Sarah Moraa Moracha & another v Julius Moracha Matundura & another

an order to preserve the suit property against any subdivision or alienation without the consent of the applicants; and that the costs of the be provided for. 2. The background to the dispute is largely undisputed as it is common ground that the 1st respondent, Julius Moracha Matundura, was registered as proprietor of a share in the suit property following succession proceedings in Kisii High Court Succession Cause No. 62 of 2009, relating to the estate of the late Teresa Nyanchero Matundura. Pursuant to the conrmed grant issued in those proceedings, the 1st respondent was registered to hold one-third (1/3) share in the suit property in trust for his sons and grandsons. 3. Subsequently, the 1st respondent disposed of and transferred a portion of his interest in the suit property to the 2nd respondent, Anne Ondieki. It was this transaction that precipitated the proceedings before the trial court. The principal issue before that court concerned the disposition and subsequent transfer by the 1st respondent to the 2nd respondent of a portion or share of the suit, which according to the appellants, was done without seeking their authority, thus rendering the transfer irregular and illegal. 4. In opposing the claim by a replying adavit, Julius Moracha Matundura, the 1st respondent and who testied as DW1, conceded that he was to hold the land in trust for his sons and grandsons as per the certicate of conrmation of grant issued in the succession cause. He however denied claims that he abused the trust, insisting that the sons agreed to the sale; and that in any event, he had no grandsons as at the time the transaction was conducted. He explained that the suit property was initially owned by three (3) people namely: Siro Mogaka, Sospeter Moindi and Johnson Matundura (his deceased father), whose share in the property was transferred to him following a succession cause; that this was the share he sold and transferred to the 2nd respondent. He maintained that he had discussions with his sons before he sold the 1/3 share to the 2nd respondent and that the sons agreed and gave him the authority to sell; that the sons signed a consent as per letter dated 5th April 2013; and although they subsequently sought to renege from the consent, that consent was upheld in the succession case vide a ruling delivered (Sitati, J.) on 6th March 2014. He maintained that his sons had voluntarily given their consent for the sale of the property and that he had lawfully sold the suit property to the 2nd respondent. 5. On the basis of being a bona de purchaser with an indefeasible title, Anne Ondieki, the 2nd respondent by way of a replying adavit deposed that that the 1st respondent as one of the administrators of the estate of one Teresia Nyanchero Matundura, expressed to her the desire to dispose of his share in the suit property; she thus entered into a sale agreement with the 1st respondent to purchase the suit property for the sum of Kshs.2,000,000/- in accordance with the agreement dated 31st January 2013; and subsequently she was duly registered as the owner of the property. 6. Aggrieved by the disposition and transfer, the appellants instituted the Originating Summons seeking, inter alia, to challenge the validity of the transaction and the resultant transfer of the interest in the suit property to the 2nd respondent. The evidence presented to the trial court by Sarah Moraa Moracha, who testied as PW1 that the 1st respondent was her husband with whom they had 5 children who were now all adults. Apparently, there were succession proceedings led in Kisii High Court Succession Cause No.62 of 2009 where her husband was awarded 1/3 share of the suit property to hold in trust for their sons and grandsons. It was her position that, the 1st respondent, in breach of his duties and obligations as a trustee sold and transferred the suit property to the 2nd respondent without any consent from the beneciaries and/or the family. This is what prompted her to seek the annulment of the transfer and its restoration to the beneciaries. 7. This position was supported by Smarta Ngare Moracha, one of the sons to the couple, who told the trial court that their father held the suit property as a trustee; and disowned the consent dated 5th April, 2013 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1877/eng@2026-09-25 2

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purportedly bearing his signature, insisting that it was a forgery. He however had not made any report to the police relating to the alleged forgery. This allegation of fraud was countered by the explanation given in the evidence of Anne Ondieki, testifying as DW2, to the eect that the 1st respondent indeed held a share of the suit property in trust for his sons and grandsons, but the sons consented to the sale, hence there was no impediment to the sale of the property to her; and she paid full consideration for the property. 