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ELCPartially AllowedNot stated in judgment (Plaint dated 4th February 2022, filed 9th March 2022)

Okello (Suing as Personal Representative of Alfonce Odhiambo Apoda - Deceased) v Barasa (Sued as Personal Representatives of Herenia Atsieno Odhiambo - Deceased) & 5 others (Environment and Land Case E005 of 2022) [2026] KEELC 4458 (KLR)

Environment and Land Court
16 July 2026
6,571 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court cancelled land titles traced to a transfer signed by a dead man, confirming fraudulent titles cannot pass to later buyers.

What this practically means

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Executive summary

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The plaintiff, legal representative of the estate of Alphonce Odhiambo Apoda, sued over land parcel Marachi/Bukhalalire/882, registered in Apoda's name in 1967. He alleged that Herenia fraudulently registered herself as proprietor in 1991 - eight years after Apoda's death in 1983 and without any succession proceedings - and subdivided the land into parcels 1321, 1322, 1694, 1695 and 1696. He sought cancellation of titles and restoration of the land to the estate, alternatively transfer, plus a permanent injunction. The 1st Defendant, Herenia's legal representative, admitted the claim. The 2nd to 6th Defendants denied fraud, claiming their father Nyakwala purchased parcels 1322 and 1695 from Herenia as a bona fide purchaser, and counter-claimed on trust, adverse possession and overriding interests. The court found the transfer to Herenia fraudulent - Apoda 'could not have resurrected in 1991' to execute transfers - and held that a fraudulently obtained title is not indefeasible and cannot pass good title to the defendants. Their adverse possession claim failed as possession founded on stealth destroys the equitable remedy, and a registered owner cannot claim adverse possession against himself; the trust claim failed as no relationship with Apoda was proved; the bona fide purchaser claim failed for want of sale agreements. The cases against the 3rd to 6th Defendants on parcels not registered in their names were dismissed as improperly impleaded. The counter-claim was dismissed; judgment was entered for the plaintiff with orders for cancellation and restoration of titles and a permanent injunction, with costs to the plaintiff.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the transfer of the suit land from Apoda to Herenia was procured fraudulently and illegally and therefore all the subsequent titles should be cancelled
  2. 2.Whether the Defendants obtained good titles to the land parcels No Marachi/Bukhalalire/1321, 1322, 1694, 1695 and 1696
  3. 3.Whether the Defendants are entitled to the orders that they have acquired the said titles by way of trust and adverse possession
  4. 4.Who meets the costs of the suit and counter-claim

Key legal issues

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01

Fraudulent transfer of the suit land to Herenia

Holding

The transfer was fraudulent and illegal because the registered owner Apoda had died in 1983, eight years before the 1991 transfer; the 1st Defendant, Herenia's legal representative, conceded this.

Reasoning

The register showed transfer to Herenia on 27th February 1991 for Kshs.9,000, yet the death certificate showed Apoda died on 3rd August 1983. A dead man could not execute transfer documents, and no succession proceedings existed. Fraud was proved to the threshold in Vijay Morjaria. Herenia's title therefore could not be protected under Article 40(1) of the Constitution or Section 24(1) of the Land Registration Act.

p. 7
02

Validity of the defendants' derivative titles

Holding

The 2nd to 6th Defendants did not obtain good titles since Herenia's fraudulent title could not pass good title; all titles are liable to cancellation.

Reasoning

Following Dina Management and Mistry Amar Singh, the court held that illegality cannot beget a valid title. A title is an end product of a process; where the process was unlawful, indefeasibility does not protect it. Herenia could not transfer what she did not lawfully hold, so the subdivisions created from the suit land must be cancelled and restored to Apoda.

p. 8
03

Adverse possession claim

Holding

The claim fails: the 2nd Defendant is himself registered owner of parcels 1322 and 1695 and cannot claim against himself; for parcels 1321, 1694 and 1696, the alleged purchase transactions were tainted with stealth, destroying the equitable remedy.

Reasoning

Section 38(1) of the Limitation of Actions Act requires the claim to be against the registered owner. Further, following Bell v Moi and Mtana Lewa, possession must be nec vi, nec clam, nec precario. The court found the transactions were fraudulent and thus stealthy, defeating the claim. The suit itself was also not statute-barred, the parcels having been registered in the 2nd Defendant's name only in November 2017 and the suit filed in 2022.

p. 10
04

Trust claim

Holding

No trust was established; there was no evidence of any relationship between Apoda and the defendants capable of founding a trust, and trust cannot perpetuate illegality.

