Evans Momanyi v Rosemary Khisa Simiyu (Suing as an Administrator of the Estate of Muchungi Mangara Nabibia) & 2 Others

upon which he seeks to upset the judgment and decree of the lower court are that the learned magistrate fell into error in law and in fact by: (i) Delivering a judgment that was not supported by the evidence tendered. (ii) Holding that the appellant had not proved his counterclaim to the required standards as against the 1st respondent. (iii) Disregarding the submissions made by the appellant and the judicial authorities cited. (iv) Failing to appreciate and consider the evidence produced by the appellant and thereby arriving at a wrong decision. 3. The appellant thus urged the court to allow the appeal, and to set aside the judgment and decree of the trial court and to substitute therefor with a judgment allowing the appellant’s suit as prayed in the lower court. The appellant equally urged the court to award him costs of the appeal and in the lower court, to be borne by the 1st respondent 4. Directions were taken that the appeal be argued by way of written submissions. It is worth mentioning for clarity of the court record that this appeal proceeded as between the appellant and the 1st respondent, JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 2

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who filed their submissions dated 8/6/2026 and 30/5/2026, respectively. 5. In his submissions through Mr. Teti Advocate, the appellant contended the trial court delivered a judgment which was completely unsupported by the evidence on record and ignored a fatal default by the deceased allottee. The appellant stated that a careful review of the trial evidence as set out in the 1 st defendant’s submissions at pages 48 to 87 of the Record of Appeal reveals that the suit land was conditionally allocated to Muchungi Mangara Nabibia, who only paid a 10% deposit and executed a charge document on 15/1/2988 to secure a principal settlement loan of Kshs. 6,100/=. The appellant further contended that under Clauses 1, 2, and 3 of the charge, the deceased was strictly obligated to repay the principal amount in 56 consecutive halfyearly instalments of Kshs.238/= until payment in full. 6. Counsel further stated that the 2 nd and 3rd respondents, through evidence produced by DW2, completely dismantled the 1st respondent’s claims. That DW2 produced the official Settlement Fund Trust master file which showed 9 separate statutory JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 3

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demand notices issued to the deceased, going back to 1989 and all the way to 2019. Counsel’s argument is that those public documents proved that the late Muchungi Mangara Nabibia never paid a single shilling towards the loan balance after his initial 10% deposit in 1988. 7. Mr. Teti further referred the court to DW2’s Exhibit 3 comprising an official ground status report which was compiled on 14/11/2019, which report showed that the land was completely vacant, unfenced, uncultivated and bushy. Counsel’s submissions are that this state of affairs contravened Condition 1(c) of the original letter of allotment, which required the allottee to, within 6 months of taking possession, cultivate at least one acre, build a suitable dwelling house, and erect a perimeter fence. 8. The appellant further submitted through counsel that the trial court shifted the burden of proof and held that fraud was established without strict proof. Counsel contended that by the trial court treating the Settlement Fund Trust’s everyday administrative procedure of repossessing abandoned parcels as a ‘fraudulent scheme’, the court lowered the evidentiary threshold of fraud to zero, thereby JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 4

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arriving at an erroneous finding. Counsel cited the case of Kaseve Welfare Society vs Harp Housing Limited [2020] eKLR, for the proposition that allegations of fraud or proprietary manipulation cannot be sustained on speculation, rumours or weak inferences. 9. The appellant further faulted the trial court for dismissing the counterclaim and failing to find that an unperfected letter of allotment cannot defeat a registered title with good root. The appellant argued that by making an order for cancellation of the appellant’s title and causing the property to revert to the deceased’s estate, the court violated established land law. Learned counsel for the appellant cited the case of Torino Enterprises Limited vs Attorney General 2023] KESA 79[KLR], in which the Supreme Court held that a letter of allotment in, and of itself, did not confer a transferable title on the allottee. Counsel equally cited Sections 25 and 26 of the Land Registration Act, on the principle of absolute proprietorship and indefeasibility of title. 10. On the other hand, the 1st respondent, through counsel on record, submitted that the trial court considered all the evidence adduced and counsel’s JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 5