8. The determination of those proceedings culminated in the judgment now impugned before us, hence the present appeal. In the said judgment, the learned Judge found that: the 1st appellant had no interest in the suit property and thus had no locus standi to institute the present suit in regard to the suit property; however the 2nd appellant being a beneciary under the trust had a valid interest over the suit property and had the locus standi to bring the suit; as to whether the 1st respondent had authority to deal with the suit property, the learned judge found that he had obtained the consent of the beneciaries to dispose of his interest in the suit property and was, accordingly, entitled to enter into the sale agreement with the 2nd respondent; that allegations of forgery, where the 2nd appellant claimed that he only signed documents by thumb printing and could not sign through script at all, was deated by the record which showed that on 15th April, 2015 he signed an adavit in support of the Notice of Motion of even date seeking directions on the Originating Summons; and although he stated that he had not reported any forgery claims to the police there was evidence notably in the ruling delivered by Sitati, J, on 6th March, 2014, that he had made such a report vide OB 16/6/26/6/13 at Kisii Police Station; and the 1st respondent armed in his evidence that indeed such report had been made to the CID in 2013 but he was not found culpable for any criminal oence, so he was not charged. 9. The learned Judge also observed that nothing stopped Osongo Matundura (who was said to have been a minor at the time the impugned consent was signed) who had attained the age of majority at the time the matter was being heard, or the other signatory named Isaac Isaboke Moracha from attending court to contest the impugned consent; and that: “ The burden to prove that the letter of authority/consent exhibited; as"DEX6" was a forgery lay with the 2nd plainti who alleged that it was a forgery. Sections 107, 108 and 109 of the Evidence Act Cap 80 Laws of Kenya outlines who bears the burden of proof …” 10. In nding that the 2nd respondent was a bona de purchaser for value without notice and that the transaction did not constitute a breach of the trust under which the property was held, the learned judge stated as follows: “ The 2nd defendant/respondent acted on the representation made to her by the 1st respondent that he had authority to sell the suit property. The certicate of conrmation of grant clearly showed he was awarded 1/ 3 share of L.R No. Kisii Town/block11/66 albeit to hold in trust for his sons and grandsons. One of the sons Isaac Isaboke Moracha was a witness to the sale agreement dated 31st January, 2013, and was shown to have signed the letter giving the 1st respondent authority to sell. The letter of authority/consent by the sons dated 5th April 2013 satised to discharge the obligation of the 1st defendant/respondent as a trustee. In those circumstances the 2nd defendant/respondent was a bona de purchaser for value without any notice of any defect in title and would be entitled to the protection of the law. To the extent that no evidence of collusion between the 1st defendant/respondent and the 2nd defendant/ respondent is demonstrated, even if it was found the 1st respondent had acted without https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1877/eng@2026-09-25 3

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authority, defendant/respondent could properly have invoked the protection aorded to a purchaser under section 93 of the Law of Succession Act Cap 160 Laws of Kenya.” 11. The learned Judge thus held that the appellants failed to establish any overriding interest or other lawful basis for impeaching the transfer and registration in favour of the 2nd respondent and consequently, the court declined to cancel the transfer or order reversion of the ownership of the suit property and dismissed the Originating Summons in its entirety. 12. Aggrieved by the decision delivered on 9th October 2019 by Mutungi, J, the appellants preferred the present appeal. Their complaint, being that the learned Judge misapprehended the nature and eect of the trust created over the 1st respondent’s share in the suit property and erroneously upheld its disposition to the 2nd respondent. The appellants maintain that the 1st respondent held his one- third share in trust for his sons and grandsons, and could not lawfully dispose of the trust property without the valid and unanimous consent of the beneciaries, and without lifting the restriction imposed over the property. They further fault the learned Judge for failing to recognize the beneciaries’ overriding interests under section 28 of the Land Registration Act, 2012. 13. The appellants also challenge the ndings that: consent to that the transaction had been given, arguing that the signatures relied upon were forged or otherwise obtained in questionable circumstances, that one of the alleged consenting beneciaries was a minor, and that the consent of all beneciaries was not obtained; the 2nd respondent was a bona de purchaser for value without notice, maintaining that she had actual or constructive notice of the trust and the restriction registered against the title and therefore could not acquire a valid interest in the property; and the learned Judge failed to properly evaluate the evidence, thereby erroneously declining to cancel the impugned transfer and order rectication of the register. 