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ELCDismissedAppeal from the Trial Court's Judgment delivered on 15th February 2023; memorandum of appeal dated 9th March 2023

Yego v Kemei & another (Environment and Land Appeal E004 of 2023) [2025] KEELC 8528 (KLR)

Environment and Land Court
3 December 2025
2,247 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kapsabet confirmed that a registered Kenyan land title stands unless fraud is clearly proven with solid evidence.

What this practically means

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Executive summary

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This is a first appeal from the trial court's judgment of 15th February 2023 (Hon D. Ocharo, PM), which dismissed the Appellant's suit seeking declarations that the title to the 2nd subject parcel (Songhor/Songhor Block 4/532) was fraudulently acquired and orders for rectification of the register and a permanent injunction. The 1st Respondent had counterclaimed for a boundary determination and a declaration that he is the legal owner of the parcel. The appeal was argued on the Appellant's contention that she was the rightful owner and that the 1st and 2nd Respondents colluded in subdividing and registering the parcel, reducing her acreage. The 1st Respondent maintained he was the duly registered proprietor, relying on the certificate of title and official search under section 26 of the Land Registration Act. The court restated its duty as a first appellate court to re-evaluate the evidence and reach an independent conclusion, with caution. It noted the County Surveyor's report showed no physical boundary between the parcels, but found that the title deed, green card, official search, consent to transfer, Land Control Board minutes and transfer demonstrated a lawful and procedural transfer to the 1st Respondent. The Appellant failed to adduce distinct evidence proving fraud to the requisite standard. The appeal was dismissed with costs of the original suit, the counterclaim and the appeal awarded to the 1st Respondent, and the trial court's judgment was upheld.

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 or the 1st Respondent is the lawful owner of the 2nd subject parcel of land (Songhor/Songhor Block 4/532)
  2. 2.Whether the appeal is meritorious

Key legal issues

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01

Lawful ownership of the 2nd subject parcel of land (Songhor/Songhor Block 4/532)

Holding

The 1st Respondent is the lawful owner of the 2nd subject parcel of land; the Appellant failed to prove her claim including fraud

Reasoning

The trial court had dismissed the Appellant's suit for want of proof. On review, D Exhibits 1, 2 and 8 (title deed, green card and official search) showed the parcel registered in the 1st Respondent's name since 5th April 2012. Consent to transfer, Land Control Board minutes and transfer showed the parcel was transferred lawfully and procedurally from DW2's deceased husband to the 1st Respondent without encumbrances.

p. 5
02

Whether the Appellant proved fraud against the Respondents

Holding

Fraud was not proved; the Appellant produced no distinct material evidence of fraud

Reasoning

Particulars of fraud including alleged land grabbing were pleaded in paragraph 13 of the amended plaint, but PW1 adduced no material evidence to distinctly prove fraud. During cross-examination PW1 admitted she had nothing to show she bought 10.5 acres. The court endorsed the requirement that fraud must be distinctly proved.

p. 4
03

Duty of a first appellate court

Holding

A first appellate court must review and evaluate the trial record and reach an independent conclusion, but with caution

Reasoning

The court, being seized of the first appeal from the trial court, restated the duty to re-evaluate the evidence and draw independent conclusions, while exercising that jurisdiction with caution, citing Mwanasokoni v Kenya Bus Services and Titus Ong'ang'a Nyachieo v Martin Okioma Nyauma.

p. 2

Legal principles established

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  • On a first appeal, the court is obliged to review the record of the trial court, evaluate it and make an independent determination, but this jurisdiction should be exercised with caution
  • Fraud must be distinctly proved to the requisite standard
  • The burden of proof lies on the party who alleges

Court orders

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  1. 1.The appeal dated 9th March 2023 is dismissed
  2. 2.Costs of the original suit, the counterclaim and the appeal awarded to the 1st Respondent

The bench

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

majority

Wrote the judgment

On appeal from
Trial Court (Principal Magistrate's Court, Hon D. Ocharo, PM)
Original suit (number not stated in the judgment)
Jurisdiction invoked
First appeal from the subordinate court to the High Court/Environment and Land Court (memorandum of appeal dated 9th March 2023)

Relief refused

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Appellant's prayer that the appeal be allowed and the Subordinate Court's judgment set aside with costs

The Appellant failed to prove her claim, including the alleged fraud, to the requisite standard; the 1st Respondent proved lawful ownership of the 2nd subject parcel

p. 5

Costs

The appeal is dismissed with costs of the original suit together with the counterclaim and this appeal to the 1st 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.

Having considered the entire record of appeal, I find that the counter claim succeeds to the extent that the 1st Respondent proved to the requisite standard that he is the lawful owner of the 2nd subject parcel of land.
p. 5Lawful ownership of the 2nd subject parcel
PW1 did not present any material evidence to distinctly prove fraud to the requisite standard
p. 4Proof of fraud
Thus, the present appeal originated by way of the memorandum of appeal dated 9th March 2023 lacks merit. The same is hereby dismissed with costs of the original suit together with the counter claim and this appeal to the 1st Respondent.
p. 5Final orders / dismissal of appeal
the instant appeal being the first one from the trial Court in the matter, I am obliged to review the record of the trial court, evaluate it and make independent determination whether the conclusion originally reached upon that evidence should stand
p. 2Duty of a first appellate 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, "Yego v Kemei & another (Environment and Land Appeal E004 of 2023) [2025] KEELC 8528 (KLR)", Case Analysis (2025). Appeal from the Trial Court's Judgment delivered on 15th February 2023; memorandum of appeal dated 9th March 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8528/eng@2025-12-03

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