Moindi v Siro & another (Civil Appeal 226 of 2019) [2025] KECA 1630 (KLR) (3 October 2025) (Judgment)
Neutral citation:
[2025] KECA 1630 (KLR)
Republic of Kenya
Civil Appeal 226 of 2019
HA Omondi, LK Kimaru & JM Ngugi, JJA
October 3, 2025
Between
Elijah Nyakundi Moindi
Appellant
and
Vincent Tumbo Siro
1st Respondent
Hon Attorney General
2nd Respondent
(Being an appeal from the Judgment of the Environment and Land Court at Kisii (Mutungi, J.) dated 24thMay, 2019 in ELC Case No. 1200 of 2016 Formerly HCC No. 285 of 2010
Environment & Land Case 1200 of 2016
)
Judgment
1.The 1st respondent herein instituted a suit as the personal legal representative of Paul Siro Mogaka(deceased) vide a plaint dated 8th October, 2010, in Environment and Land Court Case No. 1200 of 2016 formerly High Court Case No. 285 of 2010, claiming fraud with respect to issuance of an extended lease for Parcel No. Kisii Town/Block II/66, originally known as Plot L.R No. 1436/19/VII Kisii Township (hereinafter “suit property”), by the Commissioner of Lands and sought the following orders against the defendants jointly and severally:a.A declaration that Siro Mogakais still the owner of 1/3 share of the suit land N. Kisii Town/Block II/66.b.An order directing the Commissioner of Lands to rectify the extended lease of the suit property to include the name of Siro Mogakaas one of the proprietors in common in equal shares.c.A permanent injunction retraining the 1st defendant, his agents and/or servants from in any way interfering with the 1/3 share of Siro Mogakaand/or his tenants on the same.d.Costs of this suit.e.Any other relief as the Court may deem fit to grant.
2.The dispute before the trial court centered on whether the late Siro Mogaka, the respondent’s father, held a one-third (1/3) share in the suit property as a co-owner alongside the other registered proprietors. The respondent’s case was that the late Siro Mogakahad been admitted as a partner and co-proprietor in the 1960s, had paid his share of consideration, and was duly registered in 1982 as holding a one-third undivided interest in the suit property. He contended that the omission of his father’s name in subsequent records, including the renewal of lease in 2008, was unlawful and fraudulent.
3.The appellant resisted the claim, denying Mogaka’s proprietorship, alleging fraud in his registration, and asserting that the 2008 renewed lease reflected the correct position — that the property belonged to the appellant and the other registered party only.
4.The case proceeded to full trial in which the respondent testified and called two witnesses. The appellant also testified and called one witness in support of his case while the Kisii Land Registrar testified on behalf of the 2nd respondent.
5.The respondent’s case was anchored on the history of the suit property and documentary evidence. During the trial, the respondent produced, PEx.1, a certificate of registration of business name dated 11th January 1958 which showed that Johnson Matundura (Matundura), Sospeter Moindi (Moindi), and Siro Mogaka(Mogaka) carried on business under the style “Johnson Matundura & Co.”
6.By a letter dated 16th August 1964 (PEx.2), Matundura and Moindi requested the Commissioner of Lands, through the Kisii Land Registrar, to include Mogaka as co-proprietor of the suit property, expressly acknowledging him as a “shareholder” since 1953 who had contributed Kshs. 9,000/=. Their advocate, Mr. Dhanwant Singh, followed up with a letter dated 16th February 1965 (PEx.3) seeking consent for transfer of a one-third share to Mogaka for Kshs. 20,000/=. The Commissioner of Lands granted written consent on 6th March 1965 (PEx.4).
7.Thereafter, a duly executed transfer of lease dated 10th July 1980 (PEx.5) was presented and registered on 1st April 1982, and the green card (PEx.6) was updated to reflect Mogaka as proprietor of a one-third share. A Certificate of Lease issued the same day (PEx.7) bore the names of all three proprietors.
