LEKISHON OLEGEEM VS GESARE MARORO ONDIEKI (suing as the Legal Attorney of MARCO MANGERERE MABEYAy AND LAND REGISTRAR TRANS-MARA LEKISHON OLEGEEM VS GESARE MARORO ONDIEKI (suing as the Legal Attorney of MARCO MANGERERE MABEYAy AND LAND REGISTRAR TRANS-MARA

JUDGEMENT

The Appellant herein being aggrieved by the Judgement and Decree pronounced on 30.06.2022 (hereinafter referred to as “the Trial Court Judgement”) pronounced in the proceedings known as KILGORIS SPM ELC CASE NO. 56 OF 2018 (hereinafter referred to as “the Trial Court proceedings”) filed a Memorandum of Appeal dated 27.02.2023 (hereinafter referred to as "the present Appeal”) seeking for the following Orders; -
The Appeal herein be allowed with costs.
The Judgement and Decree of the Senior Principal Magistrate’s Court at Kilgoris delivered on the 30^th of June 2022 in GESARE MARORO ONDIEKI MARY (SUING AS THE LEGAL ATTORNEY OF MARCO MANGERERE MABEYA) -VS- LEKISHON OLEGEM & THE LAND REGISTRAR, TRANSMARA be set-aside and substituted with an Order dismissing the 1^st Respondent’s said suit with costs to the Appellant.
The Orders sought hereinabove have been supported by various grounds outlined in the body of the present Appeal as provided hereinbelow; -
The Learned Magistrate erred in law in entertaining a suit by a party without any capacity to bring or sustain the said suit and therefore without locus standi.
The Learned Magistrate erred in law by entertaining and adjudicating over a suit which was irredeemably out of time contrary to the provisions of the Limitation of Actions Act.
The Learned Magistrate erred in law and in fact in not appreciating sufficiently or at all that the 1^st Respondent commenced the subject suit long after the Appellant obtained title and possession of the suit property and the inertia prior thereto is inconsistent with a claim of ownership of the suit property.
The Learned Magistrate erred in law and in fact and misconstrued the import and weight of an unproven letter effectively purporting the same to confer title in land.
The Learned Magistrate erred in law and in fact in not holding that the documents tendered by the 1^st Respondent were not authentic, had been prepared purposely for the suit, were not properly produced before the Court and were not admissible as evidence and therefore of absolutely no evidential value. The Learned Magistrate erred in law and in fact be solely relying on the Adjudication Report as prove of ownership which evidence was not corroborated.
The Learned Magistrate erred in law by construing the absence of the 2^nd Respondent as a proof of impropriety on the part of the Appellant in the face of the allegations by the Plaintiff in the suit thereby shifting the burden of proof from the Plaintiff to the Defendants.
The Learned Magistrate erred in law and in fact in failing to appreciate sufficiently or at all that pursuant to an unchallenged adjudication, the Appellant had obtained a Certificate of Title to the suit property which is conclusive and indefeasible evidence of title to the land on 2^nd March 2001.
The Learned Magistrate erred in law and in fact in not appreciating sufficiently or at all that the Appellant, has been in exclusive and uninterrupted possession of the suit property since he obtained title to the same on 2^nd March 2001.
The Learned Magistrate erred in law and in fact in failing to appreciate sufficiently or at all that the 1^st Respondent’s allegations of fraud and forgery against the Appellants were neither specifically pleaded nor strictly proved.
The Learned Magistrate erred in law and in fact by failing to appreciate that the Plaintiff in the suit before him had not attained the high threshold of proof in cases where fraud is alleged thereby failing to prove the allegations before the Court.
The Learned Magistrate erred in law and in fact in not appreciating sufficiently or at all that the Appellant is the legal owner of the suit property and it would be in violation of Article 40 of the Constitution as read together with the Land Registration Act to deprive the Appellant of his proprietary rights over the suit property.
The Learned Magistrate erred in law and failed to appreciate that the Plaintiff before him had not met the criteria or made a case for any Orders of eviction from Land as contemplated and provided for in the Land Act.
The Learned Magistrate erred in law by dispossessing the Appellant of the suit property notwithstanding the substantive investments made thereon and despite the Constitutional imperatives set out in Article 40 of the Constitution.
The Learned Magistrate erred in law and in fact in disregarding the evidence presented by the Appellant and thereby rendering a decision against the weight of the evidence tendered to Court.
The Learned Magistrate erred in law by failing to subject the dispute before Court to a fair hearing as envisaged by Article 50 (1) of the Constitution.
The present Appeal was duly served on the Respondents and admitted for hearing on the 01.02.2024.
Thereafter, the Court made directions that the Appeal would be heard by way of written submissions.
The Appellant accordingly filed his written submissions on the 29.04.2024 while the 1^st Respondent filed her submissions on the 29.04.2024.
The 2^nd Respondent did not file any submissions appertaining to the present Appeal.
The Court in this Appeal is sitting as the first appellate Court over the Trial Court Judgement.
In the case of SELLE & ANOTHER-VERSUS- ASSOCIATED MOTOR BOAT CO.LTD & OTHERS (1968) EA 123 the Court of Appeal expounded on the jurisdiction of a first appellate Court as follows;-

