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ELCAllowedKimilili PM-ELC Appeal (Bungoma ELC), arising from Kimilili PM-ELC No. 11 of 2020· [2025] KEELC 269 (KLR)

Biketi v Njalae (Suing as the Legal Representative of the Estate of Jotham Simiyu Wambeye - Deceased) (Environment and Land Appeal E013 of 2024) [2025] KEELC 269 (KLR)

Environment and Land Court
30 January 2025
2,998 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 Environment and Land Court in Bungoma ruled that a man who occupied 3 acres for decades kept the land despite another person holding the title deed.

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 Bungoma against the judgment of the trial magistrate (Hon. W.K. Onkunya) in Kimilili PM-ELC No. 11 of 2020 delivered on 13/3/2024, which had granted the plaintiff a permanent injunction restraining the defendant from entering or trespassing on land parcel No. Bokoli/Mukuyuni/379. The defendant had counterclaimed, alleging he exchanged 1.2 acres of LR No. Bokoli/Mukuyuni/454 for 2 acres of the suit land and later bought a further 1 ¼ acres, and that the plaintiff fraudulently acquired title to the whole parcel. On appeal, the court set out its duty to re-evaluate the evidence and framed three issues: the lawfulness of the respondent's title, the appellant's counterclaim, and costs. It restated the law that a certificate of title is prima facie evidence of ownership but is challengeable for fraud, and that fraud must be specifically pleaded and strictly proved to a standard above balance of probabilities. However, the court found the appellant's prolonged, uncontroverted occupation of 3 acres since 1987, corroborated by a surveyor's report, more probable than not, and held the respondent had not explained that occupation despite holding title. Allowing the appeal, the court set aside the trial judgment, allowed the counterclaim for 3 acres to be curved out of the suit land, ordered the respondent to sign transfer forms (failing which the Deputy Registrar would sign), and awarded the appellant the costs of both the appeal and the former suit.

Key legal issues

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01

Whether the Respondent's title to LR No. Bokoli/Mukuyuni/379 was lawfully obtained and whether he deserved the trial court's orders

Holding

The appeal court found the trial court erred in allowing the plaintiff's claim; the explanation and documents of the appellant were more probable than not that he bought the 3 acres he occupied since 1987.

Reasoning

Although the Respondent was the registered owner and title is prima facie evidence of proprietorship, the court noted the Appellant's prolonged, uncontroverted occupation of 3 acres since 1987, corroborated by a surveyor's report showing his possession of 1.20Ha. The court held the Respondent did not controvert or sufficiently explain the Appellant's prolonged occupation despite holding title, rendering the trial court's grant of a permanent injunction an error in law and fact.

p. 6
02

Whether the appellant established his counterclaim (fraud and entitlement to 3 ¼ acres)

Holding

The counterclaim succeeded in part: the appellant was awarded 3 acres to be curved out of LR No. Bokoli/Mukuyuni/379, though the claim of fraud itself was not upheld on the strict standard.

Reasoning

The court noted the burden lay on the Appellant under sections 107-109 of the Evidence Act to prove fraud, which must be strictly proved to a standard higher than balance of probabilities. The Appellant's agreements did not indicate plot numbers and he admitted the land bought from Jestimore Wanjala was plot 380 though he was shown plot 379. Nevertheless, the court found his possession evidence more probable than not and allowed the counterclaim for 3 acres.

p. 6

Legal principles established

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  • On a first appeal, the court must re-evaluate, re-assess and re-analyze the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
  • An appellate court should only interfere with trial court findings where the decision is based on no evidence, a misapprehension of the evidence, or wrong principles.
  • A certificate of title is prima facie evidence of proprietorship but may be challenged where acquired fraudulently, unprocedurally or through a corrupt scheme.
  • Fraud must be specifically pleaded and distinctly proved; it is not allowable to leave fraud to be inferred from facts.
  • Allegations of fraud require a standard of proof higher than a balance of probabilities, though not beyond reasonable doubt.
  • All titles to land are ultimately based upon possession; a party in possession has a better right against one who can show no better title.

Court orders

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  1. 1.The Judgment of the trial Magistrate (Hon. W.K. Onkunya) in Kimilili PM-ELC No.11 of 2020 delivered on 13/3/2024 allowing the plaintiff/Respondent's claim/suit is hereby set aside and substituted with an order allowing the Defendant's/Appellant's counterclaim for 3 acres to be curved out from land parcel No. Bokoli/Mukuyuni/379
  2. 2.The Plaintifi/Respondent to sign the transfer forms to facilitate the transfer of 3 acres from the suit land No. Bokoli/Mukuyuni/379 to the Defendant/Appellant failing which the Deputy Register of this Court to sign
  3. 3.The costs of this appeal and the former suit before the trial court to be borne by the Plaintifi/Respondent

Authorities

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Legislation

  • Land Registration ActSection 26
  • Registration of Titles Act (repealed)Section 23
  • Evidence ActSections 107 to 109
  • Law of Contract Act, Cap 23 Laws of KenyaSection 3 (repealed)

Cases cited (8)

  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2009] 2EA 212
  • Mwanasokoni v Kenya Bus Services
    [1985] KLR 931
  • Embakasi Properties Limited & another v Commissioner of Lands & anor
    [2019] eKLR
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & another
    [2000] eKLR
  • Koinange & 13 others vs Charles Karuga Koinange
    1986 KLR
  • Bandi v Dzomo & 76 others (Civil Appeal 16 of 2020)
    [2022] KECA 584 (KLR)
  • Benja Properties Limited vs Syedna Mohammed Burhannudin Sahed & 4 others
    [2015] eKLR
  • Wuta-Ofei -v- Danquah
    [1961] All ER 596
On appeal from
Chief Magistrate's Court, Kimilili (PM-ELC)
Kimilili PM-ELC No. 11 of 2020
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court in land matters

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, "Biketi v Njalae (Suing as the Legal Representative of the Estate of Jotham Simiyu Wambeye - Deceased) (Environment and Land Appeal E013 of 2024) [2025] KEELC 269 (KLR)", Case Analysis (2025). Kimilili PM-ELC Appeal (Bungoma ELC), arising from Kimilili PM-ELC No. 11 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/269/eng@2025-01-30

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