Alice Njeri Kariuki, Esther Wambui Chege & Josephine Wanja Njoroge v Fredrick Odhiambo Okinyi

(suit land). It was their case that they were the rightful registered owners of the suit land, which they inherited from their deceased mother, Martha Waithera Chege (the deceased). They argued that the respondent restricted their efforts to take possession by trespassing on it, thereby preventing them from accessing it. They pleaded and particularised trespass, loss and damages and sought the following reliefs: a) A declaration that land parcel number Donyo Sabuk/Komarock Block 1/12970 belongs to the appellants. b) A permanent injunction be issued restraining the respondent, his servants, agents, nominees or any other person acting under his authority, from entering, encroaching, blocking access to, trespassing on or in any other way interfering with the quiet possession of the appellants’ land parcel number Donyo Sabuk/Komarock Block 1/12970. c) An order directing the eviction and/or the demolition of the intruding structures on land parcel no. Donyo Sabuk/Komarock Block 1/12970, at the cost of the respondent. d) General damages for trespass and mesne profits 5. Costs and interest of the suit. LA E089 OF 2025 JUDGMENT 2

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2. Upon service of the pleadings, the respondent filed a defence dated 13 December 2024, which was largely composed of denials and put the appellants to strict proof. He also contended that he was a stranger to some of the appellants’ assertions. He asserted that, although he had erected structures on the suit property, he had done so lawfully and contended that the appellants had interfered with his occupancy, causing him financial loss. He maintained that the appellants were not the lawful owners of the suit land. 3. Subsequently, the case proceeded to hearing before the trial court, where the 1st appellant gave evidence and relied on her witness statement, oral testimony and several documents she produced in support of the appellants’ case. This documentary evidence included, among others, a green card for the suit land, a copy of the title deed, and an alleged unsigned surveyor’s report whose author was undisclosed. The green card and title deed showed that the appellants, together with Eunice Wanjiku Chege, acquired the suit land by transmission. 4. The respondent too testified and relied on his witness statement, oral testimony and several documents he produced in support of his case. He stated that he was the owner of the suit land and, in support of his case, tendered a sale agreement dated 7 August 2014 for plot no. BI/COM/210/655 within L R. No. Donyo Sabuk/Komarock 81/210 (respondent’s plot) between the respondent and Simon Maina Itungu (Simon), LA E089 OF 2025 JUDGMENT 3

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certificate of ownership and allotment letter issued by Geomax's Agencies in Simon’s name and a map. 5. Thereafter, the impugned judgment, in framing the issues of whether the appellants were the lawful owners of the suit land, whether the appellants were entitled to the remedies pleaded and whether the appellants were entitled to costs of the suit, considered whether the respondent had produced prima facie evidence that the title deed acquired by the appellants was acquired illegally, unprocedurally or through a corrupt scheme, scrutinised the root of title and established inconsistencies in the dating of entries in the greencard, found that the appellants had failed to establish lawful ownership of the suit land, and dismissed their case with costs. 6. Dissatisfied with this decision, the appellants appealed to this court and filed a memorandum of appeal dated 28 November 2025 and filed on the same date, where they questioned the impugned judgment on several grounds, and maintained that the learned trial magistrate erred in law and fact in: a. Failed to harmonise his proceedings with the judgment and misconstrued the appellants’ evidence. b. Disregarded appellants’ evidence and delivered a judgment which never envisaged a balance of probabilities. LA E089 OF 2025 JUDGMENT 4

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c. Holding that the appellants had not proved ownership of the suit land. d. Shifting the evidential burden of proving the root of title to the appellants, despite the respondent not having challenged the appellants’ title. e. Treating a clerical date inconsistency between the title and green card as proof of illegal acquisition, without any respondent establishing evidence fraud, from the illegality, or procedural impropriety. f. Disregarding the surveyor’s report, which confirmed the respondent’s structures stood on the suit land. g. Disregarding the evidence of the appellants but proceeding with the documents, unsigned respondent’s sale allotment agreement, and unverified map as superior to a registered title deed. h. Holding that the appellants failed to prove how their deceased mother acquired the property, despite the respondent never pleading or challenging the mother’s ownership. i. Ignoring the legal presumption of regularity of official acts, including land registration records, and instead relying on conjecture regarding the registration process. LA E089 OF 2025 JUDGMENT 5

