https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3922

Wekesa v Mango & another (Environment and Land Appeal E036 of 2024) [2026] KEELC 3922 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEELC 3922 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Appeal E036 of 2024 A Nyukuri, J June 17, 2026 Between Samson Wekesa Appellant and Rodgers Wekesa Mango 1st Respondent Richard Okunga Walumbe 2nd Respondent (Being an appeal against the judgment of Hon. ANGELINE ODAWO (PM) delivered on 26th June 2024 in KAKAMEGA CMELC Case No. 401 of 2018) Judgment Introduction 1.This appeal presented by Samson O. Wekesa is a challenge against the judgment of Hon. Angeline Odawo (PM) delivered on 26th June 2024 in Kakamega CM ELC Case No. 401 of 2018. In the impugned judgment, the trial court allowed the respondent’s claim and issued orders of eviction and permanent injunction against the appellant in respect of parcel No. Bunyala/Sidikho/777. Background 2.Initially, the matter subject of this appeal was filed in the High court at Kakamega being civil case No. 6 of 2004. It was latter transferred to the Magistrates court at Kakamega being Kakamega CM ELC Case No. 401 of 2018. The suit was commenced by plaint dated 19th January 2004, herein the plaintiffs (respondents herein) sought orders of eviction and permanent injunction against the defendant (appellant herein) in respect of parcel No. Bunyala/Sidikho/777 (suit property). He stated that he was the registered proprietor of the suit property having purchased the same from one Ernest Wekulo on 21st September 2000. He stated that upon purchase thereof, the defendant entered the suit property and occupied the same. 3.In a defence dated 12th June 2006, the defendant denied the plaintiffs’ claim and stated that the plaintiffs’ sale transaction and registration was based on fraud and mistake. The defendant accused the plaintiffs of collusion with Ernest Wekulo the former owner of the suit property alleging that he failed to disclose to the Land registrar that there was a mix up of the defendant’s name in the transfer documents. Further that the transfer of the suit property to the plaintiff was fraudulent because it was done with the full knowledge that the suit property had been sold by the original owner to one Simatwa son of Biebei who in turn sold it to the defendant on 20th August 1978, who took possession then. That the defendant was made aware of the fraud upon being served with summons in Civil Case No. 115 of 2000 filed by Ernest Wekulo, wherein the defendant successfully joined the plaintiff to that suit as defendant. 4.The suit was heard by way of viva voce evidence. The plaintiff presented one witness while the defence presented three witnesses. Plaintiffs’ evidence 5.PW1 was Rodgers Wekesa Mango, the 2nd plaintiff. He testified that together with Richard Walumbe the 1st plaintiff, they were the registered owners of the suit property, having purchased the same from the previous owner Ernest Wekulo. He produced a land sale agreement, extract of register and title. That the defendant entered the land and built a house thereon where he continued staying. 6.On cross examination, he stated that they appeared before the land control board on 21st September 2000 and that the date of their agreement was also on 21st September 2000. That when he inspected the land, it was vacant and that there was sugarcane on the land owned by the defendant being parcel No. 764. That he knew the defendant when he entered the land. That the witness had planted Eucalyptus trees on the land. That marked the close of the plaintiffs’ case. Defendant’s evidence 7.DW1 was Samson Okumu the defendant. He testified that he purchased the suit property on 20th August 1978 from a Mr. Simotwa at a consideration of Kshs. 50, 000/=. He stated that at the time of purchase, the suit property was registered in the name of Simotwa. That upon purchase of the suit property, he took possession of the same and built house on the land where he lives with his children. That he attended the Land Control Board with Simotwa in 1998 and consent was issued on 19th November 1998. That Ernest Wekulo was summoned by the Land Registrar on 17th May 2000 and asked to return his title which he refused. That Simotwa had purchased the suit property on 16th December 1969. That he began living on the suit property in 1978. That Wekulo filed case No. 115 of 2000 which was still pending as of October 2012. 8.He produced his land sale agreement with translation; extract of title; application for consent; consent; transfer forms; letter by the Land Registrar to Ernest; sale agreement between Simotwa and Ernest; consent for transfer to Simotwa; transfer between Wekulo and Simotwa; application for consent; sugarcane contract of 2nd August 1985 and sugar cane statement from Mumias sugar company. 