Elungat v Sabila and Another (Civil Appeal 52 of 2022) [2024] UGHC 525 (7 May 2024)

Full Case Text

The Republic of Uganda

In The High Court of Uganda at Soroti

Civil Appeal No. 0052 of 2022

(Arising from Bukedea Civil Suit No. 004 of 2020)

Elungat Kokas Cheptai Salimo------------------------------------10

Versus

1. Sabila Francis

15 Odeke George----------------------------------- $\qquad \qquad \textbf{----------} \\ \textbf{------------} \\ \textbf{--------} \\ \textbf{----------} \\ \textbf{----------} \\ \textbf{----------} \\ \textbf{----------} \\ \textbf{----------} \\ \textbf{----------} \\ \textbf{----------} \\ \textbf{------------} \\ \textbf{------------} \\ \textbf{------------} \\ \textbf{------------} \\ \textbf{------------} \\ \textbf{------------} \\ \textbf{--------------} \\ \textbf{--------------} \\ \textbf{----$

Before: Hon. Justice Dr Henry Peter Adonyo

Judgment on appeal

- 1. Introduction. - 20 This appeal arises from the judgement and orders of the Chief Magistrates Court of Kumi holden at Bukedea delivered on the 20th day of October 2022 by H/W Kimono Juliana Magistrate Grade One. - 2. Background.

The appellant filed Civil Suit No. 004 of 2020 in the Chief Magistrates Court of Kumi holden at 25 Bukedea against the respondents jointly and severally for recovery of land measuring approximately 158 acres situated at Aworokor village, Akakaat Parish, Kamutur sub-county, Bukedea District which the respondents trespassed upon, a permanent injunction, eviction order, special, exemplary and general damages as well costs of the suit.

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$\mathsf{S}$

His claim was that he is the rightful owner of the suit land by virtue of inheritance from his late $\mathsf{S}$ father Cheptai John in 1988.

That the 1st respondent trespassed on the land claiming that it was part of his late father Chepnimey Kapswat's estate.

That before the appellant's father met his death in 1988, the grandfather of both the appellant 10 and the 1st respondent had already equally divided the land among his two sons Cheptai John and Chepnimey with each to take 215 acres respectively.

That despite knowing that the property in issue was for the appellant, the 1st respondent without authority went ahead and entered a sale transaction with the 2nd respondent on the land which did not belong to him thus creating rise to the suit.

15 The respondents in their joint written statement of defence denied the allegations contending that the 1st respondent was a biological son of the late Chemini Kapswat from whom he inherited the entire suit land and he thus lawfully sold 150 acres to the 2nd respondent between 2014 and 2015.

That the 1st respondent's father had acquired approximately 300 acres of land at Awokor

village, Akakaat Parish, Kamutur sub-county in now Bukedea District as virgin and bush land in 20 early 1940s.

That the 1st respondent was born in 1955 on the suit land as an only child and he grew up therefrom and that in 1972 the appellant's late father and biological brother to the 1st respondent's father came to stay on the suit land temporarily until 1976 when he left without

any claim to the suit land till his death in 1988. 25

> That even after the passing of the 1st respondent's father in 2011, the entire land devolved to him without any adverse third party claims.

> The 2nd respondent averred that between 2014 and 2015 he lawfully bought 150 acres of what now constitutes the suit land having taken all necessary steps to establish and be satisfied that

the 1st respondent was the lawful owner of the entire suit land. Since 2014 after the said 30 transaction the 2nd respondent took exclusive possession of his land until he was sued by the appellant.

$\mathsf{S}$ The trial Magistrate having heard the matter entered judgement in favour of the respondents, having found that the 1st respondent proved that he is the rightful owner of the suit land. The appellant's suit was dismissed with costs.

