'
(Being an Appeal from the judgement and decree of Hon. C.N.C. Oruo PM delivered on the 22nd day of August 2024 in Rongo PMCELC Case No. E046 of 2021)
1. It is worthy of note to indicate that after the instant appeal was instituted, and admitted on 20th March 2025 under Section 79G of the Civil Procedure Act, the appellant initially filed a Record of Appeal dated 20th November 2024. It was incomplete. He then filed a Supplementary Record of Appeal dated 7th February 2025. This court relies on both of them as one.
2. The Respondent instituted a suit in the trial court vide an Amended Plaint dated 17th January 2022. She sought the following reliefs;
1) A declaration that the Plaintiff is declared the registered proprietor of KAMAGAMBO/KANYAWANGA/1452
2) An order of eviction on the Plaintiff’s parcel.
3) Damages for trespass.
4) Costs of the suit and interest at court rates.
3. The Defendant filed a Defence and Counterclaim in response to the Amended Plaint. In his Defence, he denied the contents of the Amended Plaint. Further, he averred that it was his late mother who invited the late Julius Ouma Odera to live with him on the land but they thereafter parted ways after a disagreement. This forced the late Julius to return to his homestead where, when he died, he was buried. The Defendant, now Appellant prayed that the suit be dismissed with costs.
4. In his Counterclaim, he pleaded that his late mother was the beneficial owner of the suit land, being a sub division of Kamagambo/Kanyawanga 98, originally registered under the name of Ogutu Ogot alias Matinus Ogutu. He urged that before his mother died, she had been living as husband and wife with Julius Ouma Odera. Further, that due to the trust she placed in him, she entrusted him with the purchase a portion of Ogutu’s Estate from the said Joseph Onyango Ogutu. She financed the purchase wholly. She then erected a home on the property. He pleaded that Julius took advantage of the death of his mother and fraudulently sold the homestead. He set down the particulars of fraud and illegality. He sought the following reliefs;
1) A declaration that the registration of land title deed KAMAGAMBO/KANYAWANGA/1452 to the defendant is fraudulent, illegal and null and void ab initio.
2) An order directed to the land registrar to cancel the registration of the defendant as the registered proprietor and replace the name of the plaintiff in the register as the legal proprietor of the land parcel no. KAMAGAMBO/KANYAWANGA/1452
3) An order of permanent injunction restraining the defendant, her agents, servants and/or employees from trespassing, further encroaching, disposing, alienating, transferring, leasing and/or in any other way interfering with any part thereof of land parcel no. KAMAGAMBO/KANYAWANGA/1452.
4) A declaration that the plaintiff is the bonafide owner of the land parcel number KAMAGAMBO/KANYAWANGA/1452 on behalf of his deceased mother Jane Atieno Otieno.
5) Costs of the suit and the counterclaim.
5. In response to the Defence and Counterclaim, the Plaintiff filed a Reply to Defence and a Defence to Counterclaim. She denied the allegations therein. She pleaded that the Defendant had no recognizable claim or right over the land under the law and custom. She prayed that the Defence and Counterclaim be dismissed.
6. The parties filed two preliminary objections, one each. The defendant filed his dated 12th March 2022 by which he argued that the suit was res sub judice. The Plaintiff filed hers dated 21st June 2022 by which he challenged the Appellants’ capacity to sue on behalf of the estate of John Atieno Otieno or Julius Ouma Odera in the Counterclaim. The court dismissed the plaintiff’s objection but allowed the Defendant’s. Consequently, it dismissed the Counterclaim on 23rd August 2022 vide a ruling delivered by Hon. R.K. Langat. Both parties did not appeal against the determination on the preliminary objections.
7. The Plaintiff was granted leave to amend her plaint on 17th January 2023 and she filed it. Then the Defendant also filed an Amended Defence and Counterclaim dated 25th January 2023. By this pleading she reintroduced the Counterclaim which has been struck out five months earlier.
8. Thereafter, the matter proceeded for hearing.
9. PW1 was Joice Aero who adopted her witness statement as her evidence in chief produced as exhibits a number of documents which were contained in her List of Documents dated 6th October, 2021 and a subsequent one dated 24th October, 2022. She stated that she purchased the land from Julius Ouma Odera who was in the process of getting a title deed. She stated that the Confirmation of Grant in the name of Julius Ouma Odera appears and shows that he owned 0.62 ha. Further, that the parcel was the one she bought and had its transfer effected through the surveyor. She stated that the land was eventually registered in her name: she paid for everything in that transaction. She visited the land before buying it. She found two houses on it, which she and the seller the agreed she would purchase with the parcel.
10. She added that when she was to occupy the parcel she found the defendant on it. She then went and informed the chief. The chief summoned the Defendant and directed that he vacates the land. He refused. She stated that she had no dealings with the Defendant and she did not know one Jane Atieno. She stated that Julius told her that his wife was buried at the husband’s plot and not on the one she purchased. She denied fraudulently registering the parcel of land and prayed that the defendant be evicted.
11. During cross examination, she stated that Julius informed her that the woman he lived with died and was buried elsewhere. Further, that she bought the land from Julius Odero and, according to the search, he was the registered owner but he died before transferring the suit land. She stated that she went to the Land Control Board at the time when Julius was dead and she did not appear before the board. Further, that Alfred was the Administrator of the estate but at the time of Julius death, the title was in process. Additionally, she stated that the witness in the agreement dated 28th/4/2017 were Cavin Odhiambo, the defendant together with two others, and for the Sale Agreement dated 25th February 2017 they were Jane Caleb and Kevin. She stated that she signed the transfer forms upon his death and further, that he was aware she was doing the transfer.
12. The Defendant testified as DW1. He stated that Jane Atieno Otieno was his mother. He added that Julius Odero stayed with her on the suit property as husband. Further, that he was a witness to the sale agreement. He testified that his mother decided to set up a homestead. She then identified a parcel of land and Julius was to be registered as an owner. He was to transfer the property and subdivide the parcel from the family of Martin Ogutu. There was a balance of Kshs. 56,000/- to be paid later. After the death of their father and mother, a broker came and informed them that something was happening about the land. It was then found that it was the Plaintiff and her son walking around the homestead. He prayed the court give them back the parcel of land.
13. During cross examination, he stated that he did not know his biological fathers’ name. Further, he did not know where his biological father hailed from. In reference to the sale agreement dated 18th November 2014, produced as D-exhibit 1, he stated that he was not a witness in it, and it was done before an advocate. The seller was Joseph Onyango Ogutu and the consideration was Kshs. 200,000/-. He was shown the agreement dated 15th May 2015. About it he stated that the seller was Joseph Onyango Ogutu and the buyer Julius Ouma Odera. He stated that that was the land where he lived on.
14. In reference to the agreement dated 25th February 2017, he stated that the buyer was Julius Odera and the seller Joseph. He was a witness in it. He stated that his mother was not a purchaser and neither was he. He further stated that Alfred Ojwang Ogutu was the administrator of the land being sold. When shown the certificate of Confirmation of Grant issued to Alfred, he confirmed that his name did not appear on the Grant. He also confirmed that he was not an administrator over the estate of Julius and Jane Atieno Otieno.
