Onyango & another v Makokha (Environment and Land Appeal E062 of 2024) [2026] KEELC 1713 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court was right in dismissing the appellants' claim and allowing the respondent's counterclaim
- 2.Whether the appellants' title to Butsotso/Indangalasia/6840 was lawfully acquired
- 3.Whether the respondent was entitled to the suit property
- 4.Whether the respondent proved fraud against the appellants to the required standard
- 5.Whether the trial court rightly awarded general damages for wasted construction materials and issued a mandatory injunction
Key legal issues
#Indefeasibility of the appellants' registered title
The title was not protected because it was fraudulently and unlawfully acquired; the appellants failed to prove lawful acquisition with documents supporting the process
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.
Fraud and collusion
Collusion between the appellants and the vendor to make a second sale amounted to fraud, satisfying the strict standard of proof
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.
Validity of the respondent's 2009 agreement despite succession and Land Control Act objections
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
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.
Damages for wasted construction materials
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
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.The trial court's judgment dismissing the appellants' claim and allowing the respondent's counterclaim is upheld
- 3.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs
The appeal is 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.
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.
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.
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
He held it in trust for the respondent. His obligation therefore was to complete the transaction by transferring title to the respondent.
The upshot is that I find no merit in this appeal which I dismiss with costs to the respondent.
It is so ordered
Issues in the judgment
#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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.