Ben Bitange Oisera & Another v Elijah Nyagami Gai

CENTRAL KITUTU/MWAMANWA 2228 and 3450 without any basis. d. The learned trial Magistrate erred in law and fact in ignoring the rights of the appropriator provided under Sections 25 and 36 of the Land Registration Act. e. The learned trial Magistrate erred in law and fact by making a wrong finding that the suit was an abuse of the Court process when in fact the circumstances of irregularities, illegalities and violations of principles of natural justice by the Respondent begged for the Court’s intervention. f. The Learned Trial Magistrate’s decision is against the weight of the evidence. 2. On the above grounds, the Appellants ask: a. that the judgment of Hon. P.K. Mutai delivered on 26th August 2024 be set aside; b. that this appeal be allowed and judgment be entered in favour of the Appellants in terms of the Plaint; c. that the costs of this Appeal be borne by the Respondent. Background to the Appeal Page 2 of 25

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3. Vide a plaint dated 18th September 2018, the Appellants pleaded that they are the registered proprietors of land title numbers CENTRAL KITUTU/MWAMANWA/2228 & 3450 (“the Suit Properties”). They stated that on 11th September 2018, the Respondent unlawfully entered the Suit Properties and destroyed or carted away their 4 rolls of barbed wire, 200 fencing posts, 100 bags of cement, 180 posts, gate, and demolished their house. 4. The Appellants therefore prayed for declaratory orders that they are the rightfully registered proprietors of the Suit Properties, a permanent injunction restraining the Respondent, by himself or through his agents, from trespassing on or in any way dealing with the Suit Properties, and the delivery of the goods so destroyed or their value. 5. In response to the claim, the Respondent filed a Statement of Defence dated 29th October 2018, challenging the Appellant’s ownership of the Suit Properties. He asserted that the Suit Properties are subdivisions of Land Reference Number CENTRAL KITUTU/MWAMANWA/557, which the High Court found to be non-existent in KISII HCC NO. 120 OF 2004 JEMIMAH BITUTU GAI & ELIJAH NYANGAMI GAI V. GECHURE NYABANDO, ONGUBO OSINDI, & CHRISTOPHER MAUBI OKINDO NYABANDO. 6. The Respondent pleaded that he instructed an auctioneer to evict the Defendants in KISII HCC NO. 120 OF 2004 together with their agents or Page 3 of 25

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servants from his land CENTRAL KITUTU/MWAMANWA/558, pursuant to eviction orders issued by the Court in that suit. He asserted that the Appellants were agents of the Defendants in the 2004 suit and, as such, were trespassers on his land. 7. The Respondent also pleaded that the Appellants’ suit is an abuse of Court process and barred by res judicata. He prayed that the Court dismiss the suit with costs. 8. Evidence was led before the trial court by both parties. Ben Bitange Oisero (PW-1) adopted his witness statement dated 18th September 2018 and also produced as part of his evidence the following: Certificate of Title- CENTRAL KITUTU/MWAMANWA/2228 marked as P-Exhibit 1; Certificate of Title- CENTRAL KITUTU/MWAMANWA/3450 marked as P-Exhibit 2; Search Certificate over CENTRAL KITUTU/MWAMANWA/2228 marked as P-Exhibit 3; Search Certificate over CENTRAL KITUTU/MWAMANWA/ 3450, marked as P-Exhibit 4; a letter dated 14th September 2013 marked as P-Exhibit 5; Green Card over CENTRAL KITUTU/MWAMANWA/558 marked as P-Exhibit 8; Green Card over CENTRAL KITUTU/MWAMANWA/557 marked as PExhibit 7; and a survey map marked as P-Exhibit 8. 9. The 1st Appellant testified that on 11th September 2018, while in Nyahururu, he received a call from his neighbour who informed him that a group of people armed with crude weapons had entered his land and Page 4 of 25

