https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3428

Wanga & another v Mudeizi (Land Case Appeal E095 of 2024) [2026] KEELC 3428 (KLR) (8 June 2026) (Judgment) Neutral citation: [2026] KEELC 3428 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Land Case Appeal E095 of 2024 MN Mwanyale, J June 8, 2026 Between Abala M Wanga 1st Appellant County Government Of Kisumu 2nd Appellant and Nathan Ondego Mudeizi Respondent Judgment 1.The 1st Appellants Abala M. Wanga in his capacity as the city Manager of the 2nd Appellant, the County Government of Kisumu being dissatisfied by the whole judgment of the Chief Magistrates court at Kisumu delivered by Hon. Douglas Ogoti C.M on 29th October 2024 in MCELC Number E051/2020, preferred this Appeal against Nathan Ondego Mudeizi. 2.Vide the Memorandum of Appeal dated 27th day of November 2024 filed by Messrs Mongeri Kinyanji and Co. Advocates, and sought the following prayers; -a.This Appeal be allowed.b.The judgment and consequential orders of Hon. Douglas Ogoti be set aside.c.A declaration that the purported purchase and/or acquisition of the leasehold title comprised in land Reference number Kisumu/Municipality Block 9/107 by the Respondent is invalid for failure to adhere to express statutory provisions under the applicable laws.d.A declaration that the failure to follow laid down procedures under the Government Lands Act for alienation of Public land renders the Respondent’s title to the land compromised in Kisumu/Municipality Block 9/167 is irregular and null and void.e.A declaration that the alleged subdivision of Kisumu/Municipality Block 9/22 and Kisumu/Municipality Block 9/167 is irregular null and void for failure to adhere to laid down procedures.f.A declaration that the commissioner of lands erred in law in issuing the leasehold titles comprised in the Kisumu/Municipality Block 9/167 to the Respondent.g.An order under section 80(1) of the Land Registration Act directing the Registrar to rectify the register by cancelling the registration of the leasehold titles comprised in the Kisumu/Municipality Block 9/167 as it was obtained by fraud and/or through a corrupt scheme and the said parcel should revert to the land comprised in Kisumu/Municipality Block 9/22.h.An order directing the successor of the commissioner of lands to issue the requisite titles with respect to the land compromised in Kisumu/Municipality Block 9/167 to the County Government of Kisumu as the registered proprietor.i.An order directing the Director of Survey of Kenya to amend the maps at the survey of Kenya by deleting the illegal and irregular creation of Kisumu/Municipality Block 9/167 and returning the said portion to Kisumu/Municipality Block 9/22.j.An order directing the Respondent and/or their servants, agents and/or assigns to forthwith to vacate the premises compromised in the land parcel Kisumu/Municipality Block 9/167 and if they do not do so vacate within 15 days of date hereof. The Appellants be at liberty to evict the Respondent.k.A permanent injunction barring the Respondent by themselves, their agents and/or assigns from entering being upon, or utilising the land parcel Kisumu/Municipality Block 9/167.l.General damages for trespass and interests thereon at court rates; such other relief as this Honourable court may deem fit to grant.m.Costs of this Appeal be awarded to the Appellant. 3.The Appellants penned down 15 grounds of Appeal that the court shall not set out verbatim herein but shall consider them in determination of this Appeal. 4.As this Appeal emanates from Kisumu C.M and was filed at Kisumu ELC, it was brought before Kilgoris ELC under the Mahakama ‘popote’ initiative, the parties were thus directed to file written submissions on the Appeal which the court summarises as follows; - Appellants Submissions 5.In their submissions, the Appellants framed and submitted on 4 issues for determination. 6.On issue 1, the Appellants submit on whether the Respondent title was acquired illegally and unprocedurally, they submit that the mother title to wit, Kisumu/Municipality Block 9/22 remains registered in the name of the County Government of Kisumu and has never been lawfully subdivided. 7.That the creation of Kisumu/Municipality Block 9/167 was done irregularly, without the requisite consents, necessary approvals. 8.The Appellants thus submit that the title held by the Respondent contravenes section 26(1 of the Land Registration Act; and Article 40(6) of the Constitution of Kenya. In support of this, the Respondent has cited the decision Persbyterian Foundation v Kibera Siranga Self House Group Nursery School, as well as Munyu Maina v Hiram Gathiha (Maina). 9.On issue No. 2, whether the doctrine of Estoppel can be invoked to validate an illegal title, the Appellant submits that the doctrine of Estoppel cannot be used to sanction an illegality or to override statutory provisions. Reliance was placed in the Court of Appeal decision in Henry Muthee Kathurima v Commissioner of Lands and Another, Civil Appeal No. 8 of 2014 (2015) eKLR. 10.The Appellants submit that collection of rates is a neutral administrative act and does not confer legitimacy. 11.They submit that the trial court thus erred in law by applying the doctrine of Estoppel to legitimise an illegality. 12.On issue No. 3, whether the learned Magistrate erred by failing to determine the Appellant’s counter-claim and evidence in totality. 