Omanje v Ogolla & 2 others (Environment and Land Appeal E042 of 2025) [2026] KEELC 3077 (KLR) (21 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC APPEAL NO. E042 OF 2025** **LEE ODHIAMBO OMANJE....................................APPELLANT** **VERSUS** **FREDRICK OTIENO OGOLLA.........................1ST RESPONDENT** **CHARLES OMONDI OGOLLA..….…................2ND RESPONDENT** **THE LAND REGISTRAR,** **NYANDO, SUB-COUNTY................................3RD RESPONDENT** ***(****Being an appeal from the Judgment and Decree of Hon. A.K.Mokoross(SPM) delivered on 3rd June 2025 at Tamu Law Court in Tamu PMC ELC No. E025 of 2021)* **JUDGMENT** The 1st and 2nd Respondents sued the Appellant at the Tamu Law Court, in Tamu PMC ELC No. E025 of 2021 (“the trial court”) on 18th November 2021. The 3rd Respondent was joined in the suit as an interested party. The 1st and 2nd Respondents averred that they were the lawful owners of all that parcel of land known as Title No. Kisumu/Sidho East/22 (“the suit property”), having acquired the same from one, Kadundo Simon, on 3rd March 2021. The 1st and 2nd Respondents averred that the Appellant had also claimed to have acquired a portion of the suit property from the same vendor and that he had a title to the said portion. The 1st and 2nd Respondents sought judgment against the Appellant for a permanent injunction restraining the Appellant from interfering in any manner whatsoever with their possession and enjoyment of the suit property, and the costs of the suit. The Appellant filed a defence to the 1st and 2nd Respondents’ claim on 31st December 2021. The Appellant denied that the 1st and 2nd Respondents were the proprietors of the suit property. The Appellant averred that the suit property ceased to exist on 22nd March 1994 when the same was subdivided into two portions, namely, Title No. Kisumu/Sidho East/2585 and Title No. Kisumu/Sidho East/2586 (“Plot No. 2585” and “Plot No. 2586” respectively). The Appellant averred that the said subdivision was carried out following the sale of a portion of the suit property to his mother, one Janet Omanje, deceased, by Kadundo Simon in 1994. The Appellant averred that a title was issued in the name of his mother for the said portion of the suit property, namely, Title No. Kisumu/Sidho East/2586 (Plot No. 2586) on 29th June 1995. The Appellant averred that any transaction involving the suit property between the 1st and 2nd Respondents and Kadundo Simon could only be a fraud. The Appellant urged the court to dismiss the 1st and 2nd Respondents’ suit with costs as an abuse of the court process. At the trial, the 1st and 2nd Respondents called four witnesses to prove their case, while the Appellant called three. The trial court delivered a judgment in the matter on 3rd June 2025. The trial court found that the 1st and 2nd Respondents had established that they purchased the suit property from Kadundo Simon Booker and that the property was legally transferred and registered in their names. The trial court further found that the Appellant, who claimed that the suit property had been subdivided and that a portion thereof, namely, Plot No. 2586, had been sold to his deceased mother, Janet Atieno Omanje, had gaps in his explanation and documentation regarding how the mother acquired the property. The trial court observed that, even when met with Kadundo Simon Booker’s contention that he never sold the suit property to the Appellant’s mother or anyone else, the Appellant produced no evidence of the agreement of sale of the said portion of the suit property between his deceased mother and Kadundo Simon Booker. The trial court found that the appellant was unable to explain logically the process through which his mother came to be registered as the owner of Plot No. 2586, which was claimed to be a portion of the suit property. The trial court found that there was no evidence that the Land Control Board's consent was obtained for the subdivision of the suit property into Plot No. 2585 and Plot No. 2586. The trial court found that it was upon the subdivision of the suit property following the said consent and registration of Plot No. 2585 and Plot No. 2586 that another consent could be issued for the transfer of Plot No. 2586 to the Appellant’s deceased mother. The trial court found that there was no evidence that the consent of the Land Control Board was obtained for the subdivision since the consent produced by the appellant in evidence was for the transfer of Plot No. 2586 by Kadundo Simon Booker to the Appellant’s mother. The trial court also wondered how the Land Control Board could have issued a consent on 30th March 1994 for the transfer of Plot No. 2586 to the Appellant’s mother when the said plot only came into existence on 29th June 1995 upon the registration of the mutation for the subdivision of the suit property. The trial court wondered how a consent could have been issued for the transfer of a non-existent parcel of land. The trial court also noted that although the Land Registrar had earlier testified in Criminal Case No. 209 of 2016 in which the Appellant’s brother and Kadundo Simon Booker were involved, that the suit property was not subdivided and that Plot No. 2586 was non-existent, the Appellant took no steps to assert his mother’s rights over the property, if it did exist. The trial court found that the 1st and 2nd Respondents had proved a better title to the suit property compared to the Appellant. The court entered judgment for the 1st and 2nd Respondents against the Appellant for a permanent injunction restraining the Appellant from interfering with the 1st and 2nd Respondents’ possession and enjoyment of the suit property. The 1st