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Court of AppealDismissedCivil Appeal (Kisumu) - not numbered in judgment

Municipal Council of Kisumu v Teleposta Pension Scheme Registered Trustees & 19 others (Civil Appeal 33 of 2020) [2025] KECA 619 (KLR)

Court of Appeal of Kenya
28 March 2025
7,141 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed the Kisumu Municipality's 1980 land surrender was valid and ruled fraud claims need strong, well-evidenced proof.

What this practically means

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Executive summary

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The Municipal Council of Kisumu appealed against the dismissal by S. M. Kibunja, J of the Environment and Land Court of its claim that its leasehold title over 7.72 acres in Kisumu (I.R. 12663/1) was fraudulently converted into L.R. No. Kisumu Municipality/Block 9/1 and later Block 9/329, and transferred to Teleposta Pension Scheme Registered Trustees and subsequent purchasers. The Council's case rested on a 1968 partial surrender for road excision and an alleged invalid second surrender of 11th February 1980 signed by John Mwangi, secretary of the Commission then administering the Council. The Court of Appeal, in a first appeal conducted as a retrial, framed one overarching question: whether the 1980 surrender was valid. It held that the burden lay on the appellant to prove lack of authority, and found none: no council minutes were produced, and unrebutted evidence showed preparatory work from 1979. Section 252(2) of the repealed Local Government Act empowered the Commission to exercise all the Council's powers. The Court affirmed the trial court's finding of a relationship between I.R. 12663, Block 9/1 and Block 9/329, held the parcel available for allotment to KP&TC after surrender, found no fraud against the 1st, 2nd, 3rd and 19th respondents, and held the dealings were open and with the Council's knowledge. Fraud, it reiterated, must be proved above a balance of probabilities but below the criminal standard. The claim for damages for trespass fell away. The appeal was dismissed with costs to the participating respondents, with no order as to costs against the non-attending respondents. The decision of the High Court/ELC stands affirmed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant surrendered the lease for L.R. No. Kisumu Municipality/Block 9/1 on 11th February 1980, and whether that surrender was valid
  2. 2.Whether L.R. No. Kisumu Municipality/Block 9/1 was available for allotment to KP&TC and whether I.R. 12663, Kisumu Municipality/Block 9/1 and Kisumu Municipality/Block 9/329 refer to the same parcel
  3. 3.Whether fraud was established against the 1st, 2nd, 3rd and 19th respondents in the dealings with the suit land
  4. 4.Whether the claim for damages for trespass could stand

Key legal issues

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01

Burden of proof regarding the impugned second surrender

Holding

The appellant, having challenged the surrender signed by John Mwangi, bore the burden of proving lack of authority; it produced no minutes and the unrebuted evidence of preparatory work established a valid surrender.

Reasoning

Sections 107, 108 and 109 of the Evidence Act place the burden on the party who would fail if no evidence were given. The appellant relied on denial but produced no council minutes either approving the 1968 surrender or invalidating the 1980 one. DW9 gave unrebutted evidence of a 1979 letter asking for a surrender document to be prepared, showing preparatory work. On a balance of probabilities the surrender was valid.

p. 10
02

Authority of the Commission under the repealed Local Government Act

Holding

The Commission appointed by the Minister could exercise all powers of the appellant under section 252(2), so the surrender could not be impugned on authority grounds.

Reasoning

The Minister had removed the members of the municipality and appointed a Commission to run its affairs. Counsel's argument that the Judge failed to apply the Local Government Act was generalised and identified no particular provision. Section 252(2) empowered the Commission to exercise all the appellant's powers, validating John Mwangi's execution of the surrender.

p. 10
03

Identity of parcels and availability for allotment

Holding

I.R. 12663, Kisumu Municipality/Block 9/1 and Kisumu Municipality/Block 9/329 refer to the same land; after the 1980 surrender the parcel was available for allotment to KP&TC.

Reasoning

The trial Judge's finding of a relationship between the titles was affirmed. The appellant's acreage objection failed because DW9's unrebutted evidence showed Block 9/1 measured 3.0838 hectares (over 7 acres), matching what remained after the 1968 excision. The surrendered parcel was thus lawfully available for allotment by the Government.

p. 11
04

Fraud allegations

Holding

No fraud was established against the 1st, 2nd, 3rd and 19th respondents; the dealings were open and with the appellant's engagement.

Reasoning

The alleged fraud was the cornerstone of the suit, but the appellant adduced no evidence of fraudulent intent. The subdivisions were approved by the appellant's town engineer, the PDP was gazetted for objections, and certificates of compliance issued. The 1st respondent and its predecessor were not privy to pre-surrender transactions, and the 1st respondent did not exist when the alleged fraud occurred.

p. 12
05

First appeal duty

Holding

A first appellate court must re-evaluate the evidence and draw its own conclusions, while making allowance for not having seen the witnesses.

Reasoning

Citing Selle vs Associated Motor Boat Co and Makube vs Nyamuro, the Court restated that a first appeal is by way of retrial, but the appellate court will not normally interfere with a finding of fact unless it is based on no evidence, on a misapprehension of the evidence, or on wrong principles.

p. 8

Legal principles established

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  • A party who alleges fraud must plead and lead evidence of the facts alleged to be fraudulent and prove fraudulent intent; fraud must be proved by evidence whose standard is above a balance of probabilities but not beyond reasonable doubt.
  • A party challenging the validity of a document executed by an officer of its own body (here a surrender signed by the secretary of the Commission administering its affairs) bears the burden of adducing evidence to establish lack of authority.

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 15th, 16th, 17th, 18th and 20th respondents
  2. 2.No order on costs in respect of the 2nd, 3rd, 4th, 13th, 14th and 19th respondents who failed to file submissions or attend the hearing

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Kisumu
ELC Case No. 782 of 2016 (originally Kisumu High Court Civil Suit No. 110 of 2007)
Jurisdiction invoked
First appellate jurisdiction over the Environment and Land Court (this being a first appeal)

Relief refused

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Declaration that the conversion of Title No. I.R. 12663 to L.R. No. Kisumu Municipality/Block 9/1 and registrations in favour of the 1st respondent were fraudulent, illegal and void

The 1980 surrender was valid; the transmission of title was lawful; fraud was not proved to the requisite standard

p. 12

Annulment of Legal Notice No. 154 dated 5th November 1999

Transfer was facilitated within the powers conferred by paragraph 5(6) of the Third Schedule to the Kenya Communications Act, 1998

p. 12

Cancellation of the registration of the 1st respondent and all titles arising from its subdivision

The subdivisions were undertaken openly with the consent and knowledge of the appellant's officers

p. 12

Damages for trespass

The appellant failed to establish its claim over the suit land

p. 13

Costs

The appeal is dismissed with costs to the 1st, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 15th, 16th, 17th, 18th and 20th respondents; no order as to costs in respect of the 2nd, 3rd, 4th, 13th, 14th and 19th respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The final order is that this appeal is dismissed with costs to the 1st, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 15th, 16th, 17th, 18th and 20th respondents.
p. 13Disposition
fraud must be proved as a fact by evidence whose standard of proof is beyond a balance of probabilities applicable to ordinary civil cases but not as high as beyond reasonable doubt
p. 12Standard of proof for fraud
From the evidence that was placed before the trial court, it was more likely than not that, there was a valid surrender of the suit land by the appellant.
p. 10Validity of the 1980 surrender
However, a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did
p. 8First appeal - interference with findings of fact (quoting Makube vs Nyamuro)
having failed to establish its claim over the suit land, the appellant's claim for damages for trespass fall by the wayside
p. 13Trespass damages refused

Issues in the judgment

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minor

The judgment alternates between 'acres' and 'hectares' for the same parcel, and misrecords the original grant number as 'I.R. 12665' in the trial court's quoted findings.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Municipal Council of Kisumu v Teleposta Pension Scheme Registered Trustees & 19 others (Civil Appeal 33 of 2020) [2025] KECA 619 (KLR)", Case Analysis (2025). Civil Appeal (Kisumu) - not numbered in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/619/eng@2025-03-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.