Robert Adera Opiyo & Another v Roseline Amondi Otieno

declarations that the deceased's estate remained the lawful Page 2 of 33

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proprietor of the suit property; that the proceedings and award made by Rongo District Land Disputes Tribunal (Awendo Division), the adoption thereof by the Principal Magistrate's Court at Rongo and the resultant decree were unlawful, null and void; order of cancellation of the subdivision of the suit property into land Parcel Nos. South Sakwa/Alego/901 and 902; rectification of the land register to restore the original title in the deceased's name; a permanent injunction restraining the respondent from dealing with the suit property; and costs of the suit. 2. The appellants’ case was that Jethro Opiyo Chiewu became the registered proprietor of the suit property on 17th July, 1979, having acquired it as a gift from Paul Olwal, who was also deceased. They averred that upon the death of Jethro Opiyo, his estate remained in exclusive possession and occupation of the entire suit property. 3. According to the appellants, the dispute over the suit property dated back to 1992, when the respondent instituted Nakuru Page 3 of 33

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High Court Civil Case No. 772 of 1992 against Jethro Opiyo, contending that the suit property had been illegally and fraudulently transferred to him, and sought orders reverting the ownership of the suit property to the estate of Paul Olwal. The appellants averred that the said suit was never heard on its merits, as it was dismissed on 14 th September, 1994, due to non-attendance of the parties. 4. The appellants further asserted that, notwithstanding the dismissal of the 1992 suit, the respondent revived her claim in 2010 by filing proceedings before the Rongo District Land Disputes Tribunal (Awendo Division). Before the Tribunal, the respondent allegedly claimed a beneficial interest in the suit property on the basis that it constituted ancestral land belonging to her grandfather, Paul Olwal. On 6th July, 2010, the Tribunal determined the dispute in favour of the respondent and awarded her 15.5 acres of the suit property. 5. The appellants averred that the 1st appellant attempted to challenge the Tribunal’s decision by seeking leave to commence Page 4 of 33

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judicial review proceedings in Kisii High Court Miscellaneous Application No. 71 of 2010, but the application was declined. Thereafter, the Tribunal's award was filed before the Principal Magistrate's Court at Rongo in Land Miscellaneous Application No. 19 of 2010, where it was adopted as the judgment of the court. A decree was issued on 14th March, 2012. They further stated that the decree was subsequently executed, resulting in the subdivision of the suit property into Land Parcel No. South Sakwa/Alego/901 and South Sakwa/Alego/902, with parcel number 901 being registered in the respondent's name on 21st November, 2012, and parcel number 902 being registered to Jane Onyango, a daughter-in- law of Jethro Opiyo. 6. It was the appellants' case that the Tribunal acted without jurisdiction. They contended that under the Land Disputes Tribunals Act (now repealed), the Tribunal had no mandate to determine ownership of registered land, cancel or rectify Page 5 of 33

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title, order subdivision of registered land or adjudicate upon Page 6 of 33

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beneficial interests in registered property. They further pleaded that the respondent's claim was, in any event, statute-barred under the Limitation of Actions Act, and that the proceedings before the Tribunal, the subsequent adoption of its award by the Principal Magistrate's Court, the decree issued pursuant thereto and all actions taken in execution thereof were therefore nullities. 7. The appellants also contended that the respondent unlawfully procured registration of Land Parcel No. South Sakwa/Alego/901 through an invalid process, thereby depriving the deceased's estate of approximately 6.2 hectares of land. They maintained that the subdivision of the suit property and the resultant registration offended both the applicable land laws and the Constitution regarding protection of private ownership of property. Consequently, they sought the cancellation of the subdivision, revocation of titles of Land Parcel No. South Sakwa/Alego/901 and 902, restoration of the Page 7 of 33

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original title of Land Parcel No. South Sakwa/Alego/148 in the Page 8 of 33

