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ELCDismissedKisumu ELCA (record of appeal dated 4th November, 2024; appeal from Kisumu CMC EL Case No. 35 of 2019)· [2025] KEELC 6661 (KLR)

Deya v Mwanzu (Environment and Land Appeal E039 of 2023) [2025] KEELC 6661 (KLR)

Environment and Land Court
2 October 2025
2,745 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A land title obtained through an unlawful sub-division cannot be used to evict people from the land — even by a registered owner.

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 Kisumu from the judgment of the trial court dated 25th September 2023 in Kisumu CMC EL Case No. 35 of 2019, which dismissed the appellant's suit for eviction from Kisumu/Nyahera/2796. The appellant, registered proprietor of the suit land, had sued claiming the respondent trespassed in 2016; the respondent denied the claim, asserting the mother parcel Kisumu/Nyahera/753 was ancestral land and that the appellant unlawfully sub-divided it into parcels 2795 and 2796 without consent. The appeal, heard by written submissions, raised three issues: whether the appellant obtained the suit land fraudulently; whether the respondent was a trespasser; and whether the appellant was entitled to the relief sought. The court, guided by the first appellate duty to re-evaluate evidence, found the green card showed the mother parcel was registered in 1980 in the names of the parties' fathers as proprietors in common in equal shares. Applying Section 94 of the Land Registration Act, the court held that partition of land held in common requires the consent of all tenants in common and their participation; no application, consent, or Registrar involvement was proved. The respondent's sole-ownership and fraud allegations were not proved and were effectively abandoned. The court affirmed the trial court's finding that the sub-division was unlawful and held the tainted title could not found a trespass claim, with no evidence of trespass anyway, and that Article 40 of the Constitution does not protect unlawfully acquired property. The appeal was dismissed with costs to the respondent, and the parties were directed to follow the law in partitioning the mother title.

Key legal issues

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01

Whether the Appellant obtained title to Kisumu/Nyahera/2796 fraudulently/unlawfully

Holding

Yes - the sub-division creating the suit land was unlawful because the statutory procedure for partition of land held in common was not followed; the trial court did not err so finding.

Reasoning

The mother parcel Kisumu/Nyahera/753 was registered in the names of the parties' fathers as proprietors in common in equal shares. Section 94 of the Land Registration Act requires an application to the Registrar for partition with the consent of all tenants in common. No application, consent, agreement or Registrar participation was proved. The respondent's family, beneficiaries of the other proprietor in common, were not involved, and the portion taken as the suit land holds the respondent's home and family graves.

p. 6
02

Whether the Respondent is a trespasser on the suit land

Holding

No - the illegally obtained title cannot support a trespass claim and no evidence of trespass was adduced.

Reasoning

A claim in trespass rests on proof of the plaintiff's right to possession. Since the suit land was created unlawfully in breach of Section 94 of the Land Registration Act, the title derived from that process is tainted and cannot ground a trespass claim. Independently, no evidence of trespass was placed before the trial court.

p. 6
03

Whether the Appellant was entitled to the eviction relief sought in the plaint

Holding

No - the protection of the right to property under Article 40 does not extend to property acquired unlawfully, so eviction could not be ordered.

Reasoning

The substantive relief sought was eviction of the respondent. Since the appellant's title was unlawfully obtained through an unprocedural sub-division, the constitutional protection of property rights does not attach, and the suit fails. The parties were directed to follow the law in partitioning the mother title.

p. 6

Legal principles established

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  • A first appellate court must re-examine and re-evaluate the evidence and arrive at its own conclusions while making allowance for not having seen or heard the witnesses.
  • Partition of land held by tenants in common under Section 94 of the Land Registration Act requires the consent of, and participation by, all proprietors in common.
  • A title acquired unlawfully cannot found a claim in trespass, and Article 40 does not protect unlawfully acquired property.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs to the Respondent
  3. 3.Parties to follow the law to partition the mother title No. Kisumu/Nyahera/753 held by the deceased proprietors in common
On appeal from
Chief Magistrate's Court, Kisumu
CMC EL Case No. 35 of 2019
Jurisdiction invoked
First appellate jurisdiction over subordinate court (Environment and Land 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, "Deya v Mwanzu (Environment and Land Appeal E039 of 2023) [2025] KEELC 6661 (KLR)", Case Analysis (2025). Kisumu ELCA (record of appeal dated 4th November, 2024; appeal from Kisumu CMC EL Case No. 35 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6661/eng@2025-10-02

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