BACKGROUND
1 In its plaint dated 9th May 2017 filed as Ukwala MCELC No. 421 of 2017 the Plaintiff filed the suit the subject of this appeal averring that he is the only son and beneficiary of the estate of Gabriel Onyango Okinyo who was the first registered proprietor of parcel Uholo/Ugunja 1268 (sic). I think this was a typo since from the entire proceedings and documents tendered it is clear that the same is parcel Uholo/Ugunja 268 (herein suit property). That his father Gabriel Onyango had been in possession of the suit land until his death in January 1989 and thereafter the plaintiff has been in possession and use of the same.
2 The Plaintiff averred that sometime in the -year 2015 the 1st and 2nd defendant fraudulently conspired with the 4th defendant and transferred the suit land from his father Gabriel Onyango Okinyo into their names. That they also crossed out the plaintiffs’ fathers name and inserted their fathers name next to the plaintiffs’ fathers name in the parcel register. They then subdivided the suit land into parcels Uholo/Ugunja 3694,3695 and 3696 which was transferred to the 3rd defendant for a consideration paid to the 1st Defendant. The former two parcels were registered into the names of the 1st and 2nd Defendant respectively.
3 The Plaintiff averred that the actions of the Defendants were irregular and fraudulent meant at grabbing the suit property. The particulars of fraud were listed at paragraph 21 of the plaint and which I will revisit later in this judgement. The 1st and 2nd Defendants are also termed as trespassers into the suit land.
4 The Plaintiff therefore sought for judgement against the Defendants jointly and severally as follows; -
a. General damages for trespass.
b. Nullification and cancellation of titles numbers 3694, 3695 and 3696, consolidation and restitution of the lands to the Plaintiff as a beneficial owner, at the Defendants' expense.
c. Rectification of the register to expunge from it the names and interest to one ELISHA OLOO (deceased) and instead enter that of GABRIEL ONYANGO (deceased) and a declaration that the Plaintiff is the sole beneficial owner of the suit land initially described as UHOLO/UGUNJA/268 at the Defendants' expense.
d. Costs of the suit and interest
e. Any other relief that the honourable court may deem fit and just to grant.
5 The 1st 2nd and 3rd Defendants filed a joint statement of defence dated 23/5/2015. They pleaded that the suit property was originally registered in the name of Gabriel Onyango but with the name of Elisha Oloo put in brackets on the date of first registration. It is pleaded that UHOLO/UGUNJA/268 is an ancestral land which was originally owned by one Ywaya Abanja (deceased,) and who was the 1st Defendant's grandfather but the Plaintiff and 2nd Defendant's great grandfather. That during land adjudication in 1970, the late Ywaya Abanja's land was subdivided into two parcels, UHOLO/UGUNJA/267 and UHOLO/UGUNJA/268, which parcels were supposed to be registered in the names of Jeremiah Okinyo and Elisha Oloo Ywaya respectively being his sons.
6 It is alleged that during land adjudication, Jeremiah Ywaya had since died and his share, UHOLO/UGUNJA/267, was registered in the name of Martin Ywaya who held it as a beneficiary as well as a trustee for his siblings, being the late Gabriel Onyango and John Otieno. Further that Elisha Oloo Ywaya was not in the village during adjudication, the family of the late Ywaya Abanja thought it wise to have UHOLO/UGUNJA/268, registered in the name of Gabriel Onyango who was to hold it in trust of Elisha Oloo.
7 It is averred that the 1st and 2nd Defendants have been residing in UHOLO/UGUNJA/268 since they were born and it is the only known place to them as ancestral home, which land was bequeathed to their father and grandfather respectively as a son to Ywaya Abanja.
8 They denied that the Plaintiff has at any time material to this suit taken possession and/or utilized parcel UHOLO/UGUNJA/268 but that the plaintiff has been a permanent resident of UHOLO/UGUNJA/267 wherein he has a home to date. The allegations of fraud and trespass are also denied. They prayed that the suit be dismissed with costs.
9 The record of appeal does not bear the 4th defendants pleadings however the trial court file bears a Memorandum of Appearance dated 24/07/2017 by the Principal Litigation Counsel Janet Lang’at and a Statement of Defence of even date. The defence generally denied all the allegations in the plaint.
10 The matter was heard by Hon. E Tsimonjero Senior Resident Magistrate. The trial court upon hearing the parties including a visit to the site in its judgement dated 26/7/2024 made a finding that the plaintiffs father held the suit property in trust for Elisha Oloo, that the plaintiff could not hold more than what his father held. The trial court made the following final orders; - ‘
i. A declaration that Gabriel Onyango, held the suit property Uholo/Ugunja/268 in trust for Elisha Oloo by way of a customary trust.
ii. A declaration that the Plaintiff has no interest in the suit property Uholo/Ugunja/268 as his father Gabriel Onyango was only but a trustee
iii. The register for parcel number Uholo/Ugunja/268 shall be rectified to expunge the name of Elisha Oloo, the beneficiary thereof
iv. The new title numbers Uholo/Ugunja/3694;3695 and 3696 be and are hereby cancelled and the original title number Uholo/Ugunja/268 reinstated in the name of Elisha Oloo pending proper succession proceedings
v. Each party shall bear their own costs.
11 Aggrieved with the entire judgement of the trial court the Plaintiff proffered the present appeal vide a Memorandum of Appeal dated 5/8/2024 on the following grounds; -
1. The Honourable Magistrate erred in law and in fact in holding that the issue of whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel UHOLO/UGUNJA/268 was properly before Court for determination.
2. The Learned Magistrate erred in law and in fact in failing to consider and or render an express finding on the issue of whether the transmission of the proprietorship of suit parcel UHOLO/UGUNJA/268 from the name of Gabriel Onyango Okinyo was fraudulent and illegal.
3. The Honourable Magistrate erred in Law and in fact by failing to uphold express provisions of statute.
4. The Learned Magistrate erred in law and in fact by failing to consider the Appellant's Submissions.
5. The Learned Magistrate erred in law and in fact in holding that he used "common sense" in usurping the role of determining boundaries of land from the Registrar of Land in whom that duty is exclusively bestowed by Statute.