15. DW2 was Caroline Mutai, the Land Registrar Migori. She produced the transfer form for parcel number 1452. She stated that it was signed on 1st September 2021. She stated that the 2nd transfer proprietor was Adhiambo Joyce Aero and the title was issued on the 4th entry. She produced as exhibits the green card for parcel number 598, a consent form, transfer form and the green card for parcel number 1452.
16. During cross examination, she stated that the original proprietor of 598 was Ogutu Ogot. The next entry was a restriction placed on it on 18th April 1994 and next one came the proprietor on 3rd May 2017, Alfred Ojwang Ogutu – Administrator, Michael Odhiambo holding in trust for 5 others and Grace Majiwa. She stated that the 3rd and 4th entries on 12th June 2020 were Administrator Alfred Ojwang Ogutu and subsequent sub divisions but the Plaintiff did not feature. She testified that title deeds were used to all persons and Joseph Onyango Ogutu got parcel number 1452. She stated that the 2nd entry on the title of 1452 was title deed issued to Julius and for 1st September 2021, a transfer to Joyce Aero who was issued with a title and is the current proprietor. Further, that there was no restriction under Julius Odera.
17. The Defendant then closed his case.
18. Upon consideration of the pleadings, testimonies and evidence tendered in court, the trial court entered judgement in favor of the plaintiff and dismissed the counterclaim. The Court entered judgement in the following terms;
a) A Declaration is hereby issued that the Plaintiff is the registered proprietor of KAMAGAMBO/KANYAWANGA/1452.
b) An order of eviction is hereby issued against the Defendant from the Plaintiff''s parcel KAMAGAMBO/KANYAWANGA/1452.
c) The said order (b) above shall be effected 6 months after the delivery of this judgment.
d) The Defendant shall pay the Plaintiff Kshs 50,000/= (Fifty Thousand Shillings the same being damages for trespass.
e) The Defendant shall pay the costs of the suit and interest at court rates.
19. Being aggrieved with the judgement, the appellant instituted the present appeal vide a Memorandum of Appeal dated 27th September 2024. It was premised on the following grounds;
1) The Learned Trial Magistrate erred in law and in fact by failing to interrogate the manner in which the Respondent’s acquired his title before it confirmed that die said title was obtained via legal means without taking into account the glaring irregularities presented by the evidence on record.
2) The Learned Trial Magistrate erred in law and fact by failing to appreciate the provision of the Land Registration Act Section 26 (c) where die appellant was challenging the process of acquisition of the said title deed by the respondent herein after the death of deceased Julius Ouma Odera which infers that there are elements of fraud in the said transaction.
3) The Learned Trial Magistrate erred in fact and law in ignoring the glaring facts that the land board consent and transfer forms were signed after the death of Julius Ouma Odera hence no one could pass a valid title without the issuance of grant of letters of administration in the estate of the deceased.
4) The Learned Trial Magistrate erred in law and fact by failing to take into account that the land registrar the holder of land records affirmed that the transfer of the said parcel known as KAMAGAMBO/KANYAWANGA/1452 was effectively transferred after the death of Julius Ouma Odero.
5) Consequently the Learned Trial Magistrate erred in law and fact by allowing the Respondent claim against the appellant without appreciating that the Respondent had intermeddled with an estate of a deceased person.
6) The Learned Trial Magistrate erred in law and in fact by failure to note that land parcel no. KAMAGAMBO/KANYAWANGA/1452, became an estate immediately upon the death of the registered owner on 11th April 2021, and could only be transferred upon filing of succession proceedings in respect of the deceased owner.
7) The Learned Trial Magistrate erred in law and fact by finding for the Respondent against the appellant while the Respondent had committed a criminal offence under section 45(1) of the succession Act, Cap 160, Laws of Kenya.
8) The Learned Trial Magistrate erred in law and fact in finding that the respondent herein had authority to transfer the said land in her name had acquired legal title of the said land parcel number KAMAGAMBO/KANYAWANGA/1452.
9) The Learned Trial Magistrate erred in law and fact by his failure to address himself on the merits and demerits of the appellant’s counterclaim against the respondent herein.
10) The Learned Trial Magistrate erred in law and fact by upholding that the respondent herein holds a legal title merely on the ground that she has a title deed and presentation of document that did not explain how she acquired the title to the extent that no sale agreement between the respondent and the deceased was adduced before this court.
11) The Learned Trial Magistrate erred in law and in fact by disregarding the undisputed fact that indeed the Appellant’s mother was a participant when the deceased Julius Ouma Odera bought the land in dispute hence had acquired adverse interest in the said land and hence at the time of the alleged sale, having been given authority to enter the land and erect their homestead by the original owner, the Appellant and his family could not qualify to be trespassers.
12) The Learned Trial Magistrate erred in law and in fact by disregarding the Respondent’s evidence and submissions which raised pertinent issues for the court to address.
20. The appeal was canvassed by way of written submissions. The parties were directed to file submissions respectively. The appellant filed his dated 3rd April 2025 and the Respondent filed hers dated 22nd March 2025.
Appellants’ Submissions
21. Learned counsel for the Appellant submitted on whether the court erred in law and fact in disregarding the provision of Section 26 of the land registration act in relation to the respondent’s title, urging that at the hearing the respondent affirmed that he bought the said land on 21st March 2021 as evidenced in the sale agreement attached to the transfer forms and produced by the land registrar. The respondent through her own admission affirmed that she went to the land control board and Julius was since dead by that time. He reproduced her testimony and submitted that the land registrar testified and affirmed that at the time of the sale of the said land, the said Julius was not the registered owner of the suit land hence did not have the capacity to sell as he became the registered owner on 22nd June 2021 months after his death. Therefore, as provided under Section 3 (3) of the Law of Contract Act there is no valid sale agreement that would have been enforced to effect a valid transfer in the said land after the death of the seller who lacked capacity to sale.
22. Learned counsel submitted that shockingly, the land registrar while testifying affirmed that the “Person who got 1452 - Julius Ouma Odera on 22.6.2021. 2nd entry 22.2.2021 title deed issued to Julius and 1.9.2021, transfer to Adhiambo Joyce.”
23. He argued that so far from the Respondent’s evidence and land registrar statement it was apparent that there are glaring mistakes on record that would have led the court to affirm that indeed the said land was not acquired in a legal and thorough manner. Further, he questioned that if, indeed, the said Julius purportedly sold the said land which he had not acquired title as the registered owner on the 22.6.2021 as the first entry showed, how could he also be issued the said title deed four months prior to his registration? He argued that this was an anomaly as issuance of title preceded the registration by four months. He relied on the case of Wanjohi v Wanjohi (Environment and Land Appeal E012 of 2023) [2024] KEELC 5852 (KLR) (26 August 2024) (Judgment).
24. Counsel submitted that it was not in doubt that the transfer was done, and the land control board herein were attended after the deceased had passed, and prior to the issuance of any Grant in the Estate of Julius. The question that the trial court overlooked was who actually attended the Board meeting if the deceased had already passed on?