Reasoning

Section 109 of the Evidence Act placed the burden on the defendants. Citing Mwangi Mbotho and Twalib Hatayan, the court held a court will not imply a trust except to give effect to the parties' intention, and a constructive trust is an equitable remedy against one who acquires property by wrongdoing. Apoda never sold to the defendants; the intermeddling with his estate was criminal.

p. 11
05

Bona fide purchaser claim

Holding

The defendants were not bona fide purchasers as they produced no sale agreements and failed the Katende thresholds.

Reasoning

Applying Katende v Haridar and Samuel Kamere, a bona fide purchaser must prove title, good faith, valuable consideration and absence of notice of fraud. The 2nd Defendant admitted in cross-examination that he produced no sale agreements and did not know the purchase price. The absence of any documentary proof of purchase defeated the defence and counter-claim.

p. 12

Legal principles established

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  • A title obtained through an illegal or irregular process is not indefeasible
  • Once illegality is proved, the court will not allow anybody to benefit from such illegality
  • An adverse possession claim founded on transactions tainted by stealth fails because possession must not be by stealth
  • Elements of a bona fide purchaser without notice
  • A registered owner cannot claim adverse possession against himself; such claims lie against the registered owner

Court orders

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  1. 1.The counterclaim by the 2nd to 6th Defendants is dismissed
  2. 2.Judgment entered for the plaintiff against all the Defendants jointly and severally
  3. 3.The Land Registrar Busia directed to cancel the titles for the land parcels No Marachi/Bukhalalire/1321, 1322, 1694, 1695 and 1696 and restore the same to the name of Alfonce Odhiambo Apoda (deceased)
  4. 4.A permanent injunction issued against the 2nd to 6th Defendants, their agents, family members, employees, servants and persons claiming under them from interfering with, selling, disposing of, cutting trees, cultivating or dealing with land parcel No Marachi/Bukhalalire/882
  5. 5.Costs to the plaintiff

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to title to land (Article 162(2)(b) of the Constitution implied; not expressly cited)

Relief refused

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Claims against the 3rd, 4th, 5th and 6th Defendants in respect of parcels not registered in their names

No certificates of search showed registration in their names; they were improperly impleaded

p. 8

The 2nd to 6th Defendants' counter-claim based on trust, adverse possession and bona fide purchaser status

Title derived from a fraudulent transfer; no sale agreements proved; no special circumstances for counter-claim against a co-defendant; adverse possession and trust cannot found on illegality

p. 12

Costs

Costs to the plaintiff

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An order is hereby issued directing the Land Registrar Busia to cancel the titles for the land parcels NO Marachi/Bukhalalire/1321, 1322, 1694, 1695, and 1696 registered in the name of the Defendants and restore the same to the name of Alfonce Odhiambo Apoda (deceased).
p. 12Final orders - cancellation of titles
An order is also hereby issued permanently injecting the 2nd, 3rd, 4th, 5th, and 6th Defendants by themselves, their agents, family members, employees, servants, and any other persons claiming under them from interfering with, selling, disposing ofi, cutting trees, cultivating, and in any manner dealing with the land parcel NO Marachi/Bukhalalire/882.
p. 13Final orders - permanent injunction
The counterclaim by the 2nd to 6th Defendants is dismissed.
p. 12Final orders - dismissal of counterclaim
The court went on to observe that a title or lease is an end product of a process. If the process that was followed prior to issuance of title did not comply with the law, then such a title cannot be held as indefeasible.
p. 8Indefeasibility of title
It is well settled that an illegality can only beget another illegality.
p. 8Illegality
The stealth destroys such a claim which is ideally an equitable remedy.
p. 10Adverse possession
A trust is an equitable remedy. It cannot be invoked to perpetuate any legality.
p. 11Trust
Accordingly, having failed to conduct a proper due diligence on the ownership of the suit property, or prove how he acquired his title, we find that the appellant has not demonstrated that he was a bona fide purchaser
p. 12Bona fide purchaser (quoted with approval)

Issues in the judgment

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minor

Internal date inconsistency: plaintiff's statement is described as dated '4th February 2012' where the plaint and other statements are dated 4th February 2022

minor

Judgment dated 16th July 2026 although the judgment notes it was due on 3rd March 2026 and the judge had been transferred to Iten Court with effect from 15th January 2026

minor

The 1st Defendant's legal representative capacity is inconsistently described: succession file cited as 'Busia Cmc Misc. Succession Application No. E4 Of 2022' and elsewhere as 'Busia CMC Misc Application No 4 of 2022'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okello (Suing as Personal Representative of Alfonce Odhiambo Apoda - Deceased) v Barasa (Sued as Personal Representatives of Herenia Atsieno Odhiambo - Deceased) & 5 others (Environment and Land Case E005 of 2022) [2026] KEELC 4458 (KLR)", Case Analysis (2026). Not stated in judgment (Plaint dated 4th February 2022, filed 9th March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4458/eng@2026-07-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.