Huria Galgalo v Galgalo Jattani

“22. ………A right can only be protected when it exists in reality and not where it remains an illusion or a mere expectation. Right to property is not one of those rights that inhere to every human being upon birth. They are acquired in different ways after one comes into this world. One cannot acquire property rights over another’s property other than in a manner prescribed in law. In this case the Appellant s’ claim to the suit property was in our view merely aspirational or rhetorical. This is so both under our very progressive Constitution and also under International Law. Indeed other than call in aid International Law, learned counsel Dr. Khaminwa did not cite any specific instrument that the Appellant s can leverage on to elevate the Appellant ’s right to practice and enjoy their culture on the Respondent’s property over the Respondent’s rights under Article 40 of the Constitution. In the absence of any right under the doctrine of legitimate expectation and of any other valid colour of right, the trial court could not have arrived at any other finding. Our conclusion is that the learned Judge arrived at the right decision based on the evidence placed before him, and he cannot be faulted. 4. The subject appeal brings to the fore the question of land ownership and the documentation, if at all, that can be placed before a court of law, in an endeavor to the prove ownership. Put differently, the subject suit turns on whether any other document or heap of documents, would suffice to underpin the claim of ownership. I shall revert to this question, shortly. Page 2 of 26

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5. Before venturing forward, it is apposite to put the facts of this matter in context. The facts are rather straight forward. 6. The facts are: The Respondent, who was the plaintiff in the lower court, claimed ownership of plot number 10 Tulu Roba [suit property]; the Respondent posited that the suit plot was allocated unto him by the county council of Isiolo [now defunct]; the Respondent commenced to pay the rents and rates; the Appellant colluded with [sic] land officials to transfer the land to the Appellant ; the actions of the Appellant and the land officials constituted fraud; the transfer of the suit plot to the Appellant was illegal; and the impugned transfer ought to be cancelled. 7. Additionally, the Respondent posited thus: The Appellant herein was his erstwhile wife; the Appellant and Respondent are divorced; the Appellant colluded with the land officials during the time when the Respondent had been transferred to work at Nyeri; the Respondent discovered the offensive transfer in the year 2023; and the Appellant has no right to the suit property. 8. The Appellant on her part, contended thus: The suit plot belongs to and is registered in her name; the Respondent does not own the suit property; the county council of Isiolo [now defunct] could not transfer the suit plot to the Respondent; the Respondent herein owns plot number 12 Tulu Roba; the said plot constitutes the matrimonial home of the parties; and the Respondent’s suit is legally untenable. In addition, the Appellant also contended that the suit by /on behalf of the Respondent was barred by the limitation of actions act. Page 3 of 26

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9. Premised on the foregoing, the Appellant invited the court to find and hold that the Respondent had no rights to and in respect of the suit plot. The court was invited to dismiss the suit; and to award costs to the Appellant. 10.The suit before the lower court was heard and disposed of vide judgment delivered on the 14.10.2025, wherein the Learned Trial Magistrate [Hon. L Mutai – Chief Magistrate] found and held that the Respondent had proved his case to the requisite standard. In addition, the trial court also held that the transfer of the suit plot and the registration of same in the name of the Appellant was fraudulent. 11.Arising from the foregoing, the trial court proceeded to and entered judgment in favor of the Respondent. Pertinently, the trial court issued a declaration that the Respondent was the lawful and bona fide owner of the suit property; rectification of the records to reflect the name of the Respondent; eviction of the Appellant; and an order of permanent injunction. Furthermore, the trial court also awarded costs and interest, against the Appellant. 12.Aggrieved, the Appellant has now approached this court vide memorandum of appeal dated the 13.11.2025, wherein same has highlighted various grounds. 13. The grounds are: I. The Magistrate erred and misdirected herself on the las and the facts in coming to the conclusion that the Respondent had been allotted or allocated the subject Page 4 of 26