6. The Honourable Magistrate erred in law and in fact in allowing persons other than the Court appointed Administrators of the Estate of a deceased to prosecute and or defend an action on behalf of the said Estate.
7. The Learned Magistrate erred in law and in fact by granting prayers that none of the parties had sought in contradiction of the cardinal principal of law that parties are bound by their pleadings.
12 On the basis of the above grounds the Appellant seeks the following reliefs; -
1. The Judgement of the Learned Magistrate of the Subordinate Court delivered on the 26th July, 2024 in the Chief Magistrate's Court at Ukwala Environment and Land Case No. 39 of 2018 and the ensuing Decree be and are hereby set aside.
2. An Order be and is hereby issued that all the Appellant's prayers as outlined in the Plaint dated 9th May, 2017, be and are hereby allowed.
3. Costs of the Appeal be and hereby awarded to the Appellant.
SUBMISSIONS
13 Directions were issued by the court that the appeal proceeds by way of written submissions which parties complied.
Appellants Submissions
14 The Appellant filed submissions through the firm of Edwin Omulama & Associates Advocate dated 6/01/2025 and Supplementary submissions dated on issues of law with leave of the court.
15 The Appellant dropped the 2nd ground of the Memorandum of Appeal herein and proceeded to submit on the remaining grounds as follows; -
16 On grounds of 1, 3, 4, 5 and 6 which relate to Failure by the Learned Trial Magistrate to uphold express provisions of statute. It is submitted that the trial court overlooked Sections 45, 80 (2) and 82 of the Law of Succession Act (Cap 160) and Sections 18(2), 19(2) and 26(1) of the Land Registration Act No. 3 of 2012.
17 Outlining each of the above provisions Counsel urged that the 1st and 2nd Respondents expressly admitted in their pleadings to having sold a portion of property title number UHOLO/UGUNJA/268 to the 3rd Respondent while fully aware that succession proceedings pertaining to the said property had not been undertaken (pages 39 and 40 ROA). That DW1 and DW2 open admitted during cross examination to intermeddling with a deceased person property and which the trial court failed to hold the defendants accountable.
18 The Appellant contends that, safe in the knowledge that under the law the only person who could sue or defend on behalf of the estate of a deceased person is a duly appointed administrator, pointed out to the trial court that the question of the existence or otherwise of a constructive trust in favor of the estate of a deceased person was one for a court of law properly moved to decide. Reliance was placed in the case of Isaya Masira Momanyi (suing on behalf of the late Masira Onsase) Vs. Daniel Omwoyo & Kebungo Orina ELC Case No. 167 of 2016.
Counsel faulted the trial court for noting that he had not addressed the court on the issue of constructive trust and handled it casually or rubbished it when it had been expressly pleaded by the 1st 2nd and 3rd defendants. Counsel urged that the trial court was operating per incuriam.
19 It is submitted that the 1st, 2nd and 3rd Respondents did not have legal authority to jointly or severally represent the Estate of the late ELISHA OLOO in the instant proceedings. Accordingly, every single act or averment they purported to canvass before the Trial Court allegedly to establish the presence of a constructive trust in favour of the subject Estate was "... null and void ab initio and cannot be cured by a party subsequently obtaining the letters of administration."
20 That the Learned Trial Magistrate despite being cautioned of lack of jurisdiction proceeded to use "common sense" to override and or contradict Sections 18 (2) and 19 (2) of the Land Registration Act and usurped the role of land-boundary fixer which is exclusively reserved for the Registrar of Lands.
21 On ground of number 7 of the appeal, referring to the prayers sought in the plaint it is submitted that 1st, 2nd and 3rd Respondents' sole prayer was for the suit to be dismissed with costs. That however the final orders have no link to the prayers that the respective parties to the suit themselves made against the established law that parties are bound by their pleadings. Reliance is placed in South Nyanza Sugar Company Limited versus John Gituki Gomba (2022) e KLR,
22 Counsel added that the only way that the final orders herein could possibly have issued was if there was a legally appointed representative of the Estate of the late ELISHA OLOO on record and who had in turn filed a counter-claim against the Appellant seeking express prayers that the Honourable Court would then have granted if satisfied with the evidence tendered.
Supplementary Submissions
23 In response to the respondent’s submission dated 23/01/2026 counsel on record for the Appellant raised the following issues
1) Could the Respondents defend (or sue) the instant suit on behalf of the Estate of Elisha Oloo without being appointed Administrator(s) thereof?
2) Did the Honourable Trial Court have jurisdiction to determination the issue that arose during the proceedings as to the location of the boundary between parcels UHOLO/UGUNJA/267 and UHOLO/UGUNJA/268?
3) Whether it was open to the Honourable Trial Court to make final orders that clearly were not the prayers that the respective parties to the suit themselves made.
4) Could the Respondents defend (or sue) the instant suit on behalf of the Estate of Elisha Oloo without being appointed Administrator(s) thereof?
The 1st, 2nd & 3rd Respondents Submissions
24 The 1st, 2nd & 3rd Respondents filed submissions dated 23/01/2026 through the firm of Ngaywa & Kibet Partners LLP submit on the issues arising as hereunder.
25 It is submitted that the Respondents in their joint statement of Defence pleaded that the suit land was originally registered in the name of the Gabriel Onyango but with the name of Elisha Oloo put in brackets on the date of first registration. That evidence was led explaining the inclusion of the name in brackets connoting Gabriel Onyango was only holding the land in trust.
26 The Respondents assert that the trial court correctly held that the issue of customary trust was properly before it. That it was incumbent upon the court to make its determination on it. Further, the Appellant through his advocates had the opportunity to dislodge and discredit the Respondents claim through cross examination. He also had the opportunity to make his submissions on the said issue but he declined to do so.
27 The Respondents contended that it was evident from the site visit herein that the 1st and 2nd Respondent have since their birth lived and have been in occupation and use of land known as Uholo/Ugunja/268. No evidence of occupation and use of any alternate land by the said Respondents was tabled by the Appellant.