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were destroying structures and property thereon. He was later informed that it was the Respondent who destroyed the property yet he was unaware of any previous suit before the High Court relating to the land, and further that he was never served with an eviction notice. 10. During cross-examination by learned Counsel Ms. Ochwal, the 1st Appellant stated that he purchased parcel number 3450 from Richard Nyabando in 2019 and parcel number 2228 from Fidelis Masese in 2018. He testified that, based on pre-purchase due diligence, he had confirmed that parcel number 2228 was a subdivision of parcel number 557. He also confirmed that parcel 3450 was a subdivision of parcel 3418, but he did not establish the origin of parcel 3418. 11. The Appellants also relied on the evidence of Kennedy Ogero Mboga, who gave evidence as PW-2. He stated that on 11 th September 2018 he saw a caterpillar tractor demolishing the Appellants’ fence and house. The witness did not describe the items from the house but said they were carried into a motor vehicle with registration number KCE 192Z. He further stated that police officers were present on the Suit Properties during the demolition. In cross-examination, he asserted that the police officers did not show him an eviction or demolition warrant. 12. Hellen Kemunto (PW-3) also testified that she saw a tractor demolishing the Appellants’ house together with houses belonging to their neighbours. Page 5 of 25

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She further stated that a Probox motor vehicle carried away posts, cement, barbed wire, bananas, spades, pangas, and jembes. 13. On his part, the Respondent adopted his statement dated 2nd October 2023 as his evidence in chief. He also produced the documents listed in his list of documents dated 23rd November 2023. The documents were marked as P-Exhibits 1, 2, 3, 4, 5, 7, 9, 10, and 11. He further testified that he had sued Gechure Nyabando, Ongubo Osindi, and Christopher Maubi Okindo Nyabando in KISII HCC NO. 120 OF 2004 for trespassing on his land known as CENTRAL KITUTU/MWAMANWA/ 558. 14. In the said suit, the Defendants contended that they were the owners of land parcel number CENTRAL KITUTU/MWAMANWA/557, which they alleged was superimposed onto land parcel CENTRAL KITUTU/MWAMANWA/558 on the ground, such that the parties were, in substance, claiming the same portion of land. The Respondent stated the Court in KISII HCC NO. 120 OF 2004 found that CENTRAL KITUTU/MWAMANWA/557 did not exist. 15. According to the Respondent, the Appellants were occupying CENTRAL KITUTU/MWAMANWA/558 as agents of the Defendants in KISII HCC NO. 120 OF 2004; thus, the Appellants have no claim against him as he was executing a valid decree. In cross-examination, DW-1 admitted that the Defendants in KISII HCC NO. 120 OF 2004 and the Appellants herein have no relationship but the Appellants purchased the Suit Page 6 of 25

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Properties from some of the Defendants. He further stated that eviction notices were issued to the Appellants and that he followed due process in the eviction. 16. Henry Onwara (DW-2) testified as the Land Registrar, Kisii and produced as part of his evidence a Report dated 17 th July 2020 regarding parcels CENTRAL KITUTU/MWAMANWA/557 & 558 marked as P-Exhibit 12. The report concluded as follows: a. Parcel 557 was never used and its existence and subsequent transactions are not tenable. b. Parcel 558 was used and documented to measure 21.0 Acres. c. The boundary marking parcel 558 on the ground was found to be intact and well demarcated. d. The presence of two maps capturing the same numbers amounts to number duplication and an indication of an error which requires to be corrected urgently to adopt boundaries as captured in the original maps (1st edition maps) using aerial photos and original area lists. 17. The County Surveyor gave evidence as DW3 producing the report dated 17th July 2020. He testified that from the area list, aerial photos, and index card, parcel no. 557 never existed. He further confirmed that there were inconsistencies in their survey records leading to false existence of parcel no. 557, but he used records from survey headquarters to correct Page 7 of 25

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the records. From the area list, it was apparent that parcel no. 557 did not have acreage. Now this Appeal 18. Directions were issued for the prosecution of the appeal by way of written submissions. The Appellants’ written submissions, filed by Mr. Ombachi, learned Counsel, are dated 9th June 2026. Relying on Section 26 of the Land Registration Act, 2012, Counsel submits that the Certificates of Title produced by the Appellants are prima facie evidence of their ownership of the Suit Properties. Such ownership can be impeached only by fraud, misrepresentation, illegality, or failure to follow due procedure in acquiring the title. Counsel further submits that the Respondents did not plead or prove fraud, illegality, or corruption; accordingly, there was no basis to challenge or impeach the Appellants’ title to the Suit Properties. 19. As regards Kisii High Court Civil Suit No. 120 of 2004, Mr. Ombachi submits that the Plaintiffs therein, Jemimah Bitutu Gai and Elijah Nyagami Gai, did not seek to establish their proprietorship of parcel number 558 as they did not assert their proprietorship in their pleadings. Counsel further submits that the Plaintiffs in Kisii High Court Civil Suit No. 120 of 2004 failed to disclose to the Court that there was a past dispute concerning land parcel number 557 in 1987 before the Land Page 8 of 25

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Disputes Tribunal between Nyabando Misati (Complainant) and Elijah Nyagami Gai and Bitutu Gai (Administrators of the Estate of the late Gai Nyachwaya). 20. That the decision of the Tribunal that the Complainant was entitled to land parcel number 557 that had been dubiously annexed to parcel number 558 was adopted as the judgment of the Court in Kisii Civil Case Miscellaneous No. 21 of 1987. Copies of the proceedings before the Land Disputes Tribunal and in Kisii Civil Case Miscellaneous No. 21 of 1987 were annexed to Counsel’s submissions. Mr Ombachi also submitted that Kisii High Court Civil Suit No. 120 of 2004 concerned trespass to land and did not displace the Court's judgment in Kisii Civil Case Miscellaneous No. 21 of 1987 concerning ownership of parcel number 557. 21. Counsel further faulted the learned trial Magistrate for failing to make a finding on whether the Land Registrar could revoke the Appellants’ titles. He additionally submitted that the evidence of both the Land Registrar and the Surveyor was false and evasive and should not have been relied upon. He urged the Court to find that the Appellants had proven their case. 22. The Respondent did not file any submissions, as none are on record. Analysis and Determination: Page 9 of 25

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23. Having carefully considered the Memorandum of Appeal, the Record of Appeal, the submissions, and the relevant legal provisions, the following issues are framed for determination of the appeal: a. Whether the Magistrates' Court’s judgment ought to have been held in abeyance/ stayed pending the outcome of Civil Appeal No. 90 of 2020. b. Whether the Appellants’ suit is barred by res judicata. c. Whether the Appellants’ suit is sub judice. d. Whether the Suit Properties exist and, if so, who is the lawful proprietor. e. 24. Whether the Appellants proved their case in the subordinate court. Before delving into the merits of this appeal, it is appropriate, at the outset, to state the Court’s duty as the first appellate Court thus: to reconsider, analyse, and re-evaluate the evidence on record and reach its own conclusions, always mindful that it did not have the benefit of seeing or hearing the witnesses. The nature and extent of this duty was more substantively articulated by the Court of Appeal in Selle & Another v. Associated Motor Boat Co. Ltd. & Others [1968] EA 123 at 126, that: “An appeal to this court from a trial by the High Court is by way of a 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 Page 10 of 25

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conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound to follow the trial judge’s findings of fact if it appears that either he clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally.” Whether the judgment ought to have been held in abeyance/ stayed pending the outcome of Civil Appeal No. 90 of 2020 25. In his written submissions before the lower Court, Learned Counsel Ombachi faulted the Respondent for scheduling the matter for hearing while Civil Appeal No. 90 of 2020 was still before the Court of Appeal. He requested the trial Magistrate to hold his judgment in abeyance awaiting the outcome of the Appeal. Along this line of argument, the Appellant’s fifth ground of appeal is that the trial Magistrate erred in expressing his opinion on a matter pending and active before the Court of Appeal concerning similar issues. 26. The case in the subordinate Court was filed on 19 th September, 2018 while the ex parte application in the Judicial Review Proceedings was filed in 2019. The Appellants herein were amongst the ex parte Applicants in the Judicial Review proceedings. They did not apply for Page 11 of 25

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orders staying proceedings before the Magistrate’s Court pending the determination of the Judicial Review, which was determined on 3 rd December, 2020. The record shows proceedings undertaken after 3 rd of December, 2020 including defendants testifying on 12th June, 2024. 27. No explanation is provided in this appeal as to why the Appellants felt the judgment ought to have been stayed after they continued with the hearing and in the absence of an order from the superior court withholding the writing of the judgment. Furthermore, the reliefs available in a Judicial Review application are substantively different from those that were being canvassed before the trial Court. 28. It is trite law that an appeal does not operate as an automatic stay. A party must, by application, demonstrate to the Court why a stay is warranted. The Appellants did not apply for a stay or demonstrate, to an acceptable standard, that a stay of proceedings would be merited in their case. For this reason, the trial Magistrate cannot be faulted for delivering his judgment despite the existence of Civil Appeal No. 90 of 2020. Whether the appellants’ suit was res judicata 29. The Appellants were seeking, in their Plaint, to be declared the rightful proprietors of the Suit Properties, an injunction restraining the Respondent from interfering or dealing with the Suit Properties, and delivery of the goods destroyed or their value. Page 12 of 25

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30. The learned trial Magistrate found that the High Court in Kisii HCCC No. 120 of 2004 in its judgment of 17th June 2010 already established that there were no land records on parcel number 557. Consequently, parcel numbers 3450 and 2228 resulting from the subdivision of parcel number 557 cannot legally exist. 31. In Judicial Review No. 4 of 2020 before this Court, Richard Nyabando (ex-parte applicant) challenged the decision of the Land Registrar to revoke titles to, among other parcels, Central Kitutu/ Mwamanwa/ 2228 & 3418. Justice J.M. Onyango upheld a preliminary objection raised in the application by the Respondent herein who was the interested party in the Judicial Review application. The learned Judge found the ex-parte applicant’s suit res judicata, because a determination of the issues raised had already been made in Kisii HCCC No. 120 of 2004, and sub judice because the parties were also litigating before the Court of Appeal on an appeal regarding Judicial Review Application No. 4 of 2019 still concerning the Suit Properties. 32. As an expression of the principle of finality of litigation, res judicata dictates that a party only gets a single opportunity to raise all issues concerning a dispute. Once the case is heard and determined, they cannot re-litigate determined issues or raise other ancillary matters. The law on res judicata is set out in Section 7 of the Civil Procedure Act, Cap. 21 Laws of Kenya. The Section provides as follows: Page 13 of 25

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“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 33. There is a fair amount of jurisprudence on what a party should prove to successfully raise res judicata. The Supreme Court in John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR), succinctly outlined these elements as follows: “59. For res judicata to be invoked in a civil matter the following elements must be demonstrated: a) There is a former judgment or order which was final; b) The judgment or order was on merit; c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d) There must be between the first and the second action identical parties, subject matter, and cause of action.” 34. In the present matter, there is a final judgment of the High Court delivered in Kisii HCC No. 120 of 2004- Jemimah Bitutu Gai & Elijah Page 14 of 25

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Nyangami Gai V. Gechure Nyabando, Ongubo Osindi, & Christopher Maubi Okindo Nyabando. The judgment was on merit, and there is no dispute that it was rendered by a Court of competent jurisdiction. 35. In consideration of the final element, it is imperative to keep in mind the following holding of Supreme Court in Kenya Commercial Bank Ltd & another v Muiri Cofee Estate Ltd & 3 Others [2016] KESC 6 (KLR): “Hence, whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title;...” 36. The Appellants’ suit raises two main issues: one, the Appellants’ proprietorship to the Suit Properties, and second, the Appellants’ recovery of the value of the goods destroyed during eviction. Based on the Land Registrar’s letter dated 27th November 2018 on revocation of titles and other materials before the Court, parcel number 2228 is a subdivision of parcel number 557. The 1st Appellant also testified that parcel number 3450 is a subdivision of parcel number 3418 that is also listed in the Land Registrar’s letter for cancellation of title. Page 15 of 25

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37. In Kisii HCC No. 120 of 2004, the 2nd Defendant therein alleged that parcel number 557 was included in parcel number 558 and that the Plaintiffs therein fraudulently caused the records relating to parcel number 557 to disappear. Justice Asike Makhandia (as he then was) found that parcel number 558 was not fraudulently obtained, and that the 2nd Defendant had failed to prove his allegations of existence and ownership of parcel number 557. Conclusively, a Court of competent jurisdiction found parcel number 557, the mother title to the Appellants’ parcel 2228, to be non-existent, while validating the existence of parcel number 558, which measures 21 acres. 38. The next issue arising from the Appellants’ suit is recovery of the value of goods destroyed during eviction. This issue was not considered and determined in Kisii HCC No. 120 of 2004. Any venture by this Court to determine this question must eventually include consideration of the issue of validity of execution of the order issued in the previous suit. 39. The Court of Appeal in John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] KECA 472 (KLR), described succinctly the difference between issue res judicata and cause of action res judicata. It is stated as follows: “The doctrine of res judicata has two main dimensions: cause of action res judicata and issue res judicata. Res judicata based on Page 16 of 25

