Lunani v Oyatsi

created. The Respondent was also registered on 29 August 1997 as the owner of Marachi/ Elukhari/2611 and issued with a title deed. 4. Lambert Obuyu Lunani, and father to the Appellant, died on 29 October 2004. The Appellant was granted Letters of Administration to his estate on or around 30 January 2007. On 26 September 2016, the Appellant moved the Environment and Land Court at Busia (hereinafter the ELC) in ELC Case No. 129 of 2013, alleging that the subdivision and subsequent registration of the Respondent as the owner of Marachi/Elukhari/2611 (the suit property) was fraudulent, illegal and did not follow due process. The Appellant therefore prayed that the registration of the Respondent as the owner of the suit property be cancelled. 5. The Respondent led a Defence and Counterclaim, contending that the suit was null and void ab initio, oended the provisions of the Law of Succession Act and was founded on the transgression of applicable laws, did not belong to the estate of the Appellant’s father. The Respondent also asserted that he purchased the suit property and made payments from 1988 to 1990 to the Appellant’s father, and parts of the payments were to facilitate the succession cause in Court and pay the Appellant’s school fees. According to the Respondent, the transfer of the suit property was carried out in accordance with all due processes. 6. In the Counterclaim, the Respondent asserted unjust enrichment and that the Appellant had unlawfully entered the suit property in 2010, and caused him loss, and prayed for possession of the suit property, declaration that any title issued to the Appellant over the suit property was null and void, cancellation of any title issued to the Appellant in respect to the suit property mesne prots of Kshs 50,000/- monthly and injunctive orders. 7. In a judgment dated 12 August 2020 and delivered on 17 September 2020, the ELC dismissed the Appellant’s case and allowed the Counterclaim, save for the prayer for mesne prots. The Appellant was aggrieved, and he led a Notice of Appeal dated 28 September 2020, and a Memorandum of Appeal in this Court dated 20 November 2020, contending: i. The learned Judge erred in law and in fact by failing to appreciate the fact that the suit property herein arises from the subdivision of land parcel No Marachi/Elukhari/1259 following a process of succession of the estate of the late Lunani Rajula (deceased) vide Busia SPMS Court Succession Cause No. 49 of 1994. ii. The learned judge erred in fact and in law by failing to appreciate the fact that at the time of the death of Lunani Rajula, he had not entered into any land sale agreement or transaction with the Respondent herein in respect of land parcel no Marachi/Elukhari/1259. iii. The learned Judge erred in law and in fact by failing to appreciate the fact that one Lambert Obuyu Lunani (deceased) was only a mere administrator of the estate of the late Lunani Rajula pursuant to a grant of letters of administration intestate dated 15/5/1995 issued vide Busia SPM's Court Succession Cause No. 49 of 1994. iv. The learned Judge erred in law and in fact by failing to appreciate the fact that by 1988, when a purported agreement dated 3rd December 1988 was entered into between one Lambert Obuyu Lunani (deceased) and Donald P. Oyasti, the land in issue was still registered in the names of the late Lunani Rajula and no succession proceedings had been taken out to appoint Lambert Obuyu Lunani the administrator of the estate of the late Lunani Rajula v. The learned Judge erred in law by failing to hold and make a nding that the purported agreement dated 3rd December 1988, purportedly entered into by one Lambert Obuyu Lunani as the seller and Donald P. Oyasti as the buyer, purporting to sell, alienate and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2018/eng@2026-06-19 2

