Mary Anyango Odhiambo (Suing as the legal representative of the estate of Joseph Jabilo, Deceased) v Godfrey Waweru Okuto (Consolidated with ELC Appeal No. E043 of 2024: Godfrey Waweru Okuto v Joseph Semo Jabilo)
The bottom line
#The Environment and Land Court in Kisumu confirmed a family must vacate disputed Kisumu land within 360 days, but slashed damages for an 11-year delay in suing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent proved his trespass claim against the Appellant
- 2.Whether the Appellant proved that the Respondent's deceased father acquired the suit property fraudulently
- 3.Whether the trial court determined issues not pleaded and granted orders not sought
- 4.Whether the trial court's judgment should be set aside and if so on what terms
Key legal issues
#Whether the Respondent proved trespass against Semo's estate
Trespass proved; Ouya was registered proprietor, Semo entered without permission, and the Appellant failed to justify the entry
The Respondent produced the title deed and official search showing Ouya was registered owner from 8th December 1987. Registration vested absolute ownership and the estate's right to possession. Semo's entry and occupation without consent established trespass; the Appellant's pleaded defences of fraud and customary trust were not proved, so no reasonable excuse existed.
Whether the Appellant proved fraud in the acquisition of the suit property by Ouya
Fraud not proved; the transfer from Abele to Ouya was properly executed and the missing Land Control Board consent was not shown to invalidate it
The land registrar confirmed Abele properly executed the transfer; the missing consent letter may simply not have been placed in the parcel file, and the transaction was not challenged for want of consent. No evidence of the alleged 5-year lease was produced. Fraud allegations required strict proof which was not met.
Whether a customary trust was established over the suit property
Customary trust not proved; the Appellant made no attempt to prove the elements set out in Kiebia v M'lintari
Applying the Supreme Court's elements of customary trust, the Appellant adduced no evidence that the land was family or clan land before registration or of the nature of the holding and intention of the parties. The court does not imply a trust save in absolute necessity, and none was demonstrated here.
Whether the trial court determined unpleaded issues and granted unclaimed relief
Yes; the findings on the two Abeles, the irregular change of name, and the 1-acre transfer/compensation orders were not based on the pleadings and were erroneous
Both parties agreed the trial court's findings and orders went beyond the pleadings. The issues of whether Jabilo Abele and Joanes Jabilo Abele were different people, the irregularity of the name change, and the 1-acre transfer or compensation were raised by the magistrate without prompting. A decision on unpleaded matters is a denial of justice.
Whether the Appellant had locus standi to claim on behalf of the estate of Abele
No; her grant ad litem was over Semo's estate only, and only another administrator of Abele could have continued that claim
Semo was sued personally as a trespasser, so the Appellant was properly joined to defend on his estate. But she could not use the Semo grant to prosecute a counterclaim for Abele's estate. The court also indicated, though the issue was unpleaded, that the counterclaim would have been time-barred, having been filed 33 years after knowledge of the alleged fraud.
Legal principles established
#- A court is bound by the pleadings of the parties and cannot adjudicate on issues or grant relief not pleaded
- Fraud must be strictly proved to a standard above a mere balance of probabilities to impeach a registered title
- An administrator ad litem of one estate cannot use that grant to prosecute a claim on behalf of a different estate
- Once a claimant proves ownership, right to possession and the defendant's entry, the evidential burden shifts to the defendant to justify the entry
Court orders
#- 1.ELCLA No. E041 of 2024 dismissed save for the prayer for setting aside the trial court's orders requiring the Appellant to consider giving the Respondent 1 acre or compensating him
- 2.ELCLA No. E043 of 2024 allowed; judgment of the trial court delivered on 28th May 2024 set aside and substituted with an order dismissing the Appellant's counterclaim and entering judgment for the Respondent
- 3.Permanent injunction restraining Mary Anyango Odhiambo (as legal representative of the estate of Joseph Semo Jabilo) from trespassing on or re-entering Title No. Kisumu/Chiga/1903
- 4.Execution of the injunction stayed for 360 days from the date of the judgment
- 5.The Appellant to remove all structures, vacate and hand over Title No. Kisumu/Chiga/1903 to the Respondent within 360 days, failing which the Respondent may apply for warrants of forcible eviction
- 6.Kshs. 50,000/- as general damages for trespass
- 7.Each party to bear its own costs of the lower court suit
- 8.Godfrey Waweru Okuto to have the costs of the consolidated appeals
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kisumu (Environment and Land)
- Kisumu CMCELC No. 57 of 2020
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the magistrates' court (Environment and Land Court Act)
- Consolidated with
- ELC Appeal No. E043 of 2024 (Godfrey Waweru Okuto v Joseph Semo Jabilo)
Relief refused
#Exemplary and punitive damages
No case made out for exemplary or punitive damages; only general damages awarded, and at a nominal level due to delay
Full/general damages at the claimed Kshs. 9,000,000/-
Respondent slept on his rights, suing 11 years after learning of the trespass; only nominal general damages awarded
Appellant's appeal (E041 of 2024) seeking dismissal of the Respondent's suit and allowance of the counterclaim
Appeal lacked merit except as to the unpleaded 1-acre/compensation order; counterclaim failed on proof, locus standi and limitation
Costs
Each party to bear its own costs of the lower court suit; Godfrey Waweru Okuto to have the costs of the consolidated appeals.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Save for the prayer for the setting aside of the orders of the trial court requiring the Appellant to consider giving the Respondent a portion of the suit property measuring 1 acre or compensating him for the same, ELCLA No. E041 of 2024 is dismissed;
I allow ELCLA No. E043 of 2024. I set aside the judgment of the trial court delivered on 28th May 2024, and substitute it with an order dismissing the Respondent, MARY ANYANGO ODHIAMBO (Suing as the legal representative of the estate of Joseph Semo Jabilo), counterclaim and entering judgment for the Appellant, GODFREY WAWERU OKUTO
Kshs. 50,000/- as general damages for trespass.
Each party shall bear its costs of the lower court suit.
GODFREY WAWERU OKUTO shall have the costs of the consolidated appeals.
Allegation of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.
The court itself is as bound by the pleadings of the parties as they are themselves.
The execution of the order granted in (i) above is stayed for 360 days from the date hereof.
Issues in the judgment
#Duplicate paragraph numbering: two paragraphs numbered 33 and two numbered 35
Delivery date of 28th September 2026 appears inconsistent with the 2024-2025 appeal timeline
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Anyango Odhiambo (Suing as the legal representative of the estate of Joseph Jabilo, Deceased) v Godfrey Waweru Okuto (Consolidated with ELC Appeal No. E043 of 2024: Godfrey Waweru Okuto v Joseph Semo Jabilo)", Case Analysis (2026). ELC Appeal No. E041 of 2024 (Consolidated with ELC Appeal No. E043 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5908/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.