John Ambili Ouya & 4 others v Pioneer General Assurance Co. Ltd & 2 others

of land known as Land Parcel No. Kisumu/Konya/2238 (suit property) and the subsequent transfer of the same to the 3rd Page 2 of 18

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respondent was fraudulent, illegal, null and void. The appellants further prayed for an order of permanent injunction to restrain the 1st and 3rd respondents, by themselves, their servants or agents from interfering with the suit property or disposing the same to third parties. The appellants prayed that the 2nd respondent be directed to cancel the registration of the 1 st respondent as the proprietor of the suit property as of 14th March, 1991 and the transfer and registration of the 3 rd respondent as the proprietor of the suit property as of 21st February, 2012 and a further order rectifying the register to reflect the status quo as it existed before 14th March, 1991. The appellants’ further prayed for an order of costs of the suit. 2. The 1st respondent filed a defence denying the allegations made against it in the plaint by the appellants. It denied that it had acquired the suit property by fraud or by committing act of illegality. It stated that it lawfully purchased the suit property in its entirety from the registered proprietor measuring 4.04 hectares. The suit property was then registered as Land Parcel No. Kajulu/Konya/2338. The suit property was subsequently registered as Land Parcel Page 3 of 18

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No. Kisumu/Konya/2228. It Page 4 of 18

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averred that subsequently thereafter, the 1st appellant (Ouya Onguka) complained that he had been shortchanged and that the actual parcel of land sold measured 3.6 Hectares instead of 4.04 Hectares. It denied the assertion by the appellants that the suit property was subsequently sold to the 4 th and 5th appellants. It reiterated that it lawfully purchased the suit property, completed the conveyance process, and was subsequently issued with the title in respect of the suit property. It insisted that if there was any defect in the acquisition of the title by the previous owner, it was not bound by it as it was an innocent purchaser for value without notice. 3. The 1st respondent filed a counterclaim in which it averred that it had lawfully purchased the suit property from the 1st, 2nd and 3rd appellants and duly paid the agreed purchase consideration of Kshs.302,500/= for 10 acres of land. The 1st respondent averred that when the suit property was surveyed, it was discovered that the same measured 3.6 Hectares or 8.9 acres instead of the represented acreage of 10 acres. In the circumstances therefore, it asked the Court Page 5 of 18

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to order the 1st, 2nd Page 6 of 18

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and 3rd appellants to refund the sum of Kshs.33,275/- being the amount that it had overpaid for the land. 4. The appellants filed a defence to the counterclaim by which they denied the 1st respondent claim. They urged the Court to dismiss the counterclaim with costs. 5. When the appellants filed the further amended plaint, the 1st respondent did not file a response to the same. 6. The 3rd respondent filed a defence to the further amended plaint. It denied that allegations made against it by the appellants. In particular, it denied the averment that it had procured its registration as proprietor of the suit property by fraud or pursuant to an illegality. It maintained that it was a bona fide purchaser for value of the suit property without notice of the appellants’ claim. In particular, it denied the particulars of illegality, fraud and mala fides pleaded. It reiterated that it was a stranger to the allegations made by the appellants in the further amended plaint. The 3 rd respondent averred that the process leading to its registration as the proprietor of the suit property was legal and above board. It prayed that the appellants suit be dismissed with costs. Page 7 of 18

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7. It is imperative to point out that three of the original plaintiffs in the suit before the High Court which was later transferred to the Environment and Land Court (ELC) died during the pendency of the suit. They were substituted by their personal representatives the 1st appellant, the 2nd appellant and the 5th appellant. 8. The ELC heard Viva Voce evidence adduced by the parties to the suit. It also considered the written submissions filed by counsel for the parties herein. In its judgment, the ELC held that the 1st respondent was a bona fide purchaser of the suit parcel of land without notice of any fraud as alleged by the appellants. The trial court further held that there was no evidence to support the appellants claim that they had sold the suit property to the 4 th and 5th appellants. The court noted that: “Even if they did so then they must have been sold land that either did not exist or had already been sold to the 1st defendant. Their remedy lies with the 1st, 2nd and 3rd plaintiffs (current appellants) to show them the land that was sold to them or a refund of the money paid as purchase price.” 9. The ELC further held that the 3rd respondent lawfully purchased the suit property Page 8 of 18 from the 1st respondent

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without Page 9 of 18

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any notice of how the 1 st defendant had acquired the title. The ELC found that the appellants failed to prove fraud as alleged in the plaint. The court had this to say: “Fraud must be specifically pleaded and proved on no mere regurgitation of allegations can suffice in a case where a party is accusing another of fraud. The plaintiffs did not endeavor to prove the allegation of fraud on the part of the defendants. I find that this claim must fail as litigation must come to an end at some point.” 10.The trial court dismissed the 1st respondent’s counterclaim for lack of merit. The appellants’ suit was dismissed with costs to the 1st and 3rd respondents. 11.The appellants were aggrieved by the decision. They lodged an appeal to this Court raising nine grounds of appeal. The said grounds of appeal may be summarized thus: they faulted the ELC for holding that that was a valid and lawful transaction for sale of the suit property which the appellants disputed. They were aggrieved by the finding made by the trial court that the 1st respondent was a bona fide purchaser. They faulted the ELC for failing to find that the alleged agreement between the appellants and the 1st respondent lacked authenticity. There was no evidence that Page 10 of 18

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the terms of the agreement were complied Page 11 of 18

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with or that the purchase consideration was paid. The appellants were aggrieved that the trial court upheld the sale of the suit property in the absence of proof that the Land Control Board issued consent. The appellants took issue with the ELC’s finding that the transfer of the suit property to the 1st respondent was lawful, regular and above board yet the proceedings of the Land Dispute Tribunal and the appellants’ submission gave a contrary picture. The appellants were aggrieved that the trial Court failed to uphold their assertion that the transfer of the suit property to the 2nd respondent by the 1st appellant was tainted with illegality, fraud, want of consideration and a scheme to defeat the court process and the ends of justice. The appellants complained that the decision was made against the weight of evidence that was adduced during trial. In the premises therefore, the appellants urged the Court to set aside the verdict of the ELC and substitute it with a finding in their favour as prayed in the amended plaint. 12.Prior to the plenary hearing of the appeal, the appellants and the 1st respondent filed written submission in support of their respective opposing positions. During the plenary Page 12 of 18

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hearing of Page 13 of 18

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the appeal, this Court further heard oral rival submissions made by Mr. Otieno learned counsel for the appellants, Mr. Yogo learned counsel for the 1 st respondent and Mr. PD Onyango, learned counsel for the 2nd respondent. Mr. Otieno submitted that the 1st to 3rd appellants were the owners of the suit property. They entered into an agreement to sell it to the 1st respondent without consent of the Land Control Board being obtained. The 1st respondent did not pay the balance of the purchase consideration. The 1st respondent transferred the suit property to the 2 nd respondent during the pendency of the suit. Learned counsel submitted that the issue of non-payment of the balance of the purchase consideration was material for this Court to determine whether there was a valid agreement. He pointed out that the agreement that the 1 st respondent relied on during the trial before the ELC was not the one that the 1st to 3rd appellants signed with the 1st respondent. He took issue with the finding by the ELC that in order to establish the authenticity of the agreement, the appellants ought to have called Mr. Kasamani Advocate to testify on their behalf. He reiterated that the appellants were not Page 14 of 18

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under a legal obligation Page 15 of 18

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to call the said advocate to adduce evidence in court. Mr. Otieno submitted that it was improper for the ELC to rely on the earlier decision setting aside the decision of the Land Dispute Tribunal. He maintained that the 1 st and the 3rd respondents had colluded to unlawful take away the suit property from the purview of the court. He asserted that there was no proof that the 3nd respondent paid the alleged purchase consideration to the 1 st respondent. Learned counsel urged that the trial court did not treat the parties equally and in the circumstances reached the wrong decision that failed to take into consideration cogent evidence that the appellants had established fraud on the part of the 1st and 3rd respondents in the transfer of the suit property. He pointed out that false information was given by the parties who testified during the objection proceedings and the ELC should not have relied on or put weight on the findings made therein. In any event, the owners of the suit property were absent and did not participate in the said proceedings. He reiterated that there was no valid agreement which could have resulted in the transfer of the suit Page 16 of 18

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property to the 1st respondent. He urged the Court to allow the appeal. 13.Mr. Yogo, learned counsel for the 1st respondent opposed the appeal. He submitted that at the time the suit property was sold to the 1st respondent, there was no requirement for the consent of the Land Control Board because the suit property was under adjudication at the time. Objection proceedings were heard, considered and a decision made in favour of the 1st respondent. Mr. Yogo reiterated that there was a valid sale agreement which was entered in respect of the suit property. Consideration was paid in full. Both parties to the agreement instructed Messrs. Kasamani advocate to act on their behalf. The purchase consideration of each of the vendors were paid in full. He maintained that if there was any issue relating to the payment of the said purchase consideration, the firm of Kasamani advocates should have been summoned to testify before the ELC. As regards the allegation of fraud, Mr. Yogo submitted that the appellants failed to prove that the transfer to the 1 st respondent was fraudulent. He urged the Court to uphold the decision of the ELC and dismiss the appeal. Page 17 of 18

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14.On his part, Mr. Onyango, learned counsel for the 3rd respondent submitted that the appellants had not established fraud on the part of the 3 rd respondents. No fraud was pleaded against the 3rd respondent. There was no collusion between the 1st and the 3rd respondent as alleged by the appellants to unlawfully dispossess them of their suit property. The 3rd respondent maintained that at the time it purchased the suit property from the 1st respondent, there was no evidence in official record that the 4 th and 5th appellants were the owners of the suit property. conducted official search before purchasing the It suit property and confirmed that it was registered to the 1 st respondent. Its members are currently in possession of the suit property. He urged the Court to dismiss the appeal. 15.There was respondent. no attendance on the part of the 2nd They did not file any written submissions in the appeal. 16. This being a first appeal, we are required to reconsider and to re-evaluate the evidence adduced before the trial court with a view to reaching an independent determination whether or not to uphold the decision. In Wilson Kazungu Page 18 of 18

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Katana & 101 Page 19 of 18

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others v. Salim Abdalla Bakahwein & another [2015] KECA 728 (KLR) this Court held thus: “As the first appellate court, we are enjoined by Rule 29(1) (a) of this Court’s Rules to re-appraise the evidence and to draw inferences of fact. This requirement has been elucidated in several decisions of this Court, suffice to mention but Selle & Another v. Associated Motorboat Co. Ltd & others [1968] EA 123, Ogol v. Muriithi [1985] KLR 359 and Seascapes Ltd v. Development Finance Company of Kenya ltd [2009] KLR 384. In all these cases the principle has been restated that our duty as the first appellate Court is to revisit the evidence that was tendered before the trial court a fresh, analyze it, evaluate it and arrive at our own independent conclusion but always bearing in mind that the trial court had the benefit of seeing the witnesses, hearing them and observing their demeanor and giving due allowance for that.” 17.In the present appeal, several issues emerged for our determination; i) Whether a valid agreement was entered between the 1st, 2nd and 3rd appellants (and their predecessors in claim) with the 1st respondent. ii) 18. Whether there was a requirement for consent to be procured from the Land Control Board. iii) Whether the transfer to the 3 rd respondent by 1st respondent was lawful.” As regards the first issue for determination, the original Page 20 of 18

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suit was filed in the High Court by Ouya Onguka, Nyaundi Page 21 of 18

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Ogendo, Petro Pete Onguka (3rd appellant), Washington Okech and Julius Omeda. According to the 1st respondent, it entered into an agreement for the suit property measuring 4.04 Hectares. The property was described as Kano Reference No. Kajulu/Konya/2338. The agreed purchase consideration was Kshs. 30,250/- per acre making the total purchase consideration to be Ksh. 302,500/=. According to the agreement, the said purchase consideration was to be deposited with the firm of Anne Schofield & Kasamani Advocates. The said firm of advocates acted for both the vendors and the 1 st respondent. The agreement is dated 1st August, 1989. The suit property was sold free of any encumbrance and the 1 st respondent was to be given vacant possession upon payment of the purchase consideration. 19.Our re-evaluation of the evidence shows that the 1st respondent produced in court three receipts issued by the firm of Anne Schofield & Kasamani Advocates dated 7th September, 1989 for the sum of Kshs.30,250/= another dated 9th January 1990 of the sum of Kshs.136,125/= and the last one dated 28th March 1990 for the sum of Kshs. Page 22 of 18

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136,125/=. The total amount Page 23 of 18