The appellant dissatisfied with the above judgement appealed on the following grounds;

- 10 - i. The Learned Trial Magistrate grossly erred in law and fact when she failed to evaluate the Appellant's oral evidence on record and as result reached the wrong conclusion that occasioned a miscarriage of justice to the Appellant. - $ii$ . The Learned Trial Magistrate erred in law and fact when she ignored the major contradictions in the 1st Respondent's evidence and as a result reached a wrong conclusion that occasioned a miscarriage of justice to the Appellant. - 15 iii. The Learned Trial Magistrate erred in law and fact when she held that the Appellant failed to prove that his father gave him 213 acres of land and as a result reached a wrong conclusion. - iv. The Learned Trial Magistrate erred in law and fact when she held that the 1st *Respondent is the rightful owner of the suit land.* - *The Learned Trial Magistrate erred in law and fact when she held that the Respondents* 20 $V$ . are not trespassers on the suit land thereby occasioning a miscarriage of justice to the Appellant. - vi. That the decision and orders of the Learned Trial Magistrate occasioned grave miscarriage of justice to the Appellant.

## 3. Duty of the $1^{st}$ appellate court: 25

This Honourable Court is the first appellate court in respect of the dispute between the parties herein and is obligated to re-hear the case which was before the lower trial court by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and to re-appraise the same before coming to its own conclusion as was held in Father Nanensio Begumisa and

Three Others v. Eric Tiberaga scca 17 of 2000; [2004] KALR 236. 30

The duty of the first appellate court was well stated by the Supreme Court of Uganda in its landmark decision of Kifamunte Henry Vs Uganda, SC, (Cr) Appeal No. 10 of 2007 where it held that;

"... the first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it"

In rehearing afresh, a case which was before a lower trial court, this appellate court is required to make due allowance for the fact that it has neither seen nor heard the witnesses and where 10 it finds conflicting evidence, then it must weigh such evidence accordingly, draw its inferences and make its own conclusions. See: Lovinsa Nakya vs. Nsibambi [1980] HCB 81.

In considering this appeal, the above legal provisions are taken into account.

- 4. Representation: - 15 The Appellant was represented by Sefu Advocates & Solicitors while the respondents were represented by Opio & Co. Advocates. - 5. Determination. - Grounds $1,2,3,4$ and $5$ : i.

Counsel for the appellant submitted that the evidence of PW1, PW2, PW4, PW5, PW6, PW7 & PW8 who testified that the suit land was given to the appellant was never properly considered 20 by the learned trial Magistrate and had she properly considered it a different decision would have made and he invited this Honourable court to re-evaluate this evidence.

The respondent in reply submitted that the court judiciously considered the material aspects of evidence and came to the right conclusion in finding for the respondents. That the

25 Appellant's claim to the suit land, is as a customary heir, however, his evidence to prove the above notion is wanting in both factual and material particulars as the entire case is characterized by averments devoid of any evidence and corroboration. The Appellant like all his witnesses, simply aver in their evidence in chief, that he inherited 215 acres of suit land from his late father Cheptai in 1988 who had in turn inherited it in 1969 from Appellant's

grandfather, Salim Kapsaat. However, in cross examination, the Appellant just like all his 30 witnesses admitted that they were not present in 1969, when Appellant's father inherited the suit land as alleged as well as not being there when the Appellant was inheriting as alleged.

$5$

$\mathsf{S}$ Worse still PW5, the sole witness who claims to have been present, instead contradicted all stating that the Appellant inherited the suit land from Appellant's grandfather Kapsaat.

Counsel relied on Kagwa Vs Apiire-C. A. No. 126/2019 where Court stated that for one to prove customary inheritance, one has to adduce any evidence regarding the custom under which that inheritance occurred, the rules and practices of inheritance which determine the settling of

estates of intestate deceased persons under that custom or how the estates should devolve, 10 compliance with those established rules and practices of inheritance in her specific instance, and that those rules and practices are not incompatible with the provisions of the constitution, any written law and are not repugnant to natural justice, equity and good conscience.

