https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4377

Melly v Njaya (Environment and Land Appeal E027 of 2025) [2026] KEELC 4377 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4377 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Appeal E027 of 2025 CK Yano, J July 9, 2026 Between David Kipkeney Melly Appellant and Ann Njaya Respondent Judgment 1.This Appeal emanates from the judgment and decree of Hon. P.N. Areri (Senior Principal Magistrate) in ELDORET CM ELC NO. E033 OF 2023 delivered on 20th May, 2025. 2.Aggrieved by the said decision, the Appellant lodged the instant Appeal vide a memorandum of appeal dated 11th June, 2025 against the entire judgment premised on the following grounds of appeal: -i.That the learned trial magistrate erred in law and in fact in dismissing the appellant’s suit notwithstanding the clear and uncontroverted evidence adduced, demonstrating that the appellant was a bonafide purchaser for value of land parcel number Langas Phase Ii/sheet IV/27 (L.R. NO. 8500).ii.That the learned trial magistrate erred in law and in fact by failing to properly consider and evaluate the appellant’s documentary evidence, including the sale agreement dated 8th July, 2021 and proof of possession, which supported the validity of the sale transaction between Abraham Kipkemboi Maiyo and the Appellant.iii.That the learned trial magistrate erred in law and in fact by making findings on alleged fraud involving Abraham Kipkemboi Maiyo in the absence of cogent evidence and by relying on unsubstantiated claims to conclude that fraud had been committed.iv.That the learned trial magistrate erred in law and in fact by placing undue reliance on reports and directives from the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP), which were neither tested in court nor subjected to due judicial scrutiny. The court thereby upheld a process that was allegedly irregular and procedurally flawed, leading to the cancellation of the appellant’s records without affording him due process.v.That the learned trial magistrate erred in law and in fact by holding that the respondent is the legal owner of the suit property without interrogating the validity and authenticity of the respondent’s ownership documents and without applying the legal framework applicable to unregistered land.vi.That the learned trial magistrate erred in law and in fact by failing to grant a permanent injunction to restrain the respondent from interfering with the appellant’s peaceful possession and occupation of the suit property, despite evidence of such interference.vii.That the learned trial magistrate erred in law and in fact by dismissing the suit with costs against the appellant, despite the existence of a genuine, arguable and triable claim that warranted judicial determination. 3.Consequently, the Appellant sought the following Orders: -a.The appeal be allowed.b.The judgment and decree of the trial court delivered on 20th May, 2025 be set aside,c.The prayers sought in the lower court be grantedd.Costs of the suit and this appeal be awarded to the appellant.e.The honourable court grants any other or further relief as it may deem just and fit to grant. 4.A brief background to bring the Appeal into perspective is that the appellant herein (plaintiff in the trial court) filed a suit vide a Plaint dated 27.02.2023, seeking the following orders;a.A declaration that the plaintiff is the legal owner of land parcel number Langas Phase II/Sheet IV/ 27 (L.R. NO. 8500).b.Orders of permanent injunction restraining the defendant from interfering with the plaintiff’s peaceful and quiet occupation and possession of land parcel number Langas Phase II/Sheet IV/ 27 (L.R. NO. 8500).c.Costs of this suit.d.Any other relief that this court may deem fit to grant. 5.The appellant did aver that he is the bonafide owner of the parcel of land known as Langas Phase II/Sheet IV/ 27 (L.R. NO. 8500) measuring ¼ of an acre (hereinafter referred to as the ‘suit land’), having purchased the same for value from one Abraham Kipkemboi Maiyo on 08.07.2021. That pursuant to the said sale, he took immediate vacant possession together with all the developments thereon. 6.It is his claim that despite his possession, occupation and use of the suit land, the respondent has started laying claims over the same parcel of land hence the suit. It was also his contention that the suit land forms part of the larger Langas Farm, and the process of conversion and titling is still ongoing. 7.The appellant’s suit was opposed. The respondent filed a Statement of Defence dated 09.03.2023. The respondent denied all the allegations raised against her by the appellant and put him to strict proof of each and every averment thereof. 8.In further response to the appellant’s claim of possession and occupation of the suit land, the respondent did aver that she has been in exclusive possession of the suit land since 2015 and further, that the person from whom she acquired the land had been in continuous possession of the same land since 1989. The respondent also dismissed the appellant’s suit as being marred with fraudulent claims and outlined the particulars of fraud thereto. 9.She maintained that the appellant is not an innocent purchaser for value without notice and urged the court to dismiss the suit with costs. 