9.On cross examination, he conceded that the plaintiffs had title to the suit property while he did not have it. That the plaintiffs did not sell him the suit property. That in his land sale agreement, the plot number is not stated. That the sugar cane contract is in regard to parcel No. 764. That his transfer document has no date. 10.DW2 was Benard Okumu Wekesa, a son of the defendant. He stated that the suit property plot No. 777 was initially plot No. 778 registered in the name of Wekulo Mwiriga. That Wekulo sold a portion of the same to Simotwa Vievei in 1968. That the land was subdivided and Simotwa got one of the subdivisions being parcel No. 777. That Simotwa was registered as owner thereof in 1971. That his father took his mother, his fathers third wife to parcel No. 777 but settled his other wives on Bunyala/Sidikho/764. That in 1985 they planted sugar cane on the suit property, contracted to Mumias sugar company and thereafter continued planting private sugar cane. That they have four houses on the suit property one of the houses being his. That they obtained consent to transfer from Simotwa but that the same has a problem as Simotwa’s name read as Simotwa Arap Yebei and Wekulo Murisa. That when they sought to have the land registered in their father’s name they realized that it had been transferred from Simotwa to Wekulo. 11.On cross examination, he stated that he was born in 1978 and was not present when his father purchased the suit property. That when they obtained search, the suit property was in the name of Wekulo. 12.DW3 was David Masila Kimau, the Deputy County Land Registrar Kakamega. He testified that their office had no records in regard to parcel No. Bunyala/Sidikho/777. That from their records, the matter was being handled by the Director of Criminal Investigations and that it is him who can tell them where the records are. That they seek to reconstruct the greencard for that parcel. That marcked the close of the defence case. 13.Upon consideration of the pleadings evidence and submissions, the trial court found that the defendant had failed to prove fraud and proceeded to allow that plaintiffs’ claim. Aggrieved by the court’s decision, the appellant filed the instant appeal vide a Memorandum of appeal dated 8th July 2024 citing five grounds of appeal as follows;a.The trial Magistrate erred in law and fact in disregarding or failing to apply the provisions of the Limitation of Actions Act.b.The trial Magistrate erred in law and fact when after properly finding that the title which the plaintiff had acquired was impeachable under section 26 (1) (a) and (b) of the Land Registration Act found that the plaintiffs had a good title contrary to the clear evidence on record that showed that the plaintiffs fraudulently and corruptly acquired the title to the suit parcel.c.The trial Magistrate erred by disregarding the fact that no valid title or interest could pass to the respondents as the time they were purporting to purchase the suit parcel as the rights of the seller had been extinguished.d.The trial Magistrate erred in law in holding that the appellant had to specifically plead adverse possession for the court to make such a finding contrary to the holding of the court of Appeal in the case of Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] e KLR which the appellant cited in his submissions and which apparently was not considered by the trial magistrate thus occasioning a miscarriage of justice.e.The decision of the trial Magistrate above was also contrary to the pleadings and the evidence of the defendant as to amount to a gross misdirection on the part of the trial Magistrate. 14.They sought orders that the judgment of the lower court be set aside and be substituted with a judgment dismissing the respondents’ case against the appellant in the court below with costs to the appellant. 15.This appeal was canvassed by way of written submissions. On record are submissions filed by the appellant dated 10th April 2025 and the respondents’ submissions dated 21st May 2025. Appellant’s submissions 16.Counsel for the appellant submitted that the trial court was wrong in holding that the respondents’ title was valid and that it failed to take into account the inconsistencies in the respondents’ evidence. That the trial court in referring to the plaintiff when the suit property was registered in the names of the two plaintiffs was wrong and that therefore the trial court failed to scrutinize the documentary evidence. It was further argued for the appellants that the sale agreement only had the name of Rodgers Wekesa Mango yet the title had the name of two respondents. That the agreement showed that only 3 acres were being sold at a consideration of Kshs. 180, 000/= yet the green card showed the consideration as Kshs. 210, 000/= when the entire parcel of 7 acres was transferred to the respondents’. That there was no paper trail to support the title and that the trial court ignored the appellants evidence that he had