https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3701

Nyariki & another v Mariba & 9 others (Environment and Land Appeal E004 of 2025) [2026] KEELC 3701 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEELC 3701 (KLR) Republic of Kenya In the Environment and Land Court at Nyamira Environment and Land Appeal E004 of 2025 DO Ohungo, J June 17, 2026 Between Linet Kemunto Nyariki 1st Appellant Margaret Nyang’ara Aondo 2nd Appellant and David Aroba Mariba 1st Respondent Nyakundi Nyang’au 2nd Respondent Peter Onyari 3rd Respondent Fred Mokaya Gichwa 4th Respondent Nelson Mosioma 5th Respondent Elijah Nyakundi 6th Respondent Monene Abuta 7th Respondent Richard Orioki 8th Respondent Geoffrey Ongeri 9th Respondent Jackline Nyaboke Gichana 10th Respondent (Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Keroka (E K Nyutu, Chief Magistrate) delivered on 8th April 2025 in Keroka MCELC No. 1 of 2019) Judgment 1.Litigation leading to this appeal commenced in the Subordinate Court on 9th January 2019 when the First Appellant filed Plaint dated 9th January 2019 against the First to Ninth Respondents herein. The initial Plaint was replaced by Amended Plaint dated 1st November 2021, through which the Second Appellant was brought into the matter as Second Plaintiff. 2.The Appellants averred in the Amended Plaint that the First Appellant was the registered owner of the parcel of land known as East Kitutu/Mwamangera/2746 which gave rise to parcels of land known as East Kitutu/Mwamangera/4628 to 4630. That the Second Appellant was the registered owner of the parcel of land known as East Kitutu/Mwamangera/4629 which she purchased from the First Appellant. 3.The Appellants further averred that on 10th December 2018, the First to Ninth Respondents trespassed into the parcels of land known as East Kitutu/Mwamangera/4628 to 4630 (suit properties) and constructed structures thereby destroying maize crop and pit latrine thereon. 4.The Appellants therefore prayed for judgment against the First to Ninth Respondents jointly and severally for:a.Eviction and permanent injunction restraining the [First to Ninth Respondents] by themselves, their agents and/or servants or otherwise however from remaining on, constructing, trespassing or in whatsoever manner interfere with the suit land parcel No. East Kitutu/Mwamangera/2746.b.A declaration that the [First to Ninth Respondents] have no right to enter or occupy or use whole or any part of land parcel No. East Kitutu/Mwamangera/2746.c.Costs of the suit.d.Any other and further relief that the court my deem fit and just to grant. 5.The Tenth Respondent applied and was allowed to join the matter on 3rd July 2022 as an Interested Party. 6.The First to Ninth Respondents filed Defence dated 21st January 2019 which was later replaced by Amended Defence and Counterclaim dated 22nd August 2022. They denied the allegations of trespass and construction and averred that parcel number East Kitutu/Mwamangera/2746 belonged to one Kenyatta Gichwa who was since deceased and who was the father of the Eighth and Ninth Respondents. That the deceased married the Tenth Respondent as a second wife and that the Tenth Respondent conducted the succession proceedings to the exclusion of the Eighth and Ninth Respondents and thereafter hurriedly transferred the land to the Appellants despite knowing that the Eighth and Ninth Respondents were in possession and had a right to the land. 7.The First to Ninth Respondents further averred that they had suffered embarrassment, inconvenience and financial loss owing to the foregoing which they termed as “illegality, collusion and fraud.” They therefore prayed that the Appellants’ case be dismissed with costs and that judgment be entered in their favour for the following orders:i.A declaration that the transfer as effected to the [Appellants] herein as regarding properties number East Kitutu/Mwamangera/4628, 4629 and 4630 formerly known as East Kitutu/Mwamangera/2746 is and or was fraudulent.ii.That the land Registrar Nyamira Lands registry does ensure the cancelation of titles East Kitutu/Mwamangera/4628, 4629 and 4630.iii.That a permanent injunction do issue against the [Appellants] herein from restraining the 8th and 9th [Respondents] or any other persons acting on their authority when accessing and or using property number East Kitutu/Mwamangera/4628, 4629 and 4630.iv.General and special damages.v.Costs of the suit.vi.Any other relief that the court may deem fit to grant. 8.Upon hearing the matter, the Subordinate Court (E K Nyutu, Chief Magistrate) delivered judgment on 8th April 2025 and made the following orders:1.A declaration is hereby issued that the transfer of land parcel No. East Kitutu/Mwamangera/2746, subsequently subdivided into East Kitutu/Mwamangera/4628, 4629, and 4630, to the 1st Plaintiff was tainted by fraud.2.A declaration is hereby issued that a customary trust exists over the land parcel No. East Kitutu/Mwamangera/2746 for the benefit of the beneficiaries of the late Kenyatta Gichwa, including the 8th and 9th Defendants.3.The Land Registrar is hereby directed to rectify the land register in respect of land parcel Nos. East Kitutu/Mwamangera/4628, 4629, and 4630 to reflect the findings of this judgment.4.The Plaintiffs’ claim for eviction and a permanent injunction against the Defendants is hereby dismissed.5.The Defendants are not trespassers on the suit property.6.The Counterclaim by the Defendants is upheld to the extent of the declarations made herein.7.The Plaintiffs shall bear the costs of this suit and the Counterclaim. 