https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3803

Koyo v Agunda (Environment and Land Appeal E058 of 2024) [2026] KEELC 3803 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3803 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Appeal E058 of 2024 E Asati, J June 18, 2026 Between Simeyo Odhiambo Koyo Appellant and Joseph Ochieng Agunda Respondent (Being an appeal from the judgment of Hon. E.A. Obina (SPM) in KISUMU CMC E&L NO. E098 OF 2022 dated 4th July, 2024) Judgment Introduction 1.A brief background of the appeal herein is that Joseph Ochieng Agunda, Respondent herein, who claims to be the registered owner of a land parcel known as Kisumu/Dago/1119 (the suit land herein), which he claims to have inherited from his father, sued the Appellant in Kisumu CMC E&L Case No. E098 OF 2022 (the suit). The case of the Respondent in the suit was that the Appellant had trespassed onto the suit land by entering and remaining thereon without the consent or authority of the Respondent, by building structures and refusing to vacate the suit land. The Respondent therefore sought orders of, inter alia, permanent injunction, eviction and costs of the suit. 2.The record shows that in response to the claim, the Appellant filed Amended Statement of Defence and Counterclaim dated 1st December, 2022 vide which he denied the claim and averred that the suit land was a resultant parcel of sub-division of L.R. NO. Kisumu/Dago/712 and that the same was to be transferred to him being the portion which was due to him as per family distribution following succession. 3.The Appellant contended that he had been on the suit land since he was born and specifically since 1978 when he established his home on the land. 4.The Appellant therefore sought orders that the suit be dismissed, judgement be entered in his favour on the counterclaim for a declaration that he was the rightful owner of the suit land, or a declaration that the Respondent was barred by operation of the Limitation of Actions Act from claiming the suit parcel as the Appellant had been in occupation since 1978, an order to the Land Registrar to rectify the records reflecting the Appellant as the lawful proprietor and costs of the counterclaim. 5.The Respondent denied the counterclaim vide the Reply to Defence and Defence to Counterclaim dated 6th March, 2023. 6.The record shows that the suit was heard before the trial court which vide the judgement dated 4th July, 2024, found that the Respondent had proved his case against the Appellant on a balance of probabilities and entered judgement in his favour, a permanent injunction, an order that the Appellant vacates the suit land and hands over vacant possession thereof to the Respondent, failing which eviction orders could issue and costs of the suit. The appeal 7.Aggrieved by the judgment, the Appellant preferred the present appeal vide the Memorandum of Appeal dated 24th July, 2024 which was later amended and replaced with the Amended Memorandum of Appeal dated 25th January, 2026.The grounds of appeal are that;a.The learned Magistrate erred in law and fact in holding that the Respondent had a valid and procedurally acquired title without any evidential basis.b.The learned Magistrate erred in law and fact by failing to consider the unexplained inconsistencies in the land register extracts, thus leading to a miscarriage of justice.c.The learned Magistrate erred in law and fact in misdirecting himself on the law as provided under section 7 of the Limitation of Actions Act and proceeded to analyse the Appellant’s case against a background of the doctrine of adverse possession which the Appellant neither pleaded nor claimed.d.That in any event the learned Magistrate erred in law in misdirecting himself that a claim of adverse possession cannot be raised as a counterclaim, showing that the trial court was not in complete grasp of the issues before it, leading to a wrong finding.e.The learned Magistrate failed to properly analyse the evidence, make a determination on the issues and give reasons for his findings contrary to a Magistrate’s duty in delivering a judgement.f.The learned Magistrate erred in law and fact by misapprehension of facts and law, thereby arriving at an unfair decision not supported by the evidence.g.The learned Magistrate erred in law and fact in failing to consider the Appellant’s submissions and judicial authorities, thus leading to resultant miscarriage of justice to the Appellant. Submissions 8.The appeal was heard by way of written submissions. Written submissions dated 3rd March, 2026 were filed on behalf of the Appellant by G. Imbaya Law Advocates, while written submissions dated 30th March, 2026 were filed on behalf of the Respondent by O.J. Okoth & Company Advocates. Issues for determination 9.Although the Appellant presented a total of 7 grounds of appeal, he summarized them in his submissions into two (2) main issues for determination in this appeal, namely;i.whether the learned Magistrate erred in law and in fact in holding that the Respondent had a valid and procedurally acquired title.ii.Whether the learned Magistrate erred in law and fact in misapprehending the nature of the Appellant’s case. Analysis and determination 10.This court has a duty as a first appellate court to consider the whole evidence produced before the trial court, re-evaluate it and arrive at its own independent conclusion. While doing so, the court keeps in mind the fact that the trial court had the advantage, which this court does not have, of seeing and hearing the parties and their witnesses first hand, as held in Gitobu Imanyara & 2 others –vs- Attorney General [2016] eKLR, that the principles upon which a first appellate court proceeds are well settled and that“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.” 11.The first issue for determination is whether the trial Magistrate erred in holding that the Respondent had a valid and procedurally acquired title. 12.The record shows that the trial court did find in the judgment that the Plaintiff had proved that he was the registered owner of the suit land and that the Land Registrar supported the registration and good title. 13.In faulting the trial court for this finding, the Appellant submitted that the Respondent’s case was that his father purchased the suit land in 1983. That he processed title to the suit land and instituted eviction proceedings against the Appellant in the year 2013 and that after the demise of his father, the Respondent obtained title to the suit land through transmission. 14.That the Appellant denied the sale and pleaded that the suit land was his family land which originated from land parcel No.Kisumu/Dago/712. 15.Counsel submitted that DW2 testified that the Respondent’s father had sued one George Ishmael Rabilo at the Tribunal where an order was issued to the effect that the suit land be transferred to the Respondent’s father. That it was on that registration that the Respondent eventually obtained ownership of the land through transmission. 16.Counsel submitted further that the trial court, in its judgment, affirmed the Respondent’s title on the basis that the Tribunal had already made its determination as regards the Respondent’s father’s ownership of the land; hence, the subsequent registration in the name of the Respondent amounted to good title. 17.Counsel relied on the cases of Republic -vs- Keyian Land Dispute Tribunal and 2 Others ex parte Joseph Seiya [2017]KEHC 7718 (KLR) and Republic -vs- The Chairman Awendo Division Land Dispute Tribunal and 4 Others (Kisii HC JR NO.4 of 2017) to submit that the decision of the Land Disputes Tribunal over ownership of registered land was a nullity. 18.Counsel also relied on the case of Wambui -vs- Mwangi and 3 Others (Civil Appeal 465 of 2019) KECA 144, where it was held that anything founded on a nullity is also null and void and of no consequence. 19.Counsel submitted that as the proceedings of the Tribunal were null and void, the eventual adoption by the Magistrate’s court of the decision of the Tribunal had no legal value. That the trial court therefore ought to have examined how the Respondent actually obtained ownership of the suit land. 20.Counsel submitted further that the Respondent failed to produce any evidence to substantiate the alleged purchase. That the position adopted by the learned Magistrate was erroneous given that the decision by the Tribunal was void ab initio. 21.On behalf of the Respondent, it was submitted on this issue that the Respondent acquired the suit land from his deceased father, one Christopher Agunda Otuoma, through transmission after conducting a succession process in Kisumu CMC SUCC. CAUSE NO.426 of 2019 in the Estate of Christopher Agunda Otuoma – deceased. 22.Counsel submitted that the evidence of DW1 explained how Christopher Agunda Otuoma acquired ownership of the land. That the suit land was erroneously registered in the name of one George Ishmael Rabilo. That this triggered a Tribunal case initiated by Christopher Agunda Otuoma, which came up with a verdict that the suit land be registered in the name of Christopher Agunda Otuoma and that the court order was implemented. 23.That thus the Respondent had a valid title to the suit land and that there were no irregularities or illegalities in the acquisition of the title. 24.That although the Appellant claimed that the suit land ought to have been registered in the name of Patrick Otieno, Jacob Sawo, Joahnes Aoko and Elias Owino, whom he (Appellant) claimed to be his relatives, he did not bring the counterclaim on their behalf. 25.That the Appellant’s case before the trial court did not challenge the unlawfulness of the decision of the Tribunal, as such challenge has its own procedure set out in law. 26.The Respondent pleaded in the amended plaint dated 7th November, 2022 that he was the registered owner of the suit land and in paragraph 11 and 11A detailed how he acquired the registration of the land in his name through transmission from his late father. 27.The Appellant challenged the Respondent’s title to the suit land on the grounds that the suit land was to be transferred to him (Appellant) as it was the portion which was due to him as per family distribution following the obtaining of the grant. That he had lived on the land since he was born and specifically since 1978 when he built his home on the land, and that registration of the land in the Respondent’s name was unlawful. 28.No particulars of the unlawfulness of the registration in the Respondent’s name were given in the amended plaint. 29.The Respondent produced exhibits including a copy of the title deed for the suit land and certificate of confirmation of Grant to support his claim. 30.The Appellant testified as DW1 and stated, inter alia, that the land was his ancestral land on which he has stayed for more than 40 years without any interference and that his father did not sell the land to the Respondent’s father. 31.He produced exhibits, among them, copies of the register in respect of the suit land, adjudication record, mutation forms and certificates of official search. 32.DW2 was Nicholas Obiero, the Land Registrar, Kisumu. He testified and gave a detailed account of the history of the ownership of the suit land. He stated that registration of the suit land in favour of Christopher Agunda Otuoma, the Respondent’s father, was based on a court order. 33.The Respondent pleaded that his father had filed a suit vide which he processed the title of the suit land into his name. This was not denied. The appellant did not challenge the legality of the proceedings before the Tribunal in his defence or counterclaim, in his witness statement or testimony in court. 34.There is no evidence that either the Appellant, or George Ismael Rabilo or any of the Appellant's relatives mentioned in his evidence ever challenged the proceedings that took place before the Tribunal, the resultant decision thereof, the adoption of the Tribunal’s decision by the Magistrate’s court as a judgement of the court or the transfer of the suit land in favour of the Respondent’s father on the basis of the Tribunal’s decision. It is only in his submissions in this appeal that the Appellant raised the issue of illegality and/or nullity of the proceedings and decisions of the Tribunal. 35.As submitted on behalf of the Respondent, the procedure for challenging the proceedings and decisions of the Land Disputes Tribunal was well provided for in law. This court cannot proceed to declare the proceedings and decision of the Tribunal and the resultant judgment a nullity on the basis of the submission in this appeal. The court has not had the benefit of reading and interrogating the said proceedings, decision and judgment. The authorities relied on by the appellant emanated from Judicial Review proceedings where decisions of the Tribunal were the subject matter and where the court(s) were invited to determine the legality and/or validity of the decisions. 36.As the decision of the Tribunal, and the Succession Cause that transmitted the land in favour of the Respondent have not been challenged, I find that the trial court did not err in finding that the Respondent had good title to the suit land. 37.The second issue for determination is whether the trial court erred in misapprehending the Appellant’s case. 38.It was submitted on behalf of the Appellant that the Appellant’s case was strictly on limitation under section 7 of the Limitation of Actions Act, which bars a person from instituting a suit to recover land after the lapse of 12 years. Further, that the plea of limitation was raised as a pure point of law going to jurisdiction, as limitation extinguishes the right to bring an action after the lapse of the statutory period. 39.That, to buttress this position, the Appellant pleaded that he had been on the suit parcel of land since birth, but actively from 1978, and that he produced photographs to show his homestead. That there was no evidence from the Respondent to controvert the Appellant’s position. 40.That by construing the plea of limitation as a claim of adverse possession, the trial court misdirected itself and determined an issue that was neither pleaded nor canvassed by the Appellant. That the trial court’s failure to address the Appellant’s case occasioned a grave miscarriage of justice warranting intervention of the court. That the trial Magistrate fell into error in both facts and law by misapprehending the nature of the Appellant’s claim. 41.Counsel urged the court to find that the appeal is merited and allow it. 42.On behalf of the Respondent, it was submitted that the counterclaim was based on adverse possession, but the Appellant, through his submissions, denies that he ever claimed adverse possession. 43.That the Respondent already had a lawful title to the suit land in his name and his claim before the trial court was based on trespass and eviction of the Appellant from the land. That therefore, the Respondent’s claim was not ownership so as to be barred under the Limitation of Actions Act. 44.As submitted by the Respondent, the Appellant’s claim was not based on fraud as fraud was not pleaded. The Appellant denies that his claim was based on adverse possession. The question which arises is what then is the basis of the Appellant’s claim? What gives him the locus standi to raise the plea of limitation of actions? He does not hold title to the suit land; he does not claim to have acquired such title by adverse possession and has not pleaded fraud against the Respondent. 45.Although the Appellant claimed that the land was his ancestral land, there was no evidence to that effect. There was also no evidence to support the Appellant’s claim that the suit land was his entitlement after a grant had been obtained. No grant was produced as evidence to show that, in the distribution of the land and/or estate, if any, the appellant was allocated and was therefore entitled to the suit land. 46.The particulars of the Respondent's case in the suit were that the appellant had, without the authority or consent of the Respondent, entered the suit land, erected structures and remained thereon, refusing to vacate. These particulars constitute a continuous or continuing tort of trespass which cannot be time-barred and/or subject to limitation for as long as the trespasser remains on the land unlawfully. See Maina vs Waweru & 2 Others [2025]KEEL 791 (KLR). 47.I find that the trial court did not misapprehend the Appellant’s claim. I find that the grounds of appeal have not been proved. The appeal therefore fails. The upshot is thati.The appeal is dismissed.ii.Costs are awarded to the Respondent.Orders accordingly. JUDGMENT DATED AND SIGNED AT KISUMU AND DELIVERED THIS 18TH DAY OF JUNE, 2026 VIRTUALLY THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:Atika - Court Assistant.Imbaya for the AppellantNo appearance for the Respondent