been on the suit property since 1978. That the trial court was wrong in only considering the pleadings and the evidence on record. Respondents submissions 17.Counsel for the respondent submitted that the burden of proof rested on the person alleging and that the appellant having alleged fraud was obligated to prove the same. Counsel relied on the case of Arthi Highway Developers Limited v West End Butchery Limited & Others Civil Appeal No. 246 of 2013 and sections 24 (a) and 26 of the Land Registration Act as well as section 112 of the Evidence Act and argued that the burden of proof of fraud was upon the appellant. That the appellant failed to present the evidence from DCI when the Land Registrar testified that he had no record of the suit property’s title and that therefore he failed to prove fraud. Analysis and determination 18.The court has carefully considered the appeal, the entire trial court record and the parties’ rival submissions. The role of this court as a first appellate court is to rehear the dispute. It therefore ought to re-assess, re-evaluate and re-analyze the facts and the law and make its own independent conclusions. This position was stated in the case of Selle & Another –vs- Associated Motion Boat Co. Ltd & Others (1968) EA 123. 19.It is not disputed that the suit property is currently registered in the respondents’ names. 20.Section 26 of the Land Registration Act provide for indefeasibility of title as follows;“Certificate of title to be held as conclusive evidence of proprietorship(1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)On the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 21.The appellant in this matter pleaded that the respondents obtained title of the suit property through fraud. 22.Where a party alleges fraud, the burden of proof rests on them. For the court to conclude that there was fraud, the same ought to be specifically pleaded together with the particulars thereof and strictly proved. The standard proof of fraud is slightly higher than the standard required in ordinary civil cases of the balance of probability, but slightly below the standard of proof in criminal cases of beyond reasonable doubt. In the case of Kinyanjui Kamau –vs George Kamau [2015] e KLR the court expressed itself as follows; -“…it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo –vs- Ndolo [2008]1 KLR (G & F) 742 wherein the court stated that: “…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…” 23.The dispute herein is that the respondents are registered proprietors of the suit property having purchased the same from the previous registered owner one Ernest Wekulo. That the appellant unlawfully entered the suit property and started staying thereon. On the other hand, the appellant’s position is that the acquisition of title by the respondents was based on fraud and mistake. The appellants pleaded that the transfer was fraudulent because it was done with the knowledge that Ernest Wekulo had sold the suit property to Simotwa who had in turn sold it to the appellant and that the respondents colluded with Ernest Wekulo in failing to disclose to the Land Registrar that the appellant’s name had been mixed up with the name of one Simotwo S/O Biebei on the transfer dated 4th January 1999 causing the Land Registrar to effect a false transfer. 24.The Land Registrar, DW3 in his testimony stated that his office had no record of parcel No. Bunyala/Sidikho/777 and that the matter was being handled by the DCI. He further stated that he was waiting for application by the owner for reconstruction of green card. The DCI never gave any testimony. 25.The respondents produced a green card showing that the title of the suit property was opened on 11th May 1971, being a subdivision of parcel No. Bunyala/Sidikho/728. That the same was registered in the name of Wekulo Ngirisi on 11th May 1971. That on 18th October 1999, an entry for change of name from Wekulo Ngirisi to Ernest Wekulo was registered. On 19th October 1999, the same was registered in the names of the respondents. 26.On the other hand, the green card produced by the appellant showed two entries being entry No. 1 for registration of the suit property in the name of Wekulo Ngirisi on 11th May 1971 and entry No. 2 being registration of the suit property in the name of Simatwa S/0 A. Biebei on 13th May 1971. That entry is indicated as having been made in error and on 19th October 1999 the change of name was registered in respect of Ernest Wekulo. It is therefore clear that from the appellant’s own evidence being the green card, the registration of the suit property in the name of Simatwa S/O Biebei was a registration done in error. 