9.Dissatisfied with the outcome, the Appellant filed this appeal through Memorandum of Appeal dated 24th April 2025 and prayed that the appeal be allowed, the judgment of the Subordinate Court be set aside, judgment be entered in their favour, the First to Ninth Respondents’ counterclaim be dismissed and that they be awarded costs of both the appeal and of the proceedings before the Subordinate Court. 10.The following are the grounds of appeal as listed on the face of the Memorandum of Appeal: 1.The learned trial Magistrate erred in law and in fact and fundamentally watered down the doctrine of bonafide purchaser for value without notice. 2.The learned trial Magistrate erred in law and in fact in not holding that the Appellants titles were protected under section 93 of the Law of Succession Act. 3.The learned trial Magistrate erred in law and in fact and misdirected herself fundamentally in holding that there exists customary law trust.4.The learned trial Magistrate erred in law and in fact and misdirected herself fundamentally in holding that the 1st to 9th Respondents had not trespassed upon the Appellants parcels of Land Nos East Kitutu/Mwamangera/4628 and 4629.5.The learned trial Magistrate erred in law and in fact in not holding that the 1st to 9th Respondents ha (sic) not established there (sic) claim pursuant to Section 109 of the Evidence Act.6.The learned trial Magistrate erred in law and in fact in not holding that the entitlement of the 8th and 9th Respondents ought to be established in the succession cause before the Judge in the High Court.7.The learned trial Magistrate erred in law and misdirected herself fundamentally in not holding that the counterclaim disclosed no reasonable cause of action against the Appellants.8.The learned trial Magistrate erred in law and misdirected herself fundamentally in impeaching the title of the 10th Respondent whose root was sanctioned by the High Court in the Succession Cause.9.The learned trial Magistrate acted in excess of her jurisdiction as the similar issues were raised by the mother of the 8th and 9th Respondents and failed.10.The learned trial Magistrate erred in law and in fact in imputing fraud and customary trust when they hardly exist from the pleadings and evidence on record.11.The decision of the learned trial Magistrate is arrived at against the weight of the evidence on record. 11.The Appeal was canvassed through written submissions. The Appellants filed submissions dated 13th April 2026 while the Respondents filed submissions dated 14th April 2026. 12.It was submitted on behalf of the Appellants that they demonstrated that they had lawfully acquired the property from the Tenth Respondent and were duly registered as proprietors and were bona fide purchasers for value. They relied on the cases of Dina management Limited v County Government of Mombasa & 5 Others (Petition 8 (E010 of 2021) [2023] KESC (KLR); Lwanga v Mubiro and Others (Civil Appeal 18 of 2022) [2024] UGSC 7; Katende v Haridar & Company Ltd (2008) 2EA 173 and Samwel Kmamere v Land Registrar, Kajiado Civil Appeal No. 28 of 2005 [2015] eKLR. 13.It was equally submitted that in the instant case, the First Appellant purchased from the Tenth Respondent part of parcel number East Kitutu/Mwamangera/2746, subdivided it into East Kitutu/ Mwamangera/4628 to 4630, sold East Kitutu/Mwamangera/4629 to the Second Appellant and retained East Kitutu/Mwamangera/4628 and 4630. That prior to the purchase, the First Appellant conducted due diligence and established that the Tenth Respondent became the proprietor of East Kitutu/Mwamangera/2746 through transmission after succession proceedings conducted in Kisii High Court Succession Cause No. 230 of 2007. That the mother of the Eighth and Ninth Respondents applied in the succession cause to have the name of the Tenth Respondent deleted from the register, but the application was dismissed with costs on 8th February 2017. 14.It was further submitted that although the Respondents alluded to illegality, fraud and collusion, no particulars were pleaded and that there was no proof of fraud to the required standard. Reliance was placed on the cases of Arthi Highway Developers Limited v West End Butchery Limited & Others, Koinange & 13 others v Charles Karuga Koinange 1986 KLR and Kinyanjui Kamau v George Kamau [2015] eKLR. 15.It was further submitted on behalf of the Appellants that if the Eighth and Ninth Respondent felt they had a right to inherit the property, they ought to have filed an objection or sought revocation of the grant in the succession proceedings as opposed to filing the counterclaim. That in any case, Section 93 (1) of the Law of Succession Act shielded the First Appellant’s title from being affected by any revocation of grant. In conclusion, the Appellants urged the Court to allow the appeal with costs. 