“A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.”

The Court therefore as a duty and/or mandate to relook at the pleadings, evidence and/or issues raised before the Trial Court and make its own determination keeping in mind that it did not have the opportunity of seeing and/or hearing the witnesses first hand.
To be able to achieve this threshold, the Court must relook at the pleadings before the Trial Court as well as the testimony and evidence adduced therein to crystalize the issues that were for determination.

PLEADINGS BEFORE THE TRIAL COURT.

The proceedings before the Trial Court were instituted by the 1^st Respondent through a Plaint dated 15.12.2016 who sought the following Orders;-
A permanent injunction restraining the Defendants jointly and severally, their agents, employees, workers or persons acting on their behalf and by whatever name called from in any way interfering with, entering onto, taking possession, dealing with or in any way seeking to occupy or occupying the 1^st Plaintiff’s parcel of land known as LR.NO.TRANSMARA/MOYOI/130.
A Declaration Order that the title LR.NO.TRANSMARA/MOYOI/130 is borne out of forgery or fraudulently obtained, of not legal consequence and totally unconnected with the locus of the property known as LR.NO.TRANSMARA/MOYOI/130.
A Declaration order that the Plaintiff is the registered owner of the Title Number TRANSMARA/MOYOI/130 and that the 2^nd Defendant do rectify the records, do restore the Green Card, Mutation and Maps to ensure all documents anchoring the legal and factual existence of the property known as LR.NO.TRANSMARA/MOYOI/130.
That the Honourable Court do invoke the provisions of Section 157 (1), a,b,c,d of the Land Act, 2012 in furtherance of the justice of this case.
Costs of the suit.
Any other relief this Court deems fit to grant.
The 1^st Respondent pleaded that he was the registered owner of a property known as LR.NO.TRANSMARA/MOYOI/130 measuring approximately 23.83 Hectares in the year 1977.
The 1^st Respondent confirmed to be the holder of an Adjudication Record issued by the Land Adjudication Officer dated 16^th of May 2016.
The 1^st Respondent however resides in the United States of America and due to his absence, the Appellant took advantage and registered the property known as LR.NO.TRANSMARA/MOYOI/130 in his own name fraudulently.
The 1^st Respondent then outlined the particulars of the Forgery, Fraud and/or Manipulation of the records by the Appellant and the 2^nd Respondent under clause 11 of the Plaint.
The 1^st Respondent further pleaded that the 2^nd Respondent had been elusive to provide the Green Card and/or registration documents of the property known as

LR.NO.TRANSMARA/MOYOI/130 thereby hindering his efforts to understand the manner in which the same was registered in the name of the Appellant.

On essence therefore, the 1^st Respondent sought for a permanent injunction prohibiting the Appellant and/or his agents, servants and/or employees from interfering, encroaching, trespassing, fencing and/or in any way whatsoever from interfering with the quite possession of the property known as LR.NO.TRANSMARA/MOYOI/130.
Further to that, the 1^st Respondent sought for a declaration that the title of the property known as LR.NO.TRANSMARA/MOYOI/130 currently registered in the name of the Appellant be nullified as having been obtained through forgery, fraud and/or manipulation of the various records and therefore of no legal consequence.
The Plaint dated 15.12.2016 was duly served on the Appellant and the 2^nd Respondent.
The Appellant responded by filing a Statement of Defence dated 07.04.2017 of which he pleaded as follows; -
The Appellant denied all the allegations pleaded in the 1^st Respondent’s Plaint dated 15.12.2016.
Similarly, the Appellant admitted that the 2^nd Respondent was the custodian and/or person responsible of all public records relating to land situated within Transmara region.
The Appellant denied that the 1^st Respondent has ever been the registered owner of the property known as LR NO TRANSMARA/MOYOI/130 and invited him to prove the same.
The Appellant further stated that the 1^st Respondent’s letter dated 16.05.2016 did not confer and/or bestow any ownership rights to and/or in favour of the 1^st Respondent.
Consequently, the Appellant denied any wrong doing in the procurement of the title to the property known as LR NO TRASMARA/MOYOI/130.
The Appellant further specifically denied any acts or fraud, forgery and or manipulation undertaken by himself and or with the 2^nd Respondent.
The Appellant pleaded that the title deed issued in his name on 02 03 2021 is there for lawful and in accordance to the law.
The Appellant stated that at no one time, the 2^nd Respondent withheld and concealed the GreenCard to the property known as LR NO TRANSMARA/MOYOI/130.
The Appellant reserved the right to raise various Preliminary Objection on points of law as specified under paragraph of Statement of Defence dated 07 04 2017
The Appellant served the Statement of Defence dated 07 04 2017 on the 1^st Respondent who filed a Reply to Defence dated 02. 05.2017 and reiterated the pleadings in the Plaint dated 15.12.2016.
After the filling of the Reply to Defence, pleadings were closed and the matter set down for hearing.

