John K. Malembi v Trufosa Cheredi Mudembei & 2 others

The instrument of transfer was dated and executed at Kitale on 13 July 1982, purporting to transfer the property from William Mudembei who had died on 25 April 1982. The Court held that a deceased person can neither execute an instrument nor transfer property, and that no such person could have appeared before the attesting witness. Such a document is void for lack of authority, power and competence.

The trial judge had relied on Practice Directions in Gazette Notice No. 5178 of 25 July 2014 and the transitional provision in Section 30 of the Environment and Land Court Act. The Court held that the Chief Justice could not direct the High Court to exercise jurisdiction it did not have; the transitional clause only allowed direction of pending matters in the hiatus before the ELC was operationalized. Jurisdiction is conferred only by the Constitution or legislation.

The trial judge had found the allegations of fraud generalized and not proved to the required standard, noting that no handwriting expert was called and that the deceased was already dead when the consent application form was filled. The Court of Appeal found no misdirection in that assessment and rejected the ground that the evidentiary burden had been shifted to the appellant.

The Court analyzed the trial judgment with precision and found the judge had captured the agreed issues and added the jurisdictional question, appraised the evidence and identified the relevant law per issue. The delving into the validity of the transfer was in the historical context of how the appellant acquired title, and the suo motu treatment of jurisdiction was proper since jurisdiction must be considered whether or not raised by parties.