16.On their part, the Respondents submitted that a title obtained through fraud could not be protected and that indefeasibility of title was inapplicable in the case of unlawful acquisition. Reliance was placed on the cases of Daudi Kiptugen v Commissioner of Lands & 4 Others [2015] eKLR and Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR. They further submitted that it was trite law that exclusion of beneficiaries from succession proceedings did not extinguish their rights especially when they were intentionally left out. 17.The Respondents also submitted that property was ancestral land and that the Eighth and Ninth Respondents’ interests amounted to an overriding interest under Section 28 of the Land Registration Act. Relying on the case of Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR, the Respondents submitted that the Eighth and Ninth Respondents were sons of the deceased proprietor and that it was incumbent upon the Tenth Respondent as administrator to preserve the estate for the benefit of the rest of the beneficiaries. 18.The Respondents further submitted that the Appellants failed to prove their allegations of trespass by the Appellants. In conclusion, they urged the Court to dismiss the appeal with costs. 19.This being a first appeal, it is important to recall the mandate of a first appellate Court. In that regard, the Court of Appeal held in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR thus:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse 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. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia 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.” 20.I have carefully considered the grounds of appeal, the entire record and the parties’ submissions. The issues that arise for determination are whether the Respondents made a case for cancellation of the Appellants’ titles, whether customary trust was established, whether trespass was established and whether the reliefs sought were available. 21.The Appellants’ case was that the First Appellant was the registered owner of the parcel of land known as East Kitutu/Mwamangera/2746 which upon subdivision gave rise to parcel numbers East Kitutu/Mwamangera/4628 to 4630 and that the Second Appellant was the registered owner of the parcel of land known as East Kitutu/Mwamangera/4629. The Respondents did not dispute that position. They sought cancellation of the Appellants’ titles in respect of the suit properties on grounds of illegality, collusion and fraud. 22.A perusal of the register in respect of East Kitutu/Mwamangera/2746 shows that Kenyatta Gichwa was registered as the first proprietor on 22nd August 2002. On 7th August 2009, the Tenth Respondent and Bonareri Nyakundi became registered proprietors following transmission from the estate of Kenyatta Gichwa. Title deed was issued to them on 28th August 2009. On 19th October 2015, the First Appellant became registered proprietor through transfer, and a title deed was issued to her on the same day. 23.The rights of a registered proprietor of land are well settled in law. Such a proprietor is entitled to the rights, privileges, and benefits spelt out under Article 40 of the Constitution which secures protection of right to property and Sections 24 and 26 of the Land Registration Act. 24.The interest and protection conferred on a registered proprietor is specified by Section 24 of the Land Registration Act which provides as follows:Subject to this Act—(a)the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and(b)the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. 25.Pursuant to Section 26 of the Land Registration Act, the Court is obligated to accept the certificate of title issued by the Land Registrar as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner and the title is not to be challenged except on the grounds specified in the provisos under Section 26 (1) (a) or (b). Those provisos state that the grounds on which a title can be nullified are fraud or misrepresentation to which the registered proprietor is proved to be a party or where it is shown that the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme. 26.The First to Ninth Respondents opted to challenge the Appellants’ titles on grounds of illegality, collusion and fraud. The Court of Appeal restated the law on pleading and proving fraud in Adam v Adam & 3 others (Civil Appeal 103 of 2019) [2022] KECA 501 (KLR) (1 April 2022) (Judgment) as follows:“In Vijay Morjaria vs. Nansingh Maddhusing Darbar & another [2000] eKLR, Tunoi, JA stated: “It is well established that fraud must be specifically pleaded and the particulars of the fraud alleged must be stated on the face of the pleading. It is also settled law that fraudulent conduct must be distinctly alleged and distinctively proved and it is not allowable to leave fraud to be inferred from the facts.”19.In Kinyanjui Kamau vs. George Kamau [2015] eKLR, the Court restated the principle that allegations of fraud must not only be pleaded but must be strictly proved. The Court cited with approval the earlier statement by the Court in Ndolo v Ndolo (2008) 1 KLR (G&F) 742 as follows: “...