https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4220

Owino v Mala & another (Environment and Land Appeal E009 of 2025) [2026] KEELC 4220 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEELC 4220 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Appeal E009 of 2025 FO Nyagaka, J June 16, 2026 Between Glory Achieng Owino Appellant and Jared Ochieng Mala 1st Respondent Peter Kaugi Rabuki 2nd Respondent (Being an appeal from the judgment of the Resident Magistrate Hon. Chrispine N.C. Oruo (RM) delivered on the 21st February, 2025 in Rongo MCELC No. 40 of 2018) Judgment Introduction 1.This is an appeal arising from the judgment of Honourable Chrispine N. C Oruo Resident Magistrate, delivered on 21st February, 2025 in Rongo MCELC No. E040 of 2018. 2.The Appellant filed a Memorandum of Appeal dated 19th March, 2025 appealing against the said judgment on the following grounds: -1.The learned trial magistrate failed to appreciate that the plaintiff's claim was based on the statutory right of a spouse over matrimonial property and that in failing to seek and obtain the said consent, the sale of LR No. Kamagambo/Kanyajuok/2752 was in itself null and void and contrary to law.2.The learned trial magistrate erred in law and fact in not coming to a. conclusion that in terms of and as per the provisions of Section 26(1) Land Registration Act 2012, the lack of spousal consent to the LR No. Kamagambo/Kanyajuok/2752, was contrary to statute was thus illegal and unprocedural.3.The learned trial magistrate failed to make a finding that the mere lack spousal consent to sale of matrimonial property, without more was proof of failure to comply with procedure and the sale of LR No. Kamagambo/Kanyajuok/2752 was subsequently tainted with illegality and procedural.4.The learned trial magistrate failed to properly or adequately evaluate plaintiff's evidence so as to come to a just decision in favour of the Appellant. 3.The Appellant seeks for orders that the judgment be set aside, an order that the sale of L.R No. Kamagambo/Kanyajuok/2752 vide agreement dated 13th February, 2017 was illegal and the cancellation of the title in 2nd Respondent’s name to that of the 1st Respondent. She also seeks for costs for the appeal. Brief Facts 4.The Appellant had filed a suit against the Respondents vide a Plaint dated 14th February, 2018 seeking an order of declaration that the 1st Respondent held shares on the suit property in trust for her and that she was entitled to half share of the matrimonial property. 5.She also sought for cancellation of the registers in respect of L.R. Kamagambo/Kanyajuok/2751 and 2752, together with an eviction order against the 2nd Respondent from L.R Kamagambo/Kanyajuok/2752. 6.The 1st Respondent denied the allegations in the Plaint vide his statement of defence and counterclaim dated 15th August, 2018. He sought for orders declaring that the sale agreements dated 13th February and March, 2017 were void, permanent injunction restraining the 2nd Respondent from occupying L.R Kamagambo/Kanyajuok/2752. 7.The 2nd Respondent also filed his defence and counter claim dated 7th March, 2018 where he denied the Appellant’s claim and urged the court dismiss the claim and a declaration that he was the lawful owner of the suit property. 8.The trial magistrate in his judgment dated 20th February, 2025 found that the 2nd Respondent was a bona fide owner of the suit parcel L.R Kamagambo/Kanyajuok/2752. 9.The Appellant being dissatisfied with the judgment filed the present appeal which was canvassed by way of written submissions. Submissions 10.Counsel for the Appellant filed his submissions dated 26th November, 2025 where he identified two issues for determination. The first issue was whether the the court was in error in coming to conclusion that the property sold being L.R No. Kamagambo/Kanyajuok/2752 was not matrimonial property and the second issue was whether the court erred in land (sic) in finding that lack of spousal consent was fatal to the sale transaction. 11.On the first issue, it was his submission that the issue of spouse was central to the suit and counterclaim. He submitted that the issues formulated by the trial magistrate did not list the said issue. 12.It was his submission that the Appellant and the 1st Respondent affirmed their marriage to each other. He added that PW1 and DW1 admitted to this fact in their evidence. He added that the marriage between them was not disputed and added that the 2nd Respondent merely denied their marital status. 13.Counsel referred to paragraph 15 and submitted that the 2nd Respondent’s defence and counterclaim was convoluted and self-contradicting. He further submitted that the 2nd Respondent acknowledged the Appellant as a wife to the said sale. He submitted that the trial magistrate’s conclusion that the Appellant and 1st Respondent were merely cohabitees was not founded on any evidence. 14.He argued that aside from customary law, common law recognized marriage through long cohabitation. He cited the case of Williams Glyn’s Bank V Boland (1979) ALL ER 697. 15.It was his submission that the Appellant’s presence in the compound at the time of sale was sufficient to inform him that he ought to have exercised due diligence rather than assume that the relationship was non-existent. 16.On the second issue, counsel submitted that from the 2nd Respondent’s pleadings, he was aware of the need for a spousal consent. He relied on line 10-20 of his written statement. 