Mubarak v Katumba (Environment and Land Appeal E014 of 2023) [2025] KEELC 7956 (KLR)

3. During registration however, the larger developed portion became parcel No. 1829 and was registered in the name of the appellant. The respondent in turn became the registered owner of the smaller portion he was selling, or had already sold, and that parcel became No. 9 in the records instead of 1829. When the respondent got to know of this mismatch or mix up, he approached the appellant for an amicable solution but the appellant apparently had other ideas. It is clear that the appellant had gone ahead to procure a loan with Equity Bank using the larger developed parcel as security. The lower court suit was allegedly rendered necessary by the appellant’s refusal to co-operate. 4. The appellant was impleaded in the lower court vide a plaint dated 18/2/2021. In it, the respondent pointed out the error that took place at the time of registration. He complained that the appellant, despite being informed of the error, had gone ahead to procure a loan from Equity Bank. The respondent read fraud in all this and he gave particulars of the fraud. He also prayed for the following orders: a. A declaration that registration of the defendant as proprietor of title No. Mwingi/ Mwingi/1829 and that of the plaintifi as the proprietor of title No. Mwingi/Mwingi/9 is erroneous. b. An order for rectification of the register to refiect the plaintifi as the proprietor of title No. Mwingi/Mwingi/1829 and the defendant as proprietor of title No. Mwingi/Mwingi/9. c. General damages. d. Costs and interests. 5. The appellant responded to the suit via a defence dated 5/7/2021. The respondent’s claim was denied. It was pleaded that the averment in the suit were “contradictory and misleading” and that if any error occurred in registration, the appellant had no hand in it. 6. The lower court heard the matter and decided in respondent’s favour vide a judgement delivered on 28/10/2024. That decision is what provoked this appeal, which is premised on six (6) grounds set out here under ad verbum: 1. That the learned trial magistrate erred in law and facts by holding that the plaintifi is the proprietor of land parcel No. Mwingi/Mwingi/1829 contrary to agreement by the plaintifi and the defendant. 2. That the learned trial magistrate erred in law and misdirected himself in law and fact by failing to note that the dispute was a boundary dispute and ought to be determined by the Registrar of Lands first before a suit is filed in court. 3. That the learned trial magistrate erred in law and facts and misdirected himself by failing to consider the evidence by the defendant. 4. That the learned trial magistrate erred in law and facts by allowing rectification of the register contrary to the agreement of the parties produced in court. 5. That the learned trial magistrate erred in law and fact by considering the report by the surveyor that was prepared without involvement of the defendant. 6. That the learned trial magistrate erred in law and fact by awarding the plaintifi costs for an error in measurement by the land oficials. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7956/eng@2025-10-16 2