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a 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....” 27.A perusal of the Amended Defence and Counterclaim reveals that although the First to Ninth Respondents made allegations that the Appellants’ titles in respect of the suit properties were tainted by illegality, collusion and fraud, no particulars were pleaded in support of those claims. 28.Based on their submissions in this appeal and the case pleaded in their Amended Defence and Counterclaim, the First to Ninth Respondents’ case was that the alleged illegality, collusion and fraud was due to succession proceedings being conducted in Kisii High Court Succession Cause No. 230 of 2007 to the exclusion of the Eighth and Ninth Respondents who believed that they were entitled to inherit East Kitutu/Mwamangera/2746 as sons of Kenyatta Gichwa (deceased). 29.The Subordinate Court rendered itself in the judgment as follows:In this case, the evidence indicates that the land was ancestral family land; the 8th and 9th Defendants are direct descendants of Kenyatta Gichwa; they were seemingly excluded from inheriting their father’s estate due to the actions of the Interested Party; and the Plaintiffs acquired the land from a co-wife (Interested Party) of their mother. These factors strongly point towards the existence of a customary trust over the land for the benefit of all the children of the late Kenyatta Gichwa.Given the potential existence of a customary trust and the Defendants’ legitimate claim as beneficiaries, their presence on the land cannot be simply categorised as trespass. They rightfully believe they have a share in their father’s ancestral land. …While the Plaintiffs hold registered titles, which would ordinarily give rise to a cause of action for trespass, the Defendants have challenged the validity of these titles based on allegations fraud and the existence of a customary trust.In light of the findings above regarding the serious allegations of fraud in the acquisition of the title by the Interested Party and the potential existence of a customary trust, the Plaintiffs’ cause of action is significantly undermined. The court cannot lend its aid to a claim that appears to arise from a potentially fraudulent transaction.Therefore, while a cause of action may have technically existed based on the initial registration, the substantive evidence presented by the Defendants casts serious doubt on the legitimacy of the Plaintiffs’ claim. 30.It is important to restate that fraud is a serious allegation. The party alleging it must strictly prove it to standard higher than the usual one in civil cases of proof on a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt. See Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR and John Mbogua Getao v Simon Parkoyiet Mokare & 4 others [2017] eKLR. 31.The Learned Magistrate did not determine whether fraud was pleaded and particularised. As we have seen, it was not particularised. That should have been the end of the Respondents’ allegations of fraud. Even assuming that there was need to investigate the issue of fraud further, the allegations should have been subjected to the requirement that they be strictly proved to a standard higher than the usual one in civil cases of proof on a balance of probabilities. That was not done. Instead, the Learned Magistrate simply stated that there wasa potentially fraudulent transaction. A potentially fraudulent transaction is not the same thing as a proven fraudulent transaction. The strictness required in pleading and proving fraud must correspondingly exist in any judicial determination that fraud exists. I find that fraud was not proved. 32.The First to Ninth Respondents also anchored their case on allegations of illegality which were in turn founded on the contention that the Eighth and Ninth Respondents who believed that they were entitled to inherit East Kitutu/Mwamangera/2746 as sons of Kenyatta Gichwa (deceased) were not included as heirs in succession proceedings in Kisii High Court Succession Cause No. 230 of 2007. It must be borne in mind that the Subordinate Court was not hearing the succession cause on the administration of the estate of Kenyatta Gichwa (deceased). 33.Any questions regarding who should have been included as a beneficiary were not for determination by the Subordinate Court. The Learned Magistrate should not have entertained the Respondents’ attempt to re-litigate the succession cause before her, especially when the matter had been determined by another Court, a superior Court for that matter. The upshot is that no illegality was established. The Respondents did not establish a case for cancellation of the Appellants’ titles. 