Okech (Suing on Her Own Behalf and on Behalf of the Estate of Joseph Okech Gari) v Onjema & 4 others
The bottom line
#A Siaya court cancelled land titles created through an irregular partition, ruling that even registered buyers cannot keep land whose original transfer was procedurally flawed.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is not barred by res judicata. The parties in the Bondo succession cause were not the same (the plaintiff only testified there, and the purchasers were not parties), and the succession court and the High Court on appeal expressly declined jurisdiction over the trust and occupation issues, leaving them open for determination by the ELC.
Applying Section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai, the court found the parties were not identical and the former court was not competent to determine the trust issue. The High Court (Aburili J) had held that a succession court lacks jurisdiction to resolve proprietary interests based on an alleged trust, and left occupation issues to the ELC under Article 162(2)(b). ELC No. 21 of 2021 was struck out, not heard on the merits, so res judicata could not apply to it either.
Customary trust
No customary trust was established over the half share registered under Odhoji Gari.
Applying the Kiebia elements, the court accepted the land was ancestral family land, but examined the circumstances of the 1978 registration. Joseph himself registered the land in half shares with his stepbrother, never objected during his lifetime, and later allowed Odhoji to settle. No documentary evidence supported the alleged two-acre limitation or temporary occupation. The court held the registration reflected an intention that each brother hold a distinct half share, defeating the trust claim.
Fraud, illegality and consent of co-owners
Although fraud was not proved, the partition and transmission were procedurally irregular because the written consent of the co-owner's estate was never obtained and the Registrar's discretion under Section 94(2) was never noted on the register.
Both registered proprietors were deceased at the time of the entries; only personal representatives could consent. No written consent from Joseph's estate was obtained, and no application or dispensation under Sections 91(8) or 94(2) of the Land Registration Act was evidenced on the register. Under Section 26(1)(b) of the LRA, a title procured through an irregular/unprocedural process may be impeached even without proven fraud.
Bona fide purchaser for value without notice
The 2nd and 3rd Defendants were not bona fide purchasers; their title derived from the irregular partition and is vitiated.
Relying on Munyu Maina v Hiram Gathiha Maina, the court held that a registered proprietor whose root of title is challenged must prove the legality of the acquisition beyond the title instrument. Since the 2nd and 3rd Defendants' root was the irregular partition, their title could not stand regardless of the confirmed grant, and Section 93 of the Law of Succession Act could not protect them; their recourse lies against the 1st and 4th Defendants.
Legal principles established
#- A customary trust need not be noted on the register, but the burden of proving it rests on the party asserting it, and the circumstances surrounding registration must be examined to determine intention
- A tenant in common may not deal with an undivided share except with the written consent of the remaining tenants, and partition without following the procedure in Section 94 of the Land Registration Act is irregular
- A purchaser whose root of title is an irregular partition cannot rely on indefeasibility or Section 93 of the Law of Succession Act; the validity of the title is vitiated by the defect in the root
- A suit is not res judicata where the parties differ and where the former court lacked jurisdiction to determine the issue, as where a succession court cannot determine trusts or proprietary interests in land
Court orders
#- 1.The plaintiff's suit is dismissed
- 2.The titles resulting from the impugned partition, being titles North Sakwa/Ajigo 3015, North Sakwa/Ajigo 3016 and North Sakwa/Ajigo 3017, shall be cancelled
- 3.The Land Registrar Bondo shall, in the presence of the parties, undertake a fresh partition of the parcel North Sakwa/Ajigo/1 and issue separate titles to the initial registered proprietors Joseph Okech Gari and Odhonji Gari within 60 days of the judgment
- 4.The costs of the partition exercise shall be borne by the 1st and 4th Defendants
- 5.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13(5) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okech (Suing on Her Own Behalf and on Behalf of the Estate of Joseph Okech Gari) v Onjema & 4 others", Case Analysis (2026). Land Case E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.