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property by the defunct county council of Isiolo when the was absolutely no evidence of such allocation or allotment. II. That Magistrate erred in law and misdirected herself in failing to appreciate that it would have been impossible for the defunct county council to transfer the suit property to the Appellant when the property has never been in the name of the Respondent. III. The Magistrate misdirected herself on the law and the facts by assuming that the Respondents document dated 17.12.2023 was a letter of allotment or a consent letter when it was merely an application for consent for unknown transaction which purported consent was wholly lacking. IV. That Magistrate further erred and misdirected herself in coming to the conclusion that a miscellaneous rent receipt can constitute sufficient evidence of ownership of land. V. The Magistrate erred in law and misdirected herself on the facts in coming to the conclusion that the allegations of fraud and collusion had been sufficiently proved in the absence of any evidence to prove the same. VI. The Magistrate erred in law by shifting the onus of the proof of ownership of the disputed to the Appellant , who had no initial burden to demonstrate root of title. VII. The Magistrate erred in law and misdirected herself on the facts in failing to appreciate that in the absence of evidence from the defunct county council of Isiolo the Respondent’s claim of entitlement to the suit property was doomed to fail from inception. Page 5 of 26

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VIII. It was a misdirection on the law for the Magistrate to invoke and apply the provision of the land registration act given the subject land was neither registered nor had a certificate of title. IX. The Magistrate exhibited bias against the Appellant ’s case by disregarding final submissions tendered on her behalf, particularly, those involving the Appellant ’s presence of beneficial interest in the suit property. X. The Respondent’s case was a proper case for dismissal and the Magistrate misdirected herself on the law and the facts by deciding in favor of the Respondent. 14.The subject appeal came up for directions on the 30.06.2026, whereupon the counsel for the Appellant intimated to the court that same had filed and served the record of appeal. In addition, learned counsel posited that the record was complete. Thereafter, learned counsel sought directions as pertains to the hearing and disposal of the appeal. Moreover, counsel proposed to have the appeal canvassed by way of written submissions. 15.With the concurrence of the learned counsel for the Respondent, the court proceeded to and issued directions. The directions were: The appeal shall be heard before One judge; the appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of the directions; the Respondent shall file and serve written submissions within 14 days from the date of service; and the Appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. Page 6 of 26

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16. The Appellant filed written submissions dated the 17.07.2026 and wherein same has highlighted six key issues. The issues are: The Respondent did not prove/establish ownership rights to the suit plot; the learned Trial Magistrate misapprehended the evidence on behalf of the Respondent as pertains to the root of title; the Respondent did not prove the plea of fraud to the requisite standard; the learned Trial Magistrate misapprehended the import and tenor of Sections 26 and 80 of the Land Registration Act, 2012 [2016]; and the learned Trial Magistrate grossly misdirected herself on the question of burden and standard of proof, and thus arrived at an erroneous conclusion. 17.Learned counsel for the Appellant has contended that the burden of proving the assertions/allegations contained in the body of the claim, rested on the Respondent. In addition, it was submitted that regarding fraud, the Respondent was obligated to tender cogent evidence. Besides, it was argued that the standard of proving fraud, was neither met, nor discharged. 18.Learned counsel for the Appellant has thereafter cited various decisions to buttress the submissions. The decisions are: Lemarasia versus Eloto and 4 others [2026] KEELC 1306 ; Kinyanjui Kamau versus George Kamau 2015] eKLR; and Vijay Morjoria versus Nansingh Madhusingh Darbar and another [2000] eKLR, respectively. 19.In a nutshell, learned counsel for the Appellant has implored the court to find and hold that the appeal is meritorious. The court has been invited to allow the appeal; set aside the impugned judgment; and to dismiss the Respondent’s suit in the lower court. Page 7 of 26

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20.The Respondent filed written submissions dated the 28.07.2026. The Respondent has highlighted and canvassed four key issues. are: The issues The Respondent duly tendered and produced credible evidence showing ownership of the suit plot; the Appellant colluded with land officials to defraud the Respondent; the Respondent discharged the burden of proof to the requisite standard; and the Appellant ’s claim to the suit plot is predicated on fraudulent and forged documents, inter alia, the letter dated 13.03.2023. 21.Furthermore, learned counsel for the Respondent has submitted that the learned Trial Magistrate correctly evaluated the evidence on record and thereafter, applied the law. To this end, it has been argued that the judgment of the trial court accords with the evidence; and thus, same ought to be affirmed. The court was implored to dismiss the appeal and to award costs to the Respondent. 22.Having reviewed the record of appeal; the pleadings filed by the parties; the impugned judgment; and upon consideration of the written submissions filed by the respective parties, two key [2] issues emerge for determination. The issues are: Whether the Respondent duly proved and established his claim before the trial court or otherwise; and whether the impugned judgment is coloured with material errors, and if so, whether the errors, vitiate the judgment. 23.Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before Page 8 of 26

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me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the findings and conclusion[s] arrived at by the Trial Magistrate, accord with the evidence on record and the legal principles. 24.The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle, which vitiates the findings of the Trial Court. 25.Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked or exercised at will. Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya, regulates its exercise. 26.The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of Odera t/a AJ Odera & Associates v Page 9 of 26

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Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). The Court of Appeal expounded on the scope of the jurisdiction. The court stated thus: “46. We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and reevaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.” 27.Recently, the Court of Appeal revisited the jurisdictional remit in the case of Kenya Urban Roads Authority & another v Belgo Holdings Page 10 of 26

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Limited [2025] KECA 764 (KLR). The Court highlighted the principle in the following manner: “We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the Civil Procedure Act, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the Page 11 of 26

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conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage Page 12 of 26

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of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) and County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) – [paragraphs 56 and 57 thereof]” 28.Back to the issues for determination. I beg to start with the first issue, namely; whether the Respondent proved/established his case before the trial court, to the requisite standard? It is common ground that the burden of proof, that is, the burden of proving the various assertions, contained in the body of the plaint, rested with Respondent. It is imperative to highlight that by virtue of being the plaintiff, the Respondent was chargeable with adducing cogent, plausible, and persuasive evidence, whether documentary or otherwise, before the trial court. Page 13 of 26

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29.In the case of James Muniu Mucheru v National Bank of Kenya Limited [2019] KECA 1058 (KLR), the court of appeal reaffirmed the legal position pertaining to burden and standard of proof. 30. The court stated thus: “19. In Karugi & Another v Kabiya & 3 Others [1987] KLR 347, this Court held that the burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. 20. In that regard, before a trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities, the court must be satisfied that the plaintiff has adduced some credible and believable evidence which can stand in the absence of rebuttal evidence by the defendant. The plaintiff must adduce evidence, which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities proves the claim. 21. The Supreme Court of Uganda in Departed Asians Property Custodian Board v Issa Bukenya t/a New Mars Ware House, CA No 26 of 1992 stated as follows: “…It must be understood that the evidence led is such, that without contradiction by the Defendant, it is sufficient to prove the claim. It is not necessary that the facts alleged should be queried, but the facts alleged must be full and accurate enough to support the plaint…” 31.Did the Respondent prove his case? The Respondent’s case in the lower court was three – pronged. Firstly, the Respondent contended that the suit plot was duly allocated to him by the county council of Isiolo [now defunct]. Secondly, the Respondent posited that he was the lawful owner of the suit property. Thirdly, it was the Respondent’s case that his Page 14 of 26

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ownership rights to the suit plot, were fraudulently interfered with the collusion of land officials. Simply put, the Respondent impleaded fraud. 32.Having made the foregoing assertions, the Respondent was obligated to prove each and every aspect of his claim. I shall start with the aspect of allocation. The Respondent posited that the suit plot was allocated to him by the county council of Isiolo [now defunct]. To this end, it was incumbent upon the Respondent to tender and produce before the court assorted documents bespeaking allotment. The documents that would underpin allotment include: An application letter to be allocated land; the minutes of the council of Isiolo – [now defunct] recommending allotment; the letter of no objection to the commissioner of land [ now defunct]; the duly approved part development plan [PDP]; and a letter of allotment [if any] issued by the commissioner of lands. 33.It is common ground that the allotment of land, during the period before the promulgation of the Constitution 2010, rested with the commissioner of lands. Regarding land that fell within the domicile of local authorities, the county council of Isiolo, not excepted, the Land/ Plots, were to be allocated subject to the provisions of Section 53 of Trust Land Act, Chapter 288 [now repealed], as read together with Section 114 to 117 of the Retired Constitution. 34.Moreover, the process attendant to allotment of land, which fell within the purview of the Trust Land Act [now repealed], has been subject of various decisions of the court. The decisions include: Rinya Hospital Limited V Awendo Town Council & 21 others [2010] KEHC 1008 (KLR); Funzi Island Development Ltd & 2 others Page 15 of 26