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a cause of action, arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. Cause of action res judicata extends to a point which might have been made but was not raised and decided in the earlier proceedings. In such a case, the bar is absolute unless fraud or collusion is alleged. Issue res judicata may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant and one of the parties seeks to re-open that issue.” 40. Therefore, questions of the existence and proprietorship of parcel number 557, which was directly and substantially in issue in Kisii HCC No. 120 of 2004, will once again be directly and substantially in issue in this case, thus, the issue having been determined, is res judicata. 41. The other element to consider is whether there were identical parties between the first and the second action or whether the parties herein can litigate under the same title. There is no dispute that the Appellants did not participate in Kisii HCC No. 120 of 2004. In determining a similar issue, the High Court of India in Michael Zimik vs Ngathinkhui Shingnaisui (2002), held as follows: Page 17 of 25

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“The contention of Ms. I. Lenibala, learned counsel, is that only the direct descendant of a party in the earlier suit would be bound by the principle of res judicata. This contention is untenable on the face of it. The language of Section 11 CPC does not commend itself to such an interpretation. The provision requires only that the former suit and the present suit be between the same parties, or between parties under whom they, or any of them, claim, litigating under the same title. Therefore, the successor-ininterest of a party to a former suit would be equally bound by the decision in that suit, owing to the principle of res judicata. Apart from the fact that the defendants claim to be the grandsons of late S. Maham, the defendant in Civil Suit No. 13 of 1962, they also qualify as successors-in-interest, having purchased the suit land from S. Shingnaisui, the eldest son of late S. Maham. There is no dispute as to the competence of the Court in the first round of litigation between the predecessors- in-interest of the present parties. That apart, there is no dispute that both parties are litigating under the same title. In effect, the principle of res judicata squarely applies and the present suit stood barred thereby.” 42. In Kisii HCC No. 120 of 2004, the 2 nd Defendant, Ongubo Osindi, asserted the existence of and his proprietorship of parcel number 557. Page 18 of 25

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Ongubo Osindi was, in effect, litigating in his capacity as proprietor of parcel number 557. The suit parcel number 557 was subdivided, and the Appellants purchased subdivisions of the impugned land. 43. Accordingly, the Appellants’ title is derivative of the same title under which Ongubo Osindi was defending in Kisii HCC No. 120 of 2004. This makes the Appellants successors in title to the litigants in Kisii HCC No. 120 of 2004, originally from Ongubo Osinde. Having purchased the land post judgment, they inherited title together with encumbrances arising from the earlier Court’s determination. To permit them to reopen issues of the existence and proprietorship of parcel number 557 would circumvent the application of the doctrine of res judicata. 44. In conclusion, this Court does not fault the trial magistrate’s holding that the Appellants claim is res judicata in Kisii High Court Civil Case No. 120 of 2004. Whether the Appellants’ suit is sub judice 45. Matters pending determination before one Court should not simultaneously be heard by another Court. In this regard, Section 6 of the Civil Procedure Act provides as follows: “No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the Page 19 of 25

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same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.” 46. Civil Appeal No. 90 of 2020 challenged the Ruling of the Court in Judicial Review Application No. 4 of 2019. The parties state that the appeal is still pending determination. From the materials placed before this Court, that is the Memorandum of Appeal dated 16 th July 2020 in Civil Appeal No. 90 of 2020, and a Ruling in Judicial Review Application No. 4 of 2019 dated 03rd December 2020, it can only be gleaned that the Appellants are challenging the decision of the Land Registrar to cancel their titles to the Suit Properties. There is nothing to suggest that the second issue arising in the Appellants’ suit- whether the Appellants are entitled to recovery of the value of goods destroyed during eviction- is raised for consideration by the Court of Appeal. 47. Judicial review assesses procedure and authority rather than determining parties’ substantive rights. Although the current suit overlaps in fact with the judicial review application and the subsequent appeal before the Court of Appeal, the Court cannot conclude that a matter for consideration in a judicial review application renders a substantive suit sub judice. Whether the Appeal is merited: Page 20 of 25

