https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3284

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT HOMABAY ELCLA No. E055 OF 2024** **WILLIAM ANGONGA OGALO (Suing** **as a legal representative of the estate of** **ABISALOM ANGINGA OMBOK) …………….….………………APPELLANT VERSUS** **LAZARO OUMA CHIKA………………………………….…1ST RESPONDENT** **REGISTRAR OF LANDS, KOSELE REGISTRY………..2ND RESPONDENT** **JUDGMENT** **(Being an Appeal from the judgment of the Senior Magistrate Court at Oyugis Hon. S. O. Ongeri delivered on 23rd October, 2024 in Oyugis SPMELC Case No. E014 OF 2020)** **INTRODUCTION** 1. This is an appeal arising from the judgment of Honourable S.O. Ongeri Senior Principal Magistrate delivered on 23rd October, 2024 in Oyugis ELC NO. E014 of 2020. 2. The Appellant filed a Memorandum of Appeal dated 14th November, 2024 appealing against the said judgment on the following grounds: - 3. **The Learned Trial Magistrate erred in both Law and in fact by dismissing the appellant’s suit without considering in totality the evidence adduced by the appellant herein.** 4. **The Learned Trial Magistrate herein correctly affirmed that the sale agreement and title deed had not been challenged but in the process of delivery its judgment erred in law and fact in finding that the appellant herein had not proven the elements of fraud.** 5. **The Learned Trial Magistrate court erred in law and in fact in failing to recognize the legitimacy of the plaintiff's title which can be traced from the sale agreement which was neither challenged nor questioned in the cause of the trial’s courts proceedings.** 6. **The Learned Trial Magistrate failed to properly interpret that the appellant herein being a purchaser for value had proven his case against the respondent and proven that his title herein was valid hence the same should be awarded to him as prayed for in the amended plaint.** 7. **The Learned Trial Magistrate court erred in law and fact in affirming that the allegation of fraud by the appellant were not proved and yet the land registrar who was called before this court to verify the validity of the titles herein could not clearly explain how the plaintiff's tittle deed was issued given chat the Respondent was never issued a tittle deed as per the green card.** 8. **Furthermore, The Learned Trial Magistrate erred in law and fact for failing to appreciate that the transaction captured in the green card under entry 3 conferring title to the respondent herein was fraudulent and illegal against the evidence adduced by the respondent, which shows that the alleged grant was confirmed sometime in the year 2020 and yet the transfer was done in October 2019 before the court orders were issued.** 9. **The Learned Trial Magistrate erred in law and fact for failing to find that the green card, which he terms as the primary evidence, is marred with illegalities and fraud as the court order conferring title to the respondent on account of being the legal representative of the estate of William Chika Oyugi was issued six months after registration of the respondent and no explanation was issued as to how the restriction that had been entered terming the green card to be fraudulently opened . In giving legality to the 1st Respondent title.** 10. **The Learned Trial Magistrate erred in law and fact when he summoned the land registrar who by all indication failed to produce the entire parcel file and instead adduced evidence in support of the defendants claim in relation to succession, which as stated earlier was concluded after registration, and yet the court had the discretionary power to inquire on the entire parcel file despite the Appellant having indicated to the Learned Trial Magistrate that there were consents for transfer which the Appellant received after close of pleadings and the application to allow them was rejected by the Court despite knowing that it would have helped in reaching a just decision.** 11. **The Learned Trial Magistrate erred in law and in fact when he ignored the restriction entered in the green card suggesting that the green card herein was suspected of fraud and further failed to interrogate the land registrar on how the restriction was removed to effect a valid transfer.** 12. **The Learned Trial Magistrate cleverly ignored the fact that default judgment was entered against the land registrar and the attorney general who would have come and defended the said allegation as captured in the amended plaint.