Adigo v Etole (Civil Appeal 15 of 2019) [2025] KECA 318 (KLR)

The trial court found the suit land first registered in 1967 in favour of the respondent's father, passing to the respondent through succession in 2009. Section 26(1) obliges the court to take the title as prima facie evidence of absolute ownership. The court endorsed the principle from Wambui v Mwangi that the sanctity of title under sections 25 and 26 takes precedence over alleged equitable rights and is challengeable only on fraud or misrepresentation to which the owner is proved to be a party.

Relying on Ardhi Highway Developers and Bullen & Leakes on pleadings, the court held fraud must be clearly and distinctly alleged with precise facts. The trial court had noted that particulars of fraud were neither pleaded nor evidenced. The appellant merely made unsubstantiated allegations, which fell far short of discharging both the burden and standard of proof, so the allegation of a tainted title failed.

Section 116 of the Evidence Act places the burden on one who affirms that a person in possession is not the owner. The court also invoked the Benja Properties principle that possession is nine-tenths ownership and seisin is a root of title. The appellant, who had settled on the land in 2004, failed to show any beneficial or customary right over the property.

The appellant argued that no succession documents were produced to prove transmission of the land to the respondent. On review of the proceedings, the court found the appellant had never questioned succession at trial. It declined to address the issue, holding it was a new issue raised at the appellate stage which the court could not address.