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Court of AppealPartially AllowedNot stated in the judgment

Gachogu & another v Safaricom Company Limited & 2 others (Civil Appeal E063 of 2023) [2026] KECA 306 (KLR)

Court of Appeal
20 February 2026
9,550 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cancelled a fraudulently obtained joint land title but threw out refund and company-management orders that were never asked for in the pleadings.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Malindi against the judgment of the Environment and Land Court delivered on 15th February 2023, which cancelled the title of the 1st Appellant and a deceased co-owner to land known as Mombasa/MN/Thathini/112 and ordered rectification of the register in favour of Thathini Development Company Limited. The company had sued on the footing that the 1st Appellant and the deceased co-owner, then directors and shareholders, fraudulently transferred to themselves 75.37 acres although the 1st Appellant held only 61 shares entitling him to about one acre, without any AGM, board resolution or supporting documentation. The appeal also challenged orders for refund of rental income from Safaricom and directives on the company's corporate governance. The Court, in a unanimous judgment, dismissed the challenge to the cancellation of title: fraud and irregularity were proved to the elevated standard required, the indefeasibility of title yielding to section 26(1) of the Land Registration Act. It held that the property, registered in joint names with no severance, was held in joint tenancy; on the co-owner's death his interest vested in the 1st Appellant by jus accrescendi, so judgment against him alone was proper and the deceased was never in the suit. However, the Court set aside the refund order and the corporate directives as relief neither pleaded nor prayed for, confining judgment to issues flowing from the pleadings. The appeal partially succeeded, with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge wrongly issued findings, and adverse orders against the deceased co-owner without substitution of a legal representative, and whether such proceedings were a nullity for violating Order 24 of the Civil Procedure Rules and the right to a fair hearing
  2. 2.Whether the trial court misdirected itself in law by ordering only the 1st Appellant to surrender the original title deed despite the subject property being jointly owned thereby issuing an order incapable of lawful execution
  3. 3.Whether the 1st Respondent failed to prove fraud to the strict standard required in law
  4. 4.Whether the trial court wrongly ordered the 1st Appellant to refund monies allegedly received from the 2nd Respondent
  5. 5.Whether the learned Judge relied on extraneous and unpleaded matters in issuing the orders for refund and directions for the holding of AGMs by the 1st Respondent

Key legal issues

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01

Proceedings against a deceased co-owner without substitution

Holding

Ground fails; the suit had been withdrawn against the deceased and the amended plaint struck out his name, so no adverse proceedings were conducted against the deceased. Further, by jus accrescendi his interest vested in the surviving joint tenant.

Reasoning

The deceased died on 5th July 2009. The substitution application was withdrawn by consent in 2015 and counsel formally withdrew the suit against the deceased in 2017; the amended plaint removed him. The property was registered in joint names with no severance, so the deceased's interest passed to the 1st Appellant by survivorship, making it proper for judgment to be entered against him alone.

p. 11
02

Order for surrender of jointly-held title by one proprietor only

Holding

Order sustainable; no severance of joint tenancy was shown, so the deceased's interest had vested in the 1st Appellant, who became sole owner

Reasoning

The title did not disclose whether the co-ownership was joint tenancy or tenancy in common; in the absence of a contrary entry, the presumption is joint tenancy. Joint tenancy carries the right of survivorship (jus accrescendi) under section 91(4)(b) of the Land Registration Act. The appellant did not demonstrate severance or an exclusive interest.

p. 14
03

Proof of fraud and indefeasibility of title

Holding

Fraud and irregularity proved to the required standard; title properly cancelled

Reasoning

Section 26(1) of the Land Registration Act permits challenge on grounds of fraud, misrepresentation or illegal/unprocedural acquisition. The 1st Appellant admitted holding only 61 shares entitling him to about one acre, yet allocated 75.37 acres to himself and the deceased without any AGM, board resolution, minutes or CR12. His explanation of root of title was wanting, satisfying the elevated standard of proof for fraud.

p. 16
04

Refund of rental income

Holding

Order set aside; relief not pleaded

Reasoning

The amended plaint sought cancellation of title, rectification, damages for trespass and costs, but nowhere pleaded restitution of rental proceeds. A court cannot grant a remedy not specifically pleaded or prayed for; issues flow from the pleadings. The trial court therefore exceeded its mandate in ordering a refund.

p. 16
05

Corporate management directives

Holding

Orders set aside; extraneous and unpleaded matters

Reasoning

The orders requiring the convening of an AGM, elections of directors, filing of annual returns and renegotiation of the lease were not pleaded and concerned the internal affairs of the company, beyond the trial court's jurisdiction in the suit before it.

p. 17

Legal principles established

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  • A first appeal is a rehearing and the appellate court must re-evaluate the evidence and reach its own conclusions while allowing for the fact that it did not see or hear the witnesses
  • A property registered in more than one name, absent a contrary register entry, is deemed held in joint tenancy; on the death of a joint tenant the interest vests in the survivor by jus accrescendi and does not form part of the deceased's estate
  • Indefeasibility of title is not absolute; where a registered proprietor's root of title is under challenge, the proprietor must prove the legality of the acquisition
  • Allegations of fraud must be strictly proved to a standard higher than the balance of probabilities, though below proof beyond reasonable doubt
  • A court may only pronounce judgment on issues arising from the pleadings and cannot grant relief not pleaded or prayed for

Court orders

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  1. 1.Appeal allowed in part; orders for cancellation of title and rectification of the register in favour of the 1st Respondent affirmed
  2. 2.Orders c), e) and f) of the trial court's final orders (refund of rental income and the corporate directives) set aside
  3. 3.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
Environment and Land Court
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction; the judgment does not cite a specific constitutional or statutory provision

Relief refused

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Setting aside the cancellation of title and rectification of the register

Fraud and irregularity were proved; the 1st Appellant's root of title was defective

p. 16

Refund of rental income received from the 2nd Respondent

Relief neither pleaded nor prayed for; issues must flow from the pleadings

p. 16

Directions for convening an AGM, elections of directors, filing of annual returns and renewal of the 2nd Respondent's lease

Extraneous matters not within the remit of the trial court

p. 16

Costs

Each party shall bear its own costs, the appeal having partially succeeded

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

an appeal of this nature amounts to a rehearing, and the appellate court must reconsider the evidence, evaluate it afresh, and draw its own conclusions, while making due allowance for the fact that it did not observe the witnesses firsthand.
p. 10Nature of a first appeal
When a property is registered in more than one name, in the absence of a contrary entry in the register, the property is deemed to be held in joint tenancy and not tenancy-in-common or tenancy in entirety.
p. 12Presumption of joint tenancy
Upon his death, on 5th July 2009, the deceased co owner’s entire interest in the subject property automatically vested in the 1st Appellant by operation of law, with the result that he became the sole owner of the whole interest of the subject property.
p. 14Right of survivorship (jus accrescendi)
sanctity of title was never intended or understood to be a vehicle for fraud and illegalities or an avenue for unjust enrichment
p. 15Limits of indefeasibility of title
Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.
p. 15Standard of proof for fraud
It is a cardinal rule of pleadings that issues for determination fiow from the pleadings and a court may only pronounce judgment on the issues arising from the pleadings.
p. 16Judgment confined to pleadings
In sum, the appeal partially succeeds in that, the orders for cancellation of title and rectification of the register in favour of the 1st Respondent be and are hereby afirmed, while the orders relating to refund of rental income and the corporate directives are hereby set aside. In view of the appeal having partially succeeded, each party shall bear its own costs.
p. 17Final orders and disposition

Issues in the judgment

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material

Block quotation at paragraph 68, presented as part of this Court's reasoning, inexplicably refers to 'Mr. Felicien Kabuga' and 'the appellant' as disputing parties, names foreign to this suit, indicating the passage was imported verbatim from a different judgment

minor

Paragraph numbering is defective: paragraph 47 is absent from the record of counsel submissions and the number 74 is used twice for separate passages on survivorship and on the sanctity of title

minor

The 2nd Respondent is inconsistently described: the plaint seeks to compel 'the 2nd respondent to enter into a fresh lease' yet the plaint also names it as Safaricom Company Limited while trial court order (f) refers to it as 'the 3rd Defendant herein'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gachogu & another v Safaricom Company Limited & 2 others (Civil Appeal E063 of 2023) [2026] KECA 306 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/306/eng@2026-02-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.