Sylvia Nene Emaase v Alphouncica Etyang

quiet possession by, inter alia, trespassing onto the land, destroying the perimeter fence, cutting down trees, erecting illegal beacons, occupying part of the land without her consent, threatening her whenever she attempted to assert her proprietary rights, claiming an interest in the property without lawful basis, refusing to vacate despite demand, and preventing her from utilizing the land for farming. 3. The Respondent entered appearance and filed a statement of defence denying the allegations of trespass. She also lodged a counterclaim asserting that the Appellant’s title had been procured contrary to an existing Court decree arising from BUSIA LAND DISPUTE TRIBUNAL CASE NO 63 of 2010. 4. The Respondent pleaded that the suit property had previously been registered in the name of HELENA AKAMOLOT, who was the Appellant’s mother. According to the Respondent, the tribunal had awarded her a portion measuring 50 feet by 100 feet, which award was subsequently adopted as a judgment of the Court. She further contended that although Court orders had been issued to facilitate implementation of the decree, BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 2 of 40

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Helena Akamolot transferred the entire parcel to the Appellant in an attempt to defeat the judgment. 5. Based on those facts, the Respondent sought dismissal of the Appellant’s suit and judgment on the counterclaim, including cancellation of the Appellant’s title, transfer of the awarded portion measuring 50 feet by 100 feet, costs of the suit and any other appropriate relief. PROCEEDINGS BEFORE THE TRIAL COURT 6. The suit proceeded to a full hearing. The Appellant testified as PW1 and adopted her witness statement dated 19 th October 2022 as her evidence-in-chief. She produced the following exhibits: a) Title Deed for L.R. NO SOUTH TESO/ANGOROMO/5784 (PExh.1); and b) 7. Photographs of the suit property (PExh.2). PW1 testified that she purchased the suit property from HELENA AKAMOLOT in 2003, paid the agreed purchase price, and was eventually issued with a title deed in 2021 after the land had been surveyed. She stated that before the title was BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 3 of 40

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issued, no restriction was registered against the land. She further testified that she had fenced the property, constructed permanent developments including a house and toilet, and carried out farming activities thereon. 8. She stated that she only became aware of Busia Land Dispute Tribunal Case NO 63 of 2010 when police officers accompanied the previous owner onto the land claiming to enforce Court orders. She maintained that she had never been a party to those proceedings. 9. During cross-examination, PW1 conceded that she had not produced the sale agreement, transfer documents or the Land Control Board consent relating to the transaction. She nevertheless maintained that she lawfully purchased the land and only learnt of the tribunal proceedings after obtaining her title. Upon completion of her testimony, the Appellant closed her case. 10. The Respondent testified as DW1 and adopted her witness statement dated 29th June 2023 as her evidence-in-chief. She produced the following documents: BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 4 of 40

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a) Court Order in Land Dispute Case NO 63 of 2010 (DExh.1), b) Green Card for L.R. NO 5784 (DExh.2), c) Order dated 28th June 2022 (DExh.3), d) Register for L.R. NO 5784 (DExh.4), e) Proceedings in Busia Land Dispute Tribunal Case NO 63 of 2010 (DExh.5), and f) Mutation Form (DExh.6). 11. DW1 testified that the dispute originated from Busia Land Dispute Tribunal Case NO 63 of 2010 between herself and HELENA AKAMOLOT. She stated that the tribunal awarded her a portion measuring 50 feet by 100 feet upon payment of an outstanding balance of Kshs.23,000, but Helena failed to honour the decree. 12. She maintained that although the Appellant was not a party to the tribunal proceedings, the subsequent transfer of the land to the Appellant was intended to defeat implementation of the tribunal award. She therefore contended that the Appellant could not rely on her title to defeat an existing Court decree. BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 5 of 40

