Shah v Ogembo & 3 others

omnia corrumpit, fraud unravels all. Possession without legitimacy is but a shadow, and title procured through deceit is a house built upon quick sand. 2. This appeal therefore transcends mere ownership; it is about whether decrees of court may be ignored with impunity, whether succession proceedings may be bypassed by stealth, and whether a charge founded on inrm title can stand against rightful beneciaries. In this crucible, the Court must weigh not only the facts but the enduring wisdom of justice, and one is left to ponder; can a crooked foundation ever bear a straight house, or will the edice of fraud inevitably collapse under the weight of law? 3. This appeal is against the judgment and decree of Asati J. delivered on 9th October 2024 in Kisumu ELC No. E046 of 2021. The history of the dispute is that by a plaint dated 10th September 2021, the respondents in the aforesaid capacity instituted civil proceedings against the appellant, and the interested parties. 4. In the plaint, the respondents pleaded that the deceased was the registered proprietor of the suit property. That the deceased had tenants in the suit property and derived rental income therefrom. However, during his lifetime, one of sons, Dr. William Ogembo Onyango, fraudulently transferred the suit property to Ogembo Family Holdings Ltd, his family outt without the knowledge or consent of the deceased. This action compelled the deceased to successfully le Kisumu HCCC No. 131 of 1996, to impugn the transfer and registration aforesaid on the grounds that it was fraudulent. 5. Incidentally and contemporaneously with the ling of the suit, the deceased took out an interlocutory application for injunction restraining the said Dr. William Ogembo Onyango from interfering or dealing with the suit property in a manner inimical to his interest. That order was granted and remained in force until the determination of the suit. However, the deceased passed on before the suit was concluded. As the respondents initiated succession proceedings to enable them to be substituted in the suit in place of the deceased, Dr. William Ogembo Onyango once again in the intergurininam transferred the suit property to his family outt aforesaid. As his actions were in willful disobedience of the subsisting injunction order, the respondent initiated contempt proceedings against him. Indeed, he was subsequently arrested and committed to civil jail. 6. Fearing that he would lose his job with the University of Nairobi as a lecturer, the family prevailed on the respondents to compromise the matter. The compromise reached was a consent order recorded in court reverting the suit property to the estate of the deceased. The 2nd interested party was directed to eect the rectication of the register in the above terms within seven days. In the meantime, Maurice Otieno Ogembo, a son of the deceased and who was in charge of collection of rent from the tenants in the suit property approached the appellant for a friendly loan of kshs.25,000,000/= to fund his campaigns for Member of County Assembly and also to pay legal fees for his son who was facing an information charging him with murder. In repayment thereof, the appellant was allowed to collect the monthly rent from the tenants for a period of ve years. The respondents soon thereafter discovered that the appellant had caused the suit property to be transferred to himself and subsequently charged it to the 1st interested party to secure a loan facility extended to him of Kshs.28,000,000/=, which the respondents felt it was fraudulent, hence the suit. 7. The plaint set out particulars of illegality and fraud against the appellant, and the interested parties, including eecting transfer without a conrmed grant, using forged documents, registering a charge illegally, collecting rent from tenants, and misappropriating the same. The respondents prayed that injunctive orders be issued against the appellant, rent paid by the tenants be deposited in the account of the estate or in the alternative in an escrow account, rendering of accounts for all rents collected, cancellation of the appellant’s registration, rectication of the title to revert the suit property to the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1659/eng@2026-07-31 2

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deceased, cancellation of the charge in favour of the 1st interested party, damages for trespass, costs and interest. 8. The appellant led a defence denying the allegations of fraud and illegality, contending that he lawfully acquired the suit property from the respondents and Maurice Otiendo Ogembo, who all dealt with him as registered owners of the suit property. He pleaded that he disbursed sale proceeds as directed by them, that the transaction was witnessed by Francis Rayola Olel of Messrs Olel Onyango Ingutia & Company Advocates who was then an advocate in the rm but now a judge of the High Court and that he had been in possession thereof for thirteen years with the respondents’ knowledge and acquiescence. He maintained that the charge to 1st interested party was valid and procedurally executed. 9. The 1st interested party in its defence pleaded that it advanced nancial accommodation to the appellant secured by a legal charge over the suit property, duly registered under the Land Act and Land Registration Act. It denied any fraud, asserting that it was a bona de chargee for value without notice of any defect in title. 10. The 2nd interested party, in its defence denied wrongdoing, stating that all entries and registrations were made in accordance with the law and based on documents presented. It denied allegations of falsication or disappearance of records, and contended that any rectication sought should be pursued through proper legal and statutory channels. 