Obiero v Esikiri & another (Land Case Appeal E003 of 2024) [2026] KEELC 4139 (KLR) (2 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT** **AT KISUMU** **ELC (LA) E003 OF 2024** **SIMEON PETER OBIERO ……………..………................………….…......…..APPELLANT** **VERSUS** **JEPHRICE MAUNA ESIKIRI ….....…...............................................…..1ST RESPONDENT** **MELISA ASIKO MADANJE................................................................2ND RESPONDENT** **JUDGMENT** 1. Being aggrieved by the Judgement and decision of Hon. E.N. Mwenda P.M delivered on 29.01.2018, the Appellant Simon Peter Obiero vide his Memorandum of Appeal dated 12th of February 2024 penned 5 grounds of Appeal, and sought the substantive prayer that the Appeal be allowed with costs and the judgment of the lower court be set aside. 2. The grounds of Appeal penned are as follows; - 3. That the Learned Trial Magistrate erred in law and in fact by deviating from the principle of law that civil cases are to be proved on a balance of probabilities and not beyond reasonable doubt. 4. That the Learned Trial Magistrate erred in law and in fact by failing to appreciate the plaintiff’s evidence and testimony and the submissions filed. 5. That the Learned Trial Magistrate erred in law and fact when he failed to consider the evidence and pleadings thereby reaching at a wrong conclusion. 6. That the judgment entered was against the weight of evidence tendered by the Appellant. 7. That the Learned Trial Magistrate erred in law and in fact when he failed to take into consideration the fact that the appellant is solely laying claim to parcel number Kisumu/Marera/3506 and not any other parcel. 8. The Record of Appeal dated 24th of June 2025 was filed and a supplementary Record of Appeal dated 26th of June 2025 which contained the decree was also filed. 9. In all the court Appearances before the Deputy Registrar, on 04.04.2024, 03.07.2024, 09.09.2024, 03.10.2024, 05.11.2024, 06.01.2025 as well as on 27.02.2025 only the Appellant Advocate appeared, the Respondent did not appear. 10. Upon admission of the Appeal by Hon. Justice Okongo, directions were issued for the Appeal to proceed by way of written submissions, and the matter was assigned to this court to write this judgment. 11. Under the Mahakama Popote Initiative upon elevation of Hon. Justice Okongo to the Court of Appeal, as Kisumu remained with only one ELC Judge. 12. The Respondents Advocate did not appear before me when the matter was scheduled for a mention before me and did not file submissions on the matter either despite extension of time for them to do so on 24.03.2026 and 30.04.2026. 13. The Appeal was thus unopposed but the court has to determine it on its merits nonetheless as was stated in the case of **Karugi and others vs Kabiya & 3 others 1983 (eKLR)** where the court held *interalia****“the burden on a Plaintiff to prove his case remains the same throughout the case even though the burden may became easier to discharge where the matter is not validly defended, the burden of proof is not way lessened because this is heard by way of formal proof.”*** **Appellant’s Submissions** 1. The Appellant in his submissions framed and submitted on two issues for determination. 2. On issue number 1, the Appellant submitted that he was able to prove purchase of parcel No. 218 in 1985, vide the Agreement for sale dated 08.07.1985 and receipt for 10,334 issued by Trade Loan Scheme for repayment which repayment was used to offset the loan and that in succession cause No. 21 of 1986, Estate of Fredrick Madanje Olaje, the court acknowledged that a portion of Kisumu/Marera/218 had already been sold to a third party who had developed the same, and excluded the said portion from being distributed to the beneficiaries. The Appellant submits that there was proof of the sale and the court ought to have entered Judgment. 3. On issue No. 2, the Appellant submits that parcel No. Kisumu/Marera 218 morphed into Kisumu/Marera/3506 after subdivision, in which the Appellant is laying claim to which was subdivided from parcel 218; and hence the trial court erred in holding otherwise. **Issues for Determination** 1. Having reviewed the Record of Appeal, the submissions on record and considered the law, the court frames the issues for determination as follows; - 2. Whether or not the Appeal is merited; in deciding this the court shall determine whether or not the suit before the trial court was merited? 3. What reliefs ought to issue. 4. Who bears the cost of the Appeal. **Analysis and Determination** 1. In exercise of the duties of the first appellate court, the court has “***reconsidered the evidence, evaluated it and drawn its own conclusion”*** with a view of reaching its own conclusion as stated in Selle and Another Vs. Associated Motor Boat Limited and 3 Others. 2. A review of the Plaint dated 28th of June 2017, appearing at pages 18 to 19 of the Record of Appeal reveals that the Plaintiff had averred *interalia* that 3. He was the owner of all that parcel of land known as Kisumu/Marera/3506 which arose from the subdivision of title number Kisumu/Marera/218, having purchased the same from the 2nd defendant and her co-wife Dorika Asiko Madanja, who subsequently in 2016 sold the same without any colour of right/justification to 1st defendant. 4. The plaintiff pleaded particulars of illegality and bad faith to include illegally selling of the plaintiff’s land threatening to evict the plaintiff and the plaintiff sought injunctive orders, against the defendants as well as declaratory reliefs as to ownership by him of suit property, general damages for trespass. 5. I have reviewed the Record of Appeal, and there is no defence that was filed by the Respondents, I have equally perused the trial court file which reveals a Notice of appointment dated 1st November 2017, filed by R.H Wanga and Co. Advocates for 2nd defendant, Grounds of Opposition dated 10th of March 2018, and a Replying affidavit by 1st Respondent deponed on 10th March 2018, equally filed by R.H Wanga and Co. Advcoates. 6. The matter had initially been filed before the ELC Kisumu but was transferred to the CM’s court Kisumu for hearing and determination. 7. Simultaneously with the filing of the Plaint, the plaintiff had sought vide an application for interlocutory reliefs, hence the grounds of opposition and the Replying affidavit, but appears that no defence was filed by both defendants before the trial court. 8. The matter proceeded for hearing initially before Hon. Wambilyanga SPM before her transfer and was slated for a defence hearing before Hon. E. Mwenda P.M, who closed the defence on 27.11.2023, without the testimony of the defendants. 9. Submissions filed and in his judgment Hon. E. Mwenda dismissed the plaintiff’s claim thus provoking this Appeal. 10. The trial Magistrate found no evidence to connect the plaintiff to the suit parcel and wondered how the plaintiff’s rights, in Kisumu/Marera/218 had morphed into Kisumu/Marera/3506. 11. I have reviewed the evidence of the plaintiff who testified as PW1.The Appellant was the plaintiff in the trial court and testified as PW1, he adopted his witness statement, produced a copy of the sale permit dated 08.07.1985 copy of death certificate of Fredrick Madanji, copy of receipt dated 08.07.1985 copy of Ruing in Kisumu Succession Cause No. 21/1986, copy of service of parcel number Kisumu/Mule/3506. 12. The witness stated that the vendor subdivided the whole parcel into 3 parcels instead of 2 parcels and sold it to a 3rd party. 13. The plaintiff’s witness statement equally captured the said issues of subdivision of Kisumu/Marera/218 into Kisumu/Marera/3504, Kisumu/Marera/3505 and Kisumu/Marera/3506, and the plaintiff indicated that he lived on Kisumu/Marera/3506 which he claimed was sold to the 1st defendant. 14. Indeed, P.Exhibit No. 1, confirms the sale in respect of a portion of Kisumu/Marera/218 to the Plaintiff at a consideration 10354.80 which was paid to offset a loan as evidenced by the receipt issued by Traders Loan Scheme (P.Exhibit 3) 15. While the Ruing in High Court Succession No. 21/1986 (Pexhbit 3) in respect of the Estate of Fredrick Madanji Olanje, where it was acknowledged that part of Kisumu/Marera/218 measuring half of the parcel (0.155 hectares) had been sold, and given that the plaintiff proved the purchase vide the Agreement for sale and receipt, although not expressly named in the Ruling, the person who bought half of Kisumu/Marera/218 must thus be deemed to have been the plaintiff. 16. Consequently, only 0.155 hectares in Kisumu/Marera/218 formed part of the Estate of Fredrick Madanji Olenje and the beneficiary could not subdivide the whole parcel into three parcels as she did and sale a portion thereof to the 1st defendant. 17. On whether Kisumu/Marera/218 morphed into among others Kisumu/Marera/3506, it was the plaintiff’s testimony that the subdivision of Kisumu/Marera/218 resulted into the 3 parcels, and that he was in occupation of Kisumu/Marera/3506. This evidence of the plaintiff was not controverted by any evidence neither was a defence filed to deny the same. Thus, the court finds that on a balance of convenience, the plaintiff proved ownership of the portion he was occupying in Kisumu/Marera/218, which he stated to be Kisumu/Marera/3506. 18. The court finds that the plaintiff’s case before the trial court was merited and that the Appeal equally is merited. 19. On what reliefs ought to issue, having found the Appeal merited, the same is allowed in terms of prayers a, b and c of the Plaint dated 28th June 2017, 20. In allowing the Appeal the court makes i)an order of for the rectification of the register of Kisumu/Marera/3506, so as to delete the name of Jephrice Mauna Eskiruiri and any subdivisions that may have been carried thereon and registration of the same to the Appellant herein by the Land Registrar and ii)for the Deputy Registrar of this court to execute any transfer documents so as to give effect to the transfer should the Respondents herein decline to effect sign the same. 21. Costs of the suit before the trial court and costs of this Appeal are awarded to the Appellant on the lower scale as the same was undefended. Dated at Kilgoris this 2nd day of July 2026 Hon. M.N. Mwanyale Judge **In the presence of** CA – Sylvia/Clara Mr. Rono for Appellant N/A for Respondent