Obel v Ogalo & 4 others (Environment and Land Appeal E020 of 2024) [2026] KEELC 3311 (KLR)

Page 2 of 34 thereon any structures, or from in any way interfering with the plaintiffs use and enjoyment of the suit property. b) An order directed at the 3rd and 4th defendants to amend their land and survey registers to properly reflect the decision and/or award in Homa-Bay Senior Resident Magistrate’s Misc. Application No. 20 of 2008 in terms of the proper parcel number of the suit property and the proper parcellations of the Interested Party’s properties as currently occupied by them. c) In the alternative, an order for damages caused by the 1st defendant of destroying the plaintiff’s structures without a lawful court order as per the suit valuation report. d) General damages for trespass, fraud and irregularity as against the 1st defendant and 2nd defendants. e) Costs of this suit and interest thereon. f) Any other relief the copy deems fit to grant. pg. 2 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 3 of 34 2. The Plaintiff pleaded that the 1 st Interested Party was the purchaser of Parcel No. Kanyada/Kanyabala /2654 from the 2nd defendant and the 2nd defendant’s (now deceased) father by the name of John Stadi (deceased) vide an agreement dated the 28th November 2000 which is now registered in the name of the estate of Benson Ouma Otieno (deceased), the late husband of the 2nd Interested Party. That the 1st Interested Party developed the said parcel, built mabati rentals thereon and is in occupation of the said now seemingly unnumbered and un-parcelated parcel of land. That the 2nd Interested Party is the now registered proprietor of Land Parcel No. Kanyada/Kanyabala /2654 originally intended for purchase by the 1st Interested Party. 3. He stated that the 2nd Interested Party' purchased the land that they are currently in occupation of in the year 2006, developed the said parcel. Further, that Lawrence Ondiege Ng’onde acquired the suit land by way of sale/purchase from the father of the original registered proprietor and enforced through a court decree order between the claimant and the objector in Homa-Bay Senior Resident Magistrate’s Misc. Application No. 20 of 2008. Pursuant to the aforesaid court pg. 3 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 4 of 34 order/decree, a transfer of the same by this Court’s Executive Officer was affected and Lawrence Ondiege was then registered as the proprietor of the suit land, containing by measurement 0.03 Ha. 4. He pleaded that the order in Homa-Bay Senior Resident Magistrate’s Misc. Application No. 20 of 2008 was affected upon the 2nd and 3rd defendants having visited the suit land and established the boundaries of the same. That on unknown dates thereafter, the 1st defendant purported to have bought from Richard Ooko Stadi, the objector in HomaBay Senior Resident Magistrate’s Misc. Application No. 20 of 2008 a Land Parcel No. Kanyada/Kanyabala/2247 which was purportedly situate within the bounds of the propertyphysically awarded to the plaintiff in Homa-Bay Senior Resident Magistrate’s Misc. Application No. 20 of 2008. Further, that the 1st and 2nd defendants then caused the 3 rd and 4th defendants to illegally, irregularly and unprocedurally allocate the plaintiffs already allocated land to the defendant. 5. That around the month of March 2021, the 1 st defendant, without a lawful court order of eviction, illegally brought pg. 4 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 5 of 34 down the buildings erected upon the suit land by the plaintiff and commenced construction of his own. 6. The plaintiff laid down the particulars of trespass, fraud and illegality and prayed that the court allow his claim. 7. The 2nd defendant filed a Statement Of Defence dated 26 th April 2023 wherein he stated that he denied the contents of the plaint. He denied being a party to the sale of parcel no. Kanyada/Kanyabala 2653. Further, he denied the allegations that the 1st defendant was within the bounds of another property. He affirmed that that Land Parcel no. Kanyada/Kalanya/2247 belonged to the 1st Defendant and was in no way encroaching onto Land Parcel No. Kanyada/Kalanya/2653 allegedly owned by the plaintiff. He prayed that the suit be dismissed with costs. 8. The 3rd, 4th and 5th defendant filed a Statement of Defence dated 13th June 2022 where they denied the contents of the plaint in its entirety. 9. The matter then proceeded for hearing. Hearing at the trial court 10. PW1 was Esau Odiwuor Obel who adopted his witness statement dated 1st February 2022 as his evidence in chief. pg. 5 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 6 of 34 In it, he stated that he was the owner and registered proprietor of the Land Parcel No. Kanyada/Kanyabala /2653, through a sale of land agreement dated 3 rd March 2011. It was entered into with the immediate former registered proprietor/vendor by the name of Lawrence Ondiege Ng’onde as a bona fide purchaser for value. He stated that the vendor acquired the suit land by way of purchase from the father of the original registered proprietor by the name Richard Ooko Stadi and enforced through a court decree order between Lawrence Ondege and Richard Ooko Stadi in Homa-Bay Senior Resident Magistrate’s Misc. Application No. 20 of 2008. 