https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4673

Omino v Omino & another (Land Case Appeal E058 of 2025) [2026] KEELC 4673 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEELC 4673 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Land Case Appeal E058 of 2025 CC Oluoch, J July 23, 2026 Between John Ayoo Omino Appellant and Victor Odhiambo Omino 1st Respondent Richard Omino 2nd Respondent (Appeal from the Judgment and Decree of Hon. Jocelyne Kimetto in Maseno MCELC E002 of 2022) Judgment Introduction 1.This appeal arises from the Judgment and the ensuing Decree delivered on 4th June 2025 in Maseno MCELC E002 of 2022. The Appellant, John Ayoo Omino, was the Plaintiff in the suit at the Trial Court, claiming the land parcel known as Kisumu/Karateng/2365. In that primary suit, the Appellant sought a permanent injunction to restrain the 1st and 2nd Respondents, Victor Odhiambo Omino and Richard Omino, and their agents or servants, from entering into, alienating, disposing of, selling, transferring, charging, leasing, or in any other manner interfering with his quiet and peaceful possession of the suit property, together with an order for eviction and general damages. 2.The dispute that gave rise to this litigation centres on competing ownership claims, allegations of fraud and misrepresentation in the acquisition of the title to the suit property, and the assertion of an implied or constructive trust in favour of various family members who claim to have purchased portions of the original title from their uncle, Joseph Okudo Siwa. The Trial Magistrate dismissed the Appellant’s suit and partially allowed the Respondents’ Counterclaim, with costs. The Trial Magistrate declared that the title to the land parcel Kisumu/Karateng/2365 was acquired through misrepresentation and consequently ordered that the title revert to the original owner for subdivision and transfer to all purchasers and claimants. 3.Dissatisfied with the outcome, the Appellant has approached this Court seeking to overturn the Trial Court’s decision. The Appellant primarily contends that his title was unlawfully impeached on a standard of proof that fell short of the strict requirements for proving fraud in civil litigation, and further complains that the Trial Court erred in recognising unproven agreements of sale and undocumented demarcations in respect of the other occupants of the land who did not tender proof of their respective purchases. Summary of the Evidence Adduced Before the Trial Court 4.PW1 John Ayoo Omino, the Appellant, adopted his written witness statement dated 12th January 2022 as his primary evidence-in-chief. The Appellant’s case was that he was the registered owner of land parcel Kisumu/Karateng/2365, having purchased it from Joseph Okudo Siwa for Kshs. 940,000 sometime in 2010, with the final instalment allegedly paid in 2016. He claimed that in 2018 he permitted the Respondents to erect temporary structures on a portion of the suit property. 5.The Appellant stated that the conflict arose only when he attempted to build a perimeter wall to mitigate the toxic smoke emanating from the 1st Respondent’s restaurant, which necessitated the demolition of a toilet he (the Appellant) had built earlier. He claimed that this action caused the Respondents to gang up against him, to falsely claim a beneficial interest in the land, and to utilise the police to unlawfully arrest him for malicious damage, despite his status as the absolute proprietor. 6.During cross-examination, the Appellant confirmed there was an agreement dated 24 May 2010, written in the Dholuo language, showing the purchase of a portion for a posho mill for Kshs. 9,000. He also confirmed another agreement dated, indicating a purchase price of Kshs. 922,000 for the entire absolute portion, while his witness statement quoted Kshs. 940,000. When questioned by the defence counsel about the differences between the signatures on his sale agreements and those appended to the Land Control Board consent forms and the transfer documents, the Appellant admitted the disparity but, on re-examination, offered an explanation that he had changed his signatures at the time. 7.Regarding the defence case, DW1, Victor Odhiambo Omino, the 1st Respondent, testified that he purchased a specific portion measuring approximately thirty-three (33) by thirty-four (34) feet from his uncle in 2012 for Kshs. 13,000. He produced a sale agreement dated 6th June 2013 and a subsequent acknowledgement of receipt of Kshs. 7,000 for the balance of the purchase price, dated 13th July 2013, prepared by the area assistant chief. 8.The 1st Respondent produced photographic evidence of the commercial structures he had erected on the land. He testified that the Appellant unlawfully transferred the entire parcel to himself without consulting the other occupants already in possession, and that this fraudulent acquisition was only unmasked when the Appellant began maliciously destroying their property, resulting in the criminal charge sheet in Maseno Criminal Case Number E023 of 2022. 9.Upon cross-examination, he stated that five distinct people were in occupation of the wider parcel, including himself, operating a hotel and two shops; his brother Richard, operating a wines and spirits shop on a thirty (30) by thirty (30) feet portion; the Appellant, operating a posho mill on another thirty (30) by thirty (30) feet portion; and their late brother Samson and Ruth Pamela Adhiambo. 