Asangu (Suing as the administrator of the Estate of Samuel Azangu - Deceased) v Josephine (As the administrator of the Estate of the Late Benedict Kivihya Aligula - Deceased) (Environment and Land Appeal 1 of 2023) [2025] KEELC 8551 (KLR)
The bottom line
#The Environment and Land Court dismissed a landowner's appeal because he could not prove fraud in how the land title was transferred.
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 Trial Court erred in its assessment of the Appellant's pleadings, evidence and submissions on ownership of the suit land
- 2.Whether the suit land was illegally registered in the name of the Respondent while a case on ownership was pending
- 3.Whether the Appellant proved illegality or fraud in the acquisition of the title
- 4.Whether the Appellant is entitled to the remedies sought, namely cancellation of the Respondent's title
- 5.Whether the award of costs to the Respondent was erroneous
Key legal issues
#Whether the Appellant proved illegality in the registration of the suit land in the Respondent's name
The appeal failed because the Appellant did not distinctly plead and prove illegality or fraud
The Court held the Trial Magistrate correctly considered the pleadings, evidence and submissions. The Appellant alleged that the transfer occurred while an ownership suit was pending, but the allegations of an incomplete purchase and illegal transfer were not proved. Section 26 of the Land Registration Act confers sanctity on the certificate of title, and the Appellant did not displace it with proof of fraud.
Whether the Trial Court failed to consider the Appellant's evidence and submissions
The Trial Court considered the pleadings, testimonies, exhibits and submissions; the ground failed
The Court reviewed the record and found the Trial Magistrate referred to the parties' pleadings, the testimonies of the Appellant, Respondent and DW1, exhibits P1–8, and the submissions. Reliance on the Arap Moi case confirmed submissions are not evidence, so even if overlooked their omission would not vitiate the judgment.
Whether the award of costs to the Respondent was erroneous
Costs correctly followed the event under the proviso to section 27(1) of the Civil Procedure Act
The Trial Court had regard to the proviso to section 27(1) of the Civil Procedure Act that costs follow the event within the court's discretion, as affirmed in Rai v Rai. Having lost, the Appellant could not impugn the costs order.
Legal principles established
#- A first appellate court must review the trial record, evaluate it and make its own conclusions, but exercise that jurisdiction with caution
- Where a registered proprietor's root of title is under challenge, the proprietor must prove the legality of the acquisition beyond the instrument of title
- Legal submissions are not evidence but arguments based on evidence
- He who alleges must prove (burden of proof under sections 107 and 108 of the Evidence Act)
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- 2.The judgment of the Trial Court delivered on 2nd November 2022 is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial Court (magistrates' court)
- not stated
- Jurisdiction invoked
- First appeal from the Trial Court's judgment of 2nd November 2022 (statutory first-appeal jurisdiction; provision not expressly stated)
Relief refused
#Cancellation of the title deed for NANDI/KOIBARAK "A"/121 and registration of the Appellant as proprietor
The Appellant failed to plead and prove illegality or fraud; the Trial Court's finding that the allegations were not proved was sound
Costs
Appeal dismissed with 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.
Ultimately, the instant appeal is devoid of merit. The same is hereby dismissed with costs to the Respondent.
I find no reason to disturb the Trial Court’s well-informed finding and proceed to uphold the decision.
when a registered proprietor’s root of title is under challenge, it is not suficient to dangle the instrument of title as proof of ownership.
legal submissions are not evidence but rather arguments based on evidence presented in court.
These allegations have not been proved. The Plaintifi does not disclose the source of his information. He who alleges must prove
Issues in the judgment
#The judgment alternately dates the Land Registration Act as '2016 (2012)' and refers to the parties inconsistently; also theRespondent is never named in full
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Asangu (Suing as the administrator of the Estate of Samuel Azangu - Deceased) v Josephine (As the administrator of the Estate of the Late Benedict Kivihya Aligula - Deceased) (Environment and Land Appeal 1 of 2023) [2025] KEELC 8551 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8551/eng@2025-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.