28 On failure to uphold express statutory provisions including failure by the trial court to hold the 1st, 2nd and 3rd Respondents accountable for the express breach of section 45 of the Law of Succession Act, it was submitted that there was no other form of save for the court cancelling the titles that had been registered prior to issuance of letters of administration being issued.
29 With regard to usurping the jurisdiction of the land registrar conferred under section 18(2) and 19(2) of the Land Registration Act, the Respondents urge that the trial court did not usurp the role of determining boundaries. alleged. The trial magistrate noted it conducted a site visit for the sole purpose to determine the occupation and user of the two parcels of land, the nature of the developments therein and the existence of any boundaries.
30 It is emphasised that the issue before court was not an issue of boundaries but an issue of ownership and possession of the suit property. The evidence presented pointed that the Appellant occupied L.R NO. UHOLO/UGUNJA/267 while the 1st and the 2nd Respondent occupied and used L.R NO. UHOLO/UGUNJA/268. It was necessary for the court to be shown where the said parcels of land were and the boundaries between to determine whoever was in possession of the parcels of land. In so doing, the magistrate did not in any whatsoever determine boundaries of the said parcels of land.
31 Rehashing the provisions of section 26(1) of the Land Registration Act it was contended that the court properly found that the Certificate of Title was registered in the name of Gabriel Onyango with the names of Elisha Oloo. Having established from the history of the parcel of land, the adjudication and registration process that the property that there existed a customary trust, it was incumbent upon the court to protect the interests of Elisha Oloo(deceased) in whose favour the trust was created.
32 Citing Ongalo v Ang'iyo [2025] KEELC 4354 (KLR) it is submitted that trusts including customary trusts are overriding interests on registered land, which, although not noted in the register, all registered land is subject to. Allegations of a trust including customary trust must be proved by the person asserting existence thereof. The court is also referred to Kanyi v Muthiora (1984) KLR 712 CA the Court of Appeal Kamau v Thiga (Environment and Land Appeal 5 of 2021) [2022] KEELC 2839 (KLR) (21 July 2022) (Judgment) and Isack Kieba Minanga v Isaaya Theuri M'Lintari & Another [2018] Eklr.
33 On the issue of whether trial magistrate erred in law and in fact in allowing persons other than the Court appointed Administrators of the estate of a deceased person to prosecute and /or defend an action on behalf of the said estate it was posited that the 1st, 2nd and 3rd Respondents were sued in their personal capacity and not as administrators of the said estate for allegedly intermeddling and trespassing on the suit property. It was incumbent upon them to adduce evidence on how they come into possession and use of the suit property.
34 The court was invited to dismiss the appeal with costs for lacking merit.
ANALYSIS AND DETERMINATION
35 I have considered the appeal, the grounds of appeal listed in the Memorandum of Appeal, the lower court record, and the rival arguments proffered by both sides in their submissions.
36 The duty of an appellate court is stipulated under Section 78 of the Civil Procedure Act which reads; -
“Subject to such conditions and limitations as may be prescribed, an appellate court shall have power;
(a)to determine a case finally;
(b)to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require the evidence to be taken;
(e) to order a new trial.
(2,) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.”
37 The court of appeal in Peterson Ndung’u, Stephen Gichanga Gituro. N. Ojwang, Peter Kariuki; Joseph M. Kyavi & James Kimani V Kenya Power & Lighting Company Ltd [ 2018] Eklr stated as follows regarding the duty of the first appellate court: -
“ ………………..This being a first appeal , we are reminded of our primary role as a first appellate court namely to re-evaluate , re-assess and reanalyze the extracts on record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons why...............On a first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate itself and draw its own conclusions though it should always beware in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence……....”
38 In Mbogo and Another v Shah [1968] EA 93, the court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
39 The locus classicus on the above remains the case of Selle Vs. Associated Motor Boat Co. (EA.123) where it was stated that the court must reconsider the evidence, evaluate it itself and draw its own conclusions but bearing in mind that it did not have the benefit of seeing the witnesses who testified before the trial court.
40 The court has noted that ground No. 2 of the appeal was dropped by counsel for the Appellant in its submissions. The main issues for determination in my view is whether this appeal has merit. In determining this I will seek to answer the following questions; -
1) Whether the trial court erred in entertaining the claim for customary trust
2) If the answer to the above is no, whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel Uholo/Ugunja/268’
3) Whether the transfer of the suit property to the 1st and 2nd defendants was lawful?
4) Whether the plaintiff was entitled to the orders sought in the plaint dated 9th May 2017.
5) Whether the trial Magistrate erred in issuing the final orders herein
6) What reliefs ought to issue in the circumstances of this appeal
7) Who bears the costs of this appeal?
ANALYSIS AND DETERMINATION
Whether the trial court erred in entertaining the claim for customary trust
41 In the judgement the subject of this appeal, the trial court identified the first issue for determination as ‘Whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel Uholo/Ugunja/268’ and which the court found in the affirmative that the Plaintiffs father held the suit land in trust for Elisha Oloo by way of customary trust.
42 The Appellants contend the issue whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel UHOLO/UGUNJA/268 was not properly before the trial court. This arises partly from the Appellants assertion that the 1st and 2nd defendants were not legal representatives of the estate of Elisha Oloo and could therefore not represent his interests in the suit property. According to counsel every single act or averment the defendants purported to canvass to establish a constructive trust in favor of Elishas estate was null and void.
43 I will extract verbatim what the plaintiff’s submission in the trial court was. It was submitted that ‘the subject of contention is whether Gabriel Onyango Okinyo was registered as proprietor in trust for one Elisha Oloo, or not. That question would have been one for a Court of Law properly moved to determine. It was not open, as DW1 (Franklin Swaga Oloo) claimed during cross examination on 10/06/2024, for the chief, Assistant chief, Land Registrar or Surveyor to resolve.
44 The its judgement the trial court had this to state with regard to the above; -
‘I note that the plaintiffs’ counsel did not attempt (to sic) address the issue of trust in their submissions. He merely stated that the issue could have been determined by a court properly moved. What that meant is not clear to this court. This was a pertinent issue which had been expressly pleaded in the 1st, 2nd and 3rd Defendants' Statement of Defence. It could not be rubbished off with such casualty. It does not require a tooth pick comb to decipher the same from the pleadings and the evidence. The issue is thus properly before court for determination."
45 This court notes that it did not help his client or even the court for Counsel for the Plaintiff to state that there was absolutely no reason for the Appellant to address issues which he was certain were null and void abinitio in the eyes of the law. This is exactly what he should have posited in his submissions before the trial court. Be that as it may I must resolve the controversy.
46 I will briefly look at the subject of framing issues. The importance of the need to frame issues for determination was emphasised in Rukidi vs. Iguru and Another [1995-1998] 2 EA 318 where the court stated thus;-
“Framing of the issues is an important step in the determination of a case as it defines the areas of controversy and narrows down the scope of inquiry. It makes the hearing of the case more focus-oriented and saves the time of the Court and there is nothing wrong with the parties or their counsel agreeing on the issues or otherwise participating in their framing. The fact that issues were framed at the commencement of the hearing does not mean that they cannot be amended by addition or deletion since rule 5 Order 13 allows the Court, any time before passing the judgement, to amend the matters in controversy between the parties, or to strike out any issues that appear to have been wrongly framed. A trial Judge therefore always has a discretion to amend the issues framed any time before passing judgement but the point to be emphasised is the need to frame the issues at the commencement of the hearing of any suit to guide the parties and the Court in addressing the basic issues in controversy.”
47 While the subject in the above case law was the failure by the court to frame issues, I still found some guidance from the dictum on how issues are distilled. Arising from the above holding in framing the issues the court must look at the main pleadings which in the present case is the plaint and defence to identify the specific claims being made or affirmed and the allegations being denied. The plaintiff alluded at paragraph 18 of the plaint that the green card of the suit land appeared fishy as his father’s name Gabriel was clearly indicated on the land at the first registration upon adjudication however there was a name; Elisha Oloo fixed immediately after the plaintiff’s fathers name and placed in brackets. That this was a ploy to grab the land. The plaint also gives a history of the property and alleging that Elisha Oloo customary land was in Nyamasare.
48 The defendants refuted the above allegations and averred at paragraph 5 of their Statement of Defence that the land was ancestral land which was originally owned by one Yawya Abanja the 1st defendant grandfather but was also the plaintiffs and 2nd defendants’ great grandfather. To explain why the name of Elisha Oloo was allegedly inserted in brackets next to the plaintiff’s father the defendants pleaded at paragraph 12 of their statement of defence that Elisha Oloo was not in the village at the time of adjudication the family of the late Ywaya Abanja thought it wise to have the parcel registered in the name of Gabriel Onyango who was to hold it in trust of Elisha Oloo. They add at paragraph 14 that was the only place known to them as their ancestral home and not Nyamasare.
49 From the foregoing the issue of customary trust was very clear in the defendants’ pleadings and no court reviewing the defence would have missed it and failed to delineate it as a matter that behoved consideration by the court. It is was actually the substantive plea on the part of the 1st and 2nd defendants and I would not find any error on the part of the trial court in distilling it as an issue for determination. I agree with the respondent’s submission that this was a relevant issue arising from the set of facts and evidence before the trial court.
50 Moreover in the case of odd jobs vs Mubia (1970) E.A 476 it was held that; -
"A court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision; on the facts the issue had been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it". The above decision was subsequently followed by the Court of Appeal for Eastern Africa in the cases of Nkalubo vs. Kibirige [1973] E.A. 102 and Railways Corporation vs. East African Road Services Ltd. (1975) E.A. 128.
51 However the Appellants contention is that the defendants’ responses hereinabove cannot suffice to the extent that they appeared to defend the estate of Elisha Oloo who was noted on the title when they were not administrators of his estate. This court will respectfully disagree with this position and I will shortly show why.
52 Firstly it is the Plaintiff who sued the 1st and 2nd Defendants in their own individual capacities and not as administrators of the estate of Elisha Oloo (deceased) when he had actually pleaded and alleged that the name of Elisha was ‘fixed’ in the parcel register next to Gabriel Onyangos (deceased) name. The plaintiff was aware that Elisha was deceased and therefore the joinder of his estate was key. The defendants simply responded to the suit which they were obliged to by stating their case which they did. The Plaintiff cannot be heard to turn round and state they had no locus. Nothing hindered them from raising their defence of customary trust.
53 But having noted the above, there is need to draw a distinction between the plea of a customary trust and the requirement for locus standi vis a vis the application of the Law of Succession. In my view there is no requirement for locus standi as envisaged under the Law of Succession Act for purposes of dealing with the property of a deceased person or property forming part of the estate in a plea of customary trust. In any event a customary trust is an overriding interest and supersedes the law of succession. All that the defendants were required to demonstrate was the ingredients of a customary trust as laid out in the case of Isack Kieba Minanga v Isaaya Theuri M'Lintari & Another [2018] Eklr and more specific that they are not too remote in the lineage and are entitled to the land under customary trust.
54 The objection raised by the Appellant therefore is misplaced. It is the finding of this court therefore that the trial court did not err in entertaining the issue of customary trust. The issue was in my view properly before the court. The 1st and 2nd defendants did not require to be legal representatives of the estate of Elisha Oloo (deceased) to raise a plea of customary trust. The law of Succession Act does not apply. Ground No. 1 of the appeal must fail.
55 Having resolved the above issue by finding that the issue was properly before the trial court the next question would be whether the trial court erred in finding that the title was held by Gabriel in trust for Elisha Oloo.
Whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel Uholo/Ugunja/268’
56 Having filed this appeal the Plaintiff Appellant has invited this court to issue orders allowing the Appellant’s prayers as outlined in the Plaint dated 9th May, 2017. Essentially the Appellant wants his suit as filed in the trial court to be allowed and the finding in favor of customary trust overturned.