10.Upon close of pleadings, the matter was set down for hearing of the main suit. 11.The appellant’s case proceeded for hearing on 23.01.2024. The appellant testified as PW1 and called 4 other witnesses to testify in support of his case. The defence case proceeded for hearing on 18.02.2025 and the respondent testified as DW1 and called one other witness to testify in support of her case. 12.Upon close of the defence case, parties filed and exchanged their written submissions. Subsequently, the suit was determined vide the judgment issued on the 20.05.2025, whose effect was to dismiss the appellant’s suit as claimed hence the instant appeal. 13.On 17.03.2026, this court issued directions on the disposal of the appeal by way of written submissions. The Appellant filed submissions dated 07.04.2026 and rejoinder submissions to the Respondent’s submissions dated 11.05.2026 while the Respondent’s submissions are dated 06.05.2026, which I have read and duly considered. Analysis and Determination: 14.I have carefully considered the grounds in the Memorandum of Appeal, the Record of Appeal and the submissions in totality. Consequently, in determining whether this court should interfere with the trial court’s findings and exercise of discretion, it is my considered view that the following issues arise for determination: -a.Who is the actual, beneficial and legal owner of the suit land known as LANGAS PHASE II/SHEET IV/27 (L.R. NO. 8500).b.Whether the allegations of fraud raised by the respondent were proved to the required standard.c.Whether the Appellant is entitled to the orders sought in his plaint and the present appeal.d.Who should bear the costs of the appeal. 15.The jurisdiction of this court as a first appellate court is to reappraise the evidence and issues which were before the trial court and make its own conclusion. However, this mandate does not entail taking on board new issues which were never brought to the trial court’s attention or matters that were not subject of the trial court’s consideration. See the Court of Appeal decision in Ol Pejeta Ranching Limited vs David Wanjau Muhoro [2017] eKLR. Who is the actual, beneficial and legal owner of the suit land known as Langas Phase Ii/sheet IV/27 (L.R. NO. 8500); 16.At the center of the dispute between the parties herein is the ownership of the parcel of land known as LANGAS PHASE II/SHEET IV/27 (L.R. NO. 8500), hereinafter referred to as the ‘suit land’. 17.Both the appellant and the respondent aver that they are the actual, beneficial and legal owners of the suit land. It is the appellant’s claim that he is the rightful and legal owner of the suit land, having purchased the same from one Abraham Kipkemboi Maiyo on 08.07.2021 and thereafter took immediate vacant possession. It is his contention that the said Abraham Maiyo, was the son of the original owner of the suit land, one Daudi, and therefore had the capacity to sell and transfer the same in his favor. 18.The respondent on the other hand also maintained that she is the beneficial and legal owner of the suit land. It is her claim that she purchased the suit land in 2015 from one John Kiprugut Kurgat and that the said John Kurgat was also a purchaser of the suit land from one Michael Wanjau in 1989 and had been in possession and occupation of the same since 1989 until 2015 when he sold the same to the respondent. That pursuant to the sale, she took immediate possession and has remained on the suit land since 2015. 19.The respondent raised allegations of fraud. It is her claim that the appellant’s suit was marred with fraudulent ownership claims. 20.It is not in dispute that the entire Langas Area is still in the process of titling and no one therefore holds a title deed in respect to the suit land herein. The registration and ownership details that have been relied upon by both parties are as contained in the register maintained at the Department of Physical Planning within the County of Uasin Gishu. This fact was further confirmed by one Charles Kimani Muchai, a Physical Planner at the Uasin Gishu County Government. 21.In support of their ownership claims, both parties produced the various sale agreements entered into. The appellant produced the sale agreement between Abraham Kipkemboi Maiyo and himself while the respondent produced the sale agreement between John Kurgat and herself as dexh. 1 and the earlier sale agreement between John Kurgat and Michael Wanjau as dexh. 2. 22.The circumstances of this case present a unique scenario wherein the primary instruments of ownership, which are either a title deed or a certificate of lease are not in existence since the process of titling is still ongoing. Therefore, in determining the issue of ownership of the suit land, this court finds that the testimony of the Physical Planner is central and key, since it is what informs the details that will be contained in the title documents at the end of the process. 23.I have carefully looked at the testimony of the said Charles Kimani Muchai, the physical planner at the Uasin Gishu County Government who testified as DW3. It was his testimony that according to their physical planning register, the registered person/owner of the suit land is the respondent who was registered on 5/1/2023, pursuant to the direction of the DCI Langas Police Station and the ODPP. He further stated that the registration in the name of Abraham Kipkemboi Maiyo was made in the year 2019. 24.The appellant herein did not adduce any document or call a witness to controvert the testimony of Charles Kimani Muchai. In the absence of any proof to the contrary, this court finds that the details as currently contained in the physical planning register reflects the correct and actual position as to the ownership of the suit land. 25.Consequently, this court finds that the appellant failed to prove and sufficiently demonstrate his ownership claims to the required standard. A sale agreement as a stand-alone document cannot be deemed to be satisfactory proof of ownership of a parcel of land, particularly in light of the findings contained in the letter dated 4/11/2022 from the Office of ODPP as well as the letter dated 21/11/2022 form the Office of the Director of Criminal Investigations. 26.It is therefore the finding of this court that the respondent is the actual, beneficial and legal owner of the suit land as contained in the physical planning register. Whether the allegations of fraud raised by the respondent were proved to the required standard; 27.The respondent dismissed the appellant’s ownership arising from the sale as being fraudulent. In support of her allegations, the respondent called DW3, the physical planner working at the County of Uasin Gishu, who testified that the cancellation of the entry of the registration in the name of the appellant was informed by the report from the DCI and the directive from the Office of the Director of Public Prosecutions which confirmed the fraudulent dealings and allegations by Abraham Maiyo. 28.It is trite law that allegations of fraud must be pleaded and strictly proved. In Vijay Morjaria vs. Nansingh Madhusingh Darbar & another [2000] eKLR 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 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 as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 29.From the material and evidence placed before the trial court and which this court has had the opportunity to reappraise, re-evaluate and re-consider, and in particular, the defence filed, the report from the DCI and the letter from the office of the Director of Public Prosecution, this court finds that the particulars of fraud were pleaded and sufficiently proved by the respondent through her witness DW3. 30.Even though the appellant in his memorandum of appeal contends that the trial court made findings on an alleged fraud in the absence of cogent proof and further placed undue reliance on the report of the DCI and the directive from ODPP, in my considered opinion, that is not the correct position. 31.From a critical look at the said documents, DCI report dated 21/11/2022 and the letter from the Office of the Director of Public Prosecution, it is evident that investigations were conducted as to the ownership of suit land herein and the findings of the said investigations were to the effect that the said Abraham Maiyo be charged for fraud. 32.This court has also taken the liberty to look at the contents of pexh. 3, which is the succession file in respect to the estate of Daudi Kimaiyo. From the same, the grant of letters of administration was issued to Abraham Kipkemboi Maiyo on 8/3/2019. A certificate of Confirmation of Grant was subsequently issued on 2/9/2021. The sale between the said Abraham Kipkemboi Maiyo and the appellant herein was on 08.07.2021. 33.It therefore follows that as at the time of the sale transaction between the appellant and Abraham Maiyo, Abraham did not have the capacity to sell and pass a good title to the appellant. The law of succession is clear in this regard, particularly on the limits of the powers that can be exercised by a holder of a grant of letters of administration before the same has been confirmed. 34.Thus, the upshot of the foregoing is that the allegations of fraud raised by the respondent in the trial court were sufficiently proved to the satisfaction of the court. Whether the Appellant is entitled to the orders sought in his plaint and the present appeal; 35.The duty of an appellate court is now well settled. An appellate court will not interfere with findings of fact unless they are based on no evidence, a misapprehension of the evidence, or the wrong application of legal principles. No such misapprehension or application of wrong legal principles has been sufficiently demonstrated in the present appeal. 36.In view of the findings in issues nos. (i) and (ii) above, it is the finding of this court that the appellant is neither entitled to the orders sought in his plaint nor the orders sought in the present appeal. 37.In essence therefore, this court finds no basis to fault the trial court’s finding as contained in the judgment dated 20.05.2025. The same was arrived at upon careful consideration of the evidence adduced by each party and a proper appraisal of each party’s claim. I therefore find that the appeal is not merited.Who should bear the costs of the appeal; 38.The general rule is that costs follow the event unless the court for good reason directs otherwise. 39.In the instant case, having held that the appellant has failed to prove his appeal to the required standard, it is the finding of this court that the respondent should be awarded costs of the appeal. 40.The costs of the appeal will therefore be borne by the appellant. Conclusion: 41.In the upshot, I accordingly find that the Memorandum of Appeal dated 11th June, 2025 is not merited and the appeal is hereby dismissed with costs to the Respondent. 42.It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET THIS 9TH DAY OF JULY, 2026.HON. C. K. YANOJUDGEIn the virtual presence of: -Mr. Maritim for AppellantMr. Wainaina for RespondentCourt Assistant – Laban