14. At the plenary hearing of the appeal, learned counsel, Mr. Nyambati, appearing for the appellants, relied on the written submissions dated 25th October, 2024, to argue that the impugned sale was invalid for want of the beneciaries’ consent. Counsel contended that when the suit property was sold in January 2013, no such consent had been given and that the purported consent was only executed subsequently, in April 2013. It was his submission that two of the beneciaries were minors, having been born in the years 2001 and 2004, and therefore lacked capacity to give valid consent in 2013. He also pointed to the absence of evidence that the minors received any benet from the proceeds of the sale. Counsel questioned the identity of one of the alleged consenting beneciaries, contending that the person did not appear to be a son of the 1st respondent, as demonstrated by the birth certicates on record. 15. On the question of a Trust, counsel submitted that the 1st respondent held the property pursuant to the conrmed grant in Kisii High Court Succession Cause No. 62 of 2009, in trust of his sons and grandsons. He argued that the 1st respondent had neither obtained valid consent from the beneciaries nor moved the court to vary or lift the restriction imposed over the suit property before purporting to sell it. Consequently, the resulting transfer to the 2nd respondent was described as irregular, null and void, and incapable of attracting protection under section 93 of the Law of Succession Act. 16. In relation to the procedural issue arising from Order 32 of the Civil Procedure Rules, counsel conceded, in response to a question from the Court, that leave had not been obtained to institute proceedings on behalf of the minor beneciaries. He nevertheless urged the Court not to determine the appeal on that procedural omission. Relying on Article 159 of the Constitution and the decision in Mumo Matemu v Trusted Society of Human Rights Alliance, [2014] KESC 6 (KLR) counsel submitted that the Court should determine the dispute on https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1877/eng@2026-09-25 4

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its substantive merits rather than allow a procedural technicality to defeat the beneciaries’ substantive rights. He maintained that the 1st appellant, as the mother, had properly taken up the matter in seeking to protect the family’s interests. 17. The appellants argue that the 2nd respondent could not avail herself of the protection accorded to a bona de purchaser under section 93 of the Law of Succession Act, the transaction having been, in the appellants’ submission, tainted by illegality, fraud and breach of trust. The appellants maintained that the 2nd respondent had constructive notice of the trust and the restriction registered against the title and ought, in the circumstances, to have exercised due diligence to ascertain whether the restriction had been lawfully lifted and whether the requisite consent of the beneciaries had been obtained. 18. It was further submitted that the restriction imposed pursuant to the succession proceedings had never been varied or lifted by a court order before the impugned sale and transfer, thus the 1st respondent lacked capacity to dispose of the trust property in the circumstances and that the subsequent transfer could not confer a valid interest upon the 2nd respondent. 19. Consequently, the appellants urged the Court to allow the appeal, set aside the judgment and decree of the trial court, and declare the transfer and registration in favour of the 2nd respondent null and void. They further sought an order for rectication of the register and reversion of the suit property to the 1st respondent to hold in trust for the beneciaries. 20. The respondents were represented by learned counsel, Mr. Langat, who submitted that the suit property was transferred from the 1st respondent to the 2nd respondent with the full knowledge and participation of the appellant's family. It was contended that the evidence before the trial court established that the beneciaries were aware of and had consented to the sale. He relied in particular on the letter of authority produced as D. Exh.6, which, he maintains demonstrated that the 1st respondent’s sons had authorized the transaction; and that it was therefore unnecessary for the 1st respondent to return to court before disposing of the property. 21. The respondents submitted that the allegations of forgery and fraud had not been proved contending that such allegations required cogent evidence and that the appellants had neither produced a forensic examination of the disputed signatures nor called the relevant beneciaries to testify thus the allegations remained unsubstantiated. 22. As regards the alleged minor beneciary, counsel submitted that the appellants had failed to comply with Order 32 rule 1 of the Civil Procedure Rules by commencing proceedings on behalf of a minor through a next friend. He further pointed out that the person concerned had attained majority age by the time of the hearing but was nevertheless not called to testify. They consequently urged the Court to reject the complaint founded on the alleged incapacity of the minor. 