Katilem v Lorkan & another

3. According to the appellant, she, together with the 1st respondent, jointly contributed and bought the suit land for Kshs.120,000/= in 2006 4. The appellant contended that the respondents, without her consent or knowledge, purported to sell 0.25 acres, began construction on the suit land, and have since denied her access thereto. 5. Similarly, the appellant contended that the 2nd respondent’s acts are unlawful seeing that she does not have any proprietary rights over the suit land. 6. In a statement of defence dated 6/12/2021, the respondents denied the alleged marriage between the 1st respondent and the appellant and termed her as a longtime girlfriend. The 1st respondent claimed that he is also married to Tabitha Chepkilim, who lives with his mother. 7. The appellant led a response to the respondents' defence through a reply to defence dated 10/1/2022. She alleged that she is still married to the 1st respondent and denied the alleged marriage between the 1st respondent and Tabitha Chepkilim. 8. The appellant insisted that the 2nd respondent is a stranger and a trespasser, who ought to be evicted from the suit land. 9. During the hearing, Alice Chemngor Katilem testied as PW1. She stated that she and the 1st respondent have been married since 1998 and that they contributed Kshs.140,000/= and Kshs.20,000/ = respectively, towards the purchase of the suit land. 10. According to PW1, she discovered that the respondents had built on the suit land in 2020. She contended that the Pokot Council of Elders ( the Council) adjudicated over the dispute and found that the suit land belonged to her and the 1st respondent. PW1 marked the council’s meeting minutes as MF1-P1. 11. PW1 maintained that on 20/8/2021, the respondents sold ¼ acre of the suit land without her knowledge, yet the 2nd respondent had not contributed towards its purchase. 12. In cross-examination, PW1 admitted that she did not have any certicate of marriage but alleged that the 1st respondent paid her dowry in cash. Further, PW1 stated that they lived together in Makutano, as they waited to build on the suit land. 13. PW1 acknowledged that the 1st respondent has 3 wives, with the third wife, Tabitha, living in Karas. 14. On the ownership of the suit land, PW1 admitted that she did not have any evidence or ownership documents. She, however, insisted that the suit land was in the original seller’s name, although they had a sale agreement. 15. During re-examination, PW1 contended that Danson Litole purchased the suit land on their behalf. 16. Abraham Lotunyale testied as PW2. He stated that he had been the Vice Chair of the Pokot Council of Elders since 2015. PW2 further stated that the appellant reported the dispute in 2020. He stated that the 1st respondent had insisted that the two were divorced, but the appellant contended that the 1st respondent had abandoned her at their home. 17. PW2 equally testied that the Council established that the appellant and the 1st respondent had been together for 22 years and had regularized their marriage. PW2 contended that the Council, comprising 15 elders and 3 ocials, held that the 1st respondent was wrong to settle the 2nd respondent on the suit land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5531/eng@2026-09-18 2

