Karauki & 2 others v Thuranira (Land Case Appeal E093 of 2021) [2026] KEELC 5322 (KLR)

2015. One of the key issues that fell for determination in the case was whether the appellants had colluded with the Land Adjudication Officer and the Land Registrar to alter the acreage of land parcel numbers Amwathi/Maua/11036 and Amwathi/Maua/11037 from 0.59 acres each to 0.4 acres each and Amwathi/Maua/11038 to create and parcel numbers Amwathi/Maua/11132. Invariably, this being a first appeal, the court is expected to re-evaluate the evidence on record in the context of the grounds of appeal and make a pronouncement on the trial court’s finding on the issue. Before I do that, I will briefly outline the background to the appeal; the grounds of appeal; and the parties’ submissions in the appeal. The section and block identification of all the parcels featuring in this Judgment is Amwathi/Maua. The relevant land parcels will therefore be identified without the above prefix Background 2. The land subject matter of the appeal is located in Maua. It was originally demarcated as parcel number Amwathi/Maua/1386 and was recorded in the name of the late M’Mwereria M’Inyingi [hereinafter referred to as “the deceased” or “the late M’Inyingi”]. The 1st appellant [Esther Karauki] is a daughter of the late M’Inyingi. All the other parties named in the appeal are grandchildren of the late M’Inyingi. 3. The suit giving rise to this appeal was filed on 31/7/2015. It does emerge from the materials in the record of appeal and from the original record of the trial court, that at that point in time, Amwathi/Maua Adjudication Section was a ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 2

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registered section and a number of land owners had been issued with title deeds. It is perhaps for this reason that the issue of consent of the Land Adjudication Officer [for the purpose of initiating the suit that gave rise to this appeal] did not arise in the trial court. Having made the above observations relating to original ownership of the suit land; kinship of the parties; and the adjudication status of the suit lands, I will now turn to the litigation background. 4. It does emerge from the testimony of DW1 [an officer from the Land Adjudication Office] that on conclusion of the adjudication exercise in Amwathi/Maua, parties to this suit were registered as proprietors of the following parcels, which were all subdivisions out of parcel number 1386: i. Parcel No registered 11036 under measuring Samuel 0.40 Gitonga acres was Kithela [3rd acres was appellant]. ii. Parcel No 11037 measuring 0.40 registered under Morris Thuranira [respondent]. iii. Parcel No 11038 measuring 0.10 acres was registered under Esther Karauki [1st appellant]. iv. Parcel number 11132 measuring 0.10 acres was registered under Rose Mwari [2nd appellant]. 5. It is important to observe that the respondent disputed the above acreages and contended that the appellants colluded with the Land Adjudication Officer and the Land Registrar to alter the adjudication records and create parcel numbers 11038 and 11132 out of parcel number 1386. It was his case that only two parcels, 11036 and 11037 were ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 3

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demarcated and adjudicated as subdivisions out of parcel number 1386 and each subdivision measured 0.59 acres. He contended that the fraudulent creation of the additional parcels reduced the acreages of the two subdivisions. 6. Consequently, post- adjudication, the respondent filed a suit in the Chief Magistrate Court at Maua, seeking: (i) a declaration that he [the respondent] was the lawful owner of parcel number 11037 measuring 0.59 acres; (ii) a declaration that the changes, actions, alterations and amendments made to the records/maps in respect of acreage of parcel number 11037 were fraudulent, unlawful and illegal and the Land Registrar and the Adjudication Officer were to be decreed to rectify the records; (iii) an order decreeing the Land Registrar and the Adjudication Officer to cancel registrations relating to parcel numbers 11036, 11038 and 11132 to facilitate the above rectification; (iv) a permanent injunction restraining the appellants against entering, remaining on, building on, cultivating, plucking miraa, cutting down trees or interfering with the possession, occupation, user, development or enjoyment of parcel number 11037 measuring 0.59 acres; and (v) costs of the suit. 7. Upon being served with the suit papers, the appellants filed a joint defence and counterclaim dated 13/8/2015, in which they denied the allegation of fraud. They contended that the 1st appellant; the 3rd appellant; and the respondent, all got their respective parcels from the late M’Inyingi [father to the 1st appellant and grandfather to all the other three parties to this appeal]. They averred that the respondent ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 4

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got 0.4 acres demarcated as parcel number 11037; the 3rd appellant got 0.4 acres demarcated as parcel number 11036; and the 1st appellant got 0.2 acres demarcated as parcel number 11038. They added that the 1st appellant subsequently transferred to the 2nd appellant 0.1 acres out of parcel number 11038, retaining 0.1 acres. It was their case that the 0.1 acres transferred to the 2nd appellant by the 1st appellant was demarcated as parcel number 11132. 8. It was the case of the appellants that in 2014, the respondent removed the fence demarcating the parcels and annexed parcel numbers 11038 and 11132 as part of parcel number 11037. He then started erecting structures on the two parcels belonging to the 1st and 2nd appellants. 9. By way of counterclaim, the 1st and 2nd appellants sought: (i) an order directing the respondent to vacate parcel numbers 11038 and 11132; (ii) an order directing the respondent to remove his structures from parcel numbers 11038 and 11132; (iii) general damages for loss of user; and (iv) costs of the suit. 10. During trial, the respondent testified as PW1. His testimony was that he was a grandson of the late M’Inyingi, adding that the late M’Inyingi had four children: (i) Francis Kithela [father to Samuel Gitonga – 3rd appellant]; (ii) Esther Karauki [1st appellant]; (iii) Hellen Gakobu [mother to Rose Mwari – 2nd appellant]; and (iv) Janet Kabuu [mother to Morris Thuranira – respondent]. The late M’Inyingi gave parcel number 1386 to his two grandsons in equal shares, namely: (i) Samuel Gitonga (3rd appellant) 0.59 acres; and (ii) Morris Thuranira [respondent] – 0.59 ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 5

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acres. He did not give any portion to Esther Karauki. The appellants went to the Lands Office and fraudulently transferred part of the land to themselves. He added that despite going to the Lands Office to complain, no one heard him. He contended that he had all along occupied the parcels registered in the names of the two appellants. 11. The respondent also led evidence by his mother who testified as PW2. She stated that her late father did not give land to any of his children, adding that he gave her son [PW2’s son] 0.59 acres and gave Samuel Gitonga 0.59 acres. 12. Besides calling his mother as a witness, he called Cecilia Thirindi Makumbi [PW3]. Her evidence was that she never “heard whether” M’Inyingi gave land to Rose and Esther. She added that there was a time when Njuri Ncheke adjudicated the dispute relating to the sharing out of M’Inyingi’s land. 13. On their part, the appellants applied for summonses to the Land Adjudication Officer and the Land Registrar to tender records relating to the parcels. Joseph Mbai, a delegatee of the Land Adjudication and Settlement Officer, Igembe Central/North/South Sub Counties, attended court and testified as DW1. He tendered a report dated 9/2/2021 summarizing the adjudication history and records relating to parcel numbers 1386, 11036, 11037, 11038 and 11132. 14. The evidence of DW1 was that parcel number 11036 initially measured 0.40 acres and was recorded under Samuel Gitonga Kithela. It was a subdivision from parcel ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 6

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number 1386. At the time of his testimony, 0.10 acre portion had been hived out of parcel number 11036 to create parcel number 13490 and what remained as parcel number 11036 was 0.30 acres. It was the evidence of DW1 that the two parcels were demarcated on Sheet Number 4/4. 15. DW1 further testified that parcel number 11037 was recorded under Morris Thuranira Ntongai and measured 0.40 acres, adding that it was a subdivision out of parcel number 1389. He added that parcel number 11037 was demarcated on Sheet Number 4/4 16. DW1 added that parcel number 11038 was recorded under Esther Karauki Ntoiti and initially measured 0.20 acres. It was a subdivision out of parcel number 1386. He further testified that parcel number 11132 was demarcated under Rose Mwari and was a subdivision hived out of parcel number 11038. Both parcels were demarcated on Sheet Number 4/4. 17. DW1 testified that all the four parcels that featured in the primary suit and in the counterclaim were subdivisions out of parcel number 1386, adding that parcel number 1386 belonged to M’Mwereria M’Inyingi. He stated that parcel number 1386 was subdivided pursuant to an award made in Adjudication Register (A/R) Objection No 2178/1997. He testified that through the above AR Objection Award, parcel number 1386 was subdivided into four parcels, among them, the following three parcels: (i) parcel number 11036 measuring 0.40 acres, registered under Morris Thuranira (sic); (ii) parcel number 11037 measuring 0.40 ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 7

