https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4211

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELCL APPEAL NO. E008 OF 2025** HEZRON KIMELI CHERUIYOT …………..… DEFENDANT/APPELLANT VERSUS PHILIP ODUOR OCHIENG …..………………………….. RESPONDENT LAND REGISTRAR …............................................ 2ND RESPONDENT THE ATTORNEY GENERAL …………………………… 3RD RESPONDENT ***(Being an Appeal from the Judgement of the Principal Magistrates Court (Hon. Amos Kiprop Makoross delivered on 3rd February 2025 in Tamu MCELC CASE NO.E005 of 2021)*** **J U D G E M E N T** The appeal Vide the Memorandum of Appeal dated 6th February, 2025 HEZRON KIMELI CHERUIYOT, the Appellant herein, appealed against the judgment and decree in TAMU MC EL CASE NO. E005 OF 2021 dated 3rd February, 2025. The grounds of appeal set out in the Memorandum of Appeal are that; 1. The learned Magistrate erred in law by entering judgement in favour of the 1st Respondent as against the Appellant by admitting evidence – D.exh – 2 being copy of green card for land parcel KISUMU/FORT TERNANT/459 and in the same breath dismissing the same as produced by the Appellant as P.exh.5 in total disregard of the import of the Evidence Act Section 107, 108 and 109 and further by failing to appreciate section 83 of the same Act. 2. The learned Magistrate erred in fact and law in totally misdirecting himself in the evaluation of the evidence produced before him and arrived at a wrong decision, thereby occasioning a miscarriage of justice. The Appellant sought orders that; 1. The appeal be allowed. 2. The judgment of the SPMC (Hon. Amos Kiprop Makoros) delivered at Tamu on the 3rd day of February, 2025, in Tamu MCEL CASE NO. E005 OF 2021, and subsequent decree be set aside and substituted thereof with an order that there be a trial of the instant suit, being TAMU MCEL CASE NO.E005 OF 2021. Background A brief background of the Appeal is that the Appellant was the Plaintiff in TAMU MCEL CASE NO. E005 OF 2026 (the suit). Vide the plaint dated 23rd February, 2021, the Appellant sued the Respondent herein over a parcel of land known as KISUMU/FORT TERNAN/489 measuring 8.9Ha (herein called the suit land) The case of the Appellant in the suit was that he was at all material times the beneficial owner of the suit land vide a land sale agreement dated 2nd February, 2002. That on several occasions, the Respondent trespassed onto the suit land and threatened the Appellant’s agents and/or servants with violence. The Appellant therefore sought orders of permanent injunction, any other relief/orders that the court may deem just, and the costs of the suit. The record shows that in response to the claim, the 1st Respondent filed the 1st Defendant’s Statement of Defence and counterclaim dated 15th August, 2021. The 1st Respondent denied the Appellant’s claim and averred that the suit property belongs to his late father, one Henry Michael Ochieng Obiero–deceased, who died in February, 2020, and that he (1st Respondent) was the Administrator to the estate of his late father. He averred further that the Appellant, one Erick Ochieng O. Aridi, the Land Registrar, Kisumu, and the Attorney General had colluded to acquire the suit land illegally and irregularly. The 1st Respondent, vide the counterclaim, sought a declaration that the late Henry Michael Ochieng Obiero, deceased, was the sole registered owner of the suit land, an order for rectification of the register so that the land reverts to the deceased, a permanent injunction, general damages for unlawful conversion and trespass, punitive and exemplary damages, and costs of the suit. The 2nd and 3rd Respondents filed a Statement of Defence dated 25th March, 2021. They denied the Appellant’s claim and sought that the suit be dismissed with costs. The record shows that the suit was heard by the trial court, which vide the judgement dated 3rd February, 2025, found that the Appellant had not proved his case and dismissed the case as against the Defendant with costs to the Defendant. The court found that the 1st Defendant/Respondent had proved his case and proceeded to enter judgement in his favour on the counterclaim for a declaration that the late Henry Michael Ochieng Obiero is the absolute and legal owner of the suit land, an order that the register be rectified to cancel all other entries and revert the land to the estate of Henry Michael Ochieng Obiero, a permanent injunction, General damages of Kshs.500,000/- to be borne by the 1st and 2nd Defendants in the counterclaim, punitive and exemplary damages of Kshs. 300,000/- to be borne by the 3rd Defendant, and costs of the suit and interest on the damages and costs from the date of judgment till payment in full. Aggrieved by the judgment, the appellant preferred the present appeal. Submission Pursuant to directions given on 17th February, 2026, the appeal was heard by way of written submissions. Written submissions dated 15th March, 2026, were filed by Odhiambo Paul Xistus & Company Advocates on behalf of the Appellant, while written submissions dated 13th May, 2026, were filed on behalf of the Respondent by Olel Onyango Ingutiah Advocate, LLP Advocates. Analysis and determination This being a first appeal, this court is obligated to re-analyse the evidence placed before the trial court. The appellant framed two issues for determination in the appeal, namely; 1. Whether the appeal is merited. 2. Who should bear the costs? On whether or not the appeal is merited It was submitted on behalf of the Appellant that the main issue in the appeal is whether the judgment given in favour of the defendant was just and fair. That the defendant produced Dexh. 2, which was a copy of a green card that had an entry showing that the suit parcel of land was registered in favour of Henry Michael Obiero and later on transferred to Eric Ochieng Arich. That under section 107 of the Evidence Act, the Respondent (the Plaintiff in the counterclaim was bound to prove the existence of the facts of his case. That the Defendant did not produce title documents in his favour to warrant cancellation of the title deed in favour of Eric Ochieng Aridi. That the absence of documents supporting the 1st Defendant’s claim of ownership and father, without the Land Registrar giving evidence as against the authority of the green card, the trial court ought not have cancelled the title deed. Counsel relied on the case of *Munya Maina -vs- Hiram Githiha Maina Civil Appeal No.239 of 2009* to support his submissions on the root of the title. Counsel also relied on the case of *David Kiptagen -vs- County Commissioner of Land & 4 Others (2015)eKLR,* where it was held that in order to determine the question whether the lease held by the Plaintiff is valid, it must be demonstrated that it was properly acquired. That is where there is contention that a lease or certificate of lease held by an individual was improperly acquired; then the lease holder thereof must demonstrate through evidence that the lease certificate that he holds was properly acquired. That the process of acquisition of title is material. Counsel submitted that for the trial court to cancel the entry in the register in favour of one Eric Ochieng Aridi without probing the title document assumed to be held by the Respondent was a clear miscarriage of justice. That the burden of proof was with the Respondent to prove the existence of the facts he alleged in accordance with the provisions of section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya. Counsel submitted further that in view of the provisions of section 26(1) of the Land Registration Act, the appellant wondered how the trial court decided to cancel the entry in the register in favour of Erick Ochieng Aridi and uphold that of the Respondent (Henry Michael Obiero) was the owner, yet no title document was produced by the Defendant to ascertain that the said title existed, that the registration thereof was proper and that it was not subject to challenge in accordance with Section 26 of the Land Registration Act. Counsel urged the court to find in favour of the Appellant. The case of the 1st Respondent (Plaintiff) in the counterclaim was that the suit land exclusively belonged to his late father by the name of Henry Michael Ochieng Obiero, deceased, who died in February 2020, and at no time did the deceased sell the land to Erick Ochieng Aridi. That the Appellant, one Erick Ochieng O. Aridi, and the rest of the Defendants in the suit were only colluding to illegally and irregularly acquire the suit parcel, which was never sold by the said Henry Michael Ochieng Obiero. The Respondent itemized the particulars of illegality, fraud, and irregularity, including purporting that the suit property was bought when no such transaction had taken place, making backdated entries in the green card, not seeking or obtaining consent of the Land Control Board, uttering false documents to obtain title using a transfer of land that was not in existence in the year 2002, and forging documents. In response to the Respondent’s case, the appellant filed Reply to Defence and Defence to Counterclaim vide which he pleaded that he was a beneficial owner having bought the land vide the land sale agreement dated 2nd February, 2002, from Erick Ochieng Aridi, who was then the registered owner of the suit property. The evidence placed before the trial court by the appellant consisted of his own testimony and the documents that he produced as exhibits. He testified on how he bought and occupied the land. He produced, among other documents, a land sale agreement dated 2nd February, 2002, and a title deed in respect of the suit land in the name of Erick Ochieng Aridi and the green card in respect of the same land. He emphasized that the suit before the court related to trespass and not ownership of the land. On cross-examination, the record shows that the Appellant stated that although he had bought the land from Henry Michael Ochieng Obiero, he had pleaded that he bought it from Erick Ochieng Aridi since the title bore his (Erick Ochieng Aridi’s) name. he also stated that the transfer documents were signed between him and Erick Aridi. He further stated that he had never seen Erick Ochieng Aridi. The record shows that the Appellant had pleaded in paragraph 7 of the plaint that he bought