EVIDENCE BEFORE TRIAL COURT.

The hearing at the trial court began on 11.07.2019 with evidence of one GESARE MARORO ONDERI MARY who was marked as PW1.
PW1 introduced herself as a representative of the 1^st Respondent who had given her a Power of Attorney.
PW1 produced a special power of attorney dated 25.05.2016 as PLAINTIFF EXHIBIT 1.
PW1 informed the court the Appellant had transferred the property known as LR NO TRANSMARA/MOYOI/130 to his own name.
PW1 stated that MARCO MAGERERE MABEYA was her brother who resides in the United States of America.
PW1 testified that MARCO MAGERERE was adjudicated with Plot NO 130 within MOYOI ADJUDICATION SECTION way back in 1977 and issued with an Adjudication Record on the 10.11.1977.
PW1 then produced a letter dated 16.05.2016 from the Director of Land Adjudication and Settlement as PLAINTIFF EXHIBIT 2.
PW1 also produced an Adjudication Record in the name of MARCO MAGERE MABEYA dated 10.11.1977 which was produced as PLAINTIFF EXHIBIT 3.
PW1 informed the court that on 01.09.2016 she visited the offices of the 2^nd Respondent and after undertaking an official search dated 01.09.2016 discovered that the property known as LR NO TRANSMARA/MOYOI/130 was registered in the name of the Appellant.
PW1 produced as a copy of the official search dated 01.09.2016 as PLAINTIFFF EXHIBIT 4 and a copy of the Green Card as PLAINTIFF EXHIBIT 5.
PW1 then testified that there was no explanation offered by the Appellant on how he came to be registered as the owner of the LR NO TRANSMARA/MOYOI/130.
It was PW1 evidence that the 2^nd Respondent must have assisted the Appellant in tempering and/or manipulating with the records on LR NO TRANSMARA/MOYOI/130 and registered the name of the Appellant.
In conclusion therefore, PW1 requested the trial court to grant the orders sought in the Plaint.
On cross-examination by Counsel for the Appellant, PW1 admitted that she had never been to the property known as LR NO TRANSMARA/MOYOI/130.
However, PW1 stated that the property known LR NO TRANSMARA/MOYOI/130 is located in MOYOI ADJUDICATION SECTION because his brother used to stay there.
PW 1 informed the court that currently she does not know who resides on the property known as LR NO TRANSMARA/MOYOI/130.
PW 1 further stated that she had never seen the Appellant and only met him in court.
PW 1 categorically stated that the Appellant had forged the tittle deed and such an action amounts to a criminal offence.
PW 1 challenged the Appellant to explain how he had acquired the tittle known as LR NO TRANSMARA/MOYOI/130.
In essence, PW 1 insisted that the Appellant did not follow the proper procedure in acquiring the tittle deed.
PW 1 informed the court that his brother who is the true owner of LR NO TRANSMARA/MOYOI/130 was still alive and living in the United States of America.
On re-examination, PW1 confirmed producing the Adjudication Record as well as the letter dated 16.05.2016 to confirm who the true owner of the Land was.
In PW 1 view, it was her evidence that the suit was filed to resolve the dispute.
At the end of this re-examination, PW1 was discharged from the witness box.
The Plaintiff’s second witness was one MORIS OTIENO who was marked as PW 2.
PW 2 introduced himself as the District Land Adjudication Officer currently dealing with Transmara East, West and South Districts.
PW 2 informed the Court that one of his core duties was to undertake Adjudication work and determine Objections cases filed against the Adjudication Register.
In addition to the above duties, PW 2 also represents the Land Adjudication Director as provided for under the Statute.
According to PW 2, once adjudication is finalised by their offices, the data is forwarded to the Director of Land Adjudication who then directs the Chief Land Registrar to take the necessary actions for Green Cards to be opened and title deeds issued to the respective land owners.
PW 2 explained that the adjudication process commences with the demarcation of the portions which are in occupation and this information is recorded in the Demarcation Book/Rough Book.
Once the Adjudication area is fully demarcated, the information in the Demarcation Book/Rough Book is transferred to the Adjudication Register which includes the Adjudication Records.
The Adjudication Records are usually prepared and filled in duplicate.
The original Adjudication Record is then retained by the District Land Adjudication Officer of the Adjudication Section while the duplicate Adjudication Record is sent to the Director of Land Adjudication.
The Original Adjudication Record is then published for inspection by the general public and if any person is not satisfied with the contents of the same is allowed to file an Objection against the entries contained in the Adjudication Record.
At the end of the Objection proceedings if any, the Original Adjudication Record is forwarded to the office of the Director of Land Adjudication in Nairobi who also rectifies the duplicate Adjudication Record if any changes have been effected based on the Objection proceedings.
The Director of Land Adjudication then forwards the finalised Adjudication Records to the Chief Land Registrar who then approves the opening of the respective Green Cards by the local District Land Registrar in charge of the area being adjudicated.
The respective land owners then collect their respective Title Deeds from the local District Land Registrar.
PW 2 however confirmed that the Demarcation Book is usually retained in the offices of the Land Adjudication Officer in charge of the Adjudication area.
According to the Demarcation Book and the Adjudication Record, the property known as PLOT.NO.130 within MOYOI ADJUDICATION SECTION was recorded in the name of MARIKO MANGERERE MABEYA.
After this recording, there has been no changes made on the Demarcation Book or the respective Adjudication Record.
PW 2 referred to the letter dated 16.05.2016 authored by the Director of Land Adjudication which confirmed that PLOT.NO.130 within MOYOI ADJUDICATION SECTION belongs to the 1^st Respondent herein.
PW 2 would not however explain why and how the District Land Registrar had issued a title to the Appellant herein.
On cross-examination, PW 2 stated that the letter dated 16.05.2016 was from the Director of Land Adjudication and not his office.
PW 2 informed the Court that he was well versed with the signature of the Director of Land Adjudication although he did not see him sign the letter dated 16.05.2016.
PW 2 confirmed to the Trial Court that the Director of Land Adjudication was well educated and therefore capable of reading and writing.
PW 2 insisted that the name MARIKO and MARCO refer to one and the same person.
PW 2 reiterated that the Adjudication of MOYOI ADJUDICATION SECTION was done in the year 1977 and all persons who were in occupation were identified hence issued with an a Adjudication Record.
The Adjudication Register is usually the proof of the people on the ground and is not signed by the Elders.
PW 2 informed the Trial Court that the Adjudication ends at the point of issuance of Title Deeds to the various land owners.
However, the District Land Registrar is supposed to issue title deeds in accordance with the information contained in the Adjudication Records.
PW 2 admitted that any land under adjudication can be recorded in the name of a minor but there must be a friend who is registered in trust for the minor.
PW 2 informed the Trial Court that he did not have the final Adjudication Record.
Nevertheless, according to the Demarcation Book, the name recorded was MARIKO and not MARCO.
On re-examination, PW 2 stated that the Title Deed of LR.NO.TRANSMARA/MOYOI/130 was issued to the Appellant.
Unfortunately, the name that appeared in the Title Deed was not the same as that contained in the Adjudication Record of PLOT.NO.130 within MOYOI ADJUDICATION SECTION.
PW 2 confirmed that the letter dated 16.05.2016 was genuinely issued by the Director of Land Adjudication who he represented at the District level.
However, once a Title Deed is issued, the name therein can not be rectified by any other person.
PW 2 clarified that the Adjudication Record is usually treated like a Title Deed within the Adjudication process.
The Adjudication Record of PLOT.NO.130 within MOYOI ADJUDICATION SECTION was then produced as PLAINTIFF’S EXHIBIT 3 by consent on the 05.12.2019 and the 1^st Respondent closed their case thereafter.

APPELLANT’S CASE BEFORE THE TRIAL COURT.