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acres, registered under Samuel Gitonga Kithela; (iii) parcel number 11038 measuring 0.20 acres, registered under Esther Karauki Ntoiti. Lastly, DW1 stated that there was no pending case in the adjudication records relating to the parcels. 18. Besides leading evidence by an officer from the delegatee of the Land Adjudication Officer, the appellants led evidence by Samuel Gitonga [3rd appellant] who testified as DW2. His testimony was that all the parties to this appeal were from the family of the late M’Inyingi who owned land parcel number 1386. The late M’Inying gave him and the respondent 0.4 acres each, and gave Esther Karauki (1st appellant) 0.2 acres. The late M’Inyingi remained with 0.18 acres. Subsequently, Esther Karauki gave to Rose Mwari 0.1 acres and retained 0.1 acres. He confirmed that the above parcels were demarcated through an AR Objection. 19. DW2 further testified that the respondent lodged a case against them before the Njuri Ncheke and the Njuri Ncheke heard the case and upheld the award of the Land Adjudication Officer and advised each of the family members to stay in their respective parcels. 20. Upon receiving submissions, the trial court rendered the impugned Judgment in which it found that the appellants had failed to prove that they were given any share of the suit land. The trial court found that parcel numbers 11038 and 11132 were fraudulently created. Lastly, the trial court found that the appellants had failed to prove that the respondents had constructed on their land. Consequently, the trial court dismissed the appellants’ counterclaim and ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 8

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allowed the respondent’s claim as prayed in the amended plaint. Appeal 21. Aggrieved by the Judgment and decree of the trial court, the appellants brought this appeal through a memorandum of appeal dated 11/8/2021. The memorandum of appeal was amended on 6/8/2025. The appellants advanced the following seven (7) grounds of appeals :1) That the Learned Chief Magistrate erred in law and facts in granting the orders of injunction against the appellants when the respondent had not satisfied the conditions upon which such orders could be granted. 2) That the Learned Chief Magistrate erred in law and in facts in failing to hold that the letters of subdivision that purported to grant the plaintiff and the 3rd defendant equal shares of land parcel No Amwathi/Maua/1386 were revoked by Objection dated 24th June 1998. 3) That the Learned Trial Magistrate erred both in law and in fact by deceased one validly transferred holding M’Mwereria Maua/Amwathi that the M’Inyingi had the land impugned to the plaintiff/respondent and the 3rd defendant/appellant who are his grandchildren to the exclusion of his children ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 9

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when there was evidence authorizing the that the letters said division were indeed revoked by an Objection dated 24th June 1998. 4) That the Learned Trial Magistrate erred both in law and in fact plaintiff/respondent by holding was the that the legal and beneficial owner of land parcel No 11038 when there was overwhelming evidence that the letters conferring such legality was indeed revoked. 5) That the Learned Trial Magistrate erred in law and in fact by declaring that the plaintiff and the 3rd defendant equal shares of the land parcel No transferred Amwathi/Maua/1386 to the plaintiff had and been the 3rd defendant in equal shares despite there being no evidence on record of signed requite transfer documents and/or agreement as required by law. 6) That the Learned Trial Magistrate erred in law and in fact by failing to consider the testimony and evidence of DW1 (Joseph Mwai) an officer from the Land Adjudication and Settlement Office who adduced crucial evidence as to the ownership and subdivision of the suit property known as land parcel No Amwathi/Maua/1386. ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 10

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7) That the trial court’s Judgment of 12th July 2021 went against the weight of the evidence adduced at trial . 22. The appellant prayed for an order allowing the appeal; setting aside the impugned judgment and allowing the appellants’ counterclaim. They also prayed for costs of the appeal and the counterclaim in the lower court. Appellants’ Submissions 23. The appeal was canvassed through written submissions dated 24/11/2025, filed by M/s Mbaabu M’Inoti & Co Advocates. On the contention that the trial court erred in granting orders of injunction when the respondent had not satisfied the relevant criteria, counsel for the appellant submitted that the trial court failed to subject the respondent’s evidence to rigorous analysis and/or scrutiny, adding that the trial court simply declared that the respondent had proved his case on the balance of probabilities. 24. On the allegation that the trial court erred in failing to hold that the letters of subdivision that purported to grant the respondent and the 3rd appellant equal shares of parcel number 1386 had been revoked by the AR Objection, counsel submitted that the said letter was overtaken by the subsequent objection which he contended was filed by the late M’Inyingi. 25. On the contention that the trial court erred by holding that the deceased had validly transferred land to his two grandsons to the exclusion of his own children when there ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 11