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submissions and arrived at a just conclusion and that there is nothing on which to fault the learned trial magistrate. Counsel thus urged the court to find that the appeal lacks merit and to dismiss it with costs. 11. The learned counsel further submitted that the trial court was satisfied of fraud as the purported notices of default sent by the Settlement Fund Trustees were sent on 15/8/2019 and cancellation done on 10/2/2020 long after the allottee had passed on in 2009. 12. This being the first appeal, I am required under Section 78 of the Civil Procedure Act to re-assess, re-analyze and re-evaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified. 13. In the case of Selle vs Associated Motor Boat Co. Ltd [1969] EA 123, Sir Clement De Lestang rendered himself as follows: “This court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so, it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this court is not JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 6

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bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 14. The duty of the first appellate court was also extensively discussed by the Court of Appeal for East Africa in the case of Peters vs Sunday Post Limited [1958] EA 424 in which the court held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles: “(i) First, on first appeal, the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusion; (ii) In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses as they testify before her; and (iii) It is not open to the first appellate court to review the findings of a trial court simply because it would have reached JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 7

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different results if it were hearing the matter for the first time.” 15. Turning to the matter before the trial court, Rosemary Khisa Simiyu moved this court in her capacity as the administrator of the estate of the deceased, Muchungi Mangara Nabibia, who was her husband. She filed an amended plaint dated 14/12/2020 in which she averred that her late husband was allocated Plot No. 616 Kapkoi Settlement Scheme in 1974. The plaintiff further stated that in 1998, there were tribal clashes which forced them to flee the suit land for their safety, and further that their matrimonial home was burnt down, leaving the land bare. The plaintiff accused the 1 st defendant of trespassing upon the suit land and using the OCS Kapkoi Police Station to forcefully evict her son who had gone back to erect a house on the land after the tribal clashes had been quelled. 16. The plaintiff further accused the 1st defendant of colluding with the 2nd defendant in cancelling the letter of allotment issued to her husband and subsequently issuing an allotment letter to the 1 st defendant on 27/2/2020. JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 8

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17. The plaintiff set out the particulars of fraud at paragraph 12 of the said plaint and urged the court to enter judgment in her favour as against the defendants in the following terms: (a) (aa) A declaration that the 1st defendant has no proprietary rights over Plot No. 616 Kapkoi Settlement Scheme An order that the letter of allotment issued to the 1st defendant on 27/2/2020 was obtained unlawfully and fraudulently. (b) A permanent injunction restraining the 1st defendant, their servants and/or agents from further trespassing and developing the suit land, being Plot No. 616 Kapkoi Settlement Scheme. (bb) An order directing the 2nd defendant to cancel the letter of allotment dated 27/2/2020 and to revert the letter issued to Muchungi Mangara Nabibia. (c) General damages for trespass. (cc) An order declaring the Notices of Cancellation dated 10/2/2020 and notice of remedy dated 15/8/2019 unlawful and fraudulent. (d) Costs of the suit. 18. The 1st defendant entered appearance on 21/12/2020 and filed his defence and counterclaim on the same date. He denied having acquired the JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 9

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title to the suit property fraudulently as alleged or at all. In his counterclaim, he prayed for orders against the plaintiff as follows: (a) An order that the 1st defendant is the legal owner of Plot No. 616 Kapkoi Settlement Scheme; hence a permanent injunction be issued restraining the plaintiff, her servants, agents or any other person whatsoever from entering, dealing, leasing, carrying out any operations, and/or interfering with the plaintiff’s interest in Plot No. 616 Kapkoi Settlement Scheme. (b) An eviction order be issued against the plaintiff, her agents and servants, evicting them from Plot No. 616 Kapkoi Settlement Scheme. (c) Costs of the suit and the counterclaim. 19. The 2nd and 3rd defendants at the trial court equally entered and filed their statements of defence dated 25/3/2021. They denied the allegations of fraud on their part and urged the court to dismiss the plaintiff’s claim with costs. Thereafter, the matter proceeded to the hearing. At the said hearing, the plaintiff adopted as her evidence-in-chief a witness statement dated 14/12/2020 and produced as exhibits a copy of the limited grant of letters of JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 10

