BONIFACE AKUYABA LIKOBE VS State Law AND Ministry of Lands and Physical Planning AND 2 Others

Background

A brief background of the appeal herein, as can be gathered from the record of appeal, is that BONIFACE AKUYABA LIKOBE, the appellant herein was the plaintiff in VIHIGA PMC MELC CASE NO 31 OF 2020 (the suit).

Vide the amended plaint filed in court on 16/10/2020, he sued the Respondents herein for a declaration that the suit land was not lawfully sub-divided, an order of eviction of the 1^st Respondent from the suit land, an order of permanent injunction and costs.

His case in the suit was that he was at all material times the registered owner of the whole of land parcel known as KAKAMEGA/TIGOI/648 (the suit land). That until the year 2017, the land was registered in the name of one Alfayo Ombundu who was the appellant’s father but who died on 27/6/2002.  That after the appellant had obtained title to the suit land through a succession process, the defendants fraudulently sub divided the suit land into KAKAMEGA/TIGOI/1178 and 1179, transferred the same and issued titles.  That the 1^st Defendant trespassed onto land parcel no. KAKAMEGA/TIGOI/1179 and commenced construction of a brick house and pit latrine.

The record shows that the 1^st Defendant filed Defence and counterclaim dated 26^th June 2020.  He denied the appellant’s claim and counterclaimed for a declaration that the process of acquisition of title No. KAKAMEGA/TIGOI/648 by the appellant was without legal basis and should be nullified and the appellant be restrained from holding himself out as lawful proprietor of the land.

The suit was heard before the trial court which vide the Judgment dated 11^th April, 2024 found that the suit land was lawfully sub-divided, that the appellant’s suit lacked merit and dismissed the suit with costs to the 1^st Respondent.

The Appeal

Dissatisfied with the Judgement, the appellant preferred the present appeal vide the Memorandum of Appeal dated 11^th May 2024 on the grounds that: -

1. THAT the Learned trial Magistrate erred in law and in fact by failing to consider the evidence presented before her.
2. THAT the learned trial Magistrate erred in law and in fact in failing to find that SAMUEL OMBULA MILEHO, who purportedly transferred the property known as L, R, NO. KAKAMEGA/TIGOI 1179 to the 2^nd Defendant did not have any proprietary rights over the suit property.
3. THAT the learned trial Magistrate erred in law and fact by failing to find that in the absence of a transfer instrument for the property known as L.R. NO. KAKAMEGA/TIGOI 1179 from the original proprietor ALFAYO OMBUNDU to SAMUEL OMBULA MILEHO, or to any other party to this suit, then any transactions on the property by SAMBUEL OMBULA MILEHO or any other person is null and void.
4. THAT the learned trial Magistrate erred in law and in fact by failing to find that the root of title held by the 2 ^nd Defendant was a nullity for want of lawful authority to transfer by one Samuel Ombula Mileho and hence all subsequent transfers and entries on the title were nullities.
5. THAT the learned trial Magistrate erred in law and in fact in failing to appreciate the evidence on record to the effect that there was form of transfer and no land control board consent for the transfer of the property known as L.R, NO. KAKAMEGA/TIGOI 1179 from the original proprietor ALFAYO OMBUNDU to SAMUEL OMBULA MILEHO.
6. THAT the learned trial Magistrate erred in law and in fact in failing to appreciate the evidence on record to the effect that there was no land control board consent for the transfer of the property known as L.R, NO. KAKAMEGA/TIGOI 1179 from SAMUEL OMBULA MILEHO to the 2 ^nd Respondent herein.
7. THAT the learned trial Magistrate failed to apply the law properly by upholding land dealings in the absence of written contracts to that effect pursuant to Section 3(3) of the Law of Contracts Act.
8. THAT the learned trial Magistrate erred in upholding land transfers to the 2 ^nd and subsequently to the 1 ^st Respondent without satisfying herself that stamp duty was paid pursuant to the provisions of the Stamp Duty Act cap 480 of the Laws of Kenya.
9. THAT the learned trial magistrate erred ill law and in fact in finding that there was a transfer to EMILY KHAKAYI when there was no evidence before court to support such a finding.
10. THAT the learned trial magistrate erred in law and in fact in finding that as a result of the purported transfer to the said EMILY KHAKAYI then she could not issue an eviction order despite evidence on record showing that the said transfer was done during the pendency of the suit and to the spouse of the 1^st Respondent in order to defeat the ends of justice.
11. THAT the learned trial Magistrate erred in law and in fact in ignoring the evidence on supporting the fact that. the register for L.R. NO, KAKAMEGA/TIGOI 648 was never closed for subdivision, hence supporting the argument that the purported subdivisions thereon were forgeries.
12. THAT the Learned trial Magistrate erred in law and in fact in failing to allow the suit by the Appellant.

