https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3553

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISII** **ELCLA E028 OF 2025** **CUSTOMS GENERAL CONST. LIMITED ……………..... APPELLANT** **VERSUS** **THE COUNTY GOVERNMENT OF KISII ……………… RESPONDENT** **(An appeal from the judgment and decree of Hon B. O. Omwansa SPM delivered on 24th of June 2025 in Kisii CMCCELC NO. 55 of 2021)** **JUDGMENT** 1. The Appellant commenced the suit in the subordinate court against the Respondent seeking the following reliefs: 2. *Declaration that the Plaintiff is the registered and or lawful owner of plot title KISII MUN BLOCK II/275.* 3. *An order of eviction directed against the Defendant, its agents or servants from plot no KISII MUN BLOCK II/275.* 4. *Permanent injunction restraining the Defendant itself, agents,* *servants or anyone claiming under the Defendant from entering upon, re-entering, trespassing onto, building structures, interfering in any manner with the suit plot KISII MUN BLOCK II/275.* 5. *General damages for trespass* 6. *Interest on (d) at court rates* 7. *Costs of the suit be borne by the Defendant.* 8. The Respondent filed a defence and counter-claim and in the counter-claim, the Respondent prayed for orders that: 9. *A declaration that the Defendant is the registered proprietor and legal occupant of all that land known as Kisii Town Plan Ref No. 37/71/01 of 1971 holding in trust for the citizens of Kisii County.* 10. *A declaration that the Plaintiff’s actions of trying to grab public land are illegal, fraudulent and any resultant illegal title if any was acquired illegally anchored on fraud and is null and void ab initio.* 11. *An order directing the Chief Land Registrar to cancel the title deed if any in the nature of KISII MUN BLOCK II/275.* 12. *A permanent order of injunction restraining the Plaintiff whether by itself or its agents or any one under its instructions from interfering, charging or in any way dealing with Kisii Town Plan Ref No. 37/71/01 of 1971 now christened KISII MUN BLOCK II/275.* 13. *An order of arrest and subsequent prosecution of anyone illegally and fraudulently trying to alienate Ref No. 37/71/01 of 1971* 14. *The Plaintiff’s suit be dismissed with costs.* 15. After hearing the evidence of both parties, the learned trial magistrate dismissed the Appellant’s suit and entered judgment for the Respondent. He issued the following orders 16. *A declaration is hereby made that the Defendant is the registered proprietor and legal occupant of all the land Kisii Town Plan Ref 37/72/01 of 1971, holding in trust for the citizens of Kisii County.* 17. *A declaration that the Plaintiff’s actions of trying to grab public land are illegal, fraudulent and any resultant illegal title if any was acquired illegally anchored on fraud and is null.* 18. *A permanent injunction is hereby issued restraining the Plaintiff, whether by itself, its agents and or servants, from dealing, interfering, alienating, charging or in any way dealing with Kisii Town Plan Ref 37/72/01 of 1971, illegally and unlawfully christened by the Plaintiff as L.R No. Kisii Municipality Block III/275* 19. *Each party to bear their cost.* 20. The Appellant is unhappy with the said outcome and appealed to this court on the following: 21. ***The learned Trial Magistrate, erred in fact and in law by Decreeing that the respondent is the registered proprietor and the legal occupant of all that land known as Kisii Town plan Ref: 37/72/01 of 1971, holding in trust for the citizens of Kisii County, without exhaustively evaluating the evidence on record regarding such registration and/or proof of same.*** 22. ***The learned Trial Magistrate, erred in fact and in law by Decreeing that the Appellant’s actions of trying to grab public land are illegal, fraudulent and any resultant illegal title if any was acquired illegally, anchored on fraud and is null abnitio, while there is no evidence and/or sufficient evidence to prove fraud tendered by the Respondent herein to be required threshold. Thus the learned Trial Magistrate considered extraneous issues that were not before him and hence arriving at an erroneous decision.*** 23. ***The learned Trial Magistrate, erred in law and in fact by issuing an order of permanent injunction against the Appellant restraining her by herself, servants, agents or anyone acting under the Appellant’s instructions from dealing, interfering, alienating, charging or in any way dealing with Kisii Town plan Ref. No:37/71/01 of 1971 illegally and unlawfully christened by the Appellants as LR NO. KISII MUNICIPALITY/BLOCK 111/275, without evaluating, appraising and/or analyzing properly the entire evidence on record and thereby failed to decipher the salient features and/or threshold requirements to grant the same. Thus he arrived at a conclusion contrary to the weight of Evidence on record.