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18. During cross-examination, PW2 insisted he was an elder despite not being gazetted. He admitted that he was unaware of the ownership of the land at Makutano. He also stated that the couple had no children. 19. Regarding the second wife, PW2 insisted that she lived in Makutano Karas and that the appellant did not visit the land. 20. PW2 conrmed that a sale agreement was presented to them and that the suit land was in the name of the caretaker, Danson, who had purchased it on behalf of the appellant and the 1st respondent. He did not, however, produce any evidence of the appellant's contribution towards the purchase of the suit land. 21. Upon re-examination, PW2 insisted that the 1st respondent's mother was present at the hearing before the Council as seen in MFI-P1. PW2 also stated that the Council was seized with the authority to hear such cases. 22. When PW2 was recalled in light of the introduction of new documents, he insisted that the list of November 2021 indicated the true members of the Council. He contended that he was the Vice Chair of the arbitration and not the entire Council, since they diered and splintered. 23. However, PW2 conrmed that there was only one certicate for the Pokot Council of Elders. Answering questions asked by the court, PW2 stated that Tonaba chaired his group, while John Muok chaired the splinter group. 24. James Cheptokoch testied as PW3. He stated that he was the chairman of the Council for 11 years and adjudicated the dispute between the appellant and the 1st respondent in 2021. PW3 indicated that the meeting comprised 6 ocials and 16 elders. He produced the Council proceedings and sale agreement as P. Exhibits Nos. 1 and 2. 25. PW3 maintained that they are gazetted as elders, though he did not produce the Kenya Gazette to that eect. PW3 further contended that the appellant had contributed Kshs.20,000/= towards the purchase of the suit land. Further, PW3 stated that the appellant and the 1st respondent were married and dowry had been paid for the appellant. That the two lived at the appellant's family home as they awaited to build on the suit land. 26. In re-examination, PW3 insisted that he had never impersonated the chairman of the Council. He also stated that during the proceedings, the 1st respondent conrmed that the appellant was his wife. 27. When PW3 was recalled, he conrmed that he was the chairman of the arbitration and produced the notication of registration as P. Exhibit No. 3. PW3 also conrmed that after the split, the group election was held in November 2021. He produced the consortium as P. Exhibit No. 4. 28. PW3 indicated that he appeared on the rst page of the list of delegates. Similarly, PW3 conrmed that in 2017, Solomon Mukeyon, as the secretary, wrote, vide a letter dated 3/1/2017 to the Registrar of Societies regarding the elections of the splinter group; the letter was marked as MFI-P5 and the Registrar’s response as MFI-P6. 29. Further, PW3 conrmed that as the chairman of the arbitration, he can hear cases on land. Regarding the splinter group, PW3 insisted that it held elections and was registered. 30. Solomon Pseret Mukenyon testied as PW4. He relied on his statement dated 28/5/2024. PW4 contended that he, together with John Muok, the chairman, and James Lukwa as the treasurer, founded and registered the Pokot Council of Elders. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5531/eng@2026-09-18 3

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31. PW4 conrmed that there was a splinter group, but the two groups have never held elections since the split. He conrmed that PW2 and PW3 are the chairman and vice chairman of the Arbitration Committee, respectively. 32. In cross-examination, PW4 insisted that the two groups diered on principles and had never registered or changed the group's name. PW4 stated that they adjudicated over the suit land in 2017 before the registration. 33. PW4 marked the certicate of registration of the group led by John Muok as MFI-D1, which he said has no permanent address. 34. During the defence hearing, Richard Lorkan, the 1st respondent, testied as DW1. He relied on his statement dated 7/3/2022 as his evidence-in-chief. DW1 conrmed that the 2nd respondent was his wife. 35. DW1 denied marrying the appellant or having paid dowry for her. According to DW1, the appellant lived in her own plot at Makutano. He also denied that they jointly purchased the suit land and insisted that he purchased the same in 2008. He produced copies of the notice to produce, police abstract, and the two sale agreements dated 4/4/2008 and 12/8/2020, as D. Exhibits Nos. 1 - 4. 36. DW1 maintained that they purchased the suit land measuring 2 1/2 acres at Kshs.300,000/=, jointly with Danson, who received 1 acre. DW1 equally testied that he received 1 1/2 acres and sold ¼ acre when his child was unwell. 37. Further, DW1 stated that he did not agree with the decision of the elders and did not sign the same. 38. In cross-examination, DW1 insisted that he had no other relationship with the appellant apart from her being a fellow police ocer. He also conrmed he attended the hearing before the Council, and a decision was delivered on 18/10/2021. He insisted that the elders were not the legitimate Pokot elders. 39. DW2 was Joseph Lopetakim. He relied on his statement dated 19/9/2023 as his evidence-in-chief. He conrmed that he was a member of the Council and its organizing secretary. He produced a copy of the registration certicate, letters, and minutes as D. Exhibit Nos. 5-9. 40. DW2 conrmed that their group was registered on 26/8/2021 and denied that the appellant's witnesses were ocials of his group. 41. In cross-examination, DW2 claried that the Council was registered on 24/8/2011. He added that Solomon appeared as number 5 in the proceedings. DW2 further stated that his group did not report that the splinter group's proceedings were fraudulent. 42. DW2 insisted that his group is the recognized group with legally recognized oce bearers. 43. Shamilar Chepkorir testied as DW3. She adopted her witness statement dated 7/3/2022 as her evidence-in-chief. She stated that she met the appellant at the Council meeting and only knew Tabitha as the 1st respondent's rst wife. 44. DW3 insisted that she entered and planted on the suit land in 2018, before she began the construction, and did not receive any complaints. 45. During her cross-examination, DW3 stated that the appellant testied at the Council proceedings. She, however, insisted that the appellant did not produce any evidence that she(appellant) contributed towards the purchase of the suit land. DW3 conrmed that Danson, a caretaker, purchased the suit land for the 1st respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5531/eng@2026-09-18 4