10.DW2 Joseph Okudo Siwa, the vendor of the suit land, denied ever selling the entire parcel 2365 to the Appellant for Kshs. 992,000. He clarified that he had sold only a small portion to the Appellant for Kshs. 19,000 to enable the Appellant to build a posho mill. He confirmed, consistent with the 1st Respondent’s testimony, that he had sold separate portions to the 1st Respondent, the 2nd Respondent, Ruth Adhiambo, and Stephen Achapa. DW2 explained that the Appellant had requested the mother title deed on the understanding that he would facilitate subdivision and transfer the carved-out portions to all the rightful buyers, including his brothers. The vendor urged the court to revert the title to his name so that he could fulfil his obligation to subdivide and transfer the portions to all the rightful purchasers. 11.In the judgment, the Trial Magistrate analysed contradictions in the Appellant’s evidence, particularly the conflicting purchase prices. The Court found the vendor’s testimony exceptionally credible, noting that he was a semi-illiterate elderly man. Relying on Daudi Kiptugen v Commissioner of Lands and 4 Others [2015] eKLR, the Trial Court held that the acquisition of a title cannot be construed solely by looking at the end result of registration; the actual process of acquisition is central and subject to judicial scrutiny. The Magistrate concluded that the Appellant obtained the title illegally and by misrepresentation. Consequently, the Court ordered that the title to land parcel Kisumu/Karateng/2365 revert to the original owner, Joseph Okudo Siwa, for subdivision and transfer to all purchasers and claimants. The Court, however, declined to award the Kshs. 200,000 claimed as special damages, correctly noting the lack of documentary proof regarding the exact quantum and value of the maliciously damaged property. Summary of the Memorandum of Appeal 12.The Appellant lodged a Memorandum of Appeal raising seven grounds of appeal, which generally condense into three core contentions. Firstly, the Appellant argues that the Trial Magistrate erred in law and in fact in finding that fraud and misrepresentation were proved to the required legal standard (Grounds 1, 2, 3, and 7). Secondly, the Appellant asserts that the Trial Magistrate erred in relying on unsubstantiated claims of trust to impeach the title (Ground 4). Thirdly, the Appellant contends that the Trial Magistrate grossly misdirected herself in acknowledging the existence of other agreements of sale and undocumented demarcations, such as the alleged thirty by thirty feet portions, without proof (Grounds 5 and 6). The Appellant thus prayed that the appeal be allowed, that the judgment of the Trial Magistrate be set aside in its entirety, and that judgment be entered in his favour, granting the permanent injunction and eviction orders sought in the original plaint. Summary of Written Submissions 13.In submissions dated 16th March 2026, the Appellant sets out three main issues for determination. Regarding the first issue, namely whether the Respondents purchased a portion of the suit property from Joseph Okudo Siwa, the Appellant submitted that the Trial Court erred in acknowledging the existence of other sale agreements over the suit property without strict proof. In advancing this argument, the Appellant quotes Section 38(1) of the Land Act:“38 (1)Other than as provided by this Act or by any other written law, no suit shall be brought upon a contract for the disposition of an interest in land-a)the contract upon which the suit is founded-i.is in writingii.is signed by all the parties thereto; andb)the signature of each party signing has been attested to by a witness who was present when the contract was signed by such party”. 14.The Appellant further relied on Section 107 of the Evidence Act regarding the burden of proof, relying on Christopher Ndaru Kagina v Esther Mbandi Kagina & Another [2016] eKLR: “he who alleges must prove......”. The Appellant noted that no agreements were produced at trial in favour of Richard Omino or Ruth Adhiambo, rendering their claims unsubstantiated. The Appellant argued that an uncorroborated oral agreement requires proof of full payment and actual possession, citing Maina & 87 others v Kagiri [2014] KECA 880 (KLR). Regarding the single agreement produced (Exhibit D1), the Appellant argued that it failed to indicate the parcel number or exact portion, hence falling short of conveyancing standards. 15.On the second issue, whether the Respondents demonstrated fraudulent transfer to the required standard, the Appellant asserted that he lawfully purchased a portion of KISUMU/KARATENG/2221, which was later subdivided into 2365 and 2366, and produced an agreement dated 24/05/2010 to that effect. He argued that title is indefeasible, citing Section 26(1) of the Land Registration Act. 16.The Appellant asserted that the Respondents bore the burden of proving fraud, and cited the principles laid down in Orieny & another v National Bank of Kenya [2024] KEHC 6002 (KLR):i.an allegation of fraud must be specifically pleaded and proved,ii.the burden of proof of an allegation of fraud is on the person alleging, andiii.the burden of proof allegation of fraud is higher than that required in civil cases that of proof on a balance of probabilities; and lower than that required in criminal case that is beyond reasonable doubt”. 17.Conversely, the Respondents, in their written submissions dated 23rd March 2026, opposed the appeal. On the standard of proof for fraud, the Respondents submit that the Trial Court properly directed itself on the law. Quoting the Court of Appeal in Ndolo v Ndolo 1 KLR (G&F) 742, they submit:“Since the Respondent was making 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”. 