Counsel drawing from the above decision submitted that in the instant case, neither the Appellant nor his witnesses, proved the custom and practices under which he inherited as 15 alleged as required by the law and it is not sufficient for the Appellant and his witnesses to state that the appellant inherited the suit land without giving proof of how he inherited the suit land or provide evidence corroborating the same. Counsel further cited Alule Vs Agwe-C. A. No. 32/2014 to this effect.

Counsel for the respondent further submitted that it is his considered opinion that the 20 Appellant failed to discharge his duty as envisaged under S.101 and 102 of the Evidence Act to prove that he customarily inherited the land. The Trial Magistrate rightly found for the Respondents, after analyzing the entire evidence on record.

Counsel added that while counsel for the appellant alluded to contradictions in the 25 Respondent's evidence he did not point out any, however, the Appellant's evidence on the other hand was characterized by contradictions on fundamental elements of his case.

To begin with, the plaint at Paragraph 4 states the suit land is 156 acres and yet in his statement and entire evidence, he is suing for 215 acres.

In cross examination, the Appellant also alleges that his grandfather had 300 acres of land which was equally divided with his father taking 215 and 1st Respondent's father taking 160 30 acres and yet no explanation was given for the said discrepancy.

Counsel further submitted that in contrast, the defence evidence was chronological, corroborated and factually proved to the effect that the suit land passed from the 1st

Respondent's father Chepnimey to the 1st Respondent who lawfully sold to the 2nd $5$ Respondent.

## li. Summary of Evidence on record:

The appellant, Elungat Kokas, testifying as PW1 stated that his grandfather Salimo Kapsat owned a large piece of land and produced two sons Chepnimey Kapswat and Cheptai John. Later Salimo died and his brother Mangusho Kapswat came and stayed with their grandmother

on the land till his father grew up and was circumcised on that suit land in 1968.

That in 1969 his father married his mother and he land was divided among the two brothers Chepnimey and Cheptai by Mangusho Kapswat. The two brothers produced children when each was staying on his piece of land in peace, his father was given land bordering Ibrahim

15 Konesi and the 1st respondent's father was given land bordering Makomeli with a sisal boundary between the two brothers.

That they all moved away due to the insurgency in 1988, in 1999 and he joined the UPDF forces, 2006 the 1st respondent got very sick and they got a person called Ojopa who purchased a piece of land adjacent to the suit land with his consent. Thereafter he left the 1st respondent

20 to stay behind as the head if the family and he went back to his work as a soldier however he got information that the 1st respondent had intentions of taking over his land.

That in 2011 he came back from Moroto where he was working and visited the 1st respondent's father with the clan committee telling him to show him his land but he was very sick and thereafter he left for Mogadishu in which period the 1st respondent's father died. In 2012 there

was a mediation between him and the 1st respondent and the 1st respondent wanted to give 25 him 1 acre which he refused and thereafter his father's land was given back to him but the 1st respondent refused to accept the same.

That the matter was later lodged with LC2 Court Akakaat Parish together with the LC1 committee of Auroko village and the office of Kaptoch clan and it happened that Cheptai John

and Chepnimey were brothers and it was resolved that since they are brothers their land 30 should be divided equally but the 1st respondent continued alleging that the land belongs to his father.

That the 2nd respondent was notified of his interest in land but he still persisted and bought $\mathsf{S}$ the same. His grandfather did not document the division of the land among his sons. During cross-examination he stated that he inherited the land in 1988 after the death of his father and he was 12 years old at that time.

That his father was given 215 acres while the 1st respondent's father was given 160 acres and he has a document on how this land was divided; the first division happened in 1979 but he was not there but Chemonges William and Simunyu were present. During re-examination he stated that his grandfather did not document anywhere when he was giving his two sons land.

PW2 Simuyu Wilson testified that the suit land 215 acres belongs to the appellant having inherited the same from his father in 1988. That he knows the history of the land because he

is a neighbour to it and grew up there, the appellant is the rightful owner and he witnessed 15 everything. During cross-examination he stated that the land was previously for Chemutai and Chepnimey. Mzee Kapswat divided the land among the children but he does not remember the year, he recalls it was 1988 during the Karamojong insurgency. He later added that he wasn't there in 1980 when the land was divided but was told, the appellant began laying claim

to the land in 2011 but from 1995 to 2011 it was the 1st respondent and his father who utilised 20 the suit land.

