Lekakeny Ole Songirian v Benson Soit Tasur

deed for Transmara/Shartuka/38, nor did he produce any official evidence that the said title had been cancelled. c) That the Learned magistrate erred in law and fact by misapplying the principles in the case of Giella v Cassman Brown and failing to appreciate that the Plaintiff had established a prima facie case with a probability of success when in fact the Plaintiff witnessed on the stand that he acquired the suit property vide adjudication and further presented enough documentary evidence including the official search, land map, and letter from the Department of Lands. d) That the trial court failed to appreciate that the burden of proving that the Plaintiff’s title was cancelled or invalid lay with the Defendant, and in the absence of such evidence, the Plaintiff’s ownership stood uncontroverted and in light of such. e) That the Learned Trial Magistrate erred in law and in fact by failing to order/request the Land registrar’s report with regards to the disputed land in order to establish with clarity, the ownership of the said land. f) That the Learned Trial Magistrate erred in Law and fact by acknowledging the Respondent’s counterclaim without his case being established beyond the balance of probability and dismisses the Plaintiff’s claim on the same grounds. g) That the court erred in dismissing the claim for mesne profits without considering that the same had been properly pleaded and that sufficient oral evidence had been rendered regarding the Respondent’s wrongful use and occupation of part of the Appellant’s land. h) That the Court erred in granting injunctive relief to the Respondent despite his failure to prove encroachment by the Appellant or disprove the Plaintiff’s legal title. i) That the trial court’s finding was against the weight of the evidence tendered and resulted in a miscarriage of justice. P a g e 2 | 11

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3. On the strength of the above grounds of Appeal, the Appellant sought for the reliefs set out at Paragraph 1 of this judgment. 4. Upon admission of the Appeal the court issued directions for disposal of the Appeal by way of written submissions which the court summarizes as herefollows; Appellant’s Submissions 5. The Appellant’s submissions provided two (2) key issues for determination by this Honourable Court. 6. On issue No. 1, whether the Appeal is merited, the Appellant broke down the issue into three areas; proof of ownership, trespass, and issuance of injunctive orders. 7. On the first issue, proof of ownership, the Appellant submits that he had produced proof of ownership of Transmara/Shartuka/38 by showing the court the Certificate of search dated 04.09.2020 and Title registered in his name. The Appellant relied on Sections 24 and 26 of the Land Registration Act, Section 107 of the Evidence Act Cap 80, Gichinga Kibutha v Caroline Nduku [2018] KEELC 3981 (KLR), Civil Appeal No. 246 of 2013 between Arthi Highway Developers Limited v West End Butchery Limited and Others, and Dr. Joseph Arap Ngok v Justice Moijo Ole Keiwua & 5 Others, Civil Appeal No. Nai. 60 of 1997. 8. On the second issue, trespass, the Appellant submits that trespass is not confined to the act of stepping onto another’s land but also the liability where a person causes an object, substance or structure to intrude upon land in possession of another citing Section 3 (1) of the Trespass Act, Thuo v Mwangi (Environment and Land Case E080 of 2023) [2026] KEELC 1503] (KLR) (13.03.2026), Clerk and Lindsell on Torts (18th edn) at paragraphs 18-01, and Park Towers Ltd v John Mithamo Njika & 7 Others [2014] eKLR. P a g e 3 | 11