18.They further cited R.G. Patel v Lalji Makanji [1957] EA 314, that:“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required”.They argued that the glaring contradictions in the Appellant’s documentary evidence, his astonishing admission of altering signatures, and the highly credible, unshaken testimony of the original vendor easily met this required elevated standard. 19.In addressing the Appellant’s reliance on the indefeasibility of title, the Respondents invoke Sections 26(1)(a) and (b) of the Land Registration Act, arguing that statutory protection of title is immediately extinguished where title is procured by fraud, misrepresentation, or an illegal process. They rely on Alice Chemutai Too v Nickson Kipkurui Korir and 2 Others [2015] eKLR, in which the Court held that:“It will be seen from the above that title is protected, but the protection is removed, and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party: or where it is procured illegally, unprocedurally, or through a corrupt scheme.” 20.They further cited the Supreme Court of Kenya in the landmark case of Dina Management Limited versus County Government of Mombasa and 5 Others [2023] eKLR, asserting that a title document is insufficient to establish ownership where the root of the title is demonstrably tainted, stating:“A Title document is insufficient to establish ownership of land where the provenance of Title has been disputed. Beyond the instrument itself, the holder of the Title must demonstrate that the purchase process from the beginning was legitimate”. 21.Additionally, the Respondents submit that a constructive trust arose in their favour by operation of law. Citing the Court of Appeal in Macharia Mwangi Maina and 87 Others versus Davidson Mwangi Kagiri [2014] eKLR, they argue that when a vendor accepts purchase monies and places purchasers in possession of land, an implied or constructive trust arises, quoting the court:“The Respondent created an implied or constructive trust in favour of those persons who had paid the purchase price pending the sale of all the 240 plots”. 22.They also cite Willy Kimutai Kitilit versus Michael Kibet [2018] eKLR to support this point. Furthermore, they argue that Section 28 of the Land Registration Act protects their physical possession and occupation as overriding interests that bind the registered land without needing to be noted on the register. To support this, they quote the Supreme Court in Isack M’inanga Kiebia versus Isaaya Theuri M’lintari and another [2018] eKLR, which affirmed that rights and interests based on trust and long-standing occupation are recognised in law and bind registered proprietors. Analysis and Determination 23.This Court has carefully read and considered the Record of Appeal and the grounds enumerated in the Memorandum of Appeal, the written submissions of the parties, and the relevant statutory and jurisprudential authorities. The determination of this appeal crystallises around the following legal issues:i)The duty of the first appellate court,ii)The correct standard of proof for allegations of fraud and misrepresentation, and the legal boundaries of the indefeasibility of title under Section 26 of the Land Registration Act.iii)The soundness of the Trial Court’s blanket order directing subdivision to all occupants/purchasers. The Duty of the First Appellate Court 24.A first appellate court has extensive jurisdiction and duties, but these are clearly defined. It must thoroughly re-examine all the evidence presented in the Trial Court, reassess it, and form its own independent judgment on the facts and the law. This principle was well articulated by the predecessor to the current Court of Appeal in the landmark case of Selle and Another versus Associated Motor Boat Co. Ltd. and Others [1968.EA 123, which both parties cited, 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 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 or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally”. Fraud, Misrepresentation and Indefeasibility of Title 25.The Appellant contended that the Respondents failed to prove fraud and misrepresentation to the required legal threshold, arguing that the Trial Court relied on mere probabilities rather than strict proof. The statutory framework governing the burden of proof is housed in Sections 107 and 108 of the Evidence Act, Chapter 80 of the Laws of Kenya. Section 107(1) Provides that:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”Section 108 further provides that:“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 26.In ordinary civil litigation, the standard by which this burden is discharged is the balance of probabilities, as famously articulated by Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372:“It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'We think it more probable than not,' the burden is discharged, but, if the probabilities are equal, it is not”. 27.However, settled jurisprudence holds that where allegations of fraud, forgery, or misrepresentation are pleaded in a civil suit, the law demands a significantly higher standard of proof. It does not require proof beyond a reasonable doubt, as is mandatory in criminal cases, but it demands a degree of cogency that is substantially more than a mere balance of probabilities. The Court of Appeal in Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR held that:“It is well established that fraud must be specifically pleaded and that the particulars of 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 those acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from facts.” 28.The statutory basis for indefeasibility of title and the elements of fraud and misrepresentation in land matters is Section 26 of the Land Registration Act, which provides that:“ 26.(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, excepta)On the ground of fraud or misrepresentation to which the person is proved to be a party; orb)Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme”. 29.Applying these principles to the evidence on record, the central question is whether the Respondents proved that the Appellant acquired the entire title by misrepresentation and fraud. The Appellant claimed in his witness statement to have purchased the land for Kshs. 940,000, yet on 24th May 2010 he purportedly executed an agreement for Kshs. 922,000, with an alleged down payment of Kshs. 122,000. Another agreement dated the same day, written in Dholuo, was for Kshs. 000, which the Trial Magistrate recorded in the judgment as Kshs. 99,000, probably due to an overwriting of the first digit. This agreement was for the purchase of a portion for a posho mill. 30.Conversely, the vendor claimed that the Appellant tricked him into surrendering the title for subdivision, only for the Appellant to register the entire parcel in his name. Notably, after observing this witness, the Trial Magistrate found him elderly and trustworthy. This witness refuted the claim that the Appellant purchased the entire parcel of land for Kshs. 922,000, stating that he received only Kshs. 19,000 for a portion intended for a posho mill. I have no basis to fault the Trial Magistrate’s finding on this point. The Respondents met the standard of proof required to establish fraud and misrepresentation, well beyond mere probability. 31.The law in Kenya is well settled that registration of land acquired through an illegal or fraudulent process confers no valid proprietary rights. In the present case, the Appellant did not acquire title to the entire parcel through a legitimate arm’s-length commercial transaction; instead, he exploited his elderly uncle’s illiteracy and trust to circumvent the legitimate claims of his siblings and other purchasers. He was an active participant in the misrepresentation. Therefore, under Section 26(1)(a) and (b) of the Land Registration Act, the Appellant’s certificate of title was correctly impeached by the Trial Court. 32.The Respondents’ interests are also statutorily protected as overriding interests under Section 28 of the Land Registration Act, which provides that:“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register-(b)trusts including customary trusts;(g)rights of a person in possession or actual occupation of land to which he is entitled in right of such possession or occupation”. 33.In the present case, the 1st Respondent proved that he paid Kshs. 13,000 for a specific portion, producing the sale agreement and acknowledgement of payment, and further proved his actual occupation by constructing permanent commercial structures. The Appellant himself admitted that the 1st Respondent built these structures and that no rent was ever demanded. This conduct is wholly inconsistent with absolute ownership and proves the existence of a constructive trust in favour of the 1st Respondent, rendering the Appellant a mere trustee with no legal right to evict him or to maliciously destroy his property. Sub-division of the Land 34.This brings the Court to the final aspect of this appeal. The Trial Magistrate, upon finding that the Appellant’s title was fundamentally tainted by fraud, issued a sweeping order declaring that the title to land parcel Kisumu/Karateng/2365 reverts to the original owner for subdivision and transfer to all purchasers/claimants. The record shows that there are individuals who neither participated in the proceedings nor produced evidence of their specific purchases. These include the 2nd Respondent, Richard Omino, as well as Ruth Adhiambo and Stephen Achapa. Richard Omino, despite being named as the 2nd Defendant in the primary suit, did not testify. However, I do not see any problem with the Trial Court’s decision that ownership returns to the vendor for subdivision among all the claimants. This is because the Court was able to determine the share due to the Appellant. It also emerged from the evidence that the portions occupied by the other purchasers are known. 35.Consequently, I fully agree with the Trial Magistrate’s decision as it applies to the Appellant and the 1st Respondent. The Appellant is lawfully entitled to the specific portion he paid for. The 1st Respondent is equally entitled to the specific portion he purchased and subsequently developed. It will be for the Trial Court to handle any post-judgment disputes that may arise during the implementation of the order. Final Orders 36.After re-evaluating the evidence and the law, this Court finds that the Appellant’s appeal is without merit. Accordingly, the Court orders as follows:i)The Judgment and Decree of the Trial Court delivered on 24th June 2025 is hereby upheld in its entirety.ii)The Appellant shall bear the costs of the appeal. DELIVERED, SIGNED, AND DATED THIS 23RD DAY OF JULY 2026.C.C. OLUOCHJUDGEIn the presence of:Ms Akira for AppellantMs Raburu holding brief for M..M.Omondi for the RespondentsFaith Court Assistant