25. Counsel urged that the burden of proof in civil cases is on a balance of probabilities and further, that the Court shall be guided by the provisions of Section 107 to 109 of the Evidence Act. He stated that the appellant herein led cogent evidence that intimated that the late Julius indeed purchased the said land and one of his witnesses was his late wife Jane the mother to the Appellant.
26. Equally evidence was led through the land registrar that showed that the late Julius only became the registered owner of the said land few months after his death and consequently the alleged board that was attended was after the death of the proprietor and the same was done before the estate of the deceased was succeeded.
27. Learned counsel affirmed that the particulars of fraud herein were as pleaded in the counterclaim were not taken into consideration which address the issues of whether the court had addressed itself on the merits and demerit of the Counterclaim Based on the above it is very clear that the trial court never addressed itself on the issues raised in the counterclaim. The appellant was challenging the registration by the respondent and even adduced evidence to that effect. On these grounds, counsel submitted, the Appellant has discharged his burden of proof that the title acquired herein was through illegal means and hence the prayers pleaded in the counterclaim ought to be allowed.
28. He relied on the case of Daudi Kiptugen Vs Commissioner of Lands Nairobi Lands & 4 others [2015] eKLR, which was quoted in the case of Wangui v Munyua & another (Environment and Land Appeal E031 of 2022) (2024] KEELC 4506 (KLR) (6 June 2024) (Judgment).
29. He reiterated that the land registrar was called and produced the parcel file which he confirmed through evidence that the transfer was done after the death of the deceased by a representative who had no grant to represent the estate of the deceased. Therefore, it was the respondent’s obligation to adduce evidence that indeed the appellants claim were just a ruse as intimated in The Court of Appeal in the case of Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] eKLR.
30. On intermeddling with the Estate of a deceased person, counsel urged that there was no dispute that the land herein originally belonged to Julius who died even before he was the registered owner. Further, there also was no doubt that the deceased herein never attended any board for transfer to effect a valid transfer upon the Respondent. Surprisingly the transfer was done in September, months after the death of Julius. He stated that the documents adduced before this court is a clear indication that at the time of the transfer the property herein formed part of the estate of the deceased and could not be transferred without any grants of letters of administrations. Counsel submitted that the conduct of transferring the estate of the deceased herein amounts to intermeddling as captured in section 45 of the Law of Succession Act and hence the transfer cannot be said to be valid.
31. Counsel submitted that the appellant having been in occupation of the said land, had at no point ever trespassed in his land and therefore he cannot be alleged to be a trespasser as evidence adduced before the trial court show that the land legally belonged to his late mother and the late Julius having acquired the same. He urged that the trial court misapprehend the evidence before him and failed to take into consideration that the root of the title deed herein was being questioned as the acquisition herein was grounded on illegal procedures hence the court should set aside the judgment delivered by the trial court and substitute it with orders as prayed for in the counterclaim.
The Respondents’ Submissions
32. Counsel for the respondent laid down a brief history of the matter before delving into the issues. He pointed out that before the trial court, the Appellant filed a preliminary objection dated 12th March 2022 alleging res sub judice. The Respondent also filed a Preliminary Objection dated 21/6/2022, to the Appellant’s Counterclaim alleging the Appellant’s lack of capacity to sue either on his behalf or on the behalf of the estate of Jane Atieno Otieno or Julius Ouma Odera and that there was no cause of action between the Plaintiff and the defendant. The court dismissed the Appellant’s Preliminary Objection in a ruling dated 23/8/2022, but allowed the Respondent’s Preliminary Objection raised against the Counterclaim. The Appellant did not Appeal against the order dismissing his preliminary objection or the order dismissing the counterclaim. Consequently therefore, the defendant’s claim through the Counterclaim stood dismissed.
33. Learned counsel cited Section 68 of the Civil Procedure Act and submitted that the Appellant’s Appeal touched largely on the issues raised in the Counterclaim that was dismissed by the court on 23/8/2022 and not appealed from. The counterclaim averred that the mother Jane Atieno Otieno advanced money for the transaction; there was fraudulent acquisition of the property (see particulars provided); and prayed for Eviction from the land; and Ownership thereof. In view of Section 68 of the Civil Procedure, the appeal is incompetent and not maintainable. The Appellant lacked locus standi then and still lacked locus standi.
34. He urged that the court allowed the Respondent to amend the Plaint, and it gave the Appellant, ‘corresponding’ leave to amend his Defence within 21 days. In a clear abuse of court process, the defendant in filing its Amended Defence, wrongly reintroduced the Counterclaim that had been struck out by the court on 23/8/2023. He urged that there was no counterclaim or valid counterclaim before the court at the trial of the suit, same having been struck out on 23/8/2023. Accordingly, the owner of the suit land was the Respondent as captured in the title document and there was nothing to challenge it. He added that an appeal based on no pleading or evidence was incompetent.
35. Learned counsel submitted further that the appellant never raised any issue on the legality or otherwise of the title. That these are issued raised for the first time in the appeal. The particulars of fraud in the defence raised do not touch on Section 25(c) of the Land Registration Act, which was never pleaded, particularized or proved. He cited the case of David Sironea Ole Tukai vs Francis Aran Muse. Samuel Kiprotich Aran and Johanna Kiprono Aran CA No. 76 of 2014 on parties being bound by their pleadings.
36. Counsel submitted that the land never belonged to Jane Atieno Otieno, the Appellant’s mother. Julius Otieno Odera was a beneficiary purchaser under the confirmed grant, in Succession Cause No. 158 of 2015, estate of Ogutu Ogot as per page 2 of the confirmed grant dated 19/12/2016. The land registrar DW2 enumerated the procedure followed at the registration of the title after a partition had been done.
37. Further, the Appellant did not question or put to the witness, DW2, any issue doubting the propriety of the title issued to the Respondent. It was raised as an afterthought on (this) appeal. Additionally, neither the appellant, nor his mother Jane Atieno Otieno proved that they had any superior title to that of the Respondent. There was completely no proof of any advancement of the purchase price to Julius Ouma Odera. Equally there was no proof of fraud now alleged in this appeal. He cited the case of Urmilla W/ o Mahandra Shah Vs Barclays Bank International & another COACA NO. 33 OF 1978 (1979) eKLR on the standard of proof required in an allegation of fraud. Counsel prayed the court dismiss the appeal.
Analysis and Determination
38. This court’s duty as a first appellate court is to re- evaluate all the evidence availed before the lower court and to reach its own conclusions, taking into account the fact that it had no opportunity of hearing or seeing the parties as they testified, and make an allowance in that respect. See the cases of Selle & Another v Associated Motor Boat Co. Limited & others [1968] EA 123.
39. The role of the Appellate Court was also stated by the Court of Appeal in the judicial decision of Gitobu Imanyara & 2 others Vs Attorney General [2016] eKLR. It was held as follows;
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. 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.”