8.Upon expiry of the initial 33-year lease on 31st May 1986, the proprietors applied for renewal. By a letter of allotment dated 8th April 1987 (PEx.8) addressed to “Johnson Matundura & Others,” the Commissioner granted a fresh 99-year lease effective 1st June 1953. The Environment and Land Court found, and the documentary evidence confirmed, that “others” referred to Mogaka and Moindi.
9.Following Matundura’s death, his widow, Theresia Nyaechero Matundura, was registered by transmission on 28th November 1994 as proprietor of his one-third share (PEx.9). The position was confirmed in an official search dated 12th May 2005 (PEx.10) which reflected the three co-owners in equal shares.
10.The controversy arose after Mogaka’s death in 2008. The appellant, acting as personal representative of Moindi’s estate, denied Mogaka’s co-ownership and alleged fraud in his registration. The appellant relied heavily on a renewed lease dated 11th January 2008 (DEx.1), issued in the names of Matundura and Moindi only.
11.DW3, the Land Registrar Kisii, testified that records at the Lands office showed that land parcel Kisii Municipality/Block II/66 was registered on 18th August 2016 in the names of Elijah Nyakundi Moindi and Anne Ondiek as joint owners pursuant to Succession Cause No. 584 of 2015. He, however, noted that the Lands office had no documents relating to that succession cause. A Certificate of Lease was subsequently issued in their favour.
12.He explained that prior to this registration, the lease issued from Nairobi on 4th November 2009 reflected Johnson Matundura and Sospeter Moindi as joint tenants in equal shares. Significantly, he testified that on 10th July 1980, Siro Mogakahad been added to the lease as the third co-owner, giving each of the three an equal 1/3 share of the property. A transfer of this undivided 1/3 share was duly executed, stamped, and voluntarily signed by the original owner. Consequently, a Certificate of Lease issued on 1st April 1982 carried the names of all three co-owners, including Siro Mogaka.
13.The Land Registrar clarified that upon renewal of the lease, the old lease was surrendered, but the renewed lease omitted the name of Siro Mogaka. He attributed this omission to the Nairobi records not having been updated, and emphasized that there was no instrument showing that Siro Mogakahad ever relinquished his interest. In his professional view, the renewed lease ought to have included Siro Mogaka’s name, and its omission amounted to a mistake.
14.He further explained that the letter of allotment of 1987, which renewed the lease for 99 years from 1953, was intended merely to extend the existing lease and did not extinguish the rights of the existing co-owners.
15.DW3 concluded his testimony by producing the full set of documents contained in the parcel file for the suit property, all of which he referred to during his evidence.
16.The trial court carefully considered the oral and documentary evidence tendered. It held that the evidence presented by the respondent was cogent and demonstrated a lawful process through which Mogaka acquired a one-third interest in the suit property. The court emphasized the contemporaneous documents, particularly the 1964 and 1965 correspondence, the Commissioner’s consent of 1965, the transfer of lease registered in 1982, and the Certificate of Lease issued the same day, all of which consistently affirmed Mogaka’s ownership.
17.On the issue of fraud, the trial court held that fraud must be specifically pleaded and proved to a standard above a balance of probabilities and that no such proof was adduced by the appellant. The trial court further found that the 2008 lease, which excluded Mogaka’s name, was irregular, as it purported to include Johnson Matundura long after his death, ignored the lawful registration of his widow by transmission in 1994, and was never validly executed or registered.
18.The court concluded that (the estate of) Mogaka remained a lawful one-third proprietor of the suit property, and ordered rectification of the register to reflect his name alongside the other co-owners.
