Gerald Odhiambo Lamba v Pamela Aoko Otieno (Sued and the Administrator of the Estate of the late Edwina Atieno Murai) & 3 others
The bottom line
#A Kenyan landowner lost his appeal because he could not prove how his late wife's land legally became his, even though the Land Registrar acted wrongly.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the firm of TripleOKlaw LLP is properly on record
- 2.Whether the appellant's written submissions filed after the expiry of the 21 days issued period should be struck out
- 3.Whether this appeal has merit, including: who is the rightful owner of the suit property between the plaintiff and the 1st/2nd defendant; whether the Land Registrar had jurisdiction to cancel title; whether the court erred in cancelling Dymphyna's title; whether the counterclaim is time barred; whether the 3rd defendant is a bona fide purchaser for value without notice of fraud; and who bears the costs of the appeal
Key legal issues
#Whether the incoming firm of advocates was properly on record on appeal without Order 9 Rule 9 compliance
Order 9 Rule 9 does not apply to appeals; an appeal is fresh proceedings and non-compliance is procedural, not fatal
Relying on Tobias M. Wafubwa v Ben Butali and earlier decisions of Sitati, Makhandia and Emukule JJ, the court held that once judgment is entered, an appeal commences new proceedings in another court where parties may freely instruct new counsel. Non-compliance not going to the root of the dispute may be cured under Article 159 and the overriding objective.
Whether the Land Registrar had jurisdiction to cancel the appellant's title
The Registrar acted ultra vires and unprocedurally in removing the plaintiff's name from the register
Section 79 of the Land Registration Act limits the Registrar to rectifying errors not materially affecting a proprietor's interest, with 90 days' notice where alteration affects title. Removal of a registered proprietor's name materially affects his interest, and no evidence of notice was adduced. The trial court therefore erred on this point, though the appeal still failed on the root of title.
Who is the rightful owner of the suit property
The plaintiff failed to prove lawful ownership; Dymphyna's title, the root of his title, was irregular and could not sustain his claim
The green card showed Edwina as first registered owner in 1993; the joint registration of Dymphyna in 1996 was unsupported by any transfer documents or sale agreement, and Dymphyna was neither enjoined nor called as a witness. The plaintiff thus failed to defend the root of his title, and the burden of proof under Sections 107 and 109 of the Evidence Act was not discharged.
Whether the trial court erred in cancelling Dymphyna's title without hearing her
No error; Dymphyna was not a party, had transferred her interest to the plaintiff before the suit, and the plaintiff who relied on her title failed to defend its root
The counterclaim is a separate suit; the court was obligated to decide among the parties before it. Dymphyna had no remaining interest having transferred to the plaintiff, so the hearing complaint was 'neither here nor there'. The Kidero decision on the right to be heard was distinguished as arising in an election petition context.
Whether the counterclaim was time barred under the Limitation of Actions Act
The limitation issue was not pleaded in the trial court and was raised without leave; moreover there was no claim against Dymphyna, who was not a party
The court perused the reply to the defence and counterclaim and the trial submissions and found the issue was never pleaded or framed for determination, and leave to raise the new issue on appeal was not sought. The point was therefore not available to the appellant.
Whether the 3rd defendant is a bona fide purchaser for value without notice of fraud
Yes; with the appellant's root of title found irregular, there was no basis to find against the 3rd defendant who purchased from the registered vendor after due diligence
The 3rd defendant conducted due diligence at the registry and found the vendor registered as owner following succession proceedings. Since the appellant failed to defend his own root of title, no basis existed to disturb the 3rd defendant's purchase.
Legal principles established
#- Order 9 Rule 9 of the Civil Procedure Rules does not apply to appeals; an appeal is fresh proceedings that may be commenced by a new firm of advocates without leave or a consent, and non-compliance that does not go to the root of the appeal is not fatal
- Removal of a registered proprietor's name from the register materially affects that proprietor's interest and is outside the Registrar's rectification powers under Section 79 of the Land Registration Act; such action is ultra vires absent notice
- A party who acquiesces to a date for judgment without objecting to submissions filed out of time is estopped from raising the objection later
- A plaintiff who derives title from a third party must defend the root of that title; failure to call or enjoin the source of title and to produce transfer documents discharges the impeachment of his title
Court orders
#- 1.The preliminary issue on non-compliance with Order 9 Rule 9 dismissed
- 2.The appellant's written submissions admitted despite being filed out of time
- 3.The appeal dismissed
- 4.Costs of the appeal awarded to the respondents except the Land Registrar
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court at Siaya (MELC)
- Siaya MELC No. E090 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court (Environment and Land Court), Section 78 of the Civil Procedure Act
Relief refused
#Allowing the appeal and setting aside the judgment and decree of 07.11.2025
The appellant failed to discharge the burden of proving lawful ownership; the Land Registrar acted ultra vires but the root of the appellant's title (Dymphyna's) was irregular and the 3rd defendant was a bona fide purchaser
Costs of the appeal to the appellant
Costs follow the event; the appeal was dismissed
Costs
Costs of the appeal awarded to the respondents, except the Land Registrar (4th respondent) who did not participate in the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that this appeal lacks merit and it is hereby dismissed with costs to the Respondents except the Land Registrar.
Therefore it is my finding that the Land registrar acted ultra vires and unprocedural in removing the Plaintiffs name from the parcel register.
Removing and or striking out the name of registered proprietor is an action that materially affects the interest of the registered proprietor and therefore excluded from the corrections that the Land Registrar is empowered to effect.
an appeal to an appellate court is not a continuation of proceedings in the lower court, but a commencement of new proceedings in another court
The burden of proof still lay on the plaintiff to proof how the property moved from his wife to himself which he failed to discharge.
It is therefore the finding of this court that the trial court did not err in the cancellation of Dymphynas title.
He did not raise any objection to the submissions having been filed out of time but acquiesced to taking a date for judgement. He is therefore estopped from raising the objection now.
Issues in the judgment
#Appeal number inconsistency between header and footers
Conflicting dates for the counterclaim
Incomplete date of the plaint
Court finds Registrar acted ultra vires yet affirms the trial outcome founded on that cancellation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gerald Odhiambo Lamba v Pamela Aoko Otieno (Sued and the Administrator of the Estate of the late Edwina Atieno Murai) & 3 others", Case Analysis (2026). ELC Appeal No. E071 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5953/eng@2026-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.