Simiyu v Chindia

prots, and a declaration that the defendants had no legitimate claim, including through adverse possession. 3. The application was supported by an adavit sworn by Grace Vilegwa Chindia, dated 4th May 2021, in which she deponed inter alia, that she is the registered proprietor of the suit property, having purchased it from the original allottee, the late Samson Sumba Aligula, after clearing his outstanding loan obligations with the Settlement Fund Trustees (SFT) and the Agricultural Finance Corporation (AFC). 4. She stated that after execution of the sale agreement and procurement of the Land Control Board consent, the suit property was eventually registered in her name on 27th September 1985. She further deponed that despite the regularity of her acquisition, a third party, Joseph Mudogo Makhola, who was introduced as a caretaker refused to vacate the land. That he later lodged a failed claim over the property and, upon learning the respondent had cleared the loan, proceeded to informally subdivide and appropriate portions to his family, and unlawfully sold parts to third parties, the defendants in the trial court suit. 5. She averred that she later discovered that in 2017, one Elijah Aligula Sumba, a son of the original allottee, fraudulently led a succession cause, posed as her son, alleging the plainti’s death and had the suit property transmitted to himself before the grant was ultimately revoked, leading to restoration of her title in 2019. The plainti further stated that on 29th July 2020, she served the defendants with a 90day statutory eviction notice, which expired on 30th October 2020, but the defendants neither vacated nor asserted any lawful claim to the suit property. She contended that the defendants’ occupation is unlawful, their claims whether based on purchase or inheritance, are incapable of founding a claim for adverse possession, and that she is entitled to recovery of the suit property, eviction orders, and mesne prots. 6. The 19th defendant, Murefu Mudogo, led undated replying adavit on his own behalf and on behalf of other 25 defendants being defendant Nos. 1 – 5, 7, 10, 15 – 21, 23, 25, 27, 28 and 30 – 36. The rest of the defendants failed to defend the suit despite service. In his replying adavit, the 19th defendant stated that he was the personal representative of the estate of the late Joseph Mudogo Makhola who died on 14th April 2000. He deponed that the suit property was originally allocated to the late Joseph Mudogo Makhola by the Settlement Fund Trustees in 1964, whereupon Joseph settled on the land with his family. That although the land had at one time been allocated to Samson Sumba Aligula, it was allegedly reallocated to Joseph Mudogo Makhola on the grounds that Samson already had another parcel within the settlement scheme namely Kakamega/ Lumakanda/360, on which Samson lived and was eventually buried. He stated that Samson never settled on nor was he ever registered as proprietor of the suit property. 7. He averred that Samson Sumba Aligula nonetheless purported to sell the suit property to the plainti in 1978, culminating in the issuance of a title deed to her in 1985, but that Joseph Mudogo Makhola lodged several complaints before the Settlement Fund Trustees and local administrators, asserting that the suit property had been allocated to him. He averred that Makhola pursued the dispute before the Resident Magistrate’s Court in Kakamega Case No. 90 of 1981, where the matter was referred for arbitration, and that the tribunal allegedly found that the land belonged to him, although the award was never adopted due to the loss of the court le. He claimed that Makhola, his family, and subsequent purchasers have been in open and uninterrupted occupation of the suit property to date. On this basis, he contended that the plainti was not entitled to the reliefs sought in the Originating Summons. 8. In a rejoinder, the plainti swore a supplementary adavit dated 10th June 2021. She averred that Makhola was never allocated the suit property and that his entry thereon was with permission by https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18629/eng@2025-12-19 2

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Sumba initially as caretaker. That at the time of purchase of the suit property, Sumba was in loan arrears and that no evidence of allotment had been demonstrated in favour of Makhola. 9. The matter came up for mention for directions on 24th June 2021 and parties agreed to dispose the suit by way of written submissions. Upon consideration of the pleadings, annexures and submissions, the trial court held that the plainti had established a valid and indefeasible title to the suit property and that she had proved her entitlement to recover the land. The court found that none of the defendants had demonstrated any lawful claim, and that the replying adavit on record was unsupported by any documentary evidence. The court further held that allegations of entitlement or occupation were unsubstantiated, that the defendants were trespassers, and that the plainti had met the threshold for issuance of eviction orders. However, the court declined to award mesne prots for want of proof. Consequently, the suit was allowed in part, with an order of eviction and costs awarded to the plainti. 10. Having been dissatised with the trial court’s decision, the appellant lodged this appeal vide a Memorandum of Appeal dated 26th May 2022, citing the following eleven grounds of appeal: 11. a. That the learned Magistrates judgement did not conform to the grounds of law. b. That the learned trial Magistrate erred in law and in fact by failing to hear the parties to the case. c. That the learned trial Magistrate erred in law and in fact in not verifying to the defence led in court by the appellants. d. That the learned trial Magistrate erred in law and in fact in not appreciating that there existed in court a case by the appellants i.e Butali ELC NO. E59 OF 2020 for adverse possession. e. That the judgement of the court is in contradiction of the court’s order made on 5-4-2021 in CASE NO. ELC E5 OF 2020. f. That the learned trial Magistrate erred in law and in fact in failing to appreciate that the Land matters are emotive and require that all the parties be heard before a judgement by the court is made. g. That the learned trial Magistrate failed in law to consider the submissions by Counsel for Appellants paid for and led in Court. h. The learned trial Magistrate failed to appreciate as he should have that one Murefu Mudogo led a replying adavit on behalf of all the appellants. i. The learned trial Magistrate erred in law and in fact in delivering judgement without any notice to the appellants or their Advocates. j. The learned trial Magistrate wrote a shallow and perfunctory judgement which failed to address all the issues raised. k. That the learned trail Magistrate made erroneous ndings thus denying the appellants justice. Consequently, the appellants prayed that the appeal be allowed with costs. The appeal was canvassed by way of written submissions. On record are submissions by the appellants dated 10th May 2023 and submissions dated 23rd May 2023 led by the respondent; both of which this court has duly considered. Appellants’ submissions. 12. Counsel for the appellants isolated and submitted on three key issues for determination. On whether the appellants have a proper claim for adverse possession over the suit property, it was submitted that https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18629/eng@2025-12-19 3

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the appellants have been in open, continuous, peaceful and uninterrupted occupation of land parcel Kakamega/Lugari/547 for periods exceeding twelve (12) years, some for over forty (40) years, having taken possession upon purchase from one Joseph Mudogo Makhola, who was allegedly allocated the land by the Settlement Fund Trustees (SFT). It was contended that the original allottee, the late Samson Sumba Alugula, was never registered as proprietor and therefore lacked capacity to transfer a valid title to the respondent or her husband. 13. Relying on Sections 7, 13, 16, 17 and 38 of the Limitation of Actions Act as well as Section 28(h) of the Land Registration Act 2012, counsel submitted that the combined eect of these provisions is the extinguishing of the registered owner’s title in favor of the adverse possessor once the statutory period lapses. Counsel argued that the appellants met the legal threshold for adverse possession and should therefore be declared owners of the suit property in line with the decisions in Titus Mutuku Kasuve v Mwaani Investments Ltd & 4 Others (2004) and Gabriel Mbui v Mukindia Maranya (1993) eKLR, which set out the elements of adverse possession. 14. On whether the trial court erred by failing to hear all parties, the appellants argued that the proceedings before the trial court were conducted irregularly and unprocedurally. They relied on Order 11 of the Civil Procedure Rules, submitting that proper case management was never conducted. They cited Methuselar Keyah Lubembe v Albina Kipkemoi [2019] eKLR on the purpose of case conferences and disclosure obligations. 15. Resultantly, counsel contended that the trial court failed to discover that the respondent mischievously obtained leave to le Butali SPMC ELC No. E5 of 2020 out of time, despite the appellants having earlier led Butali ELC No. 59 of 2020 involving the same subject property. It was submitted that the trial court ought not to have entertained a fresh suit touching on the same issues when an earlier suit between the parties over the same land was pending. 16. It was further submitted that the matter, being a land dispute, required that all parties be aorded a fair hearing as guaranteed under Article 50 of the Constitution. The appellants contended that no viva voce evidence was taken, their counsel was never given notice of the judgment date, and the matter proceeded during the COVID-19 pandemic period without proper participation of the parties, thereby violating the rules of justice. 17. On costs, the appellants submitted that the respondent should bear the costs of both the suit and the appeal, arguing that the respondent was indolent in asserting her alleged rights and pursued parallel proceedings contrary to established procedure. They relied on Orix Oil (Kenya) Ltd v Paul Kabeu & 2 Others [2014] eKLR, for the proposition that costs follow the event unless special circumstances justify otherwise. 18. The appellants prayed for the appeal to be allowed with the following consequential reliefs: a declaration that they are the rightful owners of land parcel Kakamega/Lugari/547 by virtue of adverse possession; an order extinguishing the respondent’s title; a mandatory order directing the Land Registrar in Kakamega to register the appellants as the proprietors; and a prohibitory injunction to restrain the respondent from any interference with the suit property pending the determination of this appeal. Respondent’s submissions. 19. Counsel for the respondent opposed the appeal and submitted that the Memorandum of Appeal dated 26th May 2022 raised no maintainable grounds and was, in substance, a frivolous and vexatious attempt to deny the respondent the fruits of her judgment. Counsel argued that the rst ground of appeal, that the trial court did not conrm to the grounds of law, was vague and imprecise as it did not identify any https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18629/eng@2025-12-19 4

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specic provision of law that the trial court is alleged to have violated. Reliance was placed on Kiu & Another v Khaemba & 3 Others (Civil Appeal E270 of 2021) [2021] KECA (KLR) for the proposition that an arguable appeal must present a point capable of judicial interrogation. It was submitted that the trial court correctly applied Section 26 of the Land Registration Act, and having found that the respondent held a valid title whose root was satisfactorily established, there was no other legal issue requiring determination. Further that the appellants did not place any evidence before the court to challenge the respondent’s title. 20. On the second ground of appeal raised by the appellants, counsel submitted that the record demonstrates that the appellants were duly served but failed to attend court, failed to respond to the respondent’s supplementary adavit, and failed to le written submissions despite being granted the opportunity. It was thus their position that the trial court could not be faulted for the appellants’ omission to participate in their own defence. That the record further showed that the respondent served her submissions on the appellants’ advocates, yet they led none in reply. 21. On the ground that the trial court failed to consider the appellants’ led defence, it was submitted that the appellants led an undated replying adavit referring to annexures that were never produced. That the law does not place upon a court the burden of litigating a party’s case hence a party who fails to present evidence cannot fault the court for declining to rely on non-existent material. 22. Regarding the ground that the trial court failed to consider the existence of ELC No. 59 of 2020, counsel submitted that although the appellants had previously led Butali MC ELC No. 59 of 2020 claiming adverse possession, they never raised this defence or counterclaim in MC ELC No. 16 of 2021, nor did they seek consolidation of the two suits. The respondent submitted that Order 2 Rule 4(1) & (2) of the Civil Procedure Rules required adverse possession to be specically pleaded, which the appellants failed to do. Further, that the respondent had posed the question of whether the appellants had any legitimate claim to adverse possession, yet the appellants failed to either admit or deny the issue in their undated replying adavit. 23. Counsel submitted that in respect to explanation 3 under section 7 of the Civil Procedure Act, the defence of adverse possession ought to have been raised in MC ELC No. 16 of 2021 and is therefore deemed to have been determined therein. It was further submitted that Butali MC ELC No. 59 of 2020 was subsequently dismissed on 8th December 2022 for being res judicata, and therefore the appellants cannot revive the issue indirectly through an appeal. 24. Without prejudice to the above, counsel submitted that even if the court were to consider the issue, the appellants did not meet the threshold for adverse possession. That the respondent never took possession of the property and therefore could not have been dispossessed. Counsel argued that the appellants’ alleged occupation since 1964 predates the respondent’s acquisition of title, and therefore cannot constitute dispossession as enunciated in Sisto Wambugu v Kamau Njuguna (1983) eKLR Civil Appeal No. 10 of 1982, J.A Pye (Oxford) v Graham (2003) 1AC 419, and Haro Yonda Juaje v Sadaka Dzengo Mbauro & another (2014) eKLR Land Case No. 106 of 2007. 25. Counsel for the respondent submitted that in a claim for adverse possession, possession must be single and exclusive except in the case of joint possessors. That by the appellants’ own admission in the replying adavit sworn by Murefu Mudogo, there were two categories of claimants: those claiming occupation by inheritance and those claiming as buyers. This, the respondent argued, negated the essential element of joint possession with a unied intention of ownership. The respondent relied on the holding in Joseph Baker Kiamba Maniki v Abdi Godana Dida & 4 Others [2021] eKLR, ELC No. 91 of 2020, that title under the doctrine of adverse possession accrues to a specic adverse possessor upon proof of physical control for the statutory period, and that where possessors are several, they must https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18629/eng@2025-12-19 5

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show single possession exercised jointly, not severally. The respondent submitted that the appellants lacked the requisite animus possidendi. 26. As to whether the judgment of the court was in contradiction to the court’s orders made in ELC E5 of 2020, counsel submitted that the court merely directed that issues would be canvassed at a full trial hearing. On the issue that the appellants herein were not accorded a fair hearing, counsel averred that it was not the duty of the trial court to compel the appellants’ attendance or that of their advocates. That the trial court’s obligation was only to satisfy itself that service had been eected. Counsel submitted that the appellants did not le submissions in the trial court. That judgment was delivered on notice and the court le reected that when the matter was rst listed for judgment, the appellants’ former advocates M/s Omukunda & Co. Advocates, were served with a judgment notice but failed to attend court. 27. On behalf of the respondent, counsel prayed for the appeal to be dismissed and that the court arms the decree of the trial court by declaring that, as the registered proprietor of KAKAMEGA/ LUGARI/547, she is entitled to recover the suit property; that the appellants be declared trespassers and be subjected to eviction; that an order of eviction do issue against them; and that the Inspector General of Police and/or the OCPD Lugari provide security for the enforcement of the eviction and that the appellants be condemned to bear the costs of the appeal. Analysis and determination. 28. The court has duly considered the appeal, the record and parties’ rival submissions. The duty of the rst appellate court is to reassess, reconsider and reanalyze the evidence and make its own independent conclusions bearing in mind that it had no opportunity to see or hear the witnesses and make due allowance for that. (See Selle & Another-vs-Associated Motor Boat Co. Ltd. & Others (1968) EA 123) 29. Section 78 of the Civil Procedure Act grants this court in the exercise of its appellate jurisdiction extensive jurisdiction as follows; 78. Powers of appellate court 1. 2. 30. Subject to such conditions and limitations as may be prescribed, an appellate court shall have power— a. To determine a case nally; b. To remand a case; c. To frame issues and refer them for trial; d. To take additional evidence or to require the evidence to be taken; e. To order a new trial. Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein. Hence this court sitting as an appellate court has extensive jurisdiction including the jurisdiction to perform the same duties as the trial court by retrying the matter and making its own independent conclusions on all issues in the case, but keeping in mind that it had no advantage of observing the demeanour of witnesses. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18629/eng@2025-12-19 6

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31. Having considered the appeal, submissions and the record, the issues that arise for the court’s determination are; a. Whether the appellants were granted opportunity to be heard and whether their right to fair hearing was observed and protected by the trial court. b. Whether the appellants established any legal or equitable claim over the suit property. c. Whether the trial court ought to have taken into account the import of Butali ELC E5 of 2020 and ELC 59 of 2020. d. Whether the respondent demonstrated lawful ownership of the suit property. 32. The appellant raised the issue that they were not heard because no viva voce evidence was taken and that their replying adavit and submissions were not considered. Article 50 (2) ( c ) and (k) of the Constitution of Kenya provides for the right of every person to a fair hearing which include the right to have adequate time and facilities to prepare a defence and to adduce and challenge evidence. In other words, no one should be condemned unheard. 33. I have perused the proceedings. On 24th June 2021, Mr. Mugodo for the respondent and Mr. Omukunda for the appellants agreed to have the hearing of the suit proceed by way of written submissions. On 26th August 2021, the matter was subsequently xed for judgment on 6th December 2021, when the plainti’s counsel informed court that he had led submissions. The appellants who had agreed to proceed by way of written submissions did not le any submissions or seek more time to le submissions. It is therefore clear that the parties agreed to be heard by way of written submissions and not by viva voce evidence. A hearing can proceed by viva voce evidence or by written submissions. The trial court in this matter did not impose the mode of hearing the matter on the parties, neither was there contest over the same as parties are the ones that proposed to court to be heard through written submissions, which proposal was endorsed by court. It is therefore clear to me that all parties were aorded an opportunity to be heard. What a party chooses to do with an opportunity to be heard is entirely their business. They may choose to take up the opportunity and be heard as expected or misappropriate the opportunity. In this case, nothing and no one stopped the appellants from ling their submissions. Therefore, the appellants cannot now take about-turn and allege that they were not heard. The role of the court is to avail opportunity to be heard. If a party chooses not to be heard when opportunity is granted, the court cannot be faulted. It was therefore the duty of the appellants to le submissions. I have checked the trial court record, the record of appeal and supplementary record of appeal led by the appellants, and it is clear that no submissions were ever led by the appellants. Therefore, the appellants have no one to blame for failure to le submissions but themselves. On whether the trial court failed to consider the appellant’s submissions, the appellants did not state which part of their submissions was ignored and if so how that impacted the quality of justice in this matter. In any event, those submissions have not been provided because none were led by the appellants. For the foregoing reasons, I therefore nd and hold that the appellants were duly granted opportunity to be heard and their right to a fair hearing was observed and protected by the trial court. 