11. During the plenary hearing, the respondents adopted their witness statements that they had led. Those statements merely reiterated in details the averments in the plaint. We need not therefore rehash the same. Suce to add that they vehemently denied selling and transferring, signing any agreement or receiving any money from the appellant in that regard. They emphasized that the transfers were eected without a conrmed grant and through forged documents, thereby depriving the beneciaries of their inheritance. 12. They then called Maurice Otieno Ogembo (PW3) as their witness who testied that the appellant had advanced him a friendly loan of Kshs 25,000,000/= for his political campaigns in 2013 and to bail out his son who was facing an information charging him with murder. By way of refund, he allowed the appellant to collect the monthly rent of about Kshs.250,000/- from the tenants in the suit property for ve years and he verily believed that the appellant fully recovered the friendly loan. He was therefore surprised to learn from the respondents that the suit property had been sold and transferred to the appellant by him. He vehemently denied doing so and indeed took up the matter with criminal investigation agencies, and when the appellant got wind of the investigations, he ed to the United Kingdom. He reiterated that neither him nor the respondents had consented to the sale and or transfer of the suit property to the appellant and that all the documents exhibited by the appellant in support of his claim to the suit property were frauds as he never signed any of them as claimed by the appellant. 13. PW4 Anthony Mwabika testied as the incharge of the High Court registry at Kisumu. He conrmed that despite diligent eorts to trace the court le in respect KSM HCCC No. 131 of 1996, his eorts had come to naught. He reiterated however that from his records, judgment therein was delivered. Eventually, he tendered in evidence a reconstructed court le in that regard. Collectively, therefore these witnesses supported the claim that the appellant’s dealings were fraudulent and that the charge registered in favour of the 1st interested party was therefore unlawful. 14. The appellant on his part, testied that he lawfully bought the suit property from the respondents and PW3, who represented to him that they were registered owners of the suit property. He stated that before proceeding with the transaction, he carried out due diligence and the transaction was formalized through a sale agreement executed before Francis Rayola Olel. (DW2). The appellant maintained that https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1659/eng@2026-07-31 3

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he disbursed the sale proceeds as directed by the respondents and PW3, paid the stamp duty demanded of Kshs.1,300,000/= and was thereafter issued with the title documents in respect of the suit property. That he had been in possession of the suit property for thirteen years without any objections by the respondents and PW3. He denied any fraud attributed to him and his alleged ight to the United Kingdom. He asserted that the charge to 1st interested party was validly procured. 15. DW2 Francis Rayola Olel conrmed that he witnessed the signatures of the appellant and PW3 on the sale agreement. He saw nothing else other than the certicate of lease in respect of the suit property at the time. 16. The 1st interested party, through Doreen Otieno a legal ocer, testied that it advanced nancial facilities to the appellant secured by a legal charge over the suit property for Kshs.28,000,000/=. She produced the charge instrument and maintained that the 1st interested party ha no liability save that it holds a charge that was regularly registered by the appellant as the owner of the suit property. 17. The 2nd interested party did not testify or call witnesses. 18. In its judgment, the trial court held that the deceased was the registered proprietor of the suit property, having acquired the same in 1973 and obtained a certicate of lease in 1983. It noted that although there had been fraudulent transfers by Dr. William Ogembo Onyango to Ogembo Family Holdings Ltd., those transfers were reversed by the High Court in Kisumu HCCC No. 131 of 1996, thereby restoring the suit property to the deceased. It also held that upon the death of the deceased therefore, the suit property formed part of his estate and could only be dealt with through succession proceedings. The subsequent transfer of the suit property to the appellant, and the charge created over it in favour of 1st interested party were eected without a conrmed grant and through irregular and fraudulent processes. 19. The trial court further found the evidence of the respondents as well as (PW3) credible. The court rejected the appellant’s defence that he had lawfully acquired the suit property, holding that the respondents had not consented to the transfer and that the appellant could not acquire valid title from persons who were not administrators of the estate of the deceased. It further held that the charge registered in favour of 1st interested party was tainted, as the appellant had no valid title to pass to it. It was therefore not a bona de chargee for value without notice. 20. Ultimately, the trial court concluded that the respondents had proved their case on a balance of probabilities and entered judgment as prayed in the plaint save for the prayer for damages for trespass which it found not to have been proved. 