57 The Plaintiff case is that he is the only son and beneficiary of Gabriel Onyango Okinyo the original registered absolute owner of Uholo/Ugunja/268 who died in 1989 but whose title was fraudulently subdivid
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1 In its plaint dated 9th May 2017 filed as Ukwala MCELC No. 421 of 2017 the Plaintiff filed the suit the subject of this appeal averring that he is the only son and beneficiary of the estate of Gabriel Onyango Okinyo who was the first registered proprietor of parcel Uholo/Ugunja 1268 (sic). I think this was a typo since from the entire proceedings and documents tendered it is clear that the same is parcel Uholo/Ugunja 268 (herein suit property). That his father Gabriel Onyango had been in possession of the suit land until his death in January 1989 and thereafter the plaintiff has been in possession and use of the same.
2 The Plaintiff averred that sometime in the -year 2015 the 1st and 2nd defendant fraudulently conspired with the 4th defendant and transferred the suit land from his father Gabriel Onyango Okinyo into their names. That they also crossed out the plaintiffs’ fathers name and inserted their fathers name next to the plaintiffs’ fathers name in the parcel register. They then subdivided the suit land into parcels Uholo/Ugunja 3694,3695 and 3696 which was transferred to the 3rd defendant for a consideration paid to the 1st Defendant. The former two parcels were registered into the names of the 1st and 2nd Defendant respectively.
3 The Plaintiff averred that the actions of the Defendants were irregular and fraudulent meant at grabbing the suit property. The particulars of fraud were listed at paragraph 21 of the plaint and which I will revisit later in this judgement. The 1st and 2nd Defendants are also termed as trespassers into the suit land.
4 The Plaintiff therefore sought for judgement against the Defendants jointly and severally as follows; -
a. General damages for trespass.
b. Nullification and cancellation of titles numbers 3694, 3695 and 3696, consolidation and restitution of the lands to the Plaintiff as a beneficial owner, at the Defendants' expense.
c. Rectification of the register to expunge from it the names and interest to one ELISHA OLOO (deceased) and instead enter that of GABRIEL ONYANGO (deceased) and a declaration that the Plaintiff is the sole beneficial owner of the suit land initially described as UHOLO/UGUNJA/268 at the Defendants' expense.
d. Costs of the suit and interest
e. Any other relief that the honourable court may deem fit and just to grant.
5 The 1st 2nd and 3rd Defendants filed a joint statement of defence dated 23/5/2015. They pleaded that the suit property was originally registered in the name of Gabriel Onyango but with the name of Elisha Oloo put in brackets on the date of first registration. It is pleaded that UHOLO/UGUNJA/268 is an ancestral land which was originally owned by one Ywaya Abanja (deceased,) and who was the 1st Defendant's grandfather but the Plaintiff and 2nd Defendant's great grandfather. That during land adjudication in 1970, the late Ywaya Abanja's land was subdivided into two parcels, UHOLO/UGUNJA/267 and UHOLO/UGUNJA/268, which parcels were supposed to be registered in the names of Jeremiah Okinyo and Elisha Oloo Ywaya respectively being his sons.
6 It is alleged that during land adjudication, Jeremiah Ywaya had since died and his share, UHOLO/UGUNJA/267, was registered in the name of Martin Ywaya who held it as a beneficiary as well as a trustee for his siblings, being the late Gabriel Onyango and John Otieno. Further that Elisha Oloo Ywaya was not in the village during adjudication, the family of the late Ywaya Abanja thought it wise to have UHOLO/UGUNJA/268, registered in the name of Gabriel Onyango who was to hold it in trust of Elisha Oloo.
7 It is averred that the 1st and 2nd Defendants have been residing in UHOLO/UGUNJA/268 since they were born and it is the only known place to them as ancestral home, which land was bequeathed to their father and grandfather respectively as a son to Ywaya Abanja.
8 They denied that the Plaintiff has at any time material to this suit taken possession and/or utilized parcel UHOLO/UGUNJA/268 but that the plaintiff has been a permanent resident of UHOLO/UGUNJA/267 wherein he has a home to date. The allegations of fraud and trespass are also denied. They prayed that the suit be dismissed with costs.
9 The record of appeal does not bear the 4th defendants pleadings however the trial court file bears a Memorandum of Appearance dated 24/07/2017 by the Principal Litigation Counsel Janet Lang’at and a Statement of Defence of even date. The defence generally denied all the allegations in the plaint.
10 The matter was heard by Hon. E Tsimonjero Senior Resident Magistrate. The trial court upon hearing the parties including a visit to the site in its judgement dated 26/7/2024 made a finding that the plaintiffs father held the suit property in trust for Elisha Oloo, that the plaintiff could not hold more than what his father held. The trial court made the following final orders; - ‘
i. A declaration that Gabriel Onyango, held the suit property Uholo/Ugunja/268 in trust for Elisha Oloo by way of a customary trust.
ii. A declaration that the Plaintiff has no interest in the suit property Uholo/Ugunja/268 as his father Gabriel Onyango was only but a trustee
iii. The register for parcel number Uholo/Ugunja/268 shall be rectified to expunge the name of Elisha Oloo, the beneficiary thereof
iv. The new title numbers Uholo/Ugunja/3694;3695 and 3696 be and are hereby cancelled and the original title number Uholo/Ugunja/268 reinstated in the name of Elisha Oloo pending proper succession proceedings
v. Each party shall bear their own costs.
11 Aggrieved with the entire judgement of the trial court the Plaintiff proffered the present appeal vide a Memorandum of Appeal dated 5/8/2024 on the following grounds; -
1. The Honourable Magistrate erred in law and in fact in holding that the issue of whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel UHOLO/UGUNJA/268 was properly before Court for determination.
2. The Learned Magistrate erred in law and in fact in failing to consider and or render an express finding on the issue of whether the transmission of the proprietorship of suit parcel UHOLO/UGUNJA/268 from the name of Gabriel Onyango Okinyo was fraudulent and illegal.
3. The Honourable Magistrate erred in Law and in fact by failing to uphold express provisions of statute.
4. The Learned Magistrate erred in law and in fact by failing to consider the Appellant's Submissions.
5. The Learned Magistrate erred in law and in fact in holding that he used "common sense" in usurping the role of determining boundaries of land from the Registrar of Land in whom that duty is exclusively bestowed by Statute.