The Appellant’s case began on the 28.09.2021 with the evidence of the Appellant who was marked as DW 1.
The Appellant informed the Trial Court that he was a resident of MOYOI and engaged in farming as an occupation.
The Appellant confirmed that the suit before the Trial Court related to the property known as LR.NO.TRANSMARA/MOYOI/130 which belongs to him.
The Appellant then produced the following documents in support of his ownership of the property known as LR.NO.TRANSMARA/MOYOI/130;-

DEFENCE EXHIBIT 1- Copy of the Title Deed relating to LR.NO.TRANSMARA/MOYOI/130 issued on the 05.03.2001.

DEFENCE EXHIBIT 2- Certified Copy Of the Green Card of LR.NO.TRANSMARA/MOYOI/130.

DEFENCE EXHIBIT 3- Copy of an Official Search of the property known as LR.NO.TRANSMARA/MOYOI/130.

The Appellant informed the Trial Court that he was allocated the property known as LR.NO.TRANSMARA/MOYOI/130 by the Adjudication Committee of MOYOI ADJUDICATION SECTION and has been in occupation of the same for the last 20 years.
The Appellant further stated that the recording of his name as the beneficial owner of the property known as LR.NO.TRANSMARA/MOYOI/130 was never objected to and therefore he holds a legitimate title to the said property.
The Appellant denied any acts of fraud or corruption in the registration and issuance of the title deed relating to the property known as LR.NO.TRANSMARA/MOYOI/130.
Based on the Green Card of the property known as LR.NO.TRANSMARA/MOYOI/130, the Appellant was registered as the owner of the said property on the 03.02.2001.
However, on the 03.02.2015, the 1^st Respondent registered a Caution on the said Green Card but the same was removed on the 02.09.2015.
In essence therefore, the property known as LR.NO.TRANSMARA/MOYOI/130 did not have any encumbrances.
The Appellant denied knowledge of the 1^st Respondent and sought to have the suit before the Trial Court dismissed with costs.
On cross-examination, the Appellant reiterated that he was the legitimate owner of the property known as LR.NO.TRANSMARA/MOYOI/130 having been registered on the 02.03.2001.
The Appellant testified that he was allocated the property known as LR.NO.TRANSMARA/MOYOI/130 by the Adjudication Committee and was subsequently issued with a Title Deed.
However, the Appellant did not have any records to confirm that the Adjudication Committee had allocated him the property.
Similarly, the Appellant had not listed any member of the Adjudication Committee to testify and confirm that the property known as LR.NO.TRANSMARA/MOYOI/130 was allocated to him.
Nevertheless, the Appellant insisted that he was issued with a valid Title Deed from the Ministry of Lands in the year 2001 which was in accordance with the Adjudication Register of MOYOI ADJUDICATION SECTION.
The Appellant nevertheless failed to produce the Adjudication Register of MOYOI ADJUDICATION SECTION that had his name recorded.
The Appellant informed the Trial Court that he does not know the 1^st Respondent.
On being referred to PLAINTIFF’S EXHIBIT 3, the Appellant confirmed that the Adjudication Record for PLOT.NO.130 within NKARARO ADJUDICATION SECTION was recorded in the name of the 1^st Respondent in the year 1977.
At this particular time, the Appellant confirmed that he was not staying of the property known as PLOT.NO.130 within MOYOI ADJUDICATION SECTION.
On being referred to DEFENCE EXHIBIT 4, the Appellant reiterated that he acquired the Title Deed of the property known as LR.NO.TRANSMARA/MOYOI/130 in the year 2001 after having been demarcated the same by the Adjudication Committee.
The Appellant would however not explain how the property known as PLOT.NO.130 within MOYOI ADJUDICATION SECTION moved from the name of the 1^st Respondent to his name.
The Appellant insisted that he had followed all the necessary procedures in having the property known as LR.NO.TRANSMARA/MOYOI/130 registered in his name and issued with a Title Deed thereof.
On being referred to PLAINTIFF’S EXHIBIT 2, the Appellant reiterated that he is the legitimate owner of the property known as LR.NO.TRANSMARA/MOYOI/130 and did not know the 1^st Respondent as all.
On re-examination, the Appellant referred to the Green Card of the property known as LR.NO.TRANSMARA/MOYOI/130 which confirmed him to be the first registered owner.
The Appellant stated that since his registration as the owner of LR.NO.TRANSMARA/MOYOI/130, there has been no investigations regarding the ownership of the said property.
The Appellant reiterated that he acquired the property known as LR.NO.TRANSMARA/MOYOI/130 legitimately through an allocation by the Adjudication Committee and not by way of corrupt means.
At the end of this re-examination, the Appellant was discharged from the witness box and similarly, the Appellant’s case before the Trial Court was closed.
The parties were then directed to file their submissions which orders were duly complied with by the 1^st Respondent filing her submissions on the 13.10.2021 while the Appellant filed his submissions on the 08.11.2021.
The Court has duly gone through the pleadings before the Trial Court, the testimony and evidence adduced therein and the submissions filed.
The issues for determination can be summarised as follows; -

ISSUE NO. 1- WHETHER OR NOT THE 1^ST RESPONDENT HAD THE CAPACITY & LEGAL AUTHORITY TO INSTITUTE THE TRIAL COURT PROCEEDINGS.

