Odongo v Sati (Environment and Land Appeal E062 of 2021) [2025] KEELC 8100 (KLR)

3 The record of appeal dated 18th October, 2024 shows that the suit which had at the first instance been filed in the Environment and Land Court at Kisumu as KISUMU ELC CASE NO 279 OF 2017, was transferred to the Chief Magistrate’s court and heard thereat. Vide the judgement dated 27th July, 2021, the trial court found that the Respondent had proved his case on a balance of probabilities and entered judgement in his favour as prayed in the plaint against the Appellant and the 1st and 3rd Defendants. The appeal 4 Dissatisfied with the judgement, the Appellant filed the present appeal vide the Memorandum of Appeal dated 26th August, 2021 and sought for orders that the entire judgement delivered by Hon. R.K. Ondieki on 27th July, 2021 be set aside, that the court be pleased to find that the Appellant is the absolute owner of the whole of parcel of land known as KISUMU/DAGO/595 and an order for permanent injunction stopping the Respondent from encroaching on the said parcel of land, costs of the suit and of the appeal. The grounds of appeal are that: 1. the learned trial Magistrate grossly erred in making contradictory findings on the issues before him. 2. the learned trial Magistrate grossly erred in law and fact in failing to address his mind on the case presented by the Plaintifi and fully analysing the evidence he presented in coming to a conclusion that would be fair and just. 3. the learned trial Magistrate grossly erred in law and fact in quickly putting the 2nd Defendant/ Appellant without considering whether the Plaintifi had proved his case on a balance of probabilities. 4. the learned trial Magistrate erred in law and fact in allowing the case to proceed without the participation of the 3rd Defendant which was key in helping the trial court come to a just conclusion. 5. the learned Magistrate erred in law and in fact in failing to properly evaluate the entire evidence and law as required by the law when dealing with the matter placed before him. 6. the Honourable Magistrate of the lower court erred in law and fact in failing to properly interpret laws that were relied on by parties. 7. the Honourable Magistrate of the high court erred in law and fact in finding that the counterclaim was unmeritorious. 8. the Honourable Magistrate erred in law and fact in finding that the 2nd Defendant/Appellant had no case when he rightfully purchased the parcel of land from persons whom legally had the title to the said parcel of land at the time of purchase. 9. the Honourable Magistrate erred in law and fact in finding that the Appellant’s title ought to be cancelled and that the title should revert back to the Plaintifi when the same was acquired legally. 10. that the Honourable Magistrate erred in law and fact in finding that the Appellant acquired the title fraudulently yet the Appellant adduced all evidence to demonstrate that the same was done legally. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8100/eng@2025-11-20 2

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11. The Honourable Magistrate was totally biased against the Appellant and gave judgement against the weight of the evidence. 12. the learned trial Magistrate grossly erred in making findings not based on any evidence before him as the final orders of the Magistrate have accessioned a miscarriage of justice. Written submissions 5 The appeal was heard by way of written submission. Written submissions dated 5th June, 2025 were filed on behalf of the Appellant by Ben Oduol Nyanga & Company Advocates. Written submissions dated 20th October, 2025 were filed by the firm of Maxwell O. Ogonda & Associates Advocates on behalf of the Respondent. Issues for determination 6 Although the Memorandum of Appeal listed 12 grounds of appeal, the issues that emerge for determination are; a. whether the appeal is incompetent; b. whether the trial court erred in fact and in law in granting the relief of revocation of the land certificate issued to Maxwell Odongo Otieno. c. Whether the trial court erred in fact and in law by shifting the burden of proof on the allegations of fraud to the Defendant in the main suit. d. Who should bear the costs of the suit? Analysis and determination 7 This being a first appeal, this court has a duty to re-examine and re-analyse the evidence placed before the trial court and draw its own conclusions. In Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123 it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It stated that an appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefiy put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.” 8 The first issue for determination is whether the appeal is incompetent. It was submitted on behalf of the Respondent that the appeal is incompetent because the record of appeal was incomplete as it did not contain a copy of the judgement and decree appealed against. Order 42 Rule 13(4) provides what should be on the court record before the appeal goes for hearing. The proviso thereto makes it mandatory for the judgement appealed against to be on the court record before the appeal is heard. I have keenly perused the record of appeal and the lower court file. Items numbers 18 and 19 of the table of contents of the record of appeal are judgement and decree respectively. However, the copy of the judgement on pages 98 to 107 of the record is not certified. The lower court file forwarded to this court has a duly certified copy of the judgement and decree. As these documents are before this court and to do substantive justice the court finds that the appeal is not incompetent. 9 The second issue for determination is whether or not the trial court erred in fact and in law in granting the relief of revocation of the land certificate issued to Maxwell Odongo Otieno. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8100/eng@2025-11-20 3

