ALEX OUMA NYAJURE VS State Law AND ERICK OKOMO AKUKU AND 1 Others

(Being an Appeal from the Judgement and Decree of Hon. N. Wairimu in Migori ELCCC No. 30 of 2022, delivered on 25th January 2024)

1. By way of a Plaint dated 20/12/2021, the Appellant instituted a suit seeking the following orders;
a) An order directed at the 2nd defendant to revoke and/or cancel all title deed for LR. No. NYATIKE/KANYASA/6509, 6510 and 6511 and revert same to the original No. NYATIKE/KANYASA/1302 in the names of the Plaintiffs’ deceased's father- Alfred Owuor Nyajure.
b) An order of permanent injunction to restrain the 1st Defendant by himself, anyone claiming under him and/or acting with the 1st Defendants express and/or implied authority from selling, alienating, transferring or subdividing land parcel known as L.R NYATIKE/KANYASA/1302.
c) Costs of the suit.
2. The Respondents filed a Statement of Defence dated 06/06/2022 in response. The 1st Defendant contended that he was the sole registered owner of original title no. NYATIKE/KANYASA/1302, registered on 19/01/2015 with the full knowledge of the Plaintiff. He secured a portion measuring 3.52 Hectares comprised of two titles namely NYATIKE/KANYASA/6509, and 6511 measuring 2.89 and 0.63 Ha, which was sold to the 1st Defendant by the Plaintiff.
3. He further stated that he held the remaining portion of 1.04 Hectares in favor of the plaintiff, which portion he sold to a third party. He urged that the original suit title was registered in the name of the Plaintiff’s father and additionally, that the original suit title was never part of the Plaintiff’s father’s estate. He prayed that the suit be dismissed with costs.
Hearing at the trial court
4. The matter proceeded for hearing where the Plaintiff called 2witnesses whereas the Defendant called 1 witness.
5. PW1 was the Appellant who testified that he adopted his written witness statement dated 20th December 2021 as his evidence in chief. In it, he stated that he filed the case on behalf of his deceased fathers’ estate and that his father died in 1996 leaving him the suit land. That he sold a piece of the suit land to the 1st Defendant but he conspired with the 2nd defendant and fraudulently transferred the entire parcel without any succession. Further, that they conspired to sub divide the suit land into 3 portions giving rise to LR NYATIKE/KANYASA/6509, 6510 and 6511.
6. He stated that there were no succession proceedings were conducted on the property. He was desirous of filing a succession cause hence his request for the court to cancel all the title deeds that were created out of LR NYATIKE/KANYASA/1302. He added that he had been in occupation of the suit land since his childhood and reiterated that the transfer to the 1st defendant was fraudulent.
7. In cross examination, he stated that he had no documents to show that the original title was in his fathers’ name. He, however, had an agreement for the sale of land and when referred to the title deed in the name of the 1st Defendant he stated that he did not know of the same.
8. PW2 was Eliud Nyawach, the Plaintiff’s neighbour. He adopted his written witness statement dated 20th December 2021 as evidence in chief. He stated, in his statement, that the plaintiff was the biological son to Alfred Owuor Nyajure and the only beneficiary to the estate. That the appellant sold 4 acres of the suit land to the 1st defendant who then conspired with the 2nd defendant to illegally transfer the whole parcel into his name. Further, that the father to the deceased was the initial registered owner and no succession was conducted on the property hence the transfer is fraudulent.
9. He stated that the appellant has been in occupation of the suit land since his childhood and urged the court to grant the orders sought.
10. During cross examination, he stated that he had no document to show that there was collusion between the 1st and 2nd defendants and further, that he had no evidence to show that the land was initially registered in the name of the plaintiffs’ father.