40. This Court has carefully analysed the grounds of appeal and considered their correlation. They revolve on and are condensed into the following three issues which this court opines arise for determination. They are,
1) Whether the Appellant had locus standi in the Counterclaim hence this appeal
2) Whether the trial court erred in declaring the respondent the registered proprietor of the suit land
3) Whether the Appellant introduced new issues in the appeal
41. This court now proceeds to determine sequentially the issues raised or identified.
a) Whether the Appellant had locus standi to sue in the Counterclaim hence this appeal
42. The Respondent raised the issue of locus standi, by pointing out that the Respondent filed a preliminary objection dated 21st June 2022 in which he challenged the Appellants’ capacity to sue on behalf of the estate of John Atieno Otieno or Julius Ouma Odera in the counterclaim. The trial court allowed the preliminary objection. Consequently, it dismissed the counterclaim on 23rd August 2022. The appellant did not No appeal was filed against the ruling and therefore it stood dismissed. However, given that the ruling was delivered by Hon. R.K. Langat, the appellant mischievously reintroduced it when given an opportunity to amend the defence.
43. A reading of the Memorandum of Appeal reveals that it is premised on the allegations that the suit property was registered in the name of Julius Ouma Odera after a purchase financed by Jane Atieno Otieno. It challenges the decision on the legality of the title which issues had already been determined by virtue of the dismissal of the counterclaim. The appeal is founded mainly on the premise that the appellants’ mother purchased the suit land, which claim was the subject of the dismissed counterclaim. More specifically, this issue was raised in grounds 1, 2, 3, 4, 9, 11 and 12 of the appeal. The trial court considered the same through the preliminary objection that was raised by the Respondent. The trial Court pronounced itself on the same by finding that, indeed, the Defendant, now Appellant, had no locus standi to institute the Counterclaim. The Appellant did not appeal against the decision, and there is no finding to the contrary on the finding that he had no capacity to bring the counterclaim.
44. Actually, even if there would have been a grant of letters ad litem as averred by the Appellant, they were not in respect of the Estate of the mother or the person he alleges bought to the land singlehandedly. Thus, the locus standi preliminary objection still would succeed as the court found.
45. The fact that he introduced the counterclaim, though subtly, in the Amended Defence and Counterclaim did not change the legal position and finding of the trial Court that he had no capacity to bring the Counterclaim. If this Court were to overlook that fundamental legal point that once an issue has been settled by a competent court and is not set aside or successfully appealed against it binds parties to that dispute or those it is meant to bind, it would be a sad day in the legal field. Thus, for a party to raise the same issue and pursue it either in the same court or any other it would mean, as submitted by the Respondent, res judicata. Thus, contrary to the appellant’s argument that the court did not consider the issue of fraud, the court considered them and took it account that it had already found that the counterclaim was struck out. Therefore, the issues raised in those grounds of appeal listed above, at paragraph 43, were rendered moot by the finding of the court on the Appellant’s lack of locus standi or capacity to institute the counterclaim. They cannot be raised here now.
b) Whether the trial court erred in declaring the respondent the registered proprietor of the suit land
46. Having dealt with the issue of the validity of the appeal in so far as it relates to the Counterclaim which was dismissed, this court is now left with two main issues to grapple with. The first one is the merit or otherwise of the declaration that the Respondent was the registered owner. Suffice it to say that parties are bound by their pleadings. Therefore, the court will now determine the appeal based on the pleadings: the Amended Plaint and the Amended Defence only, without the allegations in the, already dismissed, Counterclaim.
47. It cannot be gainsaid that it is the court’s responsibility to determine, after consideration of the evidence presented before it, who the bona fide owner of the suit property is. The parties, on their part, have the responsibility of establishing the root of their titles as explained by the Court of Appeal in the case of Munyu Maina –vs- Hiram Gathiha Maina (2013) eKLR. The court was explicit that;
“When a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free of any encumbrances including any and all interests which need not be noted on the register.”
48. In the case of Daudi Kiptugen –vs- Commissioner of lands & 4 others (2015) eKLR, the court emphasized that,
“…the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title. If this were the position then all one would need to do is to manufacture a lease or a certificate of title at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein.”
49. Section 26 of the Land Registration Act Cap 300 Laws of Kenya provides that:-
26. Certificate of title to be held as conclusive evidence of proprietorship
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except:-
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
50. The Land Registrar testified as DW2. She provided an explanation of the registration of the suit land on the name of the Respondent. It was clear from her evidence that the parcel of land was sold to Julius Ouma Odero out of the estate of Ogutu Ogot. It was then transferred to the Respondent. She produced the transfer form for 1452 and stated that it was signed on 1st September 2021. She stated that the 2nd transfer proprietor was Adhiambo Joyce Aero and that the title was issued on the 4th entry. She produced the green card for 598, consent form, transfer form and green card for 1452 as exhibits. Additionally, the Respondent produced a title for the suit property registered in her name.
51. On the contrary, the Appellant failed to produce evidence that he had a Grant of Representation for the Estate of Julius Odera or his mother. He, therefore, already lacked locus standi to raise the counterclaim in the matter. Additionally, he had no evidence as to the financing of the purchase of the suit land by his mother. All he said was mere hearsay which was inadmissible since it had no backing whatsoever by way of a document to confirm his assertions. Additionally, he had no nexus to any ownership of the land as he could not show that he was even related to Julius Odera. Having failed to establish locus, and also show proof of registration, the trial court decided the case based on a balance of probabilities. Was the court in error in its finding as such? In my humble view he did not err in its finding.
52. The Appellant raised ‘hype’ or a lot of discussion both in evidence and submissions regarding the transfer of the land to the Respondent and her appearance before the land control board after the death of the seller. As these were issues that could be brought to court by a person who had capacity to do so and they be litigated properly as between them this court cannot venture into the same as it would be an academic exercise.
53. His argument that the Plaintiff’s title was not properly acquired. But the respondent stated that before the death of the seller, Julius, he appended his thump print to the documents. Even so these facts related to a pleading the court had on 23rd August 2022 been struck out and which had been sneaked back into being part of the record without leave of the Court or an order varying the orders of 23rd August 2022. The trial court was right in not considering them (fraud and illegality) at the final determination of the suit. Thus, it is my considered view that the trial magistrate properly analyzed the evidence and arrived at the correct conclusion. I find no reason to interfere with it.
c) Whether the Appellant introduced new issues in the appeal
54. A reading of the Memorandum of Appeal shows that there are issues that the Appellant introduced during the appeal that were not pleaded in the trial court. Additionally, by virtue of the counterclaim having been dismissed, the appellants’ appeal was and could only be restricted to issues that were pleaded in the Amended Plaint and the defence thereto, as stated above.
55. In the trial court, at no point in time did the appellant plead on intermeddling. This issue was introduced at the appeal stage which is untenable. In this regard, grounds 5, 6 and 7 are moot. Additionally, on the issue of fraudulent registration, the same was not pleaded as an issue and was introduced at the appeal stage, under the guise of the prayers in the counterclaim, which counterclaim had already been struck out vide the ruling of 23rd August 2022.
56. In the premises, it follows that the appeal is wholly un meritorious and the same is dismissed in its entirety with costs to the Respondent.
Judgment dated, signed and delivered virtually via the Teams Platform this 22nd day of October 2025.
HON. DR. IUR NYAGAKA
JUDGE
From 11:47 AM, in the presence of,
Court Assistant: Ms Lola
Ms. Kimberly Advocate for the appellant
Mr. Oduk Advocate for the Respondent.
