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ELCPartially AllowedKisumu ELC Appeal No. E012 of 2024 (Memorandum of Appeal dated 29th December 2023 from Nyando SPMCC ELC No. 25 of 2019)· [2025] KEELC 6915 (KLR)

Omollo v Ogul (Environment and Land Appeal E046 of 2023) [2025] KEELC 6915 (KLR)

Environment and Land Court
9 October 2025
4,119 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court voided a judgment against a deceased defendant, but confirmed the judgment against his son, who failed to present any defence evidence.

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 against the judgment of Hon. L.N. Kiniale (SPM) delivered on 30 November 2023 in Nyando SPM ELC No. 25 of 2019. The Respondent had sued the Appellant and his father, Jacob Omollo Opiyo (since deceased), for eviction, a permanent injunction and a declaration that he owned Kisumu/Wawidhi B/6598 and B/8431, having purchased them under agreements of sale dated January 2011. The trial court entered judgment for the Respondent against both defendants after closing the Appellant's case for continued non-attendance. The Appellant raised nine grounds, principally that his statements were not expunged, that he was denied a hearing, that the burden of proof was shifted, and that judgment was entered against a deceased person. Okong'o J, exercising the retrial jurisdiction of a first appellate court, distilled three issues. He held that the claim against the deceased father abated under Order 24 Rule 4(3) as no substitution was made, and the judgment against him was a nullity incapable of execution, relying on Macfoy v United Africa Co. However, the Respondent proved the sale of Plot No. 8431 by the Appellant, full payment, Ministry of Lands confirmation and a 5m by 46m encroachment; the Appellant tendered no evidence, and the burden of proof was not improperly shifted. The appeal was allowed in part: the judgment was set aside as against the deceased and in respect of Plot No. 6598, confirmed against the Appellant, with each party bearing its own costs of the appeal.

Key legal issues

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01

Effect of failure to substitute a deceased defendant under Order 24 Rule 4 of the Civil Procedure Rules

Holding

The suit against the deceased abated and the judgment against him was a nullity

Reasoning

The Respondent’s claims against the Appellant and the deceased were separate and distinct. The deceased was never substituted and the Respondent chose to proceed only against the Appellant. By the date of hearing (10 February 2022) the suit against the deceased had abated, so the lower court had no power to enter judgment against him.

p. 6
02

Whether the Respondent proved his claim against the Appellant on Plot No. 8431

Holding

Yes - the sale, payment, Ministry of Lands confirmation and encroachment (5m by 46m) were proved; the Appellant adduced no evidence

Reasoning

The Respondent produced the sale agreement of 7 January 2011, drawings, a Land Adjudication Officer’s letter confirming ownership, and the Appellant’s advocates’ letter admitting the sale and full payment. With no defence evidence, the Respondent’s evidence was uncontroverted and the finding unassailable.

p. 7
03

Whether the trial court shifted the burden of proof to the Appellant

Holding

No - the burden remained on the Respondent who discharged it, whereupon it shifted to the Appellant to prove his allegation of unenforceability

Reasoning

Section 107 of the Evidence Act places the legal burden on the party desiring judgment. The Respondent proved purchase, payment and title confirmation; the Appellant, alleging the agreement was unenforceable, tendered no evidence and failed to discharge the evidential burden that then rested on him.

p. 7
04

Duty of a first appellate court

Holding

The court must reconsider and re-evaluate the evidence and draw its own conclusions, bearing in mind it did not see or hear the witnesses

Reasoning

The court adopted the settled framework from Selle v Associated Motor Boat Co and Peters v Sunday Post, cautioning that the jurisdiction to review findings of fact is exercised with caution.

p. 5

Legal principles established

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  • A judgment entered in an abated suit against a deceased person is void, a nullity and incapable of execution
  • The legal burden of proof rests on the party desiring the court to give judgment and remains constant; once a plaintiff establishes his claim, the burden shifts to a defendant alleging unenforceability

Court orders

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  1. 1.The judgment delivered by Hon. L. N. Kiniale SPM on 30th November 2023 in Nyando Senior Principal Magistrate’s Court ELC No. 25 of 2019 is set aside as against the 1st Defendant, Jacob Omollo Opiyo
  2. 2.The judgment shall not apply to the parcel of land known as Kisumu/Wawidhi B/6598, owned by 1st Defendant, Jacob Omollo Opiyo
  3. 3.The judgment against the Appellant is confirmed
  4. 4.Each party shall bear its costs of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 4(1), (2) and (3)
  • Evidence ActSection 107
  • Land Registration Act 2012Section 26(1)
  • Halsbury’s Laws of England, 4th Edition, Volume 17Paras 13 and 14

Cases cited (8)

  • Peters v. Sunday Post Ltd.
    [1958] EA 424
  • Timamy Issa Abdalla v. Swalleh Salim Imu & 3 Others
    [2014] eKLR
  • Mercy Kirito Mugeti v. Beatrice Nkatha Nyaga & 2 Others
    [2013] eKLR
  • Mwangi v. Wambugu
    [1984] KLR 453
  • Gitobu Imanyara & 2 Others v. Attorney General
    [2016] KECA 557 (KLR)
  • Macfoy v. United Africa Co. Ltd.
    [1961] 3 All ER 1169
  • Kurshed Begum Mirza v Jackson Kaibunga
    [2017] eKLR
  • Elijah Makeri Nyangwa’ra v. Stephen Mungai Njuguna & Another
    [2013] eKLR
On appeal from
Nyando Senior Principal Magistrate’s Court
ELC No. 25 of 2019
Jurisdiction invoked
First appellate jurisdiction under Article 172 / Environment and Land Court Act, powers of the High Court on a first appeal

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, "Omollo v Ogul (Environment and Land Appeal E046 of 2023) [2025] KEELC 6915 (KLR)", Case Analysis (2025). Kisumu ELC Appeal No. E012 of 2024 (Memorandum of Appeal dated 29th December 2023 from Nyando SPMCC ELC No. 25 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6915/eng@2025-10-09

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