Wakhusama v Musotsi & 2 others (Environment and Land Appeal E054 of 2024) [2026] KEELC 3921 (KLR) (17 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC LAND APPEAL NO. E054 OF 2024** **JACKTONE INDAKWA WAKHUSAMA…..….….….. APPELLANT** **VERSUS** **JAVAN MAKACHIA MUSOTSI.……….…….1ST RESPONDENT** **MOSES SHICHESO MUSOTSI…………….…2ND RESPONDENT** **LIVINGSTONE OMUSOTSI ASUMWA…...3RD RESPONDENT** ***(Being an appeal against the judgment and decree of Hon. E. Wasike, (SPM) delivered on 15th August 2024 in Butere MCELC Case No. E007 of 2022)*** **JUDGMENT** **Introduction** 1. This appeal emanates from the judgment of Hon. E. Wasike (SPM) delivered on 15th August 2024 in Butere ELC Case No. E007 of 2022. In the impugned judgment, the learned trial magistrate dismissed the appellant’s claim for eviction and permanent injunction over land parcel MARAMA/LUNZA/3878 and instead allowed the 3rd respondent’s counterclaim and thereby cancelled the appellant’s title for parcel No. Marama/Lunza/3878 and ordered that the suit property be registered in the name of Asuma Ambetsa Omusimishi (deceased). The trial court found, *inter alia*, that there was no valid land sale agreement between the appellant and the respondents; that the appellant had improperly procured registration of the suit property in his name through the succession process relating to the estate of the late Asuma Ambetsa Omusimishi, and that the title held by the appellant was neither absolute nor indefeasible. 2. Consequently, the court issued a permanent injunction restraining the appellant from interfering with the respondents’ occupation and use of the suit property, ordered cancellation of the appellant’s title to land parcel MARAMA/LUNZA/3878 and directed that the land revert to the name of the deceased, Asuma Ambetsa Omusimishi, with costs awarded against the appellant. **Background** 1. The suit before the trial court was commenced by the plaintiff (appellant herein) vide a plaint dated 10th February 2022 where he pleaded that he was the registered proprietor of Land Parcel No. MARAMA/LUNZA/3878 measuring 0.80 hectares, having purchased the same from the 3rd respondent. That the parcel arose from the subdivision of MARAMA/LUNZA/803 and that although his title initially reflected an erroneous acreage of 1.1 hectares, the error was rectified through consent orders recorded in Butere Succession Cause No. 8 of 2018. 2. The appellant further pleaded that upon completion of the transaction, the respondents were expected to vacate the suit property, but instead unlawfully entered and occupied a portion thereof measuring approximately 1½ acres, thereby interfering with his possession and enjoyment of the land. He contended that the respondents had refused to vacate despite demand and were trespassers on the suit property. Consequently, he sought orders of eviction and permanent injunction against the respondents, together with costs and any other appropriate relief. 3. In response to the plaint, the 1st and 2nd respondents filed a joint statement of defence dated 21st February 2022 and stated that the appellant had improperly procured registration of the suit land in his name through the succession proceedings relating to their grandfather’s estate and that the title deed reflected acreage inconsistent with the land allegedly purchased. That they had occupied their respective portions of the land pursuant to inheritance arrangements made by their father pending completion of succession proceedings. They denied trespassing onto the suit property, asserted that the appellant had never been in possession or use of the land, and prayed that the appellant’s suit be dismissed with costs. 4. The 3rd defendant filed a statement of defence and counterclaim dated 26th September 2022. He denied the plaintiff’s claim and contended that Land Parcel No. MARAMA/LUNZA/3878 was a subdivision of Land Parcel No. MARAMA/LUNZA/803 belonging to his late father, Asuma Ambetsa Omusimishi. That the appellant was never entitled to the entire parcel measuring 1.1 hectares but was only entitled to a portion measuring 0.2 hectares, which had allegedly been agreed upon as consideration for financing and facilitating the succession proceedings relating to the deceased’s estate. He further denied that there had been any sale of the suit land to the appellant and asserted that the appellant had taken advantage of his illiteracy and the succession process to acquire a substantially larger portion of land than had been agreed. 5. That the appellant had been given possession of the agreed portion measuring 0.2 hectares, which he continued to occupy, but had unlawfully procured registration of the entire parcel in his own name. He contended that the appellant’s registration was fraudulent, unlawful and founded on material misrepresentations, particulars of which included misrepresenting the extent of land due to him, failing to disclose the true costs incurred in the succession process, and causing himself to be registered as proprietor of land far exceeding the agreed portion. 6. In his counterclaim, the 3rd defendant sought a declaration that the transfer and registration of Land Parcel No. MARAMA/LUNZA/3878 in the appellant’s name was unlawful and ought to be cancelled; that the land revert to the name of the deceased, Asuma Ambetsa Omusimishi, or alternatively be registered in the 3rd defendant’s name as the beneficial owner; and a permanent injunction restraining the appellant from selling, leasing, alienating or otherwise interfering with the respondents’ occupation and use of the suit property. 7. The plaintiff thereafter filed a response to the 3rd defendant’s statement of defence and counterclaim dated 11th April 2023 in which he denied the allegations of fraud, misrepresentation and unlawful acquisition of the suit property. He maintained that he was the absolute and indefeasible proprietor of Land Parcel No. MARAMA/LUNZA/3878 measuring 0.80 hectares and contended that his entitlement to the land arose from a consent recorded in Butere Succession Cause No. 8 of 2018, pursuant to which he was allocated two acres in consideration of financing the succession proceedings. 8. He denied that he was only entitled to 0.2 hectares and asserted that he had fulfilled his obligations under the parties’ arrangement, taken possession of the suit property since 2014, and developed the same. That the issues relating to his entitlement to the land had already been determined in the succession proceedings and urged the court to dismiss the counterclaim with costs. 9. The suit proceeded to hearing through *viva voce* evidence. The plaintiff testified as the only witness, whereas the defence called three witnesses in support of their case. **Plaintiff’s evidence** 1. PW1 was Jacktone Indakwa Wakhusama, the plaintiff. He adopted his witness statement dated 10th February 2022 as his evidence in chief and testified that he was the registered proprietor of Land Parcel No. MARAMA/LUNZA/3878 measuring 0.80 hectares, having acquired the same from the 3rd defendant. That the suit property arose from the subdivision of Land Parcel No. MARAMA/LUNZA/803 and that although his title initially reflected an acreage of 1.1 hectares, the error was subsequently rectified through succession proceedings. That the defendants had unlawfully entered and occupied a portion of the suit property despite the understanding that they would vacate upon completion of the transaction. According to him, efforts to resolve the dispute through the local administration were unsuccessful and the defendants had continued to interfere with his possession and use of the land. 2. On cross-examination, he maintained that he acquired the suit property through an agreement with the 3rd defendant and paid Kshs. 300,000/-. That the defendants refused to vacate the portion of land allocated to him. He denied encroaching on the defendants’ land and reiterated that his entitlement to the suit property had been recognized and regularized through the succession proceedings. In re-examination, PW1 reiterated that the suit property was allocated to him by the 3rd defendant through Succession Cause No. 72 of 2014 and that the defendants were expected to vacate the land after the transaction but had failed to do so. That marked the close of the plaintiff’s case. **Defence evidence** 1. DW1 was Javan Makachia Omusotsi, the 1st defendant. He testified that he did not sell any land to the plaintiff and that he did not have any land sale agreement with the plaintiff. On cross examination, he stated that the plaintiff constructed a house on a portion of land that was shown to him by DW1’s father. That he was unaware of any transactions between his father and the plaintiff. 2. DW2 was Moses Shicheso Omusotsi, the 2nd defendant. He denied that the plaintiff had purchased any land from their family and stated that he had occupied his portion of the land since 2000. He further testified that the plaintiff only settled on the land in 2016 after being allocated a portion by the 3rd defendant during succession proceedings. According to him, the plaintiff's claim arose from an arrangement between the plaintiff and the 3rd defendant and not from any sale of land. 3. DW3 was Livingstone Omusotsi Asumwa, the 3rd defendant. He testified that he was the administrator of his late father's estate and that the plaintiff had agreed to assist him in undertaking succession proceedings and surveying the land. In return, he allocated the plaintiff a portion of land. He stated that he included the plaintiff as a beneficiary in the succession cause on the understanding that the plaintiff would fulfil his part of the arrangement, but the plaintiff failed to do so. He denied selling land to the plaintiff and maintained that the plaintiff was only entitled to the portion allocated to him under their agreement. He further testified that he had commenced proceedings to challenge the title issued to the plaintiff and sought cancellation thereof. Upon cross-examination, he reiterated that the plaintiff's entitlement arose solely from their arrangement relating to the succession process and not from any sale transaction. That marked the close of the defence case. 4. Upon considering the pleadings, evidence and submissions placed before it, the trial court found that there was no valid land sale agreement between the appellant and the 3rd respondent, the alleged transaction having failed to comply with the requirements of **section 3(3) of the Law of Contract Act.