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9. On the third issue, issuance of the injunctory order, the Appellant submits that presenting a copy of the Title and a certificate of search as proof of ownership in itself was sufficient to move and persuade the court to issue orders sought citing Giella v Cassman Brown & Company Limited [1973] E.A 358. 10. On issue No. 2, who should bear the costs of Appeal, the Appellant prays that the court allows this appeal with costs. Respondent’s Submissions 11. The Respondent’s submissions focused on 4 issues for determination. 12. On issue No. 1, whether the Appellant proved ownership of the suit property, the Respondent submits that the Appellant ignores Section 26 (1) (b) of the Land Registration Act, which provides that title can be challenged where it has been acquired illegally, unprocedurally, or through corrupt schemes and that the production of a title alone is not conclusive proof of ownership. The Respondent relied on the cases of Kireru v Kibe & 2 Others (Civil Appeal 174 of 2018) [2024] KECA 1097 (KLR), Funzi Development Ltd. & Others v County Council of Kwale, Mombasa Civil Appeal No. 252 of 2005 [2014] eKLR, Frank Logistics Limited v Golden Lion Real Estate Company & 6 Others (Civil Appeal E303 of 2024) [2025] KECA 1471 (KLR) and Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR. 13. On issue No. 2, whether the trial court properly allowed the counterclaim, the Respondent submits that he established before the subordinate court that he was the lawful proprietor of parcel No. Transmara/Shartuka/921 and that the Appellant was unlawfully laying claim to land belonging to the Respondent. The Respondent cited Kimani (Suing as the Legal Representative of the Estate of John Kimani Munyaka) & Another v Wainaina (Civil Appeal 11 of 2020) [2025] KECA 1679 (KLR) and Sections 107 of the Evidence Act. Further, the trial P a g e 4 | 11

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court was not obligated to call for a Land Registrar’s report suo moto and the Appellant failed to discharge their burden of proof. 14. On issue No. 3, whether trespass and mesne profits were proved, the Respondent submits that trespass is a question of fact which must be specifically proved. The Respondent relied on Emfil Limited v Safaricom Limited (Civil Appeal E100 of 2022) [2025] KECA 1331 (KLR) and Unifresh Exotics (K) Limited v Kaoyeni Enterprises Limited (Civil Appeal E065 of 2022) [2025] KECA 872 (KLR) (23.05.2025) (Judgment). The Respondent further submits that the Appellant failed to produce valuation evidence, agricultural assessments, income projections or any computation capable of grounding an award of mesne profits. 15. On issue No. 4, whether the Appeal discloses any basis for appellate interference, the Respondent submits that the Appellant has not demonstrated any misdirection in law, consideration of irrelevant matters, failure to consider relevant evidence, or perversity in the findings of the trial court and the Appeal merely invites this court to re-litigate factual issues already conclusively determined by the subordinate court. 16. The Respondent submits that the Appeal is incompetent, unmeritorious, an abuse of the court process and respectfully urges this court to dismiss the Appeal with costs to the Respondent. Issues for Determination 17. Before framing the issues for determination, the court notes that the Plaintiffs/Appellants case before the trial court was in relation to ownership of Transmara/Shartuka/38 while the Defendant/Respondents counter-claim before the trial court was in relation to Transmara/Shartuka/921. The court will thus determine whether the two parcel numbers relate to one and the same parcel on the ground among other issues for determination which the court frames as follows. P a g e 5 | 11

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(i) Whether or not the Appeal herein is merited? In deciding this issue, the court shall determine the following sub issues. (a)Was the Plaintiff’s title in relation to Transmara/Shartuka/38 cancelled and (b)was the Defendant issued a new title over the same parcel? (c) Which between the Plaintiff’s/Appellant’s case before the trial court, or the Defendants/Respondents counter-claim was merited before the trial court. (ii) What reliefs ought to issue. (iii) Who bears the cost of the Appeal and before the trial court? Analysis and Determination 18. The court is under a duty as a first Appellate court as stated in Selle and Another Vs. Associated Motor Boat and 3 Others, the duty to “reconsider the evidence, evaluate it and draw its own conclusion” 19. In exercise of the said duty, the court shall review the pleadings, evidence and judgment of the trial court, and subject the same to the issues for determination as framed above. 20. Vide the Plaint dated 2nd October 2007, the Plaintiff now Appellant sought for (d)An order of permanent injunction restraining the Defendant by himself, his agents, servants and/or employees from entering into, fencing, working, ploughing, constructing or in any manner whatsoever interfering with the Plaintiff’s quiet occupation and possession of the suit land. (e) Mesne profits. (f) Costs of the suit and interests thereon at court rates. (g)Further or other reliefs deemed just. 21. It was the Plaintiff’s case that he was the registered owner of Transmara/Shartuka/38 measuring 20.64 Hectares where he lived and farmed P a g e 6 | 11

