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ELCDismissedNot stated in the judgment text provided· [2025] KEELC 7370 (KLR)

Nakhungu & 4 others v Malala & 7 others (Environment and Land Case 375 of 2017) [2025] KEELC 7370 (KLR)

Environment and Land Court
29 October 2025
DOD. O. Ohungo
2,772 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 Kenyan court dismissed a family land fraud claim because the family could not strictly prove fraud, reminding everyone that suspicion is not evidence.

What this practically means

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Executive summary

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The Plaintiffs, siblings and joint registered proprietors of South Wanga/Lureko/185 (38.8 acres), sued the Defendants alleging that through fraud and collusion the Defendants altered the register of South Wanga/Lureko/186 from 4.0 acres to 4.0 hectares, hiving off a portion of their parcel and annexing it to parcels 184 and 186 following the adoption of a Mumias Land Disputes Tribunal award. They sought cancellation of register entries, restoration of acreage, an injunction against trespass, eviction, and costs. The First to Fourth and Fifth Defendants denied the claim, the Fifth asserting the correction to hectares was lawful and procedural. The Sixth to Eighth Defendants did not participate and their cases were closed. The court framed two issues: whether fraud and collusion were established, and whether the reliefs should issue. It reaffirmed that fraud must be pleaded, particularised and strictly proved to a heightened civil standard, and may not be inferred. The plaintiffs' own surveyor witness disowned the 4th edition map on which they relied; the Deputy Land Registrar and a county surveyor testified that the correction to 4.0 hectares was proper; and the certified register showed parcel 185's size unchanged at 38.8 acres since 1967. The court also noted the mathematical inconsistency: the correction could have moved only about 5.884 acres, yet the plaintiffs claimed a loss of 18 acres without explaining the shortfall. Finding fraud, collusion and trespass unproved, the court dismissed the suit and, considering the family relationship between the parties, made no order as to costs.

Key legal issues

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01

Whether fraud and collusion in the alteration of the register of parcel South Wanga/Lureko/186 were established

Holding

Not proved; plaintiffs invited the court to infer fraud from the correction of the register, which is impermissible

Reasoning

The court held fraud is a grave allegation requiring strict proof. The plaintiffs' own surveyor witness disowned the 4th edition map, the Deputy Land Registrar testified the correction of parcel 186 to 4.0 hectares was proper, and the register of parcel 185 remained static at 38.8 acres since 1967. The claimed loss of 18 acres was mathematically unexplained. Fraud cannot be inferred from facts.

p. 6
02

Whether the reliefs of cancellation, injunction and eviction should issue

Holding

Refused, as the suit and the trespass allegations were not established

Reasoning

Since the foundation of the plaintiffs' case (fraud and collusion) failed and trespass was not established, the consequential reliefs of cancellation of register entries, restoration of acreage, injunction and eviction could not issue. The suit was dismissed with no order as to costs given the family relationship between the parties.

Legal principles established

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  • A party alleging fraud and collusion must plead it, particularise it and strictly prove it to a standard higher than the balance of probabilities but lower than beyond reasonable doubt, and fraud cannot be inferred from the facts.

Court orders

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  1. 1.The Plaintiffs' case is dismissed
  2. 2.No order as to costs, considering the family relationship between the parties
Jurisdiction invoked
Original jurisdiction over land disputes, suit transferred from the High Court at Kakamega to this court

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, "Nakhungu & 4 others v Malala & 7 others (Environment and Land Case 375 of 2017) [2025] KEELC 7370 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7370/eng@2025-10-29

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