https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1036

Chepkwony v Samoei (Civil Appeal 174 of 2020) [2026] KECA 1036 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1036 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal 174 of 2020 JM Mativo, PM Gachoka & WK Korir, JJA May 29, 2026 Between John Chepkwony Appellant and Kiptigoi Samoei Respondent (An appeal arising from the judgment and decree of the Environment and Land Court at Kitale (M. Njoroge, J.) delivered on 29th January 2019 in ELCC No. 102 of 2004 Environment & Land Case 102 of 2004 ) Judgment 1.After Kenya gained independence in 1963, there was a scramble from the locals, to buy the farms previously owned by the white farmers. This led to the creation of land-buying companies intended to streamline the process. Individuals, and in other instances, jointly, pulled resources to buy those parcels of land. However, due to unscrupulous company officials, double allocations, poor record-keeping, or dishonesty by some partners, courts are still grappling with disputes over ownership 60 years later. This is one such dispute. 2.By amended plaint dated 16th February 2016, the respondent, now deceased, averred that he became the owner of parcel No. 271 Chepkoiyo Farm, the suit land, after settling his dues. He filed suit against Augustine Chepkwony Murei and John Chepkwony and prayed for a declaration that plot No. 271 Chepkoiyo farm legally belonged to him. 3.One of the glaring issues that arose is the competency of the record of appeal, as the respondent died when the hearing of the dispute was ongoing. Regardless, he is the one listed as a respondent. We will revisit this issue later in the judgment. 4.In the suit, the respondent alleged that though he was the owner of the suit property, the appellant and his father, Augustine Chepkwony Murei, attempted to forcefully take possession of the suit property on several occasions. He stated that Augustine Chepkwony Murei alleged that he was given the same parcel of land by the directors of the said farm; a fact, in his view, was not true and an illegality; If at all, it took place. For those reasons, he prayed that the court declares him the lawful proprietor. 5.Augustine Chepkwony Murei, the 1st defendant in the suit, entered appearance and filed his statement of defence dated1st November 2004. He prayed that the suit be dismissed. During the hearing, the 1st defendant passed on. His estate was not substituted. 6.On his part, the appellant filed a statement of defence and counterclaim dated similarly dated 1st November 2004. He similarly denied the averments set out in the plaint. In his counterclaim, he averred that he was the lawful proprietor of the suit land. That he had been in peaceful, uninterrupted and quiet possession of the suit land since 1986. However, in March 2004, the respondent, Kiptigoi Samoei, now deceased, invaded the suit land, destroyed his fence and was charged with malicious damage to property in Kitale SPMC Criminal Case No. 3055 of 2004. He asserted that he was the lawful owner of the suit land and accordingly sought declaratory orders that he was the lawful proprietor of the suit land. 7.As already stated, the respondent passed on when the proceedings at the trial court were ongoing. By Notice of Motion dated 24th July 2015, an application for substitution was allowed on 2nd February 2016, and John Cheruiyot Mursoi was appointed as the legal representative of the estate. 8.After taking the evidence, Mwangi, J. delivered his judgement on 29th January 2019. The learned judge dismissed the counterclaim and allowed the plaint. He gave the following final orders:“(a)An order of declaration, declaring that Plot No. 271 Chepkoiyo Farm belongs to the plaintiff.b.An order that the 2nd defendant shall give the plaintiff vacant possession of the suit land in default of which he shall be evicted.c.An order of permanent injunction restraining the 2nd defendant from in any way interfering with the plaintiff's ownership possession of Plot No. 271 Chepkoiyo Farm.d.An order that the 2nd defendant’s counterclaim has no merit and that the counterclaim is hereby dismissed.e.An order that the Deputy Registrar of this court shall execute all the necessary documents to effect the registration of the suit land Plot No. 271 Chepkoiyo Farm in the name of the plaintiff.f.An order that the costs of the suit and the costs of the counterclaim shall be paid by the 2nd defendant.” 9.The appellant is aggrieved by those findings. He filed his notice of appeal dated 30th January 2019. Subsequently thereafter, the appellant filed his memorandum of appeal dated 8th October 2020. The same raised eight grounds of appeal. We have taken the liberty to summarize those grounds as follows: the trial court misapprehended the facts, applied the incorrect principles and arrived at an erroneous decision; the trial court improperly dismissed the appellant’s counterclaim against the weight of the evidence adduced; and the trial court failed to consider crucial evidence on record. For those reasons, the appellant prayed that his appeal be allowed by setting aside the judgment of the trial court. In its stead, it urged this Court to dismiss the plaint and allow the counterclaim. Alternatively, it prayed for a retrial before another trial judge. He further sought costs of this appeal. 