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deposited by the said 1st respondent was Kshs. 302,500/-. This is the exact amount that appears in the agreement as the purchase consideration. According to the 1 st respondent, it deposited the full purchase consideration with the said firm of advocates pursuant to the terms of agreement. On their part, the 1st to 3rd appellants insist that the full purchase consideration was not paid to them in accordance with the agreement. 20.The agreement required that the entire purchase consideration be deposited with Anne Schofield & Kasamani Advocates. The said purchase consideration was deposited by the 1st respondent as provided by the agreement. Once the 1st respondent proved that it had deposited the purchase consideration as per the agreement, the burden of proof shifted to the 1st to 3rd appellants to disprove the fact that the said amount was so deposited. The only witness who could have disproved the assertion by the 1st respondent is the said firm of Advocates. The appellants chose not to call them as witnesses. We agree with the 1 st and 3rd respondents that once the appellants failed to call the said firm of advocates to Page 24 of 18

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challenge the receipts that were produced by the 1st respondent in evidence to establish that they had fully paid the purchase consideration, they cannot credibly assert that the purchase consideration was not fully paid. We find no merit in this ground of appeal and disallow it. 21.The second issue for determination was whether it was necessary for the consent of the Land Control Board to be procured for before the suit property was transferred to the 1st respondent. According to the 1 st to 3rd appellants, the 1st respondent obtained title in respect of the suit property without the consent of the Land Control Board being obtained. The appellants assert that this rendered the transfer null and void and therefore the resultant title fraudulent. On its part, the 1st respondent explained that at the time it purchased the suit property the same was under adjudication and therefore it was not necessary for consent of the Land Control Board to be procured or obtained. 22.Our re-evaluation of the evidence leads us to the conclusion that indeed the consent of the Land Control Board was not necessary in order to have the suit property transferred to the 1st respondent. The suit property was sold to the 1st respondent Page 25 of 18

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before land adjudication process had been concluded. Under section 26 of the Land Adjudication Act, any person had a right to object to inclusion of any person in the proprietary register prepared during the adjudication process. This objection had to be presented to the Adjudication officer who had to consider it and render a decision. In the present appeal, the appellants raised objection during the adjudication process. The objection was considered and dismissed. The 1st respondent was subsequently registered as the owner of the suit property. There is no legal requirement during the adjudication process for consent of the Land Control Board to be obtained where parties are transferring property which is under adjudication. We therefore hold that it was not necessary for the consent of the Land Control Board to be obtained before the 1st to 3rd appellants or their predecessors in title transferred the suit property to the 1st respondent. The requirement for consent of the Land Control Board for the transfer of agricultural land under section 6 of the Land Control Act only applies to registered Land and not land under Adjudication under the Land Adjudication Act. We therefore find no merit in the complaint made by the appellants that the transfer to the 1st respondent was null and void for want of consent of the Land Control Board. 23.We agree with the ELC that the 1 st to 3rd appellants did not plead or specifically prove fraud and therefore their assertion Page 26 of 18

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that there was fraud was not properly placed before the ELC and this Court for its determination. 24.The final issue for determination is whether the 1 st respondent’s transfer of the suit property to the 3rd respondent was tainted with fraud and therefore voidable in law. The entire basis of the appellant’s challenge to the 3 rd respondent’s title was that the transfer of the suit property to the 1st respondent was tainted with illegality and fraud that the 1st respondent could not possibly pass good title to the 3rd respondent. 25. Having established that the transfer of the suit property by the appellants to the 1st respondent was above board and lawful, it follows that the subsequent transfer of suit property to the 3rd respondent was legal. Indeed the 3 rd respondent is right when it asserts that it was a bona fide purchaser of the suit property without notice of any defect in title. This Court in Mohamed v. Duba & another [2022] KECA 442 (KLR) cited with approval the Uganda Case of Katenda v. Herida & Company Limited [2008] 2EA 173 where the Court held that for a purchaser to successfully rely on the bona fide doctrine, he must prove Page 27 of 18

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that he had a certificate of title; he purchased the property in good Page 28 of 18

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faith, he had no knowledge of the fraud; he purchased for valuable consideration; the vendors had apparent valid title; he purchased without notice of any fraud and that he was not party to any fraud. 26.We are satisfied on the basis of the evidence on record that the 3rd respondent is a bona fide purchaser of the suit property. Its title in respect of the same cannot be impeached. 27. The upshot of the above reasons is that the appeal lacks merit. It is hereby dismissed with costs to the 1st and 3rd respondents. Dated and delivered at Kisumu this 25th day of September, 2026. ASIKE-MAKHANDIA .......................... ... JUDGE OF APPEAL P. NYAMWEYA ....................... JUDGE OF APPEAL L. KIMARU .......................... JUDGE OF APPEAL I certify that this is Page 29 of 18

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a true copy of original. Signed DEPUTY REGISTRAR. Page 30 of 18

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