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administration, a police abstract and chief’s letter (P. Exhibit No. 1, 2, and 3). 20. The plaintiff testified before the trial court that she had since discovered that the 1 st defendant had colluded with the officials of the 2 nd defendant to purport to issue demand notices and to later cancel the letter of allotment which had been issued to her deceased husband. She thus urged the court to allow her claim and dismiss the 1st defendant’s counterclaim. 21. The 1st defendant, on the other hand relied on his witness statement dated 18/1/2021, as his evidence-in-chief and further produced a list of documents of even date as Exhibits 1 - 7, and a further list of documents containing Exhibit 8. The said documents comprised a copy of his identity card, a letter of offer from the 2nd defendant, a copy of the payment receipt, a copy of the cancellation of the allotment letter to the plaintiff, a copy of the letter dated 15/8/2019 and a copy of the ground status report. 22. The 2nd defendant led the evidence of DW2, a Settlement Officer from the Land Adjudication and Settlement Office, Trans Nzoia County. His testimony JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 11

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was that the suit property was initially allocated to Muchungi Mangara Nabibia in 1983; that he signed a charge but never paid the rates from 1989 to 2007 and that demand notices were issued during the said period reminding him to pay for the land. DW2 further stated that on 15/8/2019, they issued a notice to remedy the breach of the conditions and pay for the land but there was no compliance. 23. When DW2 was cross-examined by Ms. Arunga for the plaintiff, he admitted that he is not the one who served the notices. DW2 equally admitted that he does not know what was on the land, even though he had earlier stated that the ground report shows that no one lives on the suit property. 24. After hearing the witnesses’ testimony and considering the submissions by counsel, the trial court returned a verdict that the plaintiff had proved her case on a balance of probabilities as against the defendants. 25. In the same vein, the trial court made a finding that the 1st defendant’s counterclaim was not proved to the standards required by law and thus dismissed the same. It is these findings and holdings of the trial court that gave rise to the appeal before me. JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 12

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26. From the above re-evaluation of the evidence that was led before the trial court and the submissions before me, the issues that commend themselves for resolution are as follows: (i) Whether Muchungi Mangara Nabibia (deceased) and, by extension, the estate of the deceased ever acquired legally cognizable proprietary or beneficial interest in the suit property? (ii) Whether fraud was properly pleaded and proved by the plaintiff (now 1st respondent) to the standards required by law. (iii) Whether the title acquired by the appellant is protected under the law or the respondent has laid sufficient legal basis to impeach it. 27. My considered view is that in answering the above 3 questions, the court will be determining whether the learned trial magistrate correctly applied himself in the evaluation of the evidence before him and the applicable principles of law, including case law. 28. Turning to the first issue above as to whether Muchungi Mangara Nabibia (now his estate) acquired a legally cognizable proprietary or beneficial interest in the suit property, I consider this to be the fundamental issue. This is because if such a legally protectable interest is vested in the 1 st respondent, JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 13

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then the next question would be whether such interest could survive the appellant’s registration and issuance of the title documents to the suit property. 29. The evidence on record on this issue is that Plot No.616 Kapkoi Settlement Scheme was allocated to Muchungi Mangara Nabibia by the Settlement Fund Trustees and a charge dated 15/1/1988 was executed by both parties. There is further evidence that the said plot was later re-allocated to the appellant herein on 27/2/2020 vide a letter of offer of even date after the earlier allocation was cancelled vide a letter dated 10/2/2020. The appellant subsequently obtained title to the suit land and is now Land Title No. Trans-Nzoi/Kapkoi/616. The allottee is said to have died on 1/10/2009. What is clear from the evidence on record is that at the time of his death in 2009, he had not perfected the allotment. He had not fully complied with the conditions attached to the allotment, including payment. This is confirmed by PW1 who, on crossexamination by Mr. Teti for the appellant, stated as follows: “Settlement Fund Trustees officials came to Kapkoi and asked us to pay the rates. I went to pay the JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 14

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rates. Settlement Fund Trustees Officials came twice and asked us to pay.” 30. From the foregoing, it is trite observation to say that even though the late Muchungi Mangara Nabibia was allocated Plot No. 616 Kapkoi Settlement Scheme in 1988, when the charge was executed, he had not complied with the conditions for the perfection of the said allotment at the point of his death in 2009. Subsequently, his estate did not comply either, even though the plaintiff’s evidence at the trial was that she was ready to pay. From the time of his allotment to the time of his demise in 2009, it is 21 years. 21 years of non-compliance with the terms of allotment. 31. The Supreme Court had occasion to address itself to the question of the validity of an allotment letter and whether it pass can title to property in the case of Torino Enterprises Limited vs Attorney General [2023] KESC 79 [KLR], in which the court held that an allotment letter cannot confer any interest in land (See paragraph 63 of the said judgment). 32. This judicial authority was cited before at the lower court and provided to the learned trial magistrate. The record does not show whether he gave any due JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 15

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regard to it or whether he distinguished the facts of this case from the said judicial authority. 33. My view, therefore, is that Muchingi Mangara Nabibia did not acquire any legally cognizable proprietary interest in the suit land during his lifetime and neither did his estate, upon his demise. This is the grim reality. It follows, therefore, that at the time the property was registered in the name of the appellant herein, there was no subsisting legally protectable interest vested in the 1st respondent, Rosemary Khisa Simiyu. 34. Turning to the 2nd issue of whether fraud was properly pleaded and proved to the standards required by law, the plaintiff in her amended plaint dated 14/12/2020 set out the particulars of the defendant’s fraud and/or illegality at paragraph 12 as follows: (a) Purporting to have issued a Notice dated 15/8/2019 and serving the same when the same was not issued and/or served. (b) Purportedly issuing deceased person. (c) Preparing a false Notice to remedy and cancellation of Settlement Notice. the JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 Notice to a 16

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(d) Failing to serve the plaintiff herein, who is the legal representative of the late Muchungi Mangara Nabibia. (e) Issuing a subsequent letter of allotment when the land legally belongs to the estate of Muchungi Mangara Nabibia. 35. I have carefully re-assessed the evidence of the trial court. DW2, Earnest Langat, a Settlement Officer from the Land Adjudication and Settlement Office, testified that Land Parcel No. 616 Kapkoi Settlement Scheme was allocated to Muchungi Mangara Nabibia who signed documents on 15/1/1988 and that he did not pay rates from 1989 to 2007. DW2 further testified that demand notices were issued during that period to remind him to pay. He testified that he had 9 notices and that a remedy notice was issued on 15/8/2019. That he was to pay Kshs. 6,100/= from 1/1/1982 in 56 instalments of Kshs. 238/= and that there was a breach of the conditions. DW1 was extensively cross-examined by Ms. Arunga for the plaintiff. He admitted that the notice to remedy is dated 15/8/2019 and that the date of cancellation of the offer is dated 10/2/2020. He equally admitted that the notices were issued after Muchungi Mangara Nabibia had passed on. JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 17

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36. It is instructive to note that fraud occupies a special place in land litigation because of the grave consequences that follow once it is established. A finding of fraud may lead to impeachment of an otherwise indefeasible title to land. The jurisprudence is settled that allegations of fraud must be specifically pleaded and strictly proved. General allegations, suspicion, inference, or rhetorical assertions are imminently insufficient to establish fraud. Although the standard is not as high as proof beyond reasonable doubt, it is higher than a mere balance of probabilities (See Vijay Morjaria vs Nansingh Madhusingh Darbar [2000] eKLR, and Urmill v/o Mahandra Shah vs Barclays Bank International Ltd [1979[KLR] 76. 37. The rationale for this heightened level of standard is not hard to comprehend. Fraud is not a mere legal conclusion; it is a serious allegation of dishonest conduct. 38. This court, therefore, approaches this matter fully aware of the standards of proof that the plaintiff was required to meet. The fact that a notice was issued to a person who had passed on may appear suspicious, and so is the cancellation of the allotment JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 18

