Yator v Baringo Central Constituency Development Fund Committee & 3 others

iii. An order authorizing the 1st and the 2nd defendants to demolish all the illegal structures constructed on the suit property forthwith; iv. General damages; v. Exemplary damages; vi. Costs and interest at court rates on damages from the date of judgment to the date of full and nal payment. 2. As can be discerned from the averments or contentions in the plaint, the appellant’s suit was premised on the ground that the parcel of land known as Sacho/Kabasis/586 measuring approximately 0.25 hectares or thereabout, situated at Kabasis Trading Centre, Baringo Central Constituency, at all times material to the suit, belonged to the plainti’s father, Kibiator Komen (deceased); that sometime on or before 1st April, 2021 the defendants by themselves and/or through their agents, trespassed into the suit property and began erecting illegal structures thereon. 3. Lamenting that eorts to get the defendants stop their activities complained of were futile, the plainti instituted the suit hereto seeking the reliefs listed herein above. 4. Upon being served with summons to enter appearance and the suit papers, the 1st defendant led a statement of defence dated 23rd March, 2022 in which it inter alia contended that the Government had been in occupation of the suit property with the consent of the plainti’s deceased father; that the suit property belongs to the Government; that the suit property was given to the Government by the plainti’s father and that the plainti’s father was compensated with another parcel of land namely, parcel number 101 Kipkarwa Settlement Scheme in Trans Nzoia County. 5. By way of counterclaim, the 1st defendant sought judgment against the plainti for:i. An order conrming that the plainti’s father duly surrendered to Government of Kenya land parcel No. Sacho/Kabasis/586 (measuring ¾ of an acre) in 1983 and in compensation was given land No.Trans Nzoia/Kipkarwa/101 measuring ve (5) acres. ii. An order directing the plainti to surrender the title deed for land No. Sacho/Kabasis/586 to the Land Registrar Baringo and to execute all the requisite transfer documents so that the land can be transferred to Kabasis Chief’s Oce; iii. An order for the cancellation of Title deed number Sacho/Kabasis/586; iv. In alternative to prayer (ii) above, an order directing the District Land Registrar to issue a new title deed in the name of the County Government of Baringo (the custodian of all public utilities including the chief’s oce land at Kabasis); v. Costs of the suit; vi. Interest on (e) above. 6. The plainti led a reply to defence and defence to counterclaim, dated 12th April, 2022 in which he reiterates the averments/contentions in the plaint and denies the allegations contained in the 1st defendant’s statement of defence and counterclaim. 7. The plainti admitted that he was in possession of the land in Kapkarwa Settlement Scheme but contended that the land has no relationship or connection with the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 2

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8. The 2nd, 3rd and 4th defendants led a joint statement of defence dated 10th February, 2022 in which they denied the allegations levelled against them and contended that the suit property is public land in respect of which the plainti could not lay any claim; that the chief’s oce had been in actual use of the suit property for longer than the period alleged by the plainti; that construction of the chief’s oce in the suit property was not in any way fraudulent and that the plainti never raised any complaint regarding the alleged trespass to the suit property. 9. Terming the alleged trespass to the suit property and the alleged fraudulent acquisition of the suit property erroneous and a concealment of material facts, the 2nd, 3rd and the 4th defendants urged the court to dismiss the plainti’s suit with costs. Evidence The Plainti ’s case 10. When the suit came up for hearing, the plainti who testied as P.W.1, relied on his witness statements recorded on 9th December, 2022 and on 12th April, 2022 after they were adopted as his evidence in chief. He produced the title deed for the suit property, Sacho/Kabasis/586 and a certicate of ocial search dated 22nd June, 2021 showing that the suit property is still registered in the name of his father as Pexbt 1 and 2 respectively. The plainti also produced photographs showing developments in the suit property as Pexbt 3(a), 3(b) and 3(c). The plainti informed the court that the land is still theirs. 