23. It was further submitted that the 1st appellant had no enforceable interest in the suit property, not being a beneciary under the terms of the trust created by in the succession proceedings, therefore her claim could therefore not found a basis for impeaching the transaction. 24. On the status of the 2nd respondent, it was submitted that she was a bona de purchaser for value who acquired the suit property in good faith and with the knowledge and consent of the beneciaries. It was argued, that there was no credible evidence demonstrating that she participated in, or had knowledge of, any fraud or misrepresentation in connection with the transaction. 25. The respondents objected to arguments advanced on appeal concerning the alleged nullication of an earlier sale agreement, submitting that the issue had neither been pleaded nor canvassed before the trial https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1877/eng@2026-09-25 5

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court and had not formed part of its determination and was thus a new issue which could not properly be introduced for the rst time on appeal. 26. The respondents submitted that the appellants had failed to discharge the burden of proof imposed by sections 107 and 108 of the Evidence Act and accordingly urged the Court to dismiss the appeal and uphold the judgment of the trial court, with costs. 27. This being a rst appeal, our duty is to reconsider and re- evaluate the evidence on record and draw our own conclusions, while bearing in mind that we neither saw nor heard the witnesses testify. In doing so, we are guided by the principles set out in Selle v Associated Motor Boat Co. [1968] EA 123, as reiterated by this Court in Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR. 28. The Court explained that an appellate court must reconsider, evaluate and draw its own conclusions from the evidence, while making due allowance for the fact that it did not see or hear the witnesses. It is, however, not bound to uphold the trial court’s ndings where it is apparent that the court failed to take account of particular circumstances or probabilities material to the evidence, or where its assessment of a witness’s demeanour is inconsistent with the evidence as a whole. 29. Having considered the respective positions of the parties and the ndings of the trial court, the issues for determination may conveniently be consolidated into three broad questions: rst, the nature and legal eect of the alleged trust; secondly, the validity of the sale and the 2nd respondent’s alleged status as a bona de purchaser for value without notice; and thirdly, whether the applicants’ unregistered family or customary interests constituted overriding interests capable of defeating the registered title and subsequent transfer. 30. The applicable burden and standard of proof are found in sections 107, 108 and 109 of the Evidence Act. The burden rests upon the party who asserts the existence of facts upon which a legal right or liability is said to depend. 31. As this Court stated in Mumbi M'Nabea v David M. Wachira [2016] eKLR, the standard of proof in civil proceedings is that of a balance of probabilities. The Court is required to weigh the oral and documentary evidence presented by the parties and determine which version is more probable than the other. Put simply, the question is whether, on the evidence as a whole, the occurrence alleged by a party is more likely than not. 32. Before the trial court, the appellants’ case was that the 1st respondent was registered as proprietor of the suit property not in his absolute capacity, but as a trustee for his sons and grandsons. They contended that the trust conferred upon the beneciaries overriding interests in the suit property and that the 1st respondent consequently lacked capacity to alienate or otherwise dispose it without their consent. The appellants further maintained that the 1st respondent had unlawfully disposed of a portion of the suit property to the 2nd respondent without obtaining the requisite consent of the beneciaries and without having the restriction or trust imposed over the property lifted or varied. 33. In support of their case, the appellants testied as PW1 and PW2 respectively, testifying that the 1st respondent held the suit property in trust for his sons and grandsons pursuant to the succession proceedings. They maintained that the 1st respondent disposed of a portion of the suit property to the 2nd respondent without the beneciaries’ consent and thereby infringed their benecial interests. PW2, in particular, denied having consented, together with his siblings, to the impugned sale and maintained that the suit property was family land intended for the benet of the children and grandchildren. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1877/eng@2026-09-25 6

