https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4483

Akumu v Osingo & another (Environment and Land Appeal E021 of 2025) [2026] KEELC 4483 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4483 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Appeal E021 of 2025 FO Nyagaka, J July 9, 2026 Between Linda Sophie Akumu Appellant and Beatrice Anyango Osingo 1st Respondent Atanas Masani Vuyula 2nd Respondent (Being an appeal from the judgment of the Senior Principal Magistrate Hon. Chrispine N.C. Oruo (SPM) delivered on the 30th May, 2025 in Rongo CMCC No. E023 of 2022) Judgment Introduction 1.This is an appeal arising from the judgment of Honourable Chrispine N. C. Oruo, Senior Principal Magistrate, delivered on 30th May, 2025 in Rongo CMCC No. E023 of 2022. The Appellant filed a Memorandum of Appeal dated 12th June, 2025, appealing against the said judgment on the following grounds: -1.That the Learned Trial Magistrate erred in law and in fact in failing to find that the Appellant proved her case against the Respondents on a balance of convenience.2.That the Learned Trial Magistrate erred in law and fact in dismissing the claim by the Appellant without considering all the aspects of the claim and evidence on record.3.That the Learned Trial Magistrate grossly erred in Law and in fact in conjuring non-existing facts thus consequently coming to a wrong conclusion.4.That the Learned Trial Magistrate’s judgment is against the weight of the evidence adduced by the Appellant and the Respondents.5.That the Learned Trial Magistrate erred in law and in fact in failing to consider the pleadings and evidence canvassed in support of the same.6.That the Trial Magistrate’s judgement is against well laid down legal principles. 2.The Appellant sought for orders that the impugned judgment be set aside and an order do issue against the Respondents for their eviction from the suit parcel Kamagambo/Kabuoro/1710. She also sought for the costs of both the appeal and those of the suit in the subordinate court. Brief Facts 3.Before the trial court, the Appellant had filed a suit against the Respondents vide a Plaint dated 24th October, 2022. Her claim was that Sometime in 2018 the defendants trespassed on to it and constructed permanent structures on it thereby denying her the peaceful possession thereon. On 27th July 2018 she commissioned a survey conducted by the County Surveyor whose findings confirmed that the defendants trespassed. She engaged with them in negotiations for an amicable settlement but the negotiations fell apart. She claimed that she continued to suffer loss and damage as a result of the acts of trespass. She prayed mainly for the relief an order of eviction against the Respondents from her suit parcel. 4.The Respondents denied the allegations in the Plaint vide their joint Statement of Defence dated 15th December, 2022. They denied the contents of the Plaint, particularly that the plaintiff was the owner of that parcel of land known as Kamgambo/Kabuoro/1710. Instead, they added, that parcel the parcel number 1710 was owned by them having obtained it by way of purchase from the plaintiff. They denied the claim of trespass and added that they were the lawful proprietors of the landing issue. They added that the plaintiff did not have any rights whatsoever on the land. They prayed for the dismissal of the suit. 5.They then filed a Counterclaim dated 30th October, 2023. They averred that they were co registered as owners of parcel number Kamagambo/Kabuoru/3670 measuring approximately 0.04 hectares which they bought from the 2nd defendant by the sale agreement dated 9th July 2014 in the sum of Kenya shillings 500,000/=. Prior to the transaction they conducted an official search which revealed that the 2nd Defendant was the owner. The counterclaimer then became registered as owner of the parcel of land on 15th July 2014 following a successful transfer from Omutinyu Douglas Shitandi. They embarked on construction of a house which costing Kshs. 9,000,000/=. They prayed for exclusive rights over the said parcel of land to the exclusion of all and sundry, including the 1st defendant. Further, the first defendant’s Counterclaim was that the portion of land sold to the Counter claimer by the 2nd defendant belonged to her. As a result of the claim of ownership the suit property by the 1st Defendant, the Counterclaimer herein were bound to be dispossessed, denied or deprived of their right to occupy use or benefit from the land. The counterclaim sought for orders that they were the lawful owner of the suit parcel, an order of specific performance directing the 2nd Defendant in the Counterclaim to compensate them the value of the suit parcel, and an order of Permanent Injunction restraining the 1st defendant and her agents from interfering with the suit parcel. 