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ELCDismissedNot stated in the extract (appeal from PM-ELC NO. E019 of 2021)· [2025] KEELC 3128 (KLR)

Kisach v Kisach (Environment and Land Appeal E032 of 2024) [2025] KEELC 3128 (KLR)

Environment and Land Court
27 March 2025
ECE.C Cherono
2,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a brother's challenge to his sibling's land title, confirming that registered titles stand unless fraud is strictly proven.

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 (E.C Cherono, ELC Judge) against the judgment of the magistrates' court in PM-ELC No. E019 of 2021, which had allowed the Respondent Marko Naibei Kisach's claim for eviction and a permanent injunction against the Appellant Bramwel Naibei Kisach over LR No. N.Malakasi/N.Wamono/200 (2.8ha). The Respondent relied on a certificate of title allocated on 03/01/2019 and a certificate of grant in Sirisia SRM Succession Cause No. 4 of 2010, under which he took the suit land while the Appellant took parcel 238; the Appellant's objection to that distribution was dismissed and not challenged. The Appellant contended their father, Suruali Kisache, subdivided the land among the brothers in 1990 and that the Respondent's title was procured by forgery. The court, applying its first-appeal duty to re-evaluate evidence (Kenya Ports Authority v Kustom; Selle), held that the Appellant never specifically pleaded fraud at trial and produced no proof under Section 107(1) of the Evidence Act; under Sections 24, 25 and 26 of the Land Registration Act, an unchallenged certificate of title is conclusive, subject only to proof of fraud, misrepresentation or a corrupt scheme. The claimed 1990 clan subdivision was unsubstantiated by documentary evidence. The Appellant's continuing occupation without consent constituted trespass under Section 3(1) of the Trespass Act. The appeal was dismissed with each party bearing their own costs, affirming the judgment and decree of 28/06/2024.

Key legal issues

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01

Whether the Respondent is the absolute and indefeasible owner of LR No. N.Malakasi/N.Wamono/200

Holding

Yes - the certificate of title and certificate of grant conferring transmission were unchallenged; the Appellant pleaded no fraud and proved none

Reasoning

The Respondent produced a certificate of title allocated on 03/01/2019 and a certificate of grant in Sirisia SRM Succession Cause No. 4 of 2010 through which he acquired the land by transmission. Sections 24, 25 and 26 of the Land Registration Act vest absolute ownership in the registered proprietor, challengeable only on proof of fraud, misrepresentation or corrupt scheme. The Appellant never specifically pleaded fraud at trial and adduced no proof under Section 107(1) of the Evidence Act. The claim of a 1990 clan subdivision was unsubstantiated by documentary evidence.

p. 4
02

Whether the trial court's judgment should be disturbed on appeal

Holding

No - the appeal was dismissed; the trial court's findings and decree were affirmed

Reasoning

Applying the first-appeal standard (Kenya Ports Authority v Kustom (Kenya) Ltd; Selle v Associated Motor Boat Co), the court re-evaluated the evidence and found the Respondent's title unimpeached and the Appellant's subdivision claim unproved. Since the Respondent's occupation rights and the Appellant's continuing presence amounted to trespass under Section 3(1) of the Trespass Act, the trial court was entitled to grant eviction and injunction. The decree of 28/06/2024 therefore stands.

p. 5

Legal principles established

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  • On a first appeal the court must re-analyse and re-assess the evidence and reach its own conclusion while making allowance for the fact it neither saw nor heard the witnesses
  • Allegations of fraud are serious and must be strictly proved; an unchallenged certificate of title is conclusive evidence of ownership
  • A first appellate court should not consider matters not pleaded, raised or determined at trial

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear their own costs
On appeal from
Magistrates' Court (Sirisia, PM-ELC)
PM-ELC NO. E019 of 2021
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court (Environment and Land Court Act); judgment does not cite a specific article

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, "Kisach v Kisach (Environment and Land Appeal E032 of 2024) [2025] KEELC 3128 (KLR)", Case Analysis (2025). Not stated in the extract (appeal from PM-ELC NO. E019 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3128/eng@2025-03-27

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