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13. During cross-examination, DW1 acknowledged that she had not purchased the land from the Appellant and had no sale agreement or title in her own name. She nonetheless maintained that the tribunal decree remained valid and enforceable. 14. Upon the close of the defence case, the trial Court directed the parties to file written submissions before judgment. THE DECISION OF THE TRIAL COURT 15. Upon considering the pleadings, oral evidence, documentary exhibits and the parties’ written submissions, the learned trial magistrate held that although the Appellant held a certificate of title, registration alone did not establish an indefeasible title where the root of the title had been challenged. 16. The trial Court found that the Appellant had failed to demonstrate that the title acquired from HELENA AKAMOLOT had a lawful foundation in light of the existing decree arising from Busia Land Dispute Tribunal Case NO 63 of 2010. 17. Consequently, the Court dismissed the Appellant’s suit with costs, allowed the Respondent’s BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT counterclaim, ordered Page 6 of 40

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cancellation of the Appellant’s title and directed the Appellant to transfer to the Respondent the portion measuring 50 feet by 100 feet in accordance with the earlier Court decree. THE APPEAL 18. Aggrieved by the said judgment, the Appellant lodged the present appeal contending in their Memorandum of Appeal dated 5th December 2024, inter alia, that the learned trial magistrate erred in law and fact by allowing the Respondent’s counterclaim without sufficient evidence, in allowing a claim for ownership of land in favour of the Defendant against the Plaintiff in the absence of any contractual or equitable relationship between the Plaintiff and the Defendant, in totally ignoring issues of law raised by the Plaintiff in her defence to the Counter Claim and Submissions, in allowing the Defendant1s counter claim when the same was drawn and filed contrary to the mandatory provisions of Order 7 Rule 5 (a) and Order 7 Rule 8 of the Civil Procedure Rules hence arriving at a wrong decision, in ordering for the implementation of a Court Order that was void by operation of the law and against a party who was not a party to the original claim BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 7 of 40

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contrary to the established principles of law, in holding that the Plaintiff had not proved the fact of ownership of the suit parcel contrary to the express provisions of Section 26 of the Land Registration Act and in the absence of any evidence challenging the Plaintiff`s ownership of the suit parcel hence arriving at a wrong decision and that in basing his decision on matters that were never pleaded or proved during trial. 19. The Appellant accordingly prays that the judgment of the trial Court be set aside and that the appeal be allowed with costs. THE APPELLANT’S SUBMISSIONS 20. The Appellant submits that the appeal is meritorious because the trial Court committed errors of both law and fact in allowing the Respondent’s counterclaim and ordering the cancellation of the Appellant’s title. The Appellant argues that the trial magistrate enforced a Court order issued in Busia Land Dispute NO 63 of 2010 which had lapsed by operation of Section 4 of the Limitation of Actions Act and, in any event, could not be enforced against the Appellant who was not a party to those proceedings. BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 8 of 40

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21. It is further contended that the trial Court cancelled the Appellant’s title without any pleaded or proved fraud, contrary to Order 2 Rule 10 of the Civil Procedure Rules. 22. The Appellant submits that before the lower Court she proved ownership of L.R. NO SOUTH TESO/ANGOROMO/5784 by producing a title deed and the register, while the Respondent’s counterclaim merely sought to implement orders made in Busia Land Dispute NO 63 of 2010. The Appellant emphasizes that she was never a party to those proceedings, the Respondent herself purchased the land from one Helena Akomolot, who was also not a party to the present suit, and no restriction or caution arising from the earlier proceedings had ever been registered against the title. The Respondent further admitted during crossexamination that the Appellant was the registered proprietor of the suit land. 23. The Appellant argues that there existed no contractual or equitable relationship between herself and the Respondent to justify cancellation of her title. Since she was not a party to the earlier dispute, implementing its orders against her violated her constitutional right to a fair hearing under Article 50 and her BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 9 of 40

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proprietary rights protected under Article 40 of the Constitution. The Respondent ought to have established a legal nexus between the Appellant’s title and the judgment debtor in the earlier proceedings before seeking enforcement of those orders. 24. On fraud, the Appellant submits that fraud is a serious allegation that must be specifically pleaded and strictly proved. Relying on Gichinga Kibutha v Caroline Nduku [2018] eKLR, as well as the principles in Bullen & Leake & Jacobs, Precedent of Pleadings, it is argued that fraud cannot be inferred from facts and must be distinctly alleged and proved. The Respondent neither pleaded nor proved any fraudulent conduct on the Appellant’s part, nor adduced evidence from the Land Registry or investigative agencies to impeach the Appellant’s title. 25. The Appellant further relies on Dr. Joseph Arap Ngok -vJustice Moijo ole Keiwua & 5 Others, arguing that Sections 25 and 26 of the Land Registration Act accord a registered proprietor an indefeasible title, which can only be impeached upon proof of fraud, misrepresentation or other statutory BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 10 of 40