PW3 Olidio Mannaseh the LCII Secretary testified that the suit land measuring approximately 215 acres belongs to the Appellant who inherited it from his father in 1988. That in 2020 the appellant came with a letter from his clan to the Lc2, wanting a share of his late father's land

- which had been left for him. That the 1st respondent was only willing to give him 5 acres in the 25 wetland which the Appellant refused because he wanted the share of his late father which was well ascertained with boundary marks. During cross-examination he stated that he had spent 4 years in Akakaat and he was not there in the meeting in 1988, he got to know the issue in 2020 and he does not know anything about the suit land. - PW4 Obilu Patrick testified that the suit land belongs to the Appellant having inherited it from 30 his father Cheptai John in 1988. That the appellant's grandfather (Salim Kapswat) owned a large piece of land and after his death this land was divided amongst his sons Chepnimey and Cheptai in 1969 by Mangusho Kapswat brother to Salim Kapswat. That he knows the history of land because he is a neighbour to it, he was born and grew up there. During cross-examination

he stated that in December 2009 he and the 1st respondent demarcated their boundaries and $\mathsf{S}$ he confirmed that it was only the 1st respondent. He was not present when the appellant inherited 215 gardens from his father.

PW5 Alex Chebrot reiterated PW4's evidence in chief. During cross-examination he stated that the demarcation of the land given to Cheptai and Chepnimey by their father is there. That when the appellant got the land in 1988 he was present and there is something the clan wrote and the 1st respondent was also present. That in 1969 he was a young boy when Cheptai got a wife and by then the appellant and the 1st respondent were not yet born. During reexamination he stated that he was present, about 10 years old, when the appellant was given land by his grandfather and other people like Chemonges were present.

PW6 Muki Lazarus testified that the suit land belongs to the appellant, the land was customary 15 land initially possessed by the Salimo Kapswat the Appellant's grandfather. He started knowing the land and its boundaries 40 years ago and he has been the overall clan head of Kaptoch clan having been appointed in 2005 and at that time the land had no conflict, it was well divided with marks of sisal. During cross-examination he stated that he was not present when the appellant inherited the land or when the land was divided amongst the Cheptai and 20

PW7 Satya Alex was not present when the appellant inherited the suit land and he came to know of the land in 2020 though he changed this in re-examination stating he knew of the land prior to 2020 when the appellant brought the matter before them.

PW8 Sayekwo Wilfred first stepped on the suit land in 2020 and was not present when the 25 Appellant inherited the suit land from his father. He later stated that he first visited the land in 2011 when he first heard of the dispute between the appellant and the 1st respondent.

PW9 Munyo Musobo testified that the grandmother of the Appellant and 1st Respondent is his aunt and he stayed with her when he was 15 years old and when her husband died it was Mzee

Mangusho who was staying with his aunt and catered for the children i.e. the Appellant and 1st 30 Respondent's fathers. In 1969 when the appellant's father (Cheptai) married, Mzee Mangusho divided the land between him and Chepnimey. By the time he left that home at 26 both Cheptai and Chepnimey were staying peacefully in their respective portions of land. During crossexamination he stated that he does not remember the year he went to live with his aunt and

Chepnimey.

he was taken to Kapswat Mangusho's home and not the disputed land. That Salimo Kapswat $\mathsf{S}$ divided the land which was about six acres amongst his sons in a year he does not know. He later stated that he does not know the size of the suit land.

**PW10 Chemonges William** claimed he was a father of both the appellant and 1st respondent. He stated that by 1988 when the appellant inherited the suit land he was already in Busoga. He however stated that in 1969 he was present when Chepkweri Kapswat divided land

between Cheptai and Chepnimey with each receiving 215 acres.

