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ELCPartially AllowedNakuru ELC Appeal (from Nakuru ELC No. 101 of 2018)· [2026] KEELC 2153 (KLR)

Wairegi (Suing as the Holder of Power of Attorney donated by Esther Wangui Wairegi) v Karuri (Environment and Land Appeal E043 of 2023) [2026] KEELC 2153 (KLR)

Environment and Land Court
20 April 2026
3,393 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Nakuru set aside a family land dispute judgment for retrial because the magistrate relied on defence claims that were never proven by evidence.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Nakuru against the judgment of Hon. K. Kibelion, Principal Magistrate, delivered on 29th November 2023 in Nakuru ELC No. 101 of 2018. The Appellant had sued for a permanent injunction and cancellation of title over parcel Njoro/Njoro Block 5/309, alleging that the property was purchased by family contributions for the benefit of their mother, Esther Wangui Wairegi, and held in trust by the Respondent and her deceased husband. The trial court partly allowed the suit by granting the Plaintiff a lifetime licence to utilize the suit property, declining to cancel the title. On appeal, the Appellant contended that the trial magistrate erred in failing to find a resulting or constructive trust, and in disregarding the removal of the suit land from the deceased's estate in Nairobi HC Succession Cause No. 1220 of 2012. The Respondent maintained that registered title under the Land Registration Act was indefeasible, that fraud was not pleaded or proved to the required standard, and that the lifetime licence was a proportionate remedy. The court, hearing the matter as a first appeal, condensed the seven grounds into two issues. It found that the trial magistrate had erred by taking into account the averments in the Respondent's statement of defence although the Respondent neither testified nor called any witnesses; those averments were mere allegations which the Respondent, bearing the burden of proof under Sections 107-109 of the Evidence Act, never supported with evidence. The court accordingly set aside the trial judgment, ordered a retrial before a magistrate other than Hon. K. Kibelion, directed each party to bear its own costs, and directed that the retrial be fast-tracked and fixed for hearing within 30 days.

Key legal issues

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01

Whether the trial court erred in relying on the unproven statement of defence

Holding

The appeal has merit because the Trial Magistrate considered the averments in the statement of defence although the Respondent never testified or called witnesses; those averments were mere allegations unsupported by evidence.

Reasoning

The Respondent filed a defence but neither testified nor called witnesses. Under Sections 107-109 of the Evidence Act, a party who asserts facts bears the burden of proving them. Authorities establish that uncontroverted plaintiff evidence stands and defence assertions remain mere allegations. By factoring those unproven allegations into its analysis, the trial court reached a conclusion prejudicial to the Appellant, warranting setting aside of the judgment and a retrial before a different magistrate.

p. 7
02

Whether the suit property was held in trust for the Appellant

Holding

Not determined on the merits; the claim that the property was family-purchased and held in trust for the mother is to be re-litigated at the retrial.

Reasoning

The Appellant argued that a resulting/constructive trust arose from family contributions and email correspondence showing the property was bought for the mother, and that its removal from the deceased's estate in the succession cause evidenced the trust. The Respondent countered that registered title under the Land Registration Act was indefeasible, fraud was not pleaded or proved to the required standard, and occupation was merely a permissive licence. The appellate court did not decide these questions, holding only that the trial judgment was vitiated by reliance on unproven defence allegations.

p. 7

Legal principles established

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  • On a first appeal, the court re-evaluates the evidence and draws its own conclusions while making due allowance for not having seen or heard the witnesses.
  • Where a defendant files a statement of defence but adduces no evidence, the plaintiff's uncontroverted evidence stands, and averments in the defence remain mere allegations that cannot found a judgment.

Court orders

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  1. 1.The judgment of the lower court dated 29th November 2023 is set aside and referred back to the lower court for retrial before a court other than that of Hon. K. Kibelion, Principal Magistrate.
  2. 2.Each party is to bear their own costs.
  3. 3.The hearing of the matter is to be fast-tracked and fixed for hearing within 30 days.
On appeal from
Principal Magistrate's Court, Nakuru (ELC No. 101 of 2018)
Nakuru ELC No. 101 of 2018
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court in land matters

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, "Wairegi (Suing as the Holder of Power of Attorney donated by Esther Wangui Wairegi) v Karuri (Environment and Land Appeal E043 of 2023) [2026] KEELC 2153 (KLR)", Case Analysis (2026). Nakuru ELC Appeal (from Nakuru ELC No. 101 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2153/eng@2026-04-20

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