Introduction
The record of appeal shows that the appellant herein was the defendant in VIHIGA MCEL CASE NO. E010 OF 2022 wherein vide the plaint dated 3rd March 2022 he had been sued by the respondent herein over a parcel of land known as W. BUNYORE/ESSABA/2076 ‘A’. The respondent who claimed to be the owner of the said parcel of land sought for an order of eviction of the appellant together with his servants, agents, and relatives from the suit land and costs of the suit.
The record shows that the appellant denied the claim vide the amended defence and counterclaim dated 12th July 2022. The appellant vide the counterclaim claimed that the respondent had obtained title to the suit land by fraud and sought for orders of cancellation of the said title and an order that the land reverts to the original parcel No. W. BUNYORE/ESSABA/124 in the name of the deceased, one FRANCIS ANG’ANGA CHETI.
The suit was heard before the trial court which, vide the judgement dated 27th February 2025, found that the respondent had proved her case against the appellant on balance of probabilities and that the respondent was entitled to the relief sought. The trial court then entered judgment in favour of the respondent and against the appellant for;-
(i) A declaration that the respondent is the lawful proprietor of all the parcel of land known as W. BUNYORE/ESSABA/2076 ‘A’.
(ii) An order of eviction.
(iii) The appellant’s counterclaim is dismissed with costs to the plaintiff
(iv) Costs of the suit and the counterclaim.
The appeal
Aggrieved by the judgment, the appellant filed the present appeal vide the Memorandum of Appeal dated 10th March 2025 seeking that the appeal be allowed, the judgment delivered on 27th February 2025 be set aside and that costs of the appeal be provided for.
Submissions
The appeal was, pursuant to directions given on 16th October 2025, heard by way of written submissions.
On behalf of the appellant written submissions dated 10th November 2025 were filed by OMK & Associates Advocates. Written submissions dated 1st December 2025 were filed by Samba & Company Advocates on behalf of the respondent.
Issues for determination
Counsel for the appellant framed 3 issues for determination based on the grounds of appeal namely; -
(i) whether the trial Magistrate erred in law and fact by basing the devolution of title and the subsequent eviction order on an unproduced and potentially unconfirmed Grant of representation, thereby fundamentally misapplying the provisions of the Law of Succession Act, Cap 160 (ground 2).
(ii) whether the learned trial Magistrate erred in fact and law by relying on inadmissible hearsay evidence regarding the alleged prior apportionment of land to the appellant (Parcels 675 and 435) thereby violating established rules of evidence (grounds 1 and 3).
(iii) whether the learned Magistrate erred in disregarding and/or failing to substantially adjudicate the appellant’s counterclaim, thereby occasioning a miscarriage of justice (ground 4)
Analysis and determination
This being a first appeal, the court reminds itself of the duty to re-examine and analyze the evidence placed before the trial court with a view to arrive at its own independent conclusion. See section 78 of the Civil Procedure Act and Selle & another vs Associated Motor Boat Company Ltd & Another (1968) IEA 123) where it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact and law by the court below but has a duty to re-examine the evidence placed before the trial court.
The evidence placed before the trial court by the respondent who was the plaintiff in the suit is as contained in her witness statement dated 3/3/2022 in which she had stated that she was the registered owner of the suit land. That the land was an inheritance from her late father by the name of Francis Ang’anga Cheti deceased. That she had sued the appellant who was her brother because he had refused to move from the land. That the appellant had been given. LR No. W. BUNYORE/ESSABA/675 and 435 by their father before he (their father) died. In court she stated that after their father died their mother did succession to the estate of their father and gave her the suit land. That the succession cause was No, 56 of 2011 in Kakamega. PW2 was the area chief who stated inter alia that the appellant stays on the suit land.
PW3 was the mother of both parties herein. She testified that she is the one who gave the respondent the suit land and gave the appellant the two land parcels.
The appellant testified as DW1, he adopted the contents of his witness statement dated 18/8/2023. He stated that the respondent was his sister. That a parcel of land known as W. BUNYORE/ESSABA/124 was initially registered in the name of his father by the name of Francis Ang’anga Cheti in 1964.That the land was a product of an amalgamation of land bought by his father and the ancestral land which amalgamation the father did in the year 1982. That he has lived on the land since the year 1968 when his father built for him his cottage on the land. That his father who died in 1994 was buried on the land.
That he went to the lands office in the year 2022, conducted search and realized that there were changes on the parcel of land known as W/BUNYORE/ESSABA/124 which title had been closed upon sub-division to create, inter alia, parcel No. W. BUNYORE/ ESSABA/ 2076 ‘A’registered in the name of the plaintiff.
He prayed that the court cancels all the entries that were made in the register in respect of the land parcel No. W. BUNYORE/ESSABA/124 and that thee land be reverted to the deceased so that the family dicides on the right action to take.
In court he stated that he was not aware of any succession proceedings in Kakamega High court Cause No. 56 of 2011.
There is no contest that the suit land parcel No W. BUNYORE/ESSABA/2076 ‘A’ is a product of sub-division of land parcel known as W. BUNYORE/ESSABA/124. The title deed produced by the respondent to prove her ownership shows that the suit land is a sub-division of land parcel No. W. BUNTORE/ESSABA/ 124.
There is also no contest that land parcel No. W. BUNYORE/ESSABA/124 was the property of one Francis Ang’anga Cheti, deceased, up to the time of his death. The evidence of PW3, the mother to the appellant and the respondent was that PW3 succeeded the estate of her late husband. She stated in paragraph 15 of her witness statement that she filed the succession cause at Vihiga Law courts, was appointed as administrator of the estate of her late husband and that she gave the suit land to her daughters.