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was evidence that the letter authorizing the subdivision was revoked by the subsequent A/R Objection, counsel faulted the trial court for placing heavy reliance on the doctrine of intervivos gifts, adding that the doctrine would be applicable only in circumstances where the gift is complete and irrevocable. Counsel argued that the intended gift was revoked through the A/R Objection. 26. On the contention that the trial court erred by holding that the respondent was the legal and beneficial owner of parcel number 11037 yet there was overwhelming evidence that the letters conferring such legality had been revoked, counsel submitted that title number 11037 was “issued” in clear breach of the subsisting objection. Counsel added that, in law, a donor retains the right to revoke a gift of land at any time before registration is completed and any registration that takes place after express revocation confers no title. 27. On the contention that the trial court erred by declaring that parcel number 1386 had been transferred to the respondent and the 3rd appellant in equal shares despite the absence of any evidence of signed transfer documents and/or agreement as required by law after the revocation, counsel argued that even if the letter of 15/6/1998 were to be treated as a transfer instrument (which counsel contested), there was no fresh consent after the revocation. Citing Section 38 of the Land Registration Act, counsel argued that a transfer must be executed by the registered proprietor in the prescribed form. ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 12

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28. On the contention that the trial court erred in failing to consider the testimony and evidence of DW1 (Joseph Mwai – an officer from the Land Adjudication Office], counsel argued that DW1 was the only independent witness from the “Lands Registry”, adding that the said witness confirmed on oath that “the Objection of 24th June 1998 is still on the official file and has never been withdrawn”. Counsel faulted the trial court for making only “a passing reference to DW1” and for completely failing to evaluate his crucial evidence. 29. Lastly, counsel submitted that when all the evidence on record is weighed, it turns out that the decision of the trial court went against the weight of the evidence that was on record. Counsel urged this court to allow the appeal in terms of the prayers in the amended memorandum of appeal. Respondent’s Submissions 30. The respondent filed written submissions dated 27/3/2026 through M/s Ngunjiri Michael & Co. Advocates. Counsel for the respondent identified the following as the five issues that fell for determination in the appeal: (i) Whether the trial court erred in finding that the respondent was the lawful owner of parcel number Amwathi/Maua/11037 measuring 0.59 acres; (ii) Whether the alleged objection dated 24/6/21998 had any legal or evidential value; (iii) Whether the trial court properly evaluated the evidence including that of DW1; (iv) Whether the orders of injunction were properly granted; and (v) counterclaim had any merit. Whether the appellants’ Counsel then proceeded to ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 13

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submit on the basis of the grounds of appeal as itemized in the amended memorandum of appeal. 31. On whether the trial court erred in granting orders of injunction, counsel submitted that the appellants’ reliance on the principle in Giella v Cassman Brown was misplaced because what was before the trial court was not an interlocutory application. Counsel submitted that what the trial court rendered was a final determination in which it granted a permanent injunction, adding that the respondent had proved his case to the required standard. 32. On ground numbers 2, 3, 4 and 5, counsel submitted that the appellants’ appeal hinged on the alleged objection dated 24/6/1998. Counsel pointed out that, documents relating to the alleged objection were never tendered as evidence, adding that attempts to produce the documents at the appellate stage were rejected by this court. Counsel faulted the appellants for attempting to introduce new factual issues. conclusively Counsel proved that argued parcel that the number respondent 1386 was transferred to him and the 3rd appellants and the said parcel was subdivided into two equal portions, adding that the appellants had admitted the authenticity of the transfer letter and receipt. 33. Counsel for the respondent argued that the trial court properly held that the inter vivos gift to the respondent and the 3rd appellant was valid, complete and effective, adding that the respondent demonstrated that there was a written transfer, payment, subdivision and possession. Counsel argued that the alleged revocation of the gift would be ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 14