11. Concerning the land in Kipkaren, PW1 informed the court that he knows the land; that the land is in Trans Nzoia Kapkawa Scheme, Plot No. 101 and that it is his father’s land. 12. PW1 further informed the court that his father applied for the land under Settlement Fund Trustees and paid a deposit of Kshs.625/-; got a letter from the Land and Settlement oce dated 16th October 2000, for payment of Kshs.12,600/- for the loan arrears and that his father cleared the loan in 2007. PW1 informed the court that in total, his father paid Kshs. 24,018/- for the land. He produced a demand letter for payment of arrears in respect of the land, dated 11th October, 2006 and proof of payment dated 19th January, 2007 as Pexbt 5 and 6 respectively. 13. further informed the court that they were not paid for the land in Kabasis; that in 1997, his father asked the defendant to demolish his oce as it was not Government land but the Chief did not comply until his father died in 2007. 14. The plainti further informed the court that in June 2021, the Constituency Development Fund (CDF) entered the land and constructed temporary illegal structures therein and that their eorts to stop them from constructing the structures on the suit property were futile. 15. Maintaining that the suit property and the land in Kapkarwa have no relation, the plainti urged the court to grant him the reliefs sought. 16. In cross examination by Mwaita Advocate, the plainti stated as follows:“ On 1st April, 2021 the 1st defendant did a permanent structure there. ...photo two and three show the permanent structure...there was a structure before 2021, my father used to tell the chief to demolish the structure, there was no written notice, my father told me he told the chief, I didn’t give them any notice myself, in 1982 I was still young, I was born in 1984, I was not there in 1982…… I am not aware that ve families were relocated to Kitale to pave way for Mabasis primary school including Mbololo family. I know the school is build on land of Mbololo family,……. I don’t know if they were given land in Kitale, I can see the land https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 3

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in Kipkaren Scheme. Mbololo family is not our neighbour in Kapkorwa….....Chepyator Komen is my father. I don’t know about the chief’s letter. I know about the letter...Our land was not originally given for Kabasis primary school there is a portion excised for the chief’s oce, I don’t agree to the letter showing my father had an objection to the payment, I dont know what the committee agreed upon, the land in Kabasis is ¾ acre. My father was not compensated with 5 acres in Kapkorwa Settlement Scheme, I own the land in Kapkorwa Scheme, nothing shows that the land was allocated to us by the government. my father was not allocated land in Kitale, there were no letters asking my father to surrender the title deed, my father didn’t receive any letters from the chief, my father died in 2007, I told the chief to move, he is chief Chepkong’a, the current chief, I have seen his statement, he lied that I never went to his oce, I know the former Chief, Willy, my father went to see him, I didn’t go to him, I have seen his statement, I know William Chepkonga, he is the Chairman of the School, I have not talked to him assistant Chief Jonathan Kipkorir talked to my father, I didn’t talk to the CDF Manager, Michael Kones, I am not taking advantage of my father’s death to bring this case, he was not in the process of surrendering the title deed. ...I can surrender the 5 acres in Kitale if it is the government’s but not if it is my father’s land,my father was known as Kipyator and Chepyator in his documents…” In cross- examination by Tigoi Advocate, he stated, I live in Kitale and at home. My father was not given land in Kitale as compensation according to the documents, I have documents to show that the land was not a compensation, I was born in 1984, I have seen the minutes and documents by counsel, They were done before 1984, my father told me he didn’t give out the land, he showed me the documents, I have documents to show my father paid for his letter (referred to document 1 dated 15/2/1982). It is for the land in Kapkorua. I don’t know Kipsolo Chemwetich, My father is Komen Kipyator, he is on that list, My father was not given land in Kitale, he paid for it.” 17. In re-examination, the plainti stated:“ .…my father already had land in Kitale then, the letter (letter dated 8/2/1982) doesn’t mention Kapkorua, in the minutes of 11th April, 1985, my father already had land, he didn’t sign the minutes. I gave a verbal notice to the chief. Mbololo’s land and ours are not neighbours in Kapkorua, his land is 3 kms away, none of my neighbours in Kapkorua are from Kabasis as conrmation. I didn’t see the letter of 20th January, 1997, our land doesn’t border Kabasis Primary school, there are other lands between us, there is no demand of title letter I have received, the school didn’t give land to the chief....The building has been on our farm, other structures were built there, I don’t know whose permanent structure it is.” The Defendant’s case 18. On their part, the defendants availed 6 witnesses. Willy Wendot Cheboit, a former Chief Kabasis Location (from 1985-1998), who testied as DW1, informed the Court that he wrote a letter to the District Ocer (D.O) Kiptagich concerning the suit property. The letter is dated 20th July, 1997. He produced the letter as Dexbt 1. He identied the photographs in paragraph 44-46 of the trial bundle as his oce at the time. DW1 further informed the court that he is the one who constructed the structure at page 46 of the trial bundle (his oce). https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 4