ISSUE NO. 2- WHETHER OR NOT THE 1^ST RESPONDENT’S SUIT WAS TIME BARRED AS PROVIDED UNDER THE LIMITATION OF ACTIONS ACT, CAP 22.

ISSUE NO. 3- WHETHER OR NOT THE 1^ST RESPONDENT’S SUIT IS NOT SUPPORTED BY A VERIFYING AFFIDAVIT AS PROVIDED UNDER ORDER 4 RULE 1 (2) OF THE CIVIL PROCEDURE RULES,2010.

ISSUE NO.4- WHETHER OR NOT THE 1^ST RESPONDENT’S ADJUDICATION RECORD ISSUED IN THE YEAR 1977 IS LEGITIMATE OR NOT?

ISSUE NO.5- WHETHER OR NOT THE APPELLANT’S TITLE DEED TO THE PROPERTY KNOWN AS LR.NO.TRANSMARA/MOYOI/130 WAS OBTAINED BY FRAUD, FORGERY AND/OR CORRUPT MEANS?

ISSUE NO. 6- IS THE 1^ST RESPONDENT ENTITLED TO THE PRAYERS SOUGHT IN THE PLAINT DATED 15.12.2016?

ISSUE NO.7- WHO SHOULD BEAR THE COSTS OF THE APPEAL?

The Court having identified the issues for determination as outlined hereinabove, the same shall now be discussed hereinbelow.

ISSUE NO. 1- WHETHER OR NOT THE 1^ST RESPONDENT HAD THE CAPACITY & LEGAL AUTHORITY TO INSTITUTE THE TRIAL COURT PROCEEDINGS.

The first issue for determination is one that raises a point of law emanating from the Power of Attorney used by the 1^st Respondent to institute the Trial Court proceedings.
According to the Appellant’s pleadings under Paragraph 18 of the Defence dated 07.04.2017, the 1^st Respondent does not have the legal capacity to originate, sustain and/or maintain the Trial Court proceedings.
The Appellant’s pleadings and/or submissions outline two critical aspects of law which render the 1^st Respondent’s actions of filing the Trial Court proceedings invalid based on specific provisions of law.
The first issue of law is that the Power of Attorney relied by the 1^st Respondent to institute the Trial Court proceedings has not been stamped in accordance to the Stamp Duty Act, Cap 480.
In essence, the entire Power of Attorney donated to the 1^st Respondent is not lawfully registered and cannot give lawful powers for the Trial Court proceedings to be instituted.
The second critical aspect is that in view of the failure to pay for the stamping of the Power of Attorney and subsequently not registering the same, the 1^st Respondent was not vested with the lawful powers and/or legal capacity to execute the Verifying Affidavit that accompanied the Plaint dated 15.12.2015 and the Trial Court proceedings could not be sustained before any Court of law.
To begin with, the Court will discuss the issue of the Stamp Duty Act, Cap 480 and the none registration of the said Power of Attorney and its legal effects on the capacity and locus standi of the 1^st Respondent to institute the Trial Court proceedings.
The Black’s Law Dictionary, 9^th Edition describes the legal definition of locus standi on pages 1026 in the following manner; -

“The right to bring an action or to be heard in a given forum”.

In the Kenyan Case of ALFRED NJAU & OTHERS -VERSUS- CITY COUNCIL OF NAIROBI (1982) KAR,229, the Court stated as follows regarding locus standi; -

“the term locus standi means a right to appear in Court, and conversely, to say that a person has no locus standi means that he has no right to appear or be heard in such and such proceedings.”

In another case known as NAKURU HIGH COURT CIVIL CASE NO. 464 OF 2000 between LAW SOCIETY OF KENYA-VERSUS- COMMISSIONER OF LANDS & OTHERS, the Court observed as follows;-

“Locus standi signifies a right to be heard, a person must have sufficiency of interest to sustain his standing to sue in court of Law”.

In essence therefore, where a party in a suit does not have the locus standi and capacity to institute the proceedings, then the Trial Court does not have the jurisdiction to sustain such a proceeding and make determinations on issues of law and fact based on such a proceeding.
Turning to the present Appeal, the Appellant raises the first issue regarding the Power of Attorney held by the 1^st Respondent from the aspect that the same is not compliant with the provisions of the Stamp Duty Act, Cap 480.
To begin with, the Appellant submits that the 1^st Respondent purports to be a holder of two Powers of Attorney dated 25^th August 2016 and 1^st July 2016.
The first Power of Attorney dated 1^st July 2016 is from HENRY NYABUTO MANGERERE (DONOR) to MARY GESARE ONDERI & CHARLES NYAMWANGE (DONEES) to handle and oversee Court proceedings for the MOYOI PLOT.NO.130 belonging to MARCO MANGERERE.
The Power of Attorney dated 1^st July 2016 was prepared in the state of Arizona in the United States of America and notarised by a Notary Public in the State of New Jersey.
The second Power of Attorney was executed on the 23^rd of August 2016 by one MARCO MANGERERE (DONOR) to GESARE MARORO ONDERI MARY (DONEE) specifically to represent him in the proceedings relating to the property known as LR.NO.TRANSMARA/MOYOI/130 before the Environment & Land Court in Kenya.
In the heading of the Plaint dated 15.12.2016, the parties to the proceedings before the Trial Court is provided as follows;-

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ENVIRONMENT & LAND COURT

CASE NO. 649 OF 2016

GESARE MARORO ONDERI MARY

(SUING AS THE LEGAL ATTORNEY

OF MARCO MANGERERE MABEYA) …………………..……………………… PLAINTIFF

-VERSUS-

LEXISHON OLEGEEM ……………………………………………….……… 1^ST DEFENDANT

LAND REGISTRAR, TRANSMARA ……………………………………….. 2^ND DFENDANT

It is clear from the heading of the Trial Court proceedings that the 1^st Respondent was an Attorney of one MARCO MANGERERE MABEYA.
The question therefore is what ingredients should the power of Attorney donated by MARCO MANGERERE MABEYA to the GESARE MARORO MNDERI MARY have to be legally recognised and capable of giving lawful powers as intended.
First and foremost, a Power of Attorney is a document which intends to grant, alienate, permit and/or confer certain rights belonging to one party to another party through a legally recognised manner.
Section 4 of the Registration of Documents Act provides that all documents conferring any right, title or declare, limit or extinguish any right, title or interest, whether vested or contingent to, in or over immovable property shall be registered.
For any document to be registered under the Registration of Documents Act, Section 19 of the Stamp Duty Act makes it mandatory that Stamp Duty must be paid first before the Registrar of Documents registers the said Power of Attorney and issues it with the relevant registration number.
Section 46 of the Land Registration Act, No. 6 of 2012 specifically provides that where the Stamp Duty under Section 19 of the Stamp Duty Act has not been paid, then such a document cannot be registered.
In addition to the above provisions of the Registration of Documents Act and the Stamp Duty Act, Section 44 (1), (2), (4), (5)(b) of the Land Registration Act, No. 6 of 2012 makes it mandatory that the Donee must execute the Power of Attorney signifying his/her acceptance of the said authority.
Lastly, for any Power of Attorney executed outside the jurisdiction of Kenya, Section 88 of the Evidence Act, Cap 80 requires that such a Power of Attorney must be accompanied with the seal and/or stamp or an affidavit by the Notary authenticating it.
The 1^st Respondent being the party that is seeking to rely upon the Power of Attorney by MARCO MANGERERE MABEYA, Section 107 of the Evidence Act, Cap 80 places the burden of confirming that the Power of Attorney is compliant with the various Statutes and bestows her with the legal capacity and locus standi to institute and sustain the proceedings before the Trial Court.
The Court has carefully perused the Power of Attorney dated 23.08.2016 between MARCO MANGERERE (Donor) and GESARE MARORO ONDERI MARY (Donee) and makes the following observations; -
The Power of Attorney dated 23.08.2016 was only executed by one MARCO MANGERERE (the Donor) and was never executed by GESARE MARORO ONDERI MARY (the Donee).
The Power of Attorney dated 23.08.2016 was Notarised by Notary Public in the State of Arizona, United States of America but there is no Affidavit accompanying the said Power of Attorney confirming that it was Notarised by a person authorised to do so.
The Power of Attorney dated 23.08.2016 does not bear any Government Stamps to confirm payment of Stam Duty or any receipts of payment of the said Stamp Duty to the Government of Kenya.
The Power of Attorney dated 23.08.2016 does not have an endorsement by the Registrar of Documents as provided under the Registration of Documents Act indicating the lawful Power of Attorney registration number to enable the use of the said document.
In essence therefore, this Court is of the considered finding that the Power of Attorney dated 23.08.2016 between MARCO MANGERERE (the Donor) and GESARE MARORO ONDERI MARY (the Donee) was non-compliant with the provisions of the Registration of Documents Act, Cap, the Stamp Duty Act, and the Land Registration Act, No. 6 of 2012.
The Court having arrived at the finding that the Power of Attorney dated 23.08.2016 was not compliant with the provisions of the Registration of Documents Act, the Stamp Duty Act and the Land Registration Act, No. 6 of 2012, the second aspect of this issue kicks into play.
The second aspect is whether GESARE MARORO ONDERI MARY was a holder of a lawful and legal Power of Attorney capable of giving her the capacity and locus standi of instituting the Trial Court proceedings.
In the case of FRANCIS MWANGI MUGO-VERSUS- DAVID KAMAU GACHAGO (2017) eKLR, the Court pronounced itself in the following manner as regards a Power of Attorney that has not been registered; -