page 2 of 6

or transact in land, purportedly Parcel No. Marachi/Elukhari/1259, when the registered owner thereof was at the time deceased and with no succession proceedings in place whereby appointing the seller thereof the administrator of the estate thereof; the entire transaction was null and void ab initio. vi. The learned Judge erred in fact and law by not appreciating the law pertaining to the disposal of a deceased person’s estate. vii. The learned judge erred in law and in fact by failing to appreciate that the Respondent herein had no right of claim against the estate of the late Lunani Rajula and therefore his enlistment as a beneciary of the said estate by virtue of purchase was fraudulent, unprocedural and unlawful. viii. The learned judge erred in procedure by proceeding on to write and render a judgment when the Appellant's submissions had not been led and were not on record without rst enquiring/ considering the circumstances and situation that was prevailing at the time including the fact that country was going through a pandemic which had disrupted the normal operations and access to court for assistance, hindering the Appellant's access to courts to le submissions ix. The learned trial judge erred in law by misconstruing the evidence on record and ended up rendering an unjust and bad judgment in law. x. The learned trial judge erred in law by rendering an unfavourable judgment against the weight of evidence on record. xi. The learned trial judge erred in law by allowing the Respondent’s Counter Claim when there was no sucient evidence tendered in support of the same. xii. The learned Judge erred in law by awarding costs to the Defendant. 1. The Appellant led submissions dated 14th April 2026, and the Respondent led submissions dated 16th April 2026. 2. When the Appeal came up for hearing on 21st April 2026, learned counsel Ms. Lunani appeared for the Appellant. Learned counsel Mr. Oyatsi and Mr. Mudogo appeared for the Respondent. 3. The Appellant collapsed the grounds of appeal into 3 broad ones, to wit, the validity of the land sale agreement between Lambert Obuyu Lunani and the Respondent; whether the Respondent proved his counterclaim on a balance of probabilities; and whether the trial was fair and procedural. 4. On the rst consolidated grounds, the Appellant urged that the agreement between his father and the Respondent was invalid because his father did not have the legal capacity to transact over Marachi/Elukhari/1259. The Appellant cited Musa v Musa & 6 Ors (2025) KECA 1283 and Dina Management Ltd v County Government of Mombasa & 5 Ors (2023) KESC 30 (KLR) to buttress the argument that the Respondent could not have obtained a valid title because the property of a deceased person could not be dealt with before the conrmation of the grant. 5. On the question whether the Respondent had proved his counterclaim, the Appellant contended that the agreement dated 3 December 1988 was suspicious as the wording thereof suggested it https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2018/eng@2026-06-19 3

page 3 of 6

was written by his father, while the Respondent had testied he was the author and that there was only one witness who happened to be the Respondent’s father. 13. Submitting on the last consolidated ground on the fairness of the trial process, the Appellant cited Ngenda New Farmers Company Ltd & 4 Ors v Mbugua & 75 Ors (2025) KECA 955 (KLR) to assert that the hearing was not fair because he was not allowed to le submissions despite the COVID-19 public health restrictions in place, and further that judgment was delivered without notice and in the absence of the parties, thus breaching Article 50 of the Constitution. 14. The Respondent submitted generally on the merits of the Appeal. He contended that the appeal had no merit and was a non-starter. According to the Respondent, it was not in dispute that the original parcel of land was in the name of the Appellant’s grandfather and that after his death, succession to his estate was undertaken, and the Appellant's father was an administrator and one of the beneciaries. 15. According to the Respondent, the initial property was subdivided amongst the 3 sons and beneciaries of the estate of the Appellant’s grandfather and that the sale agreement was between the Appellant’s father, a beneciary and the Respondent over the said beneciary’s portion of the share of the estate. Accordingly, and after the agreement, the Respondent was included in the succession proceedings as a beneciary, and after conrmation of the grant, the relevant consents from the Land Control Board were obtained, and therefore, the whole process was lawful. 16. The Court has given due consideration to the appeal, submissions and all material placed before it. This is a rst appeal. The role of the Court on a rst appeal was well set out in Selle & Ar v Associated Motor Boat Co. Ltd & Ors (1968) EA 123: “ 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 allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s ndings of fact if it appears, either, that, he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 17. It is thus incumbent upon this Court to look at the pleadings and evidence tendered before the superior court. The Appellant faulted the superior court for failing to appreciate that the land sale agreement dated 3 December 1988 was not valid because at the time it was entered into, the land parcel number was not indicated and that if it related to Marachi/Elukhari/1259, then Lambert Obuyu Lunani had no legal capacity to deal with the land because it was still registered in the name of Lunani Rajula and that the said Lambert Obuyu Lunani only obtained a grant to the estate of Lunani Rajula and conrmation of the grant in 1996. 18. The Appellant cited this Court’s decision in Musa v Musa & 6 Ors (supra), where it was held that the respondent therein had no powers to deal with the property of a deceased person before the conrmation of the grant as contemplated by section 55(1) of the Law of Succession Act. The Appellant further cited Dina Management Ltd v County Government of Mombasa & 5 Ors (supra) to urge that the process through which the Respondent obtained title over the suit property was illegal, hence the title could not be valid. 19. The Respondent's submissions reiterated the factual underpinning of the superior court’s decision and admitted that the sale agreement was entered into between the Appellant’s father and himself, but it related to the Appellant's father's share as a beneciary of Marachi/Elukhari/1259. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2018/eng@2026-06-19 4

