1. The Appellant herein sued the Respondents in Webuye SPMC ELC Case no. 20 of 2020 vide a plaint dated 04/09/2020 seeking inter alia the cancellation and nullification of land parcel no. Bokoli/Kituni/1141,1142,1143 and 1144 and to have the same revert to land parcel no. Bokoli/Kituni/651 for proper apportionment according to a confirmation of grant issued on 14/12/1995 issued in Webuye SRMC P&A No.5 of 1994.
2. It was his claim that he obtained a certificate of confirmed grant in relation to his father’s estate and he was to share the estate as per the said grant. That the 1st to 3rd Respondents who are his brothers thereafter obtained vesting orders against him with regards land parcel no. Bokoli/Kituni/651 which led to the subdivision of the abovementioned parcel of land into 4 plots as stated above. He claimed that the said sub-division was is fraudulent and proceeded to itemize particulars of fraud against the Respondents.
3. The 2nd Respondent filed a statement of defence dated 30/09/2022 denying the Appellants claim in toto. The other Respondents did not enter appearance of file a defence.
4. The suit proceeded by way of viva voce evidence.
5. PW1 Willian Kisaka Lukorito Wanyonyi adopted his witness statement dated 04/09/2020 as his evidence in chief and produced into evidence his national ID Card as PExhibit1, Certificate of confirmed grant as PExhibit 2 & 3 and a copy of official search as PExhibit 4.
6. DW1 Benson Juma Lukorito adopted his witness statement as his evidence in chief and produced into evidence a court orders as DExhibit 1, a green card for land parcel no. Bokoli/Kituni/651 as DExhibit 2, a map of the new sub-division as DExhibit 3, mutation form as DExhibit4 and meeting minutes as DExhibit 5. He testified that the land in issue was sub-divided on 12/06/1995 in accordance with the grant. That he had at the time sold a portion of his land.
7. Upon consideration of the issues before it, the trial court in its judgment entered on 21/02/2023 dismissed the Appellants suit for lack of merit with no orders as to costs.
8. Aggrieved by the said determination, the Appellant preffered the current appeal on the following grounds;
a) That the learned trial magistrate erred in law and in fact in holding that the appellant has failed to prove his case on a balance of probability in spite of the clear cogent evidence that was adduced thereof.
b) That the learned trial magistrate did not bring his mind bear judiciously on the burden, standard and incidence of proof in civil proceedings and fell short of elevating it to prove of beyond reasonable doubt.
c) That the learned trial magistrate erred in law and in fact in fact holding that the appellant failed to establish prima facie against the Respondents.
d) That learned trial magistrate erred in law and in fact in law by finding this suit as being Res-judicata which is not the case.
e) That the learned trial magistrate erred in law and in fact in absolving the respondents totally from fraudulent acts against the weighty evidence on record.
f) That the learned trial magistrate erred in law and in fact by failing to make an order cancelling the illegal sub-division and apportionment of land parcel number BOROLI/KITUNI/651 contrary to the confirmed grant issued on 14th December 1995.
g) That the learned trial magistrate erred in law and in fact when he failed to employ the civil law principles of balance of probability hence his finding was triggered by bias.
9. The appellant in the Appeal sought to have the appeal allowed, the judgment of the subordinate court set aside and the Appellants primary suit allowed with costs being awarded to the Appellant in both instances.
10. Directions were taken for the appeal to be canvassed by way of written submissions. The 2nd Respondent filed submissions dated 28/10/2025 through the firm of Messers Were & Co Advocates while the Appellant foiled submissions dated 26/11/2025 in person which both submissions this court has taken time and carefully considered.
Analysis and determination.
11. I have exhaustively considered the record of appeal, the ruling of the trial court, the appellant’s grounds of appeal, the submissions by the parties as well as the law. In reviewing decisions of this nature from trial court, this court considers the standard set in Selle vs. Associated Motor Boat Co. Limited (1968) EA 123 where on a first appellate court’s duty to reappraise the evidence and come up with its own independent evaluation and conclusions is applicable.
12. This Appellate court considers that the single issue for determination is whether the Appellant proved his case to the required standard before the subordinate court.
13. The Appellant’s case was that the Respondents fraudulently caused the subdivision of land parcel number Bokoli/Kituni/651 into resultant parcels numbers 1141 to 1144 without his knowledge or concurrence, and thereafter apportioned the said subdivisions to erroneously. The Appellant asserted that these actions were undertaken contrary to the certificate of grant issued on 14/12/1995 in respect of the estate of their late father. According to him, the Respondents acted outside the authority derived from the grant and in a manner inconsistent with the lawful distribution of the estate. On the other hand, the 2nd Respondent contended that following the confirmation of the grant, the Appellant abdicated his responsibilities as an administrator and began operating independently, thereby frustrating the administration process. It was his position that, owing to this inaction, the Respondents sought and obtained vesting orders lawfully authorizing the subdivision and transmission of the land.