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ineffective in the above circumstances. Counsel submitted that under the land adjudication law, revocation had to follow the laid down procedure, adding that the appellants failed to prove the alleged revocation. 34. On the allegation that the trial court failed to consider the evidence of DW1, counsel submitted that the trial court extensively considered the evidence of DW1, analysed his contradiction and found his evidence unreliable. Counsel pointed out that DW1 could not account for the “missing 0.18 acres”. 35. On the allegation that the judgment of the trial court went against the evidence on record, counsel argued that the evidence on record respondent’s case. overwhelmingly supported the Counsel pointed out that the transfer letter and the receipt relating to the transfer were unchallenged and there was evidence of long occupation by the respondent. Counsel added that, conversely, the appellants did not produce valid transfer documents and documents relating to the alleged objection proceedings. Counsel added that the appellants tendered contradictory evidence and relied on fabricated records. Counsel further argued that the appellants colluded with Land Officials to fraudulently alter records, adding that this appeal was an extension of the fraud. appellant’s counterclaim Lastly, counsel argued that the lacked evidential foundation. Counsel urged the court to dismiss the appeal and award the respondent costs of the appeal. Analysis and Determination ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 15

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36. The court has read and considered the entire original record of the trial court; the record filed in this appeal; the grounds of appeal; and the parties’ submissions in the appeal. The court has also considered the legal frameworks and the jurisprudence relevant to the key issues that fall for determination in the appeal. The following are the four key issues that fall for determination in the appeal : (i) Whether the respondent proved that the appellants colluded with the Land Adjudication Officer and the Land Registrar to fraudulently alter the acreages of land parcel numbers Amwathi/Maua/11036 and 11037 from 0.59 acres each to 0.40 acres each and to create parcel numbers Amwathi/Maua/11038 and 11132 after finalization of land adjudication in Amwathi/Maua Adjudication Section; (ii) Whether the 1st and 2nd appellants proved that the respondent was an illegal encroacher on parcel numbers 11038 and 11132; (iii) Whether the respondent was entitled to the reliefs sought in the primary suit; and (iv) Whether the appellants were entitled to the reliefs sought in the counterclaim. Before I analyse and dispose the issues, I will outline the principle that guides this court when exercising appellate jurisdiction. 37. The task of a first appellate court was summarized by the Court of Appeal in the case of Susan Munyi v Keshar Shiani (2013) eKLR 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 analyze, weigh, interrogate and ELCL APPEAL NO. E093 OF 2021 – JUDGMENT evaluate, scrutinize all assess, of the Page 16

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evidence and arrive at our own independent conclusions.” 38. The principle was similarly outlined in Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows: “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-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reason either way.” 39. Did the respondent prove that the appellants colluded with the Land Adjudication Officer and the Land Registrar to fraudulently alter the records relating to the acreages of parcel numbers 11036 and 11037 from 0.59 acres each to 0.40 acres each and to create parcel numbers 11038 and 11132 after finalization of land adjudication in the area? It is clear from the amended plaint that the respondent presented to the trial court a claim founded on fraud. Under Sections 7, 8 and 9 of the Evidence Act, the respondent was the one who bore the burden of proving the above allegation. 40. Secondly, the law on the standard of proof in claims founded on fraud is well settled. In Elizabeth Kamen Ndolo v George Matata Ndolo [1996] eKLR the Court of Appeal outlined the following threshold which a party alleging fraud must satisfy: ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 17

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“We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serios charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities. But the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases”. 41. In Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR the Court of Appeal outlined the following principle relating to the threshold which must be satisfied by a party alleging fraud: “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. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. See Davy v Garrett [1878] 7 Ch. D473 at 489.” 42. In Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR, the Court of Appeal outlined the following as the threshold that a party alleging fraud must satisfy: ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 18

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“It is the law that any allegation of fraud must be pleaded and strictly proved .....To succeed in the claim for fraud, the appellant needed to not only plead and particularize it, but also lay a basis by way of evidence, upon which the court would make a finding.” 43. Lastly, in discharging his evidentiary burden, the respondent was expected to remain alive to the fact that he was challenging a first registration in a finalized adjudication section. He was expected to be alive to the circumstances under which such registration may be impeached in a magistrate court on the ground of fraud. 44. The essence of land adjudication is outlined in the preamble to the Land Adjudication Act which provides as follows: “An Act of Parliament to provide for the ascertainment and recording of rights and interests in community land, and for purposes connected therewith and purposes incidental thereto.” 45. Secondly, the Land Adjudication Act contains an elaborate well-layered mandatory ownership-dispute mechanisms. The Act provides for resolution mandatory publication and inspection of the adjudication register. The mandatory publication and inspection are intended to offer aggrieved land owners the opportunity to file and ventilate their objection to what is contained in the adjudication register. When no objection is lodged, it is deemed that the published register is correct in the context of the uncontested entries. ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 19