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v County Council of Kwale & 2 others [2014] KECA 882 (KLR; and Ethics and Anti-Corruption Commission v. Eunice N. Mugalia & Sammy Silas Komen Mwaita, Kisumu Court of Appeal, Civil Appeal No. 39 of 2019, [Unreported]. 35.In the case of Ethics and Anti-Corruption Commission v. Eunice N. Mugalia & Sammy Silas Komen Mwaita, [supra], the court of appeal stated thus: “32. The first Respondent was purportedly allocated government land under the Government Lands Act and was to be issued with a certificate of lease in the form of a grant under the Registration of Titles Act. How a government grant that was issued and accepted by the 1st Respondent under the Government Lands Act, pursuant to which the government was to be the lessor, changed to be the lease under the Registered Land Act under which the municipal council of Kakamega became the lessee is a mystery. As we have already stated, the government land act vested in the president and the commissioner of lands power to alienate government land as long as the procedure laid out in the act was followed. Trust land act on the other hand vested in the county council the power to alienate the land in their respective counties and the commissioner of lands had no power to alienate the same save as directed by the county council through a resolution. In the circumstances, we do not see how the letter of allotment dated 31st July 1998 under which the commissioner of lands offered to the 1st Respondent a grant of the government land could have given rise to the lease dated 2nd June 2000 of trust land that was vested in the municipal council of Kakamega. So under what Page 16 of 26

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regime of the law was the commissioner of lands acting when he alienated the suit property? We ask this question because the two legal regimes, that is, the government lands act and the trust land act have different processes as regards to alienation of land”. [Underlining Supplied]. 36.I have reviewed the totality of the documents [exhibits] that were tendered by /on behalf of the Respondent. It is apparent that the Respondent did not tender any document to show allotment of the suit plot, unto him. Surely, one cannot purport to have been allocated or allotted a plot by the county council of Isiolo [now defunct], in the absence of the requisite minutes; and in the absence of the letter of allotment. 37.To my mind, when a person speaks to allotment of a particular plot, what comes to mind, is that the person has procured and obtained the letter of allotment. Suffice it to underscore, that allotment of plots, is vindicated vide a valid letter of allotment, issued by the authorized office. Absent a letter of allotment, I am at pains to understand, the assertion by the Respondent that same was [sic] allocated the suit plot. 38.The next aspect that required proof by the Respondent was ownership of the suit property. I beg to highlight that even if the Respondent had adduced a letter of allotment [which is not the case], such a letter of allotment, does not by and of itself, confer ownership rights. Page 17 of 26

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39.In the case of Wreck Motor Enterprises v Commissioner of Lands & 3 others [1997] KECA 391 (KLR), the Court of Appeal underscored how ownership rights accrue in respect of landed properties, particularly, those that flow from allotment. “Title to landed property normally comes into existence after issuance of a letter of allotment, meeting the conditions stated in such a letter and actual issuance thereafter of title document pursuant to provisions held. See Dr. Joseph N.K. Arap Ng'ok v Justice Moijo ole Keiwua & 4 Others, Civil Application No. NAI.60 of 1997 (unreported).” 40.The question is, where is the document of ownership, to vindicate the assertion that the Respondent is [sic]; the bona fide lawful owner of the suit property, as posited vide paragraph 4 of the plaint. 41.I remind my self that proof of ownership of landed property, particularly, those whose acquisition was governed by the Trust Land Act; and the Government Land Act [both now repealed], is traceable to valid letter of allotment; lease instruments; certificate of lease; or certificate of title. In the absence of the appropriate documents, I don’t understand how one, let alone the Respondent, can claim [sic] ownership. 42.Crucially, it suffices to state that proof of ownership of land, is governed by the relevant legal regime, depending on the nature of the land. For example, if the land in question fell under the Trust Land Act [now repealed], one cannot lay claim to ownership on the basis of [sic] a letter Page 18 of 26

