DM v Okhako ((Suing in His Capacity as the Personal Representative of the Estate of Fibi Nasio Okhako)) (Environment and Land Appeal E018 of 2022) [2025] KEELC 2899 (KLR)
The bottom line
#The ELC Kakamega cancelled a registered land title because the seller had no legal right to sell, even though fraud itself was never proved.
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 consent judgment entered in Kakamega HCC No. 163 of 2009 on 3rd August 2010 conferred proprietary interest in the suit property to Fibi.
- 2.Whether fraud was proved as against the appellant in the transfer of the suit property into his name.
- 3.Whether the appellant bore the burden of proving that the transfer of the suit property from the late Jackson to his name met the legal threshold set out in section 26 of the Land Registration Act, and if yes, whether indeed that threshold was met.
- 4.What orders should this court make in the circumstances of this case.
Key legal issues
#Effect of the consent judgment in Kakamega HCC No. 163 of 2009 on the suit property
The consent judgment, adopting the D.O's report, conclusively determined that Fibi was entitled to a parcel of land registered in her own name, distinct from the second family's land; that proprietary right survived her death and vested in her estate.
The D.O's report, adopted as judgment without reservation, required the late Jackson to give Fibi land registered in her name. Though the specific parcel was not named, parcel 533 was subdivided during the suit, and the portion where Fibi lived (about 1.5 acres) was discernibly meant for her. The judgment remained valid, never having been stayed, reviewed or set aside, and bound both parties.
Whether fraud was proved against the appellant
No. None of the pleaded particulars of fraud was proved; the trial court erred in finding the claim of fraudulent transfer 'not far-fetched' without proof of specific pleaded particulars, and in placing the evidentiary burden of disproving fraud on the appellant.
Under sections 107 and 109 of the Evidence Act, the party alleging fraud bears the burden of proving it. The respondent alleged fraud but proved none of the particulars. Some alleged acts, such as forcible detainer, could not amount to fraud. Parties are bound by their pleadings, and the trial court's inference of fraud was erroneous.
Whether the appellant's acquisition met the section 26 threshold of the Land Registration Act
No. The late Jackson held the suit property in trust for Fibi following the consent judgment and had no proprietary interest capable of transfer; the transfer to the appellant was unlawful for want of capacity on the transferor's part.
Although the appellant is the registered proprietor and fraud was not proved, the legality of his acquisition was contested. Under section 26, title is impeachable where acquired illegally or unprocedurally. Since the consent judgment entitled Fibi to the land, the late Jackson had no land to transfer; the appellant's registration was therefore unlawful and liable to cancellation, with the respondent to be registered as administrator of Fibi's estate.
Whether the trial court erred in ignoring the appellant's consolidated suit (counterclaim)
Yes. The trial court's failure to consider the appellant's consolidated claim was an error of law, but the counterclaim still failed on its merits.
Two suits were consolidated with the appellant's suit becoming the counterclaim. The trial court considered only the respondent's suit and ignored the counterclaim, which was an error of law. The appellate court nonetheless found the appellant failed to prove his counterclaim and dismissed it, while substituting the trial judgment with orders allowing the respondent's claim.
Legal principles established
#- A consent judgment adopted by a court, not having been stayed, reviewed or set aside, is a conclusive determination binding on the parties.
- Where the root of a registered proprietor's title is challenged, the proprietor must prove the legality of how the title was acquired; it is not enough to dangle the title instrument.
- Fraud must be strictly proved by the party alleging it, to a standard above balance of probabilities but below beyond reasonable doubt; it cannot be presumed.
- A transfer by a person without proprietary interest in land is unlawful for want of capacity and does not confer a valid title under section 26 of the Land Registration Act.
Court orders
#- 1.The appellant's counterclaim (Kakamega ELC Case No. 81 of 2017, later Butere SPMC ELC Case No. 38 of 2019) is dismissed.
- 2.The respondent's claim (Kakamega ELC 53 of 2017, later Butere SPMC ELC Case No. 63 of 2018) is allowed.
- 3.The registration of DM as proprietor of parcel Marama/Shibembe/1427 is cancelled and the title held by DM is declared null and void.
- 4.The Land Registrar Kakamega is directed to register John Otieno Okhako as proprietor of parcel Marama/Shibembe/1427 and issue him a title deed.
- 5.The appellant is ordered to vacate parcel Marama/Shibembe/1427 within 90 days from the date of judgment, and in default eviction to issue.
- 6.Each party shall bear its own costs of the appeal as well as the costs in the court below.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court, Butere
- Butere CMCC ELC No. 63 of 2018 (formerly Kakamega ELC No. 53 of 2017)
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya (Environment and Land Court jurisdiction); appellate powers under Section 78 of the Civil Procedure Act
- Consolidated with
- Kakamega ELC Case No. 81 of 2017 (registered as Butere SPMC ELC Case No. 38 of 2019)
Relief refused
#Appellant's counterclaim for eviction of the respondent from Marama/Shibembe/1427
The appellant failed to prove his counterclaim; his title acquisition did not meet the threshold of section 26 of the Land Registration Act as the transferor had no proprietary interest capable of transfer.
Setting aside of the trial judgment as sought by the appellant
The trial court's errors (failure to consider the counterclaim, erroneous fraud findings) were corrected by substitution with orders still favouring the respondent; the appeal only succeeded on discrete findings, not the ultimate outcome.
Costs
Each party to bear its own costs of the appeal as well as the costs in the court 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.
a. The appellant's counterclaim as filed in Kakamega ELC Case No. 81 of 2017 and later transferred to Butere SPM's court as Butere SPMC ELC Case No. 38 of 2019 is hereby dismissed.
The registration of DM as proprietor of the parcel of land known as Marama/Shibembe/1427 is hereby cancelled. The title held by DM in regard to the said parcel of land is declared as null and void.
The appellant is ordered to vacate the Parcel of land known as Marama/Shibembe/1427 in 90 days from the date of this judgment, and in default eviction to issue.
I order that each party shall bear its own costs of this appeal as well as the costs in the court below.
A court's judgment which has not been stayed, reviewed or set aside, is a conclusive determination of the rights of parties regarding the questions which had been in controversy between them.
Fraud must be clearly proved by cogent evidence and cannot be presumed. It is either there is fraud or there is no fraud. There can be no middle ground, assumption or presumption.
it is not enough to have title to land, where legality of acquisition of title is contested, the title holder is obligated to demonstrate that they acquired their title lawfully.
Issues in the judgment
#The judgment identifies the transfer of parcel 1427 to the appellant inconsistently, giving both 6th October 2016 and 3rd December 2016 as registration dates.
The respondent's relief as pleaded sought fresh title in the respondent's own name (John Otieno Okhako), while the trial court ordered reissue of title in the name of the deceased, yet the appellate court's final orders mirror the pleaded relief; the memorandum of appeal also mislabels grounds relating to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DM v Okhako ((Suing in His Capacity as the Personal Representative of the Estate of Fibi Nasio Okhako)) (Environment and Land Appeal E018 of 2022) [2025] KEELC 2899 (KLR)", Case Analysis (2025). ELC Appeal (Kakamega) – appeal against judgment in Butere PM ELC No. 63 of 2018 (consolidated with Butere SPMC ELC Case No. 38 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2899/eng@2025-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.