The root of the respondent’s title was challenged by the appellant. The appellant pleaded in paragraph 7 of the defence and counterclaim that the respondent acquired title to the suit land without petitioning for Letters of Administration of the estate of the deceased registered owner one Francis Ang’anga Cheti and sought vide the counterclaim for the title to be cancelled and the land revert to parcel No. W. BUNYORE/ESSABBA/124 in the name of the deceased.
This placed a burden of proof on the respondent to prove the root of her title yet the only documents that the respondent produced in evidence were a copy of her title deed, chief’s letter and certificate of official search. The chief’s letter does not mention any succession proceedings as having been undertaken in respect of the estate of the deceased. None of the documents produced by the respondent explained how she got the land transmitted from the deceased, sub-divided and a portion thereof registered in her name as W. BUNYORE/ESSABA/2076 ‘A’. The testimony of PW3 was not backed with any documentary evidence.
The respondent claimed that the appellant had already been given two parcels of land by the deceased namely; W. BUNYORE/ESSABA/675 and 435. This was also the evidence of PW3 who testified that the appellant was given parcels numbers 675 and 435. The same narrative was contained in the chief’s letter produced by the respondent as exhibit. It was stated in the chief’s letter that the deceased left behind 3 parcels of land namely; W. BUNYORE/ESSABA/124, 675 and 435. That the said parcels were registered as follows; - W. BUNYORE/ESSABA/124 in the name of Francis Ang’anga Cheti, W. BUNYORE/ESSABA/675 in the name of Hanningtone Timbua Cheti and W. BUNYORE/ESSABA/435 in the name of Tibwa Ang’anga.
No evidence was produced firstly to show the existence of the two parcels of land numbers W. BUNYORE/ESSABA/ 675 and 435 and secondly to show that if the two parcels of land exist, they ever belonged to the deceased and that they were bequeathed to the appellant.
For the foregoing reasons I find that the trial court erred in holding that from the documentation before court, the suit property was transferred from the late Francis Ang’anga Cheti to the respondent after a succession process. That Letters of Administration had been issued and that Florence Muchelle Ang’anga was the administrator of the estate. These findings were not supported by any evidence.
It will be noted that even the details of the alleged succession cause were not disclosed. While the respondent stated that the succession cause was No. 56 of 2011 Kakamega, PW3 the mother of the respondent and the appellant stated in her witness statement that she had filed a succession cause at Vihiga Law Courts vide which she administered the deceased’s estate.
I find that the trial court erred in finding, in the absence of any evidence, that PW3 allocated to the appellant plots W. BUNYORE/ESSABA/675 and 435 and that therefore it was only fair that the property No. W. BUNYORE/ESSABA/ 2076 ‘A’ be returned to the respondent as her rightfully earned property.
I further find that the trial court erred in finding that the respondent had proved her case on a balance of probabilities.
The counterclaim challenged the propriety of the respondent’s title to the suit land. As the respondent never explained the roof of her title, the counterclaim ought to have succeeded. The appellant claimed in the counterclaim that the respondent had failed to file a succession cause in respect of the estate of Francis Ang’anga Cheti before transferring land parcel No. W. BUNYORE/ESSABA/124 and causing the land to be sub-divided without proper transfer.
This placed a burden of proof on the respondent to explain the root of and prove that her title was acquired through lawful process. The Court Appeal in Munyu Maina – vs – Hiram Gathiha Maina, Civil Appeal number 239 of 2009 held that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.
Further, in Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School (2023) eKLR the Court held that the elements of a good title are that the title must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question, contain a recognizable description of the property; and not contain anything that casts any doubt on the title.
The Supreme Court in Dina Management Limited vs. County Government of Mombasa & 5 Others (Petition No. 8 (E010) of 2021 held that a title document can be invalidated if it is proven that the initial allocation process was illegal or un-procedural. This simply means possession of a registered title documents by a property owner is not conclusive proof of ownership.
What emerged from the evidence was that although the respondent had title to the suit land, she was not able to explain the process by which she acquired it to the exclusion of the appellant who is her brother and a child of the original registered owner who is residing on the suit land. Such title is impeachable under the provisions of sections 26 and 80 of the Land Registration Act. It is in the interest of justice that the title be cancelled and the land revert to the original title number W. BUNYORE/ESSABA/124 in the name of the deceased for proper administration and distribution in accordance with the provisions of the Law of Succession Act.
I find that the appeal has merit. The appeal is hereby allowed, the judgement of the trial court is set aside and substituted with a judgement dismissing the respondent’s suit and allowing the counterclaim as follows:
i. subdivision of land parcel No. W. BUNYORE/ESSABA/124 to produce parcel numbers W. BUNYORE/ESSABA/2076 and 2077 and the titles in respect of parcel numbers W. BUNYORE/ESSABA/2076 and 2077 are hereby cancelled.
ii. the land is hereby reverted to the name of the deceased Francis Ang’anga Cheti as No W. BUNYORE/ESSABA/124.
As the parties are close family members let each party bear own cost of the actions in the lower court and of the appeal.
Orders accordingly.
Judgement dated and signed at Vihiga and delivered virtually this 12th day of February 2026.
E. ASATI,
JUDGE.
In the presence of:
Ajevi --Court Assistant.
Mirembe for the Appellant
Chesire for the Respondent.
| ELC APPEAL NO. E011 OF 20257 |