'
(Being an Appeal from the judgement and decree of Hon. C.N.C. Oruo PM delivered on the 22nd day of August 2024 in Rongo PMCELC Case No. E046 of 2021)
1. It is worthy of note to indicate that after the instant appeal was instituted, and admitted on 20th March 2025 under Section 79G of the Civil Procedure Act, the appellant initially filed a Record of Appeal dated 20th November 2024. It was incomplete. He then filed a Supplementary Record of Appeal dated 7th February 2025. This court relies on both of them as one.
2. The Respondent instituted a suit in the trial court vide an Amended Plaint dated 17th January 2022. She sought the following reliefs;
1) A declaration that the Plaintiff is declared the registered proprietor of KAMAGAMBO/KANYAWANGA/1452
2) An order of eviction on the Plaintiff’s parcel.
3) Damages for trespass.
4) Costs of the suit and interest at court rates.
3. The Defendant filed a Defence and Counterclaim in response to the Amended Plaint. In his Defence, he denied the contents of the Amended Plaint. Further, he averred that it was his late mother who invited the late Julius Ouma Odera to live with him on the land but they thereafter parted ways after a disagreement. This forced the late Julius to return to his homestead where, when he died, he was buried. The Defendant, now Appellant prayed that the suit be dismissed with costs.
4. In his Counterclaim, he pleaded that his late mother was the beneficial owner of the suit land, being a sub division of Kamagambo/Kanyawanga 98, originally registered under the name of Ogutu Ogot alias Matinus Ogutu. He urged that before his mother died, she had been living as husband and wife with Julius Ouma Odera. Further, that due to the trust she placed in him, she entrusted him with the purchase a portion of Ogutu’s Estate from the said Joseph Onyango Ogutu. She financed the purchase wholly. She then erected a home on the property. He pleaded that Julius took advantage of the death of his mother and fraudulently sold the homestead. He set down the particulars of fraud and illegality. He sought the following reliefs;
1) A declaration that the registration of land title deed KAMAGAMBO/KANYAWANGA/1452 to the defendant is fraudulent, illegal and null and void ab initio.
2) An order directed to the land registrar to cancel the registration of the defendant as the registered proprietor and replace the name of the plaintiff in the register as the legal proprietor of the land parcel no. KAMAGAMBO/KANYAWANGA/1452
3) An order of permanent injunction restraining the defendant, her agents, servants and/or employees from trespassing, further encroaching, disposing, alienating, transferring, leasing and/or in any other way interfering with any part thereof of land parcel no. KAMAGAMBO/KANYAWANGA/1452.
4) A declaration that the plaintiff is the bonafide owner of the land parcel number KAMAGAMBO/KANYAWANGA/1452 on behalf of his deceased mother Jane Atieno Otieno.
5) Costs of the suit and the counterclaim.
5. In response to the Defence and Counterclaim, the Plaintiff filed a Reply to Defence and a Defence to Counterclaim. She denied the allegations therein. She pleaded that the Defendant had no recognizable claim or right over the land under the law and custom. She prayed that the Defence and Counterclaim be dismissed.
6. The parties filed two preliminary objections, one each. The defendant filed his dated 12th March 2022 by which he argued that the suit was res sub judice. The Plaintiff filed hers dated 21st June 2022 by which he challenged the Appellants’ capacity to sue on behalf of the estate of John Atieno Otieno or Julius Ouma Odera in the Counterclaim. The court dismissed the plaintiff’s objection but allowed the Defendant’s. Consequently, it dismissed the Counterclaim on 23rd August 2022 vide a ruling delivered by Hon. R.K. Langat. Both parties did not appeal against the determination on the preliminary objections.
7. The Plaintiff was granted leave to amend her plaint on 17th January 2023 and she filed it. Then the Defendant also filed an Amended Defence and Counterclaim dated 25th January 2023. By this pleading she reintroduced the Counterclaim which has been struck out five months earlier.
8. Thereafter, the matter proceeded for hearing.
9. PW1 was Joice Aero who adopted her witness statement as her evidence in chief produced as exhibits a number of documents which were contained in her List of Documents dated 6th October, 2021 and a subsequent one dated 24th October, 2022. She stated that she purchased the land from Julius Ouma Odera who was in the process of getting a title deed. She stated that the Confirmation of Grant in the name of Julius Ouma Odera appears and shows that he owned 0.62 ha. Further, that the parcel was the one she bought and had its transfer effected through the surveyor. She stated that the land was eventually registered in her name: she paid for everything in that transaction. She visited the land before buying it. She found two houses on it, which she and the seller the agreed she would purchase with the parcel.
10. She added that when she was to occupy the parcel she found the defendant on it. She then went and informed the chief. The chief summoned the Defendant and directed that he vacates the land. He refused. She stated that she had no dealings with the Defendant and she did not know one Jane Atieno. She stated that Julius told her that his wife was buried at the husband’s plot and not on the one she purchased. She denied fraudulently registering the parcel of land and prayed that the defendant be evicted.
11. During cross examination, she stated that Julius informed her that the woman he lived with died and was buried elsewhere. Further, that she bought the land from Julius Odero and, according to the search, he was the registered owner but he died before transferring the suit land. She stated that she went to the Land Control Board at the time when Julius was dead and she did not appear before the board. Further, that Alfred was the Administrator of the estate but at the time of Julius death, the title was in process. Additionally, she stated that the witness in the agreement dated 28th/4/2017 were Cavin Odhiambo, the defendant together with two others, and for the Sale Agreement dated 25th February 2017 they were Jane Caleb and Kevin. She stated that she signed the transfer forms upon his death and further, that he was aware she was doing the transfer.
12. The Defendant testified as DW1. He stated that Jane Atieno Otieno was his mother. He added that Julius Odero stayed with her on the suit property as husband. Further, that he was a witness to the sale agreement. He testified that his mother decided to set up a homestead. She then identified a parcel of land and Julius was to be registered as an owner. He was to transfer the property and subdivide the parcel from the family of Martin Ogutu. There was a balance of Kshs. 56,000/- to be paid later. After the death of their father and mother, a broker came and informed them that something was happening about the land. It was then found that it was the Plaintiff and her son walking around the homestead. He prayed the court give them back the parcel of land.
13. During cross examination, he stated that he did not know his biological fathers’ name. Further, he did not know where his biological father hailed from. In reference to the sale agreement dated 18th November 2014, produced as D-exhibit 1, he stated that he was not a witness in it, and it was done before an advocate. The seller was Joseph Onyango Ogutu and the consideration was Kshs. 200,000/-. He was shown the agreement dated 15th May 2015. About it he stated that the seller was Joseph Onyango Ogutu and the buyer Julius Ouma Odera. He stated that that was the land where he lived on.
14. In reference to the agreement dated 25th February 2017, he stated that the buyer was Julius Odera and the seller Joseph. He was a witness in it. He stated that his mother was not a purchaser and neither was he. He further stated that Alfred Ojwang Ogutu was the administrator of the land being sold. When shown the certificate of Confirmation of Grant issued to Alfred, he confirmed that his name did not appear on the Grant. He also confirmed that he was not an administrator over the estate of Julius and Jane Atieno Otieno.