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deceased's name, a permanent injunction restraining the respondent from entering upon, occupying, cultivating or otherwise interfering with the suit property, together with costs of the suit. 8. The respondent, in response, filed a statement of defence and counterclaim dated 16th December, 2013. In her statement of defence, the respondent denied the appellants' claim and maintained that the suit property had been fraudulently transferred to the late Jethro Opiyo Chiewu. It was her case that the land belonged to the estate of her late grandfather, Paul Olwal, and that she was entitled to a beneficial interest therein as one of the beneficiaries of the estate. She averred that it was on that basis that she lodged a claim before the Rongo District Land Disputes Tribunal in 2010 seeking recognition of her interest in the suit property. 9. The respondent denied the assertion that the Tribunal lacked jurisdiction or that the subdivision of the suit property was unlawful. It was her case that the appellants actively Page 9 of 33

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participated in both the Tribunal proceedings and the proceedings before the Principal Magistrate's Court. She further stated that the appellants had unsuccessfully sought leave to commence judicial review proceedings in Kisii High Court Miscellaneous Application No. 71 of 2010, and that they had also obtained interim orders staying execution, which were subsequently vacated. According to the respondent, the present suit constituted an abuse of the court process, was res judicata by reason of the judicial review proceedings, and ought not to be entertained. 10. By way of counterclaim, the respondent sought a declaration affirming her ownership of land parcel No. South Sakwa/Alego/901, measuring 6.29 Ha; injunctive orders restraining the appellants, their servants or agents from entering, remaining upon or interfering with the suit property; an order directing the appellants to give her vacant possession of the counterclaim; and such further Page 10 of 33 said land; costs of the

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relief as the court deemed fit. Page 11 of 33

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11. The case was heard by way of viva voce evidence. PW1, Robert Adera Opiyo, the 1st appellant, adopted his witness statement and reiterated the averments contained in the amended plaint. He testified that he and Teresia Achieng Opiyo (2nd appellant) were the duly appointed administrators of the estate of the deceased, Jethro Opiyo Chiewu, and produced in evidence the grant of letters of administration and certificate of confirmation of grant. 12. The 1st appellant asserted that the proceedings before the Rongo Land Disputes Tribunal were not instituted against the deceased or his estate. Rather, the dispute was between the respondent and Jane Adhiambo Onyango, who was neither a beneficiary nor a representative of the deceased's estate. He maintained that the appellants, as administrators of the deceased's estate, were never joined as parties, served with the proceedings, or afforded an opportunity to be heard, despite the Tribunal determining ownership of land registered in the Page 12 of 33

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deceased's name. He further testified that the estate was never Page 13 of 33

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required to surrender the original title deed before the suit property was subdivided and new titles issued. He stated that although he appeared before the Tribunal as a witness and informed it that the suit property belonged to the deceased, the Tribunal proceeded to make an award affecting the deceased's registered land. He also stated that the respondent had previously filed a suit against the deceased in the High Court at Nakuru over the same property, which was dismissed for non- attendance. It was his evidence that the Tribunal lacked jurisdiction to determine ownership of the suit property, and he urged the court to nullify the Tribunal's award, the decree adopting it, the resultant subdivisions and registrations, and to restore the suit property to the name of the deceased. 13. Upon cross-examination, the 1st appellant admitted that he had never occupied the suit property. He testified that the suit property originally belonged to the respondent's grandfather, Paul Olwal, who gifted it to his father, Jethro Page 14 of 33

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Opiyo Chiewu. Although he stated that Paul Olwal was his relative, he was Page 15 of 33

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unable to explain the nature of that relationship. He further admitted that Jethro was not buried on the suit property, whereas Paul Olwal and his wife were both interred there. He also testified that his brother, Simeon Onyango, settled on the suit property in 1997 and was subsequently buried there. The 1st appellant acknowledged that both appellants testified as witnesses before the Rongo Land Disputes Tribunal. He, however, denied the respondent's assertion that Jethro had been registered merely as a caretaker of the suit property, maintaining that his father was the lawful registered proprietor of the suit property. 14. The respondent gave evidence as DW1. She adopted her witness statement and reiterated the averments contained in her defence and counterclaim. She testified that the suit property, originally belonged to her grandfather, Paul Olwal, and that the 1st appellant’s father, Jethro Opiyo Chiewu, had been registered as proprietor pursuant to a transfer dated 22nd May, Page 16 of 33

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1979. She challenged the validity of the transfer, contending Page 17 of 33

