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ELCDismissedKakamega ELC Appeal (Memorandum of Appeal dated 4th October 2024)

Onyango & another v Makokha (Environment and Land Appeal E062 of 2024) [2026] KEELC 1713 (KLR)

Environment and Land Court
4 March 2026
6,009 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kakamega ruled that a land title bought fraudulently offers no protection, upholding cancellation of the buyers' title.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kakamega against the judgment of Hon. V. Amboko (SRM) delivered on 27th September 2024 in Kakamega ELC Case No. 62 of 2019 (consolidated with Kakamega CM ELC Case No. E21 of 2019), which dismissed the plaintiffs' claim, allowed the defendant's counterclaim, ordered cancellation of title No. Butsotso/Indangalasia/6860, awarded the defendant Kshs. 100,000/= as general damages for wasted construction materials and issued a mandatory injunction compelling the 3rd plaintiff to complete the transfer. The appellants, who had purchased the suit parcel Butsotso/Indangalasia/6840 in February 2019 from Patrick Mbayaki Masinde for Kshs. 1,350,000/=, raised thirteen grounds attacking the judgment as ambiguous, alleging no proof of fraud against them, illegality of the respondent's 2009 agreement under the Law of Succession Act and Land Control Act, and want of proof of the damages award. The respondent, who had purchased the same portion in 2009 for Kshs. 340,000/= (later enhanced to Kshs. 380,000/=), paid in full and taken possession, supported the judgment. Nyukuri J re-evaluated the evidence as the first appellate court and found that the respondent had purchased and occupied the land first; that the grant had been confirmed on 24th March 2010, vesting the property in the vendor, so his capacity to sell was established; that the appellants produced no documents showing the process of acquisition of their title; and that the chronology showed collusion with the vendor to defraud the respondent, which is a manifestation of fraud. Under sections 26 of the Land Registration Act and Article 40(6) of the Constitution, their title was therefore unprotected. Applying nemo dat quod non habet, even an innocent purchaser could not take from a seller without title. The court upheld the damages award and dismissed the appeal with costs to the respondent on 4th March 2026.

Questions the Court framed

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

  1. 1.Whether the trial court was right in dismissing the appellants' claim and allowing the respondent's counterclaim
  2. 2.Whether the appellants' title to Butsotso/Indangalasia/6840 was lawfully acquired
  3. 3.Whether the respondent was entitled to the suit property
  4. 4.Whether the respondent proved fraud against the appellants to the required standard
  5. 5.Whether the trial court rightly awarded general damages for wasted construction materials and issued a mandatory injunction

Key legal issues

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01

Indefeasibility of the appellants' registered title

Holding

The title was not protected because it was fraudulently and unlawfully acquired; the appellants failed to prove lawful acquisition with documents supporting the process

Reasoning

Although the appellants pleaded due diligence, they produced only the sale agreement and no search certificate, Land Control Board consent, transfer instrument or stamp duty evidence. The chronology - sale agreement a day before the vendor sued the occupier, registration during litigation, and the vendor's admission that the respondent was in possession - pointed to a scheme to defeat the respondent's earlier interest.

p. 10
02

Fraud and collusion

Holding

Collusion between the appellants and the vendor to make a second sale amounted to fraud, satisfying the strict standard of proof

Reasoning

The appellants knew the respondent had purchased and occupied the land, yet entered a second agreement, made the vendor a witness rather than seeking accountability, and aided him to evade his obligations. Collusion, being an agreement to deceive and gain unfair advantage, is a manifestation of fraud.

p. 11
03

Validity of the respondent's 2009 agreement despite succession and Land Control Act objections

Holding

The agreement was not a nullity: the grant was confirmed on 24th March 2010 with the suit property vested in the vendor, and the addendum of 31st May 2010 post-dated confirmation; the alleged illegality was not established