** 13. The Appellant sought for orders allowing the appeal and setting aside of the trial magistrate’s judgment dated 23rd October, 2024. He urged the court to enter judgment in favour of the Appellant as per the amended plaint. The Appellant also sought for costs of the Appeal. **BRIEF FACTS** 1. The Appellant had filed a case against the Respondents vide an Amended Plaint dated 21st December, 2022. He sought for the following orders against the Respondents: 2. *A declaration that the registration of land title deed number CENTRAL KASIPUL/KAMUMA/1590 to the 1st Defendant is fraudulent, illegal, null and void ab initio.* 3. *A declaration that the Plaintiff is the bona fide owner of Land parcel number CENTRAL KASIPUL/KAMUMA/1590.* 4. *An order directed to the 2nd Defendant to cancel the registration of the 1st Defendant as the registered proprietor and replace the name of the Plaintiff in the register as the legal proprietor of land parcel Number CENTRAL KASIPUL/KAMUMA/1590.* 5. *Costs of this suit and the interest thereon as from the date of filing of suit till payment in full.* 6. The 1st Defendant entered Appearance and filed a Statement of Defence in which he denied the averments in the Plaint. The 1st Respondent denied the allegations in the Amended Plaint vide his Statement of Defence dated 25th November, 2020. He prayed for dismissal of the suit, the costs of thereof and interest thereon. 7. The matter was heard and the trial magistrate found that the Plaintiff/Appellant had not proved his case on a balance of probabilities against the Defendants/Respondents. He dismissed the Plaintiffs case with no orders as to costs. 8. The Appellant being dissatisfied with the judgment filed the present appeal which was canvassed by way of written submissions. **Submissions** 1. Counsel for the Appellant filed his submissions dated 20th March, 2025 where he identified two issues for determination; 2. **Whether the Appellant herein has a legitimate title warranting protection by this court.** 3. **Whether the Appellant herein had proven elements of fraud.** 4. On the first issue, it was counsel’s submission that the Appellant asserted his claim of ownership on the suit parcel based on a purchase made on 16th December, 1981, from the then-registered owner, William Chika Oyugi. 5. It was his submission that the Appellant fulfilled all legal requirements for the acquisition of land, including executing a sale agreement, obtaining consent from the Land Control Board, and paying stamp duty. He relied on **Section 3(3)** of the **Law of Contract Act.** 6. He further submitted that he was the registered absolute owner by 2001, which ownership was supported by an official land search certificate and the erected houses on the suit land. He also submitted that the Appellant’s title was never challenged nor was the underlying contract invalidated prior to this suit. He relied on **Section 26** of the **Land Registration Act** 7. On the second issue, it was his submission that the 1st Respondent’s title, was irregularly and fraudulently acquired while the Appellant was away due to illness. 8. He submitted that there were glaring discrepancies in the green card which record showed a transfer to the 1st Respondent in October 2019, even though the grant for the deceased owner’s estate was not confirmed until 2020. 9. He further submitted that the letters of administration were allegedly issued six months after the 1st Respondent had already been registered as the owner. He also submitted that a previous registrar had recorded a restriction on the title stating the green card was suspected to have been fraudulently acquired. 10. He cited the case of **Mighulo V Mghalu & 5 others (Environment and Land Appeal E010 of 2023) [2024] KEELC 6330 (KLR)** and **Daudi Kiptugen Vs Commissioner of Lands Nairobi Lands & 4 others [2015] eKLR.** 11. In conclusion, he submitted that the trial court misapprehended the facts and the law by upholding the 1st Respondent's title despite evidence of procedural illegalities and suspected fraud. He urged the court to allow the appeal as prayed. 12. Con his part, learned counsel for the Respondent on the other hand filed his submissions dated 19th July, 2025. They identified the following four issues for determination: 13. **Who is the registered owner of the said parcel of land. LR NO CENTRAL/KASIPUL KAMUMA/1590.** 14. **Whether or not the 1st Respondent acquired the title by fraud** 15. **Whether or not the Trial Court reasonable exercised its judicial discretion in rejecting additional evidence** 16. **Whether or not the Appeal has merit.** 17. On the first issue, it was his submission that the Appellant failed to produce the sale agreement or any documentary evidence such as a title deed or search. He added that the 1st Respondent was the legitimate owner of the suit parcel. 