11. He further stated that pursuant to the order of the court, a transfer of the same by the court’s executive officer was affected and Lawrence Ondiege was registered as the proprietor of the suit land measuring 0.03 Ha. That the order was effected upon the 2nd and 3rd defendants having visited the suit land, and established the boundaries of the same as per the court records in his possession and attached as evidence. Further, that Lawrence Ondiege Ng’onde, buried his family members on the suit land from the year 1973 and pg. 6 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 7 of 34 as established by this Honourable Court in Homa-Bay Senior Resident Magistrate’s Misc. Application No. 20 of 2008, passed good title with unchanged boundaries to him in the year 2011 vide the agreement dated the 3 rd day of March 2011. 12. He stated that on dates thereafter, the 1 st defendant purported to have bought from Richard Ooko Stadi, the objector in Homa-Bay Senior Resident Magistrate’s Misc. Application No. 20 of 2008 a Land Parcel No. Kanyada/Kanyabala/2247 which was situated within the bounds of the property physically awarded to Lawrence Ondiege Ng’onde by the court. He stated that the 1 st defendant caused the 2nd and 3rd defendants to illegally allocate his already allocated land to the defendant by allocating the same a parcel number, Land Parcel No. Kanyada/Kanyabala/2247. 13. He further stated that in March 2021, the 1 st defendant, without a lawful court order of eviction, illegally brought down the buildings he had erected upon the suit land and commenced construction of his own. That he dug up the graves, dumped the same onto a lorry and carted the same pg. 7 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 8 of 34 off to an unknown destination. He further stated that he had documented proof as the first purchaser from the original proprietor and that his rights over the suit land as a result takes primacy over the 1st Defendants’. 14. During cross examination, he stated that his land was Kanyada/Kanyabala/2653, which was from 2393. That the acreage was 0.08 Ha. found on sheet No.5. That parcel 2393 was divided into two i.e. Kanyada/Kanyabala/2653 and Kanyada/Kanyabala/2654 and Kanyada/Kanyabala/2247 is registered to the 1st defendant. He stated that he was claiming that where Kanyada/Kanyabala/2247 was, should be Kanyada/Kanyabala/2653 as Kanyada/Kanyabala/2247 came from Kanyada/Kanyabala/2194 which was subdivided to create 2 numbers 2247 and 2248. That his acreage was 0.03, and the 1st defendant's acreage was 0.06. that the land registrar can explain what happened. He stated that the mutation for Kanyada/Kanyabala/2194 was registered on 22/10/1997, and the mutation for Kanyada/Kanyabala/ 2393 was on 19th January 2001 and 2247 was divided in 1996. He further stated that the surveyor map was interfered with, and that he did not have the original map. pg. 8 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 9 of 34 15. Upon further cross examination, he stated that he bought the land from Lawrence, 10 years ago and had lived there since. That he did due diligence and for the last two (2) years the 1st defendant came and laid claim on their land. 16. Counsel then sought for a survey report and the court directed that the land registrar Homa Bay and land surveyor Homa Bay visit and determine the boundaries, exact positions and whether there is encroachment amongst Kanyada/Kanyabala/2247, 2653 and 2654 and file their respective reports within 60 days from the date of this order. 17. PW2 was Lawrence Ongode Ondiege who adopted his witness statement as evidence in chief. In it, he stated that at all times, the Plaintiff was the registered proprietor of the Land Parcel No. Kanyada/Kanyabala/2653 through a sale of land agreement dated 3rd March 2011 which PW2 entered into as the immediate former registered proprietor, with the plaintiff as a bona fide purchaser for value. Further, that he acquired the suit land by way of purchase from the father of the original registered proprietor by the name Richard Ooko Stadi and enforced through a court decree order in Homa Bay Senior Resident Magistrate’s Misc. Application No. 20 of pg. 9 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 10 of 34 2008. That the decision of the court was arrived at through a scene visit where the court found his settlement and houses established upon the suit land. 18. He stated that a transfer was effected and he was then registered as the proprietor of the suit land. He urged that he buried his family members on the land and on dates he could not recall, the 1st defendant purported to have purchased the land from Richard Ooko Stadi which was situated within the bounds of the property physically awarded to him in HomaBay Senior Resident Magistrate’s Misc. Application No. 20 of 2008. He urged that the 1st defendant caused the 2nd and 3rd defendants to illegally allocate the plaintiff’s land. He further stated that in March 2021, the 1 st defendant, without a lawful court order of eviction, illegally brought down the buildings he had erected upon the suit land and commenced construction of his own. That he dug up the graves of his loved ones and dumped the same onto a lorry and carted the same off to an unknown destination. 