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7. The appellant wished that the lower court judgement be quashed and set aside; that the same judgement be substituted with an order dismissing the respondent’s case in the lower court with costs; and finally, that the respondent be condemned to pay costs of this appeal. For clarity, it is important to point out that reference to the defendant in the grounds of appeal is reference to the appellant herein while reference to the plaintifi is reference to the respondent in this appeal. 8. The appeal was canvassed by way of written submissions. The appellant’s submissions are dated 3/7/2025. The appellant submitted, inter alia, that the trial court was wrong for disregarding the appellant’s defence in the lower court. According to him this led to issuance of a judgement that was against the weight of evidence. It was pointed out that the sale agreement between the parties shows that the appellant was purchasing parcel No. 1829 and that upon completion of payment of the agreed purchase price, he became registered as owner of the portion. The trial court was faulted for holding that the respondent is the owner of parcel No. 1829 while the sale agreement clearly shows that that is the portion the respondent was selling to the appellant. 9. Further, it was submitted that the respondent showed the appellant the portion he was selling, that the portion shown had no structure on it, and that the respondent didn’t raise any alarm at the time of the subdivision of the land. 10. The land surveyor’s report made available was faulted for being of doubtful value since it was allegedly a result of an exercise carried out without the appellant’s involvement and/or participation. It was said to have been intended to defeat the cause of justice. The appellant was said to be incapable of making alterations to documents of ownership and if there is therefore any error in registration, he should not be blamed for it. 11. According to the appellant, the respondent should not have sued him. He should have sued the relevant land oficer or oficials instead. This court was urged to allow the appeal. 12. The respondent’s submissions are dated 9/7/2025. It was pointed out by the respondent that the sale transaction took place when the area was still under adjudication and it was expected that the respondent would ultimately retain the original number initially given to the entire land parcel while the appellant would get the number allotted to the portion he was buying. But an error occurred during registration. The “two titles were interchanged with the original title acquiring the physical location and area of the subsequent title and vice-versa.” 13. The respondent submitted that he tried to have the error rectified but the appellant refused to cooperate. The error that occurred led to the appellant becoming the owner of the portion of land where the respondent’s homestead stands. That was the larger parcel that the respondent wanted to retain for himself. He wanted to retain it as parcel No. 9 owned by himself but the same portion became parcel No. 1829 owned by the appellant. The appellant then went ahead and procured a bank loan using that parcel. The portion meant for the appellant became parcel No. 9 registered in the name of the respondent. That is the error the respondent sought to correct through the lower court suit. The respondent’s position is that his case in the lower court was straight forward. He said he was able to show by way of corroborated evidence that the appellant got a title that was at variance with and/or did not agree with what was contained in the sale agreement. It was pointed out further that the appellant did not adduce evidence that could serve as a convincing or efiective rebuttal of the fact that an error occurred during registration. 14. The court was urged to dismiss the appeal and order the appellant to pay costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7956/eng@2025-10-16 3

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15. This is a first appeal and as this court now embarks on making its decision, the instructive words of Sir Clement De Lestang in Selle –vs- Associated Motor Boat Company [1968] EA 123 come to mind. The learned Judge stated: “ … 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 findings 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 demeanor of a witness in inconsistent with the evidence in the case generally.” 16. From the lower court records it is easy to appreciate that the respondent was selling to the appellant a portion of land measuring 40ft x 170ft described as plot No. 1829. The selling price was Kshs. 80,000/ =. Evidently, the portion was part of a larger parcel then indicated as parcel No. 9. It is reasonably clear that the respondent intended that after selling a 40ft x 170ft plot to the appellant, he would remain with the other portion and retain its identity as parcel No. 9. 17. From the evidence made available what was meant to remain as parcel No. 9 was a developed portion while what was being sold to the appellant was vacant and/or undeveloped. 18. At the time of registration however, something went wrong. What was meant to remain as parcel No. 9 and intended to continue being owned by the respondent actually became parcel No. 1829 registered in the name of the appellant. Conversely, what was meant to be parcel No. 1829 became parcel No. 9 registered in the name of the respondent. The situation on the ground therefore refiected opposite realities. The appellant was the registered owner of what he was not buying while the respondent became the registered owner of what he was actually selling. 19. It seems clear that the respondent later on noticed this anomaly and sought to have it addressed without necessarily resorting to court process. He approached the appellant who apparently rebufied him or at least refused to co-operate. This seems to have rendered the lower court suit necessary. 20. The court is saying all this because in the lower court proceedings, evidence preponderates showing that there was an anomaly or error in registration. The appellant would wish the problem treated as one relating to boundary. He has actually raised a ground of appeal to that efiect and later on proceeded to submit as such. But this comes across as an afterthought. In the defence filed in the lower court, the issue of boundary was not raised. If the appellant initially viewed the matter as such, one would have expected that the defence filed would raise it. And because it could only be handled by the Land Registrar, it was bound to be a jurisdictional issue if raised. A preliminary objection then needed to be raised so that the court could handle the issue of jurisdiction preliminarily. This was not done and it all goes to strengthen the feeling that the issue of boundary is purely an afterthought. 21. In the respondent’s plaint in the lower court, it is well spelt out in unmistakable terms that the complaint is about an error that occurred during registration. There is not even the slightest reference to a boundary problem. 22. The lower court was also faulted for not considering the appellant’s evidence. This is simply not true. The lower court judgement speaks for itself. Consider the following excerpts from the judgement: “ In defence, the defendant said that he bought land parcel No. Mwingi/Mwingi/1829 in the year 2003. That the plaintifi wants to take his property and give him another which he never https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7956/eng@2025-10-16 4