6.The matter was heard fully. In his judgment delivered on 30th May, 2025 the trial magistrate found that the Respondents were the registered owners of the suit parcel L.R Kamagambo/Kabuoro/3670. Further, he found that the plaintiff failed to prove that the title was acquired fraudulently and through misrepresentation. He concluded that the plaintiff was not entitled to the orders in the Plaint. He dismissed her claim and entered judgment on behalf of the Defendant in regard to the Counterclaim for a permanent injunction restraining the plaintiff by herself, her servants, agents and or any other person claiming through her from invading the suit parcel of land or trespassing onto it or carrying out any illegal acts of cultivation, cutting down trees thereon indiscriminately destroying the boundary marks thereof. He also awarded him the costs of the Counterclaim. 7.The Appellant being dissatisfied with the judgment filed the present appeal. It was canvassed by way of written submissions. Submissions 8.The learned counsel for the Appellant filed his submissions dated 27th February, 2026. In them he submitted that the suit parcel was Kamagambo/Kabuoro/1710 while the Respondents introduced Kamagambo/Kabuoro/3670 which the Appellant never contested. Further, that the Appellant never sued against land parcel Kamagambo/Kabuoro/3670, but the trial court determined issues over the said parcel instead of the suit property 1710. 9.He relied on the case of Independent Electoral and Boundaries Commission v Stephen Mutinda Mule, Civil Appeal 219 OF 2013 and Raila Odinga & 5 Others vs IEBC & 3 Others, Supreme Court of Kenya, Petitions Nos. 3,4 and 5 of 2013 (2013) eKLR. 10.It was his submission that courts must confine themselves to issues framed by parties.He added that the trial court framed and determined ownership of parcel 3670 thus ignored the pleaded cause of action and granted relief not sought. 11.He submitted that the trial court erred when it found that the Appellant had not taken out letters of administration. He also submitted that the Appellant testified that her father transferred the suit land to her before his demise which evidence was not controverted. 12.He argued that since the transfer occurred inter vivos, the land ceased to form part of the deceased’s estate. He cited the case of Trouistik Union International v Jane Mbeyu Civil Appeal 145 of 1990 and Section 28(b) of the Land Registration Act. 13.It was his submission that even if there was no formal transfer, the Appellant’s beneficial interest would protect her possession. He relied on the case of Mitu-bell Welfare Society V Kenya Airports Authority [2021] KESC 34 (KLR) and Articles 40 and 159(2)(d) of the Constitution. 14.He submitted that dismissal of a trespass Claim on a technical ground without interrogating the encroachment issue offended the principle that obligated the courts to administer justice without undue regard to procedural technicalities. 15.Counsel submitted that PW2, the County Surveyor confirmed the suit land 1710 and land Parcel 3670 were distinct. He added that the Respondents owned parcel 3670 and their occupation of the suit land was legally indefensible. 16.He relied on Sections 107–109 of the Evidence Act and submitted that the Appellant proved the existence and location of land parcel No. Kamagambo/Kabuoro/1710, the survey confirmation over it and entry thereon and construction by Respondents. 17.He added that the Respondents did not prove any legal entitlement to the suit property or any boundary encroachment.He also submitted that the trial court’s final determination was in respect to Land Parcel No. Kamagambo/Kabuoro/3670 which the Plaint did not make any reference to. 18.Counsel relied on the case of Odd Jobs V Mubia [1970] E.A. 476 and submitted that the learned magistrate exceeded his mandate. He also submitted that the trial magistrate failed to determine the issue of trespass upon Land Parcel No. Kamagambo/Kabuoro/1710. 19.He urged the court to allow the appeal as prayed. Respondents’ Submissions 20.Counsel for the Respondent filed his submissions dated 23rd January, 2026 where he identified one issue for determination, whether the appeal is merited. 21.He submitted that the Appellant claimed that she was the proprietor of the land parcel number Kamagambo/Kabuoro/1710. 22.He further submitted that an official search done on 17th July, 2018 which showed that William Akumu Aluoch was the registered owner of the land parcel and not the Appellant. 23.He went on to submit that the Appellant merely stated the William Akumu Aluoch was her father and that he was deceased. He added that during cross -examination, the Appellant stated that William Akumu Aluoch was deceased but there was no evidence of death adduced to prove her averments. 