21. Aggrieved by the judgment and decree aforesaid, the appellant led the instant appeal on grounds that the trial court erred in fact and law by: holding that the suit property formed part of the estate of the deceased; holding that there was already an order of the Court in Kisumu HCCC No. 131 of 1996 to revert the suit property into the name of the deceased which had been implemented; failing to appreciate that the respondents together with (PW3) procured registration of ownership of the suit property in their personal capacities after Ogembo Family Holdings Limited relinquished ownership; wrongly being persuaded by the testimony of PW3 regarding a friendly loan advanced while ignoring the evidence of DW2; failing to appreciate that the appellant disbursed the sale proceeds as directed by the respondents and PW3 and that for 13 years he had been in possession of the suit property with their knowledge and acquiescence; and lastly, that it failed to appreciate that the respondents’ omission to join PW3 and Ogembo Family Holdings Limited in the suit was clear conrmation that he dealt with them above board. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1659/eng@2026-07-31 4

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22. The appeal was canvassed by way of written submissions with limited oral highlights. Mr. Anyul, Mr. Yogo and Mr Maganga, learned counsel appeared for the appellant, 1st respondent and 1st interest party respectively. There was no appearance or representation by the 2nd respondent and 2nd interested party although there was evidence of service of the hearing notice on all the parties to this appeal by the court. 23. Counsel for the appellant submitted that as at the time of the transaction, the suit property was no longer part of the estate of the deceased as dened under section 3 of the Law of Succession Act as the suit property was then registered in the name of the respondents and PW3. 24. Counsel went on to submit that the trial court order relied upon by the respondents to allege that the suit property reverted back to the deceased’s name was never registered against the title. He cited PW3’s testimony conrming that entry No. 12 on the green card only referred to a court order but did not indicate its basis. He argued that the 2nd interested party was right in not perfecting the order since the registered owner was not a party to the suit, and that the trial court misapprehended the status of the proceedings therefor. 25. Counsel further submitted that family dierences were resolved and Ogembo Family Holdings Ltd transferred the suit property into the individual names of the respondents and PW3. That indeed PW3 conrmed that the suit property was registered in his name and those of the respondents in 2013. He argued that the respondents and PW3 then entered into a sale agreement with the appellant which was duly executed before DW2, and they received the purchase price sourced from the 1st interested party. He maintained that the respondents and PW3 then surrendered ownership and possession, including tenants in the suit property, to the appellant, and could not now be heard to deny the transaction. 26. It was further submitted that the trial court erred in believing PW3’s assertions that the appellant had advanced him a friendly loan. He argued that the evidence of DW2 and the appellant himself conrmed a valid sale agreement, and that the vendors had received the purchase price. He contended that the claim of fraud was not proved to the required standard, citing Ratilal Gordhanbhai Patel v Lalji Makanji [1951] EA 314 where this Court held that fraud must be pleaded and proved beyond a mere balance of probabilities. 27. In conclusion, counsel submitted that no substantive suit had ever been led against Ogembo Family Holdings Ltd to challenge its ownership, and that the respondents themselves admitted surrendering possession of the suit property and beneting from the sale proceeds. He therefore urged the Court to allow the appeal as prayed in the memorandum of appeal. 28. Counsel for the 1st respondent, in opposing the appeal, submitted that the trial court’s judgment was rmly anchored in both law and evidence, having rightly cancelled the appellant’s title to the suit property for having been acquired fraudulently and unprocedurally. He traced the suit property’s history to its purchase by the deceased in 1973, conversion into leasehold in 1975 and issuance of a certicate of lease in 1983. Counsel emphasized that subsequent fraudulent transfers by William Onyango Ogembo were reversed in Kisumu HCCC No. 131 of 1996, and that upon the deceased’s death, the respondents lawfully stepped in as administrators of his estate to protect the estate of the deceased. 29. He argued that the appellant’s claim of lawful purchase was a fabrication unsupported by statutory documentations, noting the absence of stamp duty receipts to evince payment, registration fees, or transfer instruments. He underscored that a mere sale agreement cannot convey an interest in land, and that the purported agreement was denied by all the respondents and PW3. He further highlighted that PW3’s evidence showed that the appellant had only advanced him a friendly loan for his political https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1659/eng@2026-07-31 5

