Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedMemorandum of Appeal dated 11.11.2024 (Eldoret CM's Court Elc No. E190 of 2023)· [2025] KEELC 7743 (KLR)

Komen & 2 others v Amakalu & another (Environment and Land Appeal E053 of 2024) [2025] KEELC 7743 (KLR)

Environment and Land Court
11 November 2025
EWEmmanuel M. Washe
10,964 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~44 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court in Eldoret upheld a registered landowner's title, confirming that burying a relative on someone's land does not create ownership rights.

What this practically means

#

Executive summary

#
The Appellants, joined as interested parties before the trial court, appealed against the judgment of Hon. Peter Ireri, SPM delivered on 29th October 2024 in Eldoret CM's Court Elc No. E190 of 2023. The 1st Respondent had sued the 2nd Respondents for a declaration of ownership of Uasin Gishu/kimumu Scheme/1296, eviction and a permanent injunction restraining the burial of Emily Kabon Murkomen on the property; the 2nd Respondents counterclaimed that the title was fraudulently acquired and sought its cancellation and leave to bury the deceased there. The trial court allowed the claim but also ordered a re-survey of the mother title Uasin Gishu/kimumu Scheme/249 and rectification of the register for parcels 1296 and 1298, prompting the appeal by the owners of neighbouring subdivisions. Sitting as a first appellate court and guided by Selle & Another vs Associated Motor Boat Co. Limited, the ELC re-evaluated the evidence. It found the mother title belonged to the late Oreu Memusa; that the mutation approved on 13th May 1996 created subdivisions 1294-1300; that the certificate of confirmation of grant in Eldoret HC P&A No. 155 of 2005 lawfully transmitted the suit property to Josinah Khaeri, from whose estate it passed to the 1st Respondent by title issued on 27th April 2023. No fraud, corruption or misrepresentation was proved against the registration, the 2nd Respondents having failed to discharge the burden under Section 107 of the Evidence Act. The court held burial on another's land does not defeat registered title, and that the trial court's re-survey order was made outside the pleadings and prejudiced registered owners. Allowing the appeal, the court set aside the trial judgment in its entirety, declared the 1st Respondent owner of the suit property, issued a permanent injunction against the estates of Emily Kabon Murkomen and Joshua Manoki with demolition of structures, directed police assistance, and awarded costs of the suit and of the appeal against the 2nd Respondents only.

Key legal issues

#
01

Registered ownership of the suit property Uasin Gishu/kimumu Scheme/1296

Holding

The suit property was transmitted lawfully to Josinah Khaeri by the certificate of confirmation of grant in Eldoret HC P&A No. 155 of 2005 and passed to the 1st Respondent through Eldoret CM Succession Cause No. 108 of 2020; his title of 27th April, 2023 is valid

Reasoning

Both administrators of the estate of Oreu Memusa confirmed in the certificate of confirmation of grant that the suit property belonged to Josinah Khaeri. The subsequent succession in CM Succession Cause No. 108 of 2020 transmitted the whole property to the 1st Respondent, and a title deed issued on 27th April, 2023. Unless that grant is set aside, the 1st Respondent is the lawful owner.

p. 20
02

Alleged fraud, corrupt scheme or misrepresentation in acquisition of the title

Holding

None of the pleaded particulars was proved; the 2nd Respondents bore the burden under Section 107 of the Evidence Act and failed

Reasoning

The 2nd Respondents produced no succession proceedings instituted by the 1st Respondent over the estate of Joshua Manoki; they had no locus standi over the estate of Josinah Khaeri; the chief's letter's origin did not conceal any asset; and the re-issued title merely corrected a typographical error in the name Josinah Khayeri to Josinah Khaeri without ill-intention.

p. 21
03

Burial of a family member on land registered to another

Holding

Burial of Joshua Manoki on the suit property does not defeat the registered owner's title nor ground continued occupation or burial rights

Reasoning

The court held that occupation or burial without title creates no enforceable right against a registered proprietor under Sections 24 and 25 of the Land Registration Act. The mere fact that a husband was buried on the property is not a legal ground to impeach ownership, and the 2nd Respondents had no right to bury Emily Kabon Murkomen there.

p. 22
04

Trial court's order for re-survey of the mother title

Holding

The order was set aside as it was not pleaded and prejudiced registered owners of approved subdivisions

Reasoning

Neither the Plaint nor the Counterclaim sought a re-survey. Once the mutation was approved on 13th May, 1996 and title deeds issued, ordering a re-survey to rectify the register to reflect actual occupation went beyond the pleadings and interfered with legal boundaries, prejudicing the Appellants as owners of neighbouring subdivisions.

p. 23

Legal principles established

#
  • A first appellate court must re-evaluate the evidence before the trial court and arrive at its own independent judgment
  • Registration under the Land Registration Act confers conclusive proprietorship subject only to challenge on fraud, corrupt means or misrepresentation
  • Issues for determination must strictly be founded on the pleadings filed by the parties

Court orders

#
  1. 1.The Memorandum of Appeal dated 11th November, 2024 is merited
  2. 2.The whole judgment of the trial court pronounced on 29th October, 2024 be and is hereby set aside and/or vacated
  3. 3.A declaration that the suit property known as Uasin Gishu/kimumu Scheme/1296 is the property of the 1st Respondent as contained in the Certificate of Title issued on 27th July, 2023
  4. 4.A permanent injunction against the estate of Emily Kabon Murkomen and the estate of Joshua Manoki, their agents, servants, employees or relatives from trespassing into, cultivating, utilising, remaining on or making burial arrangements on the suit property, with any structures erected thereon to be demolished
  5. 5.The OCS, Ainabtich/Kapsoya Police Station to assist in effecting the orders
  6. 6.The 1st Respondent is awarded costs of the suit in the trial court against the 2nd Respondents only
  7. 7.The Appellants are awarded costs of this Appeal against the 2nd Respondents only

Authorities

#

Legislation

  • Land Registration ActSections 24, 25, 26
  • Evidence Act CAP 80Section 107

Cases cited (1)

  • Selle & Another vs Associated Motor Boat Co. Limited & Others
    (1968) EA 123
On appeal from
Eldoret Chief Magistrate's Court (Elc No. E190 of 2023)
Elc No. E190 of 2023
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (ELC) appeal; guided by Selle & Another vs Associated Motor Boat Co. Limited & Others (1968) EA 123

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Komen & 2 others v Amakalu & another (Environment and Land Appeal E053 of 2024) [2025] KEELC 7743 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 11.11.2024 (Eldoret CM's Court Elc No. E190 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7743/eng@2025-11-11

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