Customs General Const Limited v County Government of Kisii (Land Case Appeal E028 of 2025) [2026] KEELC 3553 (KLR)
The bottom line
#The Environment and Land Court in Kisii ruled that a title certificate alone does not prove land ownership when the land was originally public property.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant proved its claim of ownership and entitlement to eviction, injunction and damages
The Appellant failed to prove lawful acquisition of the suit title; the suit was properly dismissed.
Though registered as proprietor, the Appellant raised the authenticity of its own title and thus bore the burden of proving due process. It produced no allotment letter, no sale agreement with Lucy Barongo Ondieki, no proof of purchase price or stamp duty, and did not call the vendor as a witness. The Land Registrar and County Surveyor evidence was inconclusive due to the Appellant's own omissions.
Whether the Respondent proved the fraud pleaded in its counter-claim
Yes - the allegations of fraudulent and irregular acquisition stood uncontroverted and were established.
None of the Respondent's witnesses had records showing allocation of the impugned land to the Appellant or its vendor; the Kisii Town Approved Development Plan of 1971 designated the land for government houses. The land was transferred without the consent of the Commissioner of Lands, contrary to Article 62(4) of the Constitution, and the required procedures were not followed.
Whether the learned trial magistrate erred in his evaluation of the evidence
No - the trial magistrate gave reasoned findings and the appellate court found no basis to disturb them.
The magistrate expressly reasoned that due diligence was required, that the seller was not called as a witness, and drew the appropriate negative presumption. The appellate court, re-evaluating the evidence as required on first appeal, reached the same conclusion.
Legal principles established
#- A first appellate court must re-evaluate the evidence adduced at trial while being conscious it did not see the witnesses.
- A party asserting a legal right must prove the facts asserted, on a balance of probabilities, regardless of any failure by the other side to rebut.
- A certificate of lease alone is insufficient; a party claiming as bona fide purchaser must demonstrate due process, payment of consideration and an apparently valid vendor title.
- Public land vests in the county government in trust for the people and cannot be disposed of except in terms of an Act of Parliament.
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- 2.The judgment of the subordinate court is left as is
- On appeal from
- Chief Magistrate's Court, Kisii (CMC ELC)
- Kisii CMC ELC 55 OF 2021
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (appeal against judgment and decree of the trial magistrate)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Customs General Const Limited v County Government of Kisii (Land Case Appeal E028 of 2025) [2026] KEELC 3553 (KLR)", Case Analysis (2026). Kisii ELC Appeal (from Kisii CMC ELC 55 OF 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3553/eng@2026-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.