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19. In cross examination by Tigoi Advocate, DW1 stated as follows:“ I wrote to the people according to the minutes of the school, Chepyator Komen was among them, they were asked to move and they accepted, they were not forced.” 20. On further cross examination by Kiptoo Advocate, DW1 stated:“ I was chief from 1985-1998, in 1982,...…….. I got records from Kabasis Primary School. It says the chief was to live on parcel 586, the land is close by it is divided by a road, the parcel borders each other, the school and chief’s land, I knew Kipyator Komen bought land in Trans Nzoia, I knew so when I wrote the letter in 1985 (refers to page 45) the structure are on parcel 586. The tent I built was in the school,……… I moved to parcel 586, I know Samuel Kibolol, he had given out a part of his land for business, the chief requested to put up a structure in a dierent land, I sought for temporary place at the plot, the plot of Samuel Kiplege Kibolol (referred to page 45), it is not the structure I borrowed, I demolished the structure and moved to parcel 586 (referred to page 45). I built the structure in 1986.. …………………….. Kibolol Kiplege gave land for the school and Chepyator Komen, they agreed to give out land, others refused....I wrote the letter as they had not surrendered title, I was not told to write a letter to surrender title, I didn’t receive any letter from the District Commissioner or District Ocer.” 21. In re-examination DW1 stated:“ I knew Kipyator Komen bought land in Trans Nzoia in 1982 as I was a neighbour, he didn’t buy the land, he was given, my tent was on the land of Kiplege not on parcel 586, the kiosk was on Kibolol Kiplege’s land, I moved to parcel 586 with the kiosk and built a structure as seen in page 45, the suit land is separated by a road with the school, the people listed in my letter gave their land for expansion of the school not just Mbololo, I saw the minutes of the school meeting (refers to page 41). I was in the meeting, I am number 24 on the list, Willy W. Cheboiwo, all letters form the D.O and D.C were going to the school, the people on the list in my letter were given land in Kitale, Kapkorua, I didn’t go there I was not the chief when they were given that land.” 22. William K. Chepkonga (DW2) informed the court that he was the chairman of Kabasis Primary School from 1974 to 2002; that they held a meeting to expand the school land in the District Commisioner’s (DC’s) board room; that at the time he attended the meeting, people had given land and moved to Kapkarwa in Trans Nzoia. He informed the court that he signed the minutes of the meeting; that the meeting was about people who were on the land; that it is the DC who called them; that the plainti’s father, Chepyator Komen, was one of the people called by the DC. He produced the minutes at page 41-43 of the trial bundle as Dexbt 3. 23. In cross examination by Tigoi Advocate, DW2, stated as follows:I was the chairman of Kabasis Primary School, I approached neighbours of the School with oers to donate land, I know Chesaru, Chepyator Komen. Chepyator Komen agreed to give out his land, he was given alternative land in Trans Nzoia in Kapkorua, he didn’t decline that land, he went to live there, he was not to be given money by the government, he was given 5 acres of and for his ¾ acres of land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 5

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In cross examination by Kiptoo Advocate, he stated; “ I was the chairman from 1974-2002, Kiplenge Mbololo’s land was taken for the primary school,……. Kiplenge was relocated to Kipsitwet in Trans Nzoia,…. I know Mbololo have land there, Kipyator Komen had parcel 586, his land is separated with a road from the school, there are people who live around there, I went to the meeting held before the D.C in 1985, Kipyator Komen had already been given land in trans Nzoia, in the meeting we didn’t discuss compensation, he was given 5 acres, his land in Kabasis is ¾ acres, Komen also had land in Ravine, I don’t know how he acquired that land, I know Komen was given land by the government, I was not given land by the government, the people given the land, they were called to the D.C to be given alternative land,…….I don’t know if Chapyator Komen also applied for land in Trans Nzoia,……….. I heard Komen got 5 acres, a councillor took them there, he is the deceased Cheburet, nobody