DW1 Manget Jackson Akora testified that the suit land which is approximately 150 acres belongs to the 1st respondent. That growing up he has always known that Chepnimey Kapswat and his wife Jesca Atai as the owners of the suit land which the 1st respondent as their only child inherited upon their demise. That in the 1970s he saw a man called Cheptai come to visit the 1st respondent's father in Akakaat but he later left and came back, he later learnt that was Chepnimey's brother.

DW2 Omongole David testified that he has known the 1st respondent as a neighbour who together with his father were owning and staying on the suit land until the insurgency forced all of them to run away in 1986-87. During cross-examination he maintained that the land belonged to Chepnimey and the 1st respondent and the appellant has never stayed on the suit land, he did not know Cheptai John.

DW3 Alasa Stephen testified that he got to know the 1st respondent as the son of Chepnimey Kapswat who was the owner of the suit land which shares a common boundary with his late

- father's land. Chepnimey inherited the land from his father Kapswat and growing up he 25 ordinarily saw the late Chepnimey as a neighbour. During cross-examination he maintained that the suit land was for Chepnimey, he however stated that he did not know how Chepnimey acquired the land. He added that he became a caretaker of the suit land when the father of the $1^{st}$ respondent as well the $1^{st}$ respondent ran away for refuge. - DW4 Ojepa Fred bought land from the 1st respondent in 2006 and he knows him as the former 30 owner of the land in dispute. When he bought his land in 2006 the 1st respondent and his father were in quiet possession of the suit land. Prior to his purchase he established through the area local authorities and several persons that the land rightfully belonged to the 1st respondent.

During cross-examination he stated that he got to know the 1st appellant in the 1980's when $\mathsf{S}$ he found him on the land, he was born and raised in the village where the suit land is situate.

DW5 Omene Richard testified he has known the 1st respondent since his childhood when he saw him and his father the Late Chepnimey staying on a vast piece of land including the now disputed land. As an LC he has never seen the appellant stay, cultivate and or utilize the suit land as alleged. During cross-examination he stated that he knows the 1st respondent right

from his childhood, he also knows the Chepnimey and he did not know how the land was

**DW6 Sabila Francis** the 1st respondent testified that the suit land forms part of the land he inherited from his father after his demise and he lawfully sold 150 acres to the 2nd respondent

acquired but all he knows is that the Sabilas were on it.

- 15 in 2014 and 2015. That his late father Chepnimey had acquired 300 acres of land inclusive of the suit land as virgin and bush land early in 1940s, he was born on the suit land in 1955 as Chepnimey's only child and he grew up thereon. In 1972 when he was 17 years old the appellant's late father Cheptai John came to stay on the suit land as he sought temporal refuge until 1976 when he left the suit land without any claim of right. That the appellant's father left - 20 with their grandmother for Angaagam where he acquired land and its where their grandmother died and was buried in 1976. From Angaagam the appellant's father left for Sebei where he eventually passed on and was buried in 1988. Between 1980-1982 he and his father left the suit land and went to Sebei due to the insurgency, in 2005 his uncle Chemonges came and informed them that if they delayed to return to their land other people would take it over. - 25 He returned to the suit land in 2005 and commenced occupation of the suit land, he also reestablished the boundaries of the land with two of his neighbours Mangat Akora Jackson and Amuka Eria father to Alasa Stephen without any objection from anyone let alone the appellant. He was later joined by his father in 2007 and they stayed peacefully and when his father passed on 2011 and was buried on the suit land, the land devolved to him. In 2012, a year after his - 30 father's death the appellant approached him demanding for what he termed as his father's share of the land but he rejected his demand. During cross-examination he maintained that the suit land is for his father. He stated that he did not know how his father acquired the land but the proof that the land belongs to his father is that they have been living on it ever since he was born. That it is not true that by the time his grandfather died he had divided his land between his sons, his grandfather was living in Kaserene in Kapchorwa District. 35

