https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3800

Nyongesa & another v Otsialo (Land Case Appeal E029 of 2025) [2026] KEELC 3800 (KLR) (16 June 2026) (Judgment) Neutral citation: [2026] KEELC 3800 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Land Case Appeal E029 of 2025 AK Bor, J June 16, 2026 Between Joseph Wafula Nyongesa 1st Appellant Makokha Nyongesa 2nd Appellant and Justine Muhenje Otsialo Respondent (An Appeal against the decision of J.W. Gichimu, Chief Magistrate, delivered on 20/5/2025 in Bungoma CMCCC No. 380 of 2005) Judgment 1.Being aggrieved by the decision of J.W. Gichimu, Chief Magistrate, delivered on 20/5/2025 in Bungoma CMCCC No. 380 of 2005, the appellants lodged this appeal. The main grounds of appeal are that the Learned Magistrate erred in allowing the respondent’s claim when it was clear that the late John Nyongesa was neither buried on the land known as E. Bukusu/S. Kanduyi/4621 (the suit land) nor do the appellants stay or occupy that land. Further, that the respondent did not prove her claim as required by law and that the Learned Magistrate failed to analyze the appellant’s evidence against that of the respondent hence arrived at a wrong decision. Through the memorandum of appeal dated 16/6/2025, the appellants sought to have the judgment of the Learned Magistrate set aside and in its place, an order for the dismissal of the respondent’s claim. 2.The respondent filed Bungoma SPM CCC No. 380 of 2005 seeking an injunction to restrain the appellants from burying the remains of their father John Nyongesa on the suit land pending hearing and determination of that suit. Nevertheless, it would seem that he was buried on the land despite an order made by the court on 6/8/2005. The respondent amended her claim on 10/5/2018 and sought an eviction order and an order to restrain the appellants from interfering with the suit land together with an order directing the exhumation of the remains of the late John Nyongesa from the suit land at the defendant’s costs. 3.The appellants denied the claim and averred in their defence dated 12/8/2005 that the late John Nyongesa would be buried within his only known homestead. 4.The matter proceeded to hearing and the trial court found that the plaintiff had produced a copy of the title deed confirming that they were the owner of the suit land. The court noted that the 2nd defendant stated that he lived on parcel no. 23804 but did not produce any evidence to prove that that land existed or that it was registered in his father’s name. Further, that the 2nd defendant did not prove that his father was buried on parcel no. 4621 nor did he prove that the 3rd defendant lived on parcel no. 4646. 5.The trial court noted that the 2nd defendant had admitted that the plaintiff’s land was part of what he said was his father’s land. The trial court concluded that the defendants were occupying the plaintiff’s land on the wrong assumption that it belonged to their father. The court entered judgment in favour of the plaintiff, issued an order restraining the appellants from interfering with the plaintiff’s land and ordered their eviction from the suit land. The court also issued an order for the exhumation of the remains of the late John Nyongesa from E. Bukusu/S. Kanduyi/4621 at the defendants’ costs. 6.The appeal was canvassed through written submissions. The appellants submitted that the 1st appellant gave evidence and told the court that Fred Musee Nyongesa died before this case was heard and that his remains were interred on parcel no. 4647. Further, that the 1st Appellant testified that he stayed on parcel no. 23804 whereas the 2nd appellant stayed on parcel no. 4647. Additionally, that the remains of their father were interred on parcel no. 23804. 7.The appellants urged that he who alleges must prove as stipulated by Section 107 (1) of the Evidence Act. They argued that the respondent alleged that she purchased parcel no. 4621 from Moses Sifuna Wekesa and obtained a title in 1999 yet she did not produce the sale agreement or proof of payment of the consideration. Additionally, that she did not call the vendor as a witness and did not produce any consent obtained from the Land Control Board or any transfer instrument. 8.They pointed out that the judgment that the respondent alleged was issued against John Nyongesa in Bungoma SRM CCC No. 136 of 1998 was set aside in Bungoma High Court Civil Appeal No. 45 of 2000. They submitted that the respondent merely produced a certified copy showing that she was the registered proprietor of the suit land. The appellants urged that while registration was prima facie evidence of ownership, courts are enjoined to interrogate the root of the title where it was challenged. They cited the finding in Munyu Maina v Hiram Gathiha Maina [2013] eKLR in support of this argument. They urged that the trial court did not interrogate the legality of the alleged acquisition of the land by the respondent. 9.They went on to argue that if the land was agricultural land, then Section 6 of the Land Control Act rendered any transactions without the Land Control Board consent void. 10.The appellants submitted that the respondent admitted she did not reside on the suit land and had never taken possession since 1989. Moreover, that she did not produce evidence showing that the appellants occupied the suit land and had buried their father on the suit land. They argued that she should have produced photographs, a surveyor’s report and map sheet to prove trespass on her land. 11.Regarding exhumation, the appellants submitted that an order of exhumation was a drastic remedy requiring strict proof in compliance with the Public Health Act. They added that courts have held that exhumation must be exercised cautiously due to it sensitive nature. They cited Re Estate of M’Marete M’Mugambi (Deceased) [2019] eKLR. They reiterated that there was no evidence produced by the respondent indicating that the late John Nyongesa was interred on parcel no. 4621, which would have included the burial permit, proof of the burial or anything linking the appellants to the burial. 12.The appellant submitted that that the 1st appellant stated in his testimony that he resided on parcel no. 23804 where the remains of his father were interred and that the 3rd appellant stayed on parcel no. 4621. Further, that the 1st appellant did not know the respondent and that they did not live on parcel no. 4647. The appellant concluded that the trial court appeared to have relied on the weaknesses of the defence instead of the strength of the plaintiff’s case. 13.The respondent submitted that she was the owner of the suit land and had produced a copy of the title deed, register and search to support her claim. She explained that the suit land was hived out of parcel no. 3424 which was registered in the name of Moses Sifuna Wekesa. That the appellants’ father trespassed on the suit land and she sued him but he refused to move out of the land. During the pendency of ELC Case No. 248 of 2001, the appellants’ father died but the appellants continued staying on the suit land illegally. She elaborated that that suit abated by operation of law. 14.She then filed Bungoma SPMCCC No. 380 of 2005 and despite obtaining orders to stop the burial, the appellants defied the court order and buried their father on the suit land. She maintained that she was the indefeasible owner of the suit land and that her title had never been challenged by the appellants. She urged that the appellants had not stated that she obtained her title in a fraudulent manner or corrupt means. She relied on Section 26 of the Land Act, which stipulates that a certificate of title issued by the registrar to a purchaser of land should be taken by all court as prima facie evidence that the person named as a proprietor of the land is the absolute and indefeasible owner subject to the encumbrances. She also relied on Section 24 of that Act on the rights conferred by registration. 15.The respondent pointed out that the appellants claimed that they stayed on parcel numbers 23804 and 4646 and that if it so, then by implication if the judgment were executed it would not affect them. She pointed out that it was not certain that parcel numbers 23084 and 4646 existed as the appellants claimed. She noted that they did not produce the titles and urged the court to dismiss the appeal. 16.The respondent elaborated that during cross-examination, the appellants stated they would have a problem if an order of eviction were issued for parcel no. 4621 in her favour because they stayed on part of her land. In her view, these amounted to an admission that the appellants had trespassed on her land. She urged the court to uphold the finding of the trial court. 17.The issue of determination is whether the court should allow the appeal and set aside the findings of the trial court. It is apparent that the appellants did not file a counterclaim to challenge the validity of the respondent’s title over the suit land. They submitted on this point extensively yet it is apparent that they did not take up this point before the trial court. It would appear that the appellants did not amend their defence in response to the respondent’s amended plaint. What is in the record of appeal is their defence dated 12/8/2005 vide which they stated that they would bury their father on the land claimed by the plaintiff in that suit. 18.Although the appellants questioned the root of title held by the respondent, under Section 26 of the Land Registration Act, this court is enjoined to take the certificate of the respondent’s title over the suit land as prima facie evidence that she is the absolute and indefeasible owner subject to the existing encumbrances. The grounds on which her title can be challenged are set out in the same section. The appellants ought to have challenged the respondent’s ownership of the suit land before the trial court and not on appeal. 19.From the appellants’ assertion that they occupy parcel numbers 23804 and 4646 as well as the claim that their father was interred on the parcel no. 23804, they created the impression that they were not staying on the suit land and that that land was different from their parcels. On cross examination though, the 1st appellant admitted that the respondent’s land formed what was their father’s land. 20.The appellants’ contention that if an order of eviction were issued for the suit land were issued in favour of the respondent would affect them because they stayed on part of the respondent’s land amounted to an admission that the appellants had encroached on and were occupying the suit land. The appellants did not tender any evidence to show that parcel numbers 23804 and 4647 were different and separate from the suit land. 21.The appellants’ contention that the respondent failed to tender evidence of burial permit, proof of the burial or anything linking the appellants to the burial of their late father on the suit land is misplaced in light of the uncontroverted fact that an order barring the appellants from interring their father on the suit land was issued by the court but they went ahead to bury him as they had pleaded in their defence. 22.Exhumation of bodies is to be undertaken in accordance with the legal requirements under the Public Health Act. The court sets aside the order for the exhumation of the remains of the late John Nyongesa from the suit land. The exhumation of his remains must be undertaken in compliance with the Public Health Act. 23.The appeal lacks merit and its dismissed with costs to the respondents. DELIVERED VIRTUALLY AT BUNGOMA THIS 16TH DAY OF JUNE 2026.****K. BORJUDGEIn the Presence of:-Mr. George Murunga for the AppellantsMrs. Elizabeth Chunge for the RespondentCourt Assistants –Bett/Metrine