the land from Erick Ochieng Aridi and took possession as from 2nd February, 2002. The record also shows that the Respondent, on the other hand, testified as DW1 and called 1 witness. His testimony was contained in the witness statement dated 13th October, 2022. He had stated in the witness statement that the land belonged to his father, Henry Michael Obiero, and that the Appellant was using Erick Ochieng Aridi to unlawfully acquire the suit land. Among the documents produced by the Respondent as evidence were Letters of Administration Ad Litem, a copy of the green card in respect of the suit land, pleadings in case No. KISUMU ELC NO.45 OF 2020, Certificate of Registration of S.M. Onyango & Associates dated 5th November, 2008, Transfer of Land and a Witness Statement filed by the appellant in Case No.TAMU PMCC NO. E&L CASE NO.32 OF 2018. On cross-examination, DW1 stated that Case No. ELC 45 OF 2020 had not been concluded. DW2 was a police officer who testified that Henry Ochieng Obiero had lodged a complaint, which was recorded as OB12/10/12/2019, on illegal dealings on several parcels of land within the KISUMU/FORT TERNAN area. That once the complaint was made, it was assigned to him as the investigating officer. That the case was on fraudulent transfer. That he wrote several letters to the Land Registrar Nyando, Nyando DCC, and other correspondence. The record shows that the trial court considered the evidence, the pleadings, and the submissions made before it and made the following findings. 1. The title under which the Appellant claimed was currently in the name of a person called Erick Ochieng Aridi and that whereas the Appellant had pleaded that he bought the land from said Erick Ochieng Aridi through a sale agreement dated 2nd February, 2002, there are so many incongruences between the pleadings and the evidence/documents presented that it becomes impossible to conclude that the Plaintiff actually bought the land from Erick Ochieng Aridi or that the title procedurally passed to the said Eric Ochieng Aridi. It is noted that Erick Ochieng Aridi was not called as a witness to affirm the Appellant’s claim that the land was bought from him. None of the parties knew him. The Appellant stated on cross-examination. “I have never seen Erick Ochieng Aridi. I have never set my eyes on him. All the forms purportedly signed by Erick Aridi were signed by Mr. Henry Ochieng Obiero.” The Respondent also stated in his evidence that; “I don’t know Erick Aridi”. Yet, according to the green card produced by both parties, Erick Ochieng Aridi was the current registered owner of the land, who, according to the green card, obtained it from Henry Michael O. Obiero on 5th October, 1992 by way of transfer. The evidence of the said Erick Aridi was crucial to prove firstly how he obtained the land from the first registered owner and secondly that he actually sold the land to the Appellant. Erick Ochieng Aridi was added to the suit as the 1st Defendant in the counterclaim. The record shows that despite being served with the Defence and counterclaim, he filed no response thereto and never attended court. Affidavit of service sworn by Francis Rayola Olel on 25th May, 2022, shows that the said Erick Ochieng Aridi was served by way of substituted service by advertisement of the summons in the Newspaper pursuant to a court order. The Appellant did not explain why he did not call Erick Ochieng Aridi as a witness. Instead, he stated that he had actually bought the land from Henry Obiero, but since the land was registered in the name of Erick Ochieng Obiero, he chose to plead that he bought the land from him. The land sale agreement the appellant produced as exhibit, dated 2nd February, 2002, was between Eric Ochieng Aridi, Identity card No.10089922 of P.O. Box 80 KORU, as the Vendor, and Hezron Kimeli Cheruiyot (the Appellant herein), Identity Card No.0867775 of P.O. Box 720 Kericho, as the Purchaser. However, in his evidence in chief, the Appellant stated that he had a sale agreement between him and Henry Ochieng Obiero, that Mr. Ochieng Obiero had handed over the suit land to him in 1994. That Mr. Obiero told him that Mr. Aridi was a relative and that he had given him authority to handle all his matters. He stated further that the agreement was signed by Mr. Ochieng Obiero before an Advocate called Samuel Onyango in the presence of the Appellant. That it was Mr. Ochieng who gave him (Appellant) the title deed, which was in the name of Erick Ochieng Aridi, which he, in turn, gave to the lawyer (Samuel Onyango) and later collected it from the lawyer. The evidence does not support the pleadings in the plaint on how the Appellant acquired what he describes as beneficial ownership in the land. Evidence was adduced to the effect that, at the time the agreement is purported to have been executed before Samuel Onyango Advocate, Samuel Onyango Advocate was yet to start practising as such. Certificate of Registration for S.M. Onyango & Associates was issued on 5th November, 2008. I find that the trial court did not err in finding that there were too many incongruences between the pleadings and the evidence, making it impossible that the Appellant actually bought the land from the said Erick Ochieng Aridi. 1. The trial court, relying on Section 6(1) of the Land Control Act, found no consent had been exhibited by the Appellant, thus throwing the whole transaction, including the transfer, into question. The court concluded that the absence of consent for the transfer from Henry Michael O. Obiero to Erick Ochieng Aridi can only mean that the transfer was done unprocedurally or through a corrupt scheme. Taking into account the totality of the evidence placed before the trial court by the Appellant, the fact that Erick Ochieng Aridi never appeared before to defend his title, even after he was added to the suit as defendant in the counterclaim, I find that the trial court did not err in finding that the transfer from the deceased in favour of Eric Ochieng Aridi was through a corrupt scheme. 1. The trial court also found that the Appellant had not proved his case on a balance of probabilities and dismissed it with costs. On what amounts to proof on a balance of probabilities, it was held in *William Kabogo Gitau vs George Thuo & 2 others [2010] 1 KLR,* thus; “In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In terms of percentage, a party that is able to establish its case to a percentage of 51% as opposed to 49% of the opposing party is said to have established its case on a balance of probabilities. He has established that it is more probable than not that the allegations that he made occurred.” And in *Miller vs Minister of Pensions [1947] 2 ALL ER 372*, Denning J, discussing the burden of proof in civil cases, said “That degree is well settled. It must carry a reasonable degree of probability, but not so high as required in a criminal case. If the evidence is such that the tribunal can say, ‘we think it is more probable than not’, the burden is discharged, but if the probabilities are equal, it is not. This proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other, which evidence to accept where both parties’ explanations are equally (un) convincing, the party bearing the burden will lose, because the requisite standard will not have been attained.” The Appellant’s case before the trial court was based on the tort of trespass. He had the burden to prove the ingredients of trespass, namely, that the land belonged to him and that the Defendants had unlawfully entered onto the land. From the evidence on record, the Appellant failed to prove that he had ownership or any rights over the land. The land is not registered in his name. The registered owner is unknown. The sale agreement produced as an exhibit was contradicted by the Appellant’s evidence when the appellant testified that the actual vendor was the deceased and not Erick Ochieng Aridi. Hence, the Appellant was not able to prove that he held beneficial ownership rights or any rights over the suit land. I find that the trial court did not err in dismissing the appellant’s suit. 1. The trial court found that the Respondent had proved his counterclaim. The Respondent produced a copy of the register (green card) in respect of the suit land showing that the deceased was the first registered owner of the suit land. He also produced a Grant of Letters of Administration Ad Litem to show that he was the Administrator of the estate of the deceased for purposes of filing suit on behalf of the estate of the deceased. DW1 produced evidence that there was no sale agreement between the deceased and the Appellant in respect of the suit land. That there was no agreement vide which the deceased sold the land to Eric Ochieng Aridi. That in another case, No.32 of 2018, the Appellant had claimed to have bought the land from the deceased and if that was the case, then there was no need for the Appellant to enter into another sale agreement over the same land with Erick Ochieng Aridi. The Respondent produced a transfer form as Exhibit D.9. The document was alleged to have been executed between the deceased and the appellant, and that the land was being given to the Appellant as a gift on 12th September, 1994. If this were true, then why again transact with Erick Ochieng Aridi in 2002 over the same land which had already been gifted to him in 1994? Taking into account the evidence of DW2, who concluded that the documents produced by the Appellant were forgeries, I find that the trial court did not err in finding that the Respondent had proved the counterclaim on a balance of probabilities. I find no reason to interfere with the findings and decisions of the trial court. On the issue of whether or not the appeal has merit, I find that the appeal lacks merit. Regarding costs, under section 27 of the Civil Procedure Act, costs follow the event unless there is good cause for the court to order otherwise. The upshot is that the appeal fails and is hereby dismissed. Costs are awarded to the 1st Respondent, Philip Ochieng Oduor. Orders accordingly. **Judgment dated and signed at Kisumu and delivered virtually this 2nd day of July, 2026.** **E. ASATI,** **JUDGE.** **In the presence of:** Atika: Court Assistant. Odhiambo for the Appellant Wanyangu for the Respondent.