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48. In the event I am wrong (which is not true) to uphold the decision of the learned trial magistrate that the Appellant’s suit was res judicata, this court is granted the powers to re-evaluate the evidence in determining the merits or otherwise of the case. Thus, I will look into the merits of the appeal. 49. The Appellants admitted being aware that one of their parcels, number 2228, was created from subdividing the original title 557. In his testimony before the trial court, the Respondent produced, among his documents, a survey report dated 17.7.2020. The report was prepared by the County Surveyor who visited the site the presence of the County Land Registrar. Both Officers testified before the trial court and confirmed the boundaries of the Respondent’s land No. 558 were intact. For 557, they stated that it was not used and therefore had null acreage. 50. According to the County Land Registrar and County Surveyor, parcel 557 was initially captured during the demarcation process but was cancelled, with 558 captured in its place. They concluded that the existence of 557 was not tenable and that the subsequent transactions were likewise untenable. In the evidence before the trial court, the Appellants called only those who saw their properties being destroyed. They did not call those who sold them the suit parcels, nor did they produce evidence to contradict the earlier finding that parcel number 557 had no acreage Page 21 of 25

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assigned to it, making it incapable of creating subdivisions that included the Appellants’ titles. 51. In the case of Munyi Maina versus Hiram Githiha Maina (2013) e KLR, the Court of Appeal held that a certificate of title is not, in itself, sufficient proof of ownership. In this instance, the Respondent argued that it was executing a court decree hence, the burden was on the Appellant to demonstrate that their land did not fall within parcel number 558. This is because they were served with pleadings and judgment in HCC case 120 of 2004 in 2018, whose outcome put them on notice that the root of their title had been successfully challenged. 52. The Respondent went further to produce records of the Mwanamwa Registration Section, which gave dash results for parcel number. In the earlier suit number HCCC 120 of 2004, it is recorded that the 1 st and 3rd Defendants failed to enter appearance. The 2nd Defendant, Ongubo Osindi, accused the Respondent of fraud, inter alia, causing the records of parcel number Central Kitutu / Mwanamwa /557 to disappear and/or causing parcel 557 to be included in parcel 558. 53. Thus, as early as 2004, the person claiming proprietorship over parcel number 557 was aware that the adjudication records of parcel 557 were incomplete. The evidence adduced then confirmed that R.I.M did not feature parcel number 557. None of the original owners pursued the matter either with the Adjudication Office or the Land Registrar to have Page 22 of 25

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the error if at all corrected. Additionally, the 2nd Defendant in the former suit did not bother to challenge the outcome in HCCC 120 of 2004. 54. This remains the status going by the survey report dated 2020 although it is alleged that the parcel number 557 was subsequently subdivided. The Appellants did not even produce the mutations subdividing the said parcel 557 to exempt them from the mischief intended to be cured by the provisions of section 26 of the Land Registration Act. Hence the Appellants’ prayer to be declared as the registered proprietors of parcel number 22280 could only stand if the mistake (if any) in the adjudication and demarcation process was rectified to now give details of measurement of parcel number 557. 55. Therefore, I hold that the Appellants’ title was hinged on title number 557 which a court of competent jurisdiction had held had no ground position. Consequently, the Appellants' title cannot avail them of the protection of the law. 56. In regard to the demolished properties, this claim ought to have been brought in the matter whose decree was being executed under the provisions of Section 34 of the Civil Procedure Act. Section 34(2) of CPA CAP 21 states thus; “The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit, or a Page 23 of 25

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suit as a proceeding, and may, if necessary, order payment of any additional court fees.” 57. Additionally, special damages have to be specifically pleaded and proven. The Court of Appeal in Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR) cited with approval the holding of the Court in Hann versus Singh (1985) KLR 716, that: “Special damages must not only be specifically claimed but also strictly proved. The degree of certainty and the particularity of proof depend on the circumstances and the nature of the acts themselves.” 58. The claim for delivery up of the goods destroyed, or their value, is a claim for special damage, which the Appellant was required to prove specifically. No receipts were presented for the costs of purchasing these items, nor was a valuation report produced. The calling of eyewitnesses only confirmed that demolition took place, but the witnesses did not state the type of barbed wire destroyed, the type of wood used in the fencing post, the size and type of gate, etc. What I am saying is that the special damage was not proved to the required standard. 59. In conclusion, I hold that on the merits of the case before the subordinate court, the burden of proof was not discharged to the required standard. Thus, grounds 2, 3 and 4 of appeal also fail. In sum, my analysis is that Page 24 of 25

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none of the grounds of appeal succeeds, and the appeal is hereby dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED AT KISII THIS 24 TH OF SEPT. 2026. A. OMOLLO JUDGE Page 25 of 25

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