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ELCDismissedKisumu ELCA (record of appeal dated 4th November, 2024; appeal from Kisumu CMC EL Case No. 35 of 2019)

Deya v Mwanzu (Environment and Land Appeal E039 of 2023) [2025] KEELC 6661 (KLR)

Environment and Land Court
2 October 2025
2,745 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Environment and Land Court at Kisumu from the judgment of the trial court dated 25th September 2023 in Kisumu CMC EL Case No. 35 of 2019, which dismissed the appellant's suit for eviction from Kisumu/Nyahera/2796. The appellant, registered proprietor of the suit land, had sued claiming the respondent trespassed in 2016; the respondent denied the claim, asserting the mother parcel Kisumu/Nyahera/753 was ancestral land and that the appellant unlawfully sub-divided it into parcels 2795 and 2796 without consent. The appeal, heard by written submissions, raised three issues: whether the appellant obtained the suit land fraudulently; whether the respondent was a trespasser; and whether the appellant was entitled to the relief sought. The court, guided by the first appellate duty to re-evaluate evidence, found the green card showed the mother parcel was registered in 1980 in the names of the parties' fathers as proprietors in common in equal shares. Applying Section 94 of the Land Registration Act, the court held that partition of land held in common requires the consent of all tenants in common and their participation; no application, consent, or Registrar involvement was proved. The respondent's sole-ownership and fraud allegations were not proved and were effectively abandoned. The court affirmed the trial court's finding that the sub-division was unlawful and held the tainted title could not found a trespass claim, with no evidence of trespass anyway, and that Article 40 of the Constitution does not protect unlawfully acquired property. The appeal was dismissed with costs to the respondent, and the parties were directed to follow the law in partitioning the mother title.

Questions the Court framed

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

  1. 1.Whether the Appellant obtained the suit land fraudulently
  2. 2.Whether the Respondent is a trespasser on the suit parcel of land
  3. 3.Whether the Appellant is entitled to the prayers sought in the plaint

Key legal issues

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01

Whether the Appellant obtained title to Kisumu/Nyahera/2796 fraudulently/unlawfully

Holding

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.

Reasoning

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.

p. 6
02

Whether the Respondent is a trespasser on the suit land

Holding

No - the illegally obtained title cannot support a trespass claim and no evidence of trespass was adduced.

Reasoning

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.

p. 6
03

Whether the Appellant was entitled to the eviction relief sought in the plaint

Holding

No - the protection of the right to property under Article 40 does not extend to property acquired unlawfully, so eviction could not be ordered.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.Costs to the Respondent
  3. 3.Parties to follow the law to partition the mother title No. Kisumu/Nyahera/753 held by the deceased proprietors in common

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, Kisumu
CMC EL Case No. 35 of 2019
Jurisdiction invoked
First appellate jurisdiction over subordinate court (Environment and Land Court)

Relief refused

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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

p. 6

Costs

Costs to the Respondent

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.

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.
p. 6Trespass - unlawfully obtained title
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
p. 5Section 94 Land Registration Act - partition of land held in common
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.
p. 6Affirmation of trial court finding
In conclusion, following the determinations herein, the court finds that the appeal lacks merit. The appeal is dismissed. Costs to the Respondent.
p. 6Disposition
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.
p. 6Final direction on partition

Issues in the judgment

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minor

Respondent is not named in the judgment; the record refers only to 'the Respondent' throughout.

minor

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

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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, "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.