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46. DW3 maintained that she was not a trespasser on the suit land since the 1st respondent allowed her to access and use the same. 47. The trial court in its judgment delivered on 2/10/2025, dismissed the appellant's case, which dismissal necessitated this appeal. 48. Through a memorandum of appeal dated 15/10/2025, the appellant faults the trial court for: a. Holding that the appellant had not entered into a customary marriage with the 1st respondent. b. Holding that the appellant had not established any contribution towards the purchase of the 1.25 acres out of West Pokot Keringet “A”/192 (the suit land). c. Ignoring the proceedings and decision of the Pokot Council of Elders in view of the clear provisions of Article 159 of the Constitution of Kenya. d. Failing to nd that the appellant herein has a lawful proprietary and benecial interest in the suit land. e. Dismissing the appellant’s suit in its entirety. 49. The appellant thus prayed for this appeal to be allowed; the impugned judgment to be set aside and substituted therefor with orders allowing the suit before the trial court. The appellant also prayed for costs of the appeal and the trial court’s suit. 50. The court record of appeal is dated 29/5/2026. The appellant also led a supplementary record of appeal dated 30/7/2026, attaching the ruling by the Pokot Council of Elders delivered on 18/10/2021 and the sale agreement of 4/4/2008. 51. The appeal was canvassed by way of written submissions. The appellant led her submissions dated 2/6/2026. The appellant submitted that she had been married to the 1st respondent since 1989 and that is why he honoured the Council’s summons. 52. Regarding the proceedings and decisions of the Pokot Council of Elders, the appellant submitted that Article 159 (2) of the Constitution recognizes the same, but the trial court dismissed the same as not having any legally binding eect. 53. The respondents led written submissions dated 10/6/2026. The respondents submitted that the appellant failed to produce evidence or call any witness from her family to conrm how the dowry was paid. 54. Further, the respondents submitted that the appellant failed to produce the alleged sale agreement showing the joint purchase of the suit land. Accordingly, the respondents submitted that apart from alleging that she contributed Kshs. 20,000/=, the appellant did not prove the same. 55. On whether PW 2, 3 and 4 were genuine Pokot Council of Elders, the respondents submitted that they did not produce any tangible evidence on the same. 56. Similarly, the respondents submitted that DW2 as a genuine member of the Council, denied that the plaintis' witnesses were ocials of the Council. 57. I have carefully looked at the record of the lower court, the evidence that was led, the rival submissions and the applicable law. The issues arising for determination are; i. Whether the appellant proved joint ownership of the suit land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5531/eng@2026-09-18 5