19. During cross examination he stated that land 2653 belonged to him and from the green card it was a subdivision pg. 10 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 11 of 34 of 2993. That 2247 was sitting on 2653, and he had been residing on the land. 20. He further testified that he sold Esau No. 2653 and was not aware if a way was available at the time of sale. He stated that he did not know George Oner Ogalo. Further, that according to the green card No 2247 is bigger than 2653. 2247 was mapped on 2653. That it is not possible for a bigger parcel of land to be mapped on a smaller parcel of land and, that he was not aware if 2653 was a subdivision of 2393 or if 2247 emanated from 2194. 21. The Plaintiff closed the case. 22. DW1 was George Oner Ogalo who adopted his record statement as evidence in chief. He stated that he bought the whole of land parcel Kanyada/Kanyabala/2247 from the late Richard Ooko Stadi and the same was transferred to him in the year 2009 with the boundaries well spelt out. That the plaintiff on the other hand has been the registered proprietor of land parcel Kanyada/Kanyabala/2653. He further stated that he had been away for work and the plaintiff took advantage of his absence and transposed himself into his pg. 11 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 12 of 34 parcel of land being Kanyada/Kanyabala /2247 while his property is Land Parcel No. Kanyada /Kanyabala /2653. 23. During cross examination, he stated that he first visited the land in late 2008 and saw it physically. He stated that he didn't find structures on the suit property and when shown PExh 16 he stated that he could not relate the photo to anything. He denied evicting anyone from the land and urged that someone subsequently put up a structure on the land. He stated that Esau was the person who had done it and put in tenants. Further, that he did not evict him and he found the land property delineated with one huge tree in the middle. 24. DW2 was Richard Ooko Stadi who testified that the land was personally registered to him and John Omito and subdivision was done in 1996. The subdivision that resulted into Kanyada/Kanyabala/2247 and 2248 was done by John Onditi and himself. That he did the subdivision for 2653 in 2001. The 2 parcels 2653 and 2654 were from 2393 and 2247 and 2248 bore 2194. He stated that they came from different parcels and that he knew Lawrence who had an agreement with John Onditi, after subdivision 2248 was given pg. 12 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 13 of 34 to Lawrence on which he sold to Mr. Owiti, 2247 was 0.9 Ha. 2248 was 0.06 Ha. He further stated that the structures were on 2248 and Lawrence removed them when he sold the land to Owiti. He stated that he was the owner of 2247 until he sold it to the 1st defendant. He denied knowing the plaintiff. 25. During cross examination, he stated that John Stadi was his father and he died in 2004. That he did succession in respect of the land and that he entered into an agreement with the 1st Interested Party for sale of land on 28 th November 2000 and has been staying on the land to date. He stated that he was present when a survey was done by an Order of this court and knew where 2653 is on the ground and that's where the 1st Interested Party resided. 26. That the 1st Interested Party resides on 2653 not 2654 and that his father -John Stadi sold land to Lawrence Ng'onde which was parcel 2248 to Lawrence Ng'onde. Lawrence again sold it so he did not know who owns it. . Further, that Lawrence sold it before they transferred it to him. He further stated that he was not aware of all those subsequent charges on the green card in 2010. pg. 13 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 14 of 34 27. The 1st Interested Party Pamela Adhiambo Ojwang, testified and stated that she bought land from Lawrence in 2000 and that he had a home and his family. He vacated and Esau (plaintiff) moved in but he doesn't reside on the land anymore. He had travelled but upon return, he found that his house had been demolished and someone else taken over. When referred to PEXH 40 she stated that she recognized the same as it was an ongoing Construction. That that was where Esau was before and there were structures erected after the demolition of Esau's home. 28. During Cross -examination she stated that she did not remember when Lawrence moved out and she was not there when Esau was being moved. That she resided on 2654 which was registered to Benson, the deceased husband of 2nd Interested Party. That her land and the 2 nd interested Parties are demarcated by a road. She found Lawrence on his land but did do not know when he moved out. Further, that 2653 and 2654 came from the same land. When referred to mutation for 2393 -PEXH she stated that it showed that the subdivisions were 2653-0.03 Ha 2654-0.05 Ha. That she bought 0.05 Ha and Benson also bought 0.05 pg. 14 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 15 of 34 Ha of 2653 and she got Consent for transfer of 2654 but did not have a title deed. She stated that she resides on 2654 not 2653, and that 2653 belongs to the 2 nd Interested Party and her husband. 