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bought. He said that he took a loan using his said property which he has since repaid. He said that he was not present when a surveyor prepared a report. He prayed that the suit be dismissed.” Further down in the same judgment, while still referring to the same defence, the following appears: “ His defence is based only on the fact that the number in the sale agreement tallies with the register but cannot account for the size which is almost twice what he bought and the old developments by the plaintifi.” Considering all this, the unfairness of the averment that the lower court did not consider the appellant’s defence or evidence becomes readily apparent. 23. The appellant expressed dissatisfaction also with the fact that the surveyor’s report was considered by the court; that rectification of the register was allowed contrary to the agreement by the parties; and that he was also condemed to pay costs. 24. For starters, the record shows that the surveyor’s evidence was taken without any objection by the appellant. It is also shown that the surveyor was cross-examined. Once such evidence was entered on record, the trial court was duty-bound to consider it. It could then accept or reject it based on its credibility and/orsubstance. Further, the lower court judgement is not solely based on the surveyor’s evidence. As pointed out earlier, there is preponderance of evidence showing that an error occurred during registration. My appreciation of the outcome of the lower court matter is that it was based on a holistic consideration of what was made available to the court. 25. As for rectification of register, it is trite that under our laws – see for instance sections 79 and 80 of Land Registration Act – where an error or mistake occurs during registration, a party can approach the Land Registrar (Section 79 – supra) or any court with competent jurisdiction (see section 80 – supra) to correct the error or mistake. Once the lower court made a finding that there was an error that took place during registration, it was inevitable that rectification of the register had to follow. 26. As things stand now, the appellant enjoys an undeserved advantage. As a result of the error that occurred, he got a larger and more valuable land than he was buying. He reaped benefits from that advantage by charging what he got to the bank in order to get a loan. 27. The rectification of the register that was ordered was meant to correct the error. The appellant would become the registered owner of the land he was actually buying, which is now parcel No. 9, and the respondent would become registered owner of the land he meant to retain, which is now parcel No. 1829. But if the appellant wants to continue to see his title reading No. 1829, then what is now No. 9 should be changed to read No. 1829 while that which is now 1829 should be changed to read No. 9. Any of these changes would serve to refiect the true situation on the ground. It would also be in sync with the original intentions of the parties as expressed in the agreement. The Lands Ofice has the discretion to choose how to efiect the changes. 28. The appellant also feels aggrieved because he was ordered to pay costs. The law is clear – see Section 27 of the Civil Procedure Act. Costs follow the event. The appellant lost in the lower court. Add to this the fact that he had been approached with a view to correcting the error before the matter came to court but he refused to co-operate. Litigation comes with costs and this entire litigation arose because of the appellant’s conduct. In my view, the lower court was right to order the appellant to pay costs. As regards this appeal itself, it is also necessary for the appellant to pay costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7956/eng@2025-10-16 5

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29. The upshot, in light of the foregoing, is that the appeal before me is one without merits. The same is hereby dismissed. For clarity, the appellant is ordered to pay costs both of the lower court litigation and this appeal itself. JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT KITUI THIS 16TH DAY OF OCTOBER, 2025. In the presence of, Court Assistant – Musyoki Mulonzya Ngala for Respondent Munyoki (absent) for Appellant Appellant – absent Respondent - absent A. KANIARU JUDGE- ENVIRONMENT & LAND COURT, KITUI https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7956/eng@2025-10-16 6

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