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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Appellant's registration as sole proprietor of the suit property was lawful
The registration was irregular, fraudulent and unlawful; the Appellant failed to prove how ownership moved from joint names to his sole name
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.
Whether the Appellant's indefeasible title under Section 26 of the Land Registration Act defeated the claim
No; the title could not enjoy Section 26 protection because it was procured irregularly and illegally
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.
What remedy follows from cancellation of the unlawful registration
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
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.
Legal principles established
#- 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
#- 1.Judgment of the lower court delivered on 11th May 2023 and the decree issued on 8th August 2023 set aside
- 2.A declaration that the transfer and registration of the Appellant as sole proprietor of Kisumu/Buoye/4349 was irregular, fraudulent and unlawful
- 3.The Appellant's registration as sole proprietor and the title deed issued to him are cancelled
- 4.The Appellant shall surrender the original title deed to the Land Registrar for cancellation
- 5.The Land Registrar, Kisumu County shall register the parcel in the names of the Appellant and Charles Ochola Bunde (deceased) as proprietors
- 6.Each party shall bear its own costs of the lower court suit and the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.