https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4350

Opiyo v Ouya (Environment and Land Appeal E012 of 2025) [2026] KEELC 4350 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4350 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Appeal E012 of 2025 FO Nyagaka, J July 9, 2026 Between Hellen Atieno Opiyo Appellant and Jared Obiero Ouya Respondent (Being an Appeal from the Judgment and Decree by Hon. C.N.C. Oruo (PM) in Rongo PMELCC No. E032 of 2021 delivered on 8th April 2025) Judgment 1.The Appellant, then the Plaintiff, instituted a suit in the trial court vide a Plaint dated 1st July 2021 seeking the following orders;1.A Declaration that Suit Parcel referenced as North Sakwa/Kamasoga/899 measuring 3.3 Hectares was fraudulently divided and distributed by the defendant herein resulting to North Sakwa/Kamasoga/1680 in the names of Alfred Owino Olombo and North Sakwa/Kamasoga/1681 in the name of the Defendant.2.A Declaration that the Defendant’s names be cancelled and deleted from the Suit land referenced as North Sakwa/Kamasoga/1681 and the same be reverted in the names of the deceased Alfred Owino Olombo and alternatively and without prejudice to the foregoing the two parcels to revert back to North Sakwa/Kamasoga/899 in the names of Alfred Owino Olombo.3.Permanent Injunction restraining the Defendant and his agents, servants and employees from entering into cultivating, using, disposing and/or in any way conveying the suit land.4.Cost of the suit. 5.Interest on (d) above and 6.Any other Relief that is deemed fit to be granted in the circumstances of the suit. 2.The Appellant pleaded that her deceased husband was the duly registered owner of that parcel of Land referenced as North Sakwa/Kamasoga/899 Measuring approximately 3.3 Hectares and he, Alfred Owino Olombo, died on the 9th of April 2001. She urged that by a letter dated 18th June 2021 from the Ministry of Lands and Physical Planning-County Surveyor Office at Migori she discovered that her husbands’ land referenced as North Sakwa/Kamasoga/899 had been fraudulently subdivided by the Defendant resulting to two subdivisions now referred to as North Sakwa/Kamasoga/1680 and 1681 which are now registered in the names of the deceased - Alfred Owino Olombo and Jared Obiero Ouya respectively. 3.She listed the particulars of fraud on the part of the Defendant and urged the court grant the prayers sought. 4.The Respondent, then the Defendant filed a Defence and Counterclaim dated 8th July 2021 in response to the averments in the Plaint. He denied the contents of the Plaint, urging that the Plaintiff instructed her agents and servants to farm his parcel of land North Sakwa/Kamasoga/1681 without his consent authority thus amounting to trespass. 5.In the Counterclaim, he averred that he and the Appellant’s deceased husband, Alfred Owino Olombo, entered into an agreement through an affidavit which was sworn before Homa-Bay Law Court to purchase one Hectare of parcel number North Sakwa/Kamasoga/899 and on the same date, the Appellants’ late husband paid for mutation of the parcel number North Sakwa/Kamasoga/899 and was issued with receipt number 28976. He urged that the Appellant was trespassing on his land and prayed that the court grant the following prayers;1.A permanent injunction order restraining the defendant/ plaintiff herein either by herself, servants, agents and or any person claiming authority under her from invading and/or trespassing into the plaintiff’s suit land North Sakwa/Kamasoga/1681 and further, stop all illegal acts of cultivation, cutting down of trees and/or indiscriminate destruction of boundary marks.2.Costs of and incidental to this suit. 3.Any other/further relief that this honourable court may deem fit and proper to grant in the circumstances. 6.The trial court, upon considering the testimonies and the evidence tendered in court, dismissed the Plaintiff’s case and entered judgment in favour of the defendant as per his counterclaim by issuing a permanent injunction restraining the Appellant from interfering with the parcel known as North Sakwa/Kamasoga/1681. 7.The Appellant, being dissatisfied with the decision of the trial court, instituted the present appeal vide a Memorandum of Appeal dated 10th April 2025 premised on the following grounds;1.That the learned trial Magistrate erred in law and fact by seemingly pouring cold water on the evidence tendered in support of the Appellant’s case in the subordinate court without giving any reason for doing so.2.That the Learned Magistrate erred in both law and fact by failing to consider, analyze and appreciate the law and appellant’s written submissions.3.The Learned Magistrate erred in both law and fact in being biased against the appellant.4.The Learned Trial Magistrate erred in law in law, in failing to consider and completely ignoring the arguments raised by the Appellants in their Written Submissions filed by the Appellant.5.The Learned Trial Magistrate erred in law in failing to analyze the facts and legal arguments advanced vide the Plaint before Court thereby reaching to (sic) an erroneous decision.6.The Trial Magistrate erred in law and