** The court further held that the appellant's registration as proprietor of the suit property was tainted by irregularities arising from the succession proceedings relating to the estate of the late Asuma Ambetsa Omusimishi and that the title was therefore not absolute or indefeasible. Consequently, the court dismissed the appellant's suit, allowed the 3rd respondent's counterclaim, issued a permanent injunction restraining the appellant from interfering with the respondents' occupation and use of the suit property, ordered cancellation of the appellant's title to Land Parcel No. MARAMA/LUNZA/3878 and directed that the land revert to the name of the deceased, Asuma Ambetsa Omusimishi, with costs awarded against the appellant. 5. Being aggrieved by the trial court’s decision, the appellant lodged the present appeal vide a Memorandum of appeal dated 16th September 2024, citing the following grounds of appeal: 6. **THAT the learned trial magistrate erred in law and in fact in finding for the respondents contrary to the pleadings on record.** 7. **THAT the learned trial magistrate erred in law and in fact in cancelling the appellants title contrary to the evidence on record and the relevant law.** 8. **THAT the learned trial magistrate's erred in law and in fact in failing to find that the appellant was entitled to vacant possession of the suit land.** 9. **THAT the learned trial Magistrate erred in law and in fact in reverting the suit land to its original title number Marama/Lunza/803 contrary to the evidence on record.** 10. **THAT the learned trial magistrate erred in law in re-determining a matter that had already been determined by a court of concurrent jurisdiction in succession cause NO. 72/2014 hence occasioning a miscarriage of justice.** 11. **THAT the learned trial magistrate had no jurisdiction to order cancellation of registration of land parcels Nos, Marama/Lunza/3877,3878 and 3879 having been created through court process in succession cause No. 72/2014.** 12. **THAT the learned trial magistrate erred in law and in fact in cancelling the subdivision of land parcel No. Marama/Lunza/803 into 3877,3878 and 3879 contrary to the evidence on record and without jurisdiction.** 13. Consequently, the appellant prayed that the appeal be allowed with costs. 14. The appeal was canvassed by way of written submissions. On record are submissions dated 30th April 2025 filed by the appellant and submissions dated 10th November 2025, filed by the respondents; both of which this court has duly considered. **Appellant’s submissions.** 1. The appellant submitted that he was lawfully entitled to Land Parcel No. MARAMA/LUNZA/3878 measuring 0.8 hectares, having acquired the same through agreements reached with the 3rd respondent in the course of financing and facilitating succession proceedings relating to the estate of the late Asuma Ambetsa Omusimishi. He argued that the parties voluntarily entered into and adopted a consent in Butere Succession Cause No. 72 of 2014, pursuant to which an amended certificate of confirmation of grant was issued and the suit property registered in his name. He maintained that the respondents fully participated in the succession proceedings and were therefore bound by the resultant orders and distribution of the estate. 2. The appellant further submitted that he had been in open, peaceful and uninterrupted occupation of the suit property for over eleven years, during which period he had developed the land by constructing a home. He contended that the respondents had never laid any lawful claim to the land until the present dispute arose and that their challenge to the acreage allocated to him was an afterthought intended to defeat his proprietary rights. According to the appellant, the evidence of the defence witnesses corroborated his occupation and development of the suit property. 3. On the issue of eviction, the appellant submitted that the respondents had unlawfully encroached upon and occupied a portion of the suit property, thereby interfering with his quiet possession and enjoyment thereof. He argued that, as the registered proprietor, he was entitled to exclusive possession and use of the land and that the respondents ought to be evicted therefrom and restrained from further interference. 4. The appellant further submitted that the trial court lacked jurisdiction to revoke or cancel his title since the question of distribution of the estate had been conclusively determined in Butere Succession Cause No. 72 of 2014 through a consent adopted by the court and an amended certificate of confirmation of grant subsequently issued. He contended that the learned trial magistrate effectively sat on appeal against orders made in the succession proceedings whereas the court was *functus* *officio*. **Respondents’ submissions** 1. The respondents submitted that the suit property originated from Land Parcel No. MARAMA/LUNZA/803, which formed part of the estate of the late Asuma Ambetsa Omusimishi and was distributed through Butere Succession Cause No. 72 of 2014. According to the respondents, the appellant had only agreed to finance the succession proceedings in return for a small portion of land, but ultimately procured registration of a substantially larger portion than had been agreed. 2. The respondents further submitted that the appeal was incompetent for having been filed outside the statutory period without leave of the court. That the judgment of the lower court was delivered on 15th August 2024 and that the time prescribed for filing an appeal had lapsed before the present appeal was lodged. They urged the court to dismiss the appeal on that ground alone. 3. On the merits, the respondents submitted that the appellant had no lawful claim to the suit property and that any transaction concerning the estate of the deceased outside the succession process was null and void. That the appellant was neither a beneficiary nor a dependant of the deceased and that his inclusion in the succession proceedings and subsequent registration as proprietor of the suit property were unlawful. Further, if the appellant had any claim arising from his arrangement with the 3rd respondent, such claim could only be pursued against the 3rd respondent after distribution of the estate and not through acquisition of the suit property. **Analysis and determination** 1. The court has carefully considered the appeal, the entire record and rival submissions. The duty of this court as a first appellate court is to reassess, reconsider and reanalyze, the evidence presented in the trial court and make its own independent conclusions bearing in mind that it had no opportunity to see or hear witnesses and make due allowance for that. 2. In the case of **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR**, the court reiterated the duty of the first appellate court thus; **“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…’’** 1. Article 40 (6) of the Constitution of Kenya only protects the right to acquire and own property in respect of property that is lawfully acquired. 2. Section 26 of the Land Registration Act provide for indefeasibility of title as follows; **“Certificate of title to be held as conclusive evidence of proprietorship** **(1) 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.”** 1. Thus, registration of land vests in the proprietor thereof absolute and indefeasible rights unless there is proof that the acquisition of the said title was by fraud, misrepresentation, illegality, want of procedure or corruption. 2. In the case of **Dina Management Limited v County Government of Mombasa & 5 Others,** the Supreme court of Kenya held that a title obtained unlawfully cannot confer lawful ownership. 3. It is trite that where fraud is alleged, the same ought to be specifically pleaded and strictly proved. The standard proof of fraud is slightly higher than the standard required in ordinary civil cases of the balance of probability, but slightly below the standard of proof in criminal cases of beyond reasonable doubt. In **Kinyanjui Kamau –vs****George Kamau [2015] e KLR,** the court held as follows; - **“…it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo –vs- Ndolo [2008]1 KLR (G & F) 742 wherein the court stated that: “…we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the****Respondent was certainly not one beyond a reasonable doubt as****in Criminal Cases…”** 1. In the instant case, the appellant stated that he purchased land from the 3rd respondent. He did not state when he purchased the suit property, the consideration paid and the manner of payment of consideration. He also did not produce a sale agreement to show that he lawfully acquired the suit property by purchase. 2. The 3rd defendant stated that the appellant took advantage of his illiteracy to acquire more land than he was entitled to, which is o.2 hectares. 3. I have considered the evidence on record, although the appellant stated that he was entitled to 0.8 hectares, there was no evidence of purchase of the same and or payment of consideration thereof. The appellant pleaded that he was erroneously allocated 1.1 hectares and that that issue was resolved vide Succession Cause No. 8 of 2018. Looking at the mutation presented, the appellant produced mutation signed by the 3rd respondent granting him 1.1 hectares. It is therefore clear that the appellant merely took advantage of the 3rd respondent illiteracy to get him to sign mutation forms in his favour as there was no purchase of 1.1 Hectares to justify the said mutation. The 3rd respondent’s averment that he agreed to give the appellant half an acre, if he assisted him with the Succession process was not controverted by the appellant. 4. In addition, the registration of the suit property in the name of the appellant as a beneficiary of the estate of Asumwa Ambetsa Omusimishi in the name of Jacktone Indakwa Asumwa was unlawful because the registration process of a purchaser which require him to make payment of stamp duty was not followed. A purchaser cannot lawfully obtain title to land without paying stamp duty like in the case before court. The appellant’s registration of the suit property was on 18th December 2015 being a subdivision of parcel No. 803 even before succession process was concluded and confirmed grant issued. 5. I am therefore persuaded that the acquisition of the title of the suit property by the appellant was unlawful and without consideration and therefore invalid. Therefore, the trial court was right in cancelling the appellant’s title. 6. In the premises, I find no merit in this appeal, which I dismiss with costs to the respondents. 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 17TH DAY OF JUNE 2026** 1. **NYUKURI** **JUDGE** **In the presence of;** Appellant in person Respondents in person Court Assistant: Delphine