complained, I don’t know of any complaints in the meeting held……… Chepyator Komen was there, I dont know if he signed, D.O Miyoma was there, I don’t know the date the D.C signed the minutes, but he addressed us and said the meeting is over and we left.” 24. In re-examination DW2 stated as follows:“ ...The DC called us over land that had been allocated, the school secretary was there...when the late Moi came, the land had already been given to the people, Mbololo had some land left, the late Moi talked to Mbololo’s mother who agreed to give the remaining portion to the school, I don’t know if they were given alternative land, Mbololo’s land and Komen’s land are not equal in size, Chepyator Komen’s land was ¾ acre, ve people agreed to give land for the school but they didn’t ...despite being given land in tarn Nzoia, they had also agreed to give the school land, parcel 586 and the school is separated by a road, not other people, the other people who donated the land but didn’t move are also neighbours of Chepyator Komen.” 25. Jonathan Kipkorir Kiplagat (DW3) who served as Assistant Chief from 1976-2002 informed the court that he is aware of the suit property. Like DW2, he informed the court that he attended the meeting called by the DC, referred to in DW’2 testimony. He informed the Ccourt that the meeting was about allocation of land in Kitale. He further stated that he knows about expansion of Kabasis Primary School and that Chepyator was among those who donated land for expansion of the School. He further informed the court that the land given by Chepyator is where the chief’s oce is. According to him, Chepyator was compensated with land in Kitale. 26. At close of hearing, parties led submissions. 27. Upon considering the case urged before her, the learned trial magistrate inter alia stated/held:“ ...The plainti’s case is that his father was never allocated land in Kitale after surrendering the suit land to Kabasis Primary School. He disputed that he was taking advantage of his father’s death to bring this claim neither is there any relationship between the suit land and the land known as parcel 101 at Kipkarwa Settlement Scheme. The Defendant’s case on the other hand is that the plainti’s deceased father, Kibiator Komen surrendered the suit land to Kabasis Primary School who in turn donated land to the Chief’s oce. The subsequent buildings constructed on the suit land by the 1st defendant are therefore built on the Chief’s oce land and there is no trespass. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 6

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I have considered the documents produced in support of both cases. PW1 has tendered a copy of title deed for the suit land, Sacho/Kabasis 586. It is apparent that the suit land is still registered in the name of the deceased, Kibiator Komen, who is the father of the plainti.……………………………. The law is extremely protective of title and provides limited circumstances under which a title may be impeached. I have considered the evidence rendered on behalf of the defendants vis-a-vis the circumstances given under Section 26(1) of the Land Registration Act in relation to the plainti’s claim. I proceed to enumerate them as follows for clarity: a. On 25/1/1982, the Provincial Commissioner Rift Valley Province wrote to the District Commissioner Kitale advising him of the allocation of 5 acre plots to people who had surrendered their plots for the construction of Kabasis Primary School, number 3 in that list was the plainti’s father, Chepyator Komen. b. On 26/4/1983, the plainti’s father, Chepyator Komen executed the charge for plot 101 Kipkarwa Scheme for a settlement charge of Kshs. 6, 100/-. c. On 8/7/85, a valuation was done by the divisional agricultural oce valuing 6 parcels of land including the plainti’s father’s crops, trees and barbed wire which were assessed at Kshs.2,950 as shown at page 2. d. In the minutes of the meeting held on 11/4/85 that was chaired by the district commissioner in his oce it has emerged that the 6 people who had surrendered their land for Kabasis school had been given alternative land in Kitale. DW1-DW3 were present in the meeting. It also emerged that the 6 persons including the plainti’s father had not vacated the surrendered land and were each given a chance to explain why they hadn’t complied. Of importance to these proceedings is the response of the plainti’s father who was captured at minute 5. He stated that he had agreed to surrender his land to the school. He was given 5 acres in Kitale. He said that his problem was the payment of Kshs.6,100, the valuation of his development and payment of compensation. It was resolved by the committee that regarding the plainti’s father’s request, he would not get any extra acres of land. It was also noted by the committee that each of the 6 were required to pay Kshs.6,100/- to the government. e. In the chief’s letter dated 20/1/1997, it