Defence evidence
11. The 1st defendant adopted his witness statement as evidence in chief. He stated that the Plaintiff surrendered a portion of the suit land measuring 0.63 Ha and 2.89 Ha and the remained measuring 1.04 Ha was duly transferred to the Appellant as title number NYATIKE/KANYASA/6510 and he collected the title. Further, that the Suit land has never been registered in the name of the Plaintiff’s father and cannot therefore form part of the estate of the deceased. He stated that his registration was effected on 19th January 20 and the suit is founded on malice. He stated that he came into possession of the land after the Alex sold it to him. Further, he was told he was being sold parcel no. 1302 and he did not take any steps to estimate the ownership since they used the chief and village elders to show them the land. Further that he entered into an agreement and produced a copy of the same. He stated that the second agreement was done in 2015 and he referred to the green card on the title that stated that he was the first owner. He urged that when registering, during adjudication, one would present documents for the parcel they had bought. That he was the first registered owner after he presented his documents during adjudication in 2011.
12. In cross examination he reiterated that he was the first registered owner and that a transfer was done between himself and the Plaintiff and the property registered in his name. He clarified that in 2009 there were no title deeds and the adjudication was done in 2011 and titles issued in 2015 therefore he could not have done due diligence at the time. He paid the appellant and transferred a portion of the land to him and paid for him to get a title.
13. The defence then closed its case and the parties filed submissions. Upon considering the, testimonies in court, the evidence of the parties, and the submissions the trial magistrate vide a judgement delivered on 25/01/2024, dismissed the Plaintiff’s suit with costs.
14. Aggrieved with the Judgement, the defendant filed this appeal vide the Memorandum of Appeal dated 16/02/2024 premised on the following grounds;
1) The learned magistrate erred in both law and fact when she failed to consider, evaluate and balance the pleadings, evidence and submissions thereby reaching to a wrong conclusion that the Respondent acquired title deeds illegally.
2) The learned magistrate erred in both law and fact when she failed to consider all the circumstances surrounding the case; specifically, the fact that the transfer and registration of LR NYATIKE/KANYASA/1302 to generate new numbers by the respondent was pure fraud since no grant had been obtained or issued respecting the demised estate of Alfred Owuor Nyajure.
3) The learned magistrate erred in both law and fact when she failed to find that the purported sales contravened sections 45 and 82(b) (ii) of the Law of Succession Act that provides that no immovable property of a deceased person shall be sold before confirmation of grant yet the sale agreement produced by the respondent confirmed that the sale took place before confirmation of grant. Therefore, it follows that the sale of the said 7.77 Acres to the Respondent was illegal, null and void and could not confer any good title to the Respondent.
4) The Learned trial magistrate was biased against the Appellants.
Hearing of the Appeal
15. The Appeal was canvassed by way of written submissions. The appellant filed his submissions on 06/03/2025 whereas the Respondent, as at the time of writing this decision, had not filed their submissions.
Appellants’ submissions    
16. The Appellant submitted that the suit land was in his father’s name at the time of his death but it appears the records at the Lands office knowingly and intentionally were interfered with the records to reflect otherwise. That this was done by the 1st Respondent in collusion with the officers of the 2nd Respondent. He pointed out that he produced a copy of agreement dated the 12th day of October, together with a chief’s letter dated even day and further, that the parcel of land in the dispute is recorded as 1302. That the chief wrote the succession letters and he specifically referred to the letter dated 12th October, 2009 which was apparently issued by the Chief of the Area on the same day the agreement for the sale of land was entered into. He urged that it is the same chief of the area, before whom the sale of land agreement was executed; who also issued the letter for succession on the same day the agreement was executed. The said letter for succession which was issued by the very chief of the area before whom the agreement for the sale of the portion of LR of L.R NYATIKE/KANYASA/1302 now NYATIKE/KANYASA/6509, 6510 and 6511 was also done, was itself sufficient reason to draw inference that the suit property belonged to the deceased Alfred Owuor Nyajure. Had this not been so, there was no reason for the chief write and issue a letter for succession respecting the said parcel of land.