*** 24. ***The learned Trial Magistrate, misdirected himself by dismissing the Appellant’s suit against the respondent herein while the evidence on record in favors of the Appellant were cogent and/or weighty.*** 25. ***The learned Trial Magistrate, erred in fact and in law in failing and/or neglecting to cumulatively and/or exhaustively evaluated the entire evidence on record and hence failed to capture and/or decipher the salient issues and/or features of the suit before him. Thus arrived at an erroneous conclusion, contrary to and in contradiction of the evidence on record.*** 26. ***The learned Trial Magistrate, erred in fact and law by failing and/or neglecting to appreciate, discern and/or understand the true nature of dispute. Consequently, the judgement of the learned Trial magistrate is a nullity.*** 27. Consequently, the Appellant prays for orders that; 28. **The Appeal herein be allowed and the judgement and Decree of the learned Trial Magistrate dated and delivered on the 24th day of June 2025 be set aside, quashed and/or varied.** 29. **The honourable court be pleased to substitute in lieu of the decision dated the 24th day of June 2025 with an order of allowing the appellant’s prayers in her plaint dated 9th day of October 2017 and dismissing the Respondent’s counter-claim dated 13th October 2019 vide Kisii CMC ELC 55 OF 2021.** 30. **Cost of this appeal and costs incurred in the subordinate court with respect to the main suit and counter-claim be borne by the Respondent.** 31. **Such further and/or other Relief (s) as the Honourable court may deem just and expedient to grant.** 32. Directions were taken for the prosecution of the appeal by way of written submissions. The Appellant’s submissions are dated 14th January, 2026, while the Respondent’s submissions are dated 23rd February, 2026. In its submissions, the Appellant challenged the judgment, stating that it was reached against the weight of the evidence on the record. 33. The Appellant contends that the Respondent failed to prove, to the required standard, the particulars of fraud it alleged against the Appellant. It further contends that it presented evidence that it was the registered owner and that the Respondent trespassed onto the suit land by constructing kiosks. 34. The Appellant also submits that the trial magistrate dismissed its case without sufficiently considering the evidence adduced before the court. For instance, a proper, judicious analysis of the evidence tendered by PW2, PW3, DW1-4 cannot support the learned magistrate’s assessment of the evidence, which led to the conclusion of dismissing the Appellant’s suit. The Appellant urged this court to reverse the lower court’s finding and substitute it with an order allowing its claim. 35. On the other hand, the Respondent submitted that the Kisii Town approved development plan (Kisii Town Ref. No. 37/71/01 of 1971) clearly shows that the suit land was designated for government houses and was therefore not available for allocation, as the records show no authority to re-plan and allocate the land. The site where the appellant claims ownership has other government houses built on it, and part of it is a bus park. The County surveyor confirmed that the alleged RIM is not from the office, hence a fraud. 36. They cited the Supreme Court decision in "**Dina Management Limited vs. County Government of Mombasa,** **Supreme Court Petition Number** **8 (E010) of 2021**", in which the Supreme Court held that the title was acquired unprocedurally, and therefore the protection usually afforded to innocent purchasers does not apply. That this decision confirmed that title deeds are not conclusive proof of ownership if the registration process was flawed. 37. The Respondent also submits that any title founded on irregularity, unprocedural conduct, or a corrupt scheme is vitiated. The Appellant did not provide evidence of lawful transfer from one Lucy Barongo Ondieki. There was also no proof of compliance with the Trust Land Act and the Physical Planning Act. Under Section 107 of the Evidence Act, the Appellant bore the burden of proving lawful ownership, which he did not. 38. Further, they rely on **Wambui vs Mwangi and 3 others, (Civil Appeal 465 of 2019) 12021/ KECA 144 (KLR)**, where the Court of Appeal stated as follows: **"70. Sixth, the title was also tainted with nullity in that the court process on the basis of which the title to the suit property was anchored was subsequently declared null and void ab initio. The position in law, as we have already highlighted above, is that anything founded on nullity is also null and void and of no consequence. The title allegedly vested in the 3rd respondent and subsequently passed on to the appellant, having stemmed from court proceedings that were subsequently declared null and void, also stood vitiated by the same nullity and of no consequence. The Judge cannot therefore be faulted for stating the correct position in law in the manner done.”** **Analysis and determination:** 1. It is trite law that this court sitting as a first appellate court has the duty to re-evaluate the evidence adduced during trial and make its finding, but in doing so, be conscious that it did not see the witnesses who gave evidence. This position is reaffirmed in the case of ***Ephantus Mwangi v Duncan Mwangi Wambugu (1982-88) 1 KAR 278.*** 2. The Court of Appeal said in **Peters** **–vs- Sunday Post Ltd** **[**1958] EA 424. In its own words: - **“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide ...”** 1. On the evidence on record, there is no dispute that the Appellant is the registered owner of the suit property, Kisii Municipality Block III/275, as shown in the copy of the certificate of lease and search produced. There is also no dispute that the Appellant has been denied possession of the suit property by the Respondent, who affirms that there are Kiosks and a bus stage which they have rented out. 2. Having considered the pleadings and the submissions on record, I raise two questions for determination: 3. **Whether or not the Appellant proved its case against the Respondent.** 4. **Whether the learned magistrate erred in finding in favour of the Respondent.** 5. **What reliefs ought to issue.** 6. **Who bears the cost of the appeal?** 7. It is my considered opinion, and I so hold, that both parties in this case had a duty to prove their cases since the Respondent also had a counterclaim. Section 107(1) of the Evidence Act provides that: **“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”** 1. As already stated, the Respondent does not deny that it is in occupation of the suit property without the Appellant’s consent. The Appellant pleaded that, as the registered owner of the suit property, it was entitled to exclusive and/or absolute rights as provided for under sections 24 and 25 of the Land Registration Act. It also sought declaratory orders against the Respondent, asserting that it was the lawful owner and was thus entitled to mesne profits. 2. Thus, the Appellant raised the question of the authenticity of its title, thereby creating an obligation on itself to prove that it was entitled to the declaratory order of lawful ownership. In the written statement of Hon Stephen Manoti, who testified as Pw1, the witness stated that the property was allocated to the Appellant. However, during cross-examination, he stated that the Appellant had purchased the suit property from Lucy Barongo. 3. In the original list of documents dated 9th October, 2017, which contained 5 documents, what was produced in relation to the acquisition of the property was the certificate of incorporation of the Appellant, a copy of the official search, and a copy of the certificate of lease for the suit property. 4. The Appellant filed a further list of documents which contained a copy of the court order directing the Land Registrar and County Surveyor to visit the suit property to identify the suit plot and its status. He also produced the survey report and called the Land Registrar, who testified as Pw2 and confirmed that the records show the Appellant is the registered owner of the property in Kisii Mun. block III/275. 5. It is noteworthy that the Appellant did not produce a copy of any allotment letter, even if the trial court was to rely on its witness's recorded statement that the land was allocated to it. Alternatively, the Appellant ought to have produced a copy of the sale agreement executed between it and the said Lucy Barongo. It also failed to present any evidence of payment of the purchase price or stamp duty at the time of transfer of the title to its name. The report of the County Surveyor, which the Appellant wanted the learned magistrate to place weight on, described the position of the suit property on the ground, not how the title was acquired. 6. In its submissions to the court below, the Appellant cited the case of **Ocean View Ltd versus A.G (2002)eKLR** which held that; **“The allotment of land to a citizen or others protected under the constitution which action is symbolised by title deed, invest in the allottee (holder of title deed), inviolable and indefeasible rights that can only be defeated by lawful procedure under the Land Acquisition Act.”** 1. The Appellant proceeded to state that registration of the property in its favour conferred it rights which allowed the use and occupation. It submitted that, for the avoidance of doubt, it had produced the certificate of title and certificate of official search to confirm he was the registered owner. However, the decision cited by the Appellant in **Ocean View Ltd** *supra*, held that the registration can be defeated by lawful procedure. 2. The Court of Appeal in the case of **Gitobu Imanyara and two others versus Attorney General (Civil appeal no 98 of 2014) [2016] KECA 557 (KLR) (19 May 2016) (Judgment)** on the duty of Appellant to discharge the burden of proof held that: **“The fact that the respondent admitted liability ab initio does not in any way shift the burden of proof from the appellants. It is a firmly settled procedure that even where a defendant has not denied the claim by filing of defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side. see Mwangi Muriithi (supra) and Mumbi M'Nabea v. David Wachira Civil Appeal No. 299 of 2012**. 1. Therefore, for the Appellant to qualify for the grant of declaratory orders that it was the lawful owner and entitled to exclusive use, it was not sufficient to rely on the certificate of lease per se; it also had to demonstrate that it followed due process as an innocent purchaser for value, without notice, to fend off the Respondent’s claim to the land. In the often-cited Ugandan case of **Katende v. Haridar & Company Limited [2008] 2 E.A. 173**, it was held: ***“For the purposes of this appeal, it suffices to describe a*** *bona fide* ***purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the*** *bona fide* ***doctrine, (he) must prove that:*** ***a. he holds a certificate of title;*** ***b. he purchased the property in good faith;*** ***c. he had no knowledge of the fraud;*** ***d. he purchased for valuable consideration;*** ***e. the vendor had apparent valid title;*** ***f. he purchased without notice of any fraud;*** ***g. he was not a party to any fraud.*** 1. I have stated above that there is no evidence that consideration or stamp duty was paid at the time the property was transferred into the Appellant’s name. The Appellant was also obliged to show that the Vendor had an apparent valid title. On the face of the certificate of lease, the Lessor is named as the County Council of Gusii, which should have aroused the Appellant’s curiosity about how Lucy Barongo obtained ownership from the County Council. It is not discernible from the record whether Lucy was an allottee and complied with all the requirements for the allotment of public land, or whether she purchased the suit property. 2. Did the learned trial magistrate err by failing to weigh the evidence of the Land Registrar and the County Surveyor in favour of the Appellant? The Land Registrar gave evidence as PW2 before the trial court, and her testimony was confined to the report prepared pursuant to the court order dated 3rd November, 2017. She stated that she did not bring records of the suit title Kisii Municipality block III/275 to court, but they were available at the office. 3. In my view, the Land Registrar’s evidence was inconclusive, as it did not produce the records that would have ascertained how the Appellant acquired the title. It was the Appellant’s duty to ask the Land Registrar to produce these records, but this was not done. Her evidence regarding the status on the ground, which showed the Respondent in occupation. Based on the evidence on record, it is not ascertainable that at the time the Appellant acquired the suit title, the property was vacant. 4. The same scenario applied to the evidence of the government surveyor. His role was to identify the location of the suit plot on the ground. He confirmed that the government house was not within the plot but was two (2) metres away. He also stated that the survey plan was available from their office and could be produced. Neither the RIM nor the survey plan was produced. Again, this lacuna was not addressed by the Appellant, which called the government surveyor as its witness. Hence, the Appellant cannot shift blame to the trial magistrate for this omission. 5. Did the trial magistrate give reasons for his finding? Yes, the same is found on page 5 of the judgment, which is contained on page 126 of the record of appeal. He stated inter alia, *“When Pw1 was put to task to explain whether he ever went to the lessor to get consent to transfer, he answered in the negative. The lawful procedures demand that it is essential for the buyer to conduct due diligence which includes; verifying the authenticity of the search certificates and ensuring there are no encumbrances, disputes or claims against the property.