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34. The respondents, on the other hand, maintained that the 1st respondent was entitled to deal with his registered interest in the suit property and that the sale to the 2nd respondent was valid. They contended that the relevant family members had consented to the disposition, thereby authorizing the 1st respondent to transact with the suit property. The 2nd respondent maintained that she was a bona de purchaser for value who acquired her interest lawfully and without notice of any defect in the 1st respondent’s title. The respondents therefore urged the trial court to uphold the transaction and dismiss the appellants’ claim. 35. The 1st respondent, acknowledged acquiring his interest in the suit property through the succession proceedings, and maintained that she had sold a portion thereof to the 2nd respondent to meet family and medical expenses. He asserted that, as the registered proprietor, he had capacity to dispose of the property; that his sons were aware of and had consented to the transaction. DW2, the 2nd respondent, testied that she purchased the property for valuable consideration after conducting an ocial search which disclosed the 1st respondent as the registered proprietor without any encumbrance preventing the sale. She maintained that she had no notice of any trust or benecial interest and was therefore a bona de purchaser for value without notice. 36. As regards the nature and legal eect of the alleged trust, the appellants contended that the suit property had devolved through Succession Cause No. 62 of 2009 subject to a trust in favour of the sons and grandsons of the 1st respondent. Their case was that the trust created benecial interests in the family which restricted the 1st respondent’s ability to dispose of the property unilaterally. They further maintained that those interests were customary and overriding in nature and therefore continued to bind the suit property notwithstanding the absence of an express entry upon the register. 37. The 1st respondent, on the other hand, relied upon his position as the registered proprietor. His contention was, in substance, that registration vested in him the legal title and the capacity to deal with his registered share of the property. The appellants’ assertion of a family interest, according to that position, did not derogate from his registered proprietorship in circumstances where no restriction, caution or other protective entry had been placed on the register. 38. The trial court recognised that the succession proceedings contained a restriction that the relevant share had been transmitted to the 1st Respondent “in trust for his sons and grandsons.” The court nevertheless distinguished between the existence of a benecial or family arrangement and the legal eect of the registered title as against a third party dealing with the registered proprietor. We dare reiterate that the 1st appellant’s role was limited to moral obligations of a concerned mother, but she had no legal standing to le the suit – we are thus in agreement with the learned judge’s nding on this aspect of the appeal. 39. We note that the central distinction drawn by the trial court was between the benecial or equitable character of the alleged trust and the legal consequences of registration. The fact that the succession proceedings referred to a trust was material to the relationship between the 1st respondent and the alleged beneciaries. It did not, without more, establish that the beneciaries had caused an enforceable restriction or other protective interest to be entered against the title so as to give notice to subsequent purchasers. 40. The evidence, as summarized by the trial court, and herein also considered, did not establish that the alleged trust was protected on the register by a caution, restriction or comparable entry before the transaction in favour of the 2nd respondent. The consequence was that, although the family members might have asserted benecial rights as against the 1st respondent, those rights could not, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1877/eng@2026-09-25 7

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in the circumstances found by the court, automatically be elevated into a registered impediment to a subsequent transaction with an innocent third party. 41. Accordingly, we agree with the trial court that the existence of a family or customary trust, particularly one that had not been reected by an appropriate protective entry on the register, had to be considered separately from the question whether such an interest was enforceable against a purchaser who acquired the property in reliance upon an apparently clear register. 42. As to the validity of the sale and the 2nd respondent’s status as a bona de purchaser, the appellants challenged the sale and transfer of one-third of the suit property to the 2nd Respondent. Their complaint was that the transaction had been undertaken without consultation with, or consent of, the family members who claimed benecial interests under the alleged trust. They further contended that the transaction was invalid because the 1st respondent could not lawfully dispose of suit property which was subject to the rights of the alleged beneciaries. 43. The 2nd respondent denied knowledge of any such family arrangement or benecial claim. Her position was that she was a purchaser for value and without notice. Before completing the transaction, she caused an ocial search of the suit property to be undertaken. That search disclosed the 1st respondent as the registered proprietor and did not reveal any caution, restriction, encumbrance or other entry notifying her of the appellants’ alleged interests. 