is clearly indicated that the people who had surrendered their land for expansion of Kabasis Primary School included the plainti’s father Chepyator Komen whose land was being used as the chief’s oce. The land referred to therein is parcel number 586 which is the suit land herein. The letter also indicated that the surrender had not been done. f. On 11/10/2006 a demand notice was issued to the plainti’s father Chepyator Komen for the settlement of arrears of S.F.T loan repayment for Kshs.22,999/- in relation to plot 101. g. A discharge of charge was issued concerning the land known as trans Nzoia/Kipkarwa/ 101 on 17/12/07. h. A transfer of land document was subsequently issued transferring Trans Nzoia/Kipkarwa/101 to Chepyator Komen. l have considered the fact that the plainti’s father, Chepyator Komen, agreed to the terms of the oer by executing the charge on 26/4/83. Whereas the plainti stated that the land in https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 7

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Kipkarwa has no relation to the suit land since his father paid for a loan with SFT, it is clear from the minutes of the meeting held on 11/4/85 that it was a requirement for those who surrendered their land to pay a sum of Kshs. 6,100/- to the government for the land in Kitale. The plainti’s case is that since his father executed the charge on 26/4/83 before the meeting held 2 years later, on 11/4/85, the proceedings did not relate to the suit land. I have considered this position vis a vis the letter dated 25/1/82. It preceded both events including the signing of the charge by the plainti’s father. That letter provides that the people who had surrendered their land including the plainti’s father was in relation to Kabasis Primary School. An examination of the thread of the communication from the oce of the provincial administration shows that it is in relation to the subject suit land. The plainti cannot be heard therefore to state that his father had acquired the land in Kitale independently. The plainti has not denied that he’s in use and occupation of the land known as plot 101 Kapkarwa Settlement Scheme. The chain of events shows that this is the land that was given in exchange for the suit land. The condition was that a sum of Kshs.6, 100/- was to be paid to the Settlement Fund Trustees for the 5 acres in Kapkarwa. The plainti’s argument therefore that his father bought the land independent of the suit land is neither here nor there. It is abundantly clear that both parcels of land are related as one was given in exchange for another on condition that a certain sum of Kshs. 6,100/- is paid to government. In the meeting held on 11/4/85 at the District Commissioner’s oce, the plainti’s father, Chepyator Komen, challenged the payment required of Kshs.6,100/-. He had however signed the charge document earlier and this signied his acceptance of the oer to pay Kshs.6,100/notwithstanding the fact that he subsequently challenged this requirement of payment. The discharge of charge issued thereafter showed that all the terms of the charge were complied with and there was no further encumbrance on the land. The deceased’s action of executing the charge relating to parcel 101 in Kipkarwa Settlement Scheme showed that he had divested himself of any interest appertaining to the suit land, Sacho/Kabasis/586. .....From these facts showing that the chief’s oce had already been built and was in use from 1980’s, I nd that the plainti’s averment in the plaint that an illegal structure in the form of a chief’s oce was erected thereon on 1/4/21 is incorrect. I have also noted, from the evidence produced that at no point since the meeting held on 11/4/85 that the plainti’s father Chepyator Komen lodged any complaint up until his dealth on 22/1/2007. The plainti’s father, Chepyator Komen, did not dispute the occupation of the chief’s oce on his land. Even after the plainti’s father’s death, there was no complaint raised until 14 years later when this suit was led. This lends credence to the defendants’ case that the case was instituted when the plainti stumpled upon his father’s title deed that had not been surrendered to the government.... The plainti has admitted that he owns parcel 101 in Kapkarwa Settlement Scheme. From the foregoing facts, it will be fraudulent and irregular for the plainti to claim to own both parcels of land as the suit land was given to the government. Conceding to the plainti’s claim will be tantamount to unjust enrichment for him. I nd that the plainti has failed to prove his case on a balance of probabilities against the defendants and it is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 8