The Appellant seeks in this appeal for orders that the Judgment of the trial court be set aside in its entirety and in its place the court finds that; -

1. The sub-division of all that property known as L.R No. KAKAMEGA/TIGOI/648 to L.R No. KAKAMEGA/TIGOI/1178 and L.R No.  1179 was fraudulent, null and void.
2. That the transfer of the land parcel number L.R No. KAKAMEGA/TIGOI/1179 to the 2^nd Defendant was a nullity as the person who transferred it to him one Samwel Ombula Mileho had no legal capacity to do so.
3. That an eviction order be issued ordering any person claiming title under the 1^st and 2^nd Defendants off the property.

Submissions

The Appeal was disposed of by way of written submissions.  It was submitted on behalf of the appellant vide the written submissions field by Wambugu & Muriuki Advocates that the transfer of land to Samuel Ombula lacked merit and was not proven to be valid. That Samwel Ombula had no proprietary rights to transfer the property to the 2^nd Respondent.  That the appellant inherited the whole property from his deceased father and was lawfully given title to the land after the succession to his father’s estate. Counsel relied on the cases of Jivanji- vs- Sanyo Electrical Company Ltd and Nelson Kazungu & 9 others –vs- Pwani University College (2017) eKLR where it was held that a right can only be protected when it exists and that rights to land are acquired.

That while the provisions of Section 3(3) of the Law of contract Act requires that a land sale agreement be in writing, the 2^nd Respondent did not have sale agreement and also failed to produce Land Control Board Consent for the transfer of the land as required by Section 6 of the Land Control Act.

That stamp duty was not paid. That Section 19(2) of the stamp duty Act provides that documents whose stamp duty has not been paid cannot be admitted in evidence in civil proceedings.

On whether or not the appellant holds a valid title to the property, Counsel relied on the case of Hubert L. Martin & 2 others -vs- Margaret J. Kumar & 5 others where it was held, inter alia, that a court faced with a case of two or more titles over the same land has to make investigations so as to discover which title should be upheld and that every party must show that their title has a good foundation and passed properly to the current title holder.  Counsel submitted that on 22/4/2015 the 3^rd Respondent issued an official search showing that title deed for the whole of land parcel number KAKAMEGA/TIGOI/648 was still registered in the name of Alfayo Ombundu and that the same was still undivided.  That the appellant conducted succession proceedings which were unopposed by the Respondents after which he obtained title that he was the registered owner in accordance with the provisions of Sections 24 and 26 of the Land Registration Act.

On whether or not eviction order should issue, Counsel submitted that only the appellant holds valid and current title deed to the land and all other dealings and any titles by the Respondents should be declared null and void.

Counsel urged the court to set aside the judgment and award costs to the appellant.

Submissions by the 1^st Respondent

Written submissions dated 12^th February 2025 were filed on behalf of the 1^st Respondent by the firm of J.M Migosi & Co Advocates. Counsel submitted that a certificate of title is prima facie evidence of ownership of any land parcel as provided for in section 26 of the Land Registration Act.  That the title deed produced by the appellant for parcel No. KAKAMEGA/TIGOI/648 was closed and new parcels being number KAKAMEGA/TIGOI/1178 AND 11179 created.  That the green card showed that the sub-division happened in the year 1986 which was long before the demise for the registered proprietor, Alfred Ombundu.

