https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1443

Paul & another v Nyamato & another (Civil Appeal 250 of 2019) [2026] KECA 1443 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1443 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 250 of 2019 HA Omondi, LK Kimaru & JM Ngugi, JJA July 10, 2026 Between Daniel Onkangi Paul 1st Appellant Borabu Hospital Limited 2nd Appellant and Catherine M Nyamato 1st Respondent John Silas Nyamato 2nd Respondent (Being an appeal from the Judgment of the Environment and Land Court of Kenya at Kisii (Mutungi, J.) dated 19th July, 2019, in ELC Case No. 1125 of 2016 (Previously Kisii H.C.C.C No. 75 of 1998 Civil Case 1125 of 2016 ) Judgment 1.The appellants instituted a suit against the respondents before the High Court at Kisii alleging that they jointly held title as tenants in common in equal shares of land parcel known as L.R. No. 21982 situated in Nyansiongo Town, Nyamira District, and measuring approximately 1.455 Ha (the suit property). They alleged that the respondents own an adjacent parcel of land to the suit property. It was the appellants’ case that on or about year 1997, the respondents forcibly entered the suit property and started cultivating the same without any colour of right. 2.The appellants prayed for: a declaration that they are the lawful allottees of the suit property; a declaration that the respondents trespassed upon the suit property; an eviction order against the respondents with respect to the suit property; costs of the suit; any other relief the court deemed just and fair to grant. 3.The respondents, in response, filed a statement of defence dated 16th March, 1998. They averred that they were the lawful registered owners and occupants of Land parcels Nos. 129 and 187 situated at Nyansiongo settlement scheme, and had no knowledge of the parcel referred to by the appellants as L.R. No. 21982. They denied the allegations of trespass and put the appellants to strict proof thereof. 4.The case was heard by way of viva voce evidence. PW1, Daniel Onkangi (1st appellant), testified that he was one of the directors of the 2nd appellant, and gave evidence on behalf of both appellants. He stated that he had been looking for land in Nyansiongo Township on which to construct a hospital complex. In 1985, after identifying a vacant plot, he applied to the Commissioner of Lands for allocation. He stated that the application triggered a series of official processes involving the District Land Officer, Senior Land Officer (Nyanza), Physical Planning Office, Commissioner of Lands, and other government departments. A site inspection conducted in September 1995 confirmed that the land was vacant. Thereafter, a Part Development Plan (PDP) was prepared and approved, followed by recommendations from various government officers for allocation of the plot to the appellants. 5.The 1st appellant testified that on 6th December 1995, he was issued with a letter of allotment for an unsurveyed plot in Nyansiongo Township measuring approximately 1.260 hectares. He accepted the conditions of allotment and paid the requisite stand premium, rent, survey fees, and other charges as required by the Commissioner of Lands. He produced the allotment letter, payment receipts, correspondence, the approved PDP, and other supporting documents as exhibits. He further stated that the Director of Surveys instructed the District Surveyor to carry out survey work, which was subsequently completed after he paid the required survey fees. Thereafter, he was issued with a grant and deed plan for the property, namely L.R. No. 21982 (Grant No. I.R. 71949). 6.The 1st appellant further testified that despite obtaining title to the property, he encountered resistance and obstruction from the respondents, prompting him to institute the present suit. He explained that he had initially obtained judgment in his favour in 1998, but that judgment was later set aside, necessitating the continuation of the proceedings. Throughout his testimony, the 1st appellant maintained that he lawfully acquired the suit property and that all requisite approvals and payments were duly made before the issuance of the title. 7.Upon cross-examination the 1st appellant admitted receiving a letter from the Commissioner of Lands indicating that a complaint had been made alleging that the suit property overlapped a private land, specifically Plot No. Nyansiongo/187. The letter demanded that he surrender his lease. However, he testified that he did not comply with the demand and instead responded to the Commissioner of Lands disputing the allegations. He further stated that he subsequently received another letter from the Commissioner of Lands alleging that an error had been made in the creation of the title of the suit property and suggesting that the property was not public land. He rejected the contents of the letter, insisting that they were based on erroneous facts. 8.The 1st appellant maintained that the land allocated to him was within Nyansiongo Township and not within a settlement scheme. He denied that the suit property overlapped private land or that it had been allocated to any other person before him. He asserted that he was the first allottee of the suit property and denied knowledge of any dispute between the 1st respondent and Settlement Fund Trustees concerning the land. 9.PW2, Edwin Munoko Wafula, testified that he was a Senior Land Registrar based in Nairobi and had custody of the records relating to L.R. No. 21982, Nyansiongo Municipality. He attended court pursuant to a request by the appellants’ advocates and produced the relevant deed file. He confirmed from the land records that the suit property was registered in the names of the appellants as tenants in common in equal shares under a 99-year lease commencing on 1st December 1995, with an annual rent of Kshs. 20,000. He further testified that the property was encumbered by a caveat registered by the Registrar of Titles under section 65(1)(f) of the Registration of Titles Act. 10.PW2 stated that the file contained a court order issued in Kisii Civil Suit No. 79 of 1998, pursuant to which a caveat had been registered on 2nd April 2001. He confirmed that the caveat was duly reflected in the land register and was consistent with the entries appearing in the deed file. According to PW2, the grant in favour of the appellants had been properly processed and issued by the Commissioner of Lands and registered by the Registrar of Titles. He verified that the grant had not been cancelled and that the appellants remained the registered proprietors of the suit property. 11.The 2nd respondent testified as DW1. She testified on her own behalf and on behalf of her late husband, John Silas Nyamato, the 1st respondent. She relied on her witness statement dated 31st March, 2014 as well as the witness statement by her late husband. It was the 1st respondent’s case that the suit property belonged to the respondents as part of Nyansiongo Settlement Scheme, specifically parcel Nos. 129 and 187, and not to the appellants. She maintained that her late husband was the lawful allottee of the suit property under the settlement scheme. She stated that they had occupied and utilized the land continuously since the 1970s and had established their home there. 12.According to the 1st respondent, the appellants’ title, L.R. No. 21982, was irregularly created over land that already belonged to the respondents. She testified that the parcel described as L.R. No. 21982 (suit property) was erroneously superimposed upon or carved out of the respondents’ settlement scheme land. She relied on correspondence from the Commissioner of Lands and other government offices which, according to her, acknowledged that: the suit property overlapped the respondents’ land; the appellants’ allocation had been made in error; and the allotment and grant issued to the appellants ought to be cancelled. She maintained that the land in dispute was private settlement scheme land and not unalienated government land available for allocation to the appellants. 13.During her oral testimony, the 1st respondent produced several documents from the Settlement Department, Land Adjudication Office, Land Control Board and Commissioner of Lands which she asserted demonstrated that parcel No. 187, which was a parcel of land within a settlement scheme, belonged to the respondents, and that the appellants’ title was created through a mistaken resurvey, which error was later recognized and acknowledged by the government officers. She testified that she had lived on the land since her marriage in 1970, and that her husband was buried there. 14.After hearing the parties, Mutungi J., in a judgment dated 19th July, 2019, entered judgment in favour of the respondents. The learned Judge held that the evidence from the correspondence from the Ministry of Lands, Director of Surveys and Commissioner of Lands showed that the title to appellants’ parcel of land had been erroneously created on private settlement scheme land. The court found that parcel No. 187 had already been registered in favour of the 1st respondent, and therefore was not unalienated land available for allocation to the appellants as at 1995. The court concluded that the Commissioner of Lands lacked authority to allocate the land to the appellants, since it fell under the mandate of the Director of Land Adjudication and Settlement and had already been allocated to the 1st respondent. The allotment and subsequent title in favour of the appellants were therefore held to be null and void. 15.The appellants, being dissatisfied by this decision, lodged the present appeal raising twelve grounds of appeal. In summary, the appellants contended that the learned Judge erred both in law and fact by finding in favour of the respondents without properly evaluating the evidence regarding the ownership and status of the suit property. They argued that the court failed to appreciate that the suit property was lawfully created and existed within Nyansiongo Township, and that the suit property was illegally converted into Nyansiongo Settlement Scheme Land No. 187. The appellants further maintained that the court improperly shifted the burden of proof to them and failed to scrutinize the respondents’ title documents against the appellants’ freehold title to the suit property. 