6. The Honourable Magistrate erred in law and in fact in allowing persons other than the Court appointed Administrators of the Estate of a deceased to prosecute and or defend an action on behalf of the said Estate.
7. The Learned Magistrate erred in law and in fact by granting prayers that none of the parties had sought in contradiction of the cardinal principal of law that parties are bound by their pleadings.
12 On the basis of the above grounds the Appellant seeks the following reliefs; -
1. The Judgement of the Learned Magistrate of the Subordinate Court delivered on the 26th July, 2024 in the Chief Magistrate's Court at Ukwala Environment and Land Case No. 39 of 2018 and the ensuing Decree be and are hereby set aside.
2. An Order be and is hereby issued that all the Appellant's prayers as outlined in the Plaint dated 9th May, 2017, be and are hereby allowed.
3. Costs of the Appeal be and hereby awarded to the Appellant.
SUBMISSIONS
13 Directions were issued by the court that the appeal proceeds by way of written submissions which parties complied.
Appellants Submissions
14 The Appellant filed submissions through the firm of Edwin Omulama & Associates Advocate dated 6/01/2025 and Supplementary submissions dated on issues of law with leave of the court.
15 The Appellant dropped the 2nd ground of the Memorandum of Appeal herein and proceeded to submit on the remaining grounds as follows; -
16 On grounds of 1, 3, 4, 5 and 6 which relate to Failure by the Learned Trial Magistrate to uphold express provisions of statute. It is submitted that the trial court overlooked Sections 45, 80 (2) and 82 of the Law of Succession Act (Cap 160) and Sections 18(2), 19(2) and 26(1) of the Land Registration Act No. 3 of 2012.
17 Outlining each of the above provisions Counsel urged that the 1st and 2nd Respondents expressly admitted in their pleadings to having sold a portion of property title number UHOLO/UGUNJA/268 to the 3rd Respondent while fully aware that succession proceedings pertaining to the said property had not been undertaken (pages 39 and 40 ROA). That DW1 and DW2 open admitted during cross examination to intermeddling with a deceased person property and which the trial court failed to hold the defendants accountable.
18 The Appellant contends that, safe in the knowledge that under the law the only person who could sue or defend on behalf of the estate of a deceased person is a duly appointed administrator, pointed out to the trial court that the question of the existence or otherwise of a constructive trust in favor of the estate of a deceased person was one for a court of law properly moved to decide. Reliance was placed in the case of Isaya Masira Momanyi (suing on behalf of the late Masira Onsase) Vs. Daniel Omwoyo & Kebungo Orina ELC Case No. 167 of 2016.
Counsel faulted the trial court for noting that he had not addressed the court on the issue of constructive trust and handled it casually or rubbished it when it had been expressly pleaded by the 1st 2nd and 3rd defendants. Counsel urged that the trial court was operating per incuriam.
19 It is submitted that the 1st, 2nd and 3rd Respondents did not have legal authority to jointly or severally represent the Estate of the late ELISHA OLOO in the instant proceedings. Accordingly, every single act or averment they purported to canvass before the Trial Court allegedly to establish the presence of a constructive trust in favour of the subject Estate was "... null and void ab initio and cannot be cured by a party subsequently obtaining the letters of administration."
20 That the Learned Trial Magistrate despite being cautioned of lack of jurisdiction proceeded to use "common sense" to override and or contradict Sections 18 (2) and 19 (2) of the Land Registration Act and usurped the role of land-boundary fixer which is exclusively reserved for the Registrar of Lands.
21 On ground of number 7 of the appeal, referring to the prayers sought in the plaint it is submitted that 1st, 2nd and 3rd Respondents' sole prayer was for the suit to be dismissed with costs. That however the final orders have no link to the prayers that the respective parties to the suit themselves made against the established law that parties are bound by their pleadings. Reliance is placed in South Nyanza Sugar Company Limited versus John Gituki Gomba (2022) e KLR,
22 Counsel added that the only way that the final orders herein could possibly have issued was if there was a legally appointed representative of the Estate of the late ELISHA OLOO on record and who had in turn filed a counter-claim against the Appellant seeking express prayers that the Honourable Court would then have granted if satisfied with the evidence tendered.
Supplementary Submissions
23 In response to the respondent’s submission dated 23/01/2026 counsel on record for the Appellant raised the following issues
1) Could the Respondents defend (or sue) the instant suit on behalf of the Estate of Elisha Oloo without being appointed Administrator(s) thereof?
2) Did the Honourable Trial Court have jurisdiction to determination the issue that arose during the proceedings as to the location of the boundary between parcels UHOLO/UGUNJA/267 and UHOLO/UGUNJA/268?
3) Whether it was open to the Honourable Trial Court to make final orders that clearly were not the prayers that the respective parties to the suit themselves made.
4) Could the Respondents defend (or sue) the instant suit on behalf of the Estate of Elisha Oloo without being appointed Administrator(s) thereof?
The 1st, 2nd & 3rd Respondents Submissions
24 The 1st, 2nd & 3rd Respondents filed submissions dated 23/01/2026 through the firm of Ngaywa & Kibet Partners LLP submit on the issues arising as hereunder.
25 It is submitted that the Respondents in their joint statement of Defence pleaded that the suit land was originally registered in the name of the Gabriel Onyango but with the name of Elisha Oloo put in brackets on the date of first registration. That evidence was led explaining the inclusion of the name in brackets connoting Gabriel Onyango was only holding the land in trust.
26 The Respondents assert that the trial court correctly held that the issue of customary trust was properly before it. That it was incumbent upon the court to make its determination on it. Further, the Appellant through his advocates had the opportunity to dislodge and discredit the Respondents claim through cross examination. He also had the opportunity to make his submissions on the said issue but he declined to do so.
27 The Respondents contended that it was evident from the site visit herein that the 1st and 2nd Respondent have since their birth lived and have been in occupation and use of land known as Uholo/Ugunja/268. No evidence of occupation and use of any alternate land by the said Respondents was tabled by the Appellant.