That the transfer of parcel No. KAKAMEGA/TOGOI/ 1179 was done in 2001, valid consent forms signed before the death of the original proprietor.  That the mother title No. KAKAMEGA/TIGOI/ 648 having been closed, the appellant cannot claim to have proprietary rights over a nonexistent parcel of land.  That fraud is a serious allegation which must be specifically pleaded and proved.  That the appellant has failed to adduce any credible evidence of fraud.  That the trial Magistrate correctly dismissed the suit.  Counsel urged the court to dismiss the appeal in its entirety, uphold the judgment of the trial court and order the appellant to pay the costs of the appeal and the proceedings before the trial court.

Submissions for the 2^nd Respondent

The 2^nd Respondent filed a document titled Reply to Memorandum on 12/3/2025 in person.  He stated that Alfayo Ombundu, deceased exercised his right to sub-divide parcel No, KAKAMEGA/TIGOI/648 to create parcel numbers KAKAEMGA/TIGOI/1178 and 1179 in 1986.  That the deceased then sold parcel No. KAKAMEGA/TOGOI/ 1179 to Samwel Ombula Mihero. That the appellant should have sued Samwel Ombula Mihero as the first transferee.  The 2^nd Respondent prayed that the judgment and decree of the trial court be upheld.

No submissions were field for the 3^rd and 4^th Respondents.

Issues for determination.

The Memorandum of Appeal lists 12 grounds appeal.  Having considered the entire record of appeal, the grounds of appeal and the submissions made, the following are the issues that emerge for determination in the appeal.

1. Whether or not the appellant proved before the trial court that land parcel No. KAKAMEGA/TIGOI/648 existed and that he was the bon fide registered owner.
2. Whether the appellant proved that parcel No. KAKAMEGA/TIGOI/ 648 was fraudulently sub-divided to create KAKAMEGA/TIGOI/1178 and 1179.
3. Whether the appellant proved before the trial court that transfer of land parcel No. KAKAMEGA/TIGOI/1179 to the 2^nd Respondent was fraudulent.
4. Whether or not the trial court erred in its findings and decision.
5. Whether the appeal has merit.
6. What order to make on costs?

Analysis and determination

This is a first appeal. The principles guiding handling of a first appeal are that the appellate court has a duty to reconsider the whole evidence produced before the trial court, re-evaluate it and arrive at its own independent conclusion. While doing so, the court keeps in mind the fact that the trial court had the advantage, which the appellate court does not have, of seeing and hearing the parties and their witnesses first hand. In the case of Gitobu Imanyara & 2 others –vs- Attorney General [2016] e KLR the court held that the principles upon which a first appellate court proceeds are well settled and stated that: -

“Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.”

(Also see Selle & another vs Associated Motor Boat Company Ltd & Another (1968) IEA 123)

The evidence that was placed before the trial court by the appellant who was the plaintiff in the suit comprised of his own testimony and the exhibits that the produced.  The record shows that the appellant testified as PW1 and through his witness statement dated 11/6/2020 which was adopted as his evidence in chief, he stated that the suit land was registered in his name and that he had the title deed which was issued to him on 29/12/2017 upon registration of Certificate of Confirmation of Grant which he had obtained vide Hamisi Succ Cause No. 18 of 2015.  That the suit Land was originally registered in the name of Alfayo Ombundu who was his father and who died on 27/6/2002.  That to his shock in May 2020 people entered his land on the upper part and started destroying his crops and trees and clearing ground to cultivate and placing building materials. That he found out that the people were employees of the defendant who had taken possession and was constructing on the upper part of the land.

On cross-examination he denied that he was aware that his father sub-divided the land before his death.

He produced a copy of title deed for parcel No. KAKAMEGA/TIGOI/ 648, certificate of official search, Certificate of Confirmation of Grant, Death certificate, receipt for caution, Demand Notice and photographs as exhibits.

On behalf of the Defendants, the 1^st, 2^nd and 3^rd Defendants testified. 

DW1 was the 1^st Defendant. He testified that he bought land parcel No. KAKAMEGA/TIGOI/1179 measuring 0.23 Ha from the 2^nd defendant.  That he conducted search and found that the land was in the name of the 2^nd Defendant.  He produced the land sale agreement dated 17/1/2020, copy of title deed for the seller and his own title deed.

