05-19 2

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declaration of ownership of LR No. 178, a declaration that LR No. 970 was null and void, an order of eviction, a permanent injunction, general damages for trespass, and costs of the suit. C. Respondent’s Case Before the Trial Court 12. In his defence, the Respondent denied the allegations of trespass and maintained that he was the absolute registered proprietor of LR No. Transmara/Shartuka/970 (hereinafter “LR No. 970”), measuring approximately 14.03 hectares, having been issued with a title deed on 19th September 2003. He averred that LR No. 970 was a distinct parcel from LR No. 178, separated by a clear boundary, and that his occupation of the land had been peaceful, open, and continuous for decades. 13. The Respondent testied that he, like the Appellant, had been a member of the Shartuka Group Ranch and that during the subdivision and allocation process, LR No. 970 was allocated to him lawfully. He averred that he had constructed permanent residential houses and had lived on the property with his family since childhood. He denied ever occupying or interfering with LR No. 178 and asserted that he had no reason to encroach on the Appellant’s land. 14. Regarding the Appellant’s reliance on court orders and Kenya Gazette Notices, the Respondent contended that none of the proceedings cited by the Appellant whether Kakamega HCC Misc. Application No. 103 of 2003, Kisii HCC Misc. Application No. 52 of 2009, or any gazette notice mentioned LR No. 970 or aected his title. He emphasised that he was not a party to any of those proceedings and that his title could not be cancelled by implication. In his view, cancellation of a registered title could only be eected by an express court order specically directed at the parcel in question, which had not occurred. 15. The Respondent also challenged the evidence of PW2, the Land Registrar, arguing that the absence of LR No. 970 from the Registry Index Map did not negate its legal existence, as registry maps could be updated or amended, and ocial records in his possession conrmed his ownership. He insisted that his title deed remained valid under sections 24, 25, and 26 of the Land Registration Act, which accord indefeasibility to registered proprietors except in limited circumstances not applicable to his case. 16. On the allegation of trespass, the Respondent maintained that he had never entered or used LR No. 178 and that his occupation was conned entirely to LR No. 970. He denied that the Appellant had ever given him permission to graze cattle on LR No. 178 and suggested that the dispute arose from boundary confusion rather than unlawful entry. 17. The Respondent therefore urged the trial court to dismiss the suit with costs, asserting that the Appellant had failed to discharge the burden of proof under section 107 of the Evidence Act and that his own possession and ownership of LR No. 970 had been proven to the required legal standard. D. Grounds of Appeal 18. In his Memorandum of Appeal dated 6th September 2019 the Appellant challenged the judgment of the learned trial magistrate on both points of law and fact. He contended that the trial court erred in nding that LR No. 970 existed and shared a boundary with LR No. 178, despite what he described as clear, uncontroverted evidence from the Land Registrar to the contrary. He faulted the court for failing to attach proper weight to the testimony of PW2, who had stated that LR No. 970 did not exist either in the registry records or on the ground, and that its title had been cancelled. 19. The Appellant further averred that the trial court had disregarded superior court decisions and Kenya Gazette Notices which, in his view, had already nullied LR No. 970. He argued that the learned https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22661/eng@2023-05-19 3