- DW7 Odeke George, the 2nd respondent testified that the suit land is his having acquired the $\overline{5}$ same by way of purchase from the 1st respondent. He developed interest in the suit land in 2013 when a friend introduced him to the 1st respondent as someone who had land to sell. After talking to the 1st respondent he went with him to the local authorities of the area as well as the neighbours all of whom assured him that the suit land belongs to the 1st respondent. He - was also able to establish that the 1st respondent's late father Chepnimey was buried on part 10 of the land the 1st respondent was occupying. Having been satisfied that the land belonged to the 1st respondent and his late father and he could lawfully purchase the same, he negotiated with the 1st respondent and they agreed on a consideration of Ugx. 70,000,000/= for 100 acres which he duly paid. This transaction was reduced in writing and he then took possession of the - suit land by erecting poles, bush clearing and ploughing without any dispute. Later in 2015 he 15 received a phone call from the 1st respondent informing him of another available piece of land, 50 acres in size and purchased the same at Ugx. 50,000,000/=. That he is the rightful owner of the suit land measuring 150 acres having lawfully purchased the same from the 1st respondent after exercising all necessary due diligence and being satisfied that the suit land belonged to - the 1st respondent. During cross-examination he stated that he was not presented with 20 evidence of the 1st respondent's inheritance, he was not told how the land was demarcated. He did not find out how Sabila's father inherited the suit land and he only got to know the appellant in 2020.

## Analysis of Evidence on Record: iii.

- From the evidence on record, it is clear that the appellant's claim to the suit land is based on 25 customary inheritance from his father in 1988, he traces his father's ownership of the suit land to his and the 1st respondent's grandfather Salimo. The sum of the appellant's claim is that his grandfather Salimo divided his land between his two sons Chepnimey, father of the 1st respondent and Cheptai his father and the suit land forms part of his father's share. - The appellant, under sections 101 and 103 of the Evidence Act, bore the burden to prove that 30 Salimo Kapswat owned land in Akakaat which land he divided between Chepnimey and Cheptai. He also bore the burden to prove that the suit land belonged to his father and as such he was entitled to inherit the same.

However, from the evidence on record, the appellant failed to discharge his burden. The $\mathsf{S}$ appellant and his witnesses failed to lead any evidence placing Salimo Kapswat at all on the suit land or in Akakaat where the suit land is dispute is.

He also failed to prove that Salimo divided his land between his sons.

The appellant was also not present when his grandfather allegedly divided the suit land between Cheptai and Chepnimey, though he claimed both PW2 and PW10 were present.

PW2 in his evidence told the lower trial court that he was not present while PW10 claimed he was present when his late father Chepkweri Kapswat gave Cheptai and Chepnimey 215 acres each in 1969.

While the evidence of PW10 was the closest the appellant got in leading direct evidence relating to the event, PW10's testimony is doubtful because the appellant claimed the suit land 15 through Salimo Kapswat and not Chepkweri Kapswat.

PW5 who was born in 1959 on the other hand claimed in re-examination to be present at 10 years of age when the appellant was given land by his grandfather yet it was the appellant's evidence that he was not present when his grandfather divided the land and furthermore his

claim is directly through his father. 20

The appellant by his pleadings and testimony claimed his grandfather Salimo Kapswat divided the suit land but later changes this and stated that it was Mangusho who divided the land.

PW5 who claimed the appellant and 1st respondent's grandmother was his aunt stated that the division was done by Mangusho Kapswat who was a brother to Salimo Kapswat after

Salimo's death and he was present. 25

> PW4 also stated that the land was divided after Kapswat's death in 1969 which contradicted the appellant's testimony.

> The appellant also stated that when his grandfather divided the land there was a document but he did not produce it in court.

He also claimed that the first division of the suit land was done in 1979 yet his testimony and 30 that of his witnesses the division was done in 1969.

It is also worth noting that the 1st respondent testified that he was born in 1955 and by 1979 5 he was about 24 years old and would have been witness to this transaction.