15. DW2 was Caroline Mutai, the Land Registrar Migori. She produced the transfer form for parcel number 1452. She stated that it was signed on 1st September 2021. She stated that the 2nd transfer proprietor was Adhiambo Joyce Aero and the title was issued on the 4th entry. She produced as exhibits the green card for parcel number 598, a consent form, transfer form and the green card for parcel number 1452.
16. During cross examination, she stated that the original proprietor of 598 was Ogutu Ogot. The next entry was a restriction placed on it on 18th April 1994 and next one came the proprietor on 3rd May 2017, Alfred Ojwang Ogutu – Administrator, Michael Odhiambo holding in trust for 5 others and Grace Majiwa. She stated that the 3rd and 4th entries on 12th June 2020 were Administrator Alfred Ojwang Ogutu and subsequent sub divisions but the Plaintiff did not feature. She testified that title deeds were used to all persons and Joseph Onyango Ogutu got parcel number 1452. She stated that the 2nd entry on the title of 1452 was title deed issued to Julius and for 1st September 2021, a transfer to Joyce Aero who was issued with a title and is the current proprietor. Further, that there was no restriction under Julius Odera.
17. The Defendant then closed his case.
18. Upon consideration of the pleadings, testimonies and evidence tendered in court, the trial court entered judgement in favor of the plaintiff and dismissed the counterclaim. The Court entered judgement in the following terms;
a) A Declaration is hereby issued that the Plaintiff is the registered proprietor of KAMAGAMBO/KANYAWANGA/1452.
b) An order of eviction is hereby issued against the Defendant from the Plaintiff''s parcel KAMAGAMBO/KANYAWANGA/1452.
c) The said order (b) above shall be effected 6 months after the delivery of this judgment.
d) The Defendant shall pay the Plaintiff Kshs 50,000/= (Fifty Thousand Shillings the same being damages for trespass.
e) The Defendant shall pay the costs of the suit and interest at court rates.
19. Being aggrieved with the judgement, the appellant instituted the present appeal vide a Memorandum of Appeal dated 27th September 2024. It was premised on the following grounds;
1) The Learned Trial Magistrate erred in law and in fact by failing to interrogate the manner in which the Respondent’s acquired his title before it confirmed that die said title was obtained via legal means without taking into account the glaring irregularities presented by the evidence on record.
2) The Learned Trial Magistrate erred in law and fact by failing to appreciate the provision of the Land Registration Act Section 26 (c) where die appellant was challenging the process of acquisition of the said title deed by the respondent herein after the death of deceased Julius Ouma Odera which infers that there are elements of fraud in the said transaction.
3) The Learned Trial Magistrate erred in fact and law in ignoring the glaring facts that the land board consent and transfer forms were signed after the death of Julius Ouma Odera hence no one could pass a valid title without the issuance of grant of letters of administration in the estate of the deceased.
4) The Learned Trial Magistrate erred in law and fact by failing to take into account that the land registrar the holder of land records affirmed that the transfer of the said parcel known as KAMAGAMBO/KANYAWANGA/1452 was effectively transferred after the death of Julius Ouma Odero.
5) Consequently the Learned Trial Magistrate erred in law and fact by allowing the Respondent claim against the appellant without appreciating that the Respondent had intermeddled with an estate of a deceased person.
6) The Learned Trial Magistrate erred in law and in fact by failure to note that land parcel no. KAMAGAMBO/KANYAWANGA/1452, became an estate immediately upon the death of the registered owner on 11th April 2021, and could only be transferred upon filing of succession proceedings in respect of the deceased owner.
7) The Learned Trial Magistrate erred in law and fact by finding for the Respondent against the appellant while the Respondent had committed a criminal offence under section 45(1) of the succession Act, Cap 160, Laws of Kenya.
8) The Learned Trial Magistrate erred in law and fact in finding that the respondent herein had authority to transfer the said land in her name had acquired legal title of the said land parcel number KAMAGAMBO/KANYAWANGA/1452.
9) The Learned Trial Magistrate erred in law and fact by his failure to address himself on the merits and demerits of the appellant’s counterclaim against the respondent herein.
10) The Learned Trial Magistrate erred in law and fact by upholding that the respondent herein holds a legal title merely on the ground that she has a title deed and presentation of document that did not explain how she acquired the title to the extent that no sale agreement between the respondent and the deceased was adduced before this court.
11) The Learned Trial Magistrate erred in law and in fact by disregarding the undisputed fact that indeed the Appellant’s mother was a participant when the deceased Julius Ouma Odera bought the land in dispute hence had acquired adverse interest in the said land and hence at the time of the alleged sale, having been given authority to enter the land and erect their homestead by the original owner, the Appellant and his family could not qualify to be trespassers.
12) The Learned Trial Magistrate erred in law and in fact by disregarding the Respondent’s evidence and submissions which raised pertinent issues for the court to address.
20. The appeal was canvassed by way of written submissions. The parties were directed to file submissions respectively. The appellant filed his dated 3rd April 2025 and the Respondent filed hers dated 22nd March 2025.
Appellants’ Submissions
21. Learned counsel for the Appellant submitted on whether the court erred in law and fact in disregarding the provision of Section 26 of the land registration act in relation to the respondent’s title, urging that at the hearing the respondent affirmed that he bought the said land on 21st March 2021 as evidenced in the sale agreement attached to the transfer forms and produced by the land registrar. The respondent through her own admission affirmed that she went to the land control board and Julius was since dead by that time. He reproduced her testimony and submitted that the land registrar testified and affirmed that at the time of the sale of the said land, the said Julius was not the registered owner of the suit land hence did not have the capacity to sell as he became the registered owner on 22nd June 2021 months after his death. Therefore, as provided under Section 3 (3) of the Law of Contract Act there is no valid sale agreement that would have been enforced to effect a valid transfer in the said land after the death of the seller who lacked capacity to sale.
22. Learned counsel submitted that shockingly, the land registrar while testifying affirmed that the “Person who got 1452 - Julius Ouma Odera on 22.6.2021. 2nd entry 22.2.2021 title deed issued to Julius and 1.9.2021, transfer to Adhiambo Joyce.”
23. He argued that so far from the Respondent’s evidence and land registrar statement it was apparent that there are glaring mistakes on record that would have led the court to affirm that indeed the said land was not acquired in a legal and thorough manner. Further, he questioned that if, indeed, the said Julius purportedly sold the said land which he had not acquired title as the registered owner on the 22.6.2021 as the first entry showed, how could he also be issued the said title deed four months prior to his registration? He argued that this was an anomaly as issuance of title preceded the registration by four months. He relied on the case of Wanjohi v Wanjohi (Environment and Land Appeal E012 of 2023) [2024] KEELC 5852 (KLR) (26 August 2024) (Judgment).
24. Counsel submitted that it was not in doubt that the transfer was done, and the land control board herein were attended after the deceased had passed, and prior to the issuance of any Grant in the Estate of Julius. The question that the trial court overlooked was who actually attended the Board meeting if the deceased had already passed on?
25. Counsel urged that the burden of proof in civil cases is on a balance of probabilities and further, that the Court shall be guided by the provisions of Section 107 to 109 of the Evidence Act. He stated that the appellant herein led cogent evidence that intimated that the late Julius indeed purchased the said land and one of his witnesses was his late wife Jane the mother to the Appellant.
26. Equally evidence was led through the land registrar that showed that the late Julius only became the registered owner of the said land few months after his death and consequently the alleged board that was attended was after the death of the proprietor and the same was done before the estate of the deceased was succeeded.
27. Learned counsel affirmed that the particulars of fraud herein were as pleaded in the counterclaim were not taken into consideration which address the issues of whether the court had addressed itself on the merits and demerit of the Counterclaim Based on the above it is very clear that the trial court never addressed itself on the issues raised in the counterclaim. The appellant was challenging the registration by the respondent and even adduced evidence to that effect. On these grounds, counsel submitted, the Appellant has discharged his burden of proof that the title acquired herein was through illegal means and hence the prayers pleaded in the counterclaim ought to be allowed.
28. He relied on the case of Daudi Kiptugen Vs Commissioner of Lands Nairobi Lands & 4 others [2015] eKLR, which was quoted in the case of Wangui v Munyua & another (Environment and Land Appeal E031 of 2022) (2024] KEELC 4506 (KLR) (6 June 2024) (Judgment).
29. He reiterated that the land registrar was called and produced the parcel file which he confirmed through evidence that the transfer was done after the death of the deceased by a representative who had no grant to represent the estate of the deceased. Therefore, it was the respondent’s obligation to adduce evidence that indeed the appellants claim were just a ruse as intimated in The Court of Appeal in the case of Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] eKLR.
30. On intermeddling with the Estate of a deceased person, counsel urged that there was no dispute that the land herein originally belonged to Julius who died even before he was the registered owner. Further, there also was no doubt that the deceased herein never attended any board for transfer to effect a valid transfer upon the Respondent. Surprisingly the transfer was done in September, months after the death of Julius. He stated that the documents adduced before this court is a clear indication that at the time of the transfer the property herein formed part of the estate of the deceased and could not be transferred without any grants of letters of administrations. Counsel submitted that the conduct of transferring the estate of the deceased herein amounts to intermeddling as captured in section 45 of the Law of Succession Act and hence the transfer cannot be said to be valid.
31. Counsel submitted that the appellant having been in occupation of the said land, had at no point ever trespassed in his land and therefore he cannot be alleged to be a trespasser as evidence adduced before the trial court show that the land legally belonged to his late mother and the late Julius having acquired the same. He urged that the trial court misapprehend the evidence before him and failed to take into consideration that the root of the title deed herein was being questioned as the acquisition herein was grounded on illegal procedures hence the court should set aside the judgment delivered by the trial court and substitute it with orders as prayed for in the counterclaim.
The Respondents’ Submissions
32. Counsel for the respondent laid down a brief history of the matter before delving into the issues. He pointed out that before the trial court, the Appellant filed a preliminary objection dated 12th March 2022 alleging res sub judice. The Respondent also filed a Preliminary Objection dated 21/6/2022, to the Appellant’s Counterclaim alleging the Appellant’s lack of capacity to sue either on his behalf or on the behalf of the estate of Jane Atieno Otieno or Julius Ouma Odera and that there was no cause of action between the Plaintiff and the defendant. The court dismissed the Appellant’s Preliminary Objection in a ruling dated 23/8/2022, but allowed the Respondent’s Preliminary Objection raised against the Counterclaim. The Appellant did not Appeal against the order dismissing his preliminary objection or the order dismissing the counterclaim. Consequently therefore, the defendant’s claim through the Counterclaim stood dismissed.
33. Learned counsel cited Section 68 of the Civil Procedure Act and submitted that the Appellant’s Appeal touched largely on the issues raised in the Counterclaim that was dismissed by the court on 23/8/2022 and not appealed from. The counterclaim averred that the mother Jane Atieno Otieno advanced money for the transaction; there was fraudulent acquisition of the property (see particulars provided); and prayed for Eviction from the land; and Ownership thereof. In view of Section 68 of the Civil Procedure, the appeal is incompetent and not maintainable. The Appellant lacked locus standi then and still lacked locus standi.
34. He urged that the court allowed the Respondent to amend the Plaint, and it gave the Appellant, ‘corresponding’ leave to amend his Defence within 21 days. In a clear abuse of court process, the defendant in filing its Amended Defence, wrongly reintroduced the Counterclaim that had been struck out by the court on 23/8/2023. He urged that there was no counterclaim or valid counterclaim before the court at the trial of the suit, same having been struck out on 23/8/2023. Accordingly, the owner of the suit land was the Respondent as captured in the title document and there was nothing to challenge it. He added that an appeal based on no pleading or evidence was incompetent.
35. Learned counsel submitted further that the appellant never raised any issue on the legality or otherwise of the title. That these are issued raised for the first time in the appeal. The particulars of fraud in the defence raised do not touch on Section 25(c) of the Land Registration Act, which was never pleaded, particularized or proved. He cited the case of David Sironea Ole Tukai vs Francis Aran Muse. Samuel Kiprotich Aran and Johanna Kiprono Aran CA No. 76 of 2014 on parties being bound by their pleadings.
36. Counsel submitted that the land never belonged to Jane Atieno Otieno, the Appellant’s mother. Julius Otieno Odera was a beneficiary purchaser under the confirmed grant, in Succession Cause No. 158 of 2015, estate of Ogutu Ogot as per page 2 of the confirmed grant dated 19/12/2016. The land registrar DW2 enumerated the procedure followed at the registration of the title after a partition had been done.
37. Further, the Appellant did not question or put to the witness, DW2, any issue doubting the propriety of the title issued to the Respondent. It was raised as an afterthought on (this) appeal. Additionally, neither the appellant, nor his mother Jane Atieno Otieno proved that they had any superior title to that of the Respondent. There was completely no proof of any advancement of the purchase price to Julius Ouma Odera. Equally there was no proof of fraud now alleged in this appeal. He cited the case of Urmilla W/ o Mahandra Shah Vs Barclays Bank International & another COACA NO. 33 OF 1978 (1979) eKLR on the standard of proof required in an allegation of fraud. Counsel prayed the court dismiss the appeal.
Analysis and Determination
38. This court’s duty as a first appellate court is to re- evaluate all the evidence availed before the lower court and to reach its own conclusions, taking into account the fact that it had no opportunity of hearing or seeing the parties as they testified, and make an allowance in that respect. See the cases of Selle & Another v Associated Motor Boat Co. Limited & others [1968] EA 123.
39. The role of the Appellate Court was also stated by the Court of Appeal in the judicial decision of Gitobu Imanyara & 2 others Vs Attorney General [2016] eKLR. It was held as follows;
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. 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.”