17.He further submitted that the 1st Respondent had paid dowry and lived with the Appellant. He cited Section 93 of the Land Registration Act which placed a presumption of law that spouses held land as joint tenants as well as in trust for each other. 18.He relied on the case of Susan Anna Karanja V Lenana Towers Ltd 2014 eKLR and Mugo Muiru Investments Ltd V EWB & 2Others [2017] eKLR together with Section 28 of the Land Registration Act. 19.He submitted that no proper sale took place between the 1st and 2nd Respondent for lack of spousal consent and urged the court to allow the appeal as prayed. Respondents’ Submissions 20.Counsel for the 1st Respondent filed his submissions dated 18th March, 2026 where he identified the following issues for determination:a.Whether a valid marriage existed between the Plaintiff and the 1st Defendant.b.Whether the suit property constituted matrimonial property.c.Whether spousal consent was required at the time of transaction.d.Whether the sale transaction is valid and enforceable.e.Whether the Plaintiff has established any overriding interest or trust. 21.On the first issue, he submitted that the Appellant alleged that she had entered into a Luo customary marriage with the 1st Respondent yet failed to demonstrate the essential elements being negotiation and agreement between families, payment of or (substantial part) of dowry (bride price) and ceremonial recognition of the union. He argued that there was no corroborative evidence of dowry completion. 22.He relied on the case of Hortensiah Wanjiku Yawe V Public Trustee (1976) eKLR and submitted that the relationship was informal denied any formal marriage.He added that the Appellant brought a child from a prior relationship and there was no consistent evidence of societal recognition of the union as a valid marriage. 23.On the second issue, counsel submitted that the Appellant failed to prove that the suit property constituted matrimonial property within the meaning of the law. He relied on Section 6 of the Marriage Act ,2014 and Section 2 of the Matrimonial property Act 2013. 24.It was his submission that the suit property was solely registered in the 1st Respondent’s name and that there was no evidence to prove that it had been jointly acquired or developed by himself and the Appellant. He cited the case of P.N.N V Z. W.N (2017) eKLR and Echaria V Echaria (2007) eKLR. 25.On the third issue, he relied on Section 93 of the Land Registration Act, 2012 and submitted that where marriage has not been proved, the requirement of spousal consent does not arise. 26.He further relied on Section 3(1) of the Marriage Act 2014, and submitted that the Luo customary law as alleged by the Appellant must be registered or proved under recognized systems. 27.He added that the Appellant failed to prove the essential elements of a Luo Customary marriage including full dowry processes. He argued thatwith the assumption that there was marriage, the Appellant has not demonstrated that she asserted her rights at the time of sale and there was no evidence of constructive notice of the transaction. 28.On the fifth issue, he relied on Section 24 and 25 of the Land Registration Act 2012 and submitted that the 1st Respondent being the registered owner of the suit parcel, he had legal capacity to sell. 29.He went on to submit that the 1st Respondent lawfully entered into a sale agreement with the 2nd Respondent for valuable consideration of Kshs. 600,000. He cited the case of Katande V Haridar & Co. Ltd (2008). 30.He submitted that the 2nd Respondent conducted due diligence and established that there was no proof of any spousal interest. He added that the Appellant’s claim on an overriding interest under Section 28 of the Land Registration Act was not proved. 31.He relied on the case of Mbui Mukangu V Gerald Mutwiri (2004) eKLR and submitted that the Appellant failed to demonstrate financial contribution, proprietary interest and any legally enforceable trust. 32.Counsel argued that the transaction was voidable at the option of the non-consenting spouse only where spousal status was established which was not the case in the present matter. 33.He further argued that the Appellant continued residing on the land, benefited from the proceed and occupation and failed to object at the time of the sale. He cited the case of Kinyanjui Kamau V George Kamau (2025) eKLR and submitted that the Appellant failed to prove any fraud. 34.In conclusion, he prayed that the court does dismiss the appeal. Analysis and Determination 35.Upon consideration of the grounds of appeal, the Memorandum of Appeal together with the grounds therein and the trial court pleadings, the parties’ submissions herein and the authorities cited, together with the law, the following issues are for determination:1.Whether the agreement and sale of the suit land was subject to spousal consent.2.Whether the land was held in trust by the 1st Respondent for the Appellant.3.Whether the Appellant has proved breach of trust thereby establishing commission of fraud in sale of the suit parcel.4.Who should bear the cost of the appeal. 36.This is a first appeal. Therefore, the legal position regarding how this court should determine such an appeal is settled. Where this court is determining an appeal arising from a decision made by the lower court based on a determination on merits of the evidence and the law, this Court is obligated to analyze the evidence afresh and the law and draw its own considered findings on them. The Court of Appeal has clearly restated the position that this court must evaluate the evidence afresh and arrive at its own conclusion even though it did not see the witnesses testify so as to form an opinion on their demeanor, unless specifically recorded. 37.This above position was stated by the Court of Appeal in the case of Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR wherein it discussed the duty of the first appellate court as follows;“An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must consider the evidence, evaluate it itself and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 38.Additionally, in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123 the same Court held:“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence ...” 39.Also, in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR it was restated as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 40.Again, in the case of Susan Munyi v Keshar Shiani (2013) eKLR the Court the of Appeal stated as follows:“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions” 41.Similarly, in Williamson Diamonds Ltd and another v Brown [1970] EA 1, it held that:“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.” 42.Furthermore, in PIL Kenya Limited v Oppong [2009] KLR 442, it was held that:“It is the duty…of a first appellate court to analyse and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses and their demeanour and giving allowance for that”. 43.In the present case, it this court’s view that the gravamen of the dispute is that the 1st Respondent who is allegedly the Appellant’s husband failed to get spousal consent allowing him to sell the suit property to the 2nd Respondent hence making the sale agreements dated 13th February and March, 2017 void. That issue turns on a first nuanced determination as to whether there was or was not a valid marriage between the appellant and the 1st Respondent. But I must say at this very first point that I am not called upon and will not in any way venture into determining whether or not the respondent and the appellant are husband and wife as that would fall outside of my jurisdiction and I would err in law if I so do. However, the point is that I am called upon to determine whether the property in issue was matrimonial in nature and that therefore its transfer or sale for that matter to a third party was subject to the grant of spousal consent by the party who was not registered as owner yet had interest in it by virtue of being a spouse. 44.In Mosaisi & another v Akombe & another (Environment & Land Case E014 of 2022) [2024] KEELC 134 (KLR) (18 January 2024) (Judgment), this Court, in determining a similar issue held as follows:“This Court makes a finding that if PW1 and PW2 got married, if it will be an issue before a relevant court, then it was long after PW1 and the Akombe family acquired the suit land and commenced construction thereon and moved to an advanced stage. This is because in his statement PW3 indicates that construction of the house started in the year 2020 and that was when PW1 introduced PW2 to him. By that time PW1 already had the tittle to the suit land issued to him. That being so, by that time the 2nd Plaintiff was not in picture as a wife of the 1st Plaintiff, given her own testimony regarding payment of part dowry.” 45.By the same token, in determining the first issue this Court shall not declare a marriage or none between the appellant and the 1st Respondent. All it is to do is to consider whether by the time the transactions impugned took place there was evidence, tendered by them in the trial court, that there existed a marriage between them. It is a minute distinction this court is to make as it navigates the issue of a claim of spousal consent having existed. This is cardinal because the appellant states that the 1st respondent did not consult her and get her consent to sell the property in issue. She thus sought to prove that they were husband and wife by the time of sale and transfer. 46.It is trite law that he who alleges must prove. Section 107 of the Evidence Act provides;“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.” 47.It is this court’s view that when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. It is without a doubt that the onus was on the Appellant to prove that she was the 1st Defendant’s wife. 48.Further, Section 109 of the Evidence Act provides as follows;“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 49.I have keenly perused the record and it is was the Appellant’s claim that she was married to the 1st Respondent in 2007. She further claimed that she was entitled to overriding interests over the suit property. 50.Section 93 (3) (b) of the Land Registration Act provides that:-“Where a spouse who holds land or a dwelling house in his name undertakes individually a disposition in that land the transferee shall if that disposition is a transfer of land be under a duty to inquire of the transferor of whether the spouse(s) has consented to that transfer...” 51.Further, Section12 (1) Matrimonial Property Act states that;“An estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage and without the consent of both spouses, be alienated in any form, whether by way of sale, gift, lease, mortgage or otherwise.” 