I also noticed that none of the appellant's witnesses testified to seeing him, his father or Salimo on the suit land unlike the 1st respondent who was seen on the suit land with his father.

The 1st respondent's neighbours were aware of his presence on the suit land with his father to the extent that in 2005 when they returned after the insurgency they re-established and 10 confirmed their boundaries with one another, as seen from the testimonies of DW1, DW2 and DW 3.

DW5 was the LC II chairperson of Kamutur parish in 2005 and DW2 Omongole David was the LC I chairperson of Akakaat village from 2000 and both witnessed the 1st respondent return to his father's land which they both identified as the suit land.

PW4 who was the appellant's witness also testified that in 2009 he re-established his boundaries with the 1st respondent.

I also find the 1st respondent's testimony that Salimo lived in Kapchorwa and was never on the suit land believable on a balance of probability.

The appellant also failed to prove that he inherited the suit land from his father in 1988 as no 20 evidence whether documentary or oral confirmed that in 1988 the suit land was handed over to him.

Even none of his witnesses was there in 1988 when the land was said to have been given to the appellant, save for save for PW5 who claimed he was present and that something was written by the clan and the 1st respondent was also present. However, this is the same witness

who later told court that he was 10 years when the appellant was given land by his grandfather. His testimony was thus that of a minor which required corroboration.

There is also no proof that the late Cheptai was on the suit land or ever owned the same for the appellant to claim inheritance of the same.

The appellant tried to rely on the meetings 2011/2012 wherein he claimed the clan and LC 2 30 settled the dispute. However, the minutes and judgement of the clan and LC 2 were highly contested and yet were even of no importance as they did not settle the main question

between the parties of whether the suit land was ever belonged to Salimo Kapswat and $\mathsf{S}$ whether it was given to the late Cheptai John.

The appellant was also stated in his plaint that the suit land was 158 acres yet in his testimony he told the lower trial court that it was 215 acres and when questioned about the variance in size of the land he then turns around and state that his varying statements as to size of the suit

land was because he was not sure yet all his witnesses were firm and stated that the suit land 10 was 215 acres.

The 1st respondent on the other hand testified that the suit land was 150 acres and all his witnesses confirmed and maintained this size.

The appellant's evidence, in my view; and as was found out by the trial court; was full of contradictions and inconsistencies which went to the root of his claim that the suit land was 15 part of vast land originally for his grandfather who later divided the same giving the suit land to Cheptai. These inconsistencies cannot be taken lightly as they cast doubt on the appellant's claim given the fact that these inconsistencies were not even explained to the satisfaction of court thus negating his claim to the suit land.

The appellant failed to prove that Salimo owned the suit land and distinctly divided the same 20 between Chepnimey and Cheptai.

I further find that none of the parties proved customary ownership of the suit land though the 1st respondent through his evidence and those of his witnesses proved his long adverse possession of the suit land together with his late father even though he failed to prove how his father came to own the same.

Thus on a balance of probability, I find that the 1st respondent proved he is the rightful owner of the suit land and his sale of the same to the 2nd respondent was lawful.

iv. Ground 6:

Having found the grounds 1 to 5 in the negative, this ground also fails thus meaning that the judgment of the trial magistrate did not occasion a miscarriage of justice.

## $\mathsf{S}$ 6. Conclusion:

Arising from my conclusions that each of the grounds raised in this appeal fail then consequently, this appeal is found to lack merit and is accordingly dismissed.

7. Orders:

This appeal fails on all grounds. $\mathcal{L}_{\mathcal{A}}$

The judgement and orders of the lower court are accordingly upheld. $10$ $\mathcal{C} \rightarrow \mathcal{C}$

The cost of this appeal is awarded to the respondent. $\textcolor{red}{\bullet}$

I so order.

. . . . . . . . . . . . . . . . . . . .

Hon. Justice Dr Henry Peter Adonyo

Judge

7th May 2024