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j. Failing to appreciate that the respondent’s claim was based on a different parcel number, Block 1/210, Plot 655, therefore acknowledging that he had no claim over the suit land. k. Totally misdirected himself in delivering judgment in favour of the respondent by failing to consider and appreciate the evidence in the record as tendered, which fell short of proving the allegations in the appellants’ documentary evidence. 7. Accordingly, the appellants urged this court to allow the appeal with costs, overturn the impugned judgment and substitute it with an order that the appellants' suit before the trial court be allowed with costs and, lastly, to issue any other order it may deem just and fit in the interests of justice. 8. As this is a first appeal, the authority of this court is outlined in Order 42 Rule 32 of the Civil Procedure Rules. Additionally, as an appellate court, this court will not interfere with the impugned judgment unless it is satisfied that the learned trial magistrate misdirected himself and thereby reached an incorrect decision, exercised his discretion wrongly, and caused injustice through such erroneous exercise of discretion. The role of an appellate court was aptly described in the decision of Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR), thus: LA E089 OF 2025 JUDGMENT 6

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‘Before adverting to the origin of the dispute it is appropriate to reiterate that before this Court can interfere with the exercise of a discretion of a judge, it must be shown that the judge has either erred in principle in his approach or has left out of account factors he ought to have considered or has taken into account some factors that he should not have considered or that his decision was wholly wrong, or that the decision was so aberrant that no reasonable judge, aware of his duty to act judicially could have reached it. These are the words of Sir Charles Newbold, P. expressed in this often-cited Mbogo & Another V. Shah [1968] EA 98 decision as follows: “…….a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.” ‘ LA E089 OF 2025 JUDGMENT 7

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9. Regarding the matter at hand, this court has carefully reviewed the records, the impugned judgment, and the written submissions filed by Ms. Ishmael & Co. Associates for the appellants, dated 20 May 2026, and by Ms. Ombati, Otieno and Opondo for the respondent (erroneously stating in the submissions that they appear for the appellants), dated 8 May 2026. In the latter submissions, it appears that this law firm inadvertently forgot whom it represented and argued in favour of the appellants. 10. Be that as it may, the appellants' submissions, filed by their law firm, Ms. Ishmael & Co. Associates, on record, collapsed the several grounds of appeal into three: (a) whether the appellants proved ownership of the suit land, (b) whether the respondent proved any legal interest in the suit land, and (c) whether the respondent was a trespasser on the appellants’ land. Nonetheless, having considered the record, grounds of appeal and submissions, the issues for determination are (a) whether the hon. learned trial magistrate was bound by the pleadings of the parties, and (b) whether the learned trial magistrate erred in not finding the appellants were the owners of the suit land and in not finding the appellant was a trespasser. We will now address these issues sequentially. a. Whether the hon. learned trial magistrate was bound by the pleadings of the parties LA E089 OF 2025 JUDGMENT 8

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11. In the impugned judgment, the learned trial magistrate properly appreciated the settled principle that parties are bound by their pleadings and relied on the Supreme Court of Kenya decision of Odinga & another v Independent Electoral and Boundaries Commission & 2 others [2017] KESC 31 (KLR), where the apex court affirmed the Indian Supreme Court decision of Arikala Narasa Reddy v Venkata Ram Reddy Reddygari & anr, Civil Appeal Nos 5710-5711 of 2012; [2014] 2 SCR, which stated the following on this principle: “In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible LA E089 OF 2025 JUDGMENT 9

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for a court to frame an issue not arising on the pleadings.” 12. Similarly, the Court of Appeal in Chumo Arap Songok v David Kibiego Rotich [2006] KECA 106 (KLR) held: “The law is now settled, that parties to a suit are bound by the pleadings in the suit and the court has to pronounce judgment only on the issues arising from the pleadings unless a matter has been canvassed before it by parties to the suit and made an issue in the suit through the evidence adduced and submissions of parties.” 13. In the impugned judgment, the learned trial magistrate properly appreciated that the respondent had not pleaded the grounds envisaged Registration Act under that Section provides 26(1) for the of the Land sanctity and indefeasibility of title to immovable property, which subsists only in the absence of fraud, misrepresentation or other unlawful conduct in its acquisition. The learned magistrate, after duly examining the relevant provisions of law and jurisprudence, concluded that the failure to raise such a plea was fatal. Notwithstanding this finding, and instead of concluding his analysis at that point, the hon. trial magistrate proceeded to determine whether the respondent had produced prima facie evidence to impeach the title deed and, upon LA E089 OF 2025 JUDGMENT 10

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assessing the inconsistent dating of entries in the title deed and the green card, held as follows:“In light of the foregoing, the court cannot safely uphold the Plaintiffs’ claim to ownership of Donyo Sabuk/Komarock Block 1/12970. The unexplained inconsistencies, coupled with the failure to call competent evidence from the Lands Registry, are fatal to the Plaintiffs’ case on ownership. A certificate of title, though prima facie evidence of ownership, cannot be treated as indefeasible acquisition is when uncertain unexplained…Taking unexplained absence entry of demonstrating the process of its unverified or account the or into inconsistencies, information and/or how Deceased their and the evidence, mother acquired Donyo Sabuk/Komarock Block 1/12970, the Plaintiffs’ case must fail.” 14. With all due respect to the hon. learned trial magistrate, it is observed that, having determined that the respondent did not plead fraud, illegality, or other related claims as a counterclaim, he was bound by the pleadings of the parties and was therefore constrained from inferring illegality from the dates of entries in the green card. Jurisprudence is now well established that, in claims involving fraud, illegality, or LA E089 OF 2025 JUDGMENT 11

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misrepresentation, as the case may be, the court is prohibited from inferring such facts from evidence unless these claims are specifically pleaded and proved. In arriving at this, this court associates itself with the Court of Appeal decision of Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] KECA 223 (KLR) that held:“It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 15. Similarly, when, in the pleadings before the trial court, a party made general allegations of illegality without specificity, in Bruce Joseph Bockle v Coquero Limited [2014] KECA 682 (KLR), the Court of Appeal held that; “The point being made here is this, that the appellant was expected to build a structure showing illegalities that and his case was about misrepresentation by fraud, way of pleading. He was to construct a prima facie case of fraud or illegality. The trial court would only have allowed him to pursue that line of defence after he had presented a prima facie case of fraud or illegality…A general allegation of fraud or illegality and misrepresentation, as was the LA E089 OF 2025 JUDGMENT 12

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case here, was not sufficient to infer liability on the part of those who are said to have committed it.” 16. Therefore, by inferring from evidence that the appellants’ title was defeasible on undisclosed grounds and by exceeding the scope of the parties’ pleadings in reaching his findings on the appellants’ title document, this court determines that the appellants were substantially prejudiced, as the trial court addressed issues outside the confines of the pleadings. It further finds that the appellants were taken by surprise, as they were unable to anticipate the evidence they should have prepared for trial, including calling the land registrar to testify regarding discrepancies in the dating of two entries, a matter which is rectifiable under Section 79 of the Land Registration Act. Consequently, this court finds it was erroneous for the learned trial magistrate to have dismissed the appellants’ claim based solely on unpleaded issues. b. Whether the learned trial magistrate erred in not finding the appellants were the owners of the suit land and in not finding the appellant was a trespasser. 17. Flowing from the findings of the first issue, it is essential to delineate the pertinent legal and jurisprudential framework on LA E089 OF 2025 JUDGMENT 13

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trespass. Article 40 of the Constitution recognises that every person has the right to acquire and own property of any kind and in any location within Kenya. The protections and limitations governing such land rights are set out in Sections 24, 25, and 26 of the Land Registration Act, which define land rights, privileges, appurtenances, liabilities, and interests. As earlier stated, Section 26(1) thereof provides for the sanctity and the indefeasibility of title to immovable property, which sustains only in the absence of fraud, misrepresentation or other unlawful conduct in its acquisition. 18. Concerning the tort of trespass, the relevant provisions of the law are contained in the Land Act and the Trespass Act, which specifically stipulate: Section 152A of the Land Act: “A person shall not unlawfully occupy Private, Community or Public Land.” Section 3 (1) of the Trespass Act: “any person who without unreasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on private land without LA E089 OF 2025 JUDGMENT 14

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the consent of the occupier thereof shall be guilty of an offence.” 19. Section 2 of the Trespass Act clarifies that private land includes land owned or occupied by anyone under a freehold title, a certificate of ownership, or a lease. Concerning prevailing jurisprudence, the recent Court of Appeal decision in Mohamed v Board of Management Pentrose Community School & another [2026] KECA 501 (KLR) affirms the definition of trespass as follows: “24.The textbook Clerk & Lindsell on Torts (21st Edition) at page 1345, specifies that trespass occurs where there is entry onto another person’s land without the consent of the owner or without lawful justification. So that, for trespass to be established, there must be a physical entry onto the land of another, and such entry must be without the permission of the landowner or without any reasonable or lawful excuse. 25.In the case of Church Commissioners for Kenya of the Anglican Church of Kenya vs Wayuga (Civil Appeal 111 of 2018) [2024] KECA 1048 (KLR), this Court held that;“Trespass is described under the Trespass Act Cap 294 to LA E089 OF 2025 JUDGMENT 15

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mean “any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof…” 20. The prevailing theme in the definition of trespass is that ownership is not a prerequisite for such a claim. Nevertheless, the assertion of a person holding title to the land takes precedence in cases of competing claims of possession. Still, the evidential burden rested with the appellants, as the persons alleging to have proved their claim, as provided by Sections 107 and 109 of the Evidence Act. The appellants needed to prove this either by demonstrating that the suit property was registered in their names or in those of their legal administrators, or by showing that they had taken possession before the respondent’s entry, as trespass claims are usually based on possession. The appellants were also required to show that the respondent occupied the suit property without their permission. 21. The appellants presented a green card relating to the suit land, which evidenced that it is a subdivision of Donyo Sabuk/Komarock/Block 1/8999. Its first registered owners were Benjamin Nguta Wambua and Benadeta Mwikali Nguta, who transferred it to the deceased on 15 May 2003. Upon her death, her legal administrators transferred the suit land to the LA E089 OF 2025 JUDGMENT 16

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appellants on 7 November 2019, along with their sister Eunice Wanjiku Chege, whom the 1st appellant informed the trial court was deceased. 22. The entries on the green card, specifically entries 4 and 5, including their corresponding entry numbers and names, are identical to those in the title deed except for the date of registration, which shows that the appellants and Eunice Wanjiku Chege became registered owners on 9 May 2019 (as per the title yet the green card shows the date of 7 November 2019). This discrepancy in dating is acknowledged as rectifiable. Therefore, with regard to the first limb of the issue, this court finds that the appellants are the lawful owners of the suit property. Furthermore, in the absence of any challenge to the title's validity, this court concludes that the appellants are the legitimate registered proprietors of the suit land, together with their sister, Eunice Wanjiku Chege. 23. Notwithstanding that the appellants’ rights as registered owners superseded those of the respondent, the respondent contended that he was in occupation of the land as an owner. To support this claim, he presented several documents. However, on examination of these documents, the suit land had long been registered and was not subject to allocation by Geomax Agencies, the entity from which he allegedly derived ownership. LA E089 OF 2025 JUDGMENT 17

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24. The official search certificate for L.R. No. Donyo Sabuk/Komarock 81/210, upon which the alleged allotment letter and certificate of ownership were anchored, was never tendered as evidence. It is uncertain whether such title document/ land even exists, as he informed the court that he had never conducted an official search prior to purchase. One questions how he was able to establish the location of his alleged land and put up a house on it in 2018, in the absence of a subdivision scheme for L.R. No. Donyo Sabuk/Komarock 81/210 from Geomax Agencies. 25. In the absence of mounting a defence of his right to occupancy, this court finds that the respondent was a trespasser. It also finds that the hon. learned trial magistrate erred in failing to find that the appellants had proved their case that the respondent was a trespasser. 26. It is well established that trespass is an actionable offence per se, without the need to prove actual damage. The surveyors report that the report presented by the appellants was not of probative value as it was unsigned and the expert is unknown. Thus, upon considering the location of the land and the nature of the trespass, the court hereby awards the appellants Kshs 500,000/- as general damages. Concerning the prayer for mesne profits, this court finds that the appellants did not substantiate it. LA E089 OF 2025 JUDGMENT 18

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27. Ultimately, based on the reasons and findings outlined above, this court finds that the appellants’ case before the trial court was for allowance with costs. Therefore, the appeal is upheld with costs awarded to the appellants. The judgment of 31 October 2025 is hereby set aside and replaced with a judgment granting the reliefs sought by the appellants in their plaint. This court issues the following final orders for disposal:a. A declaration is hereby made that land parcel number Donyo Sabuk/Komarock Block 1/12970 belongs to the appellants and Eunice Wanjiku Chege as tenants in common in equal shares. b. An order of permanent injunction is hereby issued, restraining servants, agents, person entering, acting the respondent, nominees, under encroaching, his or his any other authority, from blocking access to, trespassing on, or in any other way interfering with the quiet possession of the appellants’ land parcel number Donyo Sabuk/Komarock Block 1/12970. c. General damages for trespass are ordered in the sum of kshs. 500,000/- payable by the respondent to the appellants. d. The respondent is hereby granted 90 days from the date of service of this court's orders to remove himself and his developments from land LA E089 OF 2025 JUDGMENT 19

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parcel number Donyo Sabuk/Komarock Block 1/12970 and to give the appellants vacant possession, and in default, the appellants shall have the right to evict the respondent by force, along with his servants or agents. e. That the appellants’ costs of this appeal and of the lower court suit shall be borne by the respondent. Judgment accordingly. Delivered and Dated at Machakos this 29th day of September, 2026. HON. A. Y. KOROSS JUDGE 29.09.2026 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform; In the presence of; Ms. Kanja Court Assistant. Miss Wairimu for Mr. Ngaringa for the appellants. No appearance for the respondent. LA E089 OF 2025 JUDGMENT 20

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