He stated that he has since transferred the land to Emily Khekei who is his wife.  That the plaintiff stays on parcel Number KAKAMEGA/TIGOI/1178 and that they have built a permanent house.  On cross examination he stated that his land was hived from parcel No. 648.

The 2^nd defendant testified as DW2. He adopted the contents of his witness statement as his evidence and produced copies of green cards for KAKAMEGA/TIGOI/648, 1179 and 1179.    On cross examination he stated that he bought the land from Samuel Ombura and that Alfayo told him that he had sold the land.

DW3 was Langat Hillary the Land Registrar, Vihiga County.  He testified that in respect of land parcel No. KAKAMEGA/TIGOI/648 the first entry was made on 9/7/1973 in the name of Ambundu. He referred the court to the subsequent entries on the register. He produced the original green card for parcel numbers KAKAMEGA/TIGOI/1178 and 1179, Mutation form, Transfer form, Land Control Board consent and payment receipt.

The first issue for determination is whether or not the appellant proved before the trial court that land parcel No.648 existed and that he was the bona fide registered owner thereof.

The Appellant pleaded and testified that he was the owner of parcel No. KAKAMEGA/TIGOI/ 648 which he acquired through succession process.

DW3 the Land Registrar produced 3 green cards (Copies of register).  The green card in respect of the original land parcel number KAKAMEGA/TIGOI/648 shows that the land measuring 0.39 ha was first registered in the name of Alfayo Ombundu on 9/7/1973 when the register was opened.  It shows further that on 25/6/2001 a caution was placed by one Boniface Akuyaba claiming licencee interest, that on 29/12/2012 the caution entry was removed and the land registered on the same day in the name of Boniface Akuyaba Likobe vide Succ Cause No. 18 of 2015 SRM’s court Hamisi.  The green card further shows an entry made on 29/12/2017 reading “Title deed issued (2204156) (see New Nos. 1178- 1179 of 1986. Issue reported.”

On the face of this history, it could appear that land parcel number KAKAMEGA/TIGOI/ 648 was existent as at the year 2012 when it was transmitted in favour of the appellant. However, perusal of the green card in respect of the resultant parcels No. 1178 and 1179 show that the register in respect of the two parcels were opened in the year 1986.

The green card in respect of parcel no. 1178 shows that parcel No. KAKAMEGA/TIGOI/1178 was a product of sub –division of land parcel number KAKAMEGA/TIGOI/648.  That the register was opened on 13/6/1986 when the land was registered in the name of Alfayo Ombundu.  That the parcel measured 0.17 ha.  The green card in respect of parcel No. 1179 similarly shows that the land was a produce of sub-division of land parcel number 648.  That the land measures 0.23 ha.  The green card shows that the register in respect of the parcel was opened on 13/6/1986 when the parcel was registered in the name of Alfayo Ombundu.  The green card further shows that on 16/1/1987 the land was transferred to Samuel Ombula Mireho at a consideration of Kshs 8,500/= That on 6/4/2001 the Land was transferred to Ezekiel Ochola Manzu as a gift.  That on 21/1/2020 it was transferred to Christopher Avisa and title deed issued to him on the same date and lastly to Emily Khakai Lureka on 28/10/2020 and title deed issued to her on the same date.

From these document’s it cannot be said that the appellant proved before the trial court that land parcel No. KAKAMEGA/TIGOI/648 was existent and that he was the bona fide registered owner thereof.  The evidence was that the title ceased to exist in the year 1986 when it was sub-divided to produce new numbers.  The evidence of DW3, the Land Registrar, explained that the Land Registrar who did the sub-division had failed to close the register for No. KAKAMEGA/TIGOI/648 upon sub-division and that is why the appellant proceeded to file succession cause under that number.  The Land Registrar explained further that the land should not have been subjected to succession.

The second issue for determination is whether the appellant proved before the trial court that land parcel number 648 was fraudulently sub-divided. To produce KAKAMEGA/TIGOI/1178 and 1179.