and 2nd Respondents were also granted the costs of the suit. The Appellant was aggrieved by the said judgment and brought this appeal on 9th June 2025. In his memorandum of appeal of the same date, the Appellant challenged the said decision on various grounds. In summary, the Appellant contended that the trial court erred in its finding that the 1st and 2nd Respondents had proved their case against the Appellant. The Appellant prayed that the judgment and decree of the trial court be set aside and substituted with a judgment in favour of the Appellant. The Appellant also prayed for the costs of the appeal. The appeal was heard by way of written submissions. The Appellant filed undated submissions. The Appellant submitted that the trial court found for the 1st and 2nd Respondents on the issue of ownership of the suit property, despite the overwhelming evidence tendered by the Appellant in proof of his deceased mother’s title to the property. The Appellant urged the court to allow the appeal. The 1st and 2nd Respondents filed submissions dated 17th November 2025. The 1st and 2nd Respondents submitted that the trial court did not err in its finding that the evidence given by the Appellant regarding the alleged subdivision of the suit property into Plot Nos. 2585 and 2586, and the transfer of Plot No. 2586 to the Appellant’s mother was murky. The 1st and 2nd Respondents submitted that the trial court’s finding that the 1st and 2nd Respondents were the lawful owners of the suit property was based on evidence. The 1st and 2nd Respondents submitted that the trial court’s judgment was sound, well-reasoned and based on the law and facts of the case. The court was urged to dismiss the appeal with costs. **Analysis and Determination** This being a first appeal, this court has to reconsider and re-evaluate the evidence on record and draw its own conclusions on the issues that were raised for determination before the trial court. In Bwire *v.* Wayo & Sailoki (Civil Appeal No.32 of 2021) [2022] KEHC 7 (KLR), the court stated that: **“A first appellate is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.”** In Kenya Ports Authority *v*. Kuston (Kenya) Limited [2009] 2 E.A 212, the Court of Appeal stated that: **“On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”** In Makube *v*. Nyamuro[1983] KLR 403, it was held that the appellate court will not interfere with the findings of fact by the trial court unless they were not based on evidence at all, or they were based on a misapprehension of the evidence, or where it is demonstrated that the court acted on wrong principles in reaching its conclusion. See also, Peter *v*. Sunday Post Ltd. [1958] E.A 424. I have considered the pleadings, the parties' evidence tendered in support of their respective cases before the trial court, and the trial court's judgment on the dispute. I have also considered the Appellant’s grounds of appeal and the submissions by counsel. The Appellant’s eleven (11) grounds of appeal raise only one issue for determination by this court, namely, whether the trial court erred in its finding that the 1st and 2nd Respondents had proved their case against the Appellant. Both the 1st and 2nd Respondents, and the Appellant claimed the suit property. Both had titles. The 1st and 2nd Respondents had the title for the suit property, while the Appellant had a title for a portion of the suit property, Plot No. 2586. The trial court was called upon to determine the validity of the two titles on which the parties based their claims to the disputed property. When a property is claimed by two or more persons, and each claimant bases its claim on a title, the duty of the court is to interrogate the validity of each title to determine the lawful owner of such property. In Hubert L. Martin & 2 Others *v.* Margaret J. Kamar & 5 Others[2016] eKLR, the court stated as follows: **“A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain… Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld.”** Upon review of the trial court's judgment, I find that the trial court considered the root of each title and the processes through which each was acquired. From this exercise, the trial court found the 1st and 2nd Respondents’ title to be well-grounded. The court found many gaps in the processes by which the Appellant’s deceased mother was said to have acquired the portion of the suit property, Plot No. 2586. The 1st and 2nd Respondents produced before the trial court evidence showing that they entered into an agreement dated 26th January 2021 with Kadundo Simon Booker (“Vendor”) for the purchase of the suit property at a consideration of Kshs. 3,500,000/-. The 1st and 2nd Respondents produced evidence in the form of an extract of the register of the suit property, showing that, as at the date of the said agreement of sale, the suit property existed and the Vendor was the registered owner thereof. The 1st and 2nd Respondents produced evidence showing that the suit property was transferred and registered in their names on 3rd March 2021. In addition, the 1st and 2nd Respondents placed before the trial court the proceedings and judgment made in Criminal Case No. 209 of 2016, in which the ownership of the suit property was in issue. In that case, the Land Registrar testified and produced a copy of the extract of the register for the suit property. The Land Registrar told the court in that case that the suit property existed and had not been subdivided. The Land Registrar stated that it was Plot No. 2586, which the Appellant herein claimed to be a portion of the suit property, which did not exist. The criminal case was determined on 11th June 2018, some years before the case that was before the trial court. The trial court observed that, although the Appellant learned from the Land Registrar as early as 2018 that there were no records at the land registry regarding the subdivision of the suit property, and that Plot No. 2586 did not exist, he took no action. The Appellant was issued with a Grant of Letters of Administration in respect of the estate of his deceased mother on 6th October 2016. This means that if the Appellant was of the view, as he contended before the trial court, that the land registry had fraudulently interfered with records, he had time to take action to correct the situation. Even before the trial court, the Appellant did not file a counterclaim for the rectification of the land records relating to Plot No. 2586, which he claimed had been interfered with by the Land Registrar, who was the 2nd Defendant in the suit. On his part, the Appellant produced a copy of the title deed for Plot No. 2586 dated 29th June 1995 in the name of his deceased mother, a copy of the mutation form dated 22nd March 1994, letter of consent of the Land Control Board dated 30th March 1994, a copy of a certificate of official search dated 21st December 2015 in respect of Plot No. 2586 showing that the property was registered in the name of the Appellant’s deceased mother, a copy of the Preliminary Index Diagram No. 26 for Kisumu Sidho East Registration Section, and a copy of a letter said to have been addressed to him by the Ministry of Lands and Physical Planning’s Regional Surveyor, Nyanza Region confirming that the suit property was subdivided in 1994 and gave rise to Plot No. 2595 and Plot No. 2586. The trial court took issue with the gaps in the Appellant’s evidence and what it considered an illogical sequence of events leading to the registration of the Appellant’s mother as the owner of Plot No. 2586. The trial court was of the view that the Appellant placed a premium on the title deed in the name of his deceased mother and on the survey map showing that the suit property had been subdivided, rather than on the processes leading to the said subdivision and the issuance of the title deed. Some of the questions that the evidence produced by the Appellant did not answer were: how the Registry Index Map was amended to reflect the alleged subdivision of the suit property without a corresponding entry in the register for the suit property, and how the title deed for Plot No. 2586 and a certificate of official search in respect of the plot were issued without a register to support the same. The trial court observed that the Appellant did not produce an agreement of sale between Kadundo Simon Booker and his deceased mother in respect of the portion of the suit property he was claiming. The court also noted that there was no evidence that the Land Control Board's consent to the subdivision of the suit property was ever sought or issued. The court also found it curious that the mutation for the subdivision of the suit property was registered on 29th June 1995, which was the date on which Plot No. 2586 came into existence, while the consent to transfer Plot No. 2586 to the Appellant’s mother was issued on 30th March 1994. The court wondered how the consent would have been issued before Plot No. 2586 came into existence. I have also noted something baffling in the said consent. On the face of the consent, it is indicated that the Appellant’s mother applied for the same on 18th March 1994. On that date, even the surveyor who prepared the mutation for the subdivision had not completed his work. As mentioned earlier, the mutation form is dated 22nd March 1994. How did the Appellant’s mother apply for the Land Control Board's consent to transfer Plot No. 2586 before the subdivision process was completed? I have also noted that both the mutation form and the title deed produced by the Appellant indicated that Plot No. 2586 was on Survey Map Sheet No. 25, which was incorrect. I also found it strange that although the Appellant had been issued with a Certificate of Confirmation of Grant of Letters of Administration in respect of the estate of his deceased mother, Jane Atieno Omanje, on 26th November 2018, he had not taken any step to have Plot No. 2586 transferred to his name by transmission and subsequently to the beneficiaries of the estate if indeed it existed. Although the Appellant claimed in paragraph (h) of his defence that such a transfer had been undertaken, no evidence of it was placed before the court. The trial court, having reviewed both oral and documentary evidence, found that the 1st and 2nd Respondents had proved that they had lawfully acquired the suit property, while the Appellant had failed to establish his claim over Plot No. 2586. I agree with the trial court that the Appellant did not present clear evidence in proof of his claim that his deceased mother acquired a portion of the suit property lawfully. The trial court’s finding that the 1st and 2nd Respondents’ evidence in support of their claim over the suit property was more believable compared to the evidence in support of the Appellant’s claim over Plot No. 2586 cannot be faulted. The finding was based on law and evidence on record. **Conclusion** For the foregoing reasons, I find no merit in the Appellant’s appeal. The appeal is dismissed with costs to the 1st and 2nd Respondents. **Written and signed by**  **S. OKONG’O** **JUDGE** **Delivered, countersigned and dated at Kisumu on this 21st day of May 2026** **E.ASATI** **JUDGE** Judgment delivered virtually through Microsoft Teams Platform in the presence of: Paskal Odhiambo for the Appellant Nyameino for the 1st and 2nd Respondents No appearance for the 3rd Respondent Atika Court Assistant