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of confirmation of ownership issued under the Land Adjudication Act, Chapter 284, Laws of Kenya. 43.What I am saying is to the effect that one cannot just bring to court assorted documents or pieces of paper; and thus, persuade a court of law, that same deserves to be declared the owner. Surely, it behooves the court of law to interrogate the legality of the documents [Pieces of paper] and juxtapose same against the relevant legal regime. I repeat, ownership of land, is dependent on the applicable legal regime and must be based on valid documents. 44.I do not wish to belabor the point. The only thing I wish to add is that the Respondent did not tender any legal or valid document, to underpin the plea of ownership. Simply put, the plea of ownership was mounted in vacuum. 45.The final aspect, which required proof was the plea of fraud. The Respondent had contended that the Appellant colluded with [sic] unnamed land officials and thereafter transferred the suit plot to and in favor of the Appellant. The Respondent thereafter, supplied the particulars of fraud vide paragraph 9 of the plaint. 46. Having made the assertions of fraud, one would have expected the Respondent to clearly point out, who are these [sic] Land Officials [sic] who colluded with the Appellant; where are they based; are they based at the County Government offices; or are they based at the ministry of land – Isiolo. Page 19 of 26

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47.It is important to highlight that one cannot make accusations of fraud at large, without the requisite specificity. The Respondent needed to be clear, in his pleadings, as to the perpetrators of [sic] the fraud. It was not enough to make the assertion[s] in the body of the plaint, and so to speak, throw it on the face of the court. Such kind of endeavors fail the threshold stipulated vide Order 2 Rule 10 of the Civil Procedure Rules, 2010. To my mind, vague assertions, cannot suffice. 48.Again, before the Respondent could prove that ownership rights were changed from [sic] his name unto the name of the Appellant, the Respondent needed to show via evidence that the suit plot, previously was registered in his name. I am afraid that none was tendered before the court. For good measure, the purported consent for controlled transaction [P Exhibit 1], does not suffice to show ownership. 49.When an assertion of fraud is made or raised, the claimant must not throw the assertion. It is trite law that such assertions must not be vague. But above all, such assertions must be proven to the requisite standard, namely; the intermediate standard. 50.In the case of Kiarie & 2 others v Magera [2018] KECA 467 (KLR), the court appeal discussed not only the manner of pleading fraud, but also the process attendant to proving fraud; and the applicable standard. 51. The court stated thus: “25. ……The law is clear and we take it from the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the Page 20 of 26

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pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” [Emphasis added].The same procedure goes for allegations of misrepresentation and illegality. See Order 2 Rule 4 of the Civil Procedure Rules. 26.As regards the standard of proof, this Court in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR expressed itself as follows;-“…It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008) 1 KLR (G & F) 742 wherein the Court stated that: “...We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases...”...In cases where fraud is alleged, it is not enough to simply infer fraud from the facts." 52.In my humble view, the Respondent did not prove fraud to the requisite standard. In any event, the plea of fraud, was being raised at large, against unnamed; and faceless land officials, who are said to have [sic] colluded with the Appellant. 53.My answer to issue number one is three – fold. Firstly, the Respondent did not demonstrate that same was dully allocated the suit plot. I repeat, allotment/allocation, can only be spoken to on the face of a letter of allotment. Page 21 of 26

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54.Secondly, the Respondent did not prove ownership of the suit plot. For the umpteenth time, I underscore that proof of ownership of land is dependent on valid legal documents/instruments, known to law. Not any heap/bundle of documents, would suffice. [See the holding in the Case of Wreck Motors Enterprises Limited versus Commissioner of Lands and Others [1997] eklr] 55.Thirdly, the plea of fraud was not proven. It suffices to reiterate that fraud cannot be deemed as proved, on the basis of mere allegations. The Respondent needed to do more, including, supplying clear, and not vague, particulars. 56.I now wish to turn to the second issue. The issue relates to whether the judgment of the learned Trial Magistrate is coloured with errors, and if so, whether the errors vitiate the judgment. The starting point, is to underscore that judgment[s] rendered by the court, ought to identify the correct issues for determination; identify the correct and relevant law; and most importantly, to apply the applicable law to the factual matrix/controversy. 57.Where a court of law does not identify the relevant and applicable legal regime, then the outcome, would no doubt be a nullity. In respect of the instant matter, the learned Trial Magistrate referenced and invoked the provisions of Section 26 And 80 of the Land Registration Act, 2012 [2016] and thereafter applied same to the dispute beforehand. However, what escaped the judicial mind of the trial court was that the suit plot, had not been registered in line with the Land Registration Act, 2012 [2016]. Page 22 of 26

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To this end, the provisions of the law that were applied, were clearly inapplicable. 58.Additionally, the learned Trial Magistrate misconstrued the legal meaning and tenor of allotment and bona fide legal owner. In particular, the learned Trial Magistrate proceeded to and found that the suit plot had been duly allocated to the Respondent, even though, there was no letter of allotment. The question that does come to mind is, what is the basis of that finding? 59.Moreover, the learned Trial Magistrate decreed that the Respondent is the lawful bona fide owner of the suit property. I am left wondering as to the foundation of that finding, bearing in mind the hackneyed ratio in the case of Wreck Motor Enterprises v Commissioner of Lands & 3 others [1997] KECA 391 (KLR). 60.Further, and in any event, there is no gainsaying that the Respondent conceded during cross examination that same [Respondent], did not have the plot registration documents. So, how does he [Respondent] become the lawful owner. 61.It would be remiss of me not to highlight the aspect touching on revenue receipts [miscellaneous receipts]. There is a growing concern because certain judicial officers, the trial court not excepted, perceive such receipts as evidence/proof of ownership of land. For good measure, receipts and payment requests from the county councils and the county governments, do not amount to proof of ownership. Page 23 of 26

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62.I have said enough, to show that the impugned judgment is indeed coloured with fundamental errors. In particular, the judgment under reference, can very well be construed to have [sic] “allocated” the suit plot to the Respondent; and “conferred title” to the Respondent, without due regard to inter alia, Section 7 of the Land Act, 2012 [2016]. 63.Before concluding on this issue, there is the aspect where the learned Trial Magistrate condemned the Appellant to pay costs of the suit and interest. The order as pertains to costs, was being made, even though the facts of the case showed that the Appellant and the Respondent, were erstwhile spouses. 64. Moreover, it is common ground that the two have children together and thus same are [sic] still related. It is settled law that where the parties are related, courts of law ought to exercise discretion on the question of costs. A spouse or former spouse, can only be condemned with costs, where exceptional circumstances are shown. None existed in this matter. 65.Furthermore, the learned Trial Magistrate also decreed interests on costs. No such prayer was sought at the foot of plaint. Quite clearly, the award of interest on costs does not bode well with Section 26 of the Civil Procedure Act, Chapter 21, Laws of Kenya. In any event, the award appears to have been plucked from the blues. It is a serious error, on the part of the trial court. 66.With respect, the errors which color the impugn judgment, vitiate same. The judgment is therefore assailable. Page 24 of 26

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Conclusion 67.The Appellant herein was chargeable with the obligation of demonstrating that the impugned judgment was colored with misapprehension and misapplication of the law to the facts/evidence. In addition, it was the duty of the Appellant to demonstrate the error[s] if any, in the impugned judgment. 68.While addressing the thematic issues, in the body of the judgment, various error[s]; misapprehensions; and misapplication of the law, have been highlighted and addressed. The net effect of the errors, is such that the impugned judgment is, with respect, not tenable. 69.In the premises, and bearing in mind, the settled principles in the case of Jabane versus Olenja [1986] eKLR, I am minded to and do hereby, interfere with the impugned judgment. Final orders: 70.Pulling the threads together, the final orders that commend themselves to the court are: i. The Appeal be and is hereby Allowed. ii. The impugned Judgment dated the 14.10.2025 and the consequential decree, be and are hereby set aside. iii. In lieu thereof, an order be and is hereby made dismissing the Respondent’s suit vide Plaint dated the 09.05.2023. iv. Each party shall bear own costs of the Appeal. v. Each party shall also bear own costs of the proceedings in the lower court. 71.It is so ordered. DATED, SIGNED AND DELIVERED AT ISIOLO ON THIS Page 25 of 26

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17TH DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of: Court Assistant: Zakayo /Mukami Mr. Mwirigi Mbaya for the Appellant Mr. Kitheka for the Respondent Page 26 of 26

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