JOSHUA MUSUNGU MULAGO AND HUDSON AGOSA SORE VS LYDIA MAKUBILANI MILIONI

(Being an appeal from the judgment of the Chief Magistrate’s Court at Kakamega (Hon. Eric Malesi, Principal Magistrate) delivered on 6^th September 2022 in Kakamega MCELC No. 157 of 2019)

1. Litigation leading to this appeal commenced in the Subordinate Court at Kakamega on 18^th October 2019 when the Respondent filed Plaint dated 16^th October 2019. The suit was brought against the First Appellant as First Defendant, the Second Appellant as Second Defendant and Fredrick Chitila Kamau as Third Defendant. The initial Plaint was replaced by Amended Plaint amended on 29^th November 2019.
2. The Respondent averred in the Amended Plaint that she was the widow of Millioni Sangare Lwova (deceased) who was the registered proprietor of land parcel number Isukha/Virhembe/600 (the suit property) and that on conducting a search in respect of the suit property in September 2019, she discovered that it had been fraudulently subdivided into Isukha/Virhembe/1664, 1665 and 1666 and registered in the names of the Defendants. The Respondent therefore sought judgment against the Defendants for cancellation of the subdivisions, restoration of the suit property in the deceased’s name, costs of the suit and interest.
3. The Defendants filed Statements of Defence in which they denied allegations of fraud and averred that they acquired the subdivisions lawfully. They further averred that the Respondent lacked locus standi and gave notice of preliminary objection to that effect. They later filed a Preliminary Objection dated 11^th December 2020 in which they contended that the suit offended Sections 79, 82 and 80 (2) of the Law of Succession Act and Order 2 Rule 15 of the Civil Procedure Rules. In essence, they reiterated their objection on locus standi.
4. Upon hearing the matter, the Subordinate Court (Hon. Erick Malesi, Principal Magistrate) delivered judgment on 6^th September 2022 and granted the orders sought by the Respondent, stating that her evidence was uncontroverted.
5. Dissatisfied with the outcome, the Appellants filed this appeal on 4^th October 2022, through their Memorandum of Appeal dated 30^th September 2022. They prayed that the judgment of the Subordinate Court be set aside. Fredrick Chitila Kamau, who was the Third Defendant in the proceedings in the Subordinate Court, was not included in the appeal.
6. The following are the grounds of appeal as listed on the face of the Memorandum of Appeal:
7. The learned trial magistrate erred in law and fact in finding in favour of the Respondent when the Respondent did not have Locus to institute the suit before court.
8. The respondent did not prove the case on the balance of probability.
9. The trial magistrate shifted the burden of proof to the appellants.
10. The trial court closed the defence case prematurely.
11. The proceedings were carried out in an irregular way to prejudice the appellants.
12. The Respondent passed away on 9^th February 2023, and was substituted by Sabet Khasiala Sangale, pursuant to an order made on 29^th April 2024.
13. The Appeal was canvassed through written submissions. The Appellants filed submissions dated 18^th December 2023 wherein it was argued that the Respondent filed the suit without taking out Letters of Administration in respect of the deceased's estate and that although she later obtained Letters of Administration during the pendency of the suit, she had no locus standi at the commencement of the suit hence the suit was a non-starter. It was further submitted that the Respondent did not prove her case on a balance of probabilities and that although she pleaded and particularized fraud, she merely adopted her witness statement in which no fraud was mentioned.
14. It was also contended that the Respondent did not meet the threshold for cancellation of title as provided under Section 26 of the Land Registration Act. Lastly, it was submitted that the Appellants were denied an opportunity to be heard since the defence case was closed without them tendering evidence, yet their pleadings were on record. The Appellants placed reliance on the cases of Fatuma R Sebe & another v Rashid Masaudi Nasoro & another [2019] eKLR and Mutiso v Patel [2022] KEHC 11783 (KLR).
15. In response, the Respondent filed submissions dated 23^rd February 2024 wherein it was submitted on her behalf that on 22^nd July 2021, the matter proceeded ex-parte as the said hearing date had been taken by consent. That subsequently, the Appellants severally failed to attend court and to comply with directions of the court leading to the delivery of the judgment on 6^th September 2022. That the Appellants did not canvass their case and instead abused the magnanimity of the Subordinate Court which kept entertaining them.
16. It was further argued on behalf of the Respondent that she had obtained Letters of Administration in respect of the deceased’s estate and that in any case, the suit property was ancestral land and that the Respondent as the widow of the deceased was the right person to safeguard her deceased husband’s property from intermeddling since her children were mentally handicapped. The Respondent therefore urged the Court to dismiss the appeal with costs while further contending that it was filed out of time and without leave.
17. This is a first appeal. Consequently, the remit of this Court is to re- evaluate the evidence in the trial court both on points of law and facts and to come up with its own findings and conclusions. As the Court of Appeal held in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR:

