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ELCPartially AllowedELCLA No. E009 of 2025 (lead file), consolidated with ELCLA No. E011 of 2025

Ojienda & another v Okwanyo & another (Environment and Land Civil Appeal E009 of 2025 & Environment and Land Appeal E011 of 2025 (Consolidated)) [2026] KEELC 1668 (KLR)

Environment and Land Court
6 March 2026
5,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Homa Bay ruled that only a signed, written land sale agreement counts in Kenya, and ordered the defendants evicted.

What this practically means

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Executive summary

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These consolidated first appeals arose from Oyugis CMELCC No. 64 of 2022, in which the plaintiff (registered proprietor of East Kasipul/Kokwanyo/1426 by transmission through succession) sued her uncle, David Onyango Masi, and John Ochieng Okwanyo for eviction and damages for trespass. The trial magistrate dismissed the plaintiff's case against Okwanyo but ordered eviction of the uncle. Both defendants appealed. On appeal, the court applied the settled first-appeal standard of re-evaluating evidence afresh and addressed two issues: whether Okwanyo had purchased the suit land, and whether a customary trust was established. On the first, the court held the purported sale agreement was a draft that was never signed, rendering it unenforceable under Section 3(3) of the Land Act; further, the plaintiff had no capacity to sell the land at the material time since it was not registered in her name, and the transaction amounted to intermeddling with her deceased father's intestate estate contrary to Section 45 of the Law of Succession Act. Okwanyo therefore took possession at his own peril and was a trespasser. On the second issue, the court held that the uncle did not discharge the burden of proving a customary trust: no particulars were pleaded, it was raised only as a defence without a counterclaim, no evidence of transmission of the land as a trust was adduced, and he filed no submissions on appeal. The court allowed the appeal in ELCLA No. E009 of 2025, dismissed the appeal in ELCLA No. E011 of 2025, set aside the trial court's judgment, and entered judgment for the plaintiff against both defendants for eviction from the suit parcel, with costs of the suit to the plaintiff and appeal costs borne jointly and severally by the two appellants.

Questions the Court framed

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

  1. 1.Whether the Respondent in Appeal No. E011 of 2025 purchased the suit land
  2. 2.Whether the Appellant in Appeal No. E009 of 2025 established that there was a customary trust

Key legal issues

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01

Whether the Respondent acquired an interest in the suit land by purchase

Holding

No. The sale agreement was unsigned and unenforceable under Section 3(3) of the Land Act; the seller had no capacity as the land was not registered in her name and formed part of a deceased's intestate estate, so the payment amounted to intermeddling.

Reasoning

The Respondent relied on a draft, unsigned sale agreement and RTGS payment evidence. Section 3(3) of the Land Act requires a contract for the disposition of an interest in land to be in writing, signed by all parties and attested by a witness. Additionally, the Plaintiff was not the registered owner at the material time, and the land was part of her deceased father's intestate estate, so dealing in it was an offence under Section 45 of the Law of Succession Act. The Respondent entered possession at his own peril and was a trespasser.

p. 8
02

Whether a customary trust was established over the suit land

Holding

No. The appellant did not lead evidence proving the elements of a customary trust, pleaded no particulars, raised it only as a defence, and filed no counterclaim.

Reasoning

Relying on Mbui Mukangu and Mbasa v Mbasa (citing Isack M'Inanga Kiebia), the court noted the four elements of a customary trust, including lineage ownership, entitlement under customary law, registration subject to customary rights, and continued occupation. The appellant's evidence was mere general assertions; he did not show how the property was transmitted to the Respondent's father as a trust, did not explain why only parcel 1426 was claimed, and did not submit on the issue in the appeal.

p. 10
03

The duty of a first appellate court

Holding

A first appellate court must re-evaluate and re-analyse the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses.

Reasoning

Guided by Williamson Diamonds, Selle v Associated Motor Boat, Abok James Odera, Susan Munyi, PIL Kenya Ltd v Oppong and Gitobu Imanyara, the court set out the retrial standard applicable to first appeals from the trial magistrate before undertaking its own re-evaluation of the evidence.

p. 7

Legal principles established

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  • A contract for the disposition of an interest in land must be in writing, signed by all parties, with signatures attested by a witness, failing which no interest passes
  • A first appellate court must re-evaluate the evidence afresh and draw its own conclusions while making due allowance for not having seen or heard the witnesses
  • The burden of proving a customary trust lies on the party alleging it
  • Purporting to deal in property of a deceased person before succession is completed amounts to intermeddling with the estate

Court orders

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  1. 1.The appeal in ELCLA No. 009 of 2025 is allowed; the appeal in ELCLA No. E011 of 2025 fails; the judgment of the trial court is set aside
  2. 2.Judgment entered for the Plaintiff against the Defendants in Oyugis CMELCC No. 64 of 2022 for an order of eviction forthwith from parcel No. East Kasipul/Kokwanyo/1426
  3. 3.The Defendants to pay the costs of the suit
  4. 4.Costs in the Appeals to be borne jointly and severally by the Respondent in ELCLA No. E009 of 2025 and the Appellant in ELCLA No. E011 of 2025

The bench

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

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court, Oyugis (CMELC Court)
Oyugis CMELCC No. 64 of 2022
Jurisdiction invoked
First appellate jurisdiction over appeals from the trial magistrate's court (ELC appeals), consolidated by the court on 3rd July 2025 with Homa Bay ELCLA No. E009 of 2025 as the lead file
Consolidated with
ELCLA No. E011 of 2025

Relief refused

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The 2nd Appellant's claim to a share of the suit land based on customary trust

No evidence led to prove the customary trust; it was pleaded only as a bare defence without particulars and no counterclaim was filed

p. 10

The Respondent's claim to an interest in the suit land by purchase

The purported sale agreement was unsigned and unenforceable under Section 3(3) of the Land Act; the Plaintiff had no capacity to sell and the transaction amounted to intermeddling with a deceased's estate

p. 8

Costs

The Defendants in the suit (Oyugis CMELCC No. 64 of 2022) to pay the costs of the suit; costs in the Appeals to be borne jointly and severally by the Respondent in ELCLA No. E009 of 2025 and the Appellant in ELCLA No. E011 of 2025.

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 appeal in ELCLA No. 009 of 2025 is allowed. The appeal in ELCLA No. E011 of 2025 fails. The judgment of the trial court is hereby set aside.
p. 10Disposition - appeal outcomes
There is hereby entered judgment for the Plaintifi against the Defendants in the suit, namely, Oyugis CMELCC NO. 64 of 2022 , for an order of eviction against them forthwith from parcel No. East Kasipul/Kokwanyo/1426
p. 10Final orders - eviction
The purported agreement having not been signed, was not enforceable, particularly the requirement of such a transaction for acquisition of an interest in land being provided for under the law
p. 8Section 3(3) Land Act - signed written contract requirement
the actions of the Respondent in purporting to by the property amounted to intermeddling with the Estate
p. 9Intermeddling with a deceased's estate
the said burden of proving a customary trust fell on the party alleging it
p. 9Burden of proof for customary trust
He therefore, was clearly trespassing thereon.
p. 8Trespass by purchaser without enforceable contract

Issues in the judgment

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minor

The judgment contains a typographical/transcription error in the final orders, referring to eviction of 'the Defendants' while earlier analysis discussed the 1st Appellant in confusing terms, and the trial court's judgment is described as allowing 'the eviction of the 1st Plaintifi' - a party that does not exist

minor

The judgment is internally inconsistent as to the identification of the appeals: it refers to the Respondent as being in Appeal No. E011 of 2025 when framing the first issue, but the 1st Appellant's suit was against the 2nd Defendant (Respondent in E009), and costs are later imposed on 'the Respondent in ELCLA No. E009 of 2025 and Appellant in ELCLA No. E011 of 2025'

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, "Ojienda & another v Okwanyo & another (Environment and Land Civil Appeal E009 of 2025 & Environment and Land Appeal E011 of 2025 (Consolidated)) [2026] KEELC 1668 (KLR)", Case Analysis (2026). ELCLA No. E009 of 2025 (lead file), consolidated with ELCLA No. E011 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1668/eng@2026-03-06

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