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magistrate failed to appreciate and apply the legal eect of those orders and notices, thereby arriving at an erroneous conclusion on ownership and the existence of LR No. 970. 20. He also faulted the trial court for holding that no trespass had been proved, despite what he considered to be cogent evidence that the Respondent had entered and developed a portion of LR No. 178 without consent. In his view, the court’s failure to recognise this constituted a misdirection on both fact and law. 21. Additionally, the Appellant argued that the trial magistrate failed to properly evaluate the totality of the evidence adduced at trial, and that the decision reached was against the weight of that evidence. He maintained that these errors collectively resulted in a miscarriage of justice, and urged the appellate court to set aside the judgment of the lower court and substitute it with judgment in his favour granting the reliefs sought in the plaint. E. Parties’ Submissions on Appeal Appellant’s Submissions 22. In his written submissions, the Appellant reiterated that the trial court erred in nding that LR No. 970 existed and was distinct from LR No. 178, despite uncontroverted testimony from the Land Registrar conrming its non-existence. He argued that the Registry Index Map (RIM) and the certicate of ocial search are the primary legal proof of a parcel’s existence, and in this case, LR No. 970 was absent from both. According to the Appellant, the trial magistrate failed to give due weight to these critical pieces of evidence, and this omission led to an incorrect nding on ownership. 23. The Appellant placed particular reliance on the evidence of PW2, the Land Registrar, who testied that LR No. 970 did not exist in the registry or on the ground and that its title had been cancelled pursuant to lawful court orders. He submitted that this evidence was not challenged by the Respondent and therefore should have been accepted as conclusive. 24. The Appellant also contended that the trial magistrate erred in disregarding proceedings in Kakamega HCC Misc. Application No. 103 of 2003 and Kisii HCC Misc. Application No. 52 of 2009, as well as Kenya Gazette Notice No. 6331 of 8th June 2011, all of which, he said, had the eect of quashing the area list and registry maps under which LR No. 970 would have been created. He argued that these proceedings and gazette notices were binding and legally extinguished any claim to LR No. 970. 25. On the issue of trespass, the Appellant submitted that as the registered proprietor of LR No. 178, he enjoyed the right to exclusive possession under section 24 of the Land Registration Act, and that any unauthorised entry or occupation amounted to trespass, regardless of whether the land was developed. He maintained that the Respondent’s construction of permanent houses and shops on the disputed portion without consent constituted clear acts of trespass. 26. In support of his arguments, the Appellant cited authorities including M’Kiriara M’Mukanya v Gilbert Kabeere M’Mbijiwe (1984) eKLR and David Ogutu Onda v Walter Ndede Owino (2014) eKLR, which arm the rights of registered proprietors and the remedies available for trespass. He urged this court to allow the appeal, set aside the judgment of the trial court, and enter judgment in his favour in terms of the plaint, with costs. b). Respondent’s Submissions 27. The Respondent opposed the appeal and, at the outset, raised a preliminary objection that the appeal had abated under Order 24 Rule 3 of the Civil Procedure Rules, following the death of the original Appellant in July 2020, and the failure to substitute him within one year. However, as earlier https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22661/eng@2023-05-19 4

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aforementioned, the parties subsequently appeared before the court on 21st October 2020, where the application for substitution was not opposed and was allowed as prayed, thereby enabling the appeal to proceed on its merits in the name of the substituted Appellant. 28. On the substance of the appeal, the Respondent submitted that both parties were members of the Shartuka Group Ranch and were each allocated their respective parcels upon dissolution of the ranch LR No. 178 to the Appellant and LR No. 970 to himself. He insisted that LR No. 970 was a validly registered parcel in his name, supported by a title deed issued on 19th September 2003, and that its existence was recognised in law and fact. He further argued that his title enjoyed the protection of sections 24, 25, and 26 of the Land Registration Act, which confer indefeasibility except in cases of proven fraud or illegality. 29. The Respondent denied that his title had ever been cancelled, noting that none of the court proceedings or gazette notices cited by the Appellant mentioned LR No. 970 or involved him as a party. He argued that the purported cancellation relied upon by the Appellant could not apply to his parcel without an express court order directed at LR No. 970. 30. He also challenged the reliance on the Land Registrar’s testimony, contending that the absence of LR No. 970 from the RIM did not invalidate his ownership, as registry maps are administrative tools that can be altered, while the register itself is the primary legal record of title. He maintained that the title deed in his possession was conclusive proof of ownership. 31. On the question of trespass, the Respondent submitted that he had never entered or used LR No. 178, and that his occupation was conned to LR No. 970. He contended that the Appellant’s own evidence of having granted him grazing permission in 2007 undermined the allegation of trespass, as one cannot be both a licensee and a trespasser for the same entry. He further argued that the burden of proof under section 107 of the Evidence Act rested with the Appellant, and that this burden had not been discharged. 32. In conclusion, the Respondent urged the court to dismiss the appeal with costs, asserting that the trial court’s judgment was sound, supported by the evidence, and free from any misdirection. F. Issues for Determination 33. Having considered the memorandum of appeal, the record of the trial court, the evidence adduced, and the submissions of the parties, the following issues arise for determination by this court: a. Whether the trial court erred in nding that LR No. Transmara/Shartuka/970 exists in law and fact, and is distinct from LR No. 178. b. Whether the trial court erred in disregarding the evidence of the Land Registrar and the eect of the superior court decisions and Kenya Gazette Notices relied upon by the Appellant. c. Whether the Appellant proved, on a balance of probabilities, that the Respondent trespassed on LR No. 178. d. Whether the trial court properly evaluated the totality of the evidence and applied the correct principles of law in dismissing the suit. e. What orders should be made as to the outcome of the appeal and costs. Legal Analysis 34. This being a rst appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22661/eng@2023-05-19 5

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court, had the advantage of observing the demeanour of the witnesses and hearing their evidence rst hand. 35. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated: “ …that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satised that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 36. The duty of the rst appellate Court was settled long ago by Clement De Lestang, VP, Duus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows; “ .. this court is not bound necessarily to accept the ndings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s nding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 37. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. 38. In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows: “ It is a strong thing for an appellate court to dier from the ndings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a dierent conclusion…” 39. Having laid down the legal framework and guiding principles applicable to this court as a rst appellate court, it is now necessary to turn to the specic issues arising in this appeal. I will address each issue with due regard to the pleadings, the evidence adduced before the trial court, the applicable statutory provisions, and the relevant judicial precedents, while bearing in mind the trial court’s advantage in observing the demeanor and credibility of the witnesses. Issue1: Whether the trial court erred in nding that LR No. Transmara/Shartuka/970 exists in law and fact, and is distinct from LR No. 178 40. It is evident that the rights of a registered owner of property are clearly set out under sections 24, 25 and 26 of the Land Registration Act 2012, which provide as follows; -24. “ Subject to this Act(a)The registration of a person as proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.” 41. Further Section 25(1) provides that for such a registered owner, his/her rights are indefeasible and are held free from all other interests and claims and that the rights can only be defeated in the manner provided under the Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22661/eng@2023-05-19 6

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42. However, ownership of such title is not absolute as the said Certicate of title can be impeached under certain circumstances as contemplated in Section 26 of the Act. Section 26 (1) which provides; “ 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, except— 43. a. on the ground of fraud or 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. Further In the case of Munyu Maina v Hiram Gathiha Maina, Civil Appeal No.239 of 2009, the Court of Appeal held that:“ We have stated that when a registered proprietor root of title is challenged, it is not sucient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.” 44. Having been so guided, this Court will move to ascertain: whether the trial court erred in nding that LR No. Transmara/Shartuka/970 exists in law and fact, and is distinct from LR No. 178 45. The Appellant’s case at trial was that LR No. 970 did not exist in law, its registration having allegedly been cancelled pursuant to earlier superior court orders and Kenya Gazette Notices. He called PW2, the Land Registrar, who testied that LR No. 970 did not appear on the Registry Index Map (RIM). The Appellant argued that this proved the parcel was ctitious and that the Respondent’s title was invalid, being a product of an unlawful subdivision, whose outcome had been nullied by Rulings in Kakamega and Kisii and reected in gazette publications. 46. However, the Appellant did not produce certied copies of the alleged court orders or gazette notices expressly identifying LR No. 970. As the trial court correctly noted, the judgments and orders relied upon did not specify the land in question by its parcel number, nor was there evidence that the Respondent or his title were ever directly aected by those proceedings. 47. On the physical characteristics, the evidence on record showed that LR No. 970 and LR No. 178 were recorded with dierent acreages, supporting the Respondent’s claim that they were separate parcels. The absence of any record of LR No. 970 in the list of cancelled titles, coupled with the lack of technical mapping evidence, undermined the Appellant’s claim that the parcels were one and the same. 48. The Respondent, in contrast, produced his original title deed for LR No. 970 issued on 19th September 2003, he testied that the parcel was allocated to him during the dissolution of Shartuka Group Ranch and that he had occupied and developed it for decades. His title had never been subjected to rectication under sections 79 or 80 of the Land Registration Act, nor had it been surrendered or cancelled. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22661/eng@2023-05-19 7

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49. On these facts, I nd that the Respondent went beyond merely “dangling” the title; he gave a factual account of how the land came into his possession. In contrast, the Appellant’s evidence stopped short of establishing a direct legal or factual link between the alleged nullications and LR No. 970. The absence of the parcel from the RIM, while noteworthy, is not conclusive proof of its non-existence because the land register is, under section 7 of the Land Registration Act, the primary record of ownership, with the RIM serving only as a cartographic aid. 50. In light of the above, I agree with the trial court’s conclusion that LR No. 970 existed in law and on the ground at the time of trial, and that it was distinct from LR No. 178. The burden under section 107 of the Evidence Act to prove otherwise lay squarely on the Appellant and was not discharged. Issue 2: Whether the trial court erred in disregarding the evidence of the Land Registrar and the eect of the superior court decisions and Kenya Gazette Notices relied upon by the Appellant 51. The Appellant argued that the Land Registrar’s evidence was conclusive proof of the non-existence of LR No. 970 and that the trial court erred in failing to treat it as such. He further relied on Kakamega HCC Misc. Application No. 103 of 2003, Kisii HCC Misc. Application No. 52 of 2009 (Judicial Review), and Kenya Gazette Notice No. 6331 of 8th June 2011, which, according to him, had quashed the area list and registry maps under which LR No. 970 was created. 52. It is true that the Land Registrar is the statutory custodian of land records under section 9 of the Land Registration Act, and his evidence carries signicant weight. However, as earlier discussed in relation to Munyu Maina v Hiram Gathiha Maina [2013] eKLR, where the root of a registered proprietor’s title is challenged, the proprietor must go beyond the instrument of title to demonstrate the legality of how the title was acquired. Conversely, the party alleging invalidity must show, with credible evidence, the nexus between the impugned title and the alleged illegality. 53. In this case, the Appellant did not produce the actual decrees or orders from the superior courts expressly cancelling LR No. 970, nor did he demonstrate that the Respondent’s parcel fell within the specic parcels nullied in those proceedings. His reliance on gazette notices and judicial review orders was general and unaccompanied by survey evidence or expert testimony linking LR No. 970 to the cancelled parcels. 54. As the High Court explained in Kuria Greens Limited v Registrar of Titles & another [2011] eKLR, “the 1st respondent could not therefore purport to arbitrarily revoke its title without any notice and most importantly, without following the due process of law,” and that “the respondents’ purported action of revoking the petitioner’s title is an aront to private proprietary rights which are guaranteed by our Constitution and such an action must be frowned upon by the law.” This reasoning underscores that gazette notices and administrative actions must operate strictly within the terms stated therein and cannot lawfully be extended to third-party titles not expressly identied. 55. As for the Land Registrar’s statement that LR No. 970 did not exist on the RIM, this court agrees with the trial court’s view that the absence of a parcel from the RIM does not, by itself, extinguish ownership rights conferred by a duly issued and uncancelled title. The proper process for rectication or cancellation is set out in sections 79 and 80 of the Land Registration Act, requiring either the consent of the proprietor or a court order after due process. No such rectication or cancellation had been eected in respect of LR No. 970 at the time of trial. 56. Accordingly, the trial court was entitled to give more weight to the documentary proof of title held by the Respondent than to the oral assertion of the Land Registrar unsupported by documentary rectication records. I therefore nd no error in the trial court’s approach to the evidence on this issue. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22661/eng@2023-05-19 8

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Issue 3: Whether the Appellant proved, on a balance of probabilities, that the Respondent trespassed on LR No. 178 57. Clerk and Lindasell on Torts 18th Edition at Paragraph 18 dened “Trespass” as follows; “ An unjustiable entry by one person upon the land in possession of another” 58. Similarly, I concur with the considered view of Samson Okongo,J in Zacharia Onsongo Momanyi – vs- Evans Omurwa Onchagwa (2014) eKLR that the tort of trespass is actionable per se and that, “ Trespass has been dened as any unjustied intrusion of one person upon the land in possession of another” 59. To succeed in an action for trespass, rst, the onus is on the Appellant to prove on a balance of probabilities that (s)he is either the bona de owner or proprietor of the suit property or that (s)he is in or entitled to immediate possession of the suit of the suit property or both; and second, that the sued party has intruded and/or occupied and/or remained in the suit property without any justiable cause. 60. In M’Mukanya vs. M’Mbijiwe (1984) KLR 761, Kneller JA (as he then was) laid the ingredients of trespass in the following words: “ The only issue in this second appeal is whether or not the Magistrate and the judge erred in law in nding M’Mukanya and Nyamu were trespassers? M’Mbijiwe could, and may be should, have asked for a declaratory judgment but he brought an action of trespass to land to determine the title to the large plot 58 in this market. He has to prove on the balance of probabilities M’Mukanya and Nyamu entered on this plot when it was in his possession. He must show he had the right to immediate possession and entered in exercise of it and then he will be said to have been in possession of it ever since he had that right. This tort is a violation of the right of possession and M’Mbijiwe must prove he, and not M’Mukanya and Nyamu, had the right to immediate and exclusive possession of it which is dierent from ownership.” 61. In this case, the Appellant’s claim for trespass was entirely premised on his assertion that the Respondent’s developments were located on LR No. 178. However, the Respondent maintained that his occupation and developments were on LR No. 970, which he lawfully owned. The Appellant did not produce a surveyor’s report or any expert boundary demarcation evidence to prove that the alleged developments fell within the boundaries of LR No. 178. 62. The trial court noted, and I agree, that given the close proximity of the parcels and the dispute over boundaries, the burden rested with the Appellant to bring conclusive evidence identifying the physical location of the Respondent’s developments vis-à-vis the registered boundaries of LR No. 178. Without such evidence, the court could not simply infer trespass from the Appellant’s oral testimony. 63. The absence of a cadastral survey or ocial boundary verication meant that the claim for trespass remained speculative. Muiruri v Ndewa & 3 others (Environment & Land Case No. 19 of 2022) [2024] KEELC 1590 (KLR), the Environment and Land Court held that: “ The law is very clear on who has mandate to deal with disputes over registered land without xed boundaries; that is the Land Registrar. The parties herein should rst present themselves before the Land Registrar, who will resolve the boundary dispute. Only if any https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22661/eng@2023-05-19 9