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that Paul Olwal could not have executed the transfer documents as alleged because he was elderly, illiterate and incapable of signing the documents. It was her evidence that the 1st appellant’s father was not gifted the suit property but was merely registered as a caretaker on behalf of her grandfather. 15. The respondent testified that her grandfather, grandmother and mother were all buried on the suit property and that the land had remained ancestral family land. She stated that she and her family had continuously occupied the property, and that Jethro Opiyo brought his son, Onyango, to reside on the suit property in 1997, an event that led to the start of the dispute. She consequently lodged a claim before the Awendo Land Disputes Tribunal seeking determination of the dispute. According to her, the Tribunal heard the parties and awarded her 15.5 acres of the suit property while awarding Jane Adhiambo Onyango 4 acres, after finding that Jane had also Page 18 of 33

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settled on part of the land. Jane was said to be the daughter– in-law of Jethro Opiyo. 16. The respondent further testified that the appellants challenged the Tribunal's award by filing Judicial Review proceedings before the High Court at Kisii, but the application was dismissed. Following the dismissal, the Tribunal's award was implemented and the original parcel was subdivided into Land Parcel No. South Sakwa/Alego/901 and South Sakwa/Alego/902, with parcel No. 901 being registered in her name. She stated that although the appellants had previously lodged a caution against the land, it was removed, and thus enabled her to obtain title. She maintained that the appellants subsequently prevented her from accessing her portion of the land. She urged the trial court to uphold her title, dismiss the appellants' claim, and order the appellants to vacate the portion of land awarded to her, maintaining that the suit property had always belonged to her grandfather, and that the impugned Page 19 of 33

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transfer to Jethro Opiyo Chiewu was fraudulent and invalid. Page 20 of 33

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17. DW2, Samuel Otucha, adopted his witness statement dated 16th December, 2013. He testified that he was a close relative of the respondent's family and was well acquainted with the ownership history of the suit property. He stated that the suit property belonged to his uncle, the late Paul Olwal, who acquired title to it in 1967. Following the death of his only son, Caleb Otieno Olwal, Paul temporarily permitted three families: those of Joseph Ojiua; John Oliech; and Gabriel Oyugi; to occupy portions of the suit property due to security concerns between 1975 and 1979. According to DW2, after the security situation normalized, Paulo requested the three families to vacate the suit property because he intended it to be inherited by his late son's widow, Miriam Awuor, and her daughters. He maintained that Jethro Opiyo Chiewu did not at any time reside on the suit property. 18. DW2 further testified that, owing to his advanced age and concern that the suit property might fall into the wrong Page 21 of 33

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hands after his death, Paulo entrusted the original title deed to Jethro Page 22 of 33

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Opiyo for safekeeping only, with the understanding that it would eventually be handed over to Miriam Awuor and her daughters. He maintained that Paulo never intended to transfer ownership of the suit property to Jethro. It was his evidence that Paulo and his family continued living on the suit property after the alleged transfer. Paulo, and later his wife and other members of the family were buried there. DW2 questioned how Jethro could claim ownership while permitting Paulo's family to remain on the land and be buried there if the transfer had genuinely been intended to vest ownership on him. He maintained that the transfer to Jethro was fraudulent and urged the court to uphold the respondent's claim as prayed in her counterclaim. 19. DW3, Erick Ochieng, also adopted his witness statement as his evidence before the trial court. It was his evidence that the suit property originally belonged to his grandfather Paul Olwal, and that he only gave the title deed to Jethro Opiyo for safe Page 23 of 33

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keeping and not with a view to transferring the land to him. Page 24 of 33

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20. After hearing the parties, Mutungi J., in a judgment dated 20th March, 2019, entered judgment in favour of the respondent. The learned Judge found that the evidence established that the suit property originally belonged to the respondent's grandfather, Paul Olwal, and constituted ancestral family land. The court further held that the transfer of the suit property to Jethro Opiyo Chiewu failed to take into account the respondent's and her siblings' overriding interests in the property. Consequently, the learned Judge dismissed the appellants' suit, allowed the respondent's counterclaim, and granted the reliefs sought therein. 21. Aggrieved by the judgment, the appellants lodged the present appeal raising twelve grounds of appeal in their memorandum of appeal dated 6th December, 2019. In summary, the appellants contend that the learned Judge erred by: finding that Jethro Opiyo Chiewu fraudulently acquired the suit property notwithstanding the provisions of the Limitation of Actions Page 25 of 33