24.He cited Section 107 as read together with Section 108 of the Evidence Act and Section 2 (3) of The Law Reform Act and the case of Julian Adoyo Ongunga & another V Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi Deceased) 2016 eKLR 25.It was his submission that Kamagambo/Kabuoro/1710 was registered in the name of William Akumu Aluoch whilst the land parcel no. Kamagambo /Kabuoro/3670 was registered in the name of the Respondents. 26.He further submitted that the Appellant failed to adduce evidence which showed that she had the standing before the trial court in so far as the ownership and possession of the land Kamagambo /Kabuoro/1710 was concerned. 27.He added that the Appellant lacked the locus standi and had failed to establish her claim for trespass as against the Respondents. Section 3 (1) of the Trespass Act and the case of Mwangi V Njaria [2022] KEELC 13564 (KLR). 28.He submitted that the Respondents asserted their proprietary rights arising from their registration in Kamagambo/Kabuoro/3670. Counsel submitted that the trial court’s finding was within the pleadings that formed the case before it. 29.He went on to submit that the Appellant herein lacked the locus standi to institute a claim of trespass against the Respondents. He relied on the case of County Government of Migori & another V Ogada & another (Environment and Land Appeal E045 of 2021) [2025]. 30.In conclusion, he urged the court to dismiss the appeal with costs to the Respondent and the trial court’s determination be upheld by this Honourable Court. Analysis and Determination 31.Upon consideration of the grounds of appeal, pleadings, submissions and the authorities cited and the law. The following issues commend themselves to me for determination:1.Whether the trial court erred in dismissing the Appellant’s suit.2.Who should bear the cost of the appeal. 32.My duty as a first appellate court is clear. The principle upon and the extent to which I exercise jurisdiction is well settled. I have to reevaluate the evidence afresh and arrive at my own conclusion. In the case of Gitobu Imanyara & 2 Others V Attorney General [2016] eKLR, the Court of Appeal discussed the duty of the first appellate court 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 consider the evidence, evaluate it itself and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 33.The task of a first appellate court was summarized in Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows:“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.” 34.Additionally, the Court of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows:“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions. 35.Other decisions have arrived at the same view. For instance, in Williamson Diamonds Ltd and another v Brown [1970] EA 1, the court held that:“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.” 36.This was stated in PIL Kenya Limited v Oppong [2009] KLR 442, where it was held that:“It is the duty…of a first appellate court to analyze and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeking the witnesses and their demeanour and giving allowance for that”. 37.Also, it was restated in in Selle and another v Associated Motor Boat Company Ltd and others [1968] 1 EA 123 wherein the Court of Appeal held:“…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 ...” 38.Lastly, it was additionally restated by the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows:“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions” 39.Lastly, with the guidance above, I now proceed to determine the issues in this appeal. I point out at the outset that Grounds 1, 2, 3 and 4 revolve around the determination of the trial court regarding the evidence tendered hence they will be considered as one. The 5th ground regards consideration of the appellant’s pleadings, while the 6th is a general one. 40.The Appellant claimed that she was the lawful owner of parcel Kamagambo/Kabuoro/1710. It was her case that suit parcel was specifically the said parcel of land while the Respondents introduced Kamagambo/Kabuoro/3670 which she never disputed. 41.The Respondents on the other hand contended that land parcel No. Kamagambo/Kabuoro/1710 was registered in the name of William Akumu Aluoch whilst the land parcel No. Kamagambo /Kabuoro/3670 was registered in the name of the Respondent. 42.He argued that the Appellant lacked the requisite locus standi in filing the instant suit as she failed to provide letters of administration for William Akumu Aluoch (deceased.) 43.It is trite law that he who alleges must prove. Section 107 of the Evidence Act provides;“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.” 44.It is this court’s view that when a person is bound to prove the existence of any fact, the burden of proof lies on that person. It is without a doubt that the onus was on the Appellant to prove that she was the lawful owner of parcel number 1710. 