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10 One of the prayers sought in the plaint dated 6th September, 2017 was for an order revoking land certificates issued to Fredrick Onyango Olare and Maxwell Otieno Odongo and an order directing the District Land Registrar, Kisumu to issue a fresh title deed in respect of Land parcel No. Kisumu/ dago/595 in the names of Sati Sati, Angienda Olare and Ouko Mbona as proprietors in common. 11 In paragraph 14 of the plaint, the Respondent pleaded that fraud had been committed by the Appellant and the 1st Defendant in complicity with the 3rd Defendant. He pleaded that it was apparent that there is a possibility of a parallel Green Card in respect of the land parcel No. KISUMU/ DAGO/595 giving birth to a parallel title as entry No.10 in the name of the 2nd Defendant. He pleaded further in paragraphs 16 and 17 of the plaint that the Appellant and the 2nd Defendant had colluded with the 3rd Defendant to dispossess the 1st Respondent of the ownership of the said land parcel. That the actions of the Appellant and the 2nd and 3rd Defendants were wrong, malicious, illegal, fraudulent and ill-intentioned. 12 In a bid to prove these allegations, the Respondent testified as PW1. He relied on the contents of his witness statement. He claimed that he was the registered owner of the suit land. That the land was registered in his name jointly with his brothers. That the rest of the registered owners had died. He produced a copy of register (Green card) as exhibit to show this. 13 He denied knowledge of the Appellant. He denied receipt of Kshs.200,000/- from the Appellant. He prayed that the Appellant’s title be revoked and the land be returned to him. 14 On the other hand, the Appellant through his statement of defence and counterclaim denied the Respondent’s claim. He averred that the Respondent had never been in lawful occupation of the suit land. By way of counterclaim the appellant claimed that the Defendants in the counterclaim and their agents or assigns had trespassed on the Appellant’s parcel of land and made it impossible/dificult for the Appellant to fully utilize the land. He therefore sought redress against them. 15 The Appellant testified as DW2 adopting the contents of his witness statement in which he stated that he was the registered owner of the suit land after purchasing if from Girish Keshavlal Mehta and Ramesh Chunilal Mehta who were the then registered owners. That he followed the set out guidelines and had the land registered in his name and title deed issued to him on 18th December, 1986. 16 That in February, 2012, it came to his attention that there were persons who were unknown to him who had encroached on the suit land. That he discovered upon inquiry that it was the Respondent who had encroached onto the land using a proxy by the name of Ondeng’e Olare who had become a squatter on the land. 17 That the Appellant approached them and told them that the land belonged to him. That Ondeng’e Olare agreed to leave. That they asked for money for resettlement. That he entered into an agreement dated 27th day of March 2012 wherein he paid the Respondent Kshs 200,000 who thereafter failed to leave the land but instead filed the suit claiming ownership of the land. 18 The Appellant produced the title deed dated 18th December, 1986, Agreement dated 27th March, 2012, Agreement dated 22nd July, 1985, caveat emptor notice and transfer of land dated 28th November, 1986 and duly registered. 19 The record shows that upon hearing the evidence placed before it, the trial court found that it was evident from the green cards produced as exhibits 2 and 4 that they do not show how the property came to be registered in the name of Girish Keshavlal Patel and Ramesh Chunilal Mehta yet the Appellant stated that he purchased the suit property from them. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8100/eng@2025-11-20 4