10.The appeal was canvassed by way of written submissions that were highlighted orally on 3rd March 2026. Mr. Osewe Advocate was present for the appellant, while Ms. Arunga Advocate appeared for the respondent. 11.In his written submissions and case digest dated 25th March 2025, learned counsel submitted that the respondent failed to adduce cogent evidence on how he acquired ownership of the land. In his view, no evidence would have enabled the court to safely conclude that he was the proprietor of the suit land. He continued that the deceased did not adduce evidence to prove, on a balance of probabilities, that the property was his. He argued that had the court taken a keen observation of the documents that he produced in evidence, it would have made a finding in his favour. 12.The appellant’s Advocate challenged the letter of allotment produced by the deceased. He explained that a letter of allotment, in itself, could not constitute evidence of ownership. Additionally, gathered from the evidence adduced at trial, it was not established whether the respondent complied with conditions set out therein. Be that as it may, he submitted that the letter of allotment was cancelled and could not be relied upon as it was illegally issued. The appellant further argued that he had adduced evidence in form of receipts, preceding the issuance of the allotment letter to the respondent, to demonstrate that he had been making payments over the suit parcel of land, as he was already the owner. Therefore, the property was not available for allotment. 13.Learned counsel argued that the deceased’s claim was unmerited because he never sought to obtain title. He complained that the trial judge failed to appreciate the dispute resolution mechanisms available before 2012. In his view, the Judge ought to have acknowledged that District Officers had the requisite authority to resolve disputes. In that regard, since the District Officer’s decision was never challenged, the trial court ought to have upheld it. 14.Turning to his counterclaim, it was submitted that the appellant proved, on a balance of probabilities, that he was the lawful proprietor of the suit land and had been in uninterrupted occupation since 1986 for more than 12 years. That his claim was supported by the documentary evidence marked for identification. He added that as long as the deceased was alive, he never raised any issue with the appellant’s ownership and occupation of the suit land. The claim was thus merited by dint of section 7 of the Limitation of Actions Act. 15.The respondent opposed the appeal. Written submissions dated 22nd November 2025 were filed on his behalf. The appeal was opposed on the grounds that the trial court applied the correct principles and arrived at a proper finding. It was submitted that no evidence was adduced as to demonstrate that the counterclaim was merited. Contrary to the appellant’s findings, it was submitted that the respondent’s claim was backed by cogent supporting evidence. For those reasons, the respondent prayed that the present appeal be dismissed with costs. 16.We have considered the parties’ submissions, examined the record of appeal and analyzed the law. As a first appellate court, an appeal 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, and draw its own conclusions, though it should always bear in mind that it did not have the advantage of seeing or hearing the witnesses and thus should make due allowances in this respect. [See Gitobu Imanyara & 2 others vs. Attorney General [2016] eKLR]. 17.Before formulating the issues for determination, we find it necessary to produce an abridged summary of the evidence adduced at trial. According to PW1, the respondent (now deceased) was initially allocated 15 acres of land in 1965. Though unable to recall the plot number or year it was surveyed, his portion was reduced to 7 acres after survey. He was given an additional 3 acres by the farm committee. His claim was for 0.9 acres that had been grabbed by the appellant for about 4 years. PW1 recalled that he indeed filed Kitale SPMCC No. 273 of 2004, in which he sued the appellant over the suit parcel of land, but subsequently withdrew the case. 18.The deceased also called PW2 Robert Milimo Wepukhulu, secretary of Chepkoiyo farm since 1999, to testify in support of his claim. His evidence was that the deceased was by letter of allotment dated 6th March 2003, issued by the committee, allocated plot No. 271 in their farm, as a member. He was cognizant of the fact that the property had been occupied by the appellant since 2002. To his knowledge, the deceased did not transfer the property to the appellant. 19.On the part of the appellant, DW1, the appellant herein testified that he lived on Chepkoiyo farm. The deceased was his neighbour. He was emphatic that he purchased plot no. 271 measuring approximately 0.9 acres from Clement Chelelgo. He was then entered into the register as an owner. On 14th March 1999, he had an exchange with Maria Koei Tapkigen, that was documented. 