Nyariki & another v Mariba & 9 others (Environment and Land Appeal E004 of 2025) [2026] KEELC 3701 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out a land counterclaim because fraud and customary trust were never properly pleaded, leaving registered landowners free to evict the occupants.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondents proved fraud sufficient to cancel the Appellants' titles
Fraud was not proved; no particulars were pleaded in the Amended Defence and Counterclaim and the trial magistrate erred in finding a 'potentially fraudulent transaction' without strict proof
Allegations of fraud must be specifically pleaded with particulars and strictly proved to a standard higher than balance of probabilities. The Amended Defence and Counterclaim contained no particulars of fraud. The magistrate relied on potential rather than proven fraud. Further, the subordinate court could not re-litigate the Kisii High Court Succession Cause No. 230 of 2007, so the alleged illegality founded on exclusion of the Eighth and Ninth Respondents from the succession also failed.
Whether customary trust was established over the suit properties
Customary trust was not established because it was never pleaded in the Amended Defence and Counterclaim
Parties are bound by their pleadings, which circumscribe the issues for determination. Although Section 28(b) of the Land Registration Act makes trusts overriding interests not requiring registration, a claim of trust must still be pleaded. The Respondents raised trust for the first time in final written submissions, without an express averment or prayer in the Amended Defence and Counterclaim, which was futile.
Whether trespass was established
The Appellants, as registered proprietors, established trespass by the First to Ninth Respondents, who entered and constructed on the suit properties
Trespass is a violation of the right to possession; the proper plaintiff is one with title or possession. The Appellants were undisputed registered proprietors with the right to immediate and exclusive possession. The Respondents admitted entering on 10th December 2018 and constructing a house on 11th December 2018. Having failed to plead and prove any valid claim to the land, the Respondents had no right to possession, and their own testimonies proved the Appellants' trespass claim.
The mandate of a first appellate court
The Court must re-evaluate, re-assess and re-analyse the evidence on the record and draw its own conclusions
Being a first appeal, the court is entitled to reconsider the evidence and reach its own conclusions, though it must bear in mind that it did not see or hear the witnesses and make due allowance. Its responsibility is to rule on the evidence on record without introducing extraneous matters not dealt with by the parties.
Legal principles established
#- Fraud must be specifically pleaded with particulars on the face of the pleading, distinctly alleged and distinctly proved to a standard higher than balance of probabilities but lower than beyond reasonable doubt
- Parties are bound by their pleadings; a claim of customary trust cannot be advanced without being pleaded even though trusts are overriding interests under Section 28(b) of the Land Registration Act
- On a first appeal the court re-evaluates, re-assesses and re-analyses the evidence and draws its own conclusions, making allowance for not having seen or heard the witnesses
- A party alleging fraud bears the burden of proving it
Court orders
#- 1.The judgment and decree of the Subordinate Court delivered on 8th April 2025 are set aside
- 2.The First to Ninth Respondents' counterclaim is dismissed
- 3.A permanent injunction restraining the First to Ninth Respondents from remaining on, constructing, trespassing or interfering with East Kitutu/Mwamangera/4628, 4629 and 4630
- 4.A declaration that the First to Ninth Respondents have no right to enter, occupy or use any part of East Kitutu/Mwamangera/4628, 4629 and 4630
- 5.The Appellants shall have costs of both the appeal and the proceedings before the Subordinate Court
- On appeal from
- Subordinate Court (Chief Magistrate's Court)
- Suit commenced by Plaint dated 9th January 2019
- Jurisdiction invoked
- First appeal from the Subordinate Court (appellate jurisdiction over subordinate court judgments)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyariki & another v Mariba & 9 others (Environment and Land Appeal E004 of 2025) [2026] KEELC 3701 (KLR)", Case Analysis (2026). (Not stated in the judgment - appeal from Kisii CMCC Land Case filed 9th January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3701/eng@2026-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.