18. He added that this was by the 1st Respondent’s evidence of documented chain of title, including the official certificate of search, a green card, a certificate of confirmation of a grant, and a Kenya Gazette notice to prove the same. 19. He relied on the case of **Sehmi & another V Tarabana Company Limited & 5 others KESC 21 (KLR)** which cited with approval the case of ***Dina Management Limited V County Government of Mombasa*** **& 5 Others [2021] KESC (KLR)**. He also cited **Sections 25** and **26(1) of the Land Registration Act.** 20. On the second issue, he submitted that the Appellant’s allegations of fraud were speculative since the transfer was verified by the Land Registrar following a gazetted application to which no objections were raised. 21. He further argued that the Appellant failed to provide the high level of proof required for fraud. He relied on the case of **Dr. Joseph Arap Ngok V. Justice Moijo Ole Keiwua & 5 others Civil Appeal No. Nai 60 of 1997, Christopher Ndaru Kagina V Esther Mbandi Kagina & Another [2016] eKLR and Section 107 of the Evidence Act, 2012.** 22. On the third issue, he submitted that the trial court properly exercised its discretion to ensure fairness and prevent a trial by ambush. He also submitted that the Appellant did not appeal the specific ruling on this matter delivered on 8th November, 2023, and therefore he should not be allowed to raise it now. 23. He relied on **Order 8 Rule 5 of the Civil Procedure Rules** and the case of **Independent Electoral and Boundaries Commission & Another V Stephen Mutinda Mule & 3 others (2014) eKLR**. 24. On the final issue, it was counsel’s submission that the Appellant failed to prove ownership and substantiate fraud to the required legal standard. He argued that the Appellant failed to demonstrate any error in law or fact by the Trial Magistrate. 25. In conclusion, he urged the court to dismiss the appeal with costs. **Analysis and Determination** 1. Upon consideration of the grounds of appeal, pleadings, submissions and the authorities cited, this court has condensed the 10 grounds of appeal to the following issues for determination: 2. **Whether the trial court erred in finding that fraud had not been proved** 3. **Who should bear the cost of the appeal.** 4. Being a first appeal, the court relies on a number of principles as set out in **Selle and another v. Associated Motor Boat Company Ltd and others [1968] 1 EA 123**: **“…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 ...”** 1. Further, in the case of **Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] KECA 208 (KLR)** the court held that: **“This being a first appeal, this court’s mandate is to re-evaluate, re-assess and re-analyze the record and then determine whether the conclusions reached by the learned trial magistrate are to stand or not and to give reasons either way. I also bear in mind that I have neither seen nor heard the witnesses and I will therefore give due allowance in that respect.”** 1. It was the Appellant’s case that he purchased the suit propertyCentral Kasipul/Kamuma/1590 vide a sale agreement dated 16th December, 1981, from the then registered owner, William Chika Oyugi. He claimed that he had fulfilled all the legal requirements and became the lawful owner in 2001. 2. It was his case that the 1st Respondents title was fraudulently acquired by virtue of the discrepancies. He argued that the green card showed a transfer to the 1st Respondent in October 2019, even though the grant for the deceased owner’s estate was not confirmed until 2020. The burden lay on the plaintiff to prove his case on a balance of probabilities. 3. **Section 107 of the Evidence Act** provides: **“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”** 1. **Section 109 of the same Act** provides: **“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.”** 1. It is not in dispute that the Plaintiff claimed that he was the lawful registered proprietor of the suit land. It is trite law that he who alleges must prove and therefore, the burden to prove ownership lay on him, and now as the Appellant, to successfully discharge it. 2. The Court of Appeal in **Vijay Marjario V Nansingh, Madhusingh Darbar & another [2000] eKLR** held that: **“It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleadings. The act alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.”** 1. Further, in **Civil Appeal No. 312 of 2012 Emfil Limited v Registrar of Titles Mombasa & 2 others [2014] eKLR**held as follows: **“Allegations of fraud are allegations of a serious nature normally required to be strictly pleaded and proved on a higher standard than the ordinary standard of balance of probabilities”.