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ELCDismissedKakamega ELC Appeal (from Butere PMC ELC No. 17 of 2019)· [2025] KEELC 7317 (KLR)

Neondo & another v Machengo (Environment and Land Appeal E053 of 2024) [2025] KEELC 7317 (KLR)

Environment and Land Court
15 October 2025
ANA. Nyukuri
4,981 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega dismissed a family's land appeal, confirming that a registered buyer's title stands unless fraud is strictly proven.

What this practically means

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Executive summary

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The appellants appealed against the judgment of Hon. Edwin Wasike (PM) in Butere PMC ELC No. 17 of 2019 delivered on 29th August 2024, which dismissed their counterclaim for adverse possession and allowed the respondent's claim for eviction and permanent injunction over parcel Nos. Marama/Shibembe/294 and 1101. The respondent pleaded that he purchased the parcels on 20th March 2014 from Jenifa Matioli and Yunes Atenya, daughters of the late Seth Namiba Ashuma, and was registered as owner in 2017 and 2018 following succession proceedings. The appellants alleged fraud in the succession and transfer, and the 1st appellant claimed he was one and the same person as Ashuma Namiba, the original registered owner, having been registered as a child in 1966 and 1970. The court identified three issues: whether the counterclaim was proved, whether the respondent lawfully acquired the property, and whether the trial court was right. The court held that the 1st appellant failed to establish that he was Ashuma Namiba, noting a 43-year silence on the alleged alias, and found him to be an imposter claiming through the back door. The alleged fraud was not strictly proved, and adverse possession could not lie against a person said to have fraudulently acquired the property. The respondent's title was held lawful and indefeasible under section 26 of the Land Registration Act. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Identity of the 1st appellant and the registered owner Ashuma Namiba

Holding

Wycliffe Khasakhala Neondo is not Ashuma Namiba alias Seth Namiba Ashuma and is not the registered proprietor of the suit properties

Reasoning

The court found the alleged alias unsupported between 1979 and 2022; a 2022 affidavit, CPE certificate and school identity card did not create the nexus. The registration process under the Land Consolidation Act predated 1965, making it improbable that a child was registered. He was therefore an imposter claiming through the back door.

p. 8
02

Whether the appellants proved the counterclaim for adverse possession

Holding

The counterclaim failed; adverse possession was neither pleaded properly nor proved, and 2nd appellant's alleged purchase had no evidence of payment or occupation

Reasoning

Adverse possession was not sought in the counterclaim and cannot be raised against a person said to have fraudulently acquired the property. The 2nd appellant's claim of purchase in 2007 had no proof of payment or occupation, and 2007 to 2019 is not 39 years.

p. 6
03

Whether the respondent lawfully acquired the suit property

Holding

Yes; the respondent's title, obtained through purchase from the deceased's daughters after succession, was lawful and indefeasible under section 26 of the Land Registration Act

Reasoning

Allegations of fraud, misrepresentation and conspiracy were not strictly proved. The daughters lawfully inherited and transferred the land to the respondent, whose title could not be vitiated. The appellants had no legal claim and were trespassers.

p. 9

Legal principles established

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  • On a first appeal, the court must re-assess and re-evaluate the evidence and make its own conclusions, allowing for the fact that it did not see or hear the witnesses
  • A registered proprietor's title is indefeasible except on proof of fraud, misrepresentation, illegality or corruption
  • Allegations of fraud must be specifically pleaded and strictly proved to a standard above balance of probability but below beyond reasonable doubt
  • A claim for adverse possession can only be directed against the true owner of the land

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
On appeal from
Butere Principal Magistrate's Court
Butere PMC ELC No. 17 of 2019
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's 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, "Neondo & another v Machengo (Environment and Land Appeal E053 of 2024) [2025] KEELC 7317 (KLR)", Case Analysis (2025). Kakamega ELC Appeal (from Butere PMC ELC No. 17 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7317/eng@2025-10-15

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