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ELCPartially AllowedEnvironment and Land Appeal E014 of 2025· [2025] KEELC 6264 (KLR)

Kosi v Bukura & another (Environment and Land Appeal E014 of 2025) [2025] KEELC 6264 (KLR)

Environment and Land Court of Kenya
25 September 2025
7,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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 Isiolo against the judgment of Hon. W.K. Cheruiyot, Principal Magistrate, delivered on 2nd April 2025, in a dispute over plot No. 483 Moyale Township in Marsabit County. The 1st respondent (plaintiff below) had sued for a permanent injunction, accounts and mesne profits, and reversal of register entries, contending that the appellant (1st defendant below) fraudulently procured his signature on a transfer form by exploiting his claimed illiteracy. The trial magistrate found for the plaintiff, holding the transfer fraudulent and void, but never determined the appellant's counterclaim. The appeal raised four issues: whether the plaintiff proved his case; whether the trial court violated the doctrine of departure; whether it disregarded the appellant's amended defence and counterclaim; and whether a trust was proved. Allowaying the appeal, the court held that fraud was neither pleaded with particulars as Order 2(4) of the Civil Procedure Rules requires, nor proved to the requisite intermediate standard; that the plaintiff, a retired army officer trained in English and Swahili, had not established illiteracy; that the trial magistrate determined unpleaded issues concerning the form's design and validity in breach of the doctrine of departure; that reliance on the superseded defence and the failure to dispose of the counterclaim amounted to dereliction of judicial duty; and that no trust was pleaded or proved. The court set aside the trial judgment, dismissed the plaintiff's suit, allowed the counterclaim with a declaration that the appellant is the lawful and registered proprietor, ordered removal of any caution or restriction, and awarded the appellant costs of the appeal, suit and counterclaim.

Key legal issues

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01

Whether the 1st respondent proved his claim of fraud and illiteracy

Holding

He did not; fraud was not pleaded with particulars nor proved, and the evidence showed he understood English

Reasoning

Order 2(4) of the Civil Procedure Rules requires fraud to be specifically pleaded with particulars. The 1st respondent, a retired army officer trained in English and Swahili, could not credibly claim illiteracy. Fraud must be distinctly alleged and proved to an intermediate standard; no such evidence was tendered, rendering the trial court's finding of fraud unsupported and perverse.

p. 9
02

Whether the trial magistrate violated the doctrine of departure

Holding

Yes; he determined extraneous issues (design and validity of the transfer form) not pleaded by the parties

Reasoning

Courts and parties are bound by pleadings. The trial court generated its own issues on the form's design, the absence of a county official's signature and blank segments, none of which were pleaded, and on that self-made hypothesis declared the transfer null and void. This was a grave misdirection and an error of principle going to the root of the judgment.

p. 12
03

Whether the trial magistrate disregarded the appellant's amended defence and counterclaim

Holding

Yes; he relied on the superseded defence of 27th March 2024 and never determined the counterclaim

Reasoning

The amended statement of defence and counterclaim dated 8th August 2024 replaced the original defence by operation of law, yet the trial magistrate referenced only the extinct pleading. The judgment was silent on the counterclaim, leaving it neither allowed nor dismissed — a failure to dispose of all issues placed before the court amounting to dereliction of judicial duty.

p. 12
04

Whether the appellant proved a trust over the suit property

Holding

No; trust was not pleaded with particulars nor evidenced, and the claim was too convoluted to discern its basis

Reasoning

The appellant did not comply with Order 2(4) and 2(10) of the Civil Procedure Rules by pleading trust with particulars, and adduced no evidence of its existence. The claim could not be identified as resulting, implied, constructive or customary trust. Parties must plead with reasonable precision; however, since the transfer was found valid, ownership vested in the appellant in any event.

p. 12

Legal principles established

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  • Fraud must be specifically pleaded with particulars and distinctly proved to a standard above balance of probability but below beyond reasonable doubt
  • A first appellate court may only depart from trial court findings where they are based on no evidence, are perverse, based on misapprehension of evidence, or an error of principle
  • A trial court is bound by the pleadings and cannot determine issues not raised by the parties
  • Failure by a trial court to determine and dispose of all issues, including a counterclaim, constitutes abdication of judicial duty

Court orders

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  1. 1.The Appeal be and is hereby allowed.
  2. 2.The Judgment of the learned Principal Magistrate dated 2nd April 2025 and the consequential decree be and are hereby set aside.
  3. 3.In lieu thereof, the 1st respondent’s suit vide Plaint dated 4th March 2024 be and is hereby dismissed.
  4. 4.A declaration that the appellant is the lawful and registered proprietor of plot No. 483 Moyale town, Moyale Sub-county in Marsabit county.
  5. 5.An order of permanent injunction restraining the 1st respondent from entering upon, trespassing onto, building on or interfering with the appellant’s occupation, possession and use of the suit property.
  6. 6.The 2nd Respondent be and is hereby ordered/directed to discharge, remove and or vacate any restrictions/caution placed/registered against the title of the suit property by the 1st respondent.
  7. 7.Cost of the appeal awarded to the Appellant.
  8. 8.The appellant is also awarded cost of the suit and the counter-claim in the subordinate court.

Authorities

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Legislation

  • Land Actsection 38(2)
  • Land Registration Actsection 44
  • Civil Procedure Actsection 78
  • Civil Procedure Rules, 2010Order 2 rule (4), (6), (10)

Cases cited (14)

  • Kenya Urban Roads Authority & another v Belgo Holdings Limited
    (Civil Appeal E011 of 2021) [2025] KECA 764 (KLR) (9 May 2025)
  • Peters v Sunday Post Limited
    [1958] EA 424
  • James Muniu Mucheru v National Bank of Kenya Limited
    [2019] eKLR - Civil Appeal 365 of 2017
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] KECA 642 (KLR)
  • Evans Otieno Nyakwana v Cleophas Bwana Ongaro
    [2015] KEHC 8440 (KLR)
  • Gwer & 5 others v Kenya Medical Research Institute & 3 others
    (Petition 12 of 2019) [2020] KESC 66 (KLR) (Civ) (10 January 2020)
  • Vijay Morjaria vs Nansingh Madhusingh Darbar & Another
    [2000] eKLR
  • Doshi v Chemutut & 7 others
    (Civil Appeal E020 of 2023) [2025] KECA 776 (KLR) (9 May 2025)
  • Kinyanjui Kamau v George Kamau Njoroge
    [2015] eKLR
  • Ndolo v Ndolo
    [2008] 1 KLR (G&F) 742
  • Kuria Kiarie & 2 others v Sammy Magera
    [2018] KECA 467 (KLR)
  • Independent Electoral and Boundaries Commission & another v Mule & 3 others
    (Civil Appeal 219 of 2013) [2014] KECA 890 (KLR) (31 January 2014)
  • Odd Jobs Vs. Mubia
    [1970] E.A. 476
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] KECA 445 (KLR)
On appeal from
Principal Magistrate's Court
Not stated
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, "Kosi v Bukura & another (Environment and Land Appeal E014 of 2025) [2025] KEELC 6264 (KLR)", Case Analysis (2025). Environment and Land Appeal E014 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6264/eng@2025-09-25

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