28 On failure to uphold express statutory provisions including failure by the trial court to hold the 1st, 2nd and 3rd Respondents accountable for the express breach of section 45 of the Law of Succession Act, it was submitted that there was no other form of save for the court cancelling the titles that had been registered prior to issuance of letters of administration being issued.
29 With regard to usurping the jurisdiction of the land registrar conferred under section 18(2) and 19(2) of the Land Registration Act, the Respondents urge that the trial court did not usurp the role of determining boundaries. alleged. The trial magistrate noted it conducted a site visit for the sole purpose to determine the occupation and user of the two parcels of land, the nature of the developments therein and the existence of any boundaries.
30 It is emphasised that the issue before court was not an issue of boundaries but an issue of ownership and possession of the suit property. The evidence presented pointed that the Appellant occupied L.R NO. UHOLO/UGUNJA/267 while the 1st and the 2nd Respondent occupied and used L.R NO. UHOLO/UGUNJA/268. It was necessary for the court to be shown where the said parcels of land were and the boundaries between to determine whoever was in possession of the parcels of land. In so doing, the magistrate did not in any whatsoever determine boundaries of the said parcels of land.
31 Rehashing the provisions of section 26(1) of the Land Registration Act it was contended that the court properly found that the Certificate of Title was registered in the name of Gabriel Onyango with the names of Elisha Oloo. Having established from the history of the parcel of land, the adjudication and registration process that the property that there existed a customary trust, it was incumbent upon the court to protect the interests of Elisha Oloo(deceased) in whose favour the trust was created.
32 Citing Ongalo v Ang'iyo [2025] KEELC 4354 (KLR) it is submitted that trusts including customary trusts are overriding interests on registered land, which, although not noted in the register, all registered land is subject to. Allegations of a trust including customary trust must be proved by the person asserting existence thereof. The court is also referred to Kanyi v Muthiora (1984) KLR 712 CA the Court of Appeal Kamau v Thiga (Environment and Land Appeal 5 of 2021) [2022] KEELC 2839 (KLR) (21 July 2022) (Judgment) and Isack Kieba Minanga v Isaaya Theuri M'Lintari & Another [2018] Eklr.
33 On the issue of whether trial magistrate erred in law and in fact in allowing persons other than the Court appointed Administrators of the estate of a deceased person to prosecute and /or defend an action on behalf of the said estate it was posited that the 1st, 2nd and 3rd Respondents were sued in their personal capacity and not as administrators of the said estate for allegedly intermeddling and trespassing on the suit property. It was incumbent upon them to adduce evidence on how they come into possession and use of the suit property.
34 The court was invited to dismiss the appeal with costs for lacking merit.
ANALYSIS AND DETERMINATION
35 I have considered the appeal, the grounds of appeal listed in the Memorandum of Appeal, the lower court record, and the rival arguments proffered by both sides in their submissions.
36 The duty of an appellate court is stipulated under Section 78 of the Civil Procedure Act which reads; -
“Subject to such conditions and limitations as may be prescribed, an appellate court shall have power;
(a)to determine a case finally;
(b)to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require the evidence to be taken;
(e) to order a new trial.
(2,) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.”
37 The court of appeal in Peterson Ndung’u, Stephen Gichanga Gituro. N. Ojwang, Peter Kariuki; Joseph M. Kyavi & James Kimani V Kenya Power & Lighting Company Ltd [ 2018] Eklr stated as follows regarding the duty of the first appellate court: -
“ ………………..This being a first appeal , we are reminded of our primary role as a first appellate court namely to re-evaluate , re-assess and reanalyze the extracts on record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons why...............On a first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate itself and draw its own conclusions though it should always beware in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence……....”
38 In Mbogo and Another v Shah [1968] EA 93, the court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
39 The locus classicus on the above remains the case of Selle Vs. Associated Motor Boat Co. (EA.123) where it was stated that the court must reconsider the evidence, evaluate it itself and draw its own conclusions but bearing in mind that it did not have the benefit of seeing the witnesses who testified before the trial court.
40 The court has noted that ground No. 2 of the appeal was dropped by counsel for the Appellant in its submissions. The main issues for determination in my view is whether this appeal has merit. In determining this I will seek to answer the following questions; -
1) Whether the trial court erred in entertaining the claim for customary trust
2) If the answer to the above is no, whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel Uholo/Ugunja/268’
3) Whether the transfer of the suit property to the 1st and 2nd defendants was lawful?
4) Whether the plaintiff was entitled to the orders sought in the plaint dated 9th May 2017.
5) Whether the trial Magistrate erred in issuing the final orders herein
6) What reliefs ought to issue in the circumstances of this appeal
7) Who bears the costs of this appeal?
ANALYSIS AND DETERMINATION
Whether the trial court erred in entertaining the claim for customary trust
41 In the judgement the subject of this appeal, the trial court identified the first issue for determination as ‘Whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel Uholo/Ugunja/268’ and which the court found in the affirmative that the Plaintiffs father held the suit land in trust for Elisha Oloo by way of customary trust.
42 The Appellants contend the issue whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel UHOLO/UGUNJA/268 was not properly before the trial court. This arises partly from the Appellants assertion that the 1st and 2nd defendants were not legal representatives of the estate of Elisha Oloo and could therefore not represent his interests in the suit property. According to counsel every single act or averment the defendants purported to canvass to establish a constructive trust in favor of Elishas estate was null and void.
43 I will extract verbatim what the plaintiff’s submission in the trial court was. It was submitted that ‘the subject of contention is whether Gabriel Onyango Okinyo was registered as proprietor in trust for one Elisha Oloo, or not. That question would have been one for a Court of Law properly moved to determine. It was not open, as DW1 (Franklin Swaga Oloo) claimed during cross examination on 10/06/2024, for the chief, Assistant chief, Land Registrar or Surveyor to resolve.
44 The its judgement the trial court had this to state with regard to the above; -
‘I note that the plaintiffs’ counsel did not attempt (to sic) address the issue of trust in their submissions. He merely stated that the issue could have been determined by a court properly moved. What that meant is not clear to this court. This was a pertinent issue which had been expressly pleaded in the 1st, 2nd and 3rd Defendants' Statement of Defence. It could not be rubbished off with such casualty. It does not require a tooth pick comb to decipher the same from the pleadings and the evidence. The issue is thus properly before court for determination."
45 This court notes that it did not help his client or even the court for Counsel for the Plaintiff to state that there was absolutely no reason for the Appellant to address issues which he was certain were null and void abinitio in the eyes of the law. This is exactly what he should have posited in his submissions before the trial court. Be that as it may I must resolve the controversy.
46 I will briefly look at the subject of framing issues. The importance of the need to frame issues for determination was emphasised in Rukidi vs. Iguru and Another [1995-1998] 2 EA 318 where the court stated thus;-
“Framing of the issues is an important step in the determination of a case as it defines the areas of controversy and narrows down the scope of inquiry. It makes the hearing of the case more focus-oriented and saves the time of the Court and there is nothing wrong with the parties or their counsel agreeing on the issues or otherwise participating in their framing. The fact that issues were framed at the commencement of the hearing does not mean that they cannot be amended by addition or deletion since rule 5 Order 13 allows the Court, any time before passing the judgement, to amend the matters in controversy between the parties, or to strike out any issues that appear to have been wrongly framed. A trial Judge therefore always has a discretion to amend the issues framed any time before passing judgement but the point to be emphasised is the need to frame the issues at the commencement of the hearing of any suit to guide the parties and the Court in addressing the basic issues in controversy.”
47 While the subject in the above case law was the failure by the court to frame issues, I still found some guidance from the dictum on how issues are distilled. Arising from the above holding in framing the issues the court must look at the main pleadings which in the present case is the plaint and defence to identify the specific claims being made or affirmed and the allegations being denied. The plaintiff alluded at paragraph 18 of the plaint that the green card of the suit land appeared fishy as his father’s name Gabriel was clearly indicated on the land at the first registration upon adjudication however there was a name; Elisha Oloo fixed immediately after the plaintiff’s fathers name and placed in brackets. That this was a ploy to grab the land. The plaint also gives a history of the property and alleging that Elisha Oloo customary land was in Nyamasare.
48 The defendants refuted the above allegations and averred at paragraph 5 of their Statement of Defence that the land was ancestral land which was originally owned by one Yawya Abanja the 1st defendant grandfather but was also the plaintiffs and 2nd defendants’ great grandfather. To explain why the name of Elisha Oloo was allegedly inserted in brackets next to the plaintiff’s father the defendants pleaded at paragraph 12 of their statement of defence that Elisha Oloo was not in the village at the time of adjudication the family of the late Ywaya Abanja thought it wise to have the parcel registered in the name of Gabriel Onyango who was to hold it in trust of Elisha Oloo. They add at paragraph 14 that was the only place known to them as their ancestral home and not Nyamasare.
49 From the foregoing the issue of customary trust was very clear in the defendants’ pleadings and no court reviewing the defence would have missed it and failed to delineate it as a matter that behoved consideration by the court. It is was actually the substantive plea on the part of the 1st and 2nd defendants and I would not find any error on the part of the trial court in distilling it as an issue for determination. I agree with the respondent’s submission that this was a relevant issue arising from the set of facts and evidence before the trial court.
50 Moreover in the case of odd jobs vs Mubia (1970) E.A 476 it was held that; -
"A court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision; on the facts the issue had been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it". The above decision was subsequently followed by the Court of Appeal for Eastern Africa in the cases of Nkalubo vs. Kibirige [1973] E.A. 102 and Railways Corporation vs. East African Road Services Ltd. (1975) E.A. 128.
51 However the Appellants contention is that the defendants’ responses hereinabove cannot suffice to the extent that they appeared to defend the estate of Elisha Oloo who was noted on the title when they were not administrators of his estate. This court will respectfully disagree with this position and I will shortly show why.
52 Firstly it is the Plaintiff who sued the 1st and 2nd Defendants in their own individual capacities and not as administrators of the estate of Elisha Oloo (deceased) when he had actually pleaded and alleged that the name of Elisha was ‘fixed’ in the parcel register next to Gabriel Onyangos (deceased) name. The plaintiff was aware that Elisha was deceased and therefore the joinder of his estate was key. The defendants simply responded to the suit which they were obliged to by stating their case which they did. The Plaintiff cannot be heard to turn round and state they had no locus. Nothing hindered them from raising their defence of customary trust.
53 But having noted the above, there is need to draw a distinction between the plea of a customary trust and the requirement for locus standi vis a vis the application of the Law of Succession. In my view there is no requirement for locus standi as envisaged under the Law of Succession Act for purposes of dealing with the property of a deceased person or property forming part of the estate in a plea of customary trust. In any event a customary trust is an overriding interest and supersedes the law of succession. All that the defendants were required to demonstrate was the ingredients of a customary trust as laid out in the case of Isack Kieba Minanga v Isaaya Theuri M'Lintari & Another [2018] Eklr and more specific that they are not too remote in the lineage and are entitled to the land under customary trust.
54 The objection raised by the Appellant therefore is misplaced. It is the finding of this court therefore that the trial court did not err in entertaining the issue of customary trust. The issue was in my view properly before the court. The 1st and 2nd defendants did not require to be legal representatives of the estate of Elisha Oloo (deceased) to raise a plea of customary trust. The law of Succession Act does not apply. Ground No. 1 of the appeal must fail.
55 Having resolved the above issue by finding that the issue was properly before the trial court the next question would be whether the trial court erred in finding that the title was held by Gabriel in trust for Elisha Oloo.
Whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel Uholo/Ugunja/268’
56 Having filed this appeal the Plaintiff Appellant has invited this court to issue orders allowing the Appellant’s prayers as outlined in the Plaint dated 9th May, 2017. Essentially the Appellant wants his suit as filed in the trial court to be allowed and the finding in favor of customary trust overturned.
57 The Plaintiff case is that he is the only son and beneficiary of Gabriel Onyango Okinyo the original registered absolute owner of Uholo/Ugunja/268 who died in 1989 but whose title was fraudulently subdivid
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