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20 That the first registered owner having denied selling the land to Girish Kashavlal Patel and Remesh Chunilal Mehta, the burden of proof had shifted to the Appellant to demonstrated that he had purchased the land from the 1st registered owner. The court found that the transaction had not been proved and proceeded to make an order revoking the land certificate issued to the Appellant. 21 The Appellant faults the trial court for these findings and decision. 22 It was submitted on behalf of the Appellant that the Appellant provided evidence before the court to wit; a transfer of land between Girish Kashavlal Patel and Kamesh Chunilal Mehta on the one hand and the Appellant on the other hand dated 28th November, 1986 and a land certificate for the suit land in his name. 23 That the Respondent had always been aware of the Appellant’s rights over the suit land as evidenced by the agreement dated 27th March, 2012 produced as exhibit. 24 That the Appellant’s rights were recognized by section 143(1) of the Registered Land Act (Cap 300) repealed and section 26 of the Land Registration Act. 25 Relying on the case Karin Anne Challis -vs- The Hon. Attorney General & 6 Others [2002]eKLR, Counsel submitted that in a case where a party requires a cancellation or rectification or an amendment of a title, such a party must specifically pleaded such relief before a court of law can grant it. 26 That title to land is sacrosanct and indefeasible and can only be challenged on grounds of fraud and misrepresentation. 27 That it was the Plaintifi in the main suit (the Respondent herein) who had the burden of specifically proving the alleged fraud to warrant the grant fn the relief of revocation of the title to the suit land in the name of the Appellant. Counsel relied on the case of Orieny & Another -vs- National Bank of Kenya (Civil Appeal E016 of 2023 [2024]KEHC 6002 (KLR) Counsel submitted that the principles to be met for the allegation of fraud to be admitted by a court of law are that; a. an allegation of fraud must be specifically pleaded and proved b. the burden of proof of all allegations of fraud is on the person alleging, and c. the burden of proof of allegation of fraud is higher than that required in civil cases, that of proof on a balance of probabilities and lower than that required in criminal cases that is beyond reasonable doubt. 28 Counsel submitted that the Respondent did not prove fraud, misrepresented or illegal and unprocedural acquisition of the land certificate for the suit land. 29 That the trial court erred in fact and in law by granting the relief of the revocation of the land certificate issued to the Appellant. 30 On behalf of the Respondent it was submitted that the trial Magistrate correctly evaluated the evidence that was adduced before him and arrived at a sound determination of the issues before him. 31 That the Respondent and his witnesses were clear about the history of the land. That they demonstrated that the Respondent had never sold the land and that all the entries made in the green card in reference to the suit parcel of land were tainted with an illegality. 32 That the Respondent was able to demonstrate that ownership of title as provided in section 26 of the Land Registration Act is not absolute when the same is obtained by means of fraud or misrepresentation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8100/eng@2025-11-20 5

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33 Counsel relied on the case of Dina Management Limited -vs- County Government of Mombasa & 5 Others (Pet 8(E010) OF 2021 [2023] KESC 30(KLR) where it was held inter alia that if the 1st registered owner did not acquire title regularly, the ownership of the property by the Appellant thereafter cannot be protected by article 40 of the Constitution. That the root of the title having been challenged, the Appellant could not benefit from the doctrine of bona fide purchaser. 34 Counsel also relied on the cases of Sehmi & Another -vs- Tababana Company Limited & 5 Others (Petition E022 of 2023) [2025] KESC 21 9 KLR (11 April 225) Judgement____ and Frank Logistics Limited -vs- Golden Lion Real Estate Company & 6 Others [2025] KECA 1471 (KLR) where it was held partly that the Defendant’s title was ripe for cancellation as it was in confiict with the legal regime under which the suit property was held and registered. 35 Counsel urged the court to dismiss the appeal with costs. 36 The grounds upon which title to land can be revoked and/or cancelled are provided for in sections 26 of the Land Registration Act that title to land shall not be subject to challenge except: a. on grounds of fraud or misrepresentation to which the person is proved to be a party; or b. where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 37 Section 80 of the same Act provides that the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. Section 80(2) provides that; 38 The register shall not be rectified to afiect the title of a proprietor unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought or caused such omission fraud or mistake or substantially contributed to it by any act.” 39 The allegation that the suit land was registered in the name of the Appellant by fraud was made by the Respondent. The plaint contains no particulars of fraud. The law required the Respondent in addition to alleging fraud to itemize particulars thereof. 40 Order 2 Rule 10(1)(a) requires every pleading to contain particulars of misrepresentation, fraud, breach of trust wilful default or undue infiuence on which the party’s pleading relies. 41 No specific fraudulent acts or omissions were pointed out either in the plaint or the evidence or proved against the Appellant. Although the Respondent claimed that the Defendants in the suit had unlawfully colluded to dispossess him of the land, no evidence of such collusion was produced. There was also no evidence of the existence of parallel green cards or registers in respect of the suit land as claimed by the Respondent. There was no evidence that the appellant participated or had knowledge of any fraudulent acts or omissions relating to transfer of the suit land. 42 The Plaintifi (Respondent herein) produced two difierent copies of registers (green cards) in respect of the suit land as exhibit P.2 and P4 respectively. 43 Exhibit P.2 ends at entry No.7 which is issuance of land certificate to Fredrick Omedo Olare on 28th March, 1980. Exhibit P.2 shows that the first registered owners of the suit land were Angienda Olare, Ouko Mbona and the Respondent herein who was a minor and Opiyo Sasi was his Guardian. The green card shows that the land was registered in their names on 22nd October, 1997 when the register in respect thereof was opened. The green card further shows that the three persons held the land as tenants in common at 1/3 undivided share each. The green card, exhibit P.2, further showed that on https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8100/eng@2025-11-20 6