17. The Appellant submitted further that this was further corroborated by another letter dated 8th of December 2022 done by the Chief of the Area and in which letter the chief confirms that portions of the plot No o: L.R NYATIKE/KANYASA/1302 now NYATIKE/K ANYAS A/6509, 6510 and 6511 were sold on different dates to buyers such as the defendant herein. He urged that the Respondent could not claim to be the 1st registered owner of the suit land as the succession letters were issued before the registration of ownership. Further, that there was already a registered owner in 2009.
18. He submitted that adjudication and registration of various parcels of land within the NYATIKE/KANYASA adjudication area cannot be said to have happened in 2015 ab reiterated that the existence of the title number preceded the registration in 2015. He urged that even though the copy of extract of the register from the land’s office shows the Appellant as the 1st registered owner, the same beats logic. Further, that the evidence in terms of the witness testimony and the produced documents were sufficient to make the lower court arrive to a different conclusion other than that which it arrived at.
19. He stated that during the sale of the suit land, both parties were aware that the said land was in the name of Alfred Owuor Nyajure – Deceased hence the taking out of a letter of introduction for succession from the area chief on the day they entered into the agreement in 2009. That the 1st Respondent admitted to purchasing the property from Alex Nyajure, a son to the deceased. He had no proprietary rights to confer and therefore no title was capable of being passed. Counsel invited the court to invoke and apply the maxim of nemo dat quod habet.
20. The Appellant contended that the suit properties formed part of his deceased father’s estate before they were fraudulently registered in the name of the 1st Respondent. It was his position that the registration of the 1st Respondent as the owner of the suit parcels was fraudulent and illegal when no succession relating to the estate was yet to be instituted. Nobody therefore had the right to dispose of or interfere with the said property whatsoever. He quoted Section 45 and of the Law of Succession Act and urged that the provisions were not complied with before the suit property was transferred. Therefore, the said registration was thus a nullity since the demised estate could only be dealt with under the law of succession Act upon the death of Alfred Owuor Nyajure and not otherwise.
21. Counsel submitted that the transaction constituted intermeddling with the property of a deceased person contrary to section 45 of the law of succession act. He cited Section 26(1) of the Land Registration Act, Act No 3 of 2012 urging that from these provisions, it appears the law is very protective of title but such protection can be lifted and title impeached on two identifiable instances; the first is where the title is obtained by fraud or misrepresentation to which the persona must be proved to be a party. The second is where the certificate of title has been acquired illegally, unprocedurally and through a corrupt scheme. He cited the case of Elijah Makeri Nyangwara v Stephen Mungai Njuguna & Another [2013] eKLR where Munyao J expressed himself on whether title is impeachable under section 26(1)(b) of the said Act
22. Counsel submitted that the evidence that was adduced linking the 1st Respondent to the fraudulent transfer was overwhelming.
23. He cited the case of Funzi Development Ltd & Others V County Council of Kwale, Mombasa Civil Appeal No. 252 of 2005 [2014] eKLR and urged the court to cancel the titles for the suit property and order reversion of the same to the estate of the deceased Alfred Owuor Nyajure.
24. Counsel reproduced the provisions of Section 82 of the Law of Succession Act and urged that it was not disputed that the estate of the deceased Alfred Owuor Nyajure was yet to be succeeded. He cited In the Re Estate of Jamin Inyanda Kadambi (Deceased) [2021] eKLR and reiterated that the parties herein lacked the capacity to enter into any transaction over the land and any such sale of a portion or portions thereof was illegal, null and void. He further submitted that the trial magistrate exhibited bias when she failed to appreciate the facts and the circumstances of the case.
25. He prayed the court allow the Appeal with costs.
Analysis & Determination
26. This is a first appeal. The principles upon which a first appellate court exercises jurisdiction is well settled. The task of a first appellate court was summarized in Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows:
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.”
27. Additionally, the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows:
“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions.”
28. The issues that arise for determination are; Whether the trial court erred in dismissing the Appellants’ then suit.
29. The cause of action in the trial court arose from the claim that the defendants’ title arose from a fraudulent transfer. The Appellant urged that the transfer was from the sale of a portion of the suit land to the Respondent upon which the 1st and 2nd Respondents conspired to transfer the whole parcel into the name of the 1st Respondent.
30. It is trite law that he who alleges must prove. Section 107 of the Evidence Act provides:
Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.
31. Sections 109 and 112 of the same Act provide:
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.
…
112. in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.
32. The Appellant was called upon to produce evidence that the suit land was initially registered in his fathers’ name as he had initially claimed but he could not produce any evidence of the same. Section 26 of the Land Registration Act is categorical that a certificate of title is prima facie evidence that the person named therein is the proprietor of the land but the same can be challenged where the Certificate of title has been acquired fraudulently, unprocedurally or through corrupt practice. See Chemei Investments Limited –vs- The Attorney General & others Nairobi Petition No. 94 of 2005.
33. To begin with, the Appellant could not produce the title of the suit land in his fathers’ name. Additionally, his witnesses failed to corroborate the allegation that the suit was registered in his fathers’ name.
34. As the Appellant had no title registered in his name, it follows that he had no locus to institute the suit. In the case of Elijah Nderitu Gachaga v Francis Gakuu Gachaga & 2 others [2019] eKLR, the court in addressing the issue of locus standi had this to say; -
Black’s law dictionary defines locus standi as the right to bring an action or to be heard in a given forum. The forum includes a Court of law. In Rajesh Pranjivan Chudasama vs. Sailesh Pranjivan Chudasama [2014] eKLR the Court of Appeal held that;
“..........a litigant is clothed with locus standi upon obtaining a limited or full letter of administration in cases of intestate succession........”
35. With the provisions of Section 26 in mind, the Appellant failed to produce a certificate of title and therefore lacked the capacity to institute the suit. Additionally, as he alleged that the suit land belonged to his father, he failed to produce any evidence of the same, or any grant of letters of administration ad litem as evidence that he had authority to pursue the claim on behalf of his fathers’ estate.
36. The Appellant alleged that the transfer of the suit land to the 1st defendant was fraudulent. Allegations of fraud are serious in nature. It requires that a party alleging it must strictly plead and prove it by production of evidence. This was the position R.G. Patel vs Lalji Makanji (1957) E A 314 the former Court of Appeal for Eastern Africa stated thus:-
“Allegations of fraud must be strictly proved; although the standard may not be so heavy as to require proof beyond a reasonable doubt something more than a mere balance of probabilities is required.”
37. The Court of Appeal in the Case of Arthi Highway Developers Ltd –vs- West End Butchery Ltd & 6 Others (2015) eKLR echoed the same principle when it held thus:-
“It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above balance of probabilities but not beyond reasonable doubt.”
38. In my humble view, the Appellant failed to produce any evidence of the fraud in the about the impugned transaction. Therefore, the trial court did not err in dismissing the suit as he failed to satisfy the burden of proof.
39. On whether the trial court erred in failing to find that the property was transferred contrary to the law of succession, I reiterate that the Appellant was unable to provide any evidence that the property was initially registered in his father’s name. Therefore, also this ground of appeal fails. In the absence of the title, there is no proof that the property comprised the estate of his late father and therefore the issue of a transfer contrary to the law of succession does not arise.
40. Whereas the appellant alleges bias on the part of the trial court, it is my considered view that the trial magistrate did not err in determining the suit as the Appellant failed to prove his case on a balance of probabilities. For bias to exist there has to be open or perceived favouritism on the part of the decisionmaker. That would involve the arbiter knowingly including or excluding items or facts which he ought not to include or exclude respectively, or bending some rules in favour of a party. None of these have been shown to have been the portion of the trial magistrate.
41. The upshot of the foregoing is that the appeal not merited at all. It is dismissed with costs to the Respondents.
42. Orders accordingly.
Ruling dated, signed and delivered at Migori via the Teams Platform this 25TH Day of June 2025

HON DR. IUR FRED NYAGAKA
JUDGE
In the presence of,
Mr. Kisera Advocate for the Appellant
Mr. Achola Advocate for the Respondent