34.Did the Respondents establish customary trust? “Trust” is defined in Black’s Law Dictionary, 9th Edition, as a right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title. 35.To claim trust over the suit properties, the First to Ninth Respondents needed to plead it in their Amended Defence and Counterclaim. It is a cardinal principle of litigation that parties are bound by their pleadings. The Court too is in a sense bound by the parties’ pleadings since pleadings circumscribe the issues for determination and reliefs sought. See Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR. 36.The central role played by pleadings was restated by the authors of Bullen and Leake and Jacob's Precedents of Pleadings, 12th Edition, London, Sweet & Maxwell (The Common Law Library No. 5) as follows:The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the two-fold purposes of informing each party what is the case of the opposite party which he will have to meet before and at the trial, and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial. 37.A perusal of the First to Ninth Respondents’ Amended Defence and Counterclaim does not reveal any claim of trust over the suit properties. The closest that the Ninth Respondents came to raising trust was in their final written submissions in which they contended that parcel number East Kitutu/Mwamangera/2746 was ancestral land which was held in trust. Such an argument in the absence of an express averment and prayer in the Amended Defence and Counterclaim was futile. While it is true that pursuant to Section 28 (b) of the Land Registration Act, trusts including customary trusts, are overriding interests which do not require registration, a party cannot advance a claim on trust without pleading it. I find and hold that customary trust was not established. 38.The next issue for determination is whether trespass was established. Trespass is defined in Black’s Law Dictionary, 10th Edition as an unlawful act committed against the person or property of another; especially wrongful entry on another’s real property. 39.The ingredients of trespass were discussed by the Court of Appeal in Doshi v Chemutut & 7 others (Civil Appeal E020 of 2023) [2025] KECA 776 (KLR) (9 May 2025) (Judgment) as follows:Trespass, as stated by this Court in the case of Charles Ogejo Ochieng v Geoffrey Okumu [1995] KECA 169 (KLR), is an injury to a possessory right, and therefore the proper plaintiff in an action of trespass to land is the person who has title to it, or a person who is deemed to have been in possession at the time of the trespass. As for the ingredients of trespass, the Court in William Kamunge Gakui v Eustace Gitonga Gakui (Civil Appeal 16 of 2013) [2014] KECA 39 (KLR) stated that trespass is a violation of the right to possession, and that a plaintiff must prove that he has the right to immediate and exclusive possession of the land. 40.There is no dispute that the Appellants were the registered proprietors of the suit properties. By virtue of their titles, they had the right to immediate and exclusive possession. The Eighth and Ninth Respondents stated in their statements that they went to the suit properties on 10th December 2018. On his part, the Ninth Respondent testified that they constructed a house on the suit properties the following day, that is on 11th December 2018. 41.Not being the registered proprietors and having failed to plead and prove any valid claim to the suit properties, the Respondents did not have any the right to immediate and exclusive possession of the land. They did not establish trespass against the Appellants. On the other hand, by virtue of the First to Ninth Respondents’ own testimonies as to entry and construction on the suit properties, the Appellants established a case of trespass. The Appellants were entitled to the reliefs that they sought while the First to Ninth Respondents’ counterclaim was for dismissal. 42.I have said enough to demonstrate that the Learned Magistrate erred in dismissing the Appellants’ case and allowing the First to Ninth Respondents’ counterclaim. I find merit in this appeal. 43.In view of the foregoing discourse, I make the following orders:a.The judgment and decree of the Subordinate Court delivered on 8th April 2025 are set aside.b.The First to Ninth Respondents’ counterclaim is dismissed.c.A permanent injunction is hereby issued restraining the First to Ninth Respondents by themselves, their agents and/or servants from remaining on, constructing, trespassing or in whatsoever manner interfering with the parcels of land known as East Kitutu/Mwamangera/4628, 4629 and 4630.d.A declaration is hereby issued that the First to Ninth Respondents have no right to enter or occupy or use whole or any part of the parcels of land known as East Kitutu/Mwamangera/4628, 4629 and 4630.e.The Appellants shall have costs of both this appeal and of the proceedings before the Subordinate Court. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 17TH DAY OF JUNE 2026.D. O. OHUNGOJUDGEDelivered in the presence of:Ms Bosire for the AppellantsMs Mosomi for the RespondentsCourt Assistant: B Kerubo