fact by failing to apply the balance of convenience thereby directing that the Plaintiff who has been in occupation of the suit parcel be evicted.7.The Trial Magistrate erred in fact and law when he failed to appreciate that the Respondent according the affidavit produced in Court and relied on as evidence of sale of the suit parcel of land alleged to have purchased only 0.8 Ha but nonetheless transferred 1.0HA of the suit parcel of land without any lawful justification.8.The Trial Magistrate erred in fact and law when he failed to appreciate that the Respondent did not avail before the Honourable Court a land sale agreement in support of purchase of the 1.0HA of the suit parcel of land. 8.The parties were granted leave to file submissions and the Appellant filed submissions dated 20th March 2026. Appellants’ Submissions 9.Counsel urged that the impugned judgment is fundamentally flawed for failure to properly evaluate the evidence tendered before court. He urged that the Appellant produced the Letters of Administration Ad Litem, Official Search for the suit parcel, Mutation Forms, Surveyor’s correspondence and Demand Letter. The Respondent on the other hand admitted during trial that there was no sale agreement, the transaction allegedly proceeded through an affidavit, he did not produce Land Control Board Consent, he did not produce transfer forms and or Land Control Board consents. 10.Counsel urged that despite these glaring deficiencies, the learned trial Magistrate merely accepted the title deed at face value without interrogating the legality of the acquisition process. The court further failed to analyze the central issue raised by the Appellant regarding the acreage discrepancy. Counsel submitted that the failure by a trial court to evaluate material evidence and submissions amounts to a serious error of law warranting appellate interference. He cited Peters vs Sunday Post Ltd [1958] EA 424 in this regard. 11.It is the Appellants’ case that once he challenged the Respondent’s title, the Respondent bore the legal burden of demonstrating the legality of acquisition. The Respondent utterly failed to discharge that burden as he failed to produce a sale agreement, transfer instruments, consent to subdivide, consent to transfer to support his case. 12.Counsel submitted that the learned trial Magistrate fundamentally misdirected himself on the law governing challenged titles. He urged that Section 26(1) of the Land Registration Act provides that a title can be challenged where it has been acquired fraudulently, illegally, unprocedural, through a corrupt scheme. The trial court however treated the Respondent’s title deed as conclusive proof of ownership without requiring proof of legality of acquisition. That approach directly contradicts settled jurisprudence. Reliance was placed on Munyu Maina vs Hiram Gathiha Maina Civil Appeal No. 239 of 2009 and Daudi Kiptugen vs Commissioner of Lands & 4 Others [2015] eKLR. That the trial court improperly shifted the burden to the Appellant by stating that she failed to prove fraud. He maintained that the trial court therefore fell into grave error by validating a title whose root remained unexplained. 13.Counsel urged that another glaring error apparent on the face of the Judgment is that the learned trial Magistrate repeatedly referred to parcel number North Sakwa/Kamasoga/1689 instead of the disputed parcel North Sakwa/Kamasoga/1681. The suit before court concerned parcel number 1681. The court nonetheless, analysed parcel 1689, made findings regarding parcel 1689 and issued orders touching on parcel 1689. This was not a mere typographical error. It demonstrates lack of proper appreciation of the dispute before court and failure to judicially analyze the evidence. 14.Counsel urged that the Respondent’s Counterclaim equally collapsed for want of proof. The Respondent sought permanent injunctive orders alleging trespass by the Appellant. However, no survey report proving trespass was produced, and no independent evidence of encroachment was tendered. The Counterclaim appears to have been allowed merely because the Plaintiff’s suit was dismissed. That was a serious misdirection as a Counterclaim must stand or fall on its own evidence. He urged that the Respondent failed to discharge the burden of proof under Sections 107 and 109 of the Evidence Act. 15.Counsel urged the court to allow the Appeal as prayed. 16.The Respondents opted not to file submissions. Analysis and Determination 17.This being an Appellate Court, I must first state the duty of the court. The principle upon which a first appellate court exercises jurisdiction is well settled. The Court of Appeal in Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123 held that:“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions…” 18.The task of a first appellate court was summarized in Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR 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.” 19.Additionally, the Court of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR 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. 