Mbuya v Migogo & another (Environment and Land Appeal 13 of 2022) [2026] KEELC 2657 (KLR)

The respondents exhibited a joint title and three sale agreements executed by the deceased seller, whose widow testified she was aware of the sale. The appellant adduced no proof of fraud, misrepresentation, illegality or corrupt scheme, the only grounds on which a certificate of title may be challenged under Section 26 of the Land Registration Act. The seller was entitled to sell his land to whomever he wished.

Succession disputes fall under the Law of Succession Act, whose administration vests in the High Court (representable by Resident Magistrates). The trial court was constituted as an Environment and Land Court, not a succession court, and so could not determine devolution of the estate. The appellant's remedy is to contest the succession proceedings at Siakago and seek revocation of the confirmed grant.

Trespass is a violation of the right to possession; the respondents proved absolute proprietorship by purchase and issuance of title, entitling them to immediate and exclusive possession. The court found the trial court erred in observing that trespass did not literally occur; prior occupation without acquired rights did not defeat the registered owners' possession, and the appellant remained a continuing trespasser.

Costs are discretionary but follow the event unless good reason exists for departure. The respondents succeeded at trial and on appeal; no reasonable ground was shown to disturb the trial court's order that eviction be executed at the appellant's cost, notwithstanding her long occupation of the land.

Retrials are unusual and ordered only where the original trial was tainted by procedural wrongs or malpractice compromising fairness. Factors include interests of justice, new evidence, prejudice, serious fraud or mistake, or glaring disregard of evidence. The appellant demonstrated none of these; locking out an untimely witness did not amount to a miscarriage of justice.