CKK v EJM (Civil Appeal 95 of 2018) [2021] KECA 147 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that holding a title deed is not enough; a landowner must prove how the title was validly acquired.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The proprietorship of land parcel Nandi/Kokwet/xxx
- 2.The relationship between the appellant and Khadija (Hadija)
- 3.Whether the respondent is entitled to the whole of land parcel number Nandi/Kokwet/xxx by virtue of woman to woman marriage
- 4.Whether Khadija held any proprietorship interest over land parcel number Nandi/Kokwet/xxx
Key legal issues
#Scope of the Court of Appeal's mandate on a second appeal
The Court confines itself to matters of law only on a second appeal.
The Court invoked its long-standing second-appeal jurisprudence, holding that only questions of law fall for determination unless the courts below considered matters they should not have, omitted matters they should have considered, or the entire decision is perverse. The Court accordingly addressed the four condensed issues as matters of law arising from the concurrent findings below.
Proprietorship of the suit property and the burden on a registered proprietor whose root of title is challenged
The appellant, as registered proprietor, was obliged to demonstrate the legality and procedurality of the transmission of title from the original owner KAS to himself; his failure meant the concurrent findings that the property belonged to Khadija and passed to the respondent stood.
The green card showed the register opened in 1968 in the name of KAS and the title only changing to the appellant in 2010, with an indication he was also known as KAS. The appellant's pleadings and evidence were silent on who KAS was to him and how title was transmitted. Relying on the position in Monyi Maina, the Court held that dangling the title instrument was insufficient against the respondent's implied attack on the root of title.
The woman to woman marriage between Khadija and the respondent and its proprietary consequences
The woman to woman marriage under Nandi customary law was proved to the required threshold, and the respondent and the children of that union were the rightful owners of the suit property as legitimate successors in title to Khadija.
The marriage was proved through unchallenged oral testimony and documentary exhibits, including evidence of dowry payment corroborated by the respondent's uncle and the village elder. Khadija was shown to be the appellant's mother's sister who inherited the suit property as her share of family land. The Court found the customary woman to woman marriage legally recognized and sustained the respondent's entitlement.
Legal principles established
#- On a second appeal, the Court of Appeal confines itself to matters of law only, unless it is demonstrated that the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- Where a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title; the proprietor must prove the legality and procedurality of the acquisition of title.
- A registered proprietor confronted with an attack on how he came to be registered must demonstrate the procedurality and legality of the transmission of title from the original owner to himself.
- A woman to woman marriage under Nandi customary law is legally recognized and a spouse settled on land under such marriage acquires beneficial and overriding interests in the land, binding subsequent registered proprietors.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal and of the two courts below are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Eldoret
- ELC Civil Appeal No. 1 of 2015
- Jurisdiction invoked
- Second appeal to the Court of Appeal under its appellate jurisdiction (matters of law only) from the Environment and Land Court; no specific provision quoted in the judgment.
Relief refused
#The appellant's prayer to overturn the concurrent findings of the two courts below and have all proprietary interest in the suit property vested in the registered proprietors
The appellant failed to demonstrate the legality and procedurality of the transmission of title from the original registered owner KAS to himself; the woman to woman marriage was proved and the concurrent findings were sound
Costs
The appeal is dismissed with costs to the respondent both on appeal and in the two courts below.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
on a second appeal, the Court confines itself to matters of law only, unless it is demonstrated suficiently that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse
where proprietorship to land is under attack, it is not suficient for a party to dangle the instrument of registration as proof. One has to go further and demonstrate the legality of the title
it was imperative upon the appellant when confronted with the respondent’s implied attack on how he came to be registered as an owner of the suit property, to demonstrate the procedurality and the legality of the transmission of the title from the original owner to himself, which in our view and as correctly contended by the respondent in her submissions was lacking
The customary woman to woman marriage being legally recognized, I do find that the respondent established that she had beneficial interest in the said property as the spouse to Hadija who had settled her on the disputed parcel of land
We therefore find no merit in the appeal. It is accordingly dismissed with costs to the respondent both on appeal and the two courts below.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwangashi v Republic (Criminal Appeal E009 of 2024) [2026] KECA 58 (KLR)[2026] KECA 58 (KLR)30 Jan 2026followed
- Omar alias Kiponda v Republic (Criminal Appeal E062 of 2023) [2025] KECA 2077 (KLR)[2025] KECA 2077 (KLR)5 Dec 2025followed
Cite this brief
#Cite this brief
Caselaw, "CKK v EJM (Civil Appeal 95 of 2018) [2021] KECA 147 (KLR)", Case Analysis (2021). Second Appeal from ELC Civil Appeal No. 1 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/147/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.