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Opiyo v Kasuku (Civil Appeal E114 of 2021) [2026] KECA 1412 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1412 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal E114 of 2021 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Kennedy Otieno Opiyo Appellant and Rosemary Kasuku Respondent (Being an appeal from the Judgment and Decree of the Environment and Land Court at Migori (Ongondo, J.) dated 26th January, 2021 in ELCA No. 22 of 2019) Judgment 1.This appeal arises from the Judgment and decree of the Environment and Land Court (ELC) at Migori delivered on 26th January, 2021. The judgment was issued pursuant to the appellant’s appeal against the decision delivered on 10th September, 2019 in the Chief Magistrate’s Court at Migori in ELC Case No. 107 of 2018 (the trial court). This is therefore a second appeal. 2.In summary, Kennedy Otieno Opiyo, the appellant, filed a plaint dated 17th December, 2018 seeking a permanent injunction restraining Rosemary Kasuku, the respondent, from trespassing and occupying part of his land, LR No. Migori/Kachieng/876 (the land). In her defence and counterclaim dated 31st January, 2019, the respondent asserted that the subject land belonged to her as of right and as the widow of the late Cornel Kasuku Njuma, to whom his late father had given the said land. She alleged that the appellant had fraudulently caused the said land to be registered in his name. She sought to have the title held by the appellant deleted and cancelled from the register, and instead, her name inserted in the register. 3.The trial court delivered judgment in the matter on 10th September, 2019. The trial court found that from the evidence tendered in court, the appellant fraudulently obtained registration of title to the land and never proved he bought the land. The court agreed with the respondent that the land had been gifted to her husband by his father. The court asserted that because the respondent occupied the said land after being shown by her in-laws and had lived there since 2015, she could not have been trespassing. Consequently, the learned Magistrate found that the said land belonged to the respondent and entered judgment in her favour in terms of the prayer in the counterclaim against the appellant. 4.Dissatisfied with the judgment of the trial court, the appellant filed an appeal in the ELC at Migori. The learned Judge (Ongondo, J.) determined that the allegation of fraud against the appellant was proved through the respondent’s cogent evidence, and was fortified by the testimonies of her brother-in-law, DW2 and her co-wife, DW3. On the issue of locus standi, the learned Judge noted that Section 31 of the Law of Succession Act concerns characteristics of a gift in contemplation of death, while Sections 49 and 51 of the Land Act relate to the transmission on death of a joint proprietor. The ELC thus held that the land vested in both the respondent and her late husband and neither held it in exclusion of the other. The learned Judge observed that being family or ancestral land, customary trust came into the picture as envisaged in sections 25(b) and 28(b) of the Land Registration Act. The learned Judge upheld the trial court’s decision, dismissed the appellant’s appeal and ordered that the appellant bear the costs. 5.The appellant is aggrieved with the ELC’s decision and has lodged an appeal with this Court. The memorandum of appeal dated 29th June, 2021 raises 12 grounds of appeal, which are similar to those set out in the appeal before the ELC. The appellant’s prayer is that: the appeal be allowed with costs; the judgment and decree of the trial court and the ELC be set aside; judgment be entered for the appellant; the appellant be awarded costs in both the trial court and the ELC; and that interest on costs be awarded at court rates. 6.This appeal came up for hearing before us on 5th May, 2026. Learned counsel, Mr. Adawo and Mr. Singei, appeared for the appellant, while Mr. Awino, learned counsel appeared for the respondent. Parties’ counsel opted to rely on the written submissions save that Mr. Adawo highlighted that the respondent lacked locus standi to file the counterclaim because she was not the legal representative of the deceased husband. 7.The appellant’s submissions are dated 18th February, 2025 and filed by Abisai & Company Advocates. The appellant narrowed the issues for determination to: whether the appellant was the bona fide proprietor of the land; whether the respondent had locus standi to lodge a counterclaim; and, what orders should issue. 8.On proprietorship of the land, the appellant submitted that pursuant to Sections 24 and 25 of the Land Registration Act (LRA), he is the registered proprietor, as a first registration, vested with absolute ownership of the land together with all rights and privileges belonging or appurtenant thereto. He asserted that, contrary to provisions of Section 107 of the Evidence Act, the respondent did not tender any evidence to prove that the appellant colluded with persons at the land registry to cause the land to be registered in the appellant’s name. That it was also not proved that the late Patrice Njuma was either the registered owner of the land or a beneficiary thereto. 9.The appellant argued that the respondent’s claim ought to have been covered under Section 13 of the Land Adjudication Act (LAA), which provides that if a person has an interest in land in an adjudication area, he shall make a claim to the recording officer and point out his boundaries. Further, Section 26 of the LAA provides for an objection to adjudication, while Section 27 provides for an appeal process in adjudication proceedings. Relying on the decisions of the court in Gichinga Kibutua v Carole Nduku [2018] eKLR and Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR, the appellant asserted that fraudulent conduct must be distinctly alleged and proved and not be inferred from the facts. He submitted that to the extent that the learned Judge did not rely on any documentation supporting the finding that the appellant’s title was fraudulent, the ELC’s judgment was flawed. 10.As regards locus standi, the appellant noted that the respondent claims the land through her deceased husband. He submitted that the respondent could not possibly claim her deceased husband’s land without obtaining a grant to that effect. The appellant relied on the case of Beatrice Wambui Kiairie & 2 others v Tabitha Wanjiku Ng’ang’a & 9 others [2018] eKLR, in which the court stated that because the petitioners had neither applied for nor obtained letters of administration in respect of the estate of their late mother and or in respect of the cited plot of land, they had no locus standi to file suit. The appellant further noted that in Alfred Njau & others v City Council of Nairobi [1982-88] 1 KAR 229, the Court of Appeal stated that lacking locus standi means one cannot be heard, even on whether he has a case worth listening to. It was the appellant’s submission that the respondent’s counterclaim should therefore not have been entertained. In addition, that the decision to award the respondent the subject land was without basis and should be vacated. 11.The respondent’s submissions are dated 10th March, 2025 and filed by Odondi Awino & Co. Advocates. It was submitted that the respondent was not the plaintiff before the trial court, but was sued by the appellant, defended herself and brought a counterclaim. The respondent cited Civil Appeal No. 48 of 2018 – Peter Kim Baker & two others v Sidi Katana Bongo & another, in which the Court of Appeal found that the respondents had been sued for being in occupation of the suit property and did not need letters of administration to defend their right of occupation. Considering the foregoing, the respondent asked this Court to put the issue of her locus standi in the matter to rest. 12.The respondent urged that, since the land fell in an area under adjudication process, there was need to comply with the provisions of the LAA before the appellant was registered as the owner. She quipped that nothing on record showed that the appellant complied with the said Act, as the appellant failed to produce any adjudication document. She cited Kipkobel Arap Misoi v Proscila Chepkorir [2016] eKLR, in which the court observed that the title in the case was invalidly issued and therefore null and void because the procedure outlined in the LAA was not followed when the said title was issued to the plaintiff. 13.Further, the respondent cited Section 80(1) of the LRA, which provides that the court may order rectification of the register if satisfied that any registration was obtained, made, or omitted by fraud or mistake. In this regard, she relied on Alice Chemutai Too v Nickson Kipkurui Korir & 2 others [2015] eKLR, in which the court refused to uphold the title of the 1st respondent who was found to be a fraudster. The respondent affirmed that the appellant’s claim was against the legitimate expectation of a married woman or widow to choose where to live as provided under the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). 14.The role of this Court in a second appeal is strictly limited to matters of law. We cannot re-evaluate factual evidence or re- examine witness credibility unless the courts below arrived at a conclusion that is entirely unsupported by evidence or is so perverse that no reasonable court would reach it. Section 72 of the Civil Procedure Act provides that a second appeal to this Court from a decision of the High Court shall be on –a.the decision being contrary to law or to some usage having the force of law;b.the decision having failed to determine some material issue of law or usage having the force of law;c.a substantial error or defect in the procedure provided by the Act or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. 15.In Pithon Waweru Maina V Thuka Mugiria [1983] KECA 117 (KLR) this Court held:“This is a second appeal so only a point of law may be taken. Section 72 Civil Procedure Act. If the High Court has upheld a resident magistrate on a question of whether or not he exercised his discretion judicially it is a question of law whether he was right or wrong to do so.” 16.We have considered the parties’ respective submissions. The first issue for determination is whether the appellant was the bona fide proprietor of the land in dispute. In finding for the respondent the ELC stated that the respondent had pleaded particulars of fraud and which were established by evidence. The ELC like the trial court found that the appellant had fraudulently acquired the land because he provided no evidence of documents showing how he had acquired the registration. The ELC found as follows:“24.It is discernible from paragraph 5 of the counterclaim and as stated at paragraph 4 hereinabove as well as the evidence of DW1, DW2 and DW3 that deceased 1, on his own free will gave the respondent during his lifetime; see also Marigi =vs= Muriuki (2008) 1 KLR (G&F) 1013 at 1077/78.25.The respondent pleaded particulars of fraud on the part of the appellant in paragraph 6 of the counterclaim and sought rectification of the register and deletion of title to the suit land held by the appellant. Fraud therefore, as alleged in the plaint, was proved by way of her cogent evidence fortified by the steadfast testimonies of DW2 and DW3 as held in longline of authorities, among them, Kiarie, Vijay, Kamau and Alibhai cases (supra).” 17.We are satisfied that there is no established justification for us to interfere with the concurrent findings of fact by the trial court and the ELC that fraud was pleaded for the respondent and established by evidence, accordingly. 18.Fraud having been established, the ELC’s finding that the counterclaim succeeded cannot be faulted. In particular, the ELC correctly relied on this Court’s holding in Munyi Maina –vs- Hiram Githiha Maina (2013) e KLR that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership and, the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal formally and free from any encumbrances. We therefore confirm the finding by the learned Judge that the appellant’s registration was liable to impeachment on account of the established fraud and in accordance with section 26 (1) (a) of the Land Registration Act. 19.The second issue for determination is whether the respondent had locus standi to lodge a counterclaim. It was urged for the appellant that the respondent could not successfully pursue the counterclaim because she was claiming the suit property through her deceased husband. In our view, that line of submission was misconceived. The appellant sued the respondent as a trespasser and the respondent filed a defence and counterclaim in her own right, not as defending and counter- claiming through the deceased husband. The concurrent finding by the trial and ELC courts and, for which no basis has been shown to justify our interference, was that the respondent’s father-in-law in his lifetime gifted the suit property to the respondent and her husband. The appellant has not shown a provision of law that would preclude the respondent from urging the counterclaim as was done. Having dragged the respondent to court, the appellant cannot be heard to determine the kind of defence that the respondent should have mounted. All possible defences were available to the respondent including the counterclaim. 20.In particular, Order 7 rule 3 of the Civil Procedure Rules entitles any defendant in a suit to bring a counterclaim against the claims of the plaintiff. The counterclaim is essentially a cross- suit and the trial court was therefore entitled to hear and make determinations on both the appellant’s claims in the plaint and the respondent’s counterclaim. 21.The upshot is that the appeal lacks merits. We dismiss the appeal with costs to the respondent. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA.....................................JUDGE OF APPEALE. C. MWITA.....................................JUDGE OF APPEAL.....................................B. ONGAYA.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar