JUDGMENT
1. The Appellant herein was the Plaintiff in the subordinate court in Sirisia ELC Case No. 9 of 2023 wherein they had sued the Respondents herein vide an amended plaint dated 05/08/2024 seeking for the cancellation of all transfers arising out of title deed no. S.Malakasi/N & C.Namwela/1043 to the Defendants, an order for the mutation of S.Malakasi/N & C.Namwela/1043 into three portions in favour of the Appellants, an order for cancellation of S.Malakasi/N & C.Namwela/1060 and 1061 in the names of the 1st and 2nd Respondents and issuance of new titles in the names of the Appellants and or to have the same reverted to S.Malakasi/N & C.Namwela/1043, an order to the Respondents to demolish all structures on S.Malakasi/N & C.Namwela/1060 and 1061, a declaration that the Respondents are trespassers, a declaration that the sub-division of S.Malakasi/N & C.Namwela/1059 is null and void, a permanent injunction against the respondents in relation to S.Malakasi/N & C.Namwela/1043, an eviction order against the Respondents and costs of the suit.
2. It was their case that one Boniface Wephukulu Pepela-Dcd who died in 1985 left behind an estate comprising land parcel no. W.Bukusu/N.Mateka/873 and Malakasi/ N & C.Namwela/592. That a grant was issued for the estate in Bungoma Succ Cause No.99 of 1993 and land parcel no. S.Malakasi/N & C.Namwela/1059 devolved to the 1st Appellant. That the Respondents sub-divided land parcel no. S.Malakasi/N & C.Namwela/1059 and transferred various portions to themselves through illegal and fraudulent means.
3. The Respondents on their part filed a defence denying the Appellants assertions and placed them on strict proof thereof.
4. The suit proceeded by way of viva voce evidence.
5. PW1 Eddy Machio adopted his witness statement as his evidence and sought for the prayers in the plaint. He testified that has cultivated on parcel 1059 which boarders parcel 593 since the year 2017 and before him his father was in use of the said land. He testified that the Respondents sub-divided parcel 1043 and obtained the resultant titles i.e parcels no. 1059,1060 and 1061.That parcel no. 1059 was registered in the name of Mukandia Machio and John Mukandia Machio, 1060 in the name of David Sitati and lastly 1061 in the name of Jason Soita. He denied that his father sold land to the Respondents and averred that the sale agreements presented were forgeries. He testified that the 3rd Respondent had encroached into parcel 1059.
6. PW2 Pius Soita Machio adopted his witness statement as his evidence in chief. He produced as his documentary evidence PExhibit 1-3 being a copy of certificate of grant, certificate of death and a gazette notice. It was his evidence that he is the administrator for the estate of Boniface Wephukulu Pepeta. He testified that the said estate was distributed and he was allocated parcel no. 592 which he was to share with his brother namely Maurice Machio. He testified that he was not aware that one of his brothers namely John Mukanda had sold his portion of land and he denied signing any agreement for the sale of parcel 592 and dismissed the displayed signature in the agreements and the mutation forms presented as forgeries.
7. PW3 Maurice Machio adopted his witness statement as his evidence in chief. He produced into evidence PExhibit 1-8 being a transfer for parcel 1061, agreement and consent of the LCB, copy of green card for parcel 1060,1059 and 1061. He testified that he was the administrator of parcel 592 which he testified had boundary disputes with parcel 593. He testified that parcel 592 was sub-divided into two halves i.e parcel 1044 and 1043 with one half being registered in his name and the other half to John Mukanda. He testified that parcel 1043 has since been subdivided. He further denied signing the mutation form in relation to parcel 1043.
8. DW1 David Sitati Ndalila adopted his witness statement as his evidence in chief. He testified that he obtained his title legally with the sellers signing the transfer forms. It was argued that the Appellants did not make a report for the alleged forgery of the transfer. He testified that he purchased land measuring 4 ½ acres from John Mukanda where an agreement was recorded and witnessed. He testified that the administrators namely Maurice and Pius Machio signed the transfer forms and application for Land Control Board.
9. DW2 Jason Soita adopted his witness statement as his evidence in chief. He produced into evidence documents as DExhibit 1-6. He testified that he purchased 1 acre of parcel 592 from one John Mukanda on 11/09/1993. He testified that the administrators namely Maurice and Pius Machio signed the transfer forms and application for Land Control Board.
10. DW3 Alfred Kundu Makika testified that he resides in parcel 593 while John Mukanda resides on 592. That the two parcels had a boundary dispute which was resolved.
11. Upon considering the pleadings and the evidence presented, the trial court found that the Appellants had failed to prove their case on a balance of probabilities and proceeded to dismiss their suit with costs.
12. Aggrieved by the said determination, the Appellants preferred the current appeal on the following grounds;
a) The learned trial Magistrate erred in law and fact in dismissing the plaintiff's case without considering the detailed submissions of the plaintiffs.
b) The learned trial magistrate erred in law and fact by failing to consider on a balance of probability the plaintiffs evidence and testimonies.
c) The learned trial magistrate erred in law and fact by failing to recognize that the defendants failed to call crucial witnesses to prove their case.
d) The learned trial magistrate erred in law and fact in failing to recognize that there was no transition as the co-plaintiffs who are also administrators were denied transferring- the suit lands to the defendants.
e) That there are disparities in the dates and the land parcel numbers that resulted in erroneous judgment by the trial magistrate.
f) The learned trial magistrate erred in law and fact by relying on a letter from the ODPP rather than the report by thr DCI with the regard to the claim of fraud.
g) That the trial magistrate failed in law and fact in failing to find that the claim by the defendants that they bought land from the administrators who are co-plaintiffs amounted to intermeddling hence could not sustain.
h) The learned trial magistrate erred in law and fact in failing to find that the subdivision of land parcel no. 1043 was flagrant and marred with controversies hence not sustainable.
i) The learned trial magistrate erred in law and fact in failing to recognize that there exists disparities in the ID Numbers of the alleged seller hence raising a reasonable doubt.
j) The learned trial magistrate erred in law and fact in finding that the transfer was signed by the 2nd and 3rd plaintiffs when they were expressly denied in court.
13. The Appellants in the appeal sought for the judgment of the subordinate’s court to be set aside and the appeal to be allowed.
Submissions on the appeal
14. The Appellants submit that the subdivision and transfer of Title No. S. Malakisi/N&C Namwela/1043 into parcels 1060 and 1061 was unlawful, irregular, and contrary to the Land Registration Act and the Land Act because the 2nd and 3rd Appellants, as administrators of the deceased’s estate, never executed any sale or transmission instruments in favour of the 1st and 2nd Respondents. They argue that the learned Magistrate failed to appreciate that John Mukanda Machio had no title capable of passing, that the alleged transmission instruments were undated, irregular, and executed at a time when the 1st Appellant did not even possess a national ID, and that the Respondents failed to produce any valid title or supporting documentation. Relying on authorities such as Dina Management, Arthi Highway, and Flemish Investments, they contend that titles created in violation of the law are void and incapable of conferring any proprietary interest.
15. On occupation, the Appellants argue that the 3rd Respondent occupies the suit land unlawfully, having produced no ownership documents. They contend that the Magistrate erred by disregarding the contradictory maps in the record—particularly a hand-drawn sketch inconsistent with the official boundary map—and by concluding without proper analysis that no evidence of trespass had been presented.
16. Regarding the weight of evidence, the Appellants submit that the learned Magistrate failed to evaluate the totality of their evidence as required, ignored disparities in identity card numbers, overlooked irregularities in the purported transmission instruments, and relied on an ODPP letter instead of the investigating officer’s report. They argue further that the Respondents failed to call critical witnesses, including those allegedly involved in land sale agreements, warranting an adverse inference. For these reasons, they contend that the Magistrate’s decision was against the weight of evidence, incompetent and void, violated their rights, and should be set aside, with judgment entered in their favour as they have proved their case on a balance of probabilities.
17. The Respondents filed submissions dated 26/11/2025 and submitted that the learned Magistrate fully considered the Appellants’ submissions, as is evident from the judgment between pages 179 and 191, particularly page 185 line 7, but correctly declined to address new issues improperly introduced at the submission stage issues not pleaded nor supported by evidence. Citing the Court of Appeal decision in Moi v Muriithi & Another [2014] KECA 642, they argue that submissions cannot substitute pleadings or evidence, and the Magistrate was therefore right to disregard arguments that fell outside the pleadings. Consequently, the record demonstrates that the Appellants’ submissions were considered to the extent permitted by law, and extraneous matters were properly excluded.
Analysis and determination.
18. I have carefully evaluated the pleadings, proceedings and the evidence adduced contained in the record of Appeal.foregoing. I begin by addressing the grounds of appeal as set out in the Memorandum of Appeal. It is evident that the gravamen of those grounds is the assertion that the trial court failed to properly consider the evidence and submissions presented before arriving at its decision. Accordingly, this Court takes the view that the singular issue for determination is whether, on the totality of the evidence adduced, the Appellants succeeded in establishing their case on a balance of probabilities.
19. Having evaluated the pleadings, oral and documentary evidence, and the submissions of the parties, this court turns to the central question of whether the Appellants proved their allegations that the Respondents fraudulently caused the survey, subdivision, and registration of titles emanating from Land Parcel No. S. Malakasi/N & C Namwela/1043, and whether such titles were consequently illegal. The Appellants’ case was anchored on the contention that the Respondents procured the impugned titles through fraudulent means. They further argued that the sale agreements relied upon by the Respondents were forgeries and incapable of conferring any proprietary interest, thereby rendering the Respondents trespassers.
20. The law as properly captured by the subordinate court is settled that fraud must be specifically pleaded and strictly proved through cogent and credible evidence, the standard of proof being above a balance of probabilities and not beyond reasonable doubt. In this regard, this court finds that the Appellants did not place before the trial court evidence capable of satisfying the threshold. The allegation that the sale agreements were forgeries was not supported by forensic examination, expert testimony, or rebuttal evidence from any person purported to be involved in the transactions. The Appellants’ position remained speculative, uncorroborated, and unsupported by the evidentiary record.
21. It is notable that the subordinate court properly appraised itself on the evidence before it and correctly observed that the sale agreements relied upon by the Respondents were properly drawn and executed. Further, the trial court in her evaluation observed that the Appellants’ father who was alleged to have been a central figure and key witness in the history of the transactions and who was present in court on various occasions as noted in PW1’s testimony, was neither a party to the former suit nor was he called as a witness. This court therefore finds that omission particularly striking, especially given the Appellants’ claim that his participation or knowledge was pivotal to demonstrating the alleged fraudulent scheme. His absence as a witness deprived the Appellants’ case of material corroboration.
22. With respect to the letter from the Office of the Director of Public Prosecutions (ODPP) that the Appellants relied upon as indicative of ongoing criminal proceedings in relation to the alleged forgery, this court concurs with the learned magistrate that the document carried no probative value in the absence of a charge sheet or any formal record of criminal proceedings. A letter, without the anchoring of an instituted criminal case or prosecutorial action, cannot amount to proof of forgery or fraud. The Appellants therefore failed to establish that any criminal investigation had resulted in a formal charge capable of impeaching the Respondents’ titles.
23. On the other hand, the Respondents presented evidence that they purchased their respective portions from the duly appointed administrators of the estate of Boniface Wapukhulu, the acknowledged registered proprietor of the parent parcel and took possession of their claimed portion. They produced documents in support that were regular on their face. The Appellants did not demonstrate that the administrators lacked capacity to transact, nor did they establish that the Respondents were party to any fraudulent manipulation of the land records. In the absence of contrary evidence, I find that the trial court was justified in accepting the Respondents’ documents as authentic and legally effective.
24. On the totality of the evidence, I am satisfied that the learned trial magistrate properly evaluated the material before him and reached a sound conclusion. On the other hand, the Appellants’ failed to discharge their burden of proof based on fraud to the required standard of a balance of probabilities. Having failed to demonstrate illegality or procedural impropriety in the subdivision and issuance of titles, the Respondents’ titles remain protected under Sections 24, 25, and 26 of the Land Registration Act. Consequently, the allegation that the Respondents are trespassers is legally unsustainable.
25. Ultimately, this appeal is devoid of merit and the same is hereby dismissed with costs to the Respondents.
26. Orders accordingly.
DATED, SIGNED and DELIVERED virtually at EMBU this 29th day of January, 2026.
……………………………..
HON.E.C CHERONO
ELC JUDGE
In the presence of;
1. Mr Anwar for the Respondent.
2. 1st Appellant-present.
3 2nd Appellant-absent.
4. 3rd Appellant-absent.
5. Diana C/A
1. The Appellant herein was the Plaintiff in the subordinate court in Sirisia ELC Case No. 9 of 2023 wherein they had sued the Respondents herein vide an amended plaint dated 05/08/2024 seeking for the cancellation of all transfers arising out of title deed no. S.Malakasi/N & C.Namwela/1043 to the Defendants, an order for the mutation of S.Malakasi/N & C.Namwela/1043 into three portions in favour of the Appellants, an order for cancellation of S.Malakasi/N & C.Namwela/1060 and 1061 in the names of the 1st and 2nd Respondents and issuance of new titles in the names of the Appellants and or to have the same reverted to S.Malakasi/N & C.Namwela/1043, an order to the Respondents to demolish all structures on S.Malakasi/N & C.Namwela/1060 and 1061, a declaration that the Respondents are trespassers, a declaration that the sub-division of S.Malakasi/N & C.Namwela/1059 is null and void, a permanent injunction against the respondents in relation to S.Malakasi/N & C.Namwela/1043, an eviction order against the Respondents and costs of the suit.
2. It was their case that one Boniface Wephukulu Pepela-Dcd who died in 1985 left behind an estate comprising land parcel no. W.Bukusu/N.Mateka/873 and Malakasi/ N & C.Namwela/592. That a grant was issued for the estate in Bungoma Succ Cause No.99 of 1993 and land parcel no. S.Malakasi/N & C.Namwela/1059 devolved to the 1st Appellant. That the Respondents sub-divided land parcel no. S.Malakasi/N & C.Namwela/1059 and transferred various portions to themselves through illegal and fraudulent means.
3. The Respondents on their part filed a defence denying the Appellants assertions and placed them on strict proof thereof.
4. The suit proceeded by way of viva voce evidence.
5. PW1 Eddy Machio adopted his witness statement as his evidence and sought for the prayers in the plaint. He testified that has cultivated on parcel 1059 which boarders parcel 593 since the year 2017 and before him his father was in use of the said land. He testified that the Respondents sub-divided parcel 1043 and obtained the resultant titles i.e parcels no. 1059,1060 and 1061.That parcel no. 1059 was registered in the name of Mukandia Machio and John Mukandia Machio, 1060 in the name of David Sitati and lastly 1061 in the name of Jason Soita. He denied that his father sold land to the Respondents and averred that the sale agreements presented were forgeries. He testified that the 3rd Respondent had encroached into parcel 1059.
6. PW2 Pius Soita Machio adopted his witness statement as his evidence in chief. He produced as his documentary evidence PExhibit 1-3 being a copy of certificate of grant, certificate of death and a gazette notice. It was his evidence that he is the administrator for the estate of Boniface Wephukulu Pepeta. He testified that the said estate was distributed and he was allocated parcel no. 592 which he was to share with his brother namely Maurice Machio. He testified that he was not aware that one of his brothers namely John Mukanda had sold his portion of land and he denied signing any agreement for the sale of parcel 592 and dismissed the displayed signature in the agreements and the mutation forms presented as forgeries.
7. PW3 Maurice Machio adopted his witness statement as his evidence in chief. He produced into evidence PExhibit 1-8 being a transfer for parcel 1061, agreement and consent of the LCB, copy of green card for parcel 1060,1059 and 1061. He testified that he was the administrator of parcel 592 which he testified had boundary disputes with parcel 593. He testified that parcel 592 was sub-divided into two halves i.e parcel 1044 and 1043 with one half being registered in his name and the other half to John Mukanda. He testified that parcel 1043 has since been subdivided. He further denied signing the mutation form in relation to parcel 1043.
8. DW1 David Sitati Ndalila adopted his witness statement as his evidence in chief. He testified that he obtained his title legally with the sellers signing the transfer forms. It was argued that the Appellants did not make a report for the alleged forgery of the transfer. He testified that he purchased land measuring 4 ½ acres from John Mukanda where an agreement was recorded and witnessed. He testified that the administrators namely Maurice and Pius Machio signed the transfer forms and application for Land Control Board.
9. DW2 Jason Soita adopted his witness statement as his evidence in chief. He produced into evidence documents as DExhibit 1-6. He testified that he purchased 1 acre of parcel 592 from one John Mukanda on 11/09/1993. He testified that the administrators namely Maurice and Pius Machio signed the transfer forms and application for Land Control Board.
10. DW3 Alfred Kundu Makika testified that he resides in parcel 593 while John Mukanda resides on 592. That the two parcels had a boundary dispute which was resolved.
11. Upon considering the pleadings and the evidence presented, the trial court found that the Appellants had failed to prove their case on a balance of probabilities and proceeded to dismiss their suit with costs.
12. Aggrieved by the said determination, the Appellants preferred the current appeal on the following grounds;
a) The learned trial Magistrate erred in law and fact in dismissing the plaintiff's case without considering the detailed submissions of the plaintiffs.
b) The learned trial magistrate erred in law and fact by failing to consider on a balance of probability the plaintiffs evidence and testimonies.
c) The learned trial magistrate erred in law and fact by failing to recognize that the defendants failed to call crucial witnesses to prove their case.
d) The learned trial magistrate erred in law and fact in failing to recognize that there was no transition as the co-plaintiffs who are also administrators were denied transferring- the suit lands to the defendants.
e) That there are disparities in the dates and the land parcel numbers that resulted in erroneous judgment by the trial magistrate.
f) The learned trial magistrate erred in law and fact by relying on a letter from the ODPP rather than the report by thr DCI with the regard to the claim of fraud.
g) That the trial magistrate failed in law and fact in failing to find that the claim by the defendants that they bought land from the administrators who are co-plaintiffs amounted to intermeddling hence could not sustain.
h) The learned trial magistrate erred in law and fact in failing to find that the subdivision of land parcel no. 1043 was flagrant and marred with controversies hence not sustainable.
i) The learned trial magistrate erred in law and fact in failing to recognize that there exists disparities in the ID Numbers of the alleged seller hence raising a reasonable doubt.
j) The learned trial magistrate erred in law and fact in finding that the transfer was signed by the 2nd and 3rd plaintiffs when they were expressly denied in court.
13. The Appellants in the appeal sought for the judgment of the subordinate’s court to be set aside and the appeal to be allowed.
Submissions on the appeal
14. The Appellants submit that the subdivision and transfer of Title No. S. Malakisi/N&C Namwela/1043 into parcels 1060 and 1061 was unlawful, irregular, and contrary to the Land Registration Act and the Land Act because the 2nd and 3rd Appellants, as administrators of the deceased’s estate, never executed any sale or transmission instruments in favour of the 1st and 2nd Respondents. They argue that the learned Magistrate failed to appreciate that John Mukanda Machio had no title capable of passing, that the alleged transmission instruments were undated, irregular, and executed at a time when the 1st Appellant did not even possess a national ID, and that the Respondents failed to produce any valid title or supporting documentation. Relying on authorities such as Dina Management, Arthi Highway, and Flemish Investments, they contend that titles created in violation of the law are void and incapable of conferring any proprietary interest.
15. On occupation, the Appellants argue that the 3rd Respondent occupies the suit land unlawfully, having produced no ownership documents. They contend that the Magistrate erred by disregarding the contradictory maps in the record—particularly a hand-drawn sketch inconsistent with the official boundary map—and by concluding without proper analysis that no evidence of trespass had been presented.
16. Regarding the weight of evidence, the Appellants submit that the learned Magistrate failed to evaluate the totality of their evidence as required, ignored disparities in identity card numbers, overlooked irregularities in the purported transmission instruments, and relied on an ODPP letter instead of the investigating officer’s report. They argue further that the Respondents failed to call critical witnesses, including those allegedly involved in land sale agreements, warranting an adverse inference. For these reasons, they contend that the Magistrate’s decision was against the weight of evidence, incompetent and void, violated their rights, and should be set aside, with judgment entered in their favour as they have proved their case on a balance of probabilities.
17. The Respondents filed submissions dated 26/11/2025 and submitted that the learned Magistrate fully considered the Appellants’ submissions, as is evident from the judgment between pages 179 and 191, particularly page 185 line 7, but correctly declined to address new issues improperly introduced at the submission stage issues not pleaded nor supported by evidence. Citing the Court of Appeal decision in Moi v Muriithi & Another [2014] KECA 642, they argue that submissions cannot substitute pleadings or evidence, and the Magistrate was therefore right to disregard arguments that fell outside the pleadings. Consequently, the record demonstrates that the Appellants’ submissions were considered to the extent permitted by law, and extraneous matters were properly excluded.
