Andata v Angira & another (Environment and Land Appeal E009 of 2022) [2025] KEELC 7558 (KLR)

d. Costs of this suit together with interest thereon at the rate of 14% p.a. from the date of judgment until payment in full. e. Such further or other alternative relief as this Honourable court deems fit to grant. 2. The Respondents filed a Statement of Defence dated 27th June 2016. They denied the allegations contained in the Plaint. 3. The matter then proceeded for full hearing and upon considering the evidence tendered in court, the testimonies of the witnesses and the submissions by the parties, the trial court dismissed the suit with costs to the defendants. 4. Being dissatisfied with the decision, the Appellant instituted this Appeal vide the Memorandum of Appeal dated 7th April 2022. The Appeal is premised on the following grounds; 1. The Learned Trial magistrate misdirected himself on several matters of land law and matters of fact and in failing to peruse the plaintifis written submissions and authorities. 2. The learned Trial magistrate erred in land law in holding that a person must be registered as a trustee in order that he can be said to hold his title in trust for the person in actual possession and occupation of the suit land. 3. The Learned trial magistrate erred in law in failing to take note that if a person in occupation of land has overriding interest in the suit land or acquires title to the land in issue by adverse possession or prescription the registered title holder is in law said to be holding the said title in trust for the person in possession. 4. The Learned Magistrate erred in law in failing to note that since the suit lands were registered under Land Adjudication in 1996 and were registered under the Land Registration Act on the 19th day of January, 2015 the Appellant who is in actual possession and occupation of the suit land has acquired title to the same by adverse possession and occupation of the suit land in accordance with Section 28(h) of the Land Registration Act. Hearing at the trial court 5. The Appellant, then Plaintifi, testified as PW1. It was his testimony that before the adjudication process they had a parcel of land which was fenced. When adjudication process came about, they were given number 965 but it was wrong as it was in the name of the 2nd Defendant. Further, that parcel no. 824 is difierent from 966 but belongs to his father, Dalmas Andata. He stated that when he went to check at the Lands ofice he realized that 965 was in the 2nd Defendants name and 824 was in the 1st Defendants’ name. He then made an application to the Land Adjudication Board in 1984, and the case number was 24/84. The matter was heard but due to Dismas’ refusal to have it heard, it was referred to the arbitration board. He produced the proceedings of the case as exhibit 1 and stated that the Arbitration Board did not hear the matter as he had won. 6. He testified further that after 20 years, Dismas’ younger brother, one Maurice Otieno called him to the Lands ofice for an objection case no. 410/99 at the Land Adjudication board. There was also case no. 965 between himself and the 2nd Respondent. He urged that the land belonged to his father and, that after the objections he appealed to the Minister who ruled that his father had sold out the land to the defendant. 7. The witness stated that the matter was referred to the Chief and Lands’ ofice to investigate by the National Land Commission and they had a meeting on 2nd February 2014 at the Chiefs’ ofice. The https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7558/eng@2025-07-01 2

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meeting held that the land belonged to his father and that demarcation had not been properly done. Further, that it was agreed that the 965 be divided into three, the Appellant, the 2nd Respondent and Maurice Otieno. He was then advised to file this case so that the court can order the Lands Registrar to rectify the record. 8. During cross examination, he stated that the 2nd Defendants’ name was indicated in parcel no. 965 and that Samuel Angira gave out the adjudication bard in 1986 and that he was 12 years old by then. 9. PW2 was Stanley Aluma who was previously the Assistant Chief of Kanyadier Sub Location. He stated that in 1976 he asked Dalmas Andata to allow him plough the land for 4 years but he did not know the number of the parcel of land. In cross examination, he stated that he did not know the number of the land as adjudication had not started. He stated that the matter was handled by the chief and they took an appeal to the minister afterwards. The matter was then re-allocated to court 3 and the Appellant testified once again. 10. He adopted his witness statement as evidence in chief and produced his list of documents as exhibits 1-18. The witness statement was more or less the same in substance as the initial examination in chief. 11. During cross examination, he stated that the defendants were registered by mistake during the Land Adjudication which was done in 1982. He further stated that he had filed other applications and objections and that all his appeals were dismissed. He urged that Dalmas Andata, his father, was in the land committee during adjudication, although not when the defendants were registered as owners of the land. He testified that he did not know why the 2nd Respondent was registered when he was a minor and that they got the title deed in respect of another persons’ land. Further, that he had no documents but his objection was not dismissed and he was given the land but he later found that his name had been struck out on parcel no. 824. Additionally, that it is in the name of the 1st Respondent. 12. PW3 was Maurice Joho Andata who adopted his witness statement dated 13th June 2018. In his statement he stated that his father was the initial owner of land registration No. East Kanyada/ Kanyadier/824 and before he died, he distributed land to his sons; Silvanus Okeyo Andata who was given land parcel registration No. East Kanyada/Kanyadier/824, and he was given land parcel registration No, Kanyada Kanyadier/774 currently registered in his name. Further, that Land parcel No. Homa Bay/Kanyadier/965 was also his deceased father’s land and he used to cultivate it until his death in 1983. He also fenced Land parcel No. Homa Bay/Kanyadier/965 using sisal. He stated that his brother Silvanus Okeyo Andata conducted a search on land parcels registration No. East Kanyada/ Kanyadier/824 and Homa Bay/Kanyadier/965, he found out that the 1st Defendant and he fraudulently registered his name on parcel No. East Kanyada/Kanyadier/824. He was also surprised to find out that the 2nd Respondent caused his land to be joined together with part of his father’s land, now registered as land parcel No. Homa Bay/Kanyadier/965. 13. During cross examination, he stated that the dispute is not a boundary dispute and that parcel number 965 was combined with the one belonging to the 2nd Respondent. Further, that the land belonged to their father and the 2nd Respondent. That his father was deceased and he filed this case after his death. He stated that he was not issued with letters of administration and he did not know if the 2nd Respondent was issued with letters when adjudication was done. He did not know that their father registered the 2nd Respondent when he was 4 years old. 14. PW3 was Crisantus Osina who adopted his witness statement as evidence in chief. In his statement he stated that his brother, the late Dalmas Andata got into possession of what is now land registered as Land Parcel No. Homa Bay/Kanyadier/1965 in the year 1953. He cultivated the said piece of land and fenced it. That there were no disputes in relation his brother’s ownership until land demarcation https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7558/eng@2025-07-01 3

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started being conducted. He additionally stated that when the exercise was conducted, he believed that the land was in the name of his brother. He only came to learn that was not the position when his nephew, Silvanus Okeyo Andata discovered that the land had been registered in someone else’s name. The 2nd Defendant who owned land next to the suit land had his land and that of his brother joined to form Parcel No. Homa Bay/Kanyadier/965. 15. During cross examination, he stated that he did not know that the 2nd Defendant was registered as the owner of the land as a child. 16. PW4 was Salmon Ogola Okumu. He adopted his witness statement as evidence in chief. He stated that the land currently registered as Land Parcel No. Homa Bay/Kanyadier/965 belonged to Dalmas Andata. That he asked the said Dalmas to grant him the said piece of land to cultivate in 1976. He cultivated the land until 1979 and left it in the hands of Dalmas Andata, It was fenced using sisal and Dalmas had dug up part and sold the same as murram. The resultant hole is still there to-date and that is why he is sure it belongs to Silvanus Okeyo Andata as he is the son of the late Dalmas Andata. 17. During cross examination he stated that the late Dalmas Andata inherited the mother to the 2nd Respondent and was in the Land Committee on the area. Further, that the 2nd Respondent was registered as an owner of the land. 18. The Plaintifi closed his case and the Defendant called his witnesses. 19. DW1 was Dismas Odongo Angira, the 1st Respondent who adopted his witness statement as evidence in chief. In his statement, he stated that he was the registered owner of Land Parcel No. Kanyada/ Kanyadier/824. That the land was previously registered in his father’s name Samuel Angira who was married to one wife Angeline Ogino (deceased) by name Nyong’o Owino with him as the sole surviving child. Upon her death, his father started cultivating the land until he passed on. The land had a case at the tribunal at the DC’s ofice in Homa Bay in the year 2002 where the 1st Plaintifi filed a case against Maurice Angira, his deceased brother. He won the case as the land had already been registered in the witnesses’ names. Their father divided his land to his sons before he died and even registered them as owners thereof including himself. He additionally stated that the Plaintifi filed an appeal with the Minister who upheld the earlier decision at the tribunal and gave him back the said land in his name to date. 20. During cross examination, he stated that the land is his and is 4 acres and denied knowing the land that belongs to the Appellant. He stated that it was not true that the land was registered in his fathers’ name. He denied selling the land and urged that he was the 1st to be registered as the new of the land. 21. DW2 was the 2nd Respondent, Peterlis Ariyo, who adopted his witness statement as evidence in chief. In his statement, he stated that the land was registered in his name by Liech clan elders when he was still a minor and there was no one living on the land. He stated that the land had a case at the tribunal Homa Bay DC’s ofice in the year 2002 whereby the 1st Appellant filed a case against him but lost it and the land given to him. He proceeded to the Minister and filed appeal in respect to the land herein but the appeal was dismissed in 2004. 22. The witness stated that he moved into the land in 2014 and established his home there. Further, that the reason the parties want to inherit the land is due to the fact that their father, Dalmas Andata inherited their mother and at that time, his mother and Dalmas were jointly cultivating the land as he was a minor. He further stated that the Plaintifis had no basis for their claim and urged the court dismiss the claim with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7558/eng@2025-07-01 4

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23. During cross examination, the Respondent stated that the land belonged to his mother, Nyambok and she was inherited by Dalmas Andata. They then gave him the land and registered it in his name. Further, that he had not sold the land. 24. DW3 was Michael Liech Omiyo, the Appellants’ uncle. He adopted his witness statement as evidence in chief. In his statement he stated that the Plaintifi was his nephew. That in 1982, during demarcation Samwel Angira and Dalmas Andata were consulted before registering Dismas Odongo as owner of this piece of land. Further, that Dalmas Andata and other elders, during adjudication, registered Peterlis Ariyo though then a minor as the owner of parcel number Kanyada/Kanyadier/965.That the appeal to the minister was filed by Silvanus Okeyo and the DC Homa Bay physically viewed the parcels leading to the dismissal of the same and the parcels given back to the defendants. Additionally, that the Plaintifi had a case at the tribunal with Maurice Otieno Angira who is Dismas’s brother and Maurice won that case. The second case he filed at the tribunal against Peterlis Ariyo was also dismissed. 25. During cross examination, he stated that the land belonged to the 1st Respondent. That Dismas was in the land committee as the elder representing Liech and together with 5 elders they registered the land. 26. DW4 was Silvanus Ngilo Nyambogo who adopted his witness statement as evidence in chief. In it, he stated that the 2nd Respondent is his brother and the 1st Respondent is his step son. Further, that during demarcation in the year 1982, Samuel Angira and Palmas Andata were consulted before registering Dismas Odongo as owner of this piece of land. They registered Peterlis Ariyo, though then a minor, as the owner of parcel number Kanyada/Kanyadier/965 where he lives. That the appeal to the minister was filed by Silvanus Okeyo and the DC Homa Bay physically viewed the parcels leading to the dismissal of the same and the parcels given back to the defendants. Additionally, that the Plaintifi had a case at the tribunal with Maurice Otieno Angira who is Dismas’s brother and Maurice won that case. The second case he filed at the tribunal against Peterlis Ariyo was also dismissed. 27. During cross examination, he stated that Samuel Angira and Dalmas were present during registration and that the land was being cultivated by Andata who inherited their mother. 28. The parties then filed submissions and as aforementioned, the trial court dismissed the suit. Hearing of the Appeal 29. The parties were directed to file submissions on the appeal. The appellant filed submissions dated 14th November 2024 whereas the respondents filed submissions dated 30th September 2024. Appellants’ Submissions 30. On ground 1 of the Appeal, counsel sought to rely on the submissions dated 22nd February 2022 in the Record of Appeal. On ground 2 of the Appeal, Counsel cited Sections 25 (1) (b) and 28(b) of The Land Registration Act, 2012 and submitted that the learned Magistrate in his judgment was of the opinion that one has to be registered as a trustee in order that he can be said to hold his title in trust for the person in actual possession and occupation of a land. He reproduced the testimony of the 2nd Respondent and urged that he has not produced a copy of adjudication book which could have supported his unsubstantiated allegation that he was recorded as the proprietor of land parcel No. 965 during demarcation and that the same recording was authority by Dalmas Andata who is the father to the appellants. 31. On grounds 3 and 4, he submitted that the Respondent testified in examination in chief that he knew the appellants and that they are his neighbors thus they are not related unlike the 2nd Respondent. Pointing out that Land Parcel No. Kanyada/Kanyadier/824 measuring approximately 1.33 hectares is https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7558/eng@2025-07-01 5

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registered in the name of Dismas Odongo. He cited 25 (I) (b) and 28(h) once again and stated that the Appellant testified that in year 1984 a year after the death of his father, he forcefully entered into Land Parcel No. Kanyada/Kanyadier/824 and assumed occupation and he is cultivating the said piece of land. Since the year 1984 to-date the 1st respondent has not filed any case to evict him. He paced reliance on the case of Mwangi Githu v Livingstone Ndeete (Civil Appeal 24 of 1979) 1980 KECA 35 (KLR) (Civ) (8 July 1980) (Judgment) and prayed that the appeal be allowed with costs. Respondents’ submissions 32. Counsel opened his submissions by pointing out that the Grounds of Appeal raise new issues and matters that were not part of the plaintifis claim in their suit at the lower Court, for instance the issue of adverse possession. Further, that the Appellant's claim was in respect to Fraud and Trust which he failed to prove causing the trial magistrate to rightly dismiss the suit. He submitted that throughout their evidence in the lower Court the Appellants never gave evidence that they were in physical and/or actual possession of the suit lands herein. Counsel urged that the issue of adverse possession does not apply in this case where it is the appellants who have come to court to claim that the respondents' title to the suit land was obtained fraudulently whereas they are the ones trying to grab the respondents’ parcels of land unlawfully. 33. Counsel pointed out that the adverse period is counted from the time that the respondents were issued with titles which is the year 2015 so to date even if the Appellant were to claim that they are on the said land the said period does not add to 12 years as per their claim either. 34. Counsel submitted that Peterlis Ariyo has been in occupation of his parcel of land Kanyada/ Kanyadier/965 that was registered in his name while he was 4 years old to-date. Mzee Dismas Odongo was chased out of his land parcel No. Kanyada/Kanyadier/824 by the Appellant's Cousin way back in the year 2016 when this case was filed in court and the said cousin has continued to cultivate the land forcefully thereby reducing this old man of about 80 years to a squatter. He urged that this appeal lacks merit and prayed the court dismiss it with costs. Analysis & Determination 35. This Court has considered the grounds in the Memorandum of Appeal, the law, the evidence in the trial court, and the submissions of the parties. It is of the view that three issues, as outlined below should be the ones the Court shall analyse and determine. 36. This is a first appeal. As such, the principle upon which a first appellate court exercises jurisdiction is well settled. The task of a first appellate court was summarized in Abok James Odera t/a A. J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR as follows: “ This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.” 37. Additionally, the Court the of Appeal, in the case of Susan Munyi v Keshar Shiani (2013) eKLR stated as follows: “ As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyse, evaluate, assess, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7558/eng@2025-07-01 6

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weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions 38. 39. The issues that arise for determination are; i. Whether the trial court erred in holding that a person must be registered as a trustee to hold land in trust for the person in occupation and possession of the land. ii. Whether the trial court erred in failing to take note that a registered title holder of land holds it in trust for a person who acquires the land by adverse possession. iii. Whether the trial court erred by failing to note that the Appellant had acquired the suit land by way of adverse possession. iv. Who to bear the costs of the Appeal This Court now sets out to determine each of the issues sequentially, with the first one being on how registration of a trust as condition precedent to recognition of ownership of a property. Whether the trial court erred in holding that a person must be registered as a trustee to hold land in trust for the person in occupation and possession of the land. 40. The trial court, in its decision, found that the plaintifis were to prove that the title of the suit property was registered in the names of the defendants, in trust for them, which they failed to do. It is trite law that he who alleges must prove. Sections 107, 108 and 109 of the Evidence Act provide as follows:107. 108. Burden of Proof (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Incidence of burden. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 41. In Halsbury’s Laws of England, 4th edition, Volume 17 paragraphs 13 and 14 state:“ The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he had failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7558/eng@2025-07-01 7

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The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence." 42. In Anne Wambui Ndiritu v Joseph Kiptoo Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: “ As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the afirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 43. Additionally, Section 24 of the Land Registration Act 2012 provides as follows; “ Subject to this Act(a)The registration of a person as proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.” 44. Section 25 of the Land Registration Act recognizes overriding interests in registered land including trusts. It provides; “ 1. 2. 45. The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of Court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— a. to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and b. to such liabilities, rights and interests as afiect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.” Section 28 of the same Act provides; “ 28. Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and afiect the same, without their being noted on the register— (a) deleted by Act No. 28 of 2016, s. 11(a); (b) trusts including customary trusts; (c) ….. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7558/eng@2025-07-01 8

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46. (d) …. (e) ….. (f) …… (g) ….. (h) … (i) ……. and (j) any other rights provided under any written law.” The Court in the case of Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR), held as follows: “ While sections 25, 26 and 28 of the Land Registration Act recognized that the rights of a registered proprietor of land were absolute and indefeasible, those were only subject to rights and encumbrances noted in the register and overriding interests. The overriding interests included trusts. In the absence of any limitation as to the trusts, that included constructive trusts. Applying the provisions of article 24 of the Constitution therefore, the limitation of the right to property was provided under law, and included a constructive trust. Section 28 of the Land Registration Act provided that the registration was subject to overriding interests. One of the overriding interests was a trust, which included constructive trust.” 47. According to the Black’s Law Dictionary, 9th Edition; a trust is defined as: “ The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).” 48. Under the Trustee Act, “…the expressions” “trust” and “trustee” extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property…” 49. In discussing the concept of trusts, the case of Peter Ndungu Njenga v Sophia Watiri Ndungu (2000) eKLR, the Court held as follows; “ The concept of trust is not new. In case of absolute necessity, but only in case of absolute necessity, the court may presume a trust. But such presumption is not to be arrived at easily. The courts will not imply a trust save in order to give efiect to the intention of the parties. The intention of the parities to create a trust must be clearly determined before a trust is implied.” 50. In the case of Twalib Hatayan Twalib Hatayan & Another v Said Saggar Ahmed Al-Heidy & Others (2015) eKLR, the Court set out on the law on trusts as follows: “… In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. … A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7558/eng@2025-07-01 9

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upon the transferee ... This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity 29th Edn, Sweet & Maxwell p.175). Therefore, unlike constructive trusts where unknown intentions maybe left unexplored, with resulting trusts, courts will readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money. Whether or not the property is registered in his name or that of another, is immaterial (see Snell’s Equity at p.177) (supra).” 51. A resulting trust is defined in the Halsbury’s Laws of England, 4th Edition Vol. 48 at paragraph 597 as follows: “ A resulting trust is a trust arising by operation of law: 52. i. Where an intention to put property into trust is suficiently expressed or indicated, but the actual trust either is not declared in whole or in part or fails in whole or part; or ii. Where property is purchased in the name or placed in the possession of a person ostensibly for his own use, but really in order to efiect a particular purpose which fails; or iii. Where property is purchased in the name or placed in the possession of a person without any intimation that he is to hold it in trust, but the retention of the beneficial interest by the purchaser or disposer is presumed to have been intended.” The Court of Appeal discussed the burden of proving a resulting trust in the case of Heartbeat Limited v Ng’ambwa Heartbeat Community Children’s Home & Rescue Center [2018] eKLR where it stated that: “ Moving on to the pertinent issue of whether there was evidence of a resulting trust in favour of the respondent, we are cognizant that the onus lay with the respondent to prove the same through evidence. See Juletabi African Adventure Limited & Another v Christopher Michael Lockley – Civil Appeal No. 75 of 2016 (unreported). It was upon the respondent to establish that it was the parties’ intention that the appellant would purchase and hold the suit parcels in trust for it. Did it do so?” 53. The Appellant is not clear on what type of trust was created on their behalf. That notwithstanding, given that the land was registered in the name of the minor, as per the evidence of the witnesses in the trial court, I am in agreement that it could not have been registered in trust for the Appellant. The Appellant did not show that there was an intention for the Respondents to hold the suit land in trust for them. 54. Further, it was the appellant’s evidence that parcels of land in issue got registered in the names of the current owners as a result of the adjudication process. His further evidence was that when he challenged the registration of parcel No. 965 in the name of the current registered owner, it was awarded to the Defendant’s father as a buyer from the objector, by the Minister’s decision, upon hearing the appeal lodged. He added that when the matter once again, in February 2014, taken before the Chief and Lands Ofice, they ruled that the Adjudication process was done wrongly and advised that this case be instituted. 55. Additionally, he claimed that the Respondents had fraudulently registered the parcels in their names which is a completely difierent tangent from the claim of the land being held in trust. If indeed the Respondents were the ones that registered the titles in their own names, it follows that there would https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7558/eng@2025-07-01 10

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be no basis to the claim on trusteeship. I am guided by the holding in Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA (as he then was) stated as follows: “ It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from facts.” 56. The Appellant failed to produce any evidence regarding the allegations of fraud and therefore, the trial court was correct in its findings. 57. Further, it is clear to me then that the ownership of this parcels of land in issue went through the steps of the adjudication process as required by law and were found to be belonging to the owners that the said process settled on. There is no evidence of fraud having been made in those registrations. Furthermore, the adjudication process was not challenged at any one give time in relation to the two parcels of land in issue. Even if it was said to have been improper, which has not been stated so, it is way too late in the day for the appellant to challenge it, and any such challenge would be an afterthought. This is because he has never challenged it before, all the years the matter has been in courts or other ofices. That said, then the law regarding final determination of disputes or claims during adjudication process it clear. It lies in Section 29 of the Land Adjudication Act, Chapter dsasd Laws of Kenya. 58. Section 29 provides, “ (1) Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by— (a) delivering to the Minister an appeal in writing specifying the grounds of appeal; and (b) sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.” 59. The provision is to the plain interpretation and efiect that once the Minister concludes the process by making a determination his decision is final. It goes without saying that once the Minister gives his decision, unless it is set aside, it is final. If indeed it is final then no other review by way of determination by the Chief and the Lands Oficer would vary it, whether by themselves or their referral of the dispute to Court as they did. 60. The totality of the analysis is that, except for a constructive trust and or customary trusts, and the related exceptions, one ought to be expressly registered as a trustee in order to hold property for another in that manner. Thus, in my humble view, the trial magistrate did not err in holding as such. ii. Whether the trial court erred in failing to take note that a registered title holder of land holds it in trust for a person who acquires the land by adverse possession. 61. The issue of adverse possession was not an issue in the trial court. The claim was not based on adverse possession. Therefore, the Appellant has attempted to introduce a new issue on appeal. In any event the pleadings do not disclose any such a claim or cause of action. Additionally, even if he raised the that issue https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7558/eng@2025-07-01 11

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in the trial court the court could not have had jurisdiction to deal with it. This issue therefore cannot be up for consideration at this juncture and it never got into the decision of the trial court. In any event, if the issue of adverse possession should have been placed before the trial magistrate for determination in order as to declare the appellant an adverse possessor, the court have lacked jurisdiction determine such an issue. 62. In the premises the remaining grounds of appeal are also moot and consequently dispensed with. 63. The upshot of the foregoing is that the Appeal is dismissed for want of merit, with costs to the Respondent. 64. Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIA THE TEAMS PLATFORM THIS 1ST DAY OF JULY 2025. HON. DR. IUR FRED NYAGAKA JUDGE In the presence of, G.S. Okoth Advocate for the Appellant Ms. Mimba Advocate for the Respondents https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7558/eng@2025-07-01 12

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