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ELCPartially AllowedKisumu Environment and Land Court Appeal (from Kisumu CMC ELC No. 120 of 2019)· [2025] KEELC 459 (KLR)

Bunde v Nyalik (Suing as the Legal Representative of Charles Ochola Bunde, Deceased) & another (Environment and Land Appeal E018 of 2023) [2025] KEELC 459 (KLR)

Environment and Land Court
10 February 2025
3,298 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled a brother's sole title to family land because he could not explain how it stopped being jointly owned.

What this practically means

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Executive summary

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The Appellant and the 1st Respondent are brothers. During land adjudication, parcel Kisumu/Buoye/4349 was recorded in the joint names of the Appellant and their deceased brother, Charles Ochola Bunde, who died on 21st July 1991. On 15th July 2010 a register was nonetheless opened in the Appellant's sole name and he obtained a title deed in 2016. The 1st Respondent, as administrator of the deceased's estate, sued before the lower court alleging fraudulent transfer; the Appellant denied fraud, asserted joint registration, and counter-claimed for eviction and damages for trespass. On 11th May 2023 the lower court found the parties were tenants in common, that the Appellant's sole registration was fraudulent, and entered judgment for the 1st Respondent as prayed, dismissing the counter-claim. On first appeal, S. Okong'o J re-evaluated the evidence and agreed that the Appellant had failed to prove how ownership moved from joint names to his sole name, a fact within his knowledge under Section 112 of the Evidence Act. The title therefore could not enjoy Section 26 Land Registration Act protection and was a nullity; the order cancelling it was proper, and the counter-claim founded on that void title was rightly dismissed. However, the appellate court held the lower court erred in declaring the 1st Respondent owner of the whole property: the remedy was restorative, restoring joint registration so that proper succession of the deceased's share could occur. Adverse possession, raised for the first time on appeal, was unpleaded and unavailable. The appeal succeeded in part: the lower court judgment and decree were set aside and substituted with a declaration of fraud, cancellation of the Appellant's title, surrender of the title deed, re-registration in the joint names of the Appellant and the deceased, with each party bearing its own costs of the suit and appeal.

Key legal issues

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01

Whether the Appellant's registration as sole proprietor of the suit property was lawful

Holding

The registration was irregular, fraudulent and unlawful; the Appellant failed to prove how ownership moved from joint names to his sole name

Reasoning

The land was demarcated and recorded in the joint names of the Appellant and the deceased during adjudication. Under the Land Adjudication Act and the Registered Land Act, it could only be registered in the Appellant's sole name if he had successfully objected or appealed during adjudication. The Appellant claimed registration on the strength of a chief's letter, but the only letter produced post-dated the registration. How the transfer occurred was a fact within his knowledge under Section 112 of the Evidence Act, and he did not discharge that burden.

p. 4
02

Whether the Appellant's indefeasible title under Section 26 of the Land Registration Act defeated the claim

Holding

No; the title could not enjoy Section 26 protection because it was procured irregularly and illegally

Reasoning

The court found the Appellant's first registration was obtained through procedural impropriety and illegality. Where registration is impeached on those grounds, the indefeasibility shield under Section 26 of the Land Registration Act, 2012 is unavailable. The registration was therefore a nullity, and the order cancelling it was proper.

p. 4
03

What remedy follows from cancellation of the unlawful registration

Holding

The property should be restored to the register in the joint names of the Appellant and the deceased; the lower court erred in declaring the 1st Respondent owner of the whole property

Reasoning

The court held that the correct course was restorative: cancelling the illegal registration and re-registering the property in the names of the Appellant and the deceased, so that interested parties could undertake proper succession of the deceased's share before any transfer or partition. Declaring the 1st Respondent, who held only a limited grant ad litem, owner of the whole property went beyond the pleadings and the evidence.

p. 4

Legal principles established

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  • On a first appeal, the court must reconsider and re-evaluate the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses
  • A fact especially within the knowledge of a party must be proved by that party under Section 112 of the Evidence Act
  • A party is bound by its pleadings and the court cannot adjudicate on claims or defences not raised by the parties
  • A title obtained irregularly, illegally and unprocedurally is a nullity and does not enjoy protection under Section 26 of the Land Registration Act

Court orders

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  1. 1.Judgment of the lower court delivered on 11th May 2023 and the decree issued on 8th August 2023 set aside
  2. 2.A declaration that the transfer and registration of the Appellant as sole proprietor of Kisumu/Buoye/4349 was irregular, fraudulent and unlawful
  3. 3.The Appellant's registration as sole proprietor and the title deed issued to him are cancelled
  4. 4.The Appellant shall surrender the original title deed to the Land Registrar for cancellation
  5. 5.The Land Registrar, Kisumu County shall register the parcel in the names of the Appellant and Charles Ochola Bunde (deceased) as proprietors
  6. 6.Each party shall bear its own costs of the lower court suit and the appeal

Authorities

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Legislation

  • Land Adjudication ActSections 26, 27, 28 and 29
  • Registered Land Act (now repealed)Section 11
  • Land Registration Act 2012Section 26
  • Evidence ActSection 112

Cases cited (9)

  • Kenya Ports Authority v. Kuston (Kenya) Limited
    [2009] 2 EA 212
  • Verani t/a Kisumu Beach Resort v. Phoenix of East Africa Assurance Co. Ltd
    [2004] 2 KLR 269
  • Selle v. Associated Motor Boat Co. Ltd.
    [1968] E.A 123
  • Abok James Odera t/a Odera & Associates v. John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Peter v. Sunday Post Ltd.
    [1958] E.A 424
  • Makube v. Nyamuro
    [1983] KLR 403
  • George Mbiti Kiebia & Another v. Isaya Theuri M'lintari & Another
    [2014] eKLR
  • Independent Electoral and Boundaries Commission & Another v. Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Malawi Railways Ltd. v. Nyasulu
    [1998] MWSC 3
On appeal from
Chief Magistrate's Court, Kisumu (Kisumu CMC ELC No. 120 of 2019)
Kisumu CMC ELC No. 120 of 2019
Jurisdiction invoked
First appellate jurisdiction over the lower court's decision (originally filed as Kisumu ELCC No. 52 of 2018 and transferred to the lower court)

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, "Bunde v Nyalik (Suing as the Legal Representative of Charles Ochola Bunde, Deceased) & another (Environment and Land Appeal E018 of 2023) [2025] KEELC 459 (KLR)", Case Analysis (2025). Kisumu Environment and Land Court Appeal (from Kisumu CMC ELC No. 120 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/459/eng@2025-02-10

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