16.The appellants also challenged the validity and authenticity of correspondence from the Ministry of Lands relied upon by the trial court, arguing that no evidence was tendered to authenticate those documents. They asserted that the court ignored evidence showing that the Director of Lands and Settlement lacked jurisdiction to convert township land into settlement scheme land or to amalgamate the suit property into Nyansiongo Settlement Scheme. Relatedly, they contended that there was no gazette notice, map, amendment, or lawful process authorizing any change of user, surrender, amalgamation, or conversion affecting the suit property. 17.Further, the appellants were aggrieved that the learned Judge failed to appreciate that they had always occupied the suit property and that the respondents had sought before the superior court surrender of the appellants’ title. They maintained that the respondents’ title was irregularly processed and issued in 1998, whereas the appellants’ title was processed and issued earlier in 1995. The appellants faulted the learned Judge for misapprehending both the facts and the law relating to ownership of the suit property, thereby erroneously concluding that Nyansiongo Township L.R. No. 21982 was unlawfully created over Nyansiongo Settlement Scheme Plot No. 187.According to the appellants, the court failed to appreciate that the respondents’ occupation of Plot No. 187 did not negate the existence of L.R. No. 21982, which remained a separate and identifiable parcel of land. They therefore urged this Court to set aside the judgment of the trial court and allow the appeal. 18.The appeal was heard by way of written submissions which were later highlighted by learned Counsel. Mr. Nyambega was on record for the appellants. It was his submission that the learned Judge erred in dismissing the appellants’ claim despite overwhelming evidence demonstrating that they were the lawful registered proprietors of L.R. No. 21982 (the suit property). He argued that the appellants’ title was protected under Articles 40 and 64 of the Constitution and that, as registered owners, they enjoyed indefeasible proprietary rights which could only be defeated upon proof of fraud or misrepresentation attributable to them. He contended that no such allegations had been pleaded or proved by the respondents. 19.Counsel further submitted that the appellants lawfully acquired the suit property after applying for allocation of the same in 1995, receiving an allotment from the Commissioner of Lands, complying with the conditions of allotment, paying the requisite premiums and rents, and subsequently obtaining Grant No. I.R. 71949. He maintained that the validity of the appellants’ title was supported by documentary evidence and testimony from officials from the Lands Office. Relying on section 23(1) of the repealed Registration of Titles Act, counsel for the appellants argued that the appellants’ certificate of title constituted conclusive evidence of ownership and could not be impeached in the absence of pleaded and proved fraud or misrepresentation. He faulted the learned Judge for disregarding this statutory protection and for finding in favour of the respondents despite the absence of any challenge to the legality of the appellants’ acquisition process. 20.Counsel for the appellants further argued that the respondents failed to establish any lawful claim to the suit property. He argued that the respondents neither demonstrated that they had been allocated the land nor produced evidence of payment of premiums, rents, or other charges associated with lawful acquisition. It was further submitted that the respondents’ title was processed through the Settlement Fund Trustees, yet the suit property fell within Nyansiongo Township and was under the jurisdiction of the Commissioner of Lands. Counsel argued that the Settlement Fund Trustees lacked jurisdiction over the suit property and that the respondents’ purported title, issued later in time, could not supersede the appellants’ earlier allotment and title. He maintained that the appellants’ allotment had never been revoked or cancelled and therefore remained valid. 21.Counsel for the appellants criticized the trial court for relying on letters and correspondence allegedly emanating from the Ministry of Lands and Settlement Fund Trustees without proper authentication. He argued that the respondents failed to call witnesses from the Land Registrar’s office to verify the authenticity and legal effect of those documents. According to the appellants, the Land Registrar’s evidence confirmed that they remained the registered proprietors and that there was no record of cancellation or revocation of their title. 