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thereon, that the Defendant had without lawfully justification entered the said suit land and committed acts of waste namely ploughing, fencing and digging a foundation for a house. The Plaintiff sought for an injunction and the reliefs set out at the preceeding paragraph. 22. The Respondent/Defendant before the trial court filed a defence and counter-claim dated 2nd November 207 in which he pleaded interalia as follow; (i) That the title of Transmara/Shartuka/38 was fraudulent and/or was obtained by way of fraud. 23. The particulars of fraud pleaded were that; (i) Defendant holds the original title for the said parcel of land. (ii) The title documents were not recognized by the Chief Land Registrar of titles. (iii) The said documents were obtained in contravention of a court order. (iv)The acreage in the title is not the proper acreage. 24. In his counter-claim the Defendant now Respondent pleaded that he was the lawful registered owner of Transmara/Shartuka/921 which was issued after cancellation of Transmara/Shartuka/38 hence the Plaintiff was a trespasser on the suit property known as Transmara/Shartuka/921. 25. The counter-claim thus sought; (i) For declaration that the title deed known as Transmara/Shartuka/38 is null and void and that the genuine title deed is Transmara/Shartuka/921 issued in the name of Benson Sirere Tasur. (ii) Permanent injunction restraining the Plaintiff from claiming ownership of either parcel of land Transmara/Shartuka/38 or Transmara/Shartuka/921. (iii) Costs of counter-claim. 26. The Appellant/Plaintiff before the trial court for good measure filed a Reply to defence and defence to counter-claim in which he averred interalia that; P a g e 7 | 11

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(i) It was denied that the Defendant held original tile or any part of Transmara/Shartuka/38, (ii) That the title was obtained in contravention of any court order hence was not recognized by the Chief Land Registrar of titles, and the issue of the proper acreage on the title; thus, the Defendant was not entitled to any part of Transmara/Shartuka/38. 27. In the defence to the counter-claim the Plaintiff denied that his title had been canceled and a new title to wit Transmara/Shartuka/921 was issued in its place. 28. The Plaintiff further averred that Transmara/Shartuka/921 if it existed was not the same as Transmara/Shartuka/38 belonging to the Plaintiff; and he pleaded fraud over the acquisition of Transmara/Shartuka/921, and further alleged and maintained that the Defendant was a trespasser with respect to the suit land. 29. The matter was initially filed before Kisii High Court, it was transferred to Kisii ELC, and upon establishment of Narok ELC transferred there, and ultimately transferred to Kilgoris CMs court for hearing and determination; and the said decision provoked this Appeal. 30. The Plaintiff testified that the suit property was his, his testimony appearing at pages 199 to 201 of the Record of Appeal. The Plaintiff produced a copy of title deed for Transmara/Shartuka/38 as P.Exhibit 3 photographs as P.Exhibit 4. Demand letter dated 25.04.2023 – P.Exhbit 5 Department of Lands letter dated 03.05.2023 – P.Exhibit 6. 31. The witness stated that he had been a member of Shartuka Group Ranch member No. 38. The witness stated that the Defendant had taken possession of 51 acres his land and fenced the same. upon testimony of the Plaintiff as the sole witness, the Plaintiffs case closed and the Defendant testified as the sole witness. P a g e 8 | 11