40. This Court has carefully analysed the grounds of appeal and considered their correlation. They revolve on and are condensed into the following three issues which this court opines arise for determination. They are,
1) Whether the Appellant had locus standi in the Counterclaim hence this appeal
2) Whether the trial court erred in declaring the respondent the registered proprietor of the suit land
3) Whether the Appellant introduced new issues in the appeal
41. This court now proceeds to determine sequentially the issues raised or identified.
a) Whether the Appellant had locus standi to sue in the Counterclaim hence this appeal
42. The Respondent raised the issue of locus standi, by pointing out that the Respondent filed a preliminary objection dated 21st June 2022 in which he challenged the Appellants’ capacity to sue on behalf of the estate of John Atieno Otieno or Julius Ouma Odera in the counterclaim. The trial court allowed the preliminary objection. Consequently, it dismissed the counterclaim on 23rd August 2022. The appellant did not No appeal was filed against the ruling and therefore it stood dismissed. However, given that the ruling was delivered by Hon. R.K. Langat, the appellant mischievously reintroduced it when given an opportunity to amend the defence.
43. A reading of the Memorandum of Appeal reveals that it is premised on the allegations that the suit property was registered in the name of Julius Ouma Odera after a purchase financed by Jane Atieno Otieno. It challenges the decision on the legality of the title which issues had already been determined by virtue of the dismissal of the counterclaim. The appeal is founded mainly on the premise that the appellants’ mother purchased the suit land, which claim was the subject of the dismissed counterclaim. More specifically, this issue was raised in grounds 1, 2, 3, 4, 9, 11 and 12 of the appeal. The trial court considered the same through the preliminary objection that was raised by the Respondent. The trial Court pronounced itself on the same by finding that, indeed, the Defendant, now Appellant, had no locus standi to institute the Counterclaim. The Appellant did not appeal against the decision, and there is no finding to the contrary on the finding that he had no capacity to bring the counterclaim.
44. Actually, even if there would have been a grant of letters ad litem as averred by the Appellant, they were not in respect of the Estate of the mother or the person he alleges bought to the land singlehandedly. Thus, the locus standi preliminary objection still would succeed as the court found.
45. The fact that he introduced the counterclaim, though subtly, in the Amended Defence and Counterclaim did not change the legal position and finding of the trial Court that he had no capacity to bring the Counterclaim. If this Court were to overlook that fundamental legal point that once an issue has been settled by a competent court and is not set aside or successfully appealed against it binds parties to that dispute or those it is meant to bind, it would be a sad day in the legal field. Thus, for a party to raise the same issue and pursue it either in the same court or any other it would mean, as submitted by the Respondent, res judicata. Thus, contrary to the appellant’s argument that the court did not consider the issue of fraud, the court considered them and took it account that it had already found that the counterclaim was struck out. Therefore, the issues raised in those grounds of appeal listed above, at paragraph 43, were rendered moot by the finding of the court on the Appellant’s lack of locus standi or capacity to institute the counterclaim. They cannot be raised here now.
b) Whether the trial court erred in declaring the respondent the registered proprietor of the suit land
46. Having dealt with the issue of the validity of the appeal in so far as it relates to the Counterclaim which was dismissed, this court is now left with two main issues to grapple with. The first one is the merit or otherwise of the declaration that the Respondent was the registered owner. Suffice it to say that parties are bound by their pleadings. Therefore, the court will now determine the appeal based on the pleadings: the Amended Plaint and the Amended Defence only, without the allegations in the, already dismissed, Counterclaim.
47. It cannot be gainsaid that it is the court’s responsibility to determine, after consideration of the evidence presented before it, who the bona fide owner of the suit property is. The parties, on their part, have the responsibility of establishing the root of their titles as explained by the Court of Appeal in the case of Munyu Maina –vs- Hiram Gathiha Maina (2013) eKLR. The court was explicit that;
“When a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free of any encumbrances including any and all interests which need not be noted on the register.”
48. In the case of Daudi Kiptugen –vs- Commissioner of lands & 4 others (2015) eKLR, the court emphasized that,
“…the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title. If this were the position then all one would need to do is to manufacture a lease or a certificate of title at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein.”
49. Section 26 of the Land Registration Act Cap 300 Laws of Kenya provides that:-
26. Certificate of title to be held as conclusive evidence of proprietorship
(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except:-
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.
(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.
50. The Land Registrar testified as DW2. She provided an explanation of the registration of the suit land on the name of the Respondent. It was clear from her evidence that the parcel of land was sold to Julius Ouma Odero out of the estate of Ogutu Ogot. It was then transferred to the Respondent. She produced the transfer form for 1452 and stated that it was signed on 1st September 2021. She stated that the 2nd transfer proprietor was Adhiambo Joyce Aero and that the title was issued on the 4th entry. She produced the green card for 598, consent form, transfer form and green card for 1452 as exhibits. Additionally, the Respondent produced a title for the suit property registered in her name.
51. On the contrary, the Appellant failed to produce evidence that he had a Grant of Representation for the Estate of Julius Odera or his mother. He, therefore, already lacked locus standi to raise the counterclaim in the matter. Additionally, he had no evidence as to the financing of the purchase of the suit land by his mother. All he said was mere hearsay which was inadmissible since it had no backing whatsoever by way of a document to confirm his assertions. Additionally, he had no nexus to any ownership of the land as he could not show that he was even related to Julius Odera. Having failed to establish locus, and also show proof of registration, the trial court decided the case based on a balance of probabilities. Was the court in error in its finding as such? In my humble view he did not err in its finding.
52. The Appellant raised ‘hype’ or a lot of discussion both in evidence and submissions regarding the transfer of the land to the Respondent and her appearance before the land control board after the death of the seller. As these were issues that could be brought to court by a person who had capacity to do so and they be litigated properly as between them this court cannot venture into the same as it would be an academic exercise.
53. His argument that the Plaintiff’s title was not properly acquired. But the respondent stated that before the death of the seller, Julius, he appended his thump print to the documents. Even so these facts related to a pleading the court had on 23rd August 2022 been struck out and which had been sneaked back into being part of the record without leave of the Court or an order varying the orders of 23rd August 2022. The trial court was right in not considering them (fraud and illegality) at the final determination of the suit. Thus, it is my considered view that the trial magistrate properly analyzed the evidence and arrived at the correct conclusion. I find no reason to interfere with it.
c) Whether the Appellant introduced new issues in the appeal
54. A reading of the Memorandum of Appeal shows that there are issues that the Appellant introduced during the appeal that were not pleaded in the trial court. Additionally, by virtue of the counterclaim having been dismissed, the appellants’ appeal was and could only be restricted to issues that were pleaded in the Amended Plaint and the defence thereto, as stated above.
55. In the trial court, at no point in time did the appellant plead on intermeddling. This issue was introduced at the appeal stage which is untenable. In this regard, grounds 5, 6 and 7 are moot. Additionally, on the issue of fraudulent registration, the same was not pleaded as an issue and was introduced at the appeal stage, under the guise of the prayers in the counterclaim, which counterclaim had already been struck out vide the ruling of 23rd August 2022.
56. In the premises, it follows that the appeal is wholly un meritorious and the same is dismissed in its entirety with costs to the Respondent.
Judgment dated, signed and delivered virtually via the Teams Platform this 22nd day of October 2025.
HON. DR. IUR NYAGAKA
JUDGE
From 11:47 AM, in the presence of,
Court Assistant: Ms Lola
Ms. Kimberly Advocate for the appellant
Mr. Oduk Advocate for the Respondent.
'