Ominde v Andayi & another (Civil Appeal 42 of 2019) [2026] KECA 1509 (KLR)
The bottom line
#A Kenyan title deed alone cannot evict family members who have farmed and lived on the land for decades, the Court of Appeal has confirmed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant sufficiently established that the respondents were in unlawful occupation of the suit property (the principal issue framed by the Court).
- 2.Whether the respondents held a beneficial interest or customary trust in the suit property capable of overriding the appellant's registered title.
- 3.Whether the learned Judge erred in determining issues that had not been pleaded or canvassed, in attributing liability on the basis of a non-party's actions, and in upholding the respondents' case despite alleged pleading deficiencies (the appellant's grounds of appeal).
Key legal issues
#Whether the appellant proved that the respondents were in unlawful occupation of the suit property so as to justify eviction.
No. The appellant failed to prove unlawful occupation or entitlement to eviction; the respondents' occupation was referable to their status as family of the original proprietor, Paul Nduswe, and their decades-long occupation of the land.
Evaluating the evidence afresh as a first appellate court, the Court noted that the respondents consistently traced the suit property to the original parcel registered in the name of Paul Nduswe. The 1st respondent testified she entered the land in 1955 upon marriage; the 2nd respondent occupied a portion through inheritance. The appellant never disputed their relationship to Paul Nduswe nor their decades of occupation, and documents evidencing an intended subdivision into two equal portions along the existing physical boundary supported their claim to a share. They therefore could not be characterized as trespassers.
Whether the appellant's registered title extinguished the respondents' beneficial interest in the suit property.
No. Registration does not invariably extinguish pre-existing beneficial interests; this was a case of customary trust, which subsists as an overriding interest notwithstanding registration.
The Court held that heavy reliance on the title deed did not answer the central question, namely whether the respondents had a legitimate claim or interest in the land. The evidence established a longstanding beneficial interest arising from the respondents' familial connection to the original proprietor and their uninterrupted occupation over many decades. On the authority of the Supreme Court's decision in Kiebia v M'lintari, customary trusts subsist notwithstanding registration of title in another person's name, sustaining the finding that the appellant's title was acquired without regard to that interest.
Who bore the burden of proof in the eviction suit and to what standard.
The burden lay squarely on the appellant to prove, on a balance of probabilities, both his entitlement to the suit property and that the respondents occupied it without any lawful or recognizable interest.
The appellant's suit was straightforward: eviction of persons alleged to have entered and occupied the land unlawfully. Because he asserted the respondents were trespassers, the burden rested on him to establish not only his title but the absence of any lawful or recognizable interest on the respondents' part. Having failed to discharge that burden - the respondents' occupation being grounded in family connection and long occupation - the suit could not succeed and the trial court correctly dismissed it.
Whether the learned Judge erred in finding that the root and legality of the appellant's title had not been demonstrated.
No. The Judge correctly found that the appellant's title was acquired in circumstances that failed to take into account the respondents' existing beneficial interest.
The Court declined to fault the Judge's finding on the legality of the title. The green card evidence showed the suit property originated from the original parcel registered to Paul Nduswe, and applications for Land Control Board consent to subdivide that parcel into two equal portions, corresponding with the physical boundary between the two households, were never actualized because the appellant's father refused to sign the transfer documents. The transfer of the whole property to the appellant therefore occurred despite the respondents' outstanding beneficial interest.
What is the mandate of a first appellate court on questions of fact.
A first appeal is by way of retrial: the appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
The Court adopted the classic statement in Selle v Associated Motor Boat Co. Ltd, restating that a first appellate court is not bound necessarily to follow the trial judge's findings of fact where he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or where impressions based on the demeanor of a witness are inconsistent with the evidence generally. The Court then exercised that mandate by independently evaluating the viva voce and documentary evidence before reaching its own conclusions.