** 1. Turning to the evidence adduced at the trial court, from the evidence of the Plaintiff, now appellant, that the suit parcel of land was created from the subdivision of parcel No. *CENTRAL KASIPUL/KAMUMA/*558. Upon that subdivision the suit land was registered in the name of William Chika Oyugi on 01/09/1982. From then, the only next entry on the green card is the Restriction which was placed on the suit land on 20/06/2029. Thus, while the Appellant produced a title deed purportedly issued in 1982 and a Certificate of official search issued on 29/06/2001 showing that he was the registered owner of the land as of June 1982 and on 1/10/1982 a title deed was issued in his favour, first the two Exhibits do not accord with the creation of the suit parcel of land upon subdivision. This is because, the ownership could not proceed the subdivision which is shown to have taken place on 01/09/1982 yet the search showed that he was owner in June 1982. Again, there is no entry in the green card to show that the ownership by the Plaintiff was ever recorded in the register as the title deed he has in possession purported to show. In any event, it is clear that during cross-examination the Appellant confirmed that the sale agreement was not dated. He also admitted that he did not have a consent from the land control board or receipts that showed payment of stamp duty or the fees thereof. It is not clear how, although the Appellant had a title deed, it was acquired. A mere purported agreement with the owner of a parcel of land is not enough evidence of purchase and transfer of such land to him. 2. It is this court’s firm and clear unmistakable view that in as much as the Appellant claimed that he was the registered owner of the suit parcel, he failed to prove how he acquired it. 3. In **Christopher Ndaru Kagina V Esther Mbandi Kagina & Another [2016] eKLR**, the court pronounced itself as follows: **“It is trite law that he who alleges fraud must prove fraud. Allegations of fraud must strictly be proved. Great care must be taken in pleading allegations of fraud or dishonesty. In particular, the pleader needs to be sure that there is sufficient evidence to justify the allegations…”** 1. Under paragraph 14 of the Amended Plaint, the Appellant pleaded particulars of fraud on the part of the Respondents, however, no cogent evidence was led to prove the said allegations. 2. As stated above, during the hearing, the Appellant gave evidence only with regard to how he acquired the suit property but even then, it was insufficient to prove legal acquisition thereof. He did not prove the particulars fraud on the part of the Respondents as enumerated in the pleadings. Although it was not upon the 1st Respondent to disprove the Plaintiff’s claim he tendered evidence to show that he acquired the title in 2019 through succession proceedings taken out in respect of his late father’s Estate which held the suit land by virtue of him having been the registered owner all along until then. That was good and sufficient evidence to discharge the evidentiary burden that lay on his to prove. It follows that the Appellant failed to satisfy the burden of proving the fraud allegations and consequently, the trial court dismissed his suit. 3. I have perused the court record and it is not in dispute that the green card opened on 5th August, 1974 and which shows a subdivision of parcel No. 558, showed further that the 1st Defendant was the registered owner up to transfer by way of a transmission (upon succession). 4. It is this court’s view that the Appellant needed to demonstrate the root of his title which from the evidence adduced, he failed to do so. In addition, there was no evidence that he has been in possession of the suit parcel. 5. Notably, the 1st Respondent did not file any Counterclaim to warrant the trial court cancel the Plaintiff’s title deed. It is this court’s view that the Appellant’s claim that the trial magistrate erred in upholding the 1st Respondent’s title was misplaced since the trial court did not declare that the 1st Respondent title as valid. 6. It is my opinion that the suit having been filed by the Appellant, the burden lay upon him to prove his case to the required standard and not just raise allegations of fraud on the Respondents and fail to prove them. 7. It is this court’s view that the trial court based its finding on the evidence presented before it and this court agrees with the trial magistrate, that the Appellant had failed to prove the allegations of fraud on the part of the 1st Respondent thereby dismissing the suit. 8. The upshot of the foregoing is that the appeal is devoid of merit and is therefore dismissed. The suit having between relatives, each party shall bear its own costs. 9. Orders accordingly. Judgment dated, signed and delivered virtually via the Teams Platform this 08th day of May 2026. Hon. Dr. iur Nyagaka, Judge **In the presence of** Ms. Kimberly Advocate for the Appellant Kiprono Advocate for the Respondent