45.Further, Section 109 of the Evidence Act provides as follows;“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 46.In the case of Anne Wambui Ndiritu V Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue” 47.I have keenly perused the record and it is was the Appellant’s claim under paragraph 3 of her Plaint dated 24th October, 2022 that she was the proprietor of Kamagambo/Kaburo/1710. She produced an official search (Pex. 2) which confirmed that the said parcel was registered to William Akumu Aluoch. 48.During cross-examination, the Appellant confirmed that William Akumu Aluoch was her father, and he had died in 2020. She admitted that she did not have any Power of Attorney to file the suit but she claimed to have letters of administration. She produced none of the latter. 49.In the case of Julian Adoyo Ongunga & another V Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] KEHC 4186 (KLR) the court held as follows:“…the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction since it all amounts to null and void proceedings. It is also worth-noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties.” 50.It is trite that without a Grant of Letters of Administration, one cannot purport to file suit in respect of the Estate of a deceased person. In the present case, the Appellant filed suit without a Grant of Letters of Administration for the Estate of the late William Akumu Aluoch. 51.As rightly found by the trial magistrate, in the Appellant’s absence of letters of administration, it meant that she lacked the capacity to bring and agitate the suit. Furthermore, in the case of Macfoy V United Africa Co. Ltd. [1961] 3 All ER, 1169 Denning J held as follows;“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse…” 52.It is my humble opinion that once it was proved that the suit had been filed for the deceased person in this case William Akumu Aluoch, the Appellant lacked the capacity/locus if she did not have a grant of letters of administration and since she did not, thus the suit became or was a nullity. Thus, my view is that the trial court did not err when it dismissed the Appellant’s suit on that account. 53.Notably, the main issue the court then decided on was whether the plaintiff had proved her case or balance of probability that the defendants had trespassed onto the suit land. Also the other was whether the Defendants had proved their counterclaim to he required standard. 54.The trial magistrate considered the evidence of the parties. He noted that the plaintiff had stated that parcel No. 1710 belonged to her father Alex Okumu Oluoch (deceased). On her part, the defendant states that she is the owner of parcel No. 3670. The surveyor testified that the two parcels of land were distinct and existed. PW1 claimed that parcel No. 3670 was not in the same area as parcel No. 1710. She also referred to the Surveyor’s report dated 27.07.2018 (PExh 1). She stated that her father was alive when she entered into the agreement for parcel No. 1710 but she did not have a power of attorney. She stated that her father transferred the land to her before he died. She produced a Search (PExh. 6) to show that the land was in her name. 55.A close scrutiny of PExh 6 shows that it is not authenticated by the Land Registrar who purportedly issued it. It does not bear the name and designation number of he said or alleged officer who issued it unlike the Defendant’s DExh 3 (a search on their alleged parcel No. 3670). The PExh. 6 cannot thus be vouched for. In any event PW2, Fredrick Otieno, the surveyor who was the plaintiff’s own witness, confirmed that the land was registered in the name of William Okumu and not the plaintiff. 56.The Respondents produced a Certificate of Title issued in their name on 15th July, 2014. Section 26(1) of the Land Registration Act provides that:“…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 partyb.where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 57.It is not in dispute that the Respondents produced documentary evidence in form of a Certificate of Title which proved that they were the registered owners of parcel number 3670. Notably, the said title was never challenged by the Appellant. 58.The Respondent’s Counterclaim was over parcel number 3670 which clearly bore a separate cause of action from that of the Plaintiff and it was the trial court’s duty to determine it on its merit. The Plaintiff did not adduce any evince to challenge the evidence of the Defendants on their counterclaim. The surveyor visited the parcels of land and found that they were separated from each other by several other parcels. The Court then found merit in the counterclaim: that it succeeded. It is this court’s view that the trial court was right in finding that the that the Respondents proved to be the registered owners of Kamagambo/Kabuoro/3670. 59.Consequently, the appeal is without merit and is hereby dismissed with costs. 60.It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 09TH DAY OF JULY 2026.HON DR. IUR NYAGAKA,JUDGEIn the presence of,O. H. Bunde for the RespondentMr. Kisia for the Appellant