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grounds. Since none of these grounds was established, the trial Court had no legal basis to order cancellation of the Appellant’s title. 26. The Appellant also challenges the validity of the Respondent’s counterclaim, contending that it contravened mandatory provisions of the Civil Procedure Rules. Specifically, it lacked a proper heading identifying the parties against whom relief was sought, contrary to Order 7 Rule 8. It was not accompanied by a verifying affidavit as required under Order 7 Rule 5(a). Citing Siasa Pasha & 2 Others v Mbaruk Khamis Mohamed & Another [2012] eKLR, the Appellant submits that compliance with procedural rules is essential to the administration of justice and that the defective counterclaim ought not to have been entertained. 27. The Appellant further submits that the trial magistrate erred in enforcing a Court order issued on 13 th October 2010 after the expiry of the statutory limitation period prescribed under Section 4(1) of the Limitation of Actions Act. According to the Appellant, the order had become BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT unenforceable by Page 11 of 40

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operation of law, and the trial Court therefore lacked any legal basis to implement it against her. 28. The Appellant contends that the Trial Magistrate made an erroneous finding in holding that the ownership of a title deed alone is not sufficient to prove that one has a lawful right over the property. They submit that this was contrary to the express provisions of Section 26 of the Land Registration Act, which binds the Honourable Court to hold a Certificate of Title as a conclusive evidence of proprietorship. That the burden to prove illegalities was upon the Respondent who sought to cancel the title. 29. That the Trial Magistrate shifted this burden to the Appellant to prove the validity of her title and yet the Respondent had not established a prima facie case against the Appellant’s title to warrant the shift of the burden to the Appellant. That the Respondent had not established a single act of fraud on the part of the Appellant. 30. The Appellant further submitted that the Trial Magistrate erred in law and in fact in ignoring issues of law raised by the Appellant and proceeded to base her decision on issues that BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 12 of 40

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were never pleaded or proved. Reliance is put in the case of Michael Githinji Kimotho -v- Nicholas Muratha Mugo (1997) Eklr. They provide that the counter claim could not be allowed for the following reasons: There was no contractual relationship between the Counterclaimant and the Counter defendant over the suit land, the orders in Busia Land Dispute NO 63 of 2010 were against one HELLENA AKOMOLOT who is not a party to the present suit, the orders issued in Busia Land Dispute NO 63 of 2010 were never registered on the register of the suit property to indicate the Respondent`s claim over the suit property hence there was no encumbrances and that the orders were issued way back on 13 th October 2010 and a period of 6 years has since lapsed hence the same cannot be implemented as per the provisions of Section 4(1) of the Limitations of Actions Act. 31. The Appellant urged this Court to allow the appeal, set aside the Orders of the lower Court and substitute the same with an order allowing the Plaintiff’s claim and dismiss the Defendant’s counterclaim with costs THE RESPONDENT’S SUBMISSIONS BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 13 of 40

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32. The Respondent filed their written submissions dated 25 th May 2026, where they submitted the following issues: whether the learned trial magistrate erred in allowing the counterclaim, whether the Respondent’s claim was time-barred under Section 4 (4) of the Limitation of Actions Act, whether the Appellant`s title was indefeasible under Section 26 of the Land Registration Act, and whether the Counterclaim was fatally defective and whether the trial Court relied on unpleaded matters. 33. On the 1st issue, the Respondent submit that they discharged the burden of proof under Section 107 – 109 of the Evidence Act. That the Respondent produced Tribunal proceedings and award, Court Order adopting the award dated 13 th October 2010, Enforcement order dated 21st June 2022, Green Card showing the land history and mutation forms and evidence of possession. The Court correctly relied on this evidence. The Appellant failed to prove critical ownership documents to support her alleged purchase from Hellen Akomolot, namely: Sale Agreement, transfer instruments, land control board consent and minutes and proof of consideration payment. BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 14 of 40

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34. They submit that the trial magistrate correctly found that the Appellant had failed to explain the root of her title; reliance was placed on the Court of Appeal case of MUNYU MAINA -VHIRAM GATHIHA MAINA (2013) eKLR. 35. That the Appellant only relied on the title deed while completely failing to demonstrate the process through which she acquired the land. That Section 26 (1) of the Land Registration Act provides that title may be impeached on grounds of fraud, misrepresentation, illegality, unprocedurally or through a corrupt scheme. 36. The Respondent demonstrated that title was obtained contrary to an existing Court order and during pendency of implementation of the decree in favour of the Respondent. They relied on the case of ARTHI HIGHWAY DEVELOPERS LIMITED -V- WEST END BUTCHERY LIMITED & OTHERS (2015) eKLR and in the case of WRECK MOTORS ENTERPRISES -VCOMMISSIONER OF LANDS (1997) eKLR. 37. That the evidence at the trial Court demonstrated that the Respondent’s beneficial interest before the registration of the BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 15 of 40

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Appellant and the Appellant’s title was intended to defeat the Respondent’s accrued rights over the suit property. 38. That the Proceedings before the Tribunal confirmed occupation by the Respondent which dates back to 2002. This created an overriding and equitable interest that is recognizable in law. The Trial Court found that the Respondent had established a beneficial interest over the suit property. 39. That the Appellant’s contention that there was no contractual relationship between the parties is legally misguided. The Respondent’s counterclaim was not founded on contract with the Appellant but on a valid Court decree, beneficial ownership, equitable rights, and prior occupation and possession. On this issue, the Respondent submitted that the learned Magistrate evaluated the totality of evidence and arrived at the proper conclusion that the Respondent had proved the counterclaim on a balance of probabilities and this Court ought to uphold the same in its entirety. 40. On the second issue, the Respondent submits that the trial magistrate properly addressed the issue on whether the Respondent’s claim was time-barred both in the ruling on the BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 16 of 40

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preliminary objection and the final judgment and correctly found that the Respondent’s claim was not statute-barred. 41. They submit that the decree had already been revived and acted upon before the expiry of the limitation time period. The original decree adopting the tribunal award was issued on 13 th October 2010, and before expiry of twelve years, the Respondent moved the Court and obtained further orders on 21st June 2022 directing the OCS Adungosi Police Station to provide security during the subdivision exercise pursuant to the earlier decree. 42. That the trial magistrate correctly found that the Respondent had taken the necessary steps towards enforcement before lapse of time. The order of 1st June 2022 was not issued in vacuum but for furtherance of implementation of the decree, to facilitate subdivision and to secure compliance with the judgment. The Respondent did not sleep on her rights. 43. That the evidence before the trial Court clearly demonstrated that HELLEN AKOMOLOT transferred the land to the Appellant during implementation of the decree; the transfer was intended to defeat the Respondent’s rights under the judgment and the BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 17 of 40

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Appellants acquired registration with full knowledge of the Respondent’s claim and occupation. 44. On the issue whether the Appellant’s title was indefeasible under Section 26 of the Land Registration Act, the Respondent submitted that the learned magistrate properly interpreted and applied Section 26 of the Land Registration Act and correctly found that the Appellant’s title was not protected by law. 45. That the Appellant failed to prove the root of the title. Once the Respondent challenged the legality and propriety of the Appellant’s title, the burden shifted to the Appellant to demonstrate the legality of acquisition. The Appellant only produced the title deed. The learned trial magistrate correctly observed that even the green card for the suit property reflected registration through beneficiary interest and not purchase. The Appellant failed to discharge the burden of proof of purchase. The title deed is not a shield against judicial scrutiny where illegality is alleged. The Trial Magistrate correctly found that the Appellant’s title deed was impeachable because the root of the title was not proved. BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 18 of 40

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46. The Respondent contends that under civil procedure rules, the substance of a pleading matters more than its form. Because the pleading clearly identified the parties, the land parcel (L.R. NO. SOUTH TESO/ANGOROM/5784), and the facts, the Appellant suffered Furthermore, no Kenyan confusion Courts or unfair prejudice. operate under a strict constitutional mandate (Article 159) to prioritize substantive justice over procedural technicalities. 47. Citing established precedents (including Odd Jobs vs Mubia and Speaker of the National Assembly vs Karume), the Respondent highlights that the Appellant fully participated in the trial by filing a defence, cross-examining witnesses, and making final submissions. A litigant cannot actively engage in a trial, wait for the judgment, and then raise technical objections about formatting only after they lose. 48. The Appellant claimed the trial magistrate ruled on matters outside the pleadings. The Respondent clarifies that they explicitly pleaded that the Appellant’s land title was obtained illegally, unprocedurally, and in direct violation of a prior Land BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 19 of 40

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Disputed Tribunal decree. Once a title’s legitimacy is formally challenged, the Court is obligated to investigate it. 49. The burden of proof shifted to the Appellant to prove a clean root of title, which they failed to do because they could not produce a sale agreement or Land Control Board consent. 50. The Respondent concludes by noting that the trial magistrate properly exercised her judicial discretion based on solid oral and documentary evidence. Legal precedent dictates that a first appellate Court must exercise restraint and should not overturn a trial Court’s findings of fact unless a clear error of law or a total misapprehension of evidence is proven. The Respondent therefore prays that this Court dismiss the appeal with costs, uphold the lower Court’s judgment, and affirm the cancellation of the Appellant’s title. ANALYSIS AND DETERMINATION 51. This being a first appeal, this Court is enjoined to re-evaluate, re-analyse and reconsider the entire evidence that was adduced before the trial Court and draw its own independent conclusions. In doing so, however, the Court must bear in mind BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 20 of 40

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that it neither saw nor heard the witnesses testify and should therefore give due allowance for that disadvantage. 52. The principles governing the jurisdiction of a first appellate Court are well settled. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus: “...this Court is not bound necessarily to accept the findings of fact by the Court below. An appeal to this Court ... is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance to this respect.” ISSUES FOR DETERMINATION 53. Guided by the foregoing principles, this Court has carefully considered the pleadings, the oral and documentary evidence tendered before the trial Court, the impugned judgment, the BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 21 of 40

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memorandum of appeal, and the rival written submissions. And it is in the Court’s view that the following issues arise for determination: a) Whether the learned trial magistrate erred in law and fact in finding that the Appellant had failed to prove a valid and indefeasible title to Land Parcel No. SOUTH TESO/ANGOROMO/5784. b) Whether the learned trial magistrate erred in allowing the Respondent’s counterclaim, including the cancellation of the Appellant’s title and the enforcement of the decree arising from Busia Land Dispute Tribunal Case NO 63 of 2010. c) Whether the Respondent’s counterclaim was incompetent or otherwise defeated by limitation or procedural defects. d) What orders should this Court make, including on costs. On whether the learned trial magistrate erred in law and fact in finding that the Appellant had failed to prove a BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 22 of 40

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valid and indefeasible title to Land Parcel No. SOUTH TESO/ANGOROMO/5784 54. The Appellant contends that the learned trial magistrate misdirected herself by holding that the mere production of a certificate of title was insufficient to establish a lawful proprietary interest in the suit property. It is the Appellant’s case that, having produced a title deed, she had discharged the burden of proving ownership under Sections 24, 25 and 26 of the Land Registration Act, and that the burden thereafter shifted to the Respondent to prove the existence of any of the statutory grounds upon which her title could be impeached. 55. The Respondent, on the other hand, maintains that she successfully challenged the root of the Appellant’s title by demonstrating that the transfer was effected during the subsistence of a Court decree in her favour, thereby shifting the evidential burden to the Appellant to explain the legality of her acquisition. 56. The law in respect to the rights of the registered proprietor is well settled under Sections 24 and 25 of the Land Registration Act. Section 24 (a) provides that: BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 23 of 40

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“The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto” 57. Section 25 of the Land Registration Act further provides that: “The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of Court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 24 of 40

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require noting on the register, unless the contrary is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. 58. Further Section 26 (1) of the Land Registration Act provides that: “The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except – (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 25 of 40

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(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 59. However, the protection accorded by Section 26 of the Land Registration Act is not absolute. In the case of Nyangw’ra v Njuguna & another [2013] KEELC 161 (KLR) the Court stated that: “As may be observed, the law is extremely protective of title and provides only two instances for the challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 60. Similarly, in the case of Koilel (Suing as the Legal Representative of the Estate of Parameres Ole Koilel) -vMoshoro Group [2026] KEELC 4110 (KLR) Ranch & the Court BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT 12 while others quoting the Page 26 of 40

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decision of the Court of Appeal in Munyu Maina -v- Hiram Gathiha Maina [2013] eKLR, provided that: “Once the root of a title is challenged, the registered proprietor must go beyond merely producing the title deed and demonstrate the legality of the process through which it was acquired. The Defendants titles were challenged, and they had a duty to demonstrate the legality of the process that led to acquisition of their impugned titles” 61. From the record, the Appellant produced a certificate of title in respect of L.R. NO SOUTH TESO/ANGOROMO/5784 together with photographs of the suit property. She testified that she purchased the property from Helena Akamolot in 2003 and that a title deed was subsequently issued in her favour in 2021. However, during cross-examination, she candidly admitted that she had not produced the sale agreement, the transfer instrument, the application for Land Control Board consent, the consent itself, or proof of payment of the purchase price. Consequently, apart from the title deed, there was no BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 27 of 40

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documentary evidence demonstrating the process through which the property passed from Helena Akamolot to the Appellant. 62. The Respondent did not merely deny the Appellant’s ownership of the suit property. She adduced evidence showing that prior to the Appellant’s registration, there existed a judgment and decree arising from Busia Land Dispute Tribunal Case No. 63 of 2010 awarding her a portion measuring 50 feet by 100 feet from the suit land. She further produced the proceedings of the tribunal, the Court order adopting the award, the Green Card, mutation documents and subsequent enforcement orders issued to facilitate implementation of that decree. Her case was that the transfer of the entire parcel to the Appellant was undertaken while implementation of the decree was pending and was intended to defeat her accrued rights under the judgment. 63. In my considered view, that evidence constituted a credible challenge to the root of the Appellant’s title and was sufficient to shift the evidential burden to the Appellant to demonstrate that her registration was lawfully and procedurally obtained. At BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 28 of 40

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that stage, it was no longer sufficient for the Appellant to rely solely on the certificate of title as proof of ownership. 64. Although the Appellant testified that she purchased the suit property from Helena Akamolot in 2003 and was subsequently issued with a title deed in 2021, she admitted during crossexamination that she had not produced the sale agreement, the transfer instrument, the application for or consent of the Land Control Board, or documentary proof of payment of the purchase price. Consequently, apart from the certificate of title, there was no documentary evidence placed before the trial Court demonstrating the legal process through which the suit property was transferred into her name. 65. In those circumstances, I am unable to fault the learned trial magistrate for finding that the Appellant failed to discharge the evidential burden that had shifted to her. The absence of the foundational documents relating to the acquisition of the suit property meant that the Appellant did not satisfactorily explain the root of her title as required by the decision in Munyu Maina v Hiram Gathiha Maina [2013] eKLR supra. The trial Court was therefore right to conclude that the Appellant had BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 29 of 40

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failed to establish that her title was lawfully and procedurally acquired. 66. I therefore find no error in the learned trial magistrate’s finding on the validity of the Appellant’s title. Accordingly, this issue is determined against the Appellant. On whether the learned trial magistrate erred in allowing the Respondent’s counterclaim, including the cancellation of the Appellant’s title and the enforcement of the decree arising from Busia Land Dispute Tribunal Case NO 63 of 2010. 67. The gravamen of the Appellant’s complaint under this issue is that the learned trial magistrate erred in law by allowing the Respondent’s counterclaim and ordering cancellation of the Appellant’s title while simultaneously enforcing a decree issued in Busia Land Dispute Tribunal Case NO 63 of 2010, proceedings to which the Appellant was admittedly not a party. 68. The Appellant further contends that the decree had become unenforceable by operation of Section 4(4) of the Limitation of Actions Act and that the trial Court therefore lacked jurisdiction to grant the impugned reliefs. Conversely, the BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 30 of 40