20.DW1 thereafter paid Kshs. 200.00 as survey fees that was receipted on 23rd December 2000. On 19th May 2005, DW1 paid Kshs. 125.00 for the title, Kshs. 250.00 for registration, Kshs. 400.00 for inspection, Kshs. 250.00 for conveyancing and Kshs. 400.00 for attestation. He also paid Kshs. 250 for block 7/271 as per the receipt dated 28th August 2007. Further justifying his ownership claims, DW1 produced the letter from the chief, one Francis Rop, addressed to the chairman of the District Land Control Board. He also produced the area list dated 29th April 2005 indicating that it had his name. 21.It is instructive to note that in his witness statement, he stated that it was his father who was allocated the suit land by the directors in 1986. Thereafter, the deceased invaded the property in 2004. 22.The appellant also called one of the farm directors and former vice secretary, DW2, Christopher Barasa, to the witness stand. His evidence was that the deceased and the appellant were his neighbours. That the appellant purchased plot No. 270 from two different persons: 20.5 acres from Joshua Kutuny and 9 acres from Clement Kiplerko before survey was done totaling 29. 5 acres. 23.He recalled that the appellant purchased plot No. 248 from the deceased, measuring 14 acres. After survey, it was reduced to 12.7 acres. This prompted the appellant to complain to the directors wherein it was resolved that the deceased ought to add 1.3 acres to the appellant. Thus, by a separate meeting, the directors created plot No. 271, measuring 0.9 acres, from plot No. 270, belonging to the appellant. This compelled him to lodge a complaint before the D.O. Kaplamani Division. He resolved that plot No. 271, initially belonging to the deceased, be surrendered to the appellant. A letter of allotment was issued giving the appellant proprietary rights. 24.The issues raised in this appeal were primarily issues of fact.It was, therefore, incumbent upon the appellant to demonstrate why we should interfere with those findings of fact. Was the trial judge right in finding that the property validly belonged to the deceased or was the appellant its rightful owner? That is the crux of this appeal. 25.From the evidence of DW2 and the deceased, it is clear that the deceased initially owned plot no. 271, the suit land herein. According to the deceased, the property was allotted to him vide a letter of allotment adduced in evidence. On the part of DW2, the appellant’s own witness, the property was carved out to be issued to the appellant on account of a complaint that arose during subdivision. This was done by the directors of thefarm. These findings were also observed by the learned judge who concluded as follows in part:“12…It is not clear why the directors would carve out 0.9 acres from a plot not owned by the plaintiff (Plot No 270) in order to create a new plot (No. 271) and subsequently give it to the 2nd defendant, or why the portion so carved out was not 1.3 acres which was the size of land said to be owed by the plaintiff to the 2nd defendant. It has also not been established that plot no. 270 had by the time of that purported excision, been sold by a different person to the 2nd defendant, such that he was entitled to object to its excision. It is also apparent that this version presented by DW1 and DW2 was not narrated in the letter dated 13/4/2004. That letter focuses on how the shortfall of land sold to the 2nd defendant by the plaintiff was to be compensated for.” 26.Gathered from the above, we agree with the trial court that once the property was allotted to the deceased, it could not be given to another party, as was the case herein. After all, neither DW2, nor the deceased or PW2 testified that the deceased failed to comply with the conditions set therein. In fact, it was categorically stated that the plot no. 271 belonged to the deceased. Further, DW2 testified that the property, was previously allocated to the deceased but revoked following the appellant’s complaint. 27.Did the directors, as DW2 so purported to contend, have powers to make such decisions? Was the District Officer placed with the requisite authority to uphold those findings? We think not. The property was not available for allocation. It was indeed a decision that was unorthodox and made without any lawful basis. In any event, no minutes of the meeting capturing the proceedings were ever adduced. Therein thus lies the possibility that the District Officer unilaterally and it is a decision that is not supported by any law. 28.As long as the letter of allotment was not revoked, nothing could extinguish the deceased’s ownership rights. It is for this reason the trial judge held as follows and we agree with that analysis:“ 15.It is not clear by which authority the District Officer handled the dispute and made an order that the plot in question be "returned" to the 2nd defendant. However, it is clear that what the directors at the farm then found it fit to comply with the District Officer's order and that at least according to the evidence of DW2, they purported to re-allocate the same plot to the 2nd defendant hence the current dispute. However, in my view there was nothing to be "returned" to the 2nd defendant as the first allottee of plot no. 271 was the plaintiff. 16.I agree with the plaintiff's argument that there is no evidence that the letter of allotment (PExh1) was ever revoked…” 29.We are also cognizant of the conflicting and contradictory statements given by the appellant. In taking this contradictory evidence into account, we find useful guidance with the decision of the South African Supreme Court of Appeal in the case of S vs. Mafaladiso en andere (2003) (1) SACR 583 (SCA) at 593F-594G. Albeit criminal in nature, we find that the following passage is applicable to civil and criminal matters. The Court held:“The judicial approach to contradictions between two witnesses and contradictions between the versions of the same witness (such inter alia, between her or his viva voce evidence and previous statement) is in principle (even if not in degree), identical. Indeed, in neither case is the aim to prove which of the versions is correct, but to satisfy oneself that the witness could err, either because of defective recollection or by dishonesty. …The mere fact that there are self-contradictions must be approach with caution by the court. Firstly, it must be carefully determined whether there is an actual contradiction and what the precise nature thereof is Secondly , it must be kept in mind that not every error by a witness and not every contradiction or deviation affects the credibility of a witness. Non-material deviations are not necessarily relevant…. Thirdly, the contradictory versions must be considered on a holistic basis. The circumstances under which the versions were made, the proven reasons for the contradictions, the actual effect of the contradictions with regard to the reliability and credibility of the witness, the question whether the witness was given sufficient opportunity to explain contradictions - and the quality of the explanations - and the connection between the contradictions and the rest of the witness' evidence, amongst other factors, to be taken into consideration and weighed up…. Lastly, there is the final task of the trial Judge, namely to weigh up the previous statement against the viva voce evidence, to consider all the evidence and to decide whether it is reliable or not and to decide whether the truth have been told, despite any shortcomings." 30.At first, he claimed that he was allocated plot No. 271 measuring 0.9 acres by the directors of the Farm in 1986 whereupon he took possession of the land and began utilizing it. However, when he took the witness stand, he stated that he purchased the land from one Clement Chelengo. However, that evidence was not corroborated. He also stated that plot No. 270 belonged to him, but did not prove how he acquired it to the required threshold. 31.The above evidence cannot be overlooked. Without certainty in his evidence, we cannot establish that his counterclaim was bona fide. Furthermore, we cast doubt as to whether the appellant was being truthful. It is our observation that the appellant was just clutching at straws to make any statement whatsoever just so that the court would find in his favor. 32.We have looked at the findings of the trial judge and see no fault. In his concluding analysis, the learned judge held as follows and which findings we see no reason to depart from:“ 21.A scrutiny of the receipts presented as DExh 2, 4 and 5 shows that they were in respect of plot no 271. The earliest of those receipts is dated 23/12/2002. The plaintiff's letter of allotment is dated 6/3/2004. It can not be understood how the 2nd defendant could go about making payments in respect of plot no. 271 while the same had evidently not been allocated to him, for only a letter of allotment should have entitled him to effect payments. 22.The area list produced as DExh 7 was not helpful in this regard as it does not show who owned plot number 270. …27. There is no evidence adduced by the defendant in this suit to convince me that the 2nd defendant bought land from the plaintiff, or that that land fell short of the desired size, or even that he was allocated the land by the company.” 33.Lastly, as observed earlier in this judgment, the appellant lodged appellate proceedings against the respondent, who is now deceased. On the face of it, this appeal would have been found defective, incompetent and irregular as the deceased’s estate ought to have been the respondent herein. We note that this issue was nonetheless not raised by the parties herein at the hearing of the appeal and will leave it at that as the appeal is for dismissal in any event. 34.Ultimately, we find that the present appeal is devoid of merit.In view of the defect in the record of appeal, which the counsel for the respondent ought to have addressed but failed to do so, we order that each part shall bear its own costs. DATED AND DELIVERED AT ELDORET THIS 29TH DAY OF MAY, 2026.J. MATIVO......................................JUDGE OF APPEALM. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEALW. KORIR......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR