Imbutsi v Nashiali & another

Wire Wechuli’s home and took back the plainti because he was his only heir and placed him on his parcel No. Kakamega/Lukume/399 (suit property). That the suit property was subdivided into three portions and almost the whole of it registered in the names of the 2nd and 3rd defendants respectively. 3. The 1st defendant led defence to the suit and denied the allegations that the plainti was his son. He also denied taking part in bringing the plainti to his land and maintained that his brothers were trying to impose the plainti on him but he chased the plainti away. The 2nd and 3rd defendants also led defence denying the plainti’s allegations and insisting that they were gifted the suit property by the 1st defendant. 4. Before the suit was heard, the 1st defendant died. The plainti informed court that the suit against the 1st defendant had abated by virtue of his death. He however led amended plaint dated 26th September 2019, where he stated that he had obtained grant of representation in respect of the estate of the 1st defendant and was suing the 2nd and 3rd defendants in his capacity as administrator of the estate of the 1st defendant (Philip). 5. In the amended plaint, he sought cancellation of the resultant title deeds being Kakamega/ Lukume/2196, 2197 and 2198, and for the land to revert to the original parcel No. Kakamega/ Lukume/399 in the name of his late father, Phillip Muruya Imbusi; a permanent injunction to restrain the defendants from evicting the plainti or farming or constructing on the suit properties and an order for the defendants to demolish their structures on the suit properties. In the amended plaint, the plainti pleaded that the 1st defendant in the trial court (now deceased), was his biological father and the original registered proprietor of parcel number Kakamega/Lukume/399 prior to its subdivision. 6. Further that he was born in 1961 and initially raised by his mother and step-father, under whose name he grew up as Peter Were Wechuli, until 1981 when the 1st defendant allegedly went for him, brought him back home, and performed Kabras customary rites for his acceptance into the homestead. He stated that thereafter he settled on parcel No. Kakamega/Lukume/399 with his family of over thirty dependents, cultivated the land for over twelve years, and that in 2002, the 1st defendant even swore an adavit and executed a deed poll to have his name changed to Peter Were Imbusi. 7. He averred that the 2nd and 3rd defendants, who are sons of his uncle, later colluded with the 1st defendant, who by then was aged, ill, had suered a stroke, and was allegedly of unsound mind, to subdivide the land secretly and to transfer substantial portions to themselves, namely parcels Kakamega/Lukume/2196 and 2197 totaling to approximately 20 acres, leaving only 0.43 hectares in the name of the 1st defendant. The plainti contended that the transfers were irregular, unprocedural, fraudulent, contrary to Kabras customary law, and meant to defeat his entitlement as the sole heir. 8. He cited particulars of breach of trust and fraud, alleging that the defendants took advantage of the 1st defendant’s age and ill health, induced or coerced him into executing transfer documents without family witnesses, forged signatures or thumbprints, and eected the transfers without following due process. He claimed that the deceased 1st defendant could not have attended the lands oce due to his physical and mental condition at the material time. 9. The 2nd and 3rd defendants led a joint amended defence dated 27th July 2020 in response to the plaint. The defendants disputed the appellant’s assertion that he was a biological son of the late Phillip Muruya Imbusi, and further denied the plainti’s assertion that he was ever taken back by the deceased in 1981, that any Kabras customary rites were performed, or that the appellant ever settled on the suit property as an heir or otherwise. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18609/eng@2025-12-19 2

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10. The defendants further disputed the alleged name change in 2002, denied that the appellant lived on parcel No. Kakamega/Lukume/399 for twelve years, and refuted allegations of eviction or collusion to disinherit him. They maintained that the subdivision of Kakamega/Lukume/399 into parcel Nos. 2196, 2197 and 2198 and the subsequent transfers were lawful, voluntary and procedurally undertaken by the deceased who, according to them, was of sound mind and fully capable of executing transfer documents at the material time. They further denied that the deceased ever suered a stroke or became mentally incapacitated, and termed the allegations of fraud, illegality, coercion, forgery and unprocedural acquisition as baseless, speculative and false. They prayed that the plain ti’s suit be dismissed with costs. 11. The suit proceeded to hearing by way of viva voce evidence. The plainti called four witnesses in support of his case, while the defence called two witnesses. Plainti ’s evidence. 12. PW1 was Peter Were Imbusi, the plainti. He adopted his witness statement dated 26th September 2019 as his evidence in chief and produced the documents in his list of documents and further list dated 30th September 2017 as exhibits. He stated that he was a biological son of the late Philip Muruya Imbusi and that the defendants were his cousins, being sons of his father’s brother. It was his testimony that his mother was married to the deceased but later separated from him. He further told court that although he grew up away from his biological father, Philip Muruya Imbusi, the deceased reclaimed him in 2002, caused him to change his name from Were Wechuli to Peter Were Imbusi, and brought him back to his home as his biological son and only child. According to PW1, upon his return, his father conducted customary rites, assisted him in changing his name through an adavit and deed poll, and allowed him to settle on the suit land where he constructed several semi-permanent houses and planted sugarcane on the suit land. 13. He further testied that the defendants later inuenced his father, who had allegedly suered a stroke in 2008 and lost memory, to believe that PW1 was not his son. He stated that the defendants cheated his father and took advantage of his illness and loss of memory and caused the subdivision of Kakamega/ Lukume/399 into parcel Nos. 2196, 2197 and 2198, and transferred the same to themselves through fraud, coercion, forgery and or inducement. He stated that he lived on the land from 1981 to 2009 before being chased away by the defendants. That following his father’s death, he was the only biological child, the rightful heir of the deceased and as the administrator of his late father’s estate and prayed that the land be restored to him. 14. In cross-examination, PW1 conrmed that he obtained his rst national identity card under the name Were Ochori and changed it in 2002 after reuniting with the deceased. That the deceased died in 2012 and he attended the burial but was not recognized as a son of the deceased. That he was not present when the deceased distributed land to the defendants and did not receive any portion. He conceded that he did not object before the Land Control Board at the time of transfer, that he left the suit land around 2008 and had not resided there since. 15. In re-examination, PW1 maintained that his mother had been married to the deceased and that he was born in that union. He stated that the deceased took him back formally and performed Kabras customary rites to integrate him into the family. PW1 testied that the deceased consented to the change of his name and even executed an adavit in that regard. He reiterated that he lived on the suit land from 1981 to 2009 and was chased away by the defendants after the deceased became ill. That he approached the court after he found out that the defendants had obtained grant of letters of administration for his father’s estate and transferred the land to themselves. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18609/eng@2025-12-19 3

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16. PW2 was Feronica Nekesa, the mother to PW1. She adopted her witness statement dated 3rd October 2011 as her evidence in chief. She testied that the Plainti is her son, born in 1961, and that his father was Philip Muruya Imbusi, to whom she was married. She stated that after a disagreement, she left their matrimonial home and raised the Plainti until he was 18 years old, at which point he was taken by his biological father in 1981. 17. Upon cross examination, she stated that she left Philip Muraya’s home when she was ve months pregnant, having been married in 1959 and separated in 1960. She testied that she gave birth to the Plainti while residing in Busia and that he was subsequently taken by his father, at the age of 20. PW2 denied the suggestion that the Plainti returned to his father as a mature man with three wives and children. She further stated that the deceased did not give the Plainti any portion of land during his lifetime. In reexamination, PW2 reiterated that at the time the deceased took PW1, he was 20 years of age. 18. PW3 was Zacharia Imbusi. He adopted his witness statement dated 11th February 2021 as his evidence in chief and told the court that the Plainti was the son of his late brother, Philip Muruya Imbusi, and that the Plainti's mother left the marital home while pregnant with him. PW3 stated that the family was informed of the plainti's birth in accordance with Luhya customary law. He further testied that in March 1981, his late brother formally brought the plainti back to the family home, performed the requisite Luhya customary rites to integrate him, and subsequently gave him a portion of the suit land, Kakamega/Lukume/399, where the plainti resided and cultivated for many years. 19. PW3 asserted that when their late brother became gravely ill, suered stroke and was bedridden around 2008, the defendants took advantage of his condition. He alleged that in 2009, the defendants fraudulently caused the suit land to be transferred to themselves and subsequently evicted the plainti. PW3 contended that the family was unaware of these transfers and that the deceased, due to his inrmity, could not have voluntarily executed the documents, suggesting the acts were done under duress, coercion, or without his full comprehension. In cross examination, he stated that in 2011 Philip was alive but sick. That the deceased’s wife one Arieta had been chased away from the suit property. That he witnessed the plainti being brought home by Philip and that a ceremony was done. 20. PW4 was Mark Amukuya. He adopted his witness statement dated 11th February 2021 as his evidence in chief. He testied to being a senior family member and an immediate neighbor to the parties, residing on the adjacent parcel, Kakamega/Lukume/400. PW4 stated that the Plainti was the son of the late Philip Muruya Imbusi and that the deceased organized a traditional ceremony in 1981 after the Plainti was formally brought back to the family home. He stated that the Plainti subsequently settled on the suit land, Kakamega/Lukume/399, for approximately 28 years. PW4 further testied that when the late Philip Muruya Imbusi suered a stroke around 2008, he became old and of unstable mind. PW4 alleged that the Defendants fraudulently transferred the land to themselves during this period of the deceased's incapacity, asserting that the deceased, who loved his son, would not have willingly disinherited him. He conrmed being an eyewitness when the Defendants evicted the Plainti from the land, noting that the deceased, who was present, was too sick and helpless to intervene. On crossexamination, PW4 armed his presence at the Plainti's welcoming ceremony together with other family members, and stated that the plainti attended the 1st defendant’s burial but did not speak. 21. In re-examination, PW4 rearmed the plainti's legitimacy, stating that dowry was paid for his mother, and that the Plainti lived on the land for many years without complaint. He stated that the family did not witness the distribution of the land to the Defendants and that he was unaware of the proceedings in the prior case. That marked the close of the plainti’s case. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18609/eng@2025-12-19 4

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Defence evidence 22. DW1 was Kellam Makokha, the 2nd defendant. He testied that the late Philip Muraya was his uncle and the registered owner of the suit land, Kakamega/Lukume/399. He stated that the deceased voluntarily subdivided the land into three portions and gifted two of them, Kakamega/Lukume/2197 and 2196, to DW1 and the 3rd defendant respectively, retaining approximately one acre for himself. DW1 denied inuencing the deceased, asserting that the gifts were made because the deceased wished to protect his land from his step-brothers among them, Zacharia Imbusi (PW3). He contended that the deceased had denied the plainti was his son and averred that the plainti did not attend the deceased's funeral. 23. Under cross-examination, DW1 stated that the deceased took them to the District Ocer's oce, after which the Land Control Board granted consent and the land was formally subdivided and titles issued on 2nd October 2009. He admitted that the deceased's wife was not present during these transactions and that no family agreement was executed. DW1 conrmed that the deceased was 78 years old at the time of the transfer and was left with only one acre of his original land. While he acknowledged seeing the plainti on the land, he stated he did not know his relationship to the deceased. In re-examination, DW1 stated that the plainti himself demolished his houses and left the land. Further, that he was not involved in any traditional rites concerning the plainti. 24. DW2 was Hudson Mwachi, the 3rd defendant. He adopted his witness statement dated 17th July 2011 as his evidence in chief, conrming that he received the parcel No. Kakamega/Lukume/2196 as a gift from the late Philip Muraya in 2009. 25. Under cross-examination, DW2 armed that he did not purchase the land but received it as a gift. He conceded that he possessed no independent documentary evidence, such as a gift instrument, to prove this beyond the title deed itself. He further testied that the plainti had never resided on the land and that he had only seen him briey in the early 1980s. That marked the close of the defence case. 26. Upon consideration of the pleadings, evidence and submissions, the trial court held that the plainti had failed to discharge the burden of proving that the defendants' titles were obtained by fraud, misrepresentation, or in an illegal or irregular manner. The court consequently dismissed the plainti's suit with costs, upholding the validity of the title deeds held by the defendants. 27. Having been dissatised with the trial court’s decision, the appellant lodged this appeal vide a Memorandum of Appeal dated 20th July 2022, citing the following ten grounds of appeal: a. That the learned trial Magistrate erred in fact and in law by making a nding that the title deeds held by the respondents are valid, yet they were obtained unprocedurally, irregularly and fraudulently in violation of the express provisions of law, there being no written agreement, no witnesses, and no consent of the land control board rendering the title deeds invalid under the law. b. That the learned trial magistrate erred in fact and in law in nding that the appellant had not proved his case on a balance of probabilities, yet the appellant discharged the burden of proof to the required standard based on the evidence that he adduced. c. That the learned trail magistrate erred in fact and in law by allowing the respondent's case when the appellant had proved the commission of fraud to the required legal standard. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18609/eng@2025-12-19 5

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28. d. That the trial magistrate erred in fact and in law by upholding the respondent's case when it was proved that there was no consent by the family of the deceased, father of the appellant to transfer the land to the respondents as a gift as is required by law. e. That the learned trial magistrate erred in fact and in law and misdirected himself by nding that the father of the appellant one Phillip Muruya Imbutsi now deceased, who was proprietor of Land Parcel number KAKAMEGA/LUKUME/399 had the mental capacity to transfer his land to the respondents and ignored the appellants evidence both from death certicate and witness testimony that the deceased had suered stroke and was not able to transfer 21 acres of his land to the respondents and disinherited his own son as alleged by the respondents. f. That The learned magistrate erred in fact and in law by misdirecting himself and failed to appreciate the fact that the respondents having admitted that the land was transferred to them as a gift by the deceased, had the burden to proving that the requisite legal procedures of such a transfer was done and to demonstrate the t the root of their title is authentic, and placed the evidentiary burden of proof upon the appellant who had fully discharged his legal burden of proof that the land was . transferred irregularly, unprocedurally and fraudulently. g. That the learned Magistrate erred in fact and in law by failing to appreciate the evidence of the appellant that even if the transfer were valid, the same was in violation of customary law trust, which transfer was a deliberate scheme by the respondents to defeat his right of inheritance of his ancestral land, an issue that was pleaded and which the trial magistrate ignored in its entirety. h. That the learned magistrate erred in fact and in law and misdirected himself by ignoring the entire evidence and submissions and authorities cited by the appellant that the respondents having claimed that the land was bequeathed to them as a gift did not follow the legal procedures of transfer of such land. i. That the learned magistrate misdirected himself by ignoring the evidence of the appellant on the counter claim which was neither defended nor challenged by the respondent herein and failed to make a nding in favor of the appellant’s the counter claim which was unchallenged and proved. j. That the learned trial magistrate erred in fact and in law when he ignored the evidence of the appellant that he had lived on the land for a period of more than 28 years, with his deceased father and the appellants evicted him illegally without an order of the court and rendered him homeless with his entire family of over 45 people namely his wives, children and grandchildren and occasioning injustice to the appellant. Consequently, the appellant sought the following orders: i. That this appeal be allowed, and the judgment of the lower court be set aside; ii. That the honorable court to revoke the certicate of title of the 1st and 2nd respondents Kakamega/Lukume/ 2196 and Kakamega/Lukume/ 2197 respectively and order that the land to revert to the original number Kakamega/Lukume/399 and name of proprietor Philip Muruya Imbusi to pave way for succession process to proceed. iii. That under the circumstances this court to make such orders as may meet the cause of justice. iv. Costs of the appeal and the lower court be borne by the respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18609/eng@2025-12-19 6

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29. The appeal was canvassed by way of written submissions. On record are submissions by the appellant dated 27th May 2024 and submissions dated 27th November 2024 led by the respondents; both of which this court has carefully considered. Appellant’s submissions. 30. Counsel for the appellant submitted that substratum of the appeal was crystallized around ve key issues. On the validity and legality of the transfer, it was contended that the respondents’ own admission that the land was an oral gift during cross examination rendered the transaction a nullity. Counsel emphasized that Section 37 of the Land Registration Act and its predecessor, Section 85 of the repealed Registered Land Act, mandatorily require a disposition of land to be eected by a formal instrument in writing. Reliance was placed on the decision in Alice Waguama Muriithi & another v Grace Wambura Njue [2016] eKLR, which armed that a gift of agricultural land must comply with statutory procedures, including execution in the prescribed form and attestation. It was further submitted that the transaction violated Section 3(3) of the Law of Contract Act, which voids any contract for the disposition of an interest in land that is not in writing and attested by witnesses. 31. Secondly, it was submitted that the trial magistrate erred by completely ignoring the appellant’s pleaded case on customary trust. Counsel argued that the appellant adduced uncontroverted evidence, including adavits and testimony from family members (PW2, PW3, and PW4), proving he was the biological son of the deceased and had lived on the suit land for 28 years. It was asserted that this long-term occupation and recognition by the clan created an overriding interest in his favor. The trial court’s reliance on an unproduced statement from the deceased, who was not a party to the suit after abatement, was cited as a fundamental error. The principles for establishing a customary trust as set out in Isaak M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR were pleaded, and it was submitted that the appellant's evidence squarely met this threshold. 32. On the issue of the deceased’s lack of capacity to execute the land transfer to the respondents, the appellant submitted that the trial court disregarded evidence that the transfer was executed when the deceased was approximately 78 years old, inrm, and suering from a stroke, which rendered his mental capacity doubtful. Counsel contended that the secretive transfer of almost the entire estate (20 out of 21 acres), done without the knowledge of the deceased's wife or family, evidenced its impropriety and undermined the claim of a voluntary gift. 33. Fourth, counsel argued that the trial court misapplied the principle on burden of proof. It was submitted that once the appellant challenged the legality of the respondents' title, the evidential burden shifted to the respondents to prove the root of their title and demonstrate due compliance with all legal procedures. Citing authorities such as Munyu Maina v Hiram Gathiha Maina [2013] eKLR and Alex Kyalo Mutua v Francis Makau Ngulasa [2021] eKLR, counsel contended that the respondents' failure to produce crucial documents was fatal to their case and ought to have been decided in favor of the appellant. The appellant pleaded for equitable intervention, stating that the respondents' actions had rendered him and his large family homeless. Counsel prayed for the court to allow the appeal, cancel the impugned titles, and order the land to revert to the name of the deceased for the benet of his rightful heirs. Respondent’s submissions. 34. Counsel for the respondents submitted that the trial court correctly found that the appellant was not entitled to the reliefs sought in the amended plaint dated 26/09/2019, as he had failed to prove any fraud or impropriety on the part of the respondents in the manner they acquired the suit property. It https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18609/eng@2025-12-19 7

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was argued that the respondents were lawfully gifted portions of land by their late paternal uncle, that the burden of proof fell on the appellant, and that the appellant did not demonstrate any collusion or fraudulent conduct in that process. Counsel further submitted that the appellant failed to prove that he was the biological or adopted son of the late Philip Muruya Imbusi, averring that the appellant himself gave an account before the trial court that he was born and raised in Busia County by his biological father, whose name he naturally bore at birth. According to counsel, the appellant only came into the life of the deceased when he was already an adult, married to three wives, and with several children and grandchildren, after being approached by the step-brothers of the deceased who allegedly sought to have him adopted due to the deceased’s inability to sire children. 35. Counsel submitted that the alleged Kabras customary adoption rituals were conducted without the involvement of the deceased’s immediate blood relatives, including his brother, Christopher Nasiali Imbusi, and the respondents who were children of the said Christopher. It was contended that any such ceremony, if at all it occurred, was conducted secretly and without the knowledge of the deceased’s close family. Further, counsel noted that the appellant’s own testimony revealed that after purportedly staying with the deceased for some time, he voluntarily renounced the alleged adoption and returned with his entire family to his biological father’s home in Busia County, a fact which undermined any claim of a continuing lial relationship. 36. It was further submitted that the deceased categorically denied having adopted the appellant, as evidenced in his defence and accompanying statement. Counsel emphasized that the deceased suered medical challenges that prevented him from siring children and that he voluntarily and without coercion gifted portions of his land to the respondents, his nephews, and personally attended the relevant Land Control Board to eect the transfers. The respondents argued that the deceased passed away ten years after the suit had been led, during which time he maintained his position that no adoption had occurred. Counsel submitted that the appeal lacked merit and prayed that it be dismissed with costs. Analysis and determination. 37. The court has carefully considered the appeal, the entire trial court record and the parties’ rival submissions. The mandate of this court as a rst appellant court is to re-evaluate, reanalyze and reassess the evidence on record and make its own independent conclusions, bearing in mind that it had no advantage of seeing or hearing the witnesses, and make due allowance for that. This position was stated in the Cases of Selle & Another –vs- Associated Motion Boat Co. Ltd & Others (1968) EA 123 and Peters –v- Sunday Post (1958) EA 424. 38. Since a rst appeal is decided on facts and the law, the rst appellate court is usually the nal court on facts and therefore on appeal, parties deserve a fair, independent and full analysis of the evidence as anything short of that would amount to an injustice. Therefore, the role of this court being the rst appellate court is to apply its mind to the entire case, re-evaluating both questions of fact and law and considering all issue arising from the case. 39. Having considered the appeal herein the issue that arise for the court’s determination is whether the trial court was wrong in concluding that the appellant did not prove his claim over the suit property. 40. Section 107 of the Evidence Act places the burden of proof in a claim on the plainti. In the amended plaint, the plainti abandoned his capacity as son of Philip and made a claim based on his capacity as personal representative of the estate of Philip. Before he passed on, in his defence and witness statement, Philip was categorical that the appellant was not his son, and denied ever bringing him on the suit property, insisting that some of his brothers were forcing the appellant on him. In the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18609/eng@2025-12-19 8

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amended plaint therefore, on behalf of the estate of Philip, the appellant sought the suit property based on both customary trust and that the respondents were registered as proprietors of the suit property fraudulently. 41. The Supreme Court of Kenya, in the case of Isack Kieba Mínanga v Isaaya Theuri M’Lintari & Another [2018] e KLR, explained customary trust as follows; “ 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: are:1.The land in question was before registration, family, clan or group land.2.The claimant belongs to such family, clan, or group3.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.” 42. Similarly, in the case of Kamau v Thiga (Environment and Land Appeal 5 of 2021) [2022] KEELC 2839 (KLR) (21 July 2022) (Judgment) the court sated as follows; “ The legal burden of proving existence of trust rests with the one who is asserting a right under customary trust. To discharge this burden, the person claiming must prove that; The suit properties were ancestral land;During adjudication and consolidation, one member of the family was designated to hold on behalf of the family;The registered persons were the designated family members who were registered to hold the parcels of land on behalf of the family. In essence he had to lay bare the root of the title to create the nexus or link of the trust to the title holder and the claimant.” 43. 44. Therefore, to prove customary trust, a claimant must demonstrate that; a. The land in question was before registration, family, clan or group land. b. The claimant belongs to such family, clan, or group. c. 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. d. The claimant could have been entitled to be registered as an owner or other beneciary of the land but for some intervening circumstances; and e. The claim is directed against the registered proprietor who is a member of the family, clan or group. Is there a customary trust relationship between Philip and the 2nd and 3rd respondents? Before he died, Philip had challenged the appellant’s assertion that he was his son. Philip stated that he lawfully gifted the respondents the suit property. The suit property was transferred from Philip to the respondents in his lifetime. The appellant has not stated how the voluntary transfer of the suit property by Philip to the respondents created customary trust. Suing as the legal representative of Philip’s estate, what the appellant seeks claims is that there was customary trust between Philip and the respondents. Philip, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18609/eng@2025-12-19 9

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before his death had maintained that he voluntarily transferred the suit property to the respondents as a gift. The applicant’s claim on the basis of his allegations that he was Philip’s son, in the original plaint, is so dierent from his claim as administrator of the estate of Philip. In his defence, Philip demonstrated that he had no dispute with the respondents. The amended plaint sought to create a non existent dispute between Philip and the respondents. No evidence that a trust was created by the transfer of the suit property by Philip to the respondents. In the premises, I nd and hold that the appellant failed to prove that the suit property was held by the respondents in trust for the estate of Philip. 45. Regarding fraud, Section 26 of the Land Registration Act provide for indefeasibility of title as follows; “ Certicate of title to be held as conclusive evidence of proprietorship (1) The certicate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certicate, and the title of that proprietor shall not be subject to challenge, except— (a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or (b)Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 46. Therefore, unless there is proof that the acquisition of title by a registered proprietor was by fraud, misrepresentation, illegality or corruption, registration vests in a proprietor of land, absolute and indefeasible rights. 47. In the case of Munyu Maina v Hiram Gathiha Maina, Civil Appeal No239 of 2009, the Court of Appeal held that; “ We have stated that when a registered proprietor root of title is challenged, it is not sucient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.” 48. Where a party alleges fraud, they must specically plead the particulars thereof and strictly prove the same. The standard proof of fraud is slightly higher than the standard required in ordinary civil cases of the balance of probability. However, that standard is slightly below the standard of proof in criminal cases of beyond reasonable doubt. In the case of Kinyanjui Kamau –vs George Kamau [2015] e KLR the court expressed itself as follows; “ …it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo –vs- Ndolo [2008]1 KLR (G & F) 742 wherein the court stated that: “…we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18609/eng@2025-12-19 10

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burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in Criminal Cases…” 49. In the instant case, the appellants herein enumerated particulars of fraud, on the part of the respondents as follows; that the respondents coerced and induced Philip to transfer the land to them; that they forged his signature; that they took advantage of Philip’s senility and ill health and that they transferred the land without following due process. 50. On whether Philip was coerced and or induced, no evidence was presented by the appellant. In addition, no evidence of forgery was presented as to whether Philip was senile or of ill health to render him incapacitated, and unable to transact. This same person said to have lost memory and been taken advantage of, also led a defence and witness statement denying those allegations and insisting that he voluntarily gifted the suit property to the respondents. In the premises, I nd and hold that no evidence of fraud was presented by the appellant. 51. Therefore, the trial court was right in nding that the appellant failed to prove his claim. In the premises, I nd no merit in this appeal which I hereby dismiss with costs. 52. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 19TH DAY OF DECEMBER 2025 A. NYUKURI JUDGE In the presence of; No appearance for the appellant No appearance for the respondents Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18609/eng@2025-12-19 11

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