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ii. Whether the 2nd respondent is a trespasser on the suit land. iii. Whether the appellant deserved the orders sought in the plaint. iv. Whether the appeal is merited. v. What is the order as to costs? 58. An appellate court of the rst instance has a legal duty to consider the record of a lower court with an independent mind and perspective, and come up with its ndings on both facts and the law, mindful that the trial court had the opportunity to see and hear the witnesses rst-hand (See Abok James Odera t/a A.J Odera & Associates -vs- John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR and Gitobu Imanyara & others -vs- A.G. & (2013) eKLR). 59. The rst issue is on the alleged joint ownership. The appellant alleged that she contributed Kshs.20,000/= towards the purchase of the suit land. She also alleged that they used the 1st respondent's in-law, Danson, to purchase the suit land on their behalf. 60. Sections 107-109 of the Evidence Act provide that the burden of proof rests with the person who alleges. 61. In JOO -vs- MBO [2023] KESC 4 [KLR], the court held that the status of the marriage does not solely entitle a spouse to a benecial interest in the property registered in the name of the other, and that a party must prove contribution to be entitled to distribution. 62. The court further emphasized that equality in equity is enshrined under Article 45(3) of the Constitution, to ensure there is equality and fairness to both spouses, in ensuring that all parties have the same rights at the dissolution of a marriage, based on their contributions 63. In this appeal, the appellant has not adduced any evidence as to her contribution in acquiring the suit land for her to claim and be entitled to a benecial interest. Similarly, the alleged marriage between the appellant and the 1st respondent is disputed. Nonetheless, such issues fall outside this court's jurisdiction to determine. In BWM -vs- MWN & another [2025] KEHC 13641 (KLR), the court held that the Environment and Land Court has no jurisdiction to determine issues of matrimonial property or validity of a marriage. 64. Property can, however, be jointly owned by two or more individuals and not necessarily in a marriage setup. All that was required of the appellant was to lead evidence of her contribution to the purchase of the suit land. The sale agreements indicate that Danson Litole was the purchaser. This fact is not disputed. The appellant did not call the purchaser or any witnesses to the sale agreement to corroborate her evidence. 65. In assessing benecial interest due to the party, the court looks not only at the primary nancial contributions to the acquisition but also at other forms of contributions, such as the actions of the parties in maintaining and improving such properties. In this case, the appellant has not claimed any other form of contribution on the suit land to fortify her claim. 66. In the same vein, there is a dispute on the true members of the Council and the validity of their decision. This court has no jurisdiction to determine who are the legitimate members of the Pokot Council of Elders. The court’s view is that this falls under the jurisdiction of the High Court. 67. The other issue is whether the 2nd respondent is a trespasser on the suit land. As dened under Section 3(3) of the Trespass Act, trespass refers to an unjustied entry into the private land of another, and committing acts of destruction therein. To succeed in trespass, a party must prove immediate exclusive occupation or possession, which the respondent has disturbed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5531/eng@2026-09-18 6

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68. In M'Ikiara M'Rinkanya & Another -vs- Gilbert Kabeere M'Mbijiwe NYR CA Civil Appeal No. 124 of 2003 [2007] eKLR, trespass was dened as a violation of the right to occupy and use land. 69. Further, in Mohamed -vs- Board of Management, Patrose Community School & Another, Civil Appeal No. E136 of 2023 [2026], KECA 501 [KLR] (13th March 2026) (Judgment), the court held that trespass is the unlawful intrusion by a person upon the land of another, who is in possession and ownership thereof. 70. The superior court cited Clerk & Lindsell on Torts 21st Edition, page 1345, that trespass occurs where there is entry into another person's land without the owner’s consent or lawful justication. The court observed that there must be a physical entry onto another's land, and that such entry must be without the landowner's permission or without any reasonable or lawful excuse. 71. There is no evidence that the appellant entered into and remained in occupation of the suit land upon the alleged purchase. Conversely, the 1st respondent, whose ownership of the suit land is not disputed by either party, authorized and permitted the 2nd respondent's entry into the suit land. According to the 2nd respondent, she started planting on the suit land in 2018, before constructing the house. She cannot therefore be said to be a trespasser. 72. From the foregoing, it is evident that the appellant did not prove her case to the required standard to warrant the orders sought in the plaint. A permanent injunction could not be issued, since there was no evidence of proprietorship of the suit land. 73. This court, therefore, nds that the trial court did not err in dismissing the suit. By that very fact, I make a nding that the appeal is not merited to warrant disturbing the lower court's decision. 74. The upshot is that the appeal is hereby dismissed with costs to the respondents. 75. Orders accordingly. JUDGMENT DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 18TH DAY OF SEPTEMBER, 2026. HON. G.M. GITONGA JUDGE, ELC KITALE In the presence of: Court Assistant: Matui No appearance for the parties at 10.03 am. The parties had notice of the judgment. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5531/eng@2026-09-18 7

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