The appellant had pleaded in paragraph 6 of the amended plaint that the sub division of parcel No. 648 to create Nos 1178 and 1179 was fraudulent. The appellant itemized the particulars of fraud thereunder.  The trial court after hearing the evidence placed before it found that fraud had not been proved.

In paragraph 4 of the amended plaint, the appellant pleaded that his father, the original owner of the land died on 27^th June 2002. The evidence on record shows that the land parcel No. KAKAMEGA/TIGOI/ 648 was sub-divided into No. KAKAMEGA/TIGOI/1178 and 1179 in the year 1986.  This was in the lifetime of the plaintiff’s father the original registered owner.  Parcel No 1179 was transferred to Samwel Ombula Mireho in the year 1987 still in the lifetime of the original registered owner.  The evidence of the 2nd Respondent was that all these transactions were done by Alfayo Ombundu, the original registered owner and father of the appellant.

A reading of the documents produced by DW3, the Land Registrar, confirms the evidence of the Respondents.  The Land Registrar produced mutation forms evidencing the sub-division of parcel number KAKAMEGA/TIGOI/ 648, Transfer forms., Land Control Board Consent and payment receipt.  These are the official documents to be relied on by the court. Section 7 (1) of the Land Registration Act makes the Land Registrar the custodian of documents of ownership of land. It provides:

“There shall be maintained, in each land registration unit, a land registry in which there shall be kept: -

1. A land register in the form to be determined by the Commission,
2. The cadastral map,
3. Parcel files containing the instruments and documents that support subsisting entries in the land register
4. Any plans which shall, after a date appointed by the Commission, be geo-referenced’
5. The presentation book, in which shall be kept a record of all applications numbered consecutively in the order in which they are presented to the registry,
6. An index, in alphabetical order, of the names of the proprietors and
7. A register and file of powers of Attorney.

Section 9(1) places the mandate to maintain the documents upon the Land Registrar as follows: -

“The Registrar shall maintain the register and any document required to be kept under this Act in secure, accessible and reliable format…”

In Mwangi -vs- Thiro & 2 others (Environment & Land Case 122 of 2014) [2022] KEELC 14423 (KLR)  the court observed that the Land Registrar is the custodian of all the documents in the Land Registry with power/mandate to produce the same as evidence in court or other proceedings. 

Further, the standard of proof for cases based on the tort of fraud is higher than proof on usual standard in civil cases of a balance of probabilities.   See case of Koinange & 13 others vs Charles Karuga Koinange 1986 KLR at page 23 where the court held that:

“When fraud is alleged by the Plaintiffs the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.”

The appellant did not prove fraud. He was relying on the error of the Land Registrar of failing to close the register after sub-division of parcel No. KAKAMEGA/TIGOI/ 648 in 1986 to lay claim to the land. I find that fraud was not proved.

The next issue is whether the appellant proved before the trial court that transfer of land parcel No. KAKAMEGA/TIGOI/1179 to the 1^st Respondent was fraudulent has been answered in issue No. 2 herein above.  The land had long left the appellant’s father’s ownership and been transferred to other people before it was finally transferred to the 1^st Respondent.  The documents produced by DW3 and the evidence of both DW3 and DW2 show that the process of sub-division of the land and subsequent dealings were lawful.

The 4^th issue for determination is whether the trial court erred in its decision and findings.

On the basis of the determinations hereinabove, the court finds that the trial court was right and did not err in finding that the land parcel number KAKAMEGA/TIGOI/648 was lawfully sub-divided in the year 1986 and in consequently dismissing the appellant’s case with costs to the 1^st defendant.

This court finds no basis to interfere with these findings.  The upshot is that the court finds that the appeal has no merit and hereby dismisses it.

Costs of the appeal are awarded to the 1^st and 2^nd Respondents who defended the appeal.

Orders accordingly.

Judgement dated and signed at Vihiga and delivered this 12^th day of June 2025 virtually through Microsoft Teams Online Application.

E. ASATI,

JUDGE.

In the presence of:

Ajevi- Court Assistant.

Eredi for the Appellant.

Migosi for the 1^st Respondent.