13.The Appellants submit the court is duty bound to establish whether the trial court considered all the evidence before it, in line with the decision in Selle and Another v Associated Motor Boat Co. Ltd (1968) EA 123. 14.In support of this limb of submissions that an innocent purchaser of value cannot maintain an illegally acquired title, the Appellants place reliance in the decision in Dinah Management Limited as well as Alice Chemutai Too v Nickson Kipkurui Korir and 2 Others. 15.Issue No. 4 was whether the trial court applied the correct standard of proof, to which the Appellants submitted that the trial court, applied a different standard other than the balance of probabilities, since evidence before trial court did not reveal evidence of subdivision, hence the existence of a lawful root of title. 16.On the strength of the above the Appellants prayed for their Appeal to be allowed. Respondents Submissions 17.The Respondent set out the role of this court as a first Appellate court as stated in the case of Selle v Associated Motor Boat Co. Ltd, the duties to re-evaluate the evidence, access it, draw its own independent conclusions on the facts and the law and reach a conclusion. 18.The Respondent submitted that the suit property submitted that the suit property had been subject of a previous suit to wit HCCC No. 30 of 1997, between T.J. Mageka and Joseph Onyango, which matter determined the issue of ownership of the suit property, which decision was never challenged varied and/or set aside, and that the trial court was thus right, in finding that the issue of proprietorship was settled by the decision of the High court in the previous suit which decision was binding upon the trial court. 19.In this regard the Respondent placed reliance on the decision in the case of Republic v Independent Electoral and Boundaries Commission Exparte Wanvinya Ndeti (2017) KEHC 8913 KLR to buttress the issue of Resjudicata issue estoppel. 20.The Respondent thus submits that the trial court rightfully applied the doctrine of Estoppel, in particular issue estoppel. 21.On the issue of receipt of rent and rates by the Appellants, the Respondent submits that the same created an estoppel that against the Appellants and reliance in the decision in the cases of John Mburu v Consolidated Bank of Kenya (2018) eKLR, Rado Development Co. Ltd v The County Government of Kisumu as well as Henry Muthee Kathurima v Commissioner of Lands and Another. 22.The Respondent thus submits that the Appellants never discharged the burden of proof and that there was no allegation of fraud hence the trial court decision cannot be faulted, and urged the court to dismiss the Appeal with costs. Issues for Determination 23.Having analysed the Record of Appeal, the submissions and considered the law, the court frames the following issues for determination; -i.whether or not the Appeal is merited. In deciding this the court shall determine the plaintiff’s case and the Defence and Counter-claim ought to have been upheld, by the trial court.ii.What reliefs ought to issue?iii.Who bears the costs of the Appeal. Analysis and Determination 24.As rightly submitted by both counsels for the parties herein, the court as the first Appellate court the duties stated in Selle and Another v Associated Motor Boat Limited, the duties to “reconsider the evidence, evaluate it and draw its own conclusion”. 25.The Respondent in this Appeal was the plaintiff before the trial court, when he commenced his action by way of a Plaint dated 14.12.2020 found at paged 224-227 of the Record of Appeal. 26.In his said Plaint, the pleaded interalia beingi.The rightful owner of all that piece of land known as Kisumu/Municipality Block 9/167 which is a 99 a leasehold from 1st January 1996, where he has erected permanent structures including a perimeter wall, laundry facility and a parking lot and he equally owns Kisumu Municipality Block 9/12, Kisumu Municipality Block 9/17 and Kisumu Municipality Block 9/18 within the same vicinity as the suit property.ii.That on 9th December 2020, the 1st Defendant (now 1st Appellant) caused a notice to be publish declaring the suit property as among the public utility lands to be surrendered within a period of 7 days, the said Notice related to a property opposite Fanana Hotel (erected on Kisumu/Municipality Block 9/12, but the Defendants agents destroyed the perimeter wall of Kisumu Municipality Block 9/167; without any lawful justification and/or reasons.iii.He sought for judgment against the Defendants for a declaration that he was the registered and indefeasible proprietor of the leasehold interest comprised in parcel No. Kisumu Municipality Block 9/167.iv.Permanent injunction restraining the defendants by themselves from interfering with plaintiff’s quiet possession on Kisumu/Municipality Block 9/167.v.General Damages to land.vi.Any other and further remedy the court may find just to provide.vii.Costs of the suit. 27.(i)The Appellants as defendant before the trial court file their statement of defence, in which they pleaded the subdivision of Kisumu Block 9/127 is an irregular and illegal annexation of a portion of parcel known as Kisumu/Municipality Block 9/22 owned by the 2nd Defendant; and that the suit property forms part of grabbed parcels of public land that the 2nd Defendant was reclaiming and that any purchase/acquisition of the suit property was acquired either through fraud, and illegal unprocedurally or through a corrupt scheme.ii.The Defendant further pleaded that the mother title to the suit property had not been subdivided and was intact hence the subdivision could not legally exist.iii.In their counter-claim, the Defendants sought for cancellation of the title of Kisumu/Municipality Block 9/167 as the same was an illegal subdivision of public land wrongful alienated against the provisions of section 3, 9, 13 and 14 of Governments Lands Act.iv.The counter-claimers sought for a host of remedies against the Plaintiff including rectification of the register by cancellation of the title to the suit property, a permanent injunction. 28.The plaintiff now respondent testified as P.W.1, his testimony appearing at pages 33-35 of the Record of Appeal. He testified and produced a map showing the area of the suit property, a document showing Amendment to the Registry map, consent to transfer and allotment letter dated 10th January 1997, copy of lease, copy of certificate of lease and a copy of green card. 29.Court order in Kisumu HCCC No. 30/1997, in his judgment, the learned trial magistrate in answer to issue No. 1, to wit whom between the parties is the Bonafide owner of the suit land found stated interalia “The Superior court found in favour of Mr. Mageka. Our constitution, provides for the hierarchy of the Kenyan court system, and hence the binding nature of the court’s decisions. Needless to say, that decisions of ownership of the suit land was decided and settled by the Superior court’s decision and is binding on this court. This court found that the plaintiff bought the suit land from Mr. Mageka….” 30.I find no fault in the finding by the Learned Trial Magistrate that the decision of the ownership of the suit property had been settled by the Superior court being the High Court, in its decision in HCCC No. 30/1997 which decision bound the trial court. 31.The reasoning of the learned magistrate is in tandem with the provisions of sections 43 of the Evidence Act which provides interalia that; “The existence of any judgment, order, or decree which by law prevents any court from taking cognisance of a suit, or holding a trial may be proved when the question is whether such court ought to take cognisance of such suit or hold such trial.” 32.Upon review of the defendant’s defence and counter-claim found that the defendant had not discharged its burden of fact to prove the fraud, no witness was called from the National Land Commission or the District Land Registry so as to rebut the evidence by the plaintiff, this clearly shows that the trial court gave consideration to the Defence and Counter-claim, contrary to the grounds of Appeal raised by the Appellant. 33.I have reviewed the record of Appeal, the plaintiff now respondent testified as the only witness for the plaintiff’s case, while for the defence case only the 1st Appellant testified. 34.Whereas the Defence and counter-claim pleaded the illegal acquisition suit property, the testimony of the 1st Appellant as the Defendants sole witness appearing at pages 47 to 53 of the Record of Appeal, did not lead any evidence of the illegal acquisition of the suit property by the plaintiff. There were correspondences dated 1960 between the Commissioner of lands and Director of Survey, as well as the Registrar of titles relating to issuance of new grants; and deed plans for a new grant. The evidence of the Director of Survey and Land Registrar would have been crucial in filing in the gaps left in evidence by D.W.1 on whether the suit property was a public land, or illegally changed character. 35.In contrast the Plaintiff, produced an Amended RIM to show that subdivisions of properties in Block 9, and specifically for Block 9/167 which was done in 1996. 36.The Respondent have cited the decision in Kisumu Environment and land Petition Number E003/2020, Rado Development Co. Ltd v The County Government of Kisumu, which decision dealt with parcel Kisumu/Municipality Block 9/111 within the same Block 9 and the same public notice dated 9th December 2020, where the court quashed the said public Notice dated 9th December 2020 in its judgment delivered on 30th Day of December 2025. 37.Thus, the legality or otherwise of the Notice dated 9th December 2020 having been considered and quashed in Kisumu ELC No. E003/2020, which said Notice was the basis of the Appellant’s Defence and Counter-claim before the trial court, the court makes the finding that the Appellant did not proof its counter-claim before the trial court, based on insufficient evidence of proof that the suit property was public land even though this had been pleaded. 38.This court finds equally that on a balance of probability the Respondent as plaintiff before the trial court proved his claim, with regard to the illegality of the Notice dated 9th December 2020 while the Defence and Counter-claim were not proven. 39.Thus, in answer to issue No. 1 the court finds that having failed to proof its counter-claim before the trial court, the Appeal herein is without merits. 40.Having found the Appeal to be without merit, the natural consequence would be to dismiss the same. 41.Costs of Appeal as well as the suit before the trial court and counter-claim shall be borne by the Appellant. 42.Judgment accordingly. DATED AT KILGORIS THIS 8TH DAY OF JUNE 2026HON. M.N. MWANYALEJUDGEIn the presence ofCA – Sylvia/ClaraMr. Rubia for Mr. Mongeri for AppellantMr. Wasilwa for the Respondent