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ELCDismissedKisumu Environment and Land Court Appeal (L & E) – Memorandum of Appeal dated 5th March 2023, appeal from Kisumu CMC L & E Case No. E093 of 2021· [2024] KEELC 7078 (KLR)

Kojwang v Ondiek & another (Environment and Land Appeal E010 of 2023) [2024] KEELC 7078 (KLR)

Environment and Land Court
24 October 2024
4,655 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The court dismissed an appeal over Kisumu land, holding that a buyer who did proper searches and paid value is protected even where an earlier title came from a revoked grant.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Kisumu against the judgment of 28th February 2023 in Kisumu CMC L & E Case No. E093 of 2021, which had dismissed the appellant's claim to land parcel Kisumu/Nyahera/56. The appellant claimed to have bought the land in 1988 from John Orimba Misula (deceased), holding the original title deed, and alleged that the 2nd respondent fraudulently obtained title via a succession grant later revoked, then sold the land to the 1st respondent. The respondents denied the sale and asserted the 1st respondent was a bona fide purchaser. The appeal was canvassed by written submissions; the respondents filed none. The court, re-examining the evidence as required on a first appeal, framed five issues adopted from counsel. On lawfulness of the transactions, it held the transmission and transfer occurred before the 13th July 2021 ruling revoking the grant, so fraud was not proved to the required heightened standard. On beneficial ownership, it found no written sale agreement, no Land Control Board consent, a time-barred claim under section 7 of the Limitation of Actions Act, and no proof that Dina Owuor Orimba was the deceased's widow. The 1st respondent was held to be a bona fide purchaser for value without notice, having done due diligence and paid consideration. The court declined to order execution of transfer documents. The appeal was dismissed with costs to the respondents, affirming the trial court's judgment.

Key legal issues

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01

Lawfulness of the registration and subsequent transfer

Holding

The transactions were lawful when done pursuant to a duly confirmed grant; the later revocation did not invalidate them at the time

Reasoning

The transmission on 12th April 2021 and transfer on 4th May 2021 occurred before the 13th July 2021 ruling revoking the grant. At the time of the transactions a duly confirmed grant subsisted. Fraud particulars centred on the revoked grant, but the appellant bore the burden under sections 107-109 of the Evidence Act and did not discharge it to the heightened standard required for fraud.

p. 6
02

Whether the Appellant is the beneficial and rightful owner

Holding

No; he failed to prove his alleged 1988 purchase

Reasoning

No written land sale agreement was exhibited as required by section 3(3) of the Law of Contract Act, no Land Control Board consent was obtained under section 6 of the Land Control Act rendering the transaction void, and under section 7 of the Limitation of Actions Act the claim was time-barred. Dina Owuor Orimba was not the deceased's widow, undermining the claim of a promised transfer.

p. 7
03

Whether the 1st Respondent is a bona fide purchaser for value without notice

Holding

Yes; he conducted due diligence and had no notice of the appellant's claim

Reasoning

He carried out an official search, was shown a confirmed grant and chief's letter, visited the land, paid the full consideration and obtained Land Control Board consent. No evidence linked him to any fraud or notice of the appellant's claim. The court noted however that the sale was later declared null and void in the succession cause, which parties may address there.

p. 8
04

Whether the court can execute transfer documents for the Appellant

Holding

No; the power exists only where a party declines to sign pursuant to a court order in favour of a successful party

Reasoning

The court's power to execute documents underpins enforcement of orders, but since the appellant's claim failed there is no order requiring execution. The trial court's findings were affirmed.

p. 8

Legal principles established

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  • Allegations of fraud must be strictly pleaded and proved to a standard higher than a mere balance of probabilities
  • A first appellate court must re-examine the evidence before the trial court and come to its own independent conclusions
  • A bona fide purchaser must prove valid title, due diligence and payment of valuable consideration

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs to the Respondents

Authorities

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Legislation

  • Civil Procedure Actsection 78
  • Evidence Actsections 107 to 109
  • Law of Contract Actsection 3(3)
  • Land Registration Actsections 26(1), 26(1)(b), 80(1)
  • Land Control Actsection 6
  • Limitation of Actions Actsection 7

Cases cited (11)

  • John Charo Katana Charo & Another –vs- Emmanuel Katana Charo & 5 Others
    [2021] eKLR
  • Elija Makeri Nyangwara –vs- Stephen Mungai Njuguna & Another
    [2013] eKLR
  • Justin Mwango Chonga –vs- Mwarome Munga Janji & 4 Others
    [2021] eKLR
  • Evanson Wambugu Gachugi –vs- Simon Wainaina Gatwiki & 2 Others
    [2014] eKLR
  • Suleiman Rahemtulla Omar & Another –vs- Musa Hersi Faluye & 5 Others
    [2014] eKLR
  • John Simiyu Palanga (deceased) & Another –vs- Chopkose Koskei and Another
    [2018] eKLR
  • Koinange & 13 others vs Charles Karuga Koinange
    1986 KLR at page 23
  • Catholic Diocese of Mosh -vs- Attorney General
    [2000] 1 EA 25 (CAT)
  • Dina Management Limited v County Government of Mombasa & 5 others
    (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR)
  • Katende -vs- Haridar & Company Ltd
    [2008] 2 EA 173
  • Samuel Kamere -vs- Lands Registrar
    Kajiado Civil Appeal No 28 of 2005 [2015] eKLR
On appeal from
Chief Magistrate's Court, Kisumu
CMC L & E Case No. E093 of 2021
Jurisdiction invoked
First appellate jurisdiction under section 78 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kojwang v Ondiek & another (Environment and Land Appeal E010 of 2023) [2024] KEELC 7078 (KLR)", Case Analysis (2024). Kisumu Environment and Land Court Appeal (L & E) – Memorandum of Appeal dated 5th March 2023, appeal from Kisumu CMC L & E Case No. E093 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7078/eng@2024-10-24

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