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Respondent maintains that the counterclaim was not merely an execution of the tribunal decree but was founded upon her preexisting beneficial interest over the suit property, which had crystallized into a Court decree long before the Appellant became the registered proprietor. 69. The record reveals that the Respondent pleaded and produced evidence demonstrating that the dispute over the suit property had been determined in Busia Land Dispute Tribunal Case NO 63 of 2010, whose award was subsequently adopted as a judgment of the Court. The Respondent further produced the decree, the Green Card, mutation forms and the order dated 21st June 2022 authorizing the Officer Commanding Station, Adungosi Police Station, to provide security during implementation of the decree. The Respondent’s case was therefore that her interest in the suit property had been judicially recognized long before the Appellant became the registered proprietor. 70. The Appellant’s principal argument is that the decree was incapable of enforcement by virtue of Section 4(4) of the Limitation of Actions Act, which provides: BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 31 of 40

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“An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered...” 71. I have carefully considered that submission. The decree adopting the tribunal award was issued on 13 th October 2010. The evidence on record further shows that before the expiry of the twelve-year statutory period, the Respondent successfully moved the Court and obtained orders on 21 st June 2022 directing police security during the subdivision and implementation of the decree. Those orders were plainly intended to facilitate the execution of the judgment already in existence. They demonstrate that the Respondent had taken active steps towards realization of the fruits of the judgment within the limitation period. The rationale underlying Section 4(4) of the Limitation of Actions Act is to discourage stale claims and prevent successful litigants from sleeping on their rights. In the present case, the evidence does not support such a conclusion. 72. The Appellant further argues that the decree could not lawfully be enforced against her because she was not a party to Busia BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 32 of 40

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Land Dispute Tribunal Case NO 63 of 2010. While it is true that the Appellant was not a litigant in those proceedings, the Respondent’s counterclaim was not framed merely as execution proceedings against the Appellant. Rather, it challenged the validity of the Appellant’s registration on the basis that the transfer was undertaken after the Respondent’s rights had already been recognized by a Court of competent jurisdiction. Once the Respondent placed before the Court evidence demonstrating the existence of an earlier decree affecting the suit property and successfully challenged the root of the Appellant’s title, the trial Court was entitled to interrogate whether the subsequent registration could stand. 73. In the case of Barake (Suing as the legal representative of the Late Jones Gekara Barake) -v- Ole Partungas & another [2026] KEELC 4249 (KLR) the Court provided that: “The purpose of Section 26 (1)(b) is to remove protection from an innocent purchaser or title holder. It means that the title of an innocent person is impeachable if it was obtained illegally, unprocedurally, or through a corrupt scheme. The BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 33 of 40

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title holder need not have contributed to these vitiating factors. The aim of Section 26 (1)(b) is to protect the true title holders from losing their titles due to subsequent transactions” 74. The Appellant also contends that the trial Court improperly relied on matters not pleaded. I have perused the Defence and Counterclaim dated 29th June 2023. The Respondent expressly pleaded the existence of the tribunal proceedings, the Court decree, the alleged transfer of the land to the Appellant in disregard of that decree, and specifically sought cancellation of the Appellant’s title together with transfer of the awarded portion. 75. It is trite law that parties are bound by their pleadings and that a Court can only determine issues arising therefrom. In the case of Phelix v Melrok Energy Limited & another [2026] KEELC 4393 (KLR), the Court stated that: “It is trite that the parties, and the Court itself, are bound by the pleadings before it, and that it is neither desirable nor permissible for a Court to BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 34 of 40

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frame or determine an issue that does not arise from them” 76. Equally, I find no merit in the Appellant’s submission that the absence of a contractual relationship between the parties defeated the Respondent’s counterclaim. The Respondent’s claim was not founded on contract but on a judicial decree recognizing her entitlement to a defined portion of the suit property. The cause of action was therefore based on proprietary rights asserted through the earlier judgment and not on any contractual obligation owed by the Appellant. 77. Having independently re-evaluated the evidence, I am satisfied that the learned trial magistrate properly appreciated the nature of the Respondent’s claim and correctly found that the Respondent had proved her counterclaim on a balance of probabilities. I find no error in the trial Court’s conclusion that the Respondent’s prior judicially recognized interest, coupled with the Appellant’s failure to establish the legality of her acquisition, justified the grant of the reliefs sought in the counterclaim. BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 35 of 40