This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess, and reanalyze 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.

1. I have carefully considered the entire record, the grounds of the appeal and the parties’ submissions. The issues that arise for determination are whether the appeal was filed within time, whether the Respondent had locus standi and along with it whether the Subordinate Court had jurisdiction, whether the Respondent established her case and whether the reliefs sought were available.
2. The proceedings leading to this appeal were before the Subordinate Court pursuant to the jurisdiction granted to the said Court by Section 26 (3) and (4) of the Environment and Land Court Act as read with Section 9 (a) of the Magistrates’ Courts Act, 2015. By dint of Section 16A (1) of the Environment and Land Court Act, any appeal against a judgment or order made by Subordinate Courts in such matters is to be filed in this Court within 30 days of the date of the judgment, order or ruling. A perusal of the record shows that the judgment appealed against was delivered on 6^th September 2022 and that this appeal was filed 28 days later, on 4^th October 2022. I find that this appeal was filed within time.
3. Regarding the issue of whether the Respondent had locus standi and in turn whether the Subordinate Court had jurisdiction, a perusal of the original Plaint filed on 18^th October 2019 and the Amended Plaint filed on 2^nd December 2019 reveals that the Respondent brought the case as the widow of the deceased and that she sought to correct what she considered to be a wrong committed to the deceased who was the registered proprietor of the suit property. Specifically, her complaint was that the suit property had been fraudulently subdivided into Isukha/Virhembe/1664, 1665 and 1666 which were then registered in the names of the Defendants. To right the wrong, as is manifest at paragraph 5a of the Amended Plaint, she sought cancellation of the subdivisions so that the suit property is restored to the deceased’s name and in turn for it to be distributed in the succession cause that was pending. According to paragraph 3 of the Amended Plaint, the deceased passed away on 22^nd April 2017, some two and a half years before the filing of the suit. I have no doubt in my mind that the Respondent filed the suit to agitate a cause of action vested in the deceased’s estate.
4. The Respondent neither pleaded nor demonstrated that she held any letters of administration in respect of deceased’s estate as of 18^th October 2019 when she filed the suit. She was not a personal representative of the deceased’s estate and lacked locus standi. Consequently, she could not validly agitate any cause of action vested in deceased’s estate, however noble her intentions. See Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR and CKM v ENM & another (Civil Appeal 250 of 2019) [2024] KECA 293 (KLR) (8 March 2024) (Judgment).
5. The Court of Appeal stated in Rugiri v Kinuthia & 3 others [2024] KECA 1601 (KLR) thus:

Decided cases are in agreement that where a suit is filed relating to a deceased’s estate without a grant of representation, the proceedings are null and void for want of locus standi. (See Virginia Edith Wamboi vs. Joash Ochieng Ougo & Another [1982-88] 1 KAR and Trouistik Union International & Another vs. Jane Mbeyu & Another Civil Appeal No. 145 of 1990). It follows, therefore, that for a party to have locus standi to institute or defend a case for and on behalf of a deceased person, he or she must first obtain a grant of letters of administration empowering him or her to administer the deceased’s estate or a limited grant limited for the purpose of filing or defending the suit.