Reasoning

The appellants contended the sale contravened the Law of Succession Act and Land Control Act, but confirmed grant had issued on 24th March 2010 vesting the property in the vendor before the addendum, so his capacity to sell was justified. The respondent also relied on constructive trust and proprietary estoppel principles where consideration was paid and possession taken.

p. 9
04

Damages for wasted construction materials

Holding

The trial court properly exercised its discretion; materials on site, shown in photographs, were wasted after construction was stopped by court order and deserved compensation

Reasoning

Construction was ongoing and stopped in 2019 by court order. Photographs evidenced materials on site which were wasted between filing of suit and judgment. The appellants' attack on the award as unpleaded special damages did not displace the trial court's discretionary assessment.

p. 11

Legal principles established

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  • Registration vests indefeasible ownership unless the title was acquired by fraud, misrepresentation, illegality, unprocedural means or corruption
  • A registered proprietor whose root of title is challenged must prove the legality of the acquisition beyond the title instrument
  • A title is the end product of a process; the process of acquisition must be lawful and procedural for the title to be protected
  • Fraud must be specifically pleaded and strictly proved to a standard higher than balance of probability but lower than beyond reasonable doubt
  • A seller with no title cannot pass title - nemo dat quod non habet; even an innocent purchaser cannot acquire where the seller had no good title
  • Full payment of purchase price and delivery of possession gives rise to a constructive trust obliging the vendor to complete the transfer
  • The duty of a first appellate court is to re-evaluate and re-assess the evidence and make its own conclusions with due allowance for not having seen or heard witnesses

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The trial court's judgment dismissing the appellants' claim and allowing the respondent's counterclaim is upheld
  3. 3.Costs of the appeal awarded to the 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
Senior Resident Magistrate's Court, Kakamega
Kakamega ELC Case No. 62 of 2019 (Kakamega MCELC No. E062 of 2019)
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over an appeal from the magistrates' court (appeal by way of retrial)
Consolidated with
Kakamega CM ELC Case No. E21 of 2019 (consolidated at trial with Kakamega CM ELC Case No. 62 of 2019)

Relief refused

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Allowance of the appeal and setting aside the trial court's judgment

The court found the appeal without merit; the acquisition of title by the appellants was unlawful and fraudulent and the trial court's conclusions were correct

p. 11

Judgment entered in favour of the appellants on their claim in the lower court and dismissal of the respondent's counterclaim

Fraud was demonstrated against the appellants; collusion is a manifestation of fraud

p. 11

Costs

The appeal is dismissed with 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 acquisition of the suit property by the appellants was unlawful and fraudulent and the trial court was right in arriving at the conclusions made in dismissing the appellants' claim.
p. 11Validity of appellants' title
Because collusion is an agreement between parties with intention to deceive and gain an unfair advantage over others, it is a manifestation of fraud. Therefore, the respondent demonstrated fraud as against the appellants.
p. 11Fraud by collusion
the doctrine of nemo dat quod non habet, hence even if they had proved that they were innocent purchasers for value without notice, which they did not, their innocence would not have been suficient ground to vest the suit property in them
p. 11Nemo dat and innocent purchaser defence
He held it in trust for the respondent. His obligation therefore was to complete the transaction by transferring title to the respondent.
p. 11Constructive trust
The upshot is that I find no merit in this appeal which I dismiss with costs to the respondent.
p. 11Disposition
It is so ordered
p. 11Final orders

Issues in the judgment

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minor

The judgment refers inconsistently to the cancelled title number - the suit property and registered title of the appellants is described as Butsotso/Indangalasia/6840, yet the trial court orders and counterclaim refer to cancellation of title No. Butsotso/Indangalasia/6860

minor

The date of the sale agreement underlying the counterclaim is inconsistently given as 29th June 2009 in the body and 26/6/2009 in the grounds of appeal

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, "Onyango & another v Makokha (Environment and Land Appeal E062 of 2024) [2026] KEELC 1713 (KLR)", Case Analysis (2026). Kakamega ELC Appeal (Memorandum of Appeal dated 4th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1713/eng@2026-03-04

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