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32. It was his testimony appearing at pages 204 to 205, of the Record of Appeal he had been issued with title for parcel No. Transmara/Shartuka/921 which was issued on 21.05.2009, on cross-examination the witness stated that he was not a member of Shartuka Group Ranch but had applied to be a member verbally and that his land was next to the plaintiff’s land and that it was the plaintiff who was occupying his land. the witness produced his list of documents dated 08.07.2010 and 05.03.2024. It was his further testimony that Transmara/Shartuka/921 was about 10.19 hectares. 33. Upon review of the above evidence the trial court found that the surveyor and Land Registrar had not been called to confirm the existence of Transmara/Shartuka/38 hence the Plaintiff had not demonstrated the threshold of grant of injunction as stated in Giella Vs. Cassman Brown and Co. Ltd (1973) E.A 34. He thus dismissed the Plaintiff’s case and with regard to the counter-claim the trial court dismissed the prayer for declaration of Transmara/Shartuka/38 as null and void for lack of supporting evidence. 35. This court has reviewed the pleading, evidence and the judgment of the trial court and in answer to sub issue a, as to whether Transmara/Shartuka/38 and Transmara Transmara/Shartuka/921 were one and same parcel on the ground the Plaintiff/Appellant produced a copy of the title for Transmara/Shartuka/38 as P.Exhibit 1 and official search as P.Exhibit 2 and the map extract as P.Exhibit 3. 36. The above are found at pages 17 to 20 of the Record of Appeal while the Defendant/Respondents title in respect of Transmara/Shartuka/921 is exhibited at page 23 of the Record of Appeal. Whereas title for Transmara/Shartuka/38 is found at Registry map sheet No. 1 while Transmara/Shartuka/921 is found at Registry map sheet No. 7. 37. It follows that in so far as the said parcels are in different registry map sheet, they cannot refer to one and the same parcel, and the court in answer to P a g e 9 | 11

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sub-issue a, finds that Transmara/Shartuka/38 and Transmara/Shartuka/921 are not one and the same parcel. 38. On sub-issue (2), the trial court found that there was no evidence adduced by the Defendant/Respondent to support the cancellation of the title for Transmara/Shartuka/38 this court equally comes to the same conclusion, that Transmara/Shartuka/38 was not cancelled as alleged by the Defendant/Respondent. 39. It follows that in so far as the whole counter-claim was based on the cancellation of Transmara/Shartuka/38 and re-issuance of the parcel to the Defendant under a new title Transmara/Shartuka/921, counter-claim was not supported by evidence and hence lacked merit and the learned trial court fell in error in that regard, to allow the counter-claim. 40. The Plaintiff/Appellant produced a copy of title, official search as well as map sheet indicated where the suit property was. 41. He accordingly did prove ownership and entitlement of Transmara/Shartuka/38 and his case was merited before the trial court and his Appeal is thus merited. 42. On what reliefs ought to issue, having demonstrated ownership of Transmara/Shartuka/38, the Appellant is entitled to the rights and privileges appurtenant to a registered owner under sections 24-26 of the Land Registration Act and was entitled to the reliefs sought in the Plaint more so the permanent injunction be sought and it was erroneous for the trial court to apply the principles of Giella Vs. Cassman Brown when the matter had gone for full hearing, noting that the Plaintiff’s case had already passed the interlocutory stage. 43. The court finds that the Appellant is entitled to the reliefs sought in his Plaint and allows this Appeal; in terms as follows; (i) That the Appeal is allowed and judgment of trial court is set aside, in its entirety. P a g e 10 | 11

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(ii) Permanent injunction issues against the Respondent by himself, agents from interfering with the Appellants possession and ownership of Transmara/Shartuka/38. (iii) The Appellant shall issue a notice under section 152 of Lands Act giving notice to the Respondent to vacate the suit property upon expiry of the said Notice. (iv) Costs of the suit before the trial court and of this Appeal are awarded to the Appellants. Dated at Kilgoris this 5th day of October, 2026 Hon. M.N Mwanyale Judge In the presence of CA – Sylvia/Clara Mr. Moturi for the Respondent Mr. Kiprotich for the Appellant P a g e 11 | 11

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