52.In the case of Kadzo Mkutano V Mukutano Mwamboje Kadosho & 2 others [2016] eKLR the court held as follows;“Section 28 of the Land Registration Act recognizes spousal rights over matrimonial property as an overriding interest. Spousal consent, is therefore required before a spouse can sell matrimonial property. In the absence of such a consent, the sale becomes null and void”. 53.During cross-examination, PW1 stated that she got married to the 1st Respondent in the year 2018 while in re-examination, she stated that it was in 2017. But her pleadings claimed that the marriage was in 2007. The issue as to when the Appellant and 1st Respondent got married first was critical in this matter. 54.The 1st Respondent, on the other hand, stated that they got married in 2004 and that he had promised to pay the dowry in the year 2008. He added that the suit property was ancestral land. 55.Notably, the Appellant claimed that they had a child together with the 1st Respondent. However, during cross examination, it was proved and it came out from her that the child did not belong to the 1st Respondent but was born out of wedlock. 56.Regarding the claim above, DW2 and DW3 also gave evidence to the fact that the Appellant and the 1st Respondent were not married at the time of the sale transaction. The question that was critical to find out was whether then the contradictions of the pleadings and the evidence the appellant and the 1st Respondent left the court with the proof that there existed a marriage between them at the time of the impugned transaction as to require the appellant to have given spousal consent. 57.In the case of Anne Wambui Ndiritu V Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue” 58.It is this court’s view that going by the inconsistencies in testimonies by both the Appellant and the 1st Respondent, it is my opinion that proof of marriage as at the time of the agreement and sale (emphasis added) was never discharged to the required standard as there was no evidence tendered that the Appellant was the 1st Respondent’s wife. 59.It is not in dispute that the sale agreement was entered into on 13th February, 2017 and this court having found that the Appellant and 1st Respondent were not husband and wife, it follows that spousal consent was not a requirement at the time of sale. 60.It is trite law that parties are bound by their pleadings and they cannot be permitted to lead evidence that trudges beyond their pleadings. In the instant case the pleadings were to the effect that the marriage took place in 2007. The evidence was contradictory in that respect. What the court makes of this is that the claim of marriage existing at the time of the transaction was an organized conjured idea by both parties to fit into the requirements of the law in order defeat a proper transaction. 61.It is my opinion that there was no evidence that the suit property was matrimonial property or that spousal consent was required before it could be transferred to the 2nd Respondent. 62.Going to the second issue which is whether the land was held in trust by the 1st Respondent for the Appellant, trust is a legal issue whose existence can only be established within the prism of the principles the law delineates to bind it. In the instant case, the appellant was claiming that the property was a customary trust. In the case of Kiebia V M’lintari & another [2018] KESC 22 (KLR) the court held as follows:Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as the construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor. Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia that what is essential is the nature of the holding of the land and the intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:1.The land in question was before registration, family, clan or group land;2.The claimant belongs to such family, clan, or group; 3.The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous; 4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances; 5.The claim is directed against the registered proprietor who is a member of the family clan or group” 63.Guided by the above authority, it is my opinion that the suit property did not fall under any the above category to warrant it to be held in trust. 64.It is this court’s view that the 1st Respondent being the registered owner of the suit parcel by virtue of the title issued to him on 21st March, 2017 together with the official search, never held the suit property in trust for himself or the Appellant. 65.On the final issue which is whether the appellant proved breach of trust by the 1st respondent who would be said to have thereby committed fraud in the process of the sale of the property, I must state that the claim was primarily hinged on breach of customary trust. The four grounds of appeal also revolved around the same issue. Evidence was not led on proof of fraud or illegality hence the issue rests there. 66.Consequently, or the upshot if it all is that the appeal is without merit and is hereby dismissed. 67.On costs of the appeal, these parties being neighbours now by virtue of settlement in the same place, for harmony purposes each party to bear their own costs. 68.It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 16TH DAY OF JUNE 2026.HON. DR. IUR NYAGAKA,JUDGEIn the presence of,Mr. Oduk for the AppellantMs. S.M. Onyango for the 2nd RespondentMr. S.M. Onyango holding brief for Odongo for 1st Respondent