20.Other decisions have arrived at the same view. For instance, in Williamson Diamonds Ltd and another v Brown [1970] EA 1, the court 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.” 21.This was stated in PIL Kenya Limited v Oppong [2009] KLR 442, where it was held that:“It is the duty…of a first appellate court to analyze 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”. 22.Also, it was restated in in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123 wherein the Court of Appeal 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 ...” 23.It was additionally restated by the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR 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” 24.Lastly, in Gitobu Imanyara & 2 others Vs Attorney General [2016] eKLR the Court held as follows;“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that 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 allowances in this respect.” 25.With this understanding, the mandate of this court is to analyse the evidence and the law and arrive at my own conclusion. But before I do so, I have to I shall now recall the hearing and evidence in the trial court. 26.PW1 was Helen Atieno Opiyo who testified that the defendant had encroached onto her parcel of land known as L.R. North Sakwa/Kamasoga/899. Her husband was Alfred Owino Olombo, now deceased who died, in the year 2001. She urged that he has lived on the parcel of land since 1967 and never entered into an agreement to sell the same to Jared Obiero. She stated that she had never seen him the Defendant and that there was no building on the parcel of land. Further, that in the year 2021 she got information from the Assistant Chief with a letter that her parcel of land was to be fenced by the Defendant. 27.She adopted her witness statement as evidence in chief. She reiterated the contents of the Statement. She stated in it that she was suing as the administrator of the Estate of Alfred Owino Olombo. She came to know that her husband’s land had been distributed fraudulently and now it was parcel No. North Sakwa/Kamasoga/1680. Her husband died in the year 2001 on the 9th of April of that year but before his death he did not tell her or her family of any subdivision. Further the defendant had been defrauding her of the suit land. Therefore, it was in the interest of justice that his name be cancelled from the suit land and the two parcels of land revert back to the name of her husband. She asked that the Defendant be restrained forthwith from entering onto the parcel of land. 28.In her oral evidence she produced the Ad Litem letters of Administration as PExhibit 1, a Death Certificate for Alfred Owino Olombo as PExhibit 2, a Letter of Assistant Chief Kanyagwala Sub-location dated 9.4.2019 as PExhibit 3, an Official search for L.R. NORTH Sakwa/Kamasoga/1080 as PExhibit 4, Mutation for LR No. Sakwa/Kamasoga/899 as PExhibit 5, a Letter from the County Surveyor Migori - PExhibit 6, a Letter from County Surveyor Migori dated 18/06/2021 as PExhibit 7 and a Demand Notice dated 07/04/2019 as PExhibit 8. 29.DW1 was Jared Obiero Ouya who stated that he was the registered owner of the land parcel that the Plaintiff was claiming being N. Sakwa/Kamasoga/1681. He adopted his witness statement as evidence in chief. It was to the effect that on 29th May 1992 he and the plaintiff’s husband Alfred Owino Olombo went before the Homa Bay Law Courts and swore an Affidavit confirming that the latter had sold to him a portion of the parcel of land being parcel number 899. Further, on the said date both he and the seller did several activities. The plaintiffs late husband paid for the affidavit and mutation of the parcel of land while he paid for the transfer. Upon the registration of the mutation and name his name was entered and a title number North Sakwa/Kamasoga/1681 issued to him in 1992 which he had owning since then. In January 2020 he was dismayed to realize that the plaintiff had employed and or deployed some strangers to plant and farm sugarcane on his land. Upon approaching her she became violent and uncontrollable. He never acquired the title through fraud but was but did it procedurally. 30.In his oral evidence he produced the Title Deed as DExhibit 1. He denied having seen any report of fraud confirming that the land was fraudulently sub divided. He maintained that he purchased the land in May 1992 and that Olombo died in 2001. That Olombo never sued him for fraudulently acquiring the land, and he had been cultivating ever on the land since 2001. He prayed that the Plaintiff be stopped from accessing the land and her claim be dismissed with costs. Determination 31.I have carefully analysed the grounds of appeal. Although they are eight, I am of the view that they can be condensed into three (3). One was the issue whether the trial court appreciated and carefully analysed the evidence before arriving at the conclusion she did. Secondly, whether the trial court was biased and whether the trial court erred in not considering if at all their submissions by appellant. 32.I have considered the Memorandum of Appeal, the pleadings in the lower court, the law, the evidence tendered therein and the submissions of parties in this Appeal. I have been called upon to reconsider a decision which the trial court arrived at following evidence that was tendered before him. My duty as a first appellate court is clear. The principle upon and the extent to which I exercise jurisdiction is well settled. I have to reevaluate the evidence afresh and arrive at my own conclusion. In the case of Gitobu Imanyara & 2 Others V Attorney General [2016] eKLR, the Court of Appeal 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.” 33.The task of a first appellate court was summarized in Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR 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.” 34.Additionally, the Court of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR 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. 35.Other decisions have arrived at the same view. For instance, in Williamson Diamonds Ltd and another v Brown [1970] EA 1, the court 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.” 36.This was stated in PIL Kenya Limited v Oppong [2009] KLR 442, where it was held that:“It is the duty…of a first appellate court to analyze 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”. 37.Also, it was restated in in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123 wherein the Court of Appeal 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 ...” 38.Lastly, it was additionally restated by the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR 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” 39.Having underscored my duty as an appellate court of first instance, I am of the view that the issues that commend to me for determination are as hereunder and I begin with the first one, being, whether the trial court erred in dismissing the Appellants’ suit. 40.The Appellants’ suit was premised on the grounds that the parcel of land known as North Sakwa/Kamasoga/899 was fraudulently subdivided and distributed by the Respondent without the knowledge or consent of the late Alfred Owino Olombo or his dependants. 41.It is trite law that he who alleges must prove. This position is succinctly captured in Sections 107, 109 and 112 of the Evidence Act. Section 107 provides as follows:“(1)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.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 42.Sections 109 and 112 of the same Act states as follows:“ 109.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. 112.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 43.The majority decision of the Supreme Court in Presidential Election Petition No. 1 of 2017 - Raila Amolo Odinga & Another vs IEBC & 2 Others (2017) eKLR had the following to say on the evidential burden of proof;“Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and “remains constant through a trial with the plaintiff, however, “depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced.” 44.Considering that the suit was premised of fraud, it is imperative to state that a fundamental principle of fraud is that the same must be specifically pleaded and proved. This was aptly expressed in Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where 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” 45.Indeed, fraud cannot be inferred from facts. In Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) vs Stephen Njoroge Macharia [2020] eKLR, the Court of Appeal observed as follows:“In the instant case, the appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a finding that indeed there was fraud….” 46.As regards the burden of proof in matters fraud, the same is higher than that required in civil cases, that of proof on a balance of probabilities; and lower than that required in criminal cases being beyond reasonable doubt. The Court in Moses Parantai & Peris Wanjiku Mukuru (supra), observed as follows:“…. Fraud is a quasi-criminal charge which must, as already stated, not only be specifically pleaded but also proved on a standard though below beyond reasonable double doubt, but above balance of probabilities…” 47.Considering the evidence tendered before the trial court, the Appellant, on her part, sated that her late husband never informed her of the sale of the land in his lifetime. That she only discovered the fraudulent subdivision in 2021 through the area assistant chief that through a letter that her land was to be fenced. 48.As to whether the husband informed her of the sale or not there is other independent evidence to corroborate it. In any event, the husband is long deceased and one cannot vouch for her word without him or that other independent evidence. Thus, it is her oral word against the written documentary evidence about the sale and transfer of the part of the land, to the effect that indeed the portion of land was sold to the defend in the on 29th May of the year 1992. With the evidence that there was an Affidavit sworn by both the deceased and the defendant regarding the sale of part of land parcel number 899 it was incumbent on the appellant to avail evidence to the effect that she did not know of the transaction, particularly when there was evidence of occupation of the suit land by