1. The Respondent’s suit was therefore null and void from inception, for want of locus standi and the Subordinate Court lacked jurisdiction to hear and determine it. The Appellants properly raised the issue of locus standi in their Statements of Defence and in the Preliminary Objection dated 11^th December 2020. The Learned Magistrate did not however address the issue. Locus standi being an issue that went to the jurisdiction of the court, the Learned Magistrate was required to address it even if the Appellants did not make any submissions on the issue.
2. I have perused the record of the Subordinate Court, and I have noted therein a copy of Letters of Administration issued to the Respondent in respect of the deceased’s estate on 6^th January 2020, after the filing of the suit and after the Appellants had raised the issue of want of locus standi. The said document was not produced as an exhibit and there was no reference to it either in the Respondent’s pleadings or in her testimony.
3. I have agonised over whether the Letters of Administration issued on 6^th January 2020 can apply retroactively and save the Respondent’s suit. Ultimately, I have come to the conclusion that it cannot. A nullity remains a nullity. See Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR. Suffice it to repeat what Lord Denning stated in Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169:

If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.

1. As the Court of Appeal stated in Fatuma R Sebe & another v Rashid Masaudi Nasoro & another [2019] eKLR, failure to obtain the Letters of Administration before filing suit is not a procedural technicality that can be cured or excused under the provisions of Article 159 (2) (d) of the Constitution. It is a core and fundamental issue that goes to the root of administration of justice thereby rendering such a suit a nonstarter. The only option available to the Respondent was to withdraw the suit and file a new one once the objection on locus standi was brought to her attention the Statements of Defence and the Preliminary Objection dated 11^th December 2020. See Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR.
2. It is also important to note that as the suit was prosecuted to conclusion, the Respondent did not at any one point claim in her pleadings that she filed and prosecuted the suit as a personal representative of the deceased’s estate. It is pointless granting her, at this late stage, that which she has never sought.
3. Even if I had not found that the suit was a nullity for want of locus standi, I would have still allowed the appeal, as I will now show.
4. The Respondent’s case was that the Appellants were registered proprietors of Isukha/Virhembe/1664, 1665 and 1666 which she contended had been created following a fraudulent subdivision of the suit property. She sought cancellation of the Appellants’ titles. As registered proprietors of land, the Appellants were entitled to the rights, privileges, and benefits spelt out by the law, ranging from Article 40 of the Constitution to Section 24 of the Land Registration Act. Further, Section 26 of the Act obligated the Subordinate Court to accept their certificates of title as conclusive evidence of proprietorship, unless the provisos under Section 26 (1) (a) or (b) were established.
5. The only grounds upon which a title can be nullified are fraud or misrepresentation to which the registered proprietor is proved to be a party or where it is shown that the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme. The Respondent opted to challenge the Appellants’ titles on grounds of fraud.
6. It has been restated severally by courts in our jurisdiction that fraud is a serious allegation and that the party alleging it must plead it, particularise it, and strictly prove it to standard higher than the usual one in civil cases of proof on a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt. See Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR and John Mbogua Getao v Simon Parkoyiet Mokare & 4 others [2017] eKLR. In cases where fraud is alleged, it is not enough to simply infer fraud from the facts. See Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR.
7. Whereas the Respondent pleaded fraud, she did not lead persuasive evidence on it. Instead, she left the Subordinate Court to infer fraud. The Subordinate Court in turn fell into error when it deemed the Respondent’s case proven merely because the Appellants did not adduce any evidence. A party challenging title to registered land must succeed on the strength of her case and not on perceived weakness or even absence of defence. See Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] eKLR. That burden becomes heavier when the case is grounded on allegations of fraud which must not only be established to the required higher standard, but the registered proprietor must be proved to be a party to the fraud. The Respondent neither proved fraud nor connected the Appellants to the fraud. She placed a lot of weight on her claims of mental incapacity of the deceased and her children but did not demonstrate how that amounted to fraud on the part of the Appellants. She failed establish her case and the reliefs that she sought were not therefore available to her.
8. In view of the foregoing discourse, I find merit in this appeal, and I therefore allow it. I set aside the judgment of the Subordinate Court and replace it with an order striking out the Respondent’s case. In view of the circumstances of the case, I order that each party shall bear own costs of this appeal and of the proceedings in the Subordinate Court.

Dated, signed, and delivered through Microsoft Teams, at Nyamira, this 13^th day of March 2025.

Delivered in the presence of:

Ms Munihu for the Appellants

No appearance for the Respondent

Court Assistant: B Kerubo