44. The trial court accepted that evidence and found that the 2nd respondent had undertaken the requisite due diligence. It further found that she had paid valuable consideration and had entered into the transaction in good faith, without actual or constructive notice of the applicants’ equitable or customary claims. 45. We nd no basis, on the material before us, to disturb that conclusion. The question is not merely whether the appellants had a family claim to the property, but whether that claim was such as to invalidate a transaction entered into by a registered proprietor with a purchaser who had undertaken an ocial search and found no registered impediment to the disposition. 46. The trial court found that the 2nd respondent had relied upon the register as it stood at the material time. That nding is signicant. The land register did not disclose the alleged trust, nor did it contain a restriction or caution preventing the 1st respondent from dealing with the suit property. The purchaser therefore had no notice, from the register, that the 1st respondent’s registered title was subject to the particular family claims subsequently advanced by the appellants. 47. The appellants also relied upon subsequent court orders, cautions or restrictions. However, the trial court found that such measures were either not registered at the material time or were entered only after the transaction had already taken legal eect. Such subsequent entries could not retrospectively deprive an otherwise valid transaction of its legal eect. 48. It is trite that a constructive trust arises only where a common intention is shared between the parties that benecial ownership shall be divided in a particular way, and that the claimant acts to his detriment in reliance on that intention. In Lloyds Bank v Rosset [1991] 1 AC 107, (132H- 133B), Lord Bridge stated: “ In sharp contrast with this situation is the very dierent one where there is no evidence to support a nding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1877/eng@2026-09-25 8

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49. Courts must exercise caution when addressing claims of trust within intimate relationships and familial arrangements, while such relationships may involve shared living arrangements or mutual support, this does not, in itself, give rise to enforceable property rights. The court must be satised that there was a clear intention to create legal obligations capable of enforcement in rem. Reliance on third party familial association is insucient to ground a constructive or resulting trust. The courts must resist the temptation to substitute remote transactions for contract or familial arrangements (in this case between the 1st respondent and the appellants) for equitable doctrine, lest we undermine the sanctity of formal title and the protections it entails. 50. We accordingly satised uphold the trial court’s nding that the 2nd respondent was a bona de purchaser for value without notice. She acquired the property after conducting an ocial search, paid valuable consideration, and was not shown to have had actual or constructive knowledge of the alleged trust or benecial claims. In those circumstances, the absence of a registered restriction or other notice was material to the validity and enforceability of the transaction against her. 51. As to whether the appellants’ unregistered customary and benecial rights were overriding interests; the appellants’ case ultimately depended upon the proposition that their occupation, family relationship and alleged benecial rights under customary law constituted overriding interests which bound the 2nd respondent notwithstanding the state of the register. 52. We have considered that contention in light of the ndings made by the trial court. The mere existence of an alleged customary or equitable interest does not, in every circumstance, mean that such interest will defeat the title of a subsequent purchaser. The nature of the interest, the statutory framework governing registration, the circumstances of the purchaser’s acquisition, and the purchaser’s knowledge of the alleged interest are all material. 53. The trial court found that the appellants’ alleged interests were not entered upon the register and that the 2nd respondent had no notice of them when she acquired the property. The court therefore rejected the proposition that the appellants’ unregistered family claims automatically constituted overriding interests capable of defeating the 2nd respondent’s title. 54. We agree with that approach on the facts found. The appellants could not rely solely upon the existence of a family relationship or an unregistered benecial claim to impose upon an innocent purchaser a burden which was neither disclosed by the register nor otherwise brought to the purchaser’s attention. The statutory scheme governing registered land places substantial importance upon the reliability of the register and upon the protection accorded to persons who acquire registered interests in good faith and for value. 