Legal principles established
#- A plaintiff seeking eviction bears the burden of proving, on a balance of probabilities, both entitlement to the land and that the occupier holds no lawful or recognizable interest in it.
- Registration of title does not invariably extinguish pre-existing beneficial interests; such interests, including customary trusts, are recognized by law and subsist as overriding interests notwithstanding registration of title in another person's name.
- On a first appeal the appellate court must reconsider and evaluate the evidence itself and draw its own conclusions, making due allowance for not having seen or heard the witnesses, and is not bound necessarily to follow the trial judge's findings of fact where these fail to take account of particular circumstances or probabilities.
Court orders
#- 1.The appeal against the 1st respondent was marked as abated pursuant to Rule 102(2) of the Court of Appeal Rules following her death before the plenary hearing.
- 2.The appeal is dismissed with costs to the 2nd respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Kakamega
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court; no constitutional or statutory provision is expressly invoked. The Court describes its mandate as 'a first appellate court' applying the Selle retrial principles, and applied Rule 102(2) of the Court of Appeal Rules in marking the appeal against the deceased 1st respondent as abated.
Relief refused
#Eviction of the respondents from land parcel Butsotso/Bukura/1279
The appellant failed to prove that the respondents were unlawfully occupying the suit property or that he was entitled to the eviction orders sought; their occupation was grounded in a longstanding beneficial interest arising from their familial connection to the original proprietor.
Allowance of the appeal and setting aside of the High Court judgment dismissing the suit
The Court found the appeal had no merit and that the learned Judge had properly evaluated the evidence and correctly dismissed the suit.
Costs
The appeal was dismissed with costs to the 2nd respondent (the Court's exact words: 'It is hereby dismissed with costs to the 2nd respondent.'). No order was made as to the costs of the abated appeal against the 1st respondent, and no order that each party bear their own costs was made.
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.
In the circumstances, we are satisfied that the appeal before us has no merit. It is hereby dismissed with costs to the 2nd respondent.
We are mindful that registration of title does not invariably extinguish pre-existing beneficial interests in land. As the courts have repeatedly held, such interests are recognized by law and are capable of subsisting as overriding interests notwithstanding registration of title in another person's name.
This was clearly a case where customary trust exists. See the decision of the Supreme Court in Kiebia v M’lintari & another [2018] KESC 22 (KLR)).
The burden therefore lay squarely upon him to establish, on a balance of probabilities, not only his entitlement to the suit property, but also that the respondents were trespassers or were otherwise occupying the suit property without any lawful or recognizable interest.
In light of that evidence, we are unable to agree with the appellant's assertion that the respondents were mere trespassers whose occupation of the suit property was unlawful.
The learned Judge cannot therefore be faulted for finding that the appellant's title was acquired in circumstances that failed to take into account the respondents' existing beneficial interest in the suit property.
the principal issue that falls for determination by this Court is whether the appellant suficiently established that the respondents were in unlawful occupation of the suit property
Issues in the judgment
#The judgment states inconsistent registered proprietors for the original parcel No. Butsotso/Bukura/104: it is described as 'hived ofi from the original parcel No. Butsotso/Bukura/104, registered in the name of one Omwisho Nduswe Wetumbire', yet elsewhere the Court records that the suit property 'traces its origin to parcel No. Butsotso/Bukura/104, which was registered in the name of Paul Nduswe', and the 2nd respondent's submissions state it 'was a sub-division of Parcel No. Butsotso/Bukura/104, which was registered in favour of his father, Paul Nduswe'. The discrepancy does not affect the Court's finding that the respondents descend from and occupy the land of the original proprietor.
The certified copy does not state the Court of Appeal appeal number, the parties' names, or a neutral citation; the parties are referred to throughout only as 'the appellant' and 'the respondents', so caseTitle, caseNumber and party names cannot be populated from the judgment itself.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ominde v Andayi & another (Civil Appeal 42 of 2019) [2026] KECA 1509 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1509/eng@2026-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.