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46. Where a party files an objection to the published adjudication register and he is dissatisfied with the Land Adjudication Officer’s verdict on his objection, the law [Section 29 of the Act] gives him the right of appeal to the Cabinet Secretary (the Minister). Courts of law have no jurisdiction to assume roles of the adjudicatory bodies established under the Act. 47. Given the above context, the respondent was required to prove that the published adjudication register bore him as the final adjudicated owner of parcel number 11037 measuring 0.59 acres and the 3rd appellant as the final adjudicated owner of parcel number 11036 measuring 0.59 acres. He was expected to prove that parcel numbers 11038 and 11132 did not exist in the published adjudication register and were created after finalization of the adjudication exercise. 48. Secondly, the respondent was required to prove that no objection was filed to challenge the register that bore him and the 3rd respondent as the adjudicated owners of parcel numbers 11037 and 11036 measuring 0.59 acres each. He was expected to prove that if any such objection was filed, the resultant verdict(s) did not alter his acreage and did not create parcel numbers 11038 and 11132. Lastly, the respondent was required to prove that after finalization of the adjudication exercise, the appellants in collusion with the Land Adjudication Officer and the Land Registrar, altered the records relating to the acreages of parcel numbers 11036 and 11037 and fraudulently introduced parcel numbers 11038 and 11132 in the adjudication records and the land registration records. ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 20

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49. Did the respondent discharge the above evidentiary burden? I do not think he did. During trial, he produced and relied on the following five exhibits: (i) undated letter expressed as bearing the thumbprint of the late M’Inyingi captioned “TRANSFER LETTER P/NO 1386” [P. Exhibit 1]; (ii) Receipt No BJ 708706 dated 15/6/98 relating to Kshs 500 paid as objection fees in relation to an objection that was filed by the late M’Inyingi in relation to parcel number 1386 [ P. Exhibit No 2] ; (iii) Sketch Map; (iv) Letter dated 7/7/2017 from M/s Ngunjiri Michael & Co Advocates to the District Land Adjudication & Settlement Officer, Igembe South; and (v) Court order dated 27/7/2017 requiring the Land Adjudication Officer to avail to the respondent details relating to parcel numbers 1386; 1037’ 11132 and 11036. Those are the only documents which the respondent tendered. He did not tender crucial evidence such as: (i) the relevant part of the published adjudication register; (ii) the final adjudication register; and (iii) the objection proceedings that culminated in his ownership of parcel number 11037 [noting that the land had already been demarcated in the name of M’Inyingi as parcel number 1386]. 50. All that the respondent relied on as conclusive evidence of fraud on part of the appellants was the undated handwritten letter attributed to the late M’Inyingi. The undated letter alone cannot be conclusive proof of fraud. For the adjudication records relating to parcel number 1386 to change and have parcel numbers 11036 and 11037 created, there had to be an objection culminating in the change of demarcation records. ELCL APPEAL NO. E093 OF 2021 – JUDGMENT The respondent withheld Page 21

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the records relating to the objection. Yet he was alleging fraud. It took an application by the appellants for the records to be availed by DW1. The availed records showed that M’Inyingi filed an objection which culminated in the subdivision of parcel number 1386 to create the following parcels: (i) 11036 – recorded in the name of the 3rd appellant and measuring 0.40 acres; (ii) 11037 – recorded in the name of the respondent and measuring 0.40 acres; and (iii) 11038 – recorded in the name of the 1st appellant and measuring 0.2 acres. The records tendered by DW1 as D. Exhibit No. 1 also showed that a portion measuring 0.10 acres was hived out of parcel number 11038 to crate parcel number 11132 following an objection. The hived portion was recorded in the name of the 2nd appellant. 51. Besides placing reliance on the handwritten and thumb printed letter, the respondent relied on receipt number BJ 708706. On its face, it emerges that the receipt related to a payment of Kshs 500 relating to an objection that was filed by M’Inyingi. The respondent did not give the outcome of the objection. The only evidence relating to the objection came from DW1 and confirmed that the said objection culminated in the contested acreages and parcels. 52. It is clear from the above analysis that no serious attempt was made by the respondent to prove fraud. It is also clear that through the evidence of DW1 and DW2, the appellants were able to demonstrate that parcel numbers 11036, 11037, 11038 and 11132 were all legitimately created as subdivisions out of parcel number 1386 through objection proceedings during the land adjudication exercise. It does also clearly emerge from the evidence on record that parcel ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 22