22.In conclusion, counsel for the appellants submitted that the learned Judge ignored material evidence, misapprehended the law relating to registered title, and erroneously preferred unauthenticated correspondence over official land records. He urged this Court to find that the appellants’ title remained valid and indefeasible, allow the appeal, and set aside the judgment of the superior court. 23.In rebuttal, Mr. Gichana, learned counsel for the respondents, contended that the learned Judge properly evaluated the evidence and correctly concluded that the appellants’ allotment and subsequent title to L.R. No. 21982 were issued in error. He argued that the land allocated to the appellants overlapped and encroached upon Nyansiongo Settlement Scheme Plot No. 187, which had already been allocated and registered in favour of the 1st respondent long before the appellants received their allotment in 1995. Consequently, there was no unalienated public land available for allocation to the appellants. 24.Counsel for the respondents contended that the suit property did not fall within Nyansiongo Township and therefore was not available for allocation by the Commissioner of Lands. Instead, it fell under the jurisdiction of the Director of Land Adjudication and Settlement, who had already allocated Plot No. 187 to the 1st respondent. He maintained that the appellants’ allotment and title was therefore null and void. 25.It was further submitted that the appellants’ title existed only on paper because L.R. No. 21982 was superimposed on an already existing parcel of land. According to the respondents, the parcel purportedly allocated to the appellants did not exist on the ground as an independent piece of land. They argued that the appellants had ignored official advice from the Commissioner of Lands to surrender their grant after the error was discovered, and instead persisted in asserting rights over land that already belonged to the respondents. 26.Counsel for the respondents relied on correspondence from the Director of Surveys, the Director of Land Adjudication and Settlement, and the Commissioner of Lands confirming that the appellants’ title had been erroneously created over Parcel No. 187.He pointed out that even the 1st appellant admitted during cross-examination that he had received letters from the Commissioner of Lands notifying him that his property overlapped Parcel No. 187 and requesting him to surrender the grant. He further submitted that if the appellants had any grievance, it ought to have been directed against the Commissioner of Lands, the Director of Surveys, or the Director of Land Adjudication and Settlement, whose actions allegedly resulted in the erroneous allocation. He maintained that those government offices or agencies should have been joined to the proceedings if the appellants wished to challenge the validity of the official findings regarding the overlap. 27.In response to the appellants’ challenge to the documentary evidence, Mr. Gichana submitted that all the respondents’ exhibits were properly produced during trial without objection. Consequently, the appellants could not on appeal question the admissibility or authenticity of documents that had been admitted into evidence by consent or without protest. Counsel further cited Section 26 of the Land Registration Act, submitting that a certificate of title is not absolute where it has been obtained illegally, unprocedurally, or through a corrupt scheme. He argued that the evidence demonstrated that the appellants’ title was created through an erroneous and unlawful allocation process and was therefore liable to challenge notwithstanding its registration. He therefore invited us to dismiss the appeal with costs. 28.This being a first appeal, it is the duty of this Court to analyze and re-assess the evidence on record and reach its own conclusions. This duty was reiterated by this court in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, where the court observed thus;“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that 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 allowances in this respect.” See Selle v. Associated Motor Boat Co. [1968] EA 123. 