* *….It is also difficult to tell the reason why the seller was never called as a witness in this matter to shed light on how she acquired the parcel of land. This omission is to boomerang against the Plaintiff’s case, for the court is to make a negative presumption. I find that the Plaintiff has failed to either demonstrate that he legally and procedurally acquired the parcel of land, or that he carried due diligence before purchasing the land.”* 1. In light of the foregoing analysis, I find that the Appellant did not prove its case to the required standard for civil cases. Thus, the learned trial magistrate did not err in dismissing the Appellant’s suit. **Was there proof of the counter-claim?** 1. The Respondent asserted that the Appellant’s title to the suit property was irregularly and fraudulently obtained and called four witnesses to support their assertion. Among them was the director of Land Administration, who produced the Kisii Town Approved Plan of 1971 (Dex1), a certificate of bill search and the Ministry of Lands, Housing and Urban Development inventory of government quarters. 2. According to the Respondent, the suit title/land did not exist, and the space claimed by the Appellant had been leased as garages, with permits issued by the Respondent to the users. DW2 also stated that the space the Appellant was claiming hosted government houses. He further stated that the Appellant fraudulently obtained its title because there are no records showing the property was allocated. 3. In its submissions to the trial court, the Respondent cited the provisions of section 26(1) of the Land Registration Act and several case law on the proposition that the acquisition of title cannot be construed as the end result, the process of acquisition of material. 4. The Appellant argued that the Respondent failed to prove, to the required standard, the pleaded allegations of fraud. It is true, from the record, that the learned magistrate did not distinctly consider these points in his judgment. As the first appellate court, I will proceed to re-evaluate whether the evidence presented showed fraud or otherwise to fault the decision now under appeal. 5. One of the grounds pleaded was the alleged registration of the suit property without the requisite minutes, licences, and the knowledge of the Respondent or its agents. All the Respondent’s witnesses stated that they had no records showing the impugned space was allocated to the Appellant or anyone. The Appellant did not produce any evidence showing how the suit property was leased or allocated to Lucy Barongo Ondieki. It did not even call Lucy Barongo as a witness to shed light in the matter as the trial court put it. Therefore, this allegation by the Respondent remained uncontroverted. 6. They also pleaded that the Appellant had contravened the provisions of the Trust Land Act, although the Respondent did not cite a specific section. The Trust Land Act, as it then stood, was repealed, and the current Trusts of Land Act does not refer to land held by the Respondent. However, the Constitution provides a role for the Respondent in relation to the public within its jurisdiction. Article 62 (2) provides that; **“(2) Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission, if it is classified under— (a) clause (1) (a), (c), (d) or (e); and (b) clause (1) (b), other than land held, used or occupied by a national State organ.”** 1. Additionally, the Respondent alleged that the Appellant had fraudulently changed the use of government land without the consent or knowledge of the government or its agents. In the excerpt of the judgment quoted above, the trial court observed that one of the procedures to be followed during land acquisition or transfer was the consent of the relevant government body. In this case, as it was a transfer of lease, it would have required the consent of the Commissioner of Lands. 2. Article 62(4) of the Constitution provides that (**4) Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use**. The Appellant admitted that no such consent was sought or obtained, and no such copy was produced. Thus, the Respondent’s allegation stood. 3. There is no evidence that would lead this court to reach a different decision from that of the trial magistrate, who found merit in the Respondent’s counter-claim. As a result, I find no merit in the appeal and leave the judgment of the subordinate court as is. The appeal is dismissed, with costs to the Respondent. **Dated, Signed and Delivered at Kisii this 11th day of June, 2026** 1. **OMOLLO** **JUDGE**