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The 1st defendant’s Counterclaim has merit and is hereby allowed....” 28. Dissatised, the plainti appealed to this court on grounds that the learned trial magistrate erred in law and fact by:i. Completely misapprehending the principles governing compulsory acquisition by Government of private land prior to 2010 Constitution and further as envisaged in the Land Acquisition Act No.47 of 1968; ii. Relying on a minute that was disowned by the witness who was to produce it thereby arriving at a fatally wrong decision; iii. Failing to determine the question whether a person whose land is compulsorily acquired by Government is required to execute a legal charge over the parcel has been compensated with; iv. Improperly holding that valuation was done on 8.7.1985 whereas the plainti had already executed the legal charge over the parcel he was allegedly compensated with, what informed the basis of the compensation when valuation had not been done rst? Does compensation come rst or valuation? v. Considering a letter by the Provincial Commissioner Rift Valley advising the District Commissioner Trans Nzoia on allocation without proof of subsequent allocation and after the legal charge had already been executed by the plainti’s father; vi. Failing to conclusively decide on the issues of identication, gazettement, valuation and compensation in that order, it cannot be inverted as herein held; vii. Degrading the plainti’s evidence and solely considering the defence evidence; viii. Failing to address the issues if indeed there was compensation of part of 5 acres at Kapkarwa Settlement Scheme, why did SFT claim a charge of the entire 5 acres and not a portion thereto; ix. Failing to consider the appellant’s submissions; and x. Predisposing her mind to a position favourable to the defendants thereby arriving at a fatally wrong decision. 29. The appellant prays that the appeal be allowed and an order be issued setting aside the lower court’s judgment delivered on 16th May, 2024. 30. Pursuant to directions given on 17th June, 2025 the appeal was disposed of by way of written submissions. Submissions Appellant’s submissions 31. In his submissions led on 20th August, 2025 the appellant framed the following as the issues for determination; i. Whether the trial court erred in law and in fact in ignoring adverse possession principles vis-avis constitutional and statutory safeguards. ii. Whether the trial court erred by relying on disowned minutes. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 9

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iii. Whether the trial court erred by failing to determine that a compensated owner must execute a legal charge. iv. Whether the trial court had an erroneous nding on valuation post-charge execution. v. Whether the trial court erred by relying on an unsubstantiated letter. vi. Whether the trial court failed to address sequential acquisition steps. vii. Whether the trial court disregarded the appellant’s evidence. viii. Whether the trial court failed to address the inconsistencies in the compensation claim. ix. Whether the trial court exhibited bias and disregard of the Appellant’s submissions and evidence. 32. On issue one, the appellant submitted that the trial court’s omission in addressing the principles of adverse possession as provided by the law and Section 75 of the former Constitution which prohibited compulsory acquisition without prompt and full payment made the judgment rendered unsustainable. He relied on the decisions in the cases of Mwangi Stephen Muriithi v National Land Commission & 3 Others (2018) eklr and Dismas Egesa Osinya v County Government of Busia (2018) eklr. 33. On issues two and three, he submitted that reliance on the minutes dated 11th April, 1985 violates Section 67 of the Evidence Act. Based on the decision in the case of Republic v Barasa (2015) eklr, the appellant urges this court to nd that the minutes which are central to the respondent’s defence lacked corroboration and their admission ultimately prejudiced the appellant. He further submitted that Section 12 of the Land Acquisition Act requires an executed and recorded agreement for land grants as compensation but in the instant case, no such agreement existed. Based on the case of Patrick Musimba v National Land Commission & 4 others (2015) eklr, the appellant urges this court to nd that loan based exchanges do not constitute valid compensation absent the explicit agreement. 34. On the fourth issue, the appellant contends that valuation comes before compensation but in her decision, the trial magistrate made a nding that valuation was done in the year 1985 after the charge was executed in 1982. No report was produced and the defense witness admitted that no records existed. Guided by the case of Commissioner of Lands v Coastal Aquaculture Ltd (1996) eklr, he submitted that the trial’s magistrate’s nding lacked statutory basis. 35. On issues ve and six, it is submitted that the unsubstantiated letter was only an advisory letter which the trial court ought not to have relied upon as it lacked evidentiary weight; that the letter only advised on allocation without actual proof linked to the suit property. Based on the decision in the case of R v National Land Commission ex-parte Krystalline Salt Ltd (2015) eklr, the appellant urged this court to nd that the trial court’s reliance on the letter as misplaced. The appellant further submitted that the mandatory acquisition steps having been skipped invalidates it. Further, no gazette notice and valuation reports were produced which violates the provisions of the Land Acquisition Act rendering the judgment ineective. He placed reliance on the case of Isaka Wanaina Mungai v National Land Commission (2017) eklr. 36. On the seventh and eighth issues, the appellant submitted that the trial court preferred the defence evidence which was awed contrary to the provisions of Section 107 of the Evidence Act and principles espoused in Okeno v Republic (1972) EA 32 where biased evaluation warrants interference. The appellant further submitted/contended that there was inconsistency in the compensatory claims that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 10

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the trial court failed to address as the SFT demanded repayment for the entire suit property while only a portion was compensated. 37. Finally it is submitted that the trial magistrate ignored the appellant’s submissions exhibiting bias and urged this court to set aside the decision tainted with bias as held in the decision of Union Insurance Company of Kenya v Ramzan Abdul Dhanji (1998) eklr. The appellant urged the court to allow the appeal and set aside the judgment of the trial court. 1st Respondent’s submissions. 38. 39. In their submissions led on 15th September, 2025 the 1st respondent identied the following as the issues for determination: i. Whether the trial court erred in law and in fact; ii. Whether the appeal raises sucient grounds to warrant setting aside the trial court’s decision; iii. Whether the judgement of the trial court should be upheld. On the issues identied for determination, it is submitted that the trial court correctly applied the law, did not misapprehend the evidence or reach a wrong decision to warrant this court interference. They relied on the cases of Mbogo & another v Shah (1968) EA 93, Selle & another v Associated Motor Boat Co. Ltd (1968) EA 123, Ephantus Mwangi v Duncan Mwangi (1982-88) 1 KAR 278 and African Line Transport Co. Ltd v A.G (2013) (ELC) and submitted that the Government acquired the suit property lawfully. They further submitted that it was clear from the evidence of DW1-DW6 that the land was voluntarily given to Kabasis Primary School and that the appellant’s father was compensated with alternative land in Kipkarwa settlement scheme measuring 5 acres whose existence the appellant does not deny but argues his father purchased it. It is their contention that the trial court’s decision was sound and that the appellant failed to discharge the burden of proof to the required standards and failed to prove any irregularity. They urged the court to uphold the trial court’s decision in its entirety and dismiss the appeal with costs. 2nd to 4th Respondents’ submissions 40. 41. In their submissions led on 12th September, 2025 the 2nd to 4th respondents identied the following as the issues for the court’s determination; i. Whether the suit parcel is Government land? ii. Whether the appellant is entitled to the prayers sought. On the rst issue it is submitted that the appellant’s late father Chepyator Komen voluntarily surrendered the suit property for expansion of Kabasis Primary school and construction of the Chief’s oce and in exchange he was allocated TransNzoia/Kipkarwa/101 measuring ve acres by Settlement Fund Trustee and a charge was executed in 1983. Based on the cases of Kipsirgoi Investment Ltd v EACC (2010) Eklr, Dina Management Limited v County Government of Mombasa & 5 others (2022), Ethics & Anti-Corruption Commission v Kapsoen Estate Limited & Another and Nelson Kazungu Chai & 9 others v Pwani University (2014) elr, they submitted that Government land that has been reserved for a specic purpose, thus alienated, is not available for allocation. The suit property which was Government land had been set aside for public use and could not revert back to private ownership. They submitted that the appellant was justly compensated with alternative land in Kipkarwa Settlement Scheme as evidenced by the letter dated 15th February, 1982 and the District https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 11