29.Having carefully considered the grounds of appeal, record of appeal, the judgment of the trial court, and the parties' submissions, the central issue falling for our determination is whether the learned Judge erred in finding that L.R. No. 21982 (suit property) was erroneously created over land already forming part of Nyansiongo Settlement Scheme Parcel No. 187, and consequently holding that the appellants' title was null and void. 30.The appellants' case before the trial court was premised on the proposition that L.R. No. 21982 was a parcel of land situated within Nyansiongo Township, separate from Parcel No. 187, which was lawfully allocated to them by the Commissioner of Lands through the established allocation process culminating in the issuance of Grant No. I.R. 71949. They maintained that their title was indefeasible and could not be impeached in the absence of fraud or misrepresentation attributable to them. 31.The difficulty with that argument is that it overlooks the fundamental question of whether the land allocated to the appellants was in existence on the ground and was at the time public unalienated land available for allocation in the first place. Where competing claims to land arise, a court is entitled to investigate the root of the title and determine whether the process leading to its acquisition was lawful. This was the holding of this Court in the case of Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR) where the court pronounced itself as follows:“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.” 32.The evidence on record showed that the land upon which the title in respect of L.R. No. 21982 was subsequently created and superimposed formed part of Nyansiongo Settlement Scheme as early as 1982. This parcel of land was allotted to the 1st respondent in 1970 by the Director of Land Adjudication and Settlement and was allocated parcel No. 187. That finding was supported by correspondence from the Director of Surveys, the Director of Land Adjudication and Settlement and the Commissioner of Lands, all of which pointed to the same conclusion; namely, that the PDP which formed the basis of the appellants' allotment was made in error because it wrongly identified a settlement scheme land which had already been allotted to the 1st respondent and was consequently private land, as unalienated public land forming part of Nyansiongo township land. The significance of that evidence was that the suit property was never part of Nyansiongo Township. Rather, it had long been designated as settlement scheme land and allotted and therefore fell outside the category of unalienated government land available for allocation by the Commissioner of Lands. 33.Once that factual position was established, the appellants' argument that they were lawfully allocated township land became unsustainable and otiose. The issue was not whether the Commissioner of Lands followed the procedural steps leading to issuance of the allotment letter and the certificate of lease. Rather, the real question was whether Commissioner of Lands possessed authority to allocate the particular land at all. In our view, he did not. Land forming part of Nyansiongo Settlement Scheme Parcel No.187 was not available for alienation as part of unalienated public township land. The learned Judge therefore properly concluded that the allotment letter issued to the appellants on 6th December, 1995, was founded upon a mistaken assumption regarding the status or boundaries of the land which was in actual fact private land. 34.The respondents, on their part, produced documentary evidence tracing their interest to Plot No. 187 within Nyansiongo Settlement Scheme, including the relevant allocation and transfer documents. Their case was that the parcel of land purportedly allocated to the appellants had been superimposed upon land already in existence within the settlement scheme. The learned Judge accepted that evidence, and found that L.R. No. 21982 had been created over Plot No. 187 through an administrative error. We discern no basis for interfering with that finding. Indeed, the evidence showed that the dispute was not between two independently existing parcels of land. Rather, it concerned a title subsequently created over land which already formed part of a parcel of land which had already been legally allotted to the respondents by the Director of Adjudication and Settlement. This was a case where the appellants failed to conduct due diligence to establish the status of the land on the ground before embarking on an ultimately futile exercise to procure allotment to a non-existent unalienated public land at Nyansiongo Township. 35.The appellants further faulted the trial court for relying on correspondence from the Ministry of Lands, the Director of Surveys and the Director of Land Adjudication and Settlement. In their view, the documents were not properly authenticated and ought not to have been relied upon. We disagree. The record reveals that the documents were produced during trial without objection from the appellants. At no stage did the appellants challenge their admissibility or authenticity. Having not objected to the production of the documents in evidence and having failed to challenge their authenticity before the trial court, the appellants cannot in the circumstances raise that complaint for the first time on appeal. 