19.Aggrieved, the appellant lodged this appeal raising six grounds, namely that the Learned Trial Judge erred in law and fact and listed six grounds of appeal as follows:1.The Learned Trial Superior Court Judge erred in law and fact by failing to appreciate the law and evidence tendered in court.2.The Learned Trial Superior Court Judge erred in law and fact in holding that the plaintiff/respondent held a 1/3 share of the suit property as partner.3.The Learned Trial Superior Court Judge erred in law and fact by holding that there was no evidence of any fraud in the registration of Siro Mogaka’s name in the suit property.4.The Learned Trial Superior Court Judge erred in law and fact by ordering the rectification of the register in Kisii Town Block 11/66 to include the name of Siro Mogakaas the owner of 1/3 undivided share of the suit property.5.The Learned Trial Superior Court Judge erred in law and fact by holding that the renewed lease of 11th January, 2008 was invalid, null and void contrary to the documents obtained from the commissioner of lands.6.The Learned Trial Superior Court Judge erred in law and fact by holding that as at the time of renewal of the lease, there were three registered owners each holding a 1/3 share of the suit property.
20.This is a first appeal in which we are required to review issues of both facts and law afresh and come to our own independent conclusions. We are, however, obligated to bear in mind that the trial judge had the advantage of seeing and assessing the demeanor of witnesses. (See Selle vs. Associated Motor Boat Co. Limited (1968) EA 123). In addition, this Court must be cognizant of the fact that it should not interfere with the findings of fact by the trial court unless they were based on no evidence or on a misapprehension of the evidence or the trial judge is shown demonstrably to have acted on wrong principles in reaching his findings. (See Jabane vs. Olenja (1968) KLR 661).
21.During the virtual hearing of the appeal, learned counsel, Mr. Nyambati appeared for the appellant and learned counsel, Mr. Masese appeared for the 1st respondent. There was no appearance for the 2nd respondent during the hearing. Both parties filed written submissions which they relied on.
22.The appellant anchored his appeal principally on the assertion that Siro Mogaka’s acquisition of a one-third share in the suit property was irregular and unsupported by proper documentation. He contended that since Mogaka was not one of the original allottees, his inclusion could only be justified by a valid and enforceable conveyance. According to the appellant, no such transaction was demonstrated. The respondent’s reliance on alleged payments of Kshs. 20,000/= as consideration and a partnership contribution of Kshs. 9,000/= was, in his view, wholly inadequate because there was no documentary proof of such payments.
23.To buttress this point, the appellant invoked section 3(3) of the Law of Contract Act, as it stood in 1965 when the correspondence regarding Mogaka’s inclusion was generated. He emphasized that, at the time, the law expressly prohibited enforcement of contracts for the disposition of land unless the contract was in writing, signed by all parties, and attested by witnesses. Since no such formal instrument was produced, the appellant insisted that Mogaka could not have acquired any lawful interest.
24.The appellant further challenged the authenticity of the documentary evidence relied upon by the 1st respondent. He argued that one of the letters was not even related to the suit property but to a separate business arrangement, while the other was suspicious in form and content, lacking an advocate’s letterhead and any cross-references to earlier correspondence. He cast doubt on the very existence of the advocate allegedly involved, maintaining that there was no proof that the original allottees had instructed him. Likewise, the letter said to be from the Commissioner of Lands was faulted for being unsigned, for failing to acknowledge earlier correspondence from the allottees, and for not being copied to them. In the appellant’s view, these deficiencies suggested fabrication.
25.The appellant also argued that the burden of proving Mogaka’s legitimate entry into the title lay squarely on the 1st respondent.Mere reliance on partnership records or letters of questionable authenticity, he submitted, did not discharge that burden. He reinforced his argument by pointing out that Sospeter Moindi himself once filed Kisii HCCC No. 130 of 2005, challenging Mogaka’s name in the title as fraudulent. Though the case was later withdrawn, the appellant argued that Moindi only did so after securing a renewed lease which excluded Mogaka’s name — an omission which, in the appellant’s submission, was a tacit admission of fraud.
26.In reply, the 1st respondent associated himself with the arguments made before the trial court and placed the dispute within its historical context. He argued that as early as 11th January 1958, a partnership had been duly registered between Johnson Matundura, Sospeter Moindi, and Siro Mogaka, pursuant to a certificate of registration produced in evidence. He submitted that Mogaka’s status as a trading partner explained and justified his eventual incorporation into the ownership of the suit property.