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78. I am therefore satisfied that the learned trial magistrate properly evaluated the evidence and correctly concluded that the Respondent had established her counterclaim on a balance of probabilities. I find no basis upon which this Court can interfere with those findings. Accordingly, this issue is determined against the Appellant. On whether the Respondent’s counterclaim was incompetent or otherwise defeated by limitation or procedural defects. 79. The Appellant contends that the Respondent’s counterclaim was fatally defective for failure to comply with the mandatory provisions of the Civil Procedure Rules. Specifically, the Appellant argues that the counterclaim did not contain a proper heading identifying the parties against whom relief was sought as required under Order 7 Rule 8 of the Civil Procedure Rules and was not accompanied by a verifying affidavit contrary to Order 7 Rule 5(a). It is further submitted that the Respondent’s claim was statute-barred under Section 4(4) of the Limitation of Actions Act. BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 36 of 40

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80. I have carefully considered those submissions. Order 7 Rule 5 of the Civil Procedure Rules requires a defendant who files a counterclaim to accompany it with, among other documents, a list of witnesses, witness statements and documents intended to be relied upon at the trial. While the Rules contemplate compliance with procedural requirements, it is now settled that procedural lapses do not invariably render pleadings incompetent where no prejudice is occasioned to the opposite party. 81. Equally, Order 7 Rule 8 provides that where a defendant sets up a counterclaim, the counterclaim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in respect of both the original claim and the counterclaim. The purpose of the Rule is to facilitate the complete determination of all questions in controversy between the parties in one suit. From the pleadings on record, the Respondent clearly identified the parties, the subject matter of the dispute, the factual basis of the counterclaim and the reliefs sought. The Appellant filed a reply to the defence and defended the counterclaim throughout the proceedings without raising BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 37 of 40

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any objection before the trial Court as to its form or competency. 82. The Court is guided by Article 159(2)(d) of the Constitution, which obliges Courts to administer justice without undue regard to procedural technicalities. Similarly, Sections 1A and 1B of the Civil Procedure Act enshrine the overriding objective of facilitating the just, expeditious, proportionate and affordable resolution of civil disputes. 83. In the case of Maithya v Mulwa t/a Skyview [2024] KEELC 626 (KLR) the Court provided that: “The case of Microsoft Corporation v Mitsumi Computer Garage Ltd & another [2001] eKLR as well as the case of Abdirahman Abdi v Safi Petroleum Products Ltd & 6 others [2011] eKLR are cited to urge the Court to consider the overriding Objective and give the Appellant a chance to be heard.” 84. The Appellant has not demonstrated any prejudice suffered as a result of the alleged procedural defects. On the contrary, the record shows that she fully participated in the proceedings by filing a reply to the defence, testifying, cross-examining the BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 38 of 40

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Respondent, filing written submissions and contesting the counterclaim on its merits. Having participated in the proceedings without objection, it is not open to the Appellant to challenge the competency of the counterclaim for the first time on appeal in the absence of any demonstrated miscarriage of justice. 85. In the premises, I find that the alleged procedural defects did not render the Respondent’s counterclaim incompetent. The learned trial magistrate therefore committed no error in entertaining and determining the counterclaim on its merits. Accordingly, this issue is determined against the Appellant. On what orders should this Court make? 86. Having independently re-evaluated the pleadings, the evidence on record, the judgment of the trial Court, the memorandum of appeal and the parties’ rival submissions, I find that the Appellant has failed to demonstrate that the learned trial magistrate misapprehended the evidence, applied wrong principles of law or otherwise arrived at an erroneous decision warranting interference by this Court. The appeal is therefore devoid of merit. BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 39 of 40

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87. Consequently, the appeal is hereby dismissed in its entirety. The judgment and decree of the Chief Magistrate’s Court delivered on 5th December 2024 in Busia MCELC NO E131 of 2022 are hereby upheld. The Respondent shall have the costs of the appeal. Judgment dated, signed and delivered in open Court on this 29th day of September 2026. Right of Appeal C. MUGAMBI JUDGE 29TH SEPTEMBER 2026 BUSIA ELCEPA NO. E001 OF 2024 – JUDGMENT Page 40 of 40

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