36.In Shanka & another v Kanyolo (Suing on behalf of the Estate of Herman Syanda Kanyolo) & 8 others [2026] KECA 978 (KLR) this Court held as follows:“Responding to the admissibility and probative value of the Forensic Examiner’s Expert Report, the 1st respondent submitted that the report was produced in evidence by the 1st respondent without any objection from any of the defendants, including the appellants, and hence became part of the record and an objection to its admissibility cannot, on the authority of this Court’s decision in Commissioner of Customs & Excise v Hatangimbabazi [2023] KECA 380 (KLR) and Joel Muga Opija v East African Sea Food Limited [2013] KECA 181 (KLR), be raised for the first time on appeal.…It is true that the said report was admitted in evidence without objection by any party, including the appellants. The appellants having squandered their right to object to its admissibility cannot be heard, at this stage, to raise an objection which ought to have been raised at the hearing.” 37.We are satisfied that the contents of the documents were substantially corroborated by the appellants' own evidence. During cross-examination, the 1st appellant admitted to receiving the correspondence in question from the Commissioner of Lands informing him that L.R. No. 21982 was created in error, and that the grant was outside the jurisdiction of the office of the Commissioner of Lands, as it encroached onto Plot No. 187 which was private land. The Commissioner of Lands demanded the surrender of the grant issued to the appellants. Although he disputed the conclusions contained therein, he did not deny receipt of the communication. Those admissions lent considerable credence to the respondents' case that the allocation had been reviewed by the relevant government authorities and found to have been made in error. 38.The appellants also argued that their title remained valid because it had never been formally revoked and because PW2, the Land Registrar, confirmed that they remained the registered proprietors of the parcel of land. While that evidence established the existence of the grant on the register, it did not answer the question whether the title had been lawfully acquired or whether it related to an actual parcel of land on the ground. The learned Judge was not merely concerned with the existence of an entry in the register but with the legality of the process that gave rise to it. Having found that the suit parcel of land already formed part of Parcel No.187 Nyansiongo Settlement Scheme and was therefore unavailable for allocation, he was entitled to conclude that the subsequent allotment and title could not confer a valid proprietary interest to land. 39.We are equally unpersuaded by the appellants' assertion that there was no evidence of a lawful conversion of township land into settlement scheme land. That argument proceeds from a false premise that the suit parcel of land was in the first place unalienated township public land which it was not. The evidence did not show that township land was converted into settlement scheme land. Rather, it demonstrated that the land had always been part of Nyansiongo Settlement Scheme since 1970. 40.We find it important to make the observation that upon discovering the error, the Commissioner of Lands formally notified the appellants that L.R. No. 21982 encroached upon Plot No. 187, that the land did not constitute township land, that the allotment issued on 6th December, 1995, had been made in error, and that Grant I.R. 71949 was required to be surrendered. Despite those communications, the appellants declined to surrender the title and persisted in asserting ownership over a non-existent parcel of land. It is our holding that if the appellants suffered prejudice arising from the erroneous allocation, their grievance lay against the government authorities responsible for the mistake and not in filing suit against the respondents who are innocent parties in the entire saga. It is unfortunate that those entities were not joined to the proceedings before the trial court. The respondents, whose ownership rights to the suit parcel of land flowed from land that had previously formed part of Nyansiongo Settlement Scheme long before the appellants' allotment, cannot be deprived of those rights on account of an administrative error committed by public officers who later owned up and acknowledged their mistake and sought to rectify the same. 41.In the result, we are satisfied that the learned Judge properly evaluated the evidence and correctly found that L.R. No. 21982 was erroneously created over land already forming part of Nyansiongo Settlement Scheme Plot No. 187, which is private land and not unalienated public land. The appellants failed to demonstrate that the land was ever township land or that it was available for allocation by the Commissioner of Lands in 1995. We therefore find no merit in any of the grounds of appeal. 42.Accordingly, the appeal is dismissed with costs to the respondents. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.H. A. OMONDI............................ JUDGE OF APPEALL. KIMARU............................ JUDGE OF APPEALJOEL NGUGI............................ JUDGE OF APPEALI certify that this is a true copy of original.SignedDEPUTY REGISTRAR