Ckk v Ejm
The bottom line
#Kenya's Court of Appeal ruled that holding a title deed is not enough; a landowner must prove how the title was validly acquired.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Court of Appeal's mandate on a second appeal
The Court confines itself to matters of law only on a second appeal.
The Court invoked its long-standing second-appeal jurisprudence, holding that only questions of law fall for determination unless the courts below considered matters they should not have, omitted matters they should have considered, or the entire decision is perverse. The Court accordingly addressed the four condensed issues as matters of law arising from the concurrent findings below.
Proprietorship of the suit property and the burden on a registered proprietor whose root of title is challenged
The appellant, as registered proprietor, was obliged to demonstrate the legality and procedurality of the transmission of title from the original owner KAS to himself; his failure meant the concurrent findings that the property belonged to Khadija and passed to the respondent stood.
The green card showed the register opened in 1968 in the name of KAS and the title only changing to the appellant in 2010, with an indication he was also known as KAS. The appellant's pleadings and evidence were silent on who KAS was to him and how title was transmitted. Relying on the position in Monyi Maina, the Court held that dangling the title instrument was insufficient against the respondent's implied attack on the root of title.
The woman to woman marriage between Khadija and the respondent and its proprietary consequences
The woman to woman marriage under Nandi customary law was proved to the required threshold, and the respondent and the children of that union were the rightful owners of the suit property as legitimate successors in title to Khadija.
The marriage was proved through unchallenged oral testimony and documentary exhibits, including evidence of dowry payment corroborated by the respondent's uncle and the village elder. Khadija was shown to be the appellant's mother's sister who inherited the suit property as her share of family land. The Court found the customary woman to woman marriage legally recognized and sustained the respondent's entitlement.
Legal principles established
#- On a second appeal, the Court of Appeal confines itself to matters of law only, unless it is demonstrated that the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- Where a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title; the proprietor must prove the legality and procedurality of the acquisition of title.
- A registered proprietor confronted with an attack on how he came to be registered must demonstrate the procedurality and legality of the transmission of title from the original owner to himself.
- A woman to woman marriage under Nandi customary law is legally recognized and a spouse settled on land under such marriage acquires beneficial and overriding interests in the land, binding subsequent registered proprietors.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal and of the two courts below are awarded to the respondent
- On appeal from
- Environment and Land Court at Eldoret
- ELC Civil Appeal No. 1 of 2015
- Jurisdiction invoked
- Second appeal to the Court of Appeal under its appellate jurisdiction (matters of law only) from the Environment and Land Court; no specific provision quoted in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dishon Mwafwani Mwangashi v Republic[2026] KECA 58 (KLR)30 Jan 2026followed
- Bakari Omar Alias Kiponda v Republic[2025] KECA 2077 (KLR)5 Dec 2025followed
Cite this brief
#Cite this brief
Caselaw, "Ckk v Ejm", Case Analysis (2021). Second Appeal from ELC Civil Appeal No. 1 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/147/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.