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letter directed to such a person. However, in the absence of clear evidence of any collusion between the appellant herein and the Land Adjudication and Settlement Officers, it would be a misnomer to make a quick conclusion of fraud. It is worth remembering that the official record at the Settlement Trustees' offices still indicated the deceased as the allottee of the suit property. It would, therefore, not be unusual to have such notices issued in his name even though deceased. In any event, the plaintiff herself, in her evidence, told the court that the Settlement Fund Trustee officials visited her twice and asked her to pay. I would therefore be slow to impute fraud on their part. In this judicial reasoning, I am guided by the Court of Appeal in the case of P.C.E.A through The Registered Trustee vs County Council of Meru & 2 Others Civil Appeal No.145 of 2020 [2026] KECA 1353 [KLR], in which the court expressed itself as follows: “It is one thing to demonstrate that historical land administration was opaque, poorly documented, or procedurally imperfect but it is quite another to prove actionable fraud….courts must therefore be careful not to convert every evidentiary gap into proof of fraud.” JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 19

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39. I note from the court record that the learned trial magistrate did not specifically address the question of fraud which had been pleaded, even though the court made a finding that failure by the 2 nd defendant to show that there was proper service of notices upon the late Muchungi Mangara Nabibia effected the process of acquisition of title by the 1 st defendant. Had the court done so and held itself to the legal standards set for proof of fraud, it would probably have reached a different finding. My considered view is that the plaintiff did not prove fraud on the part of the 1st defendant and the officials of the 2nd defendant. 40. Turning to the last issue of whether the title acquired by the appellant is protected under the law or the 1 st respondent has laid sufficient legal basis to impeach it, under Kenya’s land registration regime, registered titles enjoy statutory protection. The only exception is unless when such title is impeached on recognized grounds such as fraud, misrepresentation, illegality, procedural impropriety, or corrupt scheme. Since none of these grounds were proved in this case, I am unable to find the basis upon which the learned trial JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 20

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magistrate impeached the title issued to the appellant herein, which title is protected under Section 26 of the Land Registration Act, 2012. 41. The totality of my finding is that the appeal is merited, and worth of disturbing the trial court’s judgment and decree delivered on 7/10/2024. The corollary to this is that the appeal is allowed. The judgment and decree of the trial court is hereby set aside and substituted therefor with an order allowing the counterclaim as prayed in the following terms: (a) An order be and is hereby made that the 1st defendant is the legal owner of Plot No. 616 Kapkoi Settlement Scheme; hence a permanent injunction is hereby issued restraining the plaintiff, her servants, agents or any other person whatsoever from entering, dealing, leasing, carrying out any operations and/or interfering with the plaintiff’s interest in the said property (b) An eviction order be and is hereby issued against the plaintiff, her agents and servants, evicting them from Plot No. 616 Kapkoi Settlement Scheme. 42. Finally, on the issue of costs, the trite law is that costs follow the event unless there are compelling circumstances to order otherwise (See Section 27 of JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 21

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the Civil Procedure Act). I have considered the circumstances of this case. The plaintiff is a widow who was pursuing this claim on behalf of the estate of her deceased husband, the allottee of the suit property. Unfortunately, this court was unable to find that the allotment letter was ever perfected to crystallize into a proprietary interest in what she believed was her late husband’s property. The law is a complex web. Given the circumstances, I will temper justice with mercy. I will not make any order that she pays any costs, as I have been invited to do. Instead, I direct that each party shall bear its own costs. 43. Orders accordingly. Judgment dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 28th day of September, 2026. In the presence of: Court Assistant: Matui Mr. Teti for the appellant Ms. Arunga for the 1st respondent JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 22

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HON. G.M. GITONGA JUDGE, ELC KITALE JUDGMENT: KITALE ELCA NO. E028 OF 2024 - D.O.D – 28/9/2026 23

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