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Committee minutes. They relied on the cases of Commissioner of Lands v Coastal Aquaculture Ltd (1997) eKLR and Mwangi v Wambugu (1984) KLR 453. 42. It is further submitted that the chief’s oce had occupied the suit property with no complaint raised from 1980 until 2021, reinforcing the inference that the land had long been surrendered and compensation accepted. Based on the case of Mbira v Gachuhi (2002) 1 EALR 137, they submitted that long acquiecsence bars such claims as delay defeats equity. 43. On the second issue, they submitted that the appellant cannot seek protection of his rights under Article 40 of the Constitution as he was already compensated. Based on the case of Mudhihiri Mohammed & 2 others v Ahmed Imani & others (2009) eKLR, they submitted that costs follows the event and urged the court to dismiss the appeal with costs to them. Analysis and determination 44. In exercise of the duty vested in this court as a rst appellate court I have re-evaluated the evidence adduced before the lower court with a view of of reaching my own conclusion on it. I have reminded myself that a rst appellate court will not ordinarily interfere with ndings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the nding. In that regard, see Selle & another vs. Associated Motor Boat Co. Ltd (1968)E.A 123 and Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348. 45. As pointed herein above, the appellant instituted the suit described in paragraph (1) above, seeking the reliefs listed therein against the defendant on the ground that the defendants by themselves and/or through their agents, had trespassed into the suit property and began erecting illegal structures thereon. The alleged trespass to land was said to have occured or or before 1st April, 2021. 46. Upon being served with the suit papers the defendants led their respective defences, through which they claimed interest in the suit property. In particular, the defendants contended that the Government had been in occupation of the suit property with the consent of the plainti’s deceased father; that the suit property belongs to the Government; that the suit property was given to the Government by the plainti’s father and that the plainti’s father was compensated with another parcel of land namely, parcel number 101 Kipkarwa Settlement Scheme in Trans Nzoia County. 47. In response to the issues raised in the defendants’ responses, the appellant led a statement of reply to defence and defence to counterclaim in which he denied the defendants’ contention that the suit property had been given to the Government by his deceased father and that his deceased father was compensated with plot number 101 Kipkarwa Settlement Scheme in Trans Nzoia. 48. When the suit came up for hearing, the plainti acknowledged that the defendants, through the oce of the Chief Kabasis, had been in possession and use of the suit property for a longer period that the period indicated in his pleadings but maintained that the use and occupation of the suit property was not with the permission of his father. The plainti also acknowledged that parcel number 101 Kipkarwa Settlement Scheme in Trans Nzoia was in his father’s name but maintained that the acquisition of that plot by his father had no relation with the suit property. 49. On their part, the defendants led evidence, both oral and documentary showing that the suit property was given to Government by the plainti’s father and that the plainti’s father was compensated with plot number 101 Kipkarwa Settlement Scheme in Trans Nzoia. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 12

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50. Upon considering the totality of the evidence presented before her, the learned trial magistrate determined that the suit property was indeed given to Government by the plainti for extension of Kabasis Primary School before it was set aside for use and the chief’s oce. 51. I carefully read and considered the pleadings led by the parties in the lower court, the evidence adduced in support thereof and the judgment given/delivered by the lower court in respect thereof. 52. I have also read and considered the grounds of appeal taken up against the judgment of the lower court and the submissions of parties in respect of the appeal. 53. Upon evaluation of the case urged before the lower court, the evidence adduced in support thereof and the detailed judgment of the lower court, I nd that none of the grounds taken up in support of the appeal have been substantiated. The learned trial magistrate aptly captured the issues of law and fact arising from the case presented before her and properly directed herself on the issues of law and fact arising therefrom. 54. The upshot of the foregoing is that the appeal lacks merit and is for dismissal. Consequently, I dismiss it with costs to the respondents. 55. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED AT KABARNET THIS 19TH DAY OF NOVEMBER, 2025. L. N. WAITHAKA JUDGE Judgment delivered virtually in the presence of:N/A for the appellant Ms. Barasa for the 1st respondent N/A for the 2nd & 4th respondent Court Asst.: Ian https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18450/eng@2025-11-19 13

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