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Act; finding that fraud had been established despite the Page 26 of 33

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respondent neither pleading nor particularizing the alleged fraud, and in the absence of sufficient evidence; holding that Jethro Opiyo held the suit property in trust for the family of Paul Olwal without any evidential basis; failing to find that the Land Disputes Tribunal lacked jurisdiction to determine a dispute relating to ownership and title to the suit property, thereby rendering its award a nullity; erroneously holding that the court lacked jurisdiction to interrogate the validity of the Tribunal's award; determining the dispute on the basis of overriding interests and trust, which had neither been pleaded nor proved, and holding that such overriding interests defeated the appellants' registered title; and, finally, failing to properly evaluate and analyze the evidence on record, thereby arriving at an erroneous decision. 22. The appeal was heard by way of written submissions which were highlighted during plenary hearing of the appeal. Mr. Mulisa, learned counsel for the appellants, submitted that the Page 27 of 33

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learned Judge erred by upholding the respondent's Page 28 of 33

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counterclaim, which was founded on allegations of fraud that were statute-barred under the Limitation of Actions Act. Counsel argued that the respondent had first challenged the deceased's title in Nakuru H.C.C.C. No. 702 of 1992, which was dismissed for non-attendance, and that the counterclaim filed over two decades later could not revive a time-barred claim. He further contended that fraud was neither properly pleaded nor strictly proved, as required by law, and that the learned Judge relied on assumptions rather than cogent evidence in concluding that the transfer of the suit property to Jethro Opiyo Chiewu was fraudulent. 23. Counsel submitted that the respondent and her family had admitted before the Land Disputes Tribunal that they had been dispossessed of the suit property and rendered homeless, demonstrating that the appellants had asserted their rights and taken possession of the land. He therefore argued that the learned Judge erred in finding that the appellants had not Page 29 of 33

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attempted to evict the respondent's family from the suit Page 30 of 33

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property. Counsel urged that the learned Judge erred in holding that the deceased held the suit property in trust for the respondent's family, yet trust had neither been pleaded nor proved in the respondent's defence and counterclaim. 24. On the proceedings before the Rongo Land Disputes Tribunal, counsel maintained that the Tribunal lacked jurisdiction to determine questions of ownership, title and fraud relating to the suit property, as its jurisdiction under Section 3 of the repealed Land Disputes Tribunals Act was confined to disputes concerning boundaries, occupation and trespass. He asserted that the Tribunal's proceedings and award were therefore a nullity and incapable of conferring any legal rights, and that the learned Judge erred by according validity to a decision rendered without jurisdiction. He urged the Court to allow the appeal, set aside the judgment of the High Court, dismiss the respondent's counterclaim, and grant the reliefs sought in the appellants' suit. Page 31 of 33

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25. Opposing the appeal, Mr. Osur, learned counsel for the respondent, submitted that the learned Judge properly evaluated the evidence and correctly concluded that the suit property originally belonged to the respondent's grandfather, Paul Olwal, and constituted ancestral family land. Counsel argued that the evidence demonstrated that the respondent's family had continuously occupied the suit property, where their ancestral home stood and where several members of the family, including Paul Olwal, his wife and son, were buried. He stated that the appellants neither resided on nor occupied the suit property until 1997, when Jane Adhiambo Onyango was settled there by the appellants. 26. Counsel further submitted that the transfer of the suit property to Jethro Opiyo Chiewu was fraudulent, maintaining that Paul Olwal, who was elderly and illiterate, could neither read nor write and therefore could not have executed the impugned transfer documents. He argued that Page 32 of 33

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the surrounding circumstances, including the continued occupation of the land Page 33 of 33

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by Paul Olwal and his family after the purported transfer, disproved the appellants' assertion that the land had been gifted to Jethro. He further submitted that Jethro merely held the title for the benefit of Paul Olwal's family and could not assert absolute ownership once the beneficiaries attained the age of majority. 27. On the proceedings before the Rongo Land Disputes Tribunal, counsel submitted that the dispute before the Tribunal concerned trespass and occupation, the respondent having sought the eviction of Jane Adhiambo Onyango from the suit property. He argued that the Tribunal therefore acted within the jurisdiction conferred by Section 3 of the repealed Land Disputes Tribunals Act. Counsel further submitted that the appellants actively participated in the Tribunal proceedings as witnesses without disclosing that they were administrators of Jethro's estate or raising any objection to the Tribunal's jurisdiction, and were therefore estopped from challenging its Page 34 of 33