27.The fact that the suit property was previously owned by Ernest Wekulo is not disputed. The respondents’ position is that they purchased it from Ernest Wekulo. The appellant on the other hand states that at the time of sale of the suit property to the respondents, Ernest had already sold the suit property to Simatwa who had in turn sold it to the appellant. Todate there is no evidence that either Simatwa or the appellant challenged the entry dated 18th October 1999 on the title regarding change of name of Ernest Wekulo. In addition, while the appellant alleged in evidence that when he sought to register the suit property in his name he found that it had been registered in the name of the respondents, yet his own green card has no evidence of registration of the suit property in the name of the respondents although it was allegedly issued on 12th June 2000, yet the respondents were registered as owners thereof on 19th October 1999. 28.At the core of this dispute is a man called Simatwa S/0 Abiabei. I have also considered the appellants supportive documents which are an application for consent of the land control board dated 18th November 1998. In that application the person who sought to transfer the land is said to be one Wekulo Ngirisi Simatwa Son of Abiebei. His identification card number is not indicated and the signature of that person is indicated as Wekulo. Similarly, in the application for transfer, the person who signed it placed a thumb print and indicated his name as Wekulo. The name of that person is stated as Wekulo Ngirisi Simatwa s/0 Abiabei. While the appellant accuses the respondents of failing to disclose that there was a mix up in the name, the said document is his document and it was his duty to disclose if indeed there was a mix up. Transfer documents are important documents and are signed by the owners of the land. The person who allegedly attested the transfer document indicated that the person called Wekulo Ngirisi Simatwa appeared before them and identified himself by way of an identification document. Unfortunately, that document was never shown anywhere, and therefore this court cannot ascertain if indeed there ever existed a Simatwa s/o Abiebei or not. While the transfer form contains the appellants identification card number none is indicated for the transferor. That is a serious gap in the appellants case. 29.I have considered an alleged agreement dated 16th December 1969 where one Simatwa Aravuyevei stated that he had bought land from Wegulo Magata measuring 6 acres at Kshs. 960/=. That document has nothing to show that Ernest Wekulo confirmed having sold land to Simatwa. Besides there is no signature by Simatwa. The alleged agreement between the appellant and Simatwa was not signed by Simatwa either. The transfer form between Wekulo Ngirisi and Simatwa is incomplete and does not show before whom it was signed and no evidence shows if it was registered. The appellant produced a sugar cane contract dated August 1985 with Mumias Sugar Company in respect of parcel No. 764 insisting that the same was in regard to the suit property. That parcel is not the suit property. The evidence of DW2 the appellants son was clear that the said parcel belongs to the appellant but is not the suit property. In short, the appellant’s position that the suit property was transferred from Ernest Wekulo to Simatwa and thereafter to him is not supported in evidence. The appellant alleged to have paid a sum of Kshs. 50, 000/= in the year 1978. That then was a substantial amount of money and therefore, I do not think that the appellant would reasonably pay such an amount without clarity on the identity of the person who sold him the land. I am therefore not convinced that the suit property lawfully changed hands from Ernest Wekulo to Simatwa. 30.The respondents’ registration is from Ernest Wekulo. Ernest has not denied the sale and transfer of the suit property to the respondents. The appellants therefore failed to demonstrate fraud as against the respondents. 31.On the appellants complaint that the trial court was wrong in holding that adverse possession ought to have been pleaded to be allowed, it is trite that parties are bound by their pleadings. A court cannot grant a counterclaim that was not pleaded and or sought. At any rate, a claim for adverse possession can only be successfully made against the true owner of land and not against a person alleged to be a fraudster. In short fraud and adverse possession do not coexist. Hence the trial court was right in not granting the suit property to the appellant under the doctrine of adverse possession. The appellants ground that the trial court failed to apply provisions of the Limitation of Actions Act must fail because no specific provision was mentioned by the appellant and that matter was never pleaded or raised by the appellant in his defence. 32.The upshot is that this appeal lacks merit and the same is hereby dismissed with costs to the respondents. 33.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 17TH DAY OF JUNE 2026A. NYUKURIJUDGEIn the presence of;Mr. Amasakha for the appellantMs Chesire for the respondentsCourt Assistant: Delphine