Deya v Mwanzu (Environment and Land Appeal E039 of 2023) [2025] KEELC 6661 (KLR)
The bottom line
#A land title obtained through an unlawful sub-division cannot be used to evict people from the land — even by a registered owner.
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 obtained the suit land fraudulently
- 2.Whether the Respondent is a trespasser on the suit parcel of land
- 3.Whether the Appellant is entitled to the prayers sought in the plaint
Key legal issues
#Whether the Appellant obtained title to Kisumu/Nyahera/2796 fraudulently/unlawfully
Yes - the sub-division creating the suit land was unlawful because the statutory procedure for partition of land held in common was not followed; the trial court did not err so finding.
The mother parcel Kisumu/Nyahera/753 was registered in the names of the parties' fathers as proprietors in common in equal shares. Section 94 of the Land Registration Act requires an application to the Registrar for partition with the consent of all tenants in common. No application, consent, agreement or Registrar participation was proved. The respondent's family, beneficiaries of the other proprietor in common, were not involved, and the portion taken as the suit land holds the respondent's home and family graves.
Whether the Respondent is a trespasser on the suit land
No - the illegally obtained title cannot support a trespass claim and no evidence of trespass was adduced.
A claim in trespass rests on proof of the plaintiff's right to possession. Since the suit land was created unlawfully in breach of Section 94 of the Land Registration Act, the title derived from that process is tainted and cannot ground a trespass claim. Independently, no evidence of trespass was placed before the trial court.
Whether the Appellant was entitled to the eviction relief sought in the plaint
No - the protection of the right to property under Article 40 does not extend to property acquired unlawfully, so eviction could not be ordered.
The substantive relief sought was eviction of the respondent. Since the appellant's title was unlawfully obtained through an unprocedural sub-division, the constitutional protection of property rights does not attach, and the suit fails. The parties were directed to follow the law in partitioning the mother title.
Legal principles established
#- A first appellate court must re-examine and re-evaluate the evidence and arrive at its own conclusions while making allowance for not having seen or heard the witnesses.
- Partition of land held by tenants in common under Section 94 of the Land Registration Act requires the consent of, and participation by, all proprietors in common.
- A title acquired unlawfully cannot found a claim in trespass, and Article 40 does not protect unlawfully acquired property.
Court orders
#- 1.The appeal is dismissed
- 2.Costs to the Respondent
- 3.Parties to follow the law to partition the mother title No. Kisumu/Nyahera/753 held by the deceased proprietors in common
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Kisumu
- CMC EL Case No. 35 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court (Environment and Land Court)
Relief refused
#Appeal be allowed with re-assessment of evidence and costs of appeal
The trial court did not err in finding that the suit land was created unlawfully; the illegally obtained title cannot found a trespass or eviction claim
Costs
Costs to the Respondent
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.
The title in respect the suit land having been illegally obtained cannot form the basis for a claim of trespass. Further no evidence of trespass was placed before the trial court.
It is paramount firstly, that the consent of all proprietors in common be sought by the proprietor who seeks the partition and secondly the other proprietors participate in the process of partition of the land
I find that the trial court did not err in its finding that the suit land was created in an unlawful, unprocedural and illegal way.
In conclusion, following the determinations herein, the court finds that the appeal lacks merit. The appeal is dismissed. Costs to the Respondent.
Let the parties follow the law in order to partition the mother title No. Kisumu/Nyahera/753 that was held by the proprietors in common who are now deceased persons.
Issues in the judgment
#Respondent is not named in the judgment; the record refers only to 'the Respondent' throughout.
Internal inconsistency in beneficiary attribution: paragraph 26 refers to Kisumu/Nyahera/2795 being registered into 'his' name via entry of 18th April 2017, while the appellant's case was that 2795 remained with Mwandhu Owili.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Deya v Mwanzu (Environment and Land Appeal E039 of 2023) [2025] KEELC 6661 (KLR)", Case Analysis (2025). Kisumu ELCA (record of appeal dated 4th November, 2024; appeal from Kisumu CMC EL Case No. 35 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6661/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.