34. Regarding whether the trial court considered the appellants’ defence, I have considered the judgment and I note that the trial court stated that it had considered the undated replying adavit led by the appellants herein on 21/05/2021, whereof the trial court rightly pointed out that the appellants had failed to attach evidence in support of their assertions that the suit property had been allocated to one Joseph Mudogo Makhola and or that they had been in adverse possession of the same. The trial court also observed that there was no evidence of payment of the loan to the Settlement Fund Trustee by the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18629/eng@2025-12-19 7

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alleged allottee, namely Joseph Mudogo Makhola. It is therefore clear that the trial court accorded the appellants a fair hearing having duly considered their replying adavit. 35. The appellants led a replying adavit. They claimed that the suit property was allocatted to Joseph Mudogo Makhola and that his family had been on the property peacefully. They were therefore raising the issue that they were the lawful owners of the suit property the same having been lawfully acquired by Joseph Mudogo Makhola and or that they had acquired it by adverse possession. 36. On whether the suit property was allocated to Joseph Mudogo Makhola by the SFT, it is trite that land allocation by SFT involved administering loans to settlers for land purchase and on full payment of the loan and compliance with the terms of allocation, the SFT was obligated to transfer the land to the allotte. I have considered the replying adavit of the appellants. While they insisted that Joseph Mudogo Makhola was allocated the suit property by SFT, no shred of evidence was attached to prove that allegation. In addition, no evidence of payment of a loan in respect of an alleged transaction between SFT and Joseph Mudogo Makhola was availed by the appellants. I therefore nd and hold that there is no proof that the suit property was allocate d to Joseph Makhola by SFT or that the latter paid the SFT loan regarding the suit property. 37. I now turn to the issue as to whether the appellants proved adverse possession. The principles of establishing adverse possession are now well settled. In Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR, the court described adverse possession in the following terms; “ Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the Adverse Possession is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. This doctrine in Kenya is embodied in Section 7 of the Limitation of Actions Act, which is in these terms; “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it rst accrued to some person through whom he claims, to that person.” 38. Similarly, in the case of Mbira vs. Gachuhi [2002] IEALR 137, the court held as follows; “ ……..a person who seeks to acquire title to land by the method of Adverse Possession for the applicable Statutory period must prove non-permissive or non-consensual actual, open, notorious, exclusive and Adverse use by him or those under whom he claims for the statutory prescribed period without interruption.” 39. Essentially, to claim land under the doctrine of adverse possession, a claimant must demonstrate that they have dispossessed the true owner of the land and occupied it peacefully, openly, continuously, without force, publicly, without the owner’s permission and not in secrecy for a period of 12 years. As the appellants alleged adverse possession, the burden of proof in that respect rested on them. 40. In the instant case, the appellants did not state and demonstrate when they entered the suit property. The respondent stated that Joseph Mudogo entered the suit property by the previous owner’s consent. Mudogo died. The appellants were sued in their personal capacity and not as representatives of Mudogo’s estate. In any event, no evidence of grant of letters of administration was availed. The respondent demonstrated having asked the appellants to vacate the suit property around 2017. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18629/eng@2025-12-19 8

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No rejoinder was made on that assertion. The respondent’s registration of the suit property was interrupted by the fraudulent registration thereof by Sumba’s son one Elijah Aligula Sumba, which happened in 2017. She resumed registration upon revocation of the fraudulent registration in 2019. The appellants did not provide evidence of uninterrupted occupation for a period 0f 12 years. In addition, a claim for land based on adverse possession is made by a trespasser against the true owner thereof, where the trespasser claims to have been in occupation openly, exclusively and as of right for an uninterrupted period of 12 years. Adverse possession therefore, cannot be made against a person said to be in an illegal ownership or where the legality of registration is contested. In asserting that the suit property did not lawfully belong to the respondent, they were stating that the true owner thereof was Joseph Mudogo Makhola and not the respondent as they questioned the ownership. The appellants therefore cannot be heard to argue that the suit property belonged to Joseph Mudogo Makhola and that they also had been in adverse possession. They can only choose to claim on adverse possession or challenge the alleged unlawful acquisition by the registered proprietor, the respondent herein as illegal registration and adverse possession do not coexist. In view of the above reasons, I nd and hold that the appellants did not prove adverse possession. 