Analysis and determination.
18. I have carefully evaluated the pleadings, proceedings and the evidence adduced contained in the record of Appeal.foregoing. I begin by addressing the grounds of appeal as set out in the Memorandum of Appeal. It is evident that the gravamen of those grounds is the assertion that the trial court failed to properly consider the evidence and submissions presented before arriving at its decision. Accordingly, this Court takes the view that the singular issue for determination is whether, on the totality of the evidence adduced, the Appellants succeeded in establishing their case on a balance of probabilities.
19. Having evaluated the pleadings, oral and documentary evidence, and the submissions of the parties, this court turns to the central question of whether the Appellants proved their allegations that the Respondents fraudulently caused the survey, subdivision, and registration of titles emanating from Land Parcel No. S. Malakasi/N & C Namwela/1043, and whether such titles were consequently illegal. The Appellants’ case was anchored on the contention that the Respondents procured the impugned titles through fraudulent means. They further argued that the sale agreements relied upon by the Respondents were forgeries and incapable of conferring any proprietary interest, thereby rendering the Respondents trespassers.
20. The law as properly captured by the subordinate court is settled that fraud must be specifically pleaded and strictly proved through cogent and credible evidence, the standard of proof being above a balance of probabilities and not beyond reasonable doubt. In this regard, this court finds that the Appellants did not place before the trial court evidence capable of satisfying the threshold. The allegation that the sale agreements were forgeries was not supported by forensic examination, expert testimony, or rebuttal evidence from any person purported to be involved in the transactions. The Appellants’ position remained speculative, uncorroborated, and unsupported by the evidentiary record.
21. It is notable that the subordinate court properly appraised itself on the evidence before it and correctly observed that the sale agreements relied upon by the Respondents were properly drawn and executed. Further, the trial court in her evaluation observed that the Appellants’ father who was alleged to have been a central figure and key witness in the history of the transactions and who was present in court on various occasions as noted in PW1’s testimony, was neither a party to the former suit nor was he called as a witness. This court therefore finds that omission particularly striking, especially given the Appellants’ claim that his participation or knowledge was pivotal to demonstrating the alleged fraudulent scheme. His absence as a witness deprived the Appellants’ case of material corroboration.
22. With respect to the letter from the Office of the Director of Public Prosecutions (ODPP) that the Appellants relied upon as indicative of ongoing criminal proceedings in relation to the alleged forgery, this court concurs with the learned magistrate that the document carried no probative value in the absence of a charge sheet or any formal record of criminal proceedings. A letter, without the anchoring of an instituted criminal case or prosecutorial action, cannot amount to proof of forgery or fraud. The Appellants therefore failed to establish that any criminal investigation had resulted in a formal charge capable of impeaching the Respondents’ titles.
23. On the other hand, the Respondents presented evidence that they purchased their respective portions from the duly appointed administrators of the estate of Boniface Wapukhulu, the acknowledged registered proprietor of the parent parcel and took possession of their claimed portion. They produced documents in support that were regular on their face. The Appellants did not demonstrate that the administrators lacked capacity to transact, nor did they establish that the Respondents were party to any fraudulent manipulation of the land records. In the absence of contrary evidence, I find that the trial court was justified in accepting the Respondents’ documents as authentic and legally effective.
24. On the totality of the evidence, I am satisfied that the learned trial magistrate properly evaluated the material before him and reached a sound conclusion. On the other hand, the Appellants’ failed to discharge their burden of proof based on fraud to the required standard of a balance of probabilities. Having failed to demonstrate illegality or procedural impropriety in the subdivision and issuance of titles, the Respondents’ titles remain protected under Sections 24, 25, and 26 of the Land Registration Act. Consequently, the allegation that the Respondents are trespassers is legally unsustainable.
25. Ultimately, this appeal is devoid of merit and the same is hereby dismissed with costs to the Respondents.
26. Orders accordingly.
DATED, SIGNED and DELIVERED virtually at EMBU this 29th day of January, 2026.
……………………………..
HON.E.C CHERONO
ELC JUDGE
In the presence of;
1. Mr Anwar for the Respondent.
2. 1st Appellant-present.
3 2nd Appellant-absent.
4. 3rd Appellant-absent.
5. Diana C/A