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of the party is aggrieved by the determination of the Land Registrar can they come to court.” (para. 68) “Boundary disputes pertaining to lands falling within general boundary areas must be referred to the Land Registrar for resolution. Registry index map (RIM) only indicates approximate boundaries and the approximate situation on the ground. Even if this court was to hear and determine this matter it will still require the input of the Land Registrar…” (para. 69, citing George Kamau Macharia v Dexka Limited [2019] eKLR). 64. In that case, the court dismissed the suit as premature because the plainti had not rst sought determination of the disputed boundary under Sections 18 and 19 of the Land Registration Act. The court stressed that without survey evidence from the statutory process, the physical location of a boundary cannot be judicially ascertained, and any claim based on alleged encroachment is bound to fail for want of proof. 65. Applying that reasoning here, the Appellant’s failure to produce a surveyor’s report or pursue the statutory route under the Land Registration Act means that the claim of trespass was not proved on a balance of probabilities. G. Issue 4 and 5 66. From the foregoing analysis, it is evident that the Appellant’s case both at trial and on appeal was fundamentally anchored on the assertion that LR No. Transmara/Shartuka/970 was a non-existent parcel and that the Respondent’s presence on the disputed land therefore constituted trespass upon LR No. Transmara/Shartuka/178. While the Appellant relied heavily on the oral testimony of the Land Registrar and on certain superior court proceedings and gazette notices, the evidential deciencies in his case were manifest. 67. First, the existence of a duly issued title deed in favour of the Respondent for LR No. 970 was not in dispute. The Land Registration Act, at sections 24, 25, and 26, accords such title deeds prima facie validity, subject only to challenge on proven grounds of fraud, misrepresentation, or illegal acquisition. The Appellant did not tender evidence directly impeaching the process by which the Respondent’s title was obtained, nor did he produce a specic decree or rectication order cancelling LR No. 970. His reliance on gazette notices and unrelated judicial proceedings was insucient, in law, to displace the protections aorded to a registered proprietor. 68. Second, the oral testimony of the Land Registrar—though relevant—was unsupported by documentary rectication records or amendments in the register as required under sections 79 and 80 of the Land Registration Act. Without such records, the absence of LR No. 970 from the Registry Index Map could not lawfully override the legal register, which is the primary record of ownership under section 7 of the Act. 69. Third, the claim of trespass was not supported by objective, technical evidence demonstrating that the Respondent’s developments physically encroached upon LR No. 178. In boundary disputes, especially where the parties own contiguous parcels, the law requires precise boundary determination through survey evidence or ocial demarcation. 70. Fourth, the trial court’s evaluation of the evidence was consistent with the guiding principles on appellate review set out in Selle v Associated Motor Boat Co. Ltd [1968] EA 123. The learned magistrate considered the pleadings, heard the witnesses, and applied the correct statutory provisions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22661/eng@2023-05-19 10

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There is no indication that the court misapprehended the evidence, disregarded material evidence, or applied the wrong legal principles. 71. In sum, the Appellant’s appeal did not surmount the legal and evidential threshold necessary to overturn the trial court’s decision. The ndings that LR No. 970 existed in law and fact, that the Respondent was its registered proprietor, and that trespass had not been proved, were all supported by the record and the applicable law. 72. Finally with regards to the last issue, under section 27 of the Civil Procedure Act, costs follow the event unless the court orders otherwise. The Respondent, having successfully defended both the suit in the lower court and this appeal, is entitled to the costs of the appeal. Final Orders: a. The appeal is hereby dismissed in its entirety. b. The judgment of the Principal Magistrate’s Court at Kilgoris delivered on 27th August 2019 in PMCC ELC No. 116 of 2018 is hereby upheld. c. The Respondent shall have the costs of this appeal, together with the costs awarded to him in the lower court. d. Interest on costs shall accrue at court rates from the date of this judgment until payment in full. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THE 19 TH DAY OF MAY, 2023. MOHAMMED N. KULLOW JUDGE Judgement delivered in the presence of: N/A for the Appellant N/A for the Respondent Timothy Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22661/eng@2023-05-19 11

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