page 4 of 6

20. The process leading to the registration of the Respondent as the owner of the suit property was hinged on a sale agreement, succession proceedings and the consent of the Land Control Board. The Appellant’s father declared in the succession proceedings the Respondent’s benecial interest. In addition, the interest was contingent upon the Appellant’s father's own interest in the estate of the Appellant’s grandfather. The record shows that there were 4 direct beneciaries of the estate. These were the brothers of the Appellant’s father, his uncles. They were privy to the succession proceedings, and did not raise any objections to the inclusion of the Respondent as an interested beneciary to the estate of their late father. 21. It is thus our nding that the Appellant's father sold part of his share of the estate to the Respondent, and this interest was declared during the succession proceedings. If at all, the sale agreement of 3 December 1988 was invalid, then the inclusion of the Respondent’s interest in the succession proceedings made reliance on the agreement legally otiose. The Appellant’s option would have been to raise an objection in the succession proceedings, if at all. Since no such objection was raised, the Appellant cannot be allowed to mount a collateral attack and attempt to overturn the succession proceedings by instituting a suit in the Environment and Land Court. 22. The Appellant also challenged the ndings by the superior court on whether the Respondent met the standard of proof of his case on a balance of probabilities. According to the Appellant, there was no sucient evidence to show that his father had written or authored and signed the sale agreement dated 3 December 1988, because of the writing style and because the only witness to the agreement was the Respondent’s father. 23. In light of the conclusions on the legal place of the agreement in relation to the succession proceedings, this ground could not and cannot be determinative of the case before the superior court or in this appeal. 24. Lastly, the Appellant impugned the judgment of the superior court on the basis that he was not aorded a fair opportunity to be heard contrary to the demand of Articles 50 and 159 of the Constitution. In this respect, the Appellant contended that he was not allowed time to le submissions nor notied of the delivery of the judgment. He further alluded to diculties of accessing the Court during the COVID-19 public health pandemic. 25. The Court has re-examined the record. The Appellant’s assertions on the violation of his right to a fair hearing are grounded on quicksand. 26. The record discloses that after the close of the Respondent’s case, the Appellant’s advocate proposed that the parties be given 14 days each to le and exchange submissions, and the Court gave each party 21 days to le and exchange submissions. The Court then set a mention for 23 January 2020 to conrm. The Appellant did not comply with the directions, and it is noteworthy that by this time, the COVID-19 public health pandemic had not been declared. 28. The record also shows that despite knowledge that the suit would be mentioned on 23 January 2020, the Appellant’s advocate failed to attend Court (the Respondent’s advocate told the Court that the Appellant's advocate was requesting a further 14 days to le submissions). The superior court indulged the request and set a mention for 24 February 2020. None of the parties attended the Court on this day, and the court set the delivery of judgment for 16 July 2020. Judgment was eventually delivered on 17 September 2020. 30. Under these circumstances, the Appellant cannot argue that he was denied a fair chance to present his case. He was aorded a fair chance, but he snubbed the opportunity. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2018/eng@2026-06-19 5

page 5 of 6

31. Having considered, re-evaluated and analysed the proceedings before the superior court, the appeal and submissions, the Court nds no merit in the appeal, and it is dismissed with costs to the Respondent. DATED AND DELIVERED AT KAKAMEGA THIS 19TH DAY OF JUNE 2026 P. NYAMWEYA ………………… JUDGE OF APPEAL R. NGETICH ……………… JUDGE OF APPEAL RADIDO S. OKIYO ………………… 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/2026/2018/eng@2026-06-19 6

page 6 of 6