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numbers 11036 and 11037 were demarcated as measuring 0.40 acres each. 53. Consequently, it is the finding of this court that the respondent failed to prove that the appellants colluded with the Land Adjudication Officer and the Land Registrar to fraudulently alter the acreages of land parcel numbers Amwathi/Maua/11036 and 11037 from 0.59 acres each to 0.40 acres each and to create parcel numbers Amwathi/Maua/11038 and 11132. 54. Did the 1st and 2nd appellants prove that the respondent was an illegal encroacher on parcel numbers 11038 and 11132? The court has made a finding to the effect that the 1st and 2nd appellants were the legitimate adjudicated and registered proprietors of parcel numbers 11038 and 11132 respectively. Each of the two parcels measure 0.10 acres. During trial, Samuel Gitonga Kithela testified on behalf of the appellants. He adopted his witness statement dated 7/11/2017 in which he stated that the respondent removed the beacons demarcating his parcel from the parcels belonging to the 1st and 2nd appellant and started harassing them and interfering with their rights over their parcels. The respondent confirmed that he had entered onto the two parcels and contended that the two appellants’ ownership documents were fraudulent, adding that his parcel measured 0.59 acres. The court has, however, reevaluated the evidence on record and has established that the respondent’s parcel measures 0.40 acres. It therefore follows that the respondent is an illegal encroacher on parcel number 11038 and 11132. Consequently, it is the finding of this court that the ELCL APPEAL NO. E093 OF 2021 – JUDGMENT 1st and 2nd appellants Page 23

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properly proved that the respondent was an illegal encroacher on parcel numbers 11038 and 11132. 55. In light of the court’s findings on the above two issues, it follows that the respondent did not prove his claim and was therefore not entitled to the reliefs that he sought in the primary suit. It also follows that the 1st and 2nd appellants proved their counterclaim. 56. Are the 1st and 2nd appellants entitled to the reliefs that were sought in the counterclaim? Prayer (a) was a plea for an order decreeing the respondent to vacate parcel numbers 11038 and 11132. Prayer (b) was a plea for an order directing the respondent to remove his semi- permanent structures from the two appellants’ parcels. The court having made the above findings, it logically follows that the two appellants are entitled to the protection guaranteed under Article 40 of the Constitution and Section 24 and 25 of the Land Registration Act. Consequently prayers (a) and (b) will be granted. 57. On the prayer for general damages, the court notes that the appellants did not pursue it through evidence. Similarly, their submissions dated 27/5/2021 in the trial court did not focus on the relief. They appear to have abandoned it. In the circumstances, it would be inappropriate and unsafe for this court to pluck a figure from the air and award the figure to the appellants. At the very least, they ought to have pursued the relief through oral evidence and submissions to justify the award of nominal damages. 58. On costs, the general principle is that, costs follow the event. There are no proper grounds to justify a departure ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 24

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from the general principle with regard to costs of the appeal. However, with regard to the suit in the trial court, the appellant only asked this court to award them costs of the counterclaim. That is what they will get. Disposal Orders 59. For the above reasons, this appeal succeeds and is allowed in the following terms:-. (a) The Judgment in Maua CMC E & L [Civil] Case No 170 of 2015 Morris Thuranira v Esther Karauki & 5 others is hereby set aside wholly and is substituted with the following orders: i. The primary suit by Morris Thuranira is dismissed for lack of merit. ii. The counterclaim by Esther Karauki and Rose Mwari is allowed in terms of prayers (a) and (b) of the counterclaim. Morris Thuranira shall bear costs of the counterclaim. (b) The respondent shall bear costs of this appeal. DATED, SIGNED AND DELIVERED AT MERU THIS 17TH DAY OF AUGUST, 2026 B M EBOSO [MR] ELC JUDGE ELCL APPEAL NO. E093 OF 2021 – JUDGMENT Page 25

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