https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3137

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA** **ELC APPEAL NO. E011 OF 2024** **BETTY KHISA PEMBERE (as a substitute of** **RAJAB BOY PEMBERE ……………...……............…… APPELLANT** **VERSUS** **RAEL NALIAKA BULUMA ………………………….. RESPONDENT** **JUDGMENT** 1. This appeal was lodged against the decision of T.M. Olando, Principal Magistrate (PM) delivered on 28/2/2024 in Bungoma CM ELC Case No. 36A of 2020. The Learned Magistrate found that there was no dispute that the suit land was transferred from the name of the late Kiberenge Muresia Saboni as indicated in the mutation forms. The trial court found that the late Rajab Boy stated that he bought the land known as Ndivisi/Muchi/5731 (the suit land) from the Respondent who was not the registered owner and that the Respondent had denied selling the land to him. The court also found that the Appellant did not tender evidence to prove that the late Kiberenge Muresia Saboni signed the transfer forms without fraud. The court observed that the sale agreement was dated 12/7/2004 but the transfer was done in 2001. 2. The other findings by the trial court were that since there was an allegation of fraud, the plaintiff was under an obligation to prove that the late Kiberenge Muresia Saboni sold him the suit land and that he signed the transfer documents. The trial court concluded that the Appellant failed to prove that he bought the suit land from the late Kiberenge Muresia Saboni and that the transfer of the suit land to the plaintiff and issuance of a title deed in the plaintiff’s name was fraudulent. The court dismissed the plaintiff’s suit. 3. The Appellant’s suit before the trial court was for a permanent injunction to restrain the Respondent or her agents from entering, trespassing, utilizing, occupying or otherwise dealing with the land known as Ndivisi/Muchi/5731 measuring approximately 0.7 hectares and if found to have forcefully or wrongly entered, trespassed, occupied or utilized the suit land, an order for them to vacate land and to compensate the Appellant for the period they had used the suit land. The Appellant pleaded that in March, 2020, the Respondent had unlawfully entered the suit land which was registered in the plaintiff’s name, Rajab Boy Pembere, and that the defendant illegally destroyed semi-permanent structures erected on the suit land. The Appellant pleaded that the Respondent’s actions were illegal and amounted to trespass. 4. In her defence dated 25/5/2023, the Respondent averred that she had never been registered as the owner of the suit land, which she claimed was fraudulently carved out of her late husband’s land in a dubious manner by the Appellant. She pleaded particulars of fraud as obtaining title without succession proceedings; getting registered prior to forged sale agreements; forging registration by phony documents; and making fake sale agreements to justify the obvious fraud and deceit. The Respondent averred that the Appellant held the suit title in trust for her family because it was forged, phony and unscrupulous. She urged that the title having been affected by fraud could not make a good basis for the orders sought in this suit. 5. The grounds of appeal raised by the Appellant are that the trial court erred by finding that the Appellant failed to establish her case on a balance of probabilities; the Learned Magistrate arrived at a wrong rendition of Section 108 of the Evidence Act and other provisions with respect to the burden of proof; the court erred in dismissing the Appellant’s case against the evidence that the Appellant’s late husband Rajab Boy Pembere began the purchase of the suit land on 15/12/1997 with the late Kiberenge Saboni Muresia before the land was subdivided on 9/8/2000 by Kiberenge during his life time. The Appellant sought to have the judgment of the trial court set aside and for this court to consider the evidence on record and reach its own determination. 6. The appeal was canvassed through written submissions. The Appellant relied on various decisions on the burden of proof and the requirement that allegations of fraud must be pleaded and strictly proved. She contended that the Respondent’s amended defence did not have particulars of fraud or illegality and therefore no evidence could have been tendered on fraud and illegality. The Appellant also cited decisions on the issue of trust. The Appellant argued that the intention of a party to create a trust must be clearly determined before a trust could be implied. 7. The Appellant argued that the Respondent failed to prove that Rajab Pembere fraudulently obtained title over the suit land or prove that Rajab held the title in trust for the Respondent. In addition, that there was no counterclaim by the Respondent for the cancellation of the title over the suit land. It was also contended that there was no dispute between Rajab and the Respondent’s family while Rajab was alive for it to be said that the title over the suit land was obtained fraudulently. The Appellant maintained that she had established prima facie that the acquisition of the title over the suit land was in accordance with the law. 8. The Respondent submitted that the Appellant proved that she was the registered proprietor of the suit land and produced a copy of the title. However, that the sale agreement was done 3 years after issuance of the title deed without the sale agreement disclosing that the title had already been transferred. The Respondent argued that once the defence raised the issues of validity of title, the burden shifted to the Appellant to prove that the acquisition of the suit land was not affected by fraud or corruption. 9. The Respondent urged that the initial title for Ndivisi/Muchi/5098 was in the name of Kiberenge Muresia Saboni and was subdivided into parcel numbers 5730 to 5735. Rajab, the Appellant’s husband was registered as the proprietor of parcel no. 5731 on 20/2/2001. Kiberenge died on 6/3/2001. That given the fact that Kiberenge died after the Appellant’s husband was registered as the owner of the suit land, it should have been Kiberenge to participate in the sale and not the Respondent. Further, that since the Respondent was never registered as the owner of the suit land, if she ever sold any land, she could not pass a good title because she had not succeeded her late husband’s estate. 10. The Respondent pointed out that the sale agreements produced were done before and after the death of the original registered owner and after the Appellant’s husband had obtained title over the land. The Respondent concluded that the facts of the case pointed to suspected fraud because the Respondent could not pass a good title to the Appellant and the Appellant was registered before he purchased the land. Lastly, that he had nothing to show how the suit land was transferred from the original registered owner who died shortly thereafter. 11. The issue for determination is whether the appeal has merit. The Appellant produced a copy of the title deed issued on 20/2/2001 over the suit land to Rajab Boy Pembere during Kiberenge’s lifetime. The mutation form vide which parcel no. 5098 was subdivided to create parcels 5730 and 5735 by Kiberenge Muresia Saboni is dated 18/8/2000. Kiberenge died on 6/3/2001. 12. The Appellant produced various sale agreements. The first agreement dated 15/12/1997 was between Kiberenge Muresia and Rajab Pembere and was for the sale of an acre of parcel no. 3148 at the agreed price of Kshs. 50,000/=. Kshs. 15,000/= was paid on that date while Kshs. 12,000/= was paid on 4/1/97 and Kshs. 10,000/= and 7000/= were paid on 6/6/97 and January 1998 respectively. Other installments were paid in 1998 and 1999. The agreement dated 4/3/1999 shows that the Respondent sold ½ acre out of parcel no. 5098 to Rajab Pembere who paid Kshs. 10,000/= leaving a balance of Kshs. 25,000/=. The agreement lists further payments made to the Respondent towards the purchase of that land, with another payment made on the 7/5/1999. 13. The handwritten sale agreement indicates that on 6/4/2000, Rael Kiberenge added Rajab Pembere ¼ an acre for Kshs. 17,000/=. Rael Kiberenge was paid further sums on 31/5/2000, 31/12/2000 and 14/3/2001. The sale agreement dated 16/5/2001 shows that Rael Kiberenge sold Rajab ¼ an acre from her piece of land Ndivisi/Muchi/5730 at the cost of Kshs. 20,000/=. The diverse dates when the payments were made to the Respondent are given in the handwritten notes. The sale agreement dated 12/7/2004 was between the Respondent and Rajab Pembere over parcel no. 5730. 14. From these sale agreements, it is apparent that the Respondent received monies from Rajab Pembere for the purchase of portions of land before and after the demise of her husband, Kiberenge Muresia. Her late husband Kiberenge entered into an agreement with Rajab in 1997 over parcel no. 3148. It is not in dispute that Rajab was registered as the owner of parcel no. 5731 before the demise of Kiberenge. 15. The title deed over parcel no. 5731 was issued to Rajab on 20/2/2001 and shows that the land measured 0.7 hectares, which is 1.75 acres. This tallies with the acre bought vide the agreement of 15/12/1997, half acre bought on 4/3/1999 and the ¼ acre added on 6/4/2000. The sale agreement dated 16/5/2001 was in respect of parcel number 5730. The court notes that the sale agreement dated 12/7/2004, which the Learned Magistrate based his findings on, was also in respect of parcel number 5730 and not parcel number 5731 (the suit land), which by then was already registered in Rajab’s name. 16. The agreements and records of payments made by Rajab confirm that he bought land from Kiberenge before his death and that after Kiberenge’s death, Rajab continued purchasing portions of land from the Respondent. It is not therefore true that Rajab was registered as the owner of the suit land before he had purchased that land as the trial court found. 17. There was no basis for the finding by the Learned Magistrate that the transfer of land to Rajab and issuance of a title deed to him over the suit land was fraudulent. The Appellant proved her claim on a balance of probabilities before the trial court and the Learned Magistrate erred when he dismissed the claim. 18. The appeal is allowed. The judgment of T.M. Olando, Principal Magistrate delivered on 28/2/2024 in Bungoma CMELC No. 36A of 2020 is set aside. The court grants prayer 1 of the plaint dated 20/4/2020. The Plaintiff is awarded the costs of the appeal and of the suit before the Magistrates’ court. Delivered virtually at Bungoma this 19th day of May 2026. **K. BOR** **JUDGE** **In the Presence of:-** Mr. David mukhooli for the Appellant Mr. Joseph Sichangi for the Respondent Court Assistants –Josephat Bett/Metrine