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ambitions as well as assisting his son who was facing criminal charges, which the appellant later distorted into a purported sale transaction. 30. Counsel went on to submit that the appellant’s reliance on Ogembo Family Holdings Ltd as the proprietor of the suit property was misplaced, as it had already reverted to the deceased’s estate by consent order recorded in court by the parties and which could only be reversed through another court order which was not pursued. It was contended that the appellant’s title was tainted by fraud, that the 2nd interested party’s silence spoke volumes, and that the appellant’s own prayer oering to surrender the suit property if paid Kshs.10 million was an implicit admission of illegality. Counsel submitted that in any event that the transaction ran afoul of the doctrine of lis pendens. 31. In conclusion, counsel urged the Court to dismiss the appeal with costs, arming that the trial court’s decision was sound, consistent with section 26 of the Land Registration Act, and fortied by precedents including Funzi Island Development Ltd v County Council of Kwale,[ 2014] KECA 882 (KLR), Kenya National Highways Authority v Masood Mughal, and Dina Management Ltd v County Government of Mombasa, KESC 30 (KLR), He maintained that equity cannot cleanse a title born of fraud, and that justice of the case demanded the preservation of the estate of the deceased. 32. In his oral submissions counsel for the 1st interested party reiterated that the trial court had cleansed the 1st interested party of any wrong doing in the transaction, and were grateful to the court for having ordered the substitution of the security by the appellant. There were no submissions on behalf of the 2nd interested party. 33. We have considered the record of appeal, respective submissions of counsel, the numerous authorities cited and the law. As this is a rst appeal, it is our duty to analyze and re-assess the evidence on record and reach our independent conclusions. In doing so however, we should not lightly dier from the ndings of fact of the trial court which had the distinct advantage of seeing and hearing all the witnesses as they testied and will only interfere with such ndings if they are based on no evidence, or the trial court is shown demonstrably to have acted on wrong principles in reaching the ndings it did. See Selle v Associated Motor Boat Co. [1968] EA 123 and Jabane – v- Olenja [1986] KLR 664. 34. Having said as much on our jurisdiction, the issues we discern for determination in this appeal are whether: the suit property formed part of the estate of the deceased; the orders issued in Kisumu HCCC No. 131 of 1996 were implemented by the 2nd interested party and what eect they had on the ownership of the suit property; the transfer of the suit property to the appellant and the subsequent charge in favour of the 1st interested party were lawful or tainted with fraud and illegality and nally, Whether the trial court properly evaluated the evidence and arrived at the correct conclusion. 35. On the rst issue, and in answering it, the rst question that lingers in the court’s mind is, who was the registered proprietor of the suit property before the court battle? The record is clear that the initial registered owner of the suit property was the deceased, who acquired it and was registered as the proprietor thereof on 28th September 1975. This fact was conrmed through documentary evidence produced at the trial, including the green card entries and searches tendered by the respondents and PW3. They all conrmed that the property was rst registered in the name of the deceased, before subsequent fraudulent dealings that led to its transfer into the name of Ogembo Family Holdings Ltd. This is what necessitated litigation between the deceased and his son, Dr. William Onyango Ogembo in Kisumu HCCC No. 131 of 1996. Eventually the suit property reverted to the estate of the deceased following a consent order recorded in court. 36. Prior to that however, interim injunctive orders had been obtained restraining any further dealings in the suit property by Dr. William Onyango Ogembo to the detriment of the deceased pending https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1659/eng@2026-07-31 6

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the hearing and determination of the suit. However, the deceased passed on before the suit could be concluded. As the respondents-initiated succession proceedings to enable them to be substituted so as to prosecute the suit, Dr. William Ogembo Onyango was at it again. Despite the injunction in place, he once again transferred the suit property back to Ogembo Family Holdings Ltd. As his actions were in willful disobedience of the subsisting order of injunction, the respondents initiated contempt proceedings against him resulting in order for his committal to civil jail. As he was a civil servant and most likely to lose his job with the incarceration the family was prevailed upon to compromise the dispute. As a result, a consent order was recorded by counsel for both parties, Mr. Yogo appearing for the estate of the deceased and Mr. Francis Rayola Olel appearing for Dr. William Onyango Ogembo. The consent order directed that the suit property revert to the estate of the deceased. Indeed, the order specically directed the 2nd interested party to eect the re-transfer within seven days. 37. The legal eect of such a consent order was that it was binding on the parties unless, rescinded, set aside or reviewed. It follows that the 2nd interested party was obligated to implement it. Whether or not the register was immediately rectied does not diminish the binding nature of the consent order as all the parties to the suit were aware of it. 38. When the suit property reverted back to the deceased, upon his death, it could only be dealt with in line with the provisions of the Law of Succession Act and anything outside it would constitute intermeddling with the estate of the deceased. Section 45 of the said Act provides inter alia as regards intermeddling, ‘(1). Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with any free property of a deceased person. 