the defendant since the time he bought it, and he has been cultivating it. In any event, the appellant did not avail in evidence the letter from the assistant chief or even call the said assistant chief to give evidence that indeed he summoned her for purposes of having the suit land fenced. In my humble view, the appellant was not able to substantiate the allegations of fraud against the Respondent other than merely stating that he had fraudulently acquired the suit land. 49.I note that the counterclaim sought orders pertaining to North Sakwa/Kamasoga/1681 and the claim pertained to the sub division of North Sakwa/Kamasoga 899 into North Sakwa/Kamasoga/1680 and 1681. The Appellant contends that there is a glaring error apparent on the face of the judgment as the court analysed and made findings pertaining to 1689 instead of 1681. 50.I have perused the Judgement and it is apparent that the trial court referred to parcel no. North Sakwa/Kamasoga/1689 in some instances with regards to the defendants’ parcel of land. However, the Appellants’ claim pertained to the sub division of 899 and therefore, her failure to prove the fraud resulting in the sub division cannot be cured by the trial courts’ erroneous reference to parcel no. North Sakwa/Kamasoga/1689. Additionally, the decree extracted contained the correct parcel numbers and is therefore valid. Therefore, there was no prejudice occasioned to the Appellant by the erroneous reference to North Sakwa/Kamasoga/1689 in the analysis. 51.I also note that the defendant produced a title for 1681 as proof of proprietorship of the said land. Section 26 of the Land Registration Act provides as follows;The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 52.Regarding the import of this provision of the law the appellant submitted that the trial magistrate misapplied it and or misapprehended the same. He argued that by virtue of the title held by the defendant having been under challenge the trial court ought to have inquired into its validity. 53.I have anxiously considered also this ground and argument. The starting point is that where indeed the title of a party is under challenge then it is not enough for the owner or proprietor to wave it over to the other party or court to say that he is the owner and that it is indefeasible when it is the very document of ownership that is under challenge. He has to go beyond the existence of that title to prove how he acquired it. But the burden does not just shift to that party merely because the adverse party is shouting at the roof top that he/she has a challenge to validity thereof. He who alleges must discharge his burden first. It is important to note that under sections 107 108109 and 112 of the Evidence Act the person who is challenging the validity of that title is the one on whom the onus lies to prove that that title was acquired by either by fraud, misrepresentation, illegally or through corrupt means in order for it to be cancelled. It is when the claimant has proved that fact to the required standard of a balance of probabilities that the burden lies upon the defendant to prove how he acquired it. In this case as I have found there was no proof on the part of the plaintiff or appellant that there was fraud involved in the acquisition of the title initial. Therefore, that argument fails. 54.As the Appellant challenged the title of the Respondent, it was upon her to provide evidence of the fraud to the required standard and as aforestated, she failed to meet the burden of proof in this regard. 55.The ground that the trial court held in law and fact in not considering or ignoring the submissions by the appellant is not merited. This is so for the reason that, first, I have noted, perused, considered and found the trial court considered the parties’ submissions. Secondly, even if the not have considered the submissions, since submissions do not amount to pleadings or evidence of the parties but are merely a language of the parties to market their cases or so to say to urge their case before the court, failure to consider them is not fatal, that is, even if the court does not consider them or does so in part, it is not fatal to the merits of a judgment or ruling that is arrived at. For this finding, the appellant is referred to the case of Moi v Muriithi & another (Civil Appeal 240 of 2011) [2014] KECA 642 (KLR) (9 May 2014) (Judgment), where the Court of Appeal stated as follows:“Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” 56.The last issue is whether the trial court was biased. I have carefully considered this ground of appeal. The appellant never argued on it. It therefore means that she abandoned it and the court need not go into the discussion on it. Nevertheless, I have read and read again the judgment: many times over. I do not see any bias in any part thereof. 57.The upshot of the foregoing is that the appeal lacks merit. It is hereby dismissed. The Appellant shall bear the costs of the Appeal. 58.It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 9TH DAY OF JULY 2026.HON. DR. IUR NYAGAKAJUDGEIn the presence ofMr. Adingo for the AppellantMs. Ogutu for the Respondent