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jurisdiction only after the award had gone against them. Page 35 of 33

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28. Counsel urged that the present suit was incompetent and constituted an abuse of the court process, as it was, in substance, an attempt to challenge the decision made in the Judicial Review proceedings before the High Court at Kisii by filing a fresh declaratory suit before a court of concurrent jurisdiction. He maintained that the earlier Nakuru suit lodged by the respondent was dismissed for non-attendance and was never determined on its merits and, therefore, did not bar the respondent from raising the issue in her defence and counterclaim. He also argued that the appellants had failed to enjoin as parties the Tribunal, the adopting court, the Land Registrar and the Attorney General, notwithstanding that the reliefs sought directly impugned their decisions and actions. 29. Lastly, counsel submitted that the respondent's counterclaim was properly before the court and was not statute barred, as it was raised in response to the appellants' suit and sought to vindicate the respondent's Page 36 of 33

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beneficial interest in the suit property. He urged the Court to dismiss the appeal with costs. Page 37 of 33

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30. This being a first appeal, it is the duty of this Court to analyze and re-assess the evidence on record and reach its own conclusions. This duty was reiterated by this court in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, where the court observed thus; “An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” See Selle v. Associated Motor Boat Co. [1968] EA 123. 31. We have carefully considered the record of appeal, the grounds of appeal and the rival parties' submissions. The gravamen of the appellants' complaint is that the learned Judge erred in finding that the suit property was held by the late Jethro Opiyo Chiewu for the benefit of the family of Paul Olwal and that the respondent's beneficial interest superseded the deceased's registered title. The appellants Page 38 of 33

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further contend that the respondent's counterclaim was statute-barred, that fraud was Page 39 of 33

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neither pleaded nor proved, that trust and overriding interests were neither pleaded nor established, and that the proceedings before the Land Disputes Tribunal were a nullity for want of jurisdiction. 32. At the outset, we find it important to point out that it is not disputed that the suit property originally belonged to Paul Olwal, the respondent’s grandfather. Indeed, the 1st appellant candidly admitted during cross-examination that the suit property initially belonged to Paul Olwal before it was registered in the name of his father, Jethro Opiyo Chiewu, on 17th July, 1979. The only point of divergence between the parties concerns the legal effect of that registration. Whereas the appellants maintained that Paul Olwal absolutely gifted the land to Jethro Opiyo, the respondent asserted that the registration was merely intended to safeguard the property for the benefit of Paul Olwal's family. 33. It is our considered view that the evidence on record overwhelmingly support the latter version. We say so because if indeed Paul Olwal had intended to permanently divest himself of ownership of the suit property by gifting it to Jethro Opiyo in 1979, one would reasonably expect Mr. Opiyo to immediately assume the ordinary incidents of Page 40 of 33

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ownership, including Page 41 of 33

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possession, occupation and exclusive control of the land. The evidence, however, demonstrates precisely the opposite. 34. The uncontroverted evidence on record was that following the registration of the suit property in favour of Mr. Opiyo, Paul Olwal continued residing on the suit property until his death in 1981. More significantly, he was buried on the very land which the appellants insist he had irrevocably given away as a gift two years earlier. The respondent’s mother likewise continued residing on the suit property until her death in 1983 and was equally buried there. The 1 st appellant himself admitted that Jethro was never buried on the suit property, whereas Paul Olwal and his wife were. He equally admitted that he had never occupied the land and that it was only in 1997, almost eighteen years after Jethro became the registered proprietor, that Jethro settled his son, Simeon Onyango, in the suit property. 35. We are satisfied that this conduct was wholly irreconcilable with the appellants' assertion that the suit property had been absolutely gifted to Jethro. We agree with the finding of the learned Judge that it is inconceivable that a person who had acquired absolute ownership of a parcel of land would Page 42 of 33

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permit the donor and his entire family to continue occupying it indefinitely, allow them to establish and maintain their Page 43 of 33

