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ELCDismissedAppeal number not stated in judgment; appeal from Kilgoris ELC No. 39/2018· [2026] KEELC 3681 (KLR)

Ole Ngoshoi v Ole Ntutu & another (Land Case Appeal E037 of 2025) [2026] KEELC 3681 (KLR)

Environment and Land Court
12 June 2026
MMM.N. Mwanyale
2,210 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court at Kilgoris dismissed a land appeal because the buyer couldn't prove an extra 7 acres with proper written sale agreements.

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 Kilgoris against the judgment of Hon. M.I.G Moranga, Chief Magistrate, delivered on 9th July 2025 in Kilgoris ELC No. 39/2018. The Appellant, Joseph Ole Ngoshoi, who was the plaintiff before the trial court, listed 7 grounds of appeal seeking allowance of the appeal, setting aside, variation and/or review of the trial judgment, and costs. He argued that he was the registered proprietor of the suit parcels and that the Respondent's occupation of the disputed 7 acres constituted trespass. The Respondent countered that only 4 acres were sold under the first agreement, that the second agreement bore overwriting, and that the trial court was right; he relied on section 27 of the Civil Procedure Act on costs. The court framed two issues: whether the appeal had merit, and what reliefs should issue. Performing its duty as a first appellate court to re-evaluate the evidence, the court found that the first agreement of sale (22.01.2003) was properly executed, but the second agreement (23.05.2003) had glaring disparities, including the absence of the chief's signature and of the witnesses' signatures, with PW2 denying that he signed it. The agreement for the purchase of 6 acres from Nonkokwa Ene Ole Ntutu was never produced, and under section 3(3) of the Law of Contract Act the sale was unproven. Applying Bukenya v Uganda, the court drew an adverse inference from the failure to call the remaining witnesses. It concluded that the plaintiff proved entitlement to only 4 acres, that the counter-claim over the 7 acres was merited, and that the appeal lacked merit. The appeal was dismissed, the trial court's decision upheld, and costs of the suit, counter-claim and appeal awarded to the Respondent.

Key legal issues

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01

Whether the Appellant lawfully acquired title to the disputed 7 acres

Holding

No. The 2nd Agreement for sale dated 23.05.2003 had glaring disparities (missing signature of the chief and of the witnesses), and the agreement for the 6 acres purchased from Nonkokwa Ene Ole Ntutu was never produced in evidence, so neither the extra 1 acre nor the 6 acres were proven.

Reasoning

The court compared the two sale agreements: the first (22.01.2003) contained identity card numbers, thumbprints, witnesses' details, the Assistant Chief's signature and the demarcation officer's signature, while the second (23.05.2003) lacked the chief's signature and the witnesses' thumbprints or signatures. PW2 denied signing the second agreement, and the remaining named witnesses were not called, permitting an adverse inference under Bukenya v Uganda. The 6-acre purchase agreement was not produced at all.

p. 8
02

Whether the trial court erred in upholding the counter-claim and dismissing the plaintiff's claim to the extra 7 acres

Holding

No. The plaintiff proved ownership of only 4 acres; the counter-claim in respect of the 7 acres was merited, and the appeal against that finding lacks merit.

Reasoning

As a first appellate court, the judge re-evaluated the record and reached the same conclusion as the trial court. The defendants had specifically pleaded fraud/manipulation of the sale agreement, and the deficiencies in the second agreement and the absence of the 6-acre agreement substantiated the trial court's finding that the plaintiff misrepresented facts to the Land Adjudication Officer.

p. 8

Legal principles established

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  • A first appellate court must reconsider the evidence, evaluate it and draw its own conclusions
  • Where a party calls evidence that is barely adequate and other witnesses were available but not called, the court may draw an inference that their evidence would have been adverse
  • A sale of land falling under section 3(3) of the Law of Contract Act must be proven by a written agreement for sale; in the absence of such an agreement the sale is not proven

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.The decision of the trial court delivered on 9th July 2025 in Kilgoris ELC No. 39/2018 is upheld
  3. 3.Costs of the suit and counter-claim as well as the costs of the Appeal are awarded to the Respondent
On appeal from
Chief Magistrate's Court, Kilgoris
ELC No. 39/2018
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Environment and Land Court appeal from Kilgoris ELC No. 39/2018); no specific constitutional or statutory provision is cited in the judgment

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, "Ole Ngoshoi v Ole Ntutu & another (Land Case Appeal E037 of 2025) [2026] KEELC 3681 (KLR)", Case Analysis (2026). Appeal number not stated in judgment; appeal from Kilgoris ELC No. 39/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3681/eng@2026-06-12

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