2. Any person who contravenes the provisions of this section shall – a. 39. be guilty of an oence and liable to a ne not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or both ne and imprisonment …’ The alleged sale of the suit property did not happen during the deceased’s lifetime and did not involve the deceased, but after his death, and involved allegedly the respondents and PW3. The trio even if the allegation by the appellant was true, had no legal standing to bind the estate. As conrmed by PW4 the grant of letters of administration intestate issued in the Succession proceedings has yet to be conrmed. It is trite law that the property forming the estate of the deceased can only be distributed or dealt with upon a conrmed grant. It matters not that somehow the respondents and PW3 had managed to have the suit property registered in their names if at all. That would mean, by dint of section 79 of the Law of Succession Act, that the assets of the estate had not yet vested in them. They therefore, did not have power by dint of section 82 of the Law of Succession Act, to sell the suit property or deal with it in any other manner inimical to the interests of the deceased’s estate. They could not therefore enter into any binding contract with anybody over any of the assets that made up the estate of the deceased. 40. Again by dint of section 45 of the Law of Succession Act, any transaction between the respondents, PW3 and any other person amounted to intermeddling with the estate of the deceased, and those involved, therefore, would be deemed to have engaged in criminal activity and therefore an illegality. Nothing valid or useful comes out of an illegal misadventure. The alleged sale contravened sections 45 and 82 of the Law of Succession Act and there was absolutely no possibility that the appellant could have acquired any valid title from the sale, for the persons who purported to sell the suit property to him had no title to it. They had nothing to sell and the appellant bought nothing from them therefor. But as we have already seen, both the respondent and PW3 denied ever entering into a sale agreement with the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1659/eng@2026-07-31 7

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appellant. The evidence led and the documentation tendered in support of and in opposition to the claim seems to lend credence to the respondents and PW3’s position. 41. Having said as much on the issue, we are satised that the suit property formed part of the estate of the deceased at the time of his death within the meaning of section 3 of the Law of Succession Act and was not available to be dealt with in the manner it was by the appellant, or even the respondents and PW3. 42. How about the 2nd issue! The record shows that the High Court of Kenya at Kisumu in HCCC No. 131 of 1996 reversed the fraudulent transfer by Dr. William Ogembo Onyango of the suit property to Ogembo Family Holdings Ltd and by a subsequent consent order, directed that the suit property reverts to the estate of the deceased. The legal position is clear: once a court issues an order directing the doing of something, a party against whom the order is directed is bound to comply unless it is annulled, rescinded, reviewed or set aside. None of the foregoing happened in the circumstances of this case. Accordingly, the consent order had the legal eect of restoring the suit property to the estate of the deceased. Whether or not the 2nd interested party promptly or properly implemented the order does not diminish its binding nature. It matters not therefore whether or not it was entered in the register. The net eect then was that the suit property remained vested in the estate of the deceased, and any subsequent transfer to the appellant without a conrmed grant was void as already stated. 43. And in a note of irony that the Court cannot ignore, it wonders aloud how the very advocate, Francis Rayola Olel, learned counsel (as he then was but with tremendous humility now Judge of the High Court) who solemnly signed the consent order restoring the suit property to the estate is the same hand that later appeared to sanctify the purported sale agreement relied upon by the appellant. It is a paradox that borders on satire: the pen that restored the suit property to the estate of the deceased is the same pen that attempted to alienate it. Such duplicity only reinforces the maxim fraus omnia corrumpit; fraud unravels all-and no title can stand when its foundation is so manifestly compromised. 44. Turning to the third issue, we have already stated that the suit property was at the time of purported sale, belonged to the estate of the deceased. The governing law is not in doubt. Section 45 of the Law of Succession Act prohibits any intermeddling with estate property before grant of representation, declaring such dealings void. Section 82(b)(ii) further restricts administrators from selling or transferring immovable property except after conrmation of grant. In tandem, section 26(1) of the Land Registration Act, 2012 provides that a certicate of title is prima facie evidence of ownership, but it may be impeached if obtained through fraud, misrepresentation, or illegality. In the present case, the deceased, was the registered proprietor of the suit property, and upon his death, the suit property vested in his estate. Any purported transfer to the appellant without a conrmed grant was therefore a nullity ab initio. 45. This Court has consistently held that a title obtained outside any legal framework or through fraudulent means cannot be clothed with indefeasibility. For instance, in Daudi Kiptugen v Commissioner of Lands Nairobi Lands, Chief Lands Registrar Nairobi & Others [2015] KEELC 674 (KLR) it held: “ The acquisition of title cannot be construed only in the end result, the process of acquisition is material. It follows that if a document of title was not acquired through the proper process, the title itself cannot be said to be a good title. If this were not the position, then all one would need to do is to manufacture a Lease or Certicate of Title, at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein…” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1659/eng@2026-07-31 8