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homestead thereon, permit the donor, his spouse and children to be interred upon it, and refrain from asserting any possessory prolonged absolute rights for acquiescence ownership but nearly is two entirely entirely decades. Such inconsistent with consistent with the respondent's assertion that Jethro merely held the legal title while the beneficial interest remained with Paul Olwal's family. 36. The appellants further contended that the learned Judge erred in holding that the respondent and her siblings enjoyed an overriding interest over the suit property, and that Jethro Opiyo held the suit property in trust, despite those matters not having been specifically pleaded. We note that the respondent pleaded that the suit property was ancestral land belonging to her grandfather, that Jethro Opiyo’s registration was merely as a caretaker, that her family continuously occupied the suit property, and that she possessed a beneficial interest therein. Those averments, in our view, substantially notwithstanding the raised absence of the issue of trust, the express phrase "customary trust”. We find that the learned Judge was entitled to determine all questions that naturally arose from the pleaded facts and evidence adduced at trial. Page 44 of 33

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37. It is further our finding that the evidence on record established every hallmark of a customary trust. The guiding principles on customary trust were succinctly set out by the Supreme Court in Kiebia v M’lintari & Another [2018] KESC 22 (KLR), where the Court held that for customary trust to be established, the claimant must demonstrate, inter alia: that the land was before registration family, clan or group land; that the claimant belongs to such family, clan or group; that the relationship between the claimant and the registered proprietor is such that the latter is reasonably expected to hold the land for the benefit of the former; and that the claim is directed against the registered proprietor who is a member of the family, clan or group. 38. In the present case, the suit property was originally owned by Paul Olwal, the respondent’s grandfather. He settled his family thereon, including his son, Caleb Otieno, who was the respondent’s father. Paul Olwal, his wife as well as the respondent’s parents were all buried on the suit property. The respondent's family remained in occupation of the suit property even after registration in favour of the 1 st appellant’s father. Their homesteads remained on the suit property until 1997 when they were demolished by Jethro Page 45 of 33

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Opiyo’s son, one Page 46 of 33

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Onyango. Further, the evidence of DW2 and DW3 consistently explained that the title to the suit property had merely been entrusted to Jethro for safekeeping because of Paul Olwal's advanced age. There is no question in our minds that the suit property was indeed ancestral land. 39. Even assuming there was certainty as to the circumstances surrounding the transfer of the suit property to the 1 st appellant’s father, the respondent's family occupation, as well as the fact that the suit property was family land, constituted an overriding interest recognized by the law. The suit property Registered became Land Act. registered Section under 28 the and 30 repealed thereof expressly recognize, as overriding interests not requiring noting on the register, trusts, as well as the rights of persons in actual occupation of land. Consequently, the transfer of the suit property to Jethro Opiyo did not extinguish the rights of beneficiaries who remained in possession and occupation. Those equitable rights bound the registered proprietor notwithstanding the absence of any entry on the register. 40. The Supreme Court in Kiebia v M’lintari(supra) further expressed itself as follows with respect to overriding interest under the repealed Registered Land Act: Page 47 of 33

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“Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.” 41. The same principle has been preserved under the Land Registration Act which repealed the Registered Land Act. Section 28 expressly recognizes customary trusts as overriding interests that subsist even without formal registration. Registration therefore confers legal title but Page 48 of 33

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does not necessarily extinguish beneficial interests arising under customary law. Accordingly, learned Judge’s finding that Page 49 of 33 we agree with the

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Jethro Opiyo’s title was subject to the respondent's overriding beneficial interest. 42. The appellants further faulted the learned Judge for allegedly determining the dispute on the basis of fraud when fraud had neither been sufficiently pleaded nor strictly proved and was in any event statute-barred. That argument, with respect, proceeds from an erroneous appreciation of the impugned judgment. While allegations touching on the propriety of the transfer featured in the evidence, the learned Judge did not determine the dispute solely upon a finding of fraud. Rather, the learned Judge’s ultimate conclusion rested upon the respondent's beneficial interest in the land arising from its ancestral character, the continuous occupation by Paul Olwal's family, and Jethro Opiyo’s position as holder of the legal title subject to those equitable interests. 43. Equally unpersuasive is the appellants' contention that the respondent's counterclaim was barred by the Limitations of Actions Act. The respondent did not institute the present proceedings seeking to recover land from the appellants. Rather, she raised her defence and counterclaim in answer to the appellants' suit after title had already been issued to Page 50 of 33

