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ELCPartially AllowedBungoma Environment and Land Court Appeal (memorandum of appeal dated 16/12/2022) arising from Bungoma CM ELC Case No. 111 of 2019

Kalikania v Machuma (Environment and Land Appeal E033 of 2022) [2025] KEELC 4551 (KLR)

Environment and Land Court
22 May 2025
4,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Bungoma ruled that a Land Disputes Tribunal award adopted as a court judgment stays enforceable unless properly set aside.

What this practically means

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Executive summary

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The Appellant, John Wafula Kalikani, appealed against the judgment of Hon. C.A.S Mutai, P.M delivered on 1st November 2022 in Bungoma CM ELC Case No. 111 of 2019, in which the Respondent, Agineta Machuma, had obtained eviction and permanent injunction orders over land parcel West Bukusu/N.Mayanga/1206. The Appellant, representing the estate of Elizabeth Nanjala Wanyama, contended the suit was res judicata, having been determined by a Land Disputes Tribunal award adopted as judgment in Bungoma CMCC LDT No. 27 of 2009, and that the Respondent's title was fraudulently procured. The court framed three issues: res judicata, the Respondent's eviction and injunction claim, and the Appellant's counter-claim. On res judicata, the court held the parties and causes of action differed, so the doctrine did not apply. However, it found the Tribunal award, once adopted and unappealed, remained valid and enforceable notwithstanding any jurisdictional defect; the Respondent's title was therefore limited to 2 acres, with the estate entitled to 2 acres. The Appellant's occupation pursuant to that decree was not trespass, so the eviction and injunction claims failed. Fraud was not strictly proved. The court allowed the appeal with costs to the Appellant, reversing the trial court's judgment.

Questions the Court framed

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

  1. 1.Whether this suit is res judicata.
  2. 2.Whether the respondents satisfied the claim for eviction and permanent injunction.
  3. 3.Whether the appellant satisfied his counter-claim.

Key legal issues

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01

Whether the suit was res judicata given Bungoma CMCC LDT No. 27 of 2009

Holding

The suit was not res judicata because the parties differed (the Respondent sued in her own capacity, not representative) and the causes of action differed (enforcement of a land sale agreement vs trespass and fraud).

Reasoning

Applying section 7 of the Civil Procedure Act as construed by the Supreme Court in IEBC v Maina Kiai, all elements must be met conjunctively. The former suit was between Elizabeth Nanjala Wanyama and Patrick Simeon Mukuchi; the present suit is between the Appellant (representing the estate) and Agineta Machuma suing personally. The former claim concerned enforcement of a sale agreement; the present concerns trespass and fraud. The test therefore failed.

p. 5
02

Validity and effect of the Land Disputes Tribunal award adopted as judgment

Holding

The decree in Bungoma CMCC LDT No. 27 of 2009 is valid and enforceable; the estate of Elizabeth Nanjala Wanyama is entitled to 2 acres and the Respondent's claim is limited to the remaining 2 acres.

Reasoning

Although the LDT lacked jurisdiction to determine title to registered land, the Magistrates' Court properly adopted the award and issued a decree. No appeal was preferred against the award or decree, and an adopted judgment remains enforceable unless set aside through proper procedure. The Respondent, who had avenues to impugn the award but did not, cannot now collaterally attack it. Her title is accordingly limited to 2 acres.

p. 8
03

Whether the Respondent proved her claim for eviction and permanent injunction

Holding

She did not; the Appellant's presence on the land was justified by the valid decree and was not a trespass.

Reasoning

As registered proprietor the Respondent enjoys rights under sections 24 and 25 of the Land Registration Act, and the onus was on her to show unjustifiable intrusion. The Appellant justified his occupation by the adopted LDT award and decree. The court found no evidence that the Appellant trespassed, so eviction and a permanent injunction (requiring satisfaction of the Giella principles) could not issue.

p. 8
04

Whether the Appellant proved the fraud alleged in his counter-claim

Holding

Fraud was pleaded but not proved to the required standard; the allegation appeared abandoned.

Reasoning

Fraud must be pleaded and strictly proved to a standard higher than the balance of probabilities but below the criminal standard. The Appellant produced no evidence establishing the alleged collusion with the Land Registrar, failed to show when the Respondent's husband died or why succession proceedings were essential, and the allegation was wholly unsubstantiated.

p. 8

Legal principles established

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  • A Land Disputes Tribunal award adopted as a court judgment remains valid and enforceable unless set aside through proper procedure, even if the tribunal may have lacked jurisdiction.
  • Allegations of fraud must be pleaded and strictly proved to a standard higher than a balance of probabilities.
  • An appellate court of first instance is not bound by the findings of the lower court and may re-evaluate the evidence and reach its own conclusions.
  • All elements of res judicata under section 7 of the Civil Procedure Act must be satisfied conjunctively.

Court orders

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  1. 1.The judgment and decree of the subordinate court set aside - the appeal allowed with costs to the appellant
  2. 2.Costs of the appeal to the appellant

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Bungoma (CM ELC Case No. 111 of 2019)
Bungoma CM ELC Case No. 111 of 2019
Jurisdiction invoked
First appellate jurisdiction over the subordinate court in land matters (Environment and Land Court Act); appeal from the Magistrates' Court judgment in Bungoma CM ELC Case No. 111 of 2019

Relief refused

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Respondent's claim for eviction and permanent injunction

The trial court erred in allowing the claim; the Appellant's occupation was justified by the valid and enforceable LDT decree, and the Appellant did not trespass

p. 8

Appellant's counter-claim based on fraud

Not directly decided as the appeal succeeded on the validity of the LDT decree; fraud allegations were not strictly proved

p. 8

Costs

The appeal is allowed with costs to the appellant.

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.

Consequently, I find this appeal merited and the same is hereby allowed with costs.
p. 8Disposition of the appeal
the decree issued in Bungoma CMCC LDT No. 27 of 2009 is valid and enforceable. It therefore follows that the estate of Elizabeth Nanjala Wanyama is entitled to 2 acres while the Respondent's claim can only be limited to 2 acres of the suit land.
p. 8Effect of adopted LDT award
It is trite law that a valid judgment of a court unless overturned by an appellate court remains a judgment of court and is enforceable, the issue of jurisdiction notwithstanding.
p. 7Enforceability of adopted tribunal decisions
It is trite law that any allegations of fraud must be pleaded and strictly proved.
p. 8Standard of proof for fraud
In view of the foregoing, it is my considered view that this suit is not res judicata and therefore suitable to proceed for hearing and determination on merit.
p. 5Res judicata finding
As an appellate court of first instance, this court is not bound by the findings of fact and law made by the lower court and may on re-evaluation reach its own conclusion and findings.
p. 4Duty of first appellate court

Issues in the judgment

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minor

Memorandum of appeal described as containing five grounds, but the judgment later refers to six grounds

minor

Appellant's name spelt inconsistently ('Kalikani' and 'Karikania')

minor

Registration date on title inconsistently stated - respondent said she obtained title on 11/01/2018, the judgment records registration on 11/01/2015

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kalikania v Machuma (Environment and Land Appeal E033 of 2022) [2025] KEELC 4551 (KLR)", Case Analysis (2025). Bungoma Environment and Land Court Appeal (memorandum of appeal dated 16/12/2022) arising from Bungoma CM ELC Case No. 111 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4551/eng@2025-05-22

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