27.The respondent further stated that following the establishment of the partnership, the original allottees of the suit property formally wrote to the Commissioner of Lands requesting that Mogaka be registered as a co-owner. He maintained that this request was duly acted upon, and that by 10th July 1980, the records reflected Mogaka as holding a one-third undivided share. This culminated in the issuance of a Certificate of Lease on 1st April 1982, which bore the names of Johnson Matundura, Sospeter Moindi, and Siro Mogakaas co-owners.
28.He conceded that the property was originally allotted to Matundura and Moindi but argued that they voluntarily opted to include Mogaka, both as partner and co-owner. The respondent submitted that the central issue was not whether Mogaka was an original allottee, but whether his inclusion as a co-owner was fraudulent. On this point, he relied heavily on the testimony of DW3, the Land Registrar, who confirmed that the transfer was voluntary, properly executed, and duly registered, and that the subsequent omission of Mogaka’s name in the renewed lease was an administrative oversight.
29.To further reinforce his case, the respondent referred to the letter of allotment dated 13th April 1987, which extended the lease for 99 years. He noted that soon thereafter, following the death of Matundura, his widow Teresa Nyaechero Matundura was properly substituted on the title. This was corroborated by the official search dated 12th May 2005, which reflected the registered owners as Teresa Matundura, Sospeter Moindi, and Siro Mogaka, and by the certificate of lease issued on 10th March 2005, which similarly bore Mogaka’s name.
30.The respondent argued that these records conclusively demonstrated Mogaka’s co-ownership, and that the omission of his name in the 2009/2010 renewal process could not negate a registered interest that had subsisted since 1982. He dismissed the appellant’s suggestion that the lease expired in 2006 and that Mogaka’s name “vanished” during renewal, pointing out that even as late as 2005, Mogaka’s name appeared in official records and was acknowledged in pleadings filed by Moindi himself.
31.We have considered the grounds of appeal, the submissions of counsel, the evidence, and the law. The central issue is whether the trial court erred in holding that the late Siro Mogakawas a lawful one-third co-owner of the suit property and whether the 2008 lease affected his interest.
32.On the question of co-ownership, the documentary record (PEx.1– PEx.7) establishes a consistent and lawful process by which the late Mogaka was included as a proprietor. The 1964 and 1965 correspondence, the Commissioner’s written consent, the registered transfer of lease in 1982, and the contemporaneous certificate of lease all confirm his entitlement. The appellant’s allegation of fraud was unsupported by evidence. As the trial judge correctly noted, fraud must be specifically pleaded and proved to a standard higher than a balance of probabilities. No such evidence was presented.
33.The appellant’s reliance on the 2008 lease (DEx.1) was misplaced. PW2, the Land Registrar, testified that the omission of Mogaka’s name was erroneous. The lease was further tainted by the fact that it bore the name of Johnson Matundura, who had died years earlier, and ignored the registered transmission to his widow in 1994 (PEx.9). Moreover, the lease was not duly executed or registered. The trial court properly found it irregular and incapable of defeating vested interests reflected in the register.
34.The record also shows that at the time of renewal in 1987, the three proprietors—Matundura, Moindi, and Mogaka—were co-owners (PEx.8). This was further confirmed by the 2005 official search (PEx.10). The trial court’s conclusion that there were three registered owners each holding a one-third share was therefore firmly supported by evidence. This is what the learned Judge said in his final analysis:
35.We have cited the judgment at length because we fully agree with the careful analysis and determination of the learned trial judge. We are satisfied that the learned Judge carefully evaluated the evidence and applied the correct legal principles. We have reweighed the evidence and the law and we are unable to reach a contrary conclusion. We find no error in principle.
36.The upshot is that we find no basis for interfering with the judgment and order of the Environment and Land Court. Accordingly, we are satisfied that this appeal lacks merit. We hereby dismiss it with costs to the 1st respondent.
DATED AND DELIVERED AT KISUMU THIS 3RD DAY OF OCTOBER, 2025.H. A. OMONDIJUDGE OF APPEAL..................................L. KIMARUJUDGE OF APPEAL..................................JOEL NGUGIJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR