i.Whether the learned trial magistrate erred in law and fact by failing to appreciate the totality of evidence adduced thus arriving at an erroneous conclusion.
15.I will shortly set the analysis of the evidence by the trial magistrate vis a vis the facts as they appear in the pleadings and documents that were adduced before the trial court. The learned magistrate rejected almost the entire evidence of the appellants and largely accepted that which was adduced by respondent.
16.The trial magistrate stated thus on the proceedings before the arbitration board case number AB.37 of 1969 between Omondi Oluanda v William Adeny and Onyango Lisaye as follows;
17.I have scrutinized the documentary evidence of the arbitration proceedings and the letters cited. The decision of the land adjudication committee was upheld by the arbitration board. Neither of the appellants nor Donatus were parties to these proceedings. The proceedings did not describe the parcel of land that was in dispute. Further, though the respondent’s name did not appear in these proceedings, he led evidence in the trial court that he was a party; this was never controverted. The jury is out there whether the names William Adeny or Onyango Lisaye that appeared in these proceedings were his alias names or not. Be that as it may, the proceedings, found that the land belonged to one William Adeny. From the record, some of these letters that were produced are faint and ineligible. However, the legible ones shed light that the parcel of land that was the subject of the proceedings was East Ugenya/Kathieno “A” 462 and not the suit property.
18.From the court record, there was documentary evidence that there had been proceedings in Siaya District Land Disputes Tribunal case number SYA/87/2001 between the respondent as the claimant and Sijenyi and his son Raphael Omondi Ochieng as objectors. As at the time of these proceedings, Sijenyi was deceased. The 2nd appellant participated in these proceedings as Raphael’s witness. The trial court had this to say on these proceedings;
19.From the record, there is no documentary evidence that that the matters in the trial court had already been adjudicated in another forum between the parties either at the tribunal or arbitration board. Further, entry 7 of the suit property’s “green card” demonstrated that the entry was made after the respondent had been registered as the proprietor of the suit property and a title deed issued to him. This entry read thus “entries nos.4, 5 & 6 cancelled vide c/order no.Misc.Civil Case No.21 of 2005”.
20.It is unfortunate that the proceedings of Misc. Civil case No.21 of 2005 were never tendered before the trial court. However, my understanding of this entry is that it was effecting a court order cancelling certain entries in the register and not effecting the tribunal award.
22.The evidence led by the respondent were in variance with his pleadings. He led evidence that Sijenyi was fraudulently registered as the owner of the suit property after Donatus or his successors registered the suit property in the name of Sijenyi by interchanging the suit property’s particulars with that of 494. This was never pleaded in his particulars of fraud and illegality. During cross examination, he testified that illegality and fraud took place during land adjudication process. The court stated thus on the respondent’s case;
24.In my considered view, the particulars of fraud pleaded by the respondent hinged on trespass and not fraud. In any case, he did prove the alleged fraud to the required standard; higher than a balance of probabilities but certainly not one beyond a reasonable doubt.
25.As for illegality, the Black’s Law Dictionary, 11th Edn, p. 896 has defined illegality to mean “an act that is forbidden by law”. The respondent pleaded that the appellants cultivated the suit property without his consent. He testified that the appellants’ encroachment on the suit property was illegal.
26.The trial magistrate rightfully stated that the appellants had never been registered as the owners of the suit property and that the respondent was registered as the proprietor of the suit property upon succeeding the Estate of Sijenyi. Succession proceedings were never the subject of the trial court’s determination. However, she did not address her mind on illegality.
27.The land was registered in the name of the respondent on 18/8/2014. Were the appellants occupation of the suit property illegal as at the time the respondent became the registered proprietor? My answer is in the negative. From the evidence tendered, by the time the respondent acquired title to the suit property, the appellants and or their families had been in occupation of the suit property prior to the date of 1st registration which was on or before October 18, 1973.This was close to 41 years. By virtue of Section 7 of the Limitation of Actions ACT, the respondent’s rights or those of his predecessors in title had long lapsed over the portion of suit property occupied by the appellants. His suit in the trial court was statutory barred. Munyao J in the case of Maina Wahome v Esther Cherop Murey & 6 Others  eKLR stated thus;
28.It is my finding that the trial magistrate erred by failing to appreciate the totality of evidence adduced thus arrived at an erroneous conclusion. The appellants succeed on the 1st ground.
ii.The learned trial magistrate erred in law and fact by shifting the balance of proof to the appellants to prove misrepresentation or fraud;
29.It is trite that he who alleges must prove. Section 107 of the Evidence Act states as follows:
30.The respondent pleaded fraud and illegality while the appellants’ did not file a counterclaim. In her judgement, the trial magistrate stated thus,
31.The Court of Appeal in the case of Kinyanjui Kamau v George Kamau Njoroge  eKLR cited with approval the case of Ndolo v Ndolo (2008) 1 KLR (G&F) 742 where the court in this case stated thus,
32.The onus of proving fraud and illegality lay at the doorstep of the respondent and not on the appellants. From the judgment, it is quite obvious that the trial magistrate erred. I need not say more. The appellants succeed on this 2nd ground.
33.Ultimately, I find that the evidence on record did not support the respondent’s claim that the appellants had fraudulently and illegally cultivated the suit property without his consent and that the trial court erred in finding that the respondent’s suit had succeeded. The appeal succeeds. It is trite law that costs follow the event. I hereby set aside the entire judgment and decree of the trial court and in its place, I substitute it with a judgment in favour of the appellants in the following terms;a.The respondent’s suit in the lower court is hereby dismissed; andb.The appellants shall have the costs of this appeal and that of the lower courtIt is so ordered.