“I think the more fatal omission is not necessarily payment of stamp duty important as it is, but the failure to register the power of attorney before filing suit, for to me, it is the act of registration which then vests the donee with capacity to deal with the immovable property claimed by the donor. The power of attorney in this instance, is not similar to a sale agreement or a lease, whose value is only evidentiary. The power of attorney here, falls under the purview of capacity for one cannot act for another without having the legal capacity to do so. I hold the view that before a donee of a power of attorney can act, on a matter, at least that involving immovable property, then he must register that power of attorney before he can allege to have capacity to act.”

In another case known as DANIEL KIPKETER RUGUT-VERSUS- ERNEST KAVAYI & 5 OTHERS (2021) eKLR, the Court stated as follows; -

“That it follows that the power of attorney which confers upon the donee a right to deal with immovable property, like the one the Plaintiff relies on, must be registered. That failure to register such a power of attorney means the donee, in this case the Plaintiff, cannot claim any right under it.”

Clearly therefore, the omission by both MARCO MANGERERE (the Donor) and GESARE MARORO ONDERI MARY (the Donee) to at least register the Power of Attorney dated 23.08.2016 before instituting the Trial Court proceedings was actually fatal and the Donee GESARE MARORO ONDERI MARY could not hold lawful capacity and locus standi to act on behalf of MARCO MANGERERE (the Donor).
In conclusion therefore, the proceeding before the Trial Court was instituted by a person that lacked the legal capacity and/or locus standi incapable and the only remedy available to the Trial Court was to strike the same out as is the finding of this Court.

ISSUES NO. 2-7

On the Issues No. 2 to 7, this Court is of the considered view that it would be an exercise in futility to proceed and discuss the same where the Plaint was not properly filed before the Trail Court.
To this end, this Court reserves its pronouncements of those issues to another day if it ever comes.

CONCLUSION

In conclusion, this Court hereby makes the following Orders as appertains the Memorandum of Appeal dated 27.02.2023; -
THE MEMORANDUM OF APPEAL DATED 27.02.2023 BE AND IS HEREBY UPHELD.
THE JUDGEMENT AND DECREE OF HON. R.M. OANDA (SPM) PRONOUNCED ON THE 30.06.2022 IN THE PROCEEDINGS KNOWN AS KILGORIS SPM ELC CASE NO. 56 OF 2018 BE AND IS HEREBY SET-ASIDE.
THE PLAINT DATED 15.12.2016 FILED BY GESARE MARORO ONDERI MARY BE STRUCK OUT FOR HAVING BEEN FILED WITHOUT A PROPER & REGISTERED POWER OF ATTORNEY FROM MARCO MANGERERE MABEYA.
THE 1^ST RESPONDENT WILL BEAR THE COSTS OF THE TRIAL COURT PROCEEDINGS AS WELL THE PRESENT APPEAL.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 24^TH JULY 2024.

IN THE PRESENCE OF:

COURT ASSISTANT:MR NGENO

ADVOCATE FOR THE APPELLANT: MS. MWENDWA H/B FOR MR. MARETE

ADVOCATE FOR THE RESPONDENTS: MR. NYAMWENGA FOR 1^ST RESPONDENT

LEKISHON OLEGEEM VS GESARE MARORO ONDIEKI (suing as the Legal Attorney of MARCO MANGERERE MABEYAy AND LAND REGISTRAR TRANS-MARA

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