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her pursuant to adoption by the Court and implementation of the Page 51 of 33

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Tribunal award. Her counterclaim principally sought affirmation of her proprietary rights in answer to the appellants’ claim. 44. The appellants have further faulted the learned Judge for failing to find that the Rongo Land Disputes Tribunal lacked jurisdiction to entertain a dispute touching on ownership and title to registered land. They contended that the Tribunal's proceedings and award were therefore null and void, and incapable of conferring any legal rights upon the respondent. We are, however, unable to agree that the issue of the Tribunal's jurisdiction is dispositive of the present appeal. In any event, the issue regarding the registration of the respondent as the owner of the suit property pursuant to the adoption of the decision of the Land Dispute Tribunal by the Rongo Magistrate’s Court was determined by the High Court sitting at Kisii. The High Court dismissed the Judicial Review application that had been filed by the appellants. They did not appeal against the said decision. The issues determined in the said decision are thus res judicata. It cannot be raised in another suit or relitigated as the appellants are attempting to do here. 45. Further, the impugned judgment was not founded solely Page 52 of 33

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upon the proceedings or findings of the Tribunal. The learned Judge Page 53 of 33

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conducted a full consideration of the oral and documentary evidence tendered, independently evaluated that evidence, and arrived at his own conclusions regarding the nature of the suit property and the parties' respective interests therein. 46. The learned Judge found, on the basis of the evidence adduced before him, that the suit property originally belonged to Paul Olwal and that it constituted ancestral family land, notwithstanding the registration of the suit property in the name of Jethro Opiyo Chiewu; and that the respondent and her siblings possessed overriding beneficial interests in the property which the deceased's registration did not extinguish. Those findings were reached after an independent evaluation of the evidence and were not merely an affirmation of the Tribunal's decision. Indeed, as we have already observed, the evidence on record overwhelmingly supported the existence of a customary trust. 47. Accordingly, even assuming, without deciding, that there were jurisdictional shortcomings in the proceedings before the Tribunal, such shortcomings would not, in the peculiar circumstances of this case, warrant interference with the judgment appealed from. The learned Judge's determination rests on his own independent findings of fact and law, Page 54 of 33

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particularly his finding that the respondent had established a customary trust and overriding beneficial interests in the suit property. We find no basis for disturbing those findings. 48. The appellants further relied on the dismissal of Nakuru HCCC No. 772 of 1992 as barring the respondent from the issues which were determined in the counterclaim. We find no merit in that assertion. The record is clear that the respondent’s suit before the High Court at Nakuru was dismissed for non- attendance and was never determined on its merits. Such dismissal did not determine the substantive rights of the parties and therefore neither extinguished the respondent's beneficial interest nor precluded her from raising it by way of defence and counterclaim in the present proceedings. 49. From the foregoing, and upon our own independent reevaluation of the entire record, we are satisfied that the learned Judge properly appreciated both the evidence and the applicable law. The respondent sufficiently established that the suit property was ancestral land originally belonging to her grandfather; that her family remained in occupation notwithstanding Jethro Opiyo's registration in 1979; that Jethro never asserted exclusive ownership during the Page 55 of 33

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lifetime of Paul Olwal or his widow, both of whom were buried on the Page 56 of 33

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suit property; and that it was only in 1997 that he attempted to settle his own family on part of the land. Those facts overwhelmingly support the conclusion that the deceased's registered title remained subject to the respondent's overriding beneficial interest arising under customary trust. In any event, the respondent's title pursuant to that determination has already been registered. She has the title to the suit property. We therefore discern no basis upon which this Court can interfere with the findings of the learned Judge. 50. Accordingly, all the grounds of appeal fail. The appeal is dismissed with costs to the respondent. Dated and delivered at Kisumu this 25th day of September, 2026. H.A. OMONDI .......................... .... JUDGE OF APPEAL L. KIMARU .......................... . JUDGE OF APPEAL JOEL NGUGI .......................... .... JUDGE OF APPEAL Page 57 of 33

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I certify that this is a true copy of original. Signed DEPUTY REGISTRAR. Page 58 of 33

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