Ominde v Andayi & another (Civil Appeal 42 of 2019) [2026] KECA 1509 (KLR) (24 July 2026) (Judgment)

Ominde v Andayi & another (Civil Appeal 42 of 2019) [2026] KECA 1509 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1509 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal 42 of 2019 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA July 24, 2026 Between Silvenus Ominde Appellant and Nerea Andayi 1st Respondent Alestrick Paul Nanzai 2nd Respondent (Being an appeal from the judgment of the Environment and Land Court of Kenya at Kakamega (N. Matheka, J.) dated 26th June, 2018, inELC Case No. 519 of 2014) Judgment 1.By a plaint dated 29th March, 2005, the appellant lodged a suit against the respondents, before the High Court at Kakamega. The appellant alleged that he was the registered proprietor of land parcel No. Butsotso/Bukura/1279 (hereinafter ‘the suit property’). He contended that on or about the year 1995, the respondents invaded the suit property and occupied part of it without any colour of right, and that they had refused to vacate the same despite demands from the appellant. The appellant prayed for, inter alia, orders of eviction against the respondents. 2.By a statement of defence dated 19th October, 2010, the respondents pleaded that the suit property originated from land parcel No.Butsotso /Bukura/1081, which was hived off from the original parcel No. Butsotso/Bukura/104, registered in the name of one Omwisho Nduswe Wetumbire. They maintained that the register in respect of original parcel No. Butsotso/Bukura/104 was unlawfully and clandestinely closed without their knowledge or consent. The respondents further asserted that the original parcel of land constitutes their ancestral land, and that they have occupied and resided on it for a period of over 30 years. 3.The case was heard by way of viva voce evidence. The appellant (PW1) told the court that he is the registered proprietor of the suit property, having been allocated the property by his father, and issued with a title deed on 27th August, 1996. He stated that the 1st respondent was a wife of his grandfather, and that his father had permitted her to reside on the suit property temporarily while she sought alternative land. He testified that 1st respondent came into the land in 1995, together with the 2nd respondent, who is her son. He further testified that despite repeated requests for them to vacate, the respondents have remained in occupation of the suit property. 4.PW2, Paul Wefumbere, testified that the appellant is his nephew. He stated that the 1st respondent was married to his uncle, and that they were allowed to reside on the suit property temporarily, as their house had collapsed. 5.The 1st respondent testified as DW1. She stated that she was the second wife of Paul Nduswe, the appellant’s grandfather, and that Omwisho Nduswe, the appellant’s father, was a son of the first wife, Esther Mbayi Paulo. It was her testimony that the suit property belonged to her late husband, who settled her there during his lifetime, and that she remained on the suit property even after his death. She stated that she entered the suit property in 1955 upon her marriage to Paul Nduswe. 6.According to her, there was an understanding that the land would be shared between her household and Omwisho Nduswe’s household, and a boundary was subsequently established to demarcate their respective portions. She testified that she occupies and utilizes approximately half an acre of the suit property, and that the appellant’s father (Omwisho Nduswe) refused to transfer her share of the suit property to her. She further stated that she was unaware of the circumstances under which the appellant acquired title to the suit property. 7.The 2nd respondent (DW2) testified that the appellant is his nephew, and that the appellant’s father, Omwisho Nduswe, is his elder brother. It was his testimony that he resides on a portion of the suit property, together with the 1st respondent, having inherited the portion from his father. He produced documents evidencing applications made by Paul Nduswe to the Land Control Board, for consent to subdivide parcel No. Butsotso/Bukura/1081 into two equal portions, corresponding with the physical boundary existing on the land, and also copies of the green card. He stated that his elder brother, Omwisho Nduswe, refused to sign the transfer documents, and that the sub-division was never actualized. 8.After hearing the parties, the learned Judge, in a judgment dated 26th June, 2018, dismissed the appellant’s suit. The learned Judge held that the respondents had established a beneficial interest in the suit property on account of their longstanding occupation, and their claim that it constituted part of family land. The court further found that the appellant had not satisfactorily demonstrated the root and legality of his title to the suit property, thereby rendering his claim unsustainable. 9.The appellant lodged the instant appeal, challenging the decision of the trial court. He challenged the impugned decision on six principal grounds; He contended that the learned Judge erred in finding that he had failed to prove his case on a balance of probabilities, and in holding that his title to the suit property had been obtained unlawfully, despite there being no pleadings or evidence to support such a finding. He complained that the court improperly determined issues that had neither been pleaded nor canvassed by the parties, thereby denying him an opportunity to address those issues before the decision was rendered. Additionally, he faulted the trial Judge for attributing liability to him on the basis of the actions of a person who was not a party to the proceedings. Finally, the appellant was aggrieved that the learned Judge upheld the respondents’ case despite the respondents having failed to properly plead the issues upon which the court ultimately relied on in reaching its decision. 10.Prior to the plenary hearing of the appeal, the Court was informed that the 1st respondent was deceased. The appeal against her was thus marked as abated pursuant to Rule 102(2) of the Court of Appeal Rules. Both parties appeared in person. The appellant made his submissions. It was his submission that the suit property was gifted to him by his father, and that the transfer was duly sanctioned by the Land Control Board. He maintained that he is the registered proprietor of the suit property and that the respondents’ initial occupation was by licence and was meant to be temporary. He faulted the learned Judge for finding against him despite the evidence of his title and urged the Court to allow the appeal. 11.The 2nd respondent filed written submissions dated 17th October, 2023. He briefly highlighted the submission in Court. It was his submission that the respondents were not trespassers but beneficiaries of the suit property, which was family land originally owned by Paul Nduswe, the 1st respondent’s husband, and the 2nd respondent’s father. He averred that they had been in occupation of the suit property since 1955. He argued that the evidence on record demonstrated that the suit property was derived from the original parcel No. Butsotso/Bukura/104, and that the appellant’s title was acquired in circumstances that ignored the respondents’ beneficial interest in the land. 12.The 2nd respondent further submitted that the appellant’s father was obligated to ensure that the respondents’ portion of the suit property was transferred to them, but he instead transferred the whole of the suit property to the appellant under unclear circumstances. He explained that the appellant did not dispute that Paul Nduswe, the original proprietor of the suit property, had two wives, and that the 1st respondent was his second wife. He submitted that the respondents were entitled to a share of the suit property, and that the appellant failed to prove that they occupied the same unlawfully. 13.The 2nd respondent argued that the trial court was entitled to consider all the evidence on record and that the issues raised in the judgment flowed from the parties’ pleadings and testimony. He also maintained that the appellant’s father, who played a central role in the subdivision and transfer of the land, was not called to testify despite being alive at the time of trial. He submitted that the copies of the green card produced in evidence demonstrated that parcel No. Butsotso/Bukura/1081, from which the suit property originated, was a sub-division of Parcel No. Butsotso/Bukura/104, which was registered in favour of his father, Paul Nduswe. 14.The 1st respondent further submitted that the respondents had filed a proper statement of defence and supporting documents, which the appellant neither objected to nor successfully challenged during the trial. He therefore urged us to find that the appeal lacked merit and should be dismissed with costs. 15.We are alive to our mandate as a first appellate court, which was well stated in Selle and Another v. Associated Motor Boat Co. Ltd [1968] E.A. 123, where the Court observed as follows:“An appeal to this Court from a trial by the High Court is by way of a 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 allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mhamed Sholan, (1955) E.A.C.A. 270)”. 16.Having evaluated the grounds of appeal, the record of appeal, as well as the rival submissions by the parties, we formed the view that the principal issue that falls for determination by this Court is whether the appellant sufficiently established that the respondents were in unlawful occupation of the suit property. 17.The appellant's suit before the trial court was straightforward.He sought the eviction of the respondents from the suit property on the basis that they had unlawfully entered and occupied the same. The burden therefore lay squarely upon him to establish, on a balance of probabilities, not only his entitlement to the suit property, but also that the respondents were trespassers or were otherwise occupying the suit property without any lawful or recognizable interest. 18.From the evidence on record, the respondents consistently maintained that the suit property formed part of family land originally owned by Paul Nduswe. The 1st respondent testified that she was married to Paul Nduswe, and had resided on the suit property since 1955. The 2nd respondent similarly testified that he occupied a portion of the suit property by virtue of inheritance from his father, Paul Nduswe. Significantly, the appellant did not dispute the respondents' relationship to Paul Nduswe, nor did he challenge the evidence that they had occupied the land for decades. To the contrary, the appellant acknowledged that the 1st respondent was his grandfather's wife, while PW2 similarly confirmed that relationship. 19.Additionally, the documentary evidence produced before the trial court further showed that the suit property traces its origin to parcel No. Butsotso/Bukura/104, which was registered in the name of Paul Nduswe. The respondents also produced documents relating to the intended subdivision of the original parcel of land and evidence demonstrating their claim to a portion thereof. In light of that evidence, we are unable to agree with the appellant's assertion that the respondents were mere trespassers whose occupation of the suit property was unlawful. 20.While the appellant relied heavily on his title deed to the suit property, registration alone did not answer the central question before the court, namely whether the respondents had any legitimate claim or interest in the land. The evidence on record established that the respondents had a longstanding beneficial interest arising from their familial connection to the original proprietor and their uninterrupted occupation of the land over a period of many decades. We are mindful that registration of title does not invariably extinguish pre-existing beneficial interests in land. As the courts have repeatedly held, such interests are recognized by law and are capable of subsisting as overriding interests notwithstanding registration of title in another person's name. This was clearly a case where customary trust exists. See the decision of the Supreme Court in Kiebia v M’lintari & another [2018] KESC 22 (KLR)). 21.The learned Judge cannot therefore be faulted for finding that the appellant's title was acquired in circumstances that failed to take into account the respondents' existing beneficial interest in the suit property. 22.In the circumstances, we are satisfied that the appellant failed to prove that the respondents were unlawfully occupying the suit property or that he was entitled to the eviction orders sought. The learned Judge properly evaluated the evidence and correctly dismissed the suit. 23.In the circumstances, we are satisfied that the appeal before us has no merit. It is hereby dismissed with costs to the 2nd respondent. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF JULY, 2026.ASIKE-MAKHANDIAJUDGE OF APPEAL.......................................H.A. OMONDIJUDGE OF APPEAL.......................................L. KIMARUJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR