Okech

respect of the one-half share of the suit property. The 4th defendant was the administrator of Odhoji’s estate. 3. As administrator, the 4th defendant transferred Odhoji’s one half share to herself before transferring it to his beneciaries in accordance with the conrmed grant. The 1st and 4th defendants succeeded Odhoji’s share in equal shares. All these took place on July 4, 2017. 4. Thereafter, the 1st and 4th defendants caused the severance of the tenancy in common and partitioned it into 3 portions; land parcels no North Sakwa/Ajigo/ 3015, 3016 and 3017. These properties shall collectively be referred as ‘subdivisions’. 5. It would appear North Sakwa/Ajigo/ 3015 was registered as Joseph’s one half share; there is no dispute on it. The 4th defendant was registered as the proprietor of North Sakwa/Ajigo/ 3016 while North Sakwa/Ajigo/ 3017 was registered in the 1st defendant’s name. North Sakwa/Ajigo/ 3016 is currently registered in the names of the 2nd and 3rd defendants’ who bought it from the 4th defendant. 6. Despite the attorney general ling a memorandum of appearance dated April 6, 2021, it did not le a defence. Plainti ’s case 7. By way of a plaint dated August 13, 2020 and later amended on January 31, 2022, it was the plainti’s case she had instituted the suit in her own capacity and as the administrator of the estate of Joseph. Beneciaries of Joseph’s estate included herself, her children, her grandson, her daughter in law and her sisters in laws (Joseph and Odhoji’s 3 sisters). 8. According to the plainti, Joseph and Odhoji who were the sons of Gari Ngoga (‘Ngoga’) held the entire suit property in customary trust for the entire family of Ngoga who resided on the suit property. Ngoga had two homes; one in Alego Seje which had the homes of his 3 wives one of whom was Odhoji’s mother and another on the suit property which had the homesteads of his 4 wives who were Joseph’s mother one Owich Nyar Achola (‘Owich’) and her 3 co-wives. In total Ngoga had 7 wives. Odhoji was only entitled to an identiable portion of 2 acres of the suit property. 9. She pleaded and particularised fraud against the defendants. In summary, the partition of the suit property was illegal and the 1st to 4th defendants were illegally registered as proprietors. The 5th defendant declined to register a caution that was lodged by the plainti. 10. The reliefs the plainti sought against the defendants were inter alia; permanent injunction restraining the defendants either by themselves or their authorised agents or assigns from alienating, trespassing, erecting beacons or a fence or in any other manner interfering with the plainti’s quiet possession and occupation of their respective demarcated area comprised in the suit property; a declaration that entries 5 and 6 on the register of the suit property were irregular, void and should be cancelled; revocation of title documents on North Sakwa/Ajigo/ 3016 and 3017 and costs of the suit. 1st and 4th defendants’ case 11. Their counsel on record, Omondi, Abande & Co advocates led an amended defence dated June 23, 2022. They denied the averments made in the amended plaint and put the plainti to strict proof. They sought for dismissal of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18052/eng@2023-06-08 2

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2nd and 3rd defendants’ case 12. By the rm of Odongo Awino & Co Advocates, the 2nd and 3rd defendants led their defence dated October 23, 2020. They denied the averments made in the plaint, put the plainti to strict proof and stated they were strangers to the plainti’s assertions. 13. It was their case the suit property was non-existent, they were bona de purchasers for valuable consideration of North Sakwa/Ajigo/ 3016 which was unoccupied by the plainti, extended family or third parties. They prayed for dismissal of the suit with costs. Plainti ’s evidence 14. Mary Jacinta Nyagwala testied as PW1. Her evidence was composed of her adopted witness statement dated August 13, 2020 and oral testimony. She was Ngoga’s only child from his marriage with Herina Abor (‘Herina’). She was born on the suit property in 1947. 15. The suit property was family land which was derived from Ngoga. Odhoji was only entitled to 2 acres which previously belonged to one of Ngoga’s wives one Magdalina Oluoch Nyar Ouma (‘Magdalina’) who resided on the suit property. Magdalina was remarried. It was her testimony Odhoji’s portion belonged to Ngonga’s wives namely Herina, Magdalina and Adda Anyango together with Joseph’s 1st and 2nd wives namely Rosalia Awuor and Angelina Onywera. 16. On cross examination, she testied the dispute was between Joseph and Odhoji’s family. The 1st and 4th defendants had no portion in the suit property. She was unsure if she recorded her witness statement and some portions of it were untrue. Odhoji, his wife and son were buried on the suit property. She was seeking Herina’s portion. 17. The plainti testied as PW2. Her testimony was contained in her oral testimony and adopted witness statements dated August 13, 2020 and January 31, 2022. She corroborated PW1’s evidence in chief. In addition, the suit property was bequeathed to them upon Joseph’s demise. Despite the suit property being wholly inherited by Joseph through Owich, Joseph accommodated extended family members including his mother, stepmothers and sisters. 18. During demarcation, Odhoji was erroneously registered as co-proprietor. Odhoji was only entitled to two acres. The rest of the suit property was tilled by Ngoga’s 4 wives and her (plainti’s family). During adjudication, Joseph and Odhoji were the only adult men on the suit property and were trustees of the whole family. The suit property belonged to her children. 19. On cross examination, she testied she was a representative of Joseph’s estate. She wanted to distribute the suit property to her family. Ngoga was the initial owner. On re-examination, she testied the portions purchased by the 2nd and 3rd defendants were occupied by family members and the 4th defendant never sought her consent during partition. 20. Maurice Oyugi Oketch testied as PW3. His testimony was contained in his oral testimony and adopted witness statement dated August 13, 2020. He was Joseph’s son. Several family members resided on the suit property. They had been given notice to vacate North Sakwa/Ajigo/3017. They were not involved in the partition process. 21. George Ouma Okech testied as PW4. His testimony was contained in his oral testimony and adopted witness statement dated August 13, 2020. He was Joseph’s son. He lived in North Sakwa/Ajigo/3017. He was not aware how the partition took place. On cross examination, he testied the 1st and 4th https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18052/eng@2023-06-08 3

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defendants were entitled to one half portion. North Sakwa/Ajigo/3016 did not have houses but was being tilled. 22. Benta Ogombo Ochieng testied as PW5. Her testimony was contained in her oral testimony and adopted witness statement dated August 13, 2020. She was Ngoga’s daughter from his marriage to Magdalina. Magdalina had resided on the suit property and had accommodated Odhoji. On cross examination, it was her testimony she had sought a portion of the suit property as Ngoga’s daughter and the 1st and 4th defendants were entitled to a portion too. 23. Henry Nyadenge Okwenda testied as PW6. His testimony was contained in his oral testimony and adopted witness statement dated August 13, 2020. Between 1974 to 1993, he had been the area Assistant chief of Ajigo sub-location in North Sakwa location. Joseph and Odhoji were known to him and was conversant with the suit property’s occupancy. Joseph, Odhoji and their respective nuclear families resided on it. Herina also lived there. 24. Odhoji’s portion was located around the centre of the suit property, Joseph and his two wives on one side and Min Ochieng (one of Joseph’s wives) and Herina on another far end. At adjudication, Joseph registered the suit property in his name and that of Odhoji as a block. It was for the benet of Joseph’s children and wives. On cross examination, it was his testimony the suit property was to be shared by Odhoji and Joseph. 25. Jane Ajwang Ochieng testied as PW7. Her testimony was contained in her oral testimony and adopted witness statement dated August 13, 2020. She was Ngoga’s daughter from his marriage with Magdalina. Despite Magdalina’s relocation upon remarriage, she lived on the suit property prior to her (PW’7’s) marriage. On cross examination, it was her testimony the suit property was to be shared equally by Joseph and Odhoji. On re-examination, it was her testimony Odhoji took over Magdalina’s portion which stood in the middle of the suit property and did not know how the suit property was to be apportioned. Defendants’ evidence 26. The 4th defendant testied as DW1. Her evidence was contained in her replying adavit sworn on October 16, 2020 and oral testimony. The suit property was inherited from Ngoga by Joseph and Odhoji. PW3 consented to probate proceedings. Joseph’s portion was intact. She had sought for a Land Control Board (LCB) consent. A land surveyor subdivided it. There was no fraud or illegal dealings with the land registry. 27. On cross examination, it was her testimony Joseph’s family did not participate in the acquisition of the LCB consent. The land registrar executed documents on behalf of Joseph. Purchase by the 2nd and 3rd defendants took place after probate proceedings had concluded. 28. The 1st defendant testied as DW2. Her evidence was contained in her replying adavit dated October 16, 2020 and oral testimony. She corroborated DW1’s testimony. On the ground, Joseph’s and Odhoji’s portions were clearly demarcated but subdivision had not been done. On cross examination, it was her testimony the subdivision was done in the absence of Joseph’s family. 29. The 2nd defendant testied as DW3. Her testimony was contained in her oral testimony and adopted witness statement dated August 13, 2020. She purchased North Sakwa/Ajigo/3016 measuring 3.45 Ha for Ksh 4,800,000/- from the 1st and 4th defendants and an agreement for sale was drawn up. The said portion had been vested upon the 1st and 4th defendants by a certicate of conrmation of grant dated January 11, 2017. An LCB consent had been obtained. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18052/eng@2023-06-08 4

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30. On cross examination, it was her testimony the purchase price in the LCB consent and agreement for sale varied. Though North Sakwa/Ajigo/3016 was vacant, she had not taken possession. Plainti ’s submissions 31. Her counsel, Mr Nyanga, led his written submissions dated April 17, 2023. He identied 3 issues for determination; (a) whether the plainti was the sole proprietor of the suit property; (b) whether the defendants were trespassers and (c) whether the plainti was entitled to the reliefs sought. 32. On the 1st issue, counsel submitted Joseph and Odhoji held the suit property as joint tenants. Probate proceedings on Odhoji’s estate were marred will illegalities since it did not consider the actual occupancy of the parties. The 2nd and 3rd defendants could not be said to be innocent purchasers for value since they found houses located on the suit property and this was evident by the eviction notice issued by them. Counsel relied on Sections 91,101, 102, 103 and 118 of the Land Registration Act and Isabel Chelangat v Samuel Tiro Rotich & 5 others [2012] eKLR where it was held: ‘The right of survivorship ( jus accrescendi) means that when one joint owner dies, his interest in the land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence. The four unities that must be present in a joint tenancy are (i) The unity of possession. (ii) The unity of interest. (iii) The unity of title. (iv) The unity of time. Tenancy in common on the other hand is dierent from joint tenancy. In a tenancy in common, the two or more holders hold the property in equal undivided shares. Each tenant has a distinct share in the property which has not yet been divided among the co-tenants. [8] In other words they have separate interests only that it remains undivided and they hold the interest together. The largest factor that distinguishes a joint tenancy from a tenancy in common is the absence of the doctrine of survivorship in the latter. The share of one tenant is not aected by the death of one of the co-owners. The share of the deceased, devolves not to the other co-owner, but to the estate of the deceased co-owner. Although the four unities required for a joint-tenancy may be present, only one, the unity of possession is essential.’ 33. On the 2nd issue, it was counsel’s submission that the 1st and 4th defendants were only entitled to 2 acres of the suit property which was identiable on the ground and had been in existence for over 40 years. Counsel submitted the plainti was entitled to the orders sought. 1st and 4th defendants’ submissions 34. Despite directions from court, their counsel did not le written submissions. If at all they will be led, this court will not consider them. 2nd and 3rd defendants’ submissions 35. Their counsel, Mr Odongo led written submissions dated April 17, 2023. Counsel identied the issues for determination as; (a) whether the plainti had the necessary locus standi (b) whether the plainti’s suit was competent (c) whether the plaintis were entitled to the 1st and 4th defendants’ share https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18052/eng@2023-06-08 5

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of the suit land (d) whether the 2nd and 3rd defendants were bona de purchasers and (e) whether the plainti had proved her claim of trust. 36. On the 1st issue, counsel submitted the initial purported representative of Joseph’s estate was Henry who had since died. It was not tenable for the plainti to purportedly pursue the suit on behalf of Joseph’s estate by merely substituting Henry. Instead, she should have obtained grant on Joseph’s estate. 37. Counsel cited the case of Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (suing as the administrator of the estate of Fanuel Evans Amudavi-deceased) [2016] eKLR which stated the absence of locus standi rendered a suit null and void. 38. On the 2nd issue, counsel submitted the suit oended the provisions of Order 2 Rule 10 of the Civil Procedure Rules since the plainti had failed to particularise trust. On the 3rd issue, counsel submitted as evidenced from probate proceedings, Joseph and Odhoji were tenants in common with separate and distinct shares. 39. On the 4th issue, counsel submitted the purchase by the 2nd and 3rd defendants took place after the 1st and 4th defendants had obtained a certicate of conrmation of grant and therefore they could seek protection under Section 93 of the Law of Succession Act. On the 5th issue, counsel submitted the plainti had not proved customary trust and relied on the case of Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR. 5th Defendant’s submissions 40. Its counsel, Ms Omondi, led her written submissions dated April 5, 2023. The only issue she identied for determination was whether the plainti had proved fraud. 41. Relying on Section 107 of the Evidence Act and Sarah Chesiele Barta v Kiplangat Barta & 2 others [2020] eKLR, counsel submitted it was trite law he who alleges proves and fraud must be proved to the required standards. Counsel submitted there was no evidence the land registrar was a conduit of illegalities. Analysis and determination 42. I have considered the pleadings, evidence by the parties including documents they produced in support of their respective cases as well as their rival submissions. Being guided by the provisions of law and judicial precedents that have been well articulated in counsels’ submissions, I shall now proceed to consider the merits or otherwise of the case. The issues falling for determination are; I. Whether the plainti’s suit was competent. II. Whether the plainti proved her claim of customary against the 1st and 4th defendants. III. Whether the plaintis proved fraud and illegality against the defendants and whether the 2nd and 3rd defendants were innocent purchasers for value. IV. What orders ought to issue. V. Who shall bear costs. I. Whether the plainti ’s suit was competent 43. The claim by Joseph’s estate was in personum, appertained to land and the suit survived his death. Section 2(1) of the Law Reform Act stipulates that; https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18052/eng@2023-06-08 6

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‘2. Eect of death on certain causes of action (1) Subject to the provisions of this section, on the death of any person after the commencement of this Act, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benet of, his estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.’ 44. In the case of Alfred Njau & 5 others v City Council of Nairobi [1983] eKLR, the Court of Appeal, held: ‘Locus standi' literally means a place of standing and refers to the right to appear or be heard in Court or other proceedings and to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.' 45. In a more recent decision by a court of concurrent jurisdiction in Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLR the court stated: ‘The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction since it all amounts to null and void proceedings. It is also worth-noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneciaries or interested parties.’ 46. Henry’s grant on Joseph’s estate was not tendered before this court. However, from parties’ pleadings there was no dispute Henry properly represented Joseph’s estate. However, there was no evidence on record the plainti was ever appointed a representative of Joseph’s estate. 47. By the provisions of Order 3 Rule 7 of the Civil Procedure Rules, her personal capacity to sue was pegged on her representation of Joseph’s estate. The limited grant she obtained in respect of Henry’s estate was incompetent to maintain this suit. There being no such administrator appointed to represent Joseph’s estate, I nd the suit against the defendants incompetent and I hereby strike it out. Had I not struck out the suit, I would have made my ndings on the residual issues as enumerated below. II Whether the plainti proved her claim of customary against the 1st and 4th defendants. 48. Section 24 (a) of the Land Registration Act states the registration of a person as the proprietor of land shall vest in that person absolute ownership together with all such rights and privileges thereto. Within Section 25 of this Act a registered proprietor holds title subject to leases, charges, encumbrances, conditions, restrictions, liabilities, rights and interests including overriding interests which have been recognised by Section 28 (b) of the same Act to include customary trusts. 49. As rightfully submitted by both counsels, the apex court settled the principle of customary trust. In this decision, the court analyzed previous decisions, repealed provisions of the Registered Land Act and those of the subsisting Land Registration Act. Isaack M’Inanga Kiebia v Isaaya Theuri M’Lintari (Supra) held in paragraph 52 as follows: ‘We now declare that a customary trust, as long as the same can be proved to subsist, upon a rst registration, is one of the trusts to which a registered proprietor…The categories of a https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18052/eng@2023-06-08 7

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customary trust are therefore not closed. Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benet of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are: 50. 1. The land in question was before registration, family, clan or group land 2. The claimant belongs to such family, clan, or group 3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous. 4. The claimant could have been entitled to be registered as an owner or other beneciary of the land but for some intervening circumstances. 5. The claim is directed against the registered proprietor who is a member of the family, clan or group.’ Emphasis added. The Court of Appeal in the case of Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR held: ‘The law never implies, the Court never presumes, a trust, but in case of absolute necessity. The Courts will not imply a trust save in order to give eect to the intentions of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.' See Gichuki vs Gichuki [1982] KLR 285 and Mbothu & 8 Others vs Waitimu & 11 Others [1986] KLR 171.’ 51. These provisions of law and settled decisions arm that customary trust is an encumbrance on land, it is not noted in the register of the subject land, possession and occupation is irrelevant and each case has to be determined based on the quality of evidence adduced. 52. I disagree with Mr Odongo that the plainti’s claim was on breach of trust. It was on customary trust which was an overring interest and the plainti could claim it notwithstanding Odhoji’s estate had been wound up. 53. It was common ground the suit property before demarcation belonged to Ngoga. It was common ground Joseph and Odhoji resided on the suit property. The plainti’s witnesses were consistent Ngoga’s four wives; Owich, Herina, Magdalina and Adda Anyango resided on the suit property. This was not controverted. Magdalina was remarried and her daughters (PW5 and PW7) were left behind and had resided on the property. All witnesses were silent on the whereabouts of Adda Anyango or her descendants. PW1 was Herina’s daughter and she sought Herina’s portion. 54. Evidence that Joseph and Odhoji were the only male representatives at the time of adjudication hence their registration was not controverted. Had I not struck out the suit, I would have found that subject to prove of where their respective homesteads stood or once stood, either Joseph and or Odhoji held their respective one half share of the suit property in trust for Magdalina’s children with Ngoga and for Herina’s daughter. See Isaack M’Inanga Kiebia v Isaaya Theuri M’Lintari (Supra). https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18052/eng@2023-06-08 8

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55. As for customary trust between Joseph and Odhoji, I would have found that both were adults and present at the time of adjudication. Their intention was made clear which ascertained their customary rights over a particular portion and size of the suit property. By nature of their registration as tenants in common, they each held an undivided and distinct share in the suit property subject to the overriding customary rights earlier highlighted in this judgment. See Isabel Chelangat v Samuel Tiro Rotich (Supra). 56. I would have found it was never the intention of Joseph and Odhoji to hold their respective one-half share of the suit property in trust for each other. III. Whether the plaintis proved fraud and illegality against the defendants and whether the 2nd and 3rd defendants were innocent purchasers for value. 57. By Section 26 (1) of the Land Registration Act, a title can be challenged on grounds of fraud or misrepresentation to which the person is proved to be a party; or where the certicate of title had been acquired illegally, unprocedurally or through a corrupt scheme. Section 80 of this Act allows the court to order an amendment or cancellation of title. 58. In the well cited Court of Appeal decision of Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] eKLR, the court held fraud must be specically pleaded and proved higher than a balance of probability but not beyond reasonable doubt. Since fraud involves trickery, cunningness, dissembling, and other unfair way used to cheat someone, it would have been my nding the plainti had not proved fraud to the required standards. 59. Albeit the plainti merely making a header of fraud in her particularization of fraud and illegality, she particularized illegality in the manner which the 5th defendant registered the 1st and 4th defendants as proprietors of Odhoji’s one-half share of the suit property. 60. Odhoji’s estate was administered pursuant to probate proceedings. Odhoji’s one half share was transmitted to the 4th defendant as the administrator of his estate by transmission before its transfer to the 1st and 4th defendants as beneciaries. This was done pursuant to an order of the court and complied with Sections 61 (1) and (2) of the Land Registration Act. I would have found these entries were not illegal. 61. A tenancy in common can be severed by consent of all the tenants, by some of them or by an individual tenant or by sale. In considering an application, the land registrar considers several factors such as nature and location of the land and interests of the tenants who were not interested in severance. 62. The 1st and 4th defendants were required to make an application in the prescribed form. If it was done without the consent of the co-tenant, the land registrar was required to notify the non-consenting tenant on the hearing of the application for severance. See Sections 94 and 95 of the Land Registration Act and Regulations 45 and 46 of the Land Registration (General) Regulations 2017. 63. There was no evidence these laid down procedures were adhered to in partitioning the suit property. I would have found the partitioning was illegal and cancelled all entries subsequent to the registration of the 1st and 4th defendants as proprietors. See the recent Supreme Court of Kenya decision of Petition no. 8 (E010) of 2021 Dina Management Limited v. County Government of Mombasa & 5 others where the apex court held courts cannot turn a blind eye on an illegality. 64. I would have found the 2nd and 3rd defendants were not innocent purchasers for value since they entered an agreement for sale without rst ensuring the 1st and 4th defendants had secured a consent to sale from https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18052/eng@2023-06-08 9

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Joseph’s estate; at the date of the agreement the suit property had not been partitioned. See Section 91 (6) of the Land Registration Act. 65. 66. It is trite law costs follow the event, because of the special circumstances of this case where the plainti and 1st and 4th defendants are close family relations, each party shall bear their respective costs of this suit. Ultimately, I hereby issue the following disposal orders: a. The plainti’s suit is hereby struck out. b. Each party shall bear their respective costs of this suit. Orders accordingly. DELIVERED AND DATED AT SIAYA THIS 8TH DAY OF JUNE 2023. HON. A. Y. KOROSS JUDGE 08/06/2023 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: Mr. Nyanga for the Plainti N/A for the 1st and 4th defendants M/s Awuor Adipo h/b for Mr. Odongo for the 2nd and 3rd defendants. N/A for 5th defendant Court assistant: Ishmael Orwa https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18052/eng@2023-06-08 10

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