14. A careful evaluation of the evidence on record demonstrates that the Appellant indeed obtained letters of administration in 1995 but failed to act on them for a considerable period. It is undisputed that in 1998, the Respondents filed an application seeking vesting orders in Webuye SRM Misc. Application No. 15 of 1998 due to the Appellant’s prolonged inactivity in administering the estate. The said court issued vesting orders on 28/05/1999, expressly directing that land parcel Bokoli/Kituni/651 be distributed among the four brothers in accordance with the existing grant, and further authorizing the Executive Officer to execute the necessary transfer documents. Pursuant to those orders, the 1st to 3rd Respondents proceeded to subdivide the land into four portions and allocated each to the four brothers. The Appellant now challenges these subdivisions, contending that they were unlawful and inconsistent with the terms of the confirmed grant, and he seeks that the resultant titles be nullified.
15. The 2nd Respondent, however, raised a jurisdictional and procedural challenge by asserting that there exists Webuye ELC Case No. 61 of 2022, in which the Appellant has sought similar reliefs concerning the same subject matter. It was therefore his argument that the present proceedings are both sub judice and res judicata. The doctrine of sub judice under Section 6 of the Civil Procedure Act prevents courts from entertaining suits where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties pending before a court of competent jurisdiction. Likewise, the principle of res judicata under Section 7 of the same Act bars the re-litigation of issues that have already been heard and finally determined. The trial court, and equally this appellate court, are obligated to consider these doctrines in order to prevent multiplicity of suits, avoid conflicting outcomes, and safeguard judicial economy. The trial court can therefore not be faulted for directing itself to the existence of the pending Webuye matter and for appreciating its implications on the current claim.
16. With respect to fraud, the Appellant alleged fraudulent conduct in the subdivision of the estate land. Fraud, however, is a serious allegation which must be pleaded with particularity and proved to a standard higher than the ordinary balance of probabilities, though not as high as beyond reasonable doubt. Authorities such as Kinyanjui Kamau v George Kamau (2015) emphasize that fraud cannot be inferred from mere suspicion or conjecture; it must be established through strict proof. In this case, the Appellant did not lead any evidence to demonstrate false representation, forgery, deceit, collusion, or any dishonest act attributable to the Respondents. He did not tender documentary proof, call witnesses, or provide any credible details supporting the accusation. In the absence of such proof, and given the existence of lawful vesting orders authorizing subdivision, the allegation of fraud was wholly unsupported.
17. The law is settled under Sections 107 to 109 of the Evidence Act that he who alleges must prove. The Appellant bore the legal and evidentiary burden to establish, on a balance of probabilities, that the subdivisions were inconsistent with the grant or that the Respondents exceeded the authority granted by the vesting orders. It was incumbent upon the Appellant to demonstrate, with clear and cogent evidence, that the acreages of the resultant parcels departed from what was contemplated or authorized. Instead, the record shows that he did not call an expert witness particularly a licensed land surveyor to analyze, interpret, and verify the measurements and boundaries of the disputed subdivisions. The nature of the claim made the testimony of such an expert indispensable, as the court is not equipped with technical expertise to ascertain survey dimensions, boundary alterations, or acreage discrepancies without professional evidence. In the absence of such expert testimony, no factual foundation was laid to support the allegation that the subdivisions deviated from the vesting orders or that the Executive Officer’s execution was irregular. The trial court was therefore entitled to find that the Appellant had failed to discharge his burden of proof.
18. In the totality of the foregoing, this court agrees with the trial court’s reasoning and the ultimate finding that the Appellant did not tender any tangible or admissible evidence to justify the orders sought. The record demonstrates that the subdivision was undertaken pursuant to valid court orders, that the Appellant failed to discharge the burden of proof regarding alleged irregularities, and that the claim was further weakened by the existence of a parallel suit before the Webuye court. The trial court properly directed itself on both the facts and the applicable law.
19. Consequently, this court finds that the appeal lacks merit and the same is hereby dismissed with no orders as to costs, considering the relation of the parties herein.
20. It is so ordered.
DATED SIGNED and DELIVERED VIRTUALLY this 19th day of FEBRUARY, 2026.
……………………………..
HON.E.C CHERONO
ELC JUDGE
In the presence of;
1. Appellant/Advocate-absent.
2. Respondent/Advocate-absent.
3. Diana C/A.
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