29. DW3 was Caleb Otieno Anyango, a Surveyor from Homa Bay County. He stated that he visited the site on 16 th November 2023 and found out that 2247, 2653 and 2654 are clearly demarcated on the ground with a barbed wire surrounding each parcel, and, that there is no encroachment between the parcels. He produced the Survey reports as DEXH 7. 30. During Cross examination, he stated that 2653 was occupied by Caroline Anyango, Widow of Benson Ouma Otieno and 2654 by Pamela, the 1 st Interested Party. When referred to PExh 24 he stated that it was a letter is from their office. When referred to PEXH -40, he stated that it was a photo of 2247, and that in the records, 2654 is registered to Benson Ouma Otieno and Pamela is on occupation and 2653 is registered to Esau Obel. That he not find the Plaintiff in occupation of parcels in issue. 31. The Defence closed their case. pg. 15 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 16 of 34 32. Upon considering the testimonies of the witnesses, the evidence tendered in court and the submissions of the parties, the trial magistrate dismissed the appellants’ suit with costs vide its judgement delivered on 19 th April 2024. 33. Being dissatisfied with the judgement and decree, the Appellant instituted the present appeal vide a memorandum of appeal dated 17th May 2024 premised on the following grounds. 1) The learned Magistrate erred in law and fact by failing to address the issue of whether the appellant was entitled to general damages as sought in his pleadings. 2) The learned Magistrate erred in fact and in law in failing to note that the appellant’s action was based on fresh and new trespass and damages to the suit property and not premised on enforcing the decree in Misc. Appl. No. 20 of 2008. 3) The learned Magistrate erred in fact and in law in tailing to appreciate the magnitude of the decree in Misc. Appl. No. 20 of 2008 in relation to the dispute before the trial court. pg. 16 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 17 of 34 4) The learned Magistrate erred in law and fact by disregarding the appellant’s testimony, evidence tendered, written submissions and authorities, thereby arriving an unjust and an unfair decision. 5) The learned Magistrate erred in fact and in law in failing to consider the magnitude of dispute herein. 6) The learned magistrate erred in law and fact by holding that the appellant had failed to prove his case on a balance of probabilities. 34. The appeal was canvassed by way of written submissions. Appellants’ submissions 35. The Appellant laid down a background of the matter and proceeded to identify and submit on issues for determination. 36. On who the indefeasible owner of the suit property is, Counsel urged that the right to own and acquire property in Kenya is a constitutional right enjoyed by all persons pegged on Article 40 of the Constitution. Further, that a title holder enjoys statutory protection by dint of section 26 (1) (b) of the Land Registration Act. He urged that the appellant is absolute and indefeasible owner of land parcel known as pg. 17 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 18 of 34 Kanyada/Kanyabala2653/2653 and further, that it is trite law that no land can have two titles. He cited the case of Hubert L. Martin & 2 others v Margaret J. Kamar & 5 Others [2016] eKLR in this regard. 37. Counsel urged that the origin of the appellant’s title over the suit property can be traced to the court case, namely Homa Bay Magistrates’ Court Miscellaneous Application No. 20 OF 2008, wherein the court decreed that Lawrence Ondiege Ng’onde has all rights to possess the whole land parcel number Kanyada/Kanyabala/2653, which he had bought from the father of the objector Richard Ooko Stadi. That the court also decreed that Mr. Lawrence Ondiege Ng’onde had stayed with his family on this land from 1973 to date a period of over 30 years. Subsequently, the appellant purchased the suit property from Lawrence Ondiege Ng’onde, which property was successfully registered in the name of the appellant. He urged that the ownership and possession of the suit property by the appellant has never been challenged or disputed by any person at any point in time, thus the appellant is the rightful and indefeasible proprietor of the suit property. pg. 18 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 19 of 34 38. On whether the 1st Respondent trespassed and/or encroached on the suit property, Counsel cited Section 3 (1) of the Trespass Act, Cap 294 and urged that trespass is an intrusion by a person into the land of another who is in possession and ownership. He stated that the nature of the trespass and/or encroachment was characterized through the demolition of structures on the suit property, which has the left the land in a condition that is far from what is captured in the valuation report that was produced before the trial court. Counsel urge that the appellant is the indefeasible owner of the suit property as indicated in the certificate of title, thus, the appellant has the right to quiet possession and enjoyment of the same as guaranteed under Article 40 of the Constitution. 39. Counsel posited that there exist several parcels and/or title number between Kanyada/Kanyabala/2653 and Kanyada/Kanyabala 2247, which makes it quite impossible for the two parcels of land to be adjacent to each other on the map and/or on the ground. Further, that the appellant vide his pleadings asserted to the fact that he never authorized the 1st and 2nd respondents to enter the suit pg. 19 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 20 of 34 property and/or demolish the structures therein. Additionally, that the 1st and 2nd respondents vide their pleadings argue that they entered the suit property since they assumed that land parcel number Kanyada/Kanyabala /2247 is located at the same place where the suit property (Kanyada/Kanyabala /2653) is located. In the circumstances, he urged the court to find that the 1 st and 2nd respondents trespassed and carried an illegal eviction and demolition of structures on the suit property. 40. On whether the appellant is entitled to an award of general damages for trespass, Counsel urged that the trial court failed to assess the extent of damages if any was conducted by the 1st and 2nd respondents at the detriment of the appellant. That since the appellant has proved that the 1st and 2nd respondents trespassed unto his property, this court has the solemn duty to assess damages as pleaded by the appellant. He cited the Court of Appeal decision in the case of Kenya Power & Lighting Company Limited vs. Fleetwood Enterprises Limited [2017] eKLR and Duncan Nderitu Ndegwa vs. KP & LC Limited & Another (2013) eKLR pg. 20 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 21 of 34 in this regard. He also cited Nakuru Industries Limited vs S S Mehta & Sons [2016] eKLR. 41. Counsel submitted that the Appellant produced a valuation report highlighting the value of the suit property and the developments therein prior to the illegal demolition of the structures. According to the valuation report, the value of the property as at 5th February 2020 Kshs. 750,000/=), an amount which was never disputed by the respondents. He beseeched the damages for court trespass to in award the appellant the sum Kshs. general 750,000/= enforceable against the 1st and 2nd respondents. 42. On the orders for a permanent injunction, Counsel reproduced the definition of the same as per the Black’s Law Dictionary and submitted that in the current case, the appellant’s right to quiet possession and enjoyment of the suit property as guaranteed under Article 40 of the constitution was violated by the 1 st respondent’s illegal actions of demolition of structures therein. Further, that prior to the demolition of structures on the appellant’s suit property, the 1st respondent had premeditated his actions by serving a demand letter upon the appellant claiming pg. 21 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 22 of 34 encroachment, which was far from the truth. That according to the 1st respondent demand letter dated 12 th February 2020, which was addressed to the appellant, the contents of the demand letter alleged the 1st respondent’s property was adjacent to the appellant’s property. He stated that the 1 st respondent proceeded to confirm that the appellant had constructed structures on the property, which he had assumed was his land parcel. 43. Counsel submitted that the demand letter proceeded to demand the eviction of the appellant from the suit property within 14 days from the date of the letter. The issuance of the demand letter served as the catalyst to the demolition of structures on the appellant’s property by the 1 st respondent. He pointed out that the contents of the 1 st respondent’s demand letter is contrary to the findings of the Government Surveyors report that was filed in court. According to the Government Surveyor’s report, the appellant and the 1 st respondent did not share a common boundary and that the property were not adjacent to each other. In the circumstances, the 1st respondent’s claim that his property was adjacent to the appellant’s property was false and his pg. 22 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 23 of 34 prayers for eviction were ill-advised as well as the illegal demolition of structures on the appellant’s property. 44. He urged the court to allow the injunction in the interest of justice. 1st Respondents’ submissions 45. Counsel for the 1st respondent laid down the brief background of the case and identified issues for determination before submitting on the same. 46. On whether the 1st Respondent trespassed onto the Appellant's land property parcel number Kanyada/Kanyabala/2653, Counsel cited the definition of the same under Section 3(1) of the Trespass Act and the 10 th Edition of Black's Law Dictionary. He urged that the 1 st Respondent is the legal registered owner of land parcel number Kanyada/Kanyabala/2457 and the Appellant is the registered owner of land parcel number Kanyada/Kanyabala/2653. That the trial court on 21 st August 2023 upon the oral application of the 5 th respondent, made a reference of the matter to the land registrar and surveyor Homa Bay County, to visit and determine the boundaries, pg. 23 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 24 of 34 physical positions and encroachment among land parcels Kanyada/Kanyabala/2653, 2247 and 2654. 47. A report dated 22nd November 2023 and according to DW- 3, the surveyor who produced the same in court, and it was established that the all the Parcels of land had well-defined boundaries on the ground barbed wire fences; all the three parcels existed on the ground and that there was no encroachment between the parcels because land parcel Kanyada/Kanyabala/2457 did not neighbour land parcels Kanyada/Kanyabala/2653 and 2654 on the ground. 48. Counsel submitted that without possession of land parcel number Kanyada/Kanyabala/2247, the Appellant cannot claim trespass as against the 1 st Respondent. He placed reliance on the case of M'Mukanua M’Mbijiwe (1984) KLR 761 and the case of Charles Ogejo Ochieng vs Geoffrey Okumu (1995) eKLR in support of this submission. He urged that the Appellant failed to prove the allegations of trespass as against the 1st Respondent. That in fact, the survey report established that the Appellant's land property Kanyada/Kanyabala/2653 was occupied by the 2 nd Interested pg. 24 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 25 of 34 Party and instead it was the Appellant who had trespassed onto the 1st Respondent's parcel of land. 49. On the issue of general damages, Counsel cited the decision of the Court of Appeal in the case of Kenya Power & Lighting Company Limited vs Fleetwood Enterprises Limited [2017] eKLR and cited Sections 107 (1), (2) and 109 of the Evidence Act on the burden of proof. He additionally cited Raila Amolo Odinga & Another vs Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR in this regard, urging that it is trite that once a party proves trespass then an award of damages is a must. Therefore, as the Appellant failed to established trespass on the part of the 1st Respondent, he cannot be entitled to such an award. He prayed that the court dismiss the appeal with costs. Analysis and Determination 50. This is a first appeal. The principle upon which a first appellate court exercises jurisdiction is well settled. The task of a first appellate court was summarized in Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows: pg. 25 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 26 of 34 “This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 51. Additionally, the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows: “As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions 52. The following issue arises for determination; Whether the trial court erred in dismissing the Appellants’ suit 53. The Appellants’ cause of action was premised on the allegation of trespass. Trespass refers to unjustified entry into the private land of another. See, Section 3(3) of the Trespass Act, Chapter 294 Laws of Kenya, for the definition. pg. 26 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 27 of 34 54. In order to determine whether there was any trespass on the suit land, upon an oral application by Counsel for the 5 th Respondent, the trial court directed that the Land Registrar and Land Surveyor Homa Bay County visit the suit land and conduct a survey to determine the issue of encroachment. There was evidence that the Surveyor then visited the suit land and prepared a report which he produced in court when testifying as DW3. 55. The evidence was that the surveyor having visited the site on 16th November 2023, he established that all the parcels were clearly demarcated and that there was no encroachment by any party. The survey report dated 22 nd November 2023 was produced as exhibit 7. The court, having established that the Appellant was the registered proprietor of the suit land, relied on the survey report and found that the appellant had failed to prove that there was trespass of his suit land. 56. I have carefully considered the evidence on record. It is clear to me, particularly from the surveyor’s report, DExh 7, that no party had trespassed onto any other party’s land. What the parties alleged were mere imaginations since they pg. 27 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 28 of 34 were not experts in determining the extent of their parcels of land. This court therefore finds the trial magistrate did nor err. I find no reason to interfere with her finding on the issue. 