55. The fact that the appellants may have occupied the property or asserted unproven family rights did not, in the circumstances found by the trial court, establish that the 2nd respondent had notice sucient to deprive her of bona de purchaser protection. Nor did the appellants demonstrate that, at the time of the transaction, the register contained any entry which should reasonably have alerted the purchaser to the alleged trust. 56. The distinction is therefore between the existence of a possible benecial claim as between family members and its enforceability against an innocent third-party purchaser. The former does not necessarily establish the latter. 57. As regards the eect of the registered title as against the appellants, viewed cumulatively, the evidence accepted by the trial court established that the 1st respondent was the registered proprietor of the relevant interest in the suit property; that the succession proceedings, although referring to a trust https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1877/eng@2026-09-25 9

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for his sons and grandsons, did not result in a protective restriction being entered upon the register; that the 2nd respondent searched the register before purchase; that the register disclosed no caution, restriction or encumbrance aecting the proposed transaction; and that the 2nd respondent paid valuable consideration without notice of the applicants’ alleged benecial claims. 58. In those circumstances, the appellants could not successfully impeach the 2nd respondent’s title merely by demonstrating that there existed a family dispute or an unregistered trust arrangement between the 1st respondent and members of his family. 59. The registered title was therefore entitled to prevail against the appellants unregistered claims in the particular circumstances of this transaction. The law is clear, and we take it from the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows: “ It is well established that fraud must be specically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” [Emphasis added]. 60. In any case, the 1st respondent asserted, and this remained uncontroverted, that as the registered proprietor, he held full title and capacity to deal with his portion of the property, asserting the family was aware or had agreed to the sale. 61. Upon a consideration of the foregoing matters, we are satised that the trial court correctly resolved the substantive issues before it. 62. First, while the succession proceedings contained a reference to the 1st respondent holding his share in trust for his sons and grandsons, that circumstance did not, on the evidence presented before the trial court, create a registered restriction capable of being enforced against an innocent third-party purchaser who had no notice of the alleged trust. 63. Secondly, the 1st respondent was the registered proprietor at the time of the impugned transaction, and the 2nd respondent relied upon the register after conducting an ocial search which disclosed no adverse interest, caution, restriction or encumbrance. 64. Thirdly, the 2nd respondent paid valuable consideration and was found to have acted in good faith and without actual or constructive notice of the appellants’ alleged customary or equitable interests. She therefore acquired the protection accorded to a bona de purchaser for value without notice. 65. Fourthly, the appellants’ unregistered family and customary claims, in the circumstances established before the trial court, did not constitute overriding interests capable of defeating the 2nd respondent’s acquired title. 66. The challenge to the sale and transfer of the one-third share of the suit property therefore fails. The transaction in favour of the 2nd respondent was valid and binding, and there was no proper basis for the court to cancel or invalidate her title on account of the appellants. 67. In the circumstances, we come to the conclusion that the Originating Summons was consequently properly dismissed in its entirety. The transfer of the one-third share of the suit property to the 2nd respondent remains valid and legally eective. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1877/eng@2026-09-25 10

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68. As regards costs, the trial court exercised its discretion having regard to the close familial relationship between the parties. In the absence of a demonstrated misdirection, improper consideration or other basis for interference with that discretion, the order on costs was properly left to the court’s discretion in the circumstances of the dispute. 69. Accordingly, the appeal fails, we proceed to dismiss it with no orders as to costs in light of the familial relationship between the parties herein. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ....................................... JUDGE OF APPEAL H. A. OMONDI ....................................... JUDGE OF APPEAL L. KIMARU ....................................... 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/2026/1877/eng@2026-09-25 11

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