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18th February, 1980 the land was registered in the name of Angienda Olare alone and Land Certificate issued to him the same day. It further shows that the land was later registered in the name of Fredrick Omedo Olare on 27th March, 1980. 44 The consideration or process that led to the land changing hands is not indicated on the green card. It is not shown whether it was by transfer, gift or transmission. 45 Exhibit P.2 has no certification on it by the Land Registrar or oficer who issued it as a true copy of the original or anything to show that it originated from the land registry. 46 The green card produced as exhibited P.4 ends at entry No.9. Entry numbers 1 to 3 thereof are the registration of the land in the names of the 3 persons including the Respondent who was a minor and Opiyo Sati as his guardian which was made on 23rd October, 1973 when the register was opened. It showed that the 3 persons were to hold the land as tenants in common at 1/3 undivided share each. 47 Entries numbers 4 and 5 made on 16th February, 1980 were for the registration of the land in the name of Angienda Olare to hold 1/3 undivided share and Maurice Sati Sati to hold 2/3 undivided share. The process by which this happened is indicated on the green card to have been through succession. 48 Entry No.6 made on 27th March, 1980 is in favour of Joseph Angienda Olare to hold 1/3 undivided share. 49 Entry No.7 shows that certificate of title was issued on 28th March, 1980. Entry No.8 is in favour of Girish Keshavlal Patel & Ramesh Chunilal Mehta at consideration of Kshs.28,000/- and entry No.9 shows that Land Certificate was issued to them on 3rd April, 1980. 50 The green card produced as exhibit P.4 was certified as true copy by the Land Registrar on 25th March, 2012. 51 By 3rd April, 1980, the land left the hands of the Respondent and his co-owners and was transferred to the names of Girish Kashavlal Patel and Ramesh Chunilal Mehta at a consideration of Kshs 28,000. This was confirmed by exhibit P.4. 52 Under section 26 of the Land Registration Act a certified copy of any registered instrument, signed by the Registrar and sealed with the seal of the Registrar shall be received in evidence in the same manner as the original. 53 The Appellant explained how he got the land registered in his name. He produced a land sale agreement between him and the then registered owners. He produced a transfer form duly signed by the then registered owners for the transfer of land in his favour for a consideration of Kshs 220,000/-. 54 The Respondent did not sue Girish Keshavlal Patel and Ramesh Chunilal Mehta who are the people to whom the land was transferred from the Respondent and his co-owners. 55 The record shows that the Appellant produced an agreement signed between him and the 1st Respondent wherein the Respondent was paid Kshs.200,000/- which was compensation to enable the Respondent and all those claiming the land through him to move out of the land. Though the Respondent denied receiving the said money, he acknowledged receipt of Kshs.60,000/- which he claimed was for campaign. 56 I find that no fraud or misrepresentation was not proved hence there was no ground disclosed for cancellation of the title. 57 The trial court thus erred in fact and in law in granting the relief of revocation of the land certificate issued to Maxwell Odongo Otieno. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8100/eng@2025-11-20 7

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58 The third issue for determination is whether or not the trial court erred in shifting the burden of proof to the Appellant. 59 Section 107 of the Evidence Act places the burden of proof on the person who asserts. The Respondent had the duty to prove fraud and all the assertions forming the basis of his claim. The Appellant on the other hand as far as the counterclaim was concerned had the duty to prove that he had good title to the suit land onto which he claimed the Respondent had trespassed. 60 The Appellant discharged the burden of proof. He produced documents showing how he acquired the land. It was not denied that the respondent and the defendants in the counter claim were interfering with the suit land hence the need for an order of injunction. Costs 61 Under section 27 of the Civil Procedure Act, costs of any action or other matter or issue follow the event unless the court for good reason otherwise orders. Conclusion 62 For the foregoing reasons, the court finds that the appeal has merit and hereby allows it as follows; i. The judgement of the trial court is set aside and substituted with a judgement dismissing the suit and allowing the counter claim. ii. Each party to bear own costs of the suit and the counter claim. iii. Costs of the appeal are awarded to the appellant. Orders accordingly. JUDGEMENT DATED AND SIGNED AT KISUMU AND DELIVERED VIRTUALLY THIS 20TH DAY OF NOVEMBER, 2025. E. ASATI JUDGE. In the presence of: Maureen: Court Assistant. Ochieng for the Appellant Ogonda for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8100/eng@2025-11-20 8

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