57. Additionally, the Appellant had alleged that there was fraud to wit; a) The 1st defendant causing the 3 rd and 4th defendants to apportion him already allocated property belonging to the plaintiff. b) The 1st defendant causing the 3 rd and 4th defendants to allocate a land number to a property already awarded by a court of law to the vendor preceding the plaintiff as proprietor of the suit land. c) The 3rd and 4th defendants, having already visited the suit land by dint of a court order and having established the boundaries of the suit land, allocating an erroneous number to the vendor preceding the plaintiff as proprietor of the suit land. d) The 1st defendant, a surveyor by profession, having found the suit land already occupied by dint of the order in Homabay Senior Resident Magistrate's pg. 28 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 29 of 34 misc. Application no. 20 of 2000, surreptitiously, irregularly, and illegally purported to have purchased what in actual fact was and/or is the suit property. e) The 1st defendant occupying land rightfully accruing, owing and belonging to the plaintiff 58. It is trite law that he who alleges must prove, which position is succinctly captured in Sections 107, 109 and 112 of the Evidence Act. Section 107 provides as follows; “(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 59. Sections 109 and 112 of the same Act states as follows: “109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law pg. 29 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 30 of 34 that the proof of that fact shall lie on any particular person. 112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 60. In discussing the standard of proof in civil liability claims in this jurisdiction, the Court of Appeal in Mumbi M'Nabea vs David M. Wachira [2016] eKLR stated as follows: “In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. …The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil pg. 30 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 31 of 34 Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that: “Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognises that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.” 61. On the question of burden of proof, Denning J, in Miller – vs- Minister of Pensions [1947] 2 All ER 372 had this to say: “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not. This, burden on a balance or preponderance of probabilities means a win however narrow. A draw pg. 31 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 32 of 34 is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.” 62. Given that the allegations were those of fraud, it is essential to note that a fundamental principle of fraud is that the same must be specifically pleaded and proved. The standard of proof is higher than on a balance of probabilities. This was aptly expressed in Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA (as he then was) stated as follows: “It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently”. 63. Notably, fraud cannot be inferred from facts. In Moses Parantai & Peris Wanjiku Mukuru suing as the legal pg. 32 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 33 of 34 representatives of the estate of Sospeter Mukuru Mbeere (deceased) vs Stephen Njoroge Macharia [2020] eKLR, the Court of Appeal observed as follows: “In the instant case, the appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a finding that indeed there was fraud….” 64. As regards the burden of proof in matters fraud, the same is higher than that required in civil cases, that of proof on a balance of probabilities; and lower than that required in criminal cases being beyond reasonable doubt. The Court in Moses Parantai & Peris Wanjiku Mukuru (supra), observed as follows: “…. Fraud is a quasi-criminal charge which must, as already stated, not only be specifically pleaded but also proved on a standard though below beyond reasonable double doubt, but above balance of probabilities…” 65. Applying the principles and precedents above, I noted that throughout the appellants’’ case he did not provide cogent, pg. 33 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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Page 34 of 34 sufficient and irrebuttable evidence, to that higher standard than a balance of probabilities, to convince the court that there was any fraud of the nature he had alleged. In fact, the survey report on its own negates all the allegations tendered by the appellant ab initio. 66. The upshot of the foregoing is that the Appellants’ appeal fails in its entirety. The Respondents and Interested Parties are awarded costs. 67. Orders accordingly. Judgment dated, signed and delivered via the Teams Platform this 28th Day of April 2026 HON. DR. IUR NYAGAKA JUDGE In the presence of, R. Okumu Advocate for the Appellant Appellant also present online Ms. Ochieng Advocate for the 1st Respondent Ms. Ochieng holding brief for Odindo for the 2 nd Respondent No Appearance for the 3rd to 5th Respondents pg. 34 Homa Bay ELCLA E020 of 2024- JUDGEMENT D.O.D 28.4.2026

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