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46. In Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR), this Court stated with clarity: “ When a registered proprietor’s root of title is under challenge, it is not sucient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.” 47. The same sentiments were echoed in Funzi Island Development Ltd & 2 Others v County Council of Kwale & 2 Others (supra), where the Court observed that indefeasibility of title only arises if the allocation was legal, proper, and regular, and that a court of law cannot sanction an illegality or irregularly obtained title under the guise of indefeasibility. 48. Finally, the Supreme Court of Kenya has also since weighed in and reinforced this jurisprudence in Dina Management Ltd v County Government of Mombasa & 5 Others (supra), by holding that: “ Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible”. 49. We have already explained at length the details regarding the illegalities committed in the process leading to the alleged transfer of the suit property to the appellant. To be precise and strictly guided by the pleadings and testimony on record, the appellant’s conduct amounted to fraud and illegality in the following ways: First, he relied on a purported sale agreement allegedly executed before Francis Rayola Olel, yet the administrators of the estate categorically denied ever signing such an agreement. The defence pleaded that the document was a fabrication, unsupported by any statutory instrument of transfer, which assertion was not suciently countered or rebutted by the appellant. Second, the appellant failed to comply with statutory requirements of conveyancing. No transfer instrument was lodged with the Lands Registry, no stamp duty was paid, and no registration fees were evidenced. These omissions rendered the transaction void under the Land Registration Act. Third, the evidence of (PW3) revealed that the appellant had merely advanced him a loan for political campaigns in 2013, and in support of his son who was facing criminal charges which was later consigned into a purported sale transaction. 50. This testimony directly undermined the appellant’s claim of a bonade purchaser for value without notice of any encumbrances to the title. Fourth, the appellant intermeddled with estate property without a conrmed grant, contrary to section 45 and section 82(b)(ii) of the Law of Succession Act. The suit property, being part of the estate of the deceased, could only be lawfully dealt with through succession proceedings. Finally, having acquired no valid title, the appellant nonetheless proceeded to charge the suit property to 1st interested party for Kshs.28,000,000/=, thereby purporting to confer an interest he did not lawfully possess to the said party. This act was pleaded and testied as fraudulent, since one cannot confer a valid charge over property without a valid root of title. 51. In sum, the illegality lay in fabricating a sale agreement, failing to comply with statutory requirements of transfer, disguising a loan as a sale, intermeddling with estate property without grant, and charging the property to the 1st interested party on the strength of a defective title. These acts, as pleaded, testied to and proved, rendered the appellant’s acquisition fraudulent and void. 52. Then there is the doctrine of lis pendens that works against the appellant also. This doctrine (latin word for “pending suit”) is a legal principle holding that while a lawsuit involving a piece of land is ongoing; https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1659/eng@2026-07-31 9

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neither party to the suit can transfer or alter the property’s title without the court’s permission. The doctrine ensures that the nal court judgment is eective and prevents parties from dodging legal outcomes by secretly disposing of the property. In the main, it preserves the status quo, protect the opposing party and prevents endless litigation. See Naftali Ruthi Kinyua v Patrick Thuita Gachue & Another [2015] KECA 911 (KLR). It is not disputed that at the time this transaction was ongoing KSM HCCC No. 131 of 1996 was still pending hearing. 53. On the whole, we are satised that the transfer of the suit property to the appellant was unlawful, steeped in fraud and illegality, and incapable of conferring valid ownership to him as indeed the trial court held. The charge registered in favour of the 1st interested party, being parasitic upon that defective title, was equally void. Fraud unravels everything fraus omnia corrumpit and equity will not cleanse a transaction whose foundation is manifestly crooked. 54. In light of all the foregoing, we are satised that this appeal is bereft of merit and is accordingly dismissed with costs to the 1st respondents. Dated and delivered at Kisumu this 31st day of July, 2026. ASIK-MAKHANDIA ............................... JUDGE OF APPEAL E.C. MWITA ............................... JUDGE OF APPEAL B. ONGAYA ............................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1659/eng@2026-07-31 10

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