41. Regarding allegations that the trial court ignored that there was Butali ELC E5 of 2020 and ELC 59 of 2020, those two cases were never mentioned by the appellants in their replying adavit sworn by one Murefu Mudogo, neither was anything about the two cases attached to the replying adavit. Therefore, they did not form part of the issues for determination and hence the trial court cannot be faulted for not mentioning them in its judgment. 42. On whether the learned trial magistrate was right in nding that the respondent’s acquisition of title was lawful, Section 26 of the Land Registration Act provides for conclusiveness of title as follows; “ 26. Certicate of title to be held as conclusive evidence of proprietorship (1) 43. 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.” Essentially, registration of title vests in the proprietor, indefeasible as well as absolute rights regarding the land, unless it is proved that registration was obtained by fraud, misrepresentation, illegality, improper procedure, or corruption; whether or not the registered proprietor was party thereto. Hence title without proper lawful supporting documents demonstrating that the process of acquisition of such title was lawful, cannot be accorded legal protection. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18629/eng@2025-12-19 9

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44. In the case of Alice Chemutai Too – Vs – Nickson Kipkurui Korir & 2 Others [2015] eKLR, the court held that: “ It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. Where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation. However, where a person intends to indict a title on the ground that the title has been acquired illegally, unprocedurally, or through a corrupt scheme, my view has been, and still remains, that it is not necessary for one to demonstrate that the title holder is guilty of any immoral conduct on his part. I had occasion to interpret the above provisions in the case of Elijah Makeri Nyangwara –vs- Stephen Mungai Njuguna & Another, Eldoret ELC Case No. 609 B of 2012 where I stated as follows:- “…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent titleholder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally, or through a corrupt scheme. The titleholder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions. “I stand by the above words and I am unable to put it better that I did in the said dictum.” 45. In the instant case, it is not disputed that the respondent is the registered proprietor of the suit property. The appellants’ defence was that the suit property was originally allocated to Samson Sumba Aligula and latter reallocated to Joseph Mudogo Makhola in 1964 by the Settlement Fund Trustee where the latter settled with his family. That Sumba without Mudogo’s knowledge sold the entire parcel to the respondent in 1985. That Mudogo complained to the SFT and they conrmed that the land had been allocated to him. That he later led suit in Kakamega SRM Case No. 90 of 1981 which suit was referred to the Tribunal but the award was never adopted as an order of the court as the court le went missing. That the family of Mudogo and the buyers have occupied the suit property peacefully to date. 46. In essence, the appellants alleged that the acquisition of the suit property by the respondent was unlawful because the allocation was made to Joseph Mudogo Makhola by SFT and Sumba had no capacity to sell the same to the respondent. However, as rightly observed by the trial court, no evidence that the suit property was allocated to Joseph Mudogo Makhola was presented by the appellants. The appellants in their replying adavit conceded that the suit property had been allocated to Sumba. The respondent presented evidence of payment receipts to SFT demonstrating that she paid the loan regarding the suit property. It is clear to me that the suit property had been allocated to Sumba who failed to pay the loan thereof and chose to transfer the land and loan obligations to the respondent who fully settled the entire loan and accordingly the suit property lawfully transferred to him by the SFT. Therefore, the trial court was right in concluding that the appellants failed to demonstrate that the SFT had at any one time allocated the suit property to Joseph Makhola. 47. The appellants also failed to demonstrate that the acquisition by the respondent was unlawful. The respondent having explained and demonstrated that Sumba defaulted in loan payment and sought her intervention whereof she paid the loan that culminated in SFT transferring the suit property to her, indeed demonstrated lawful acquisition of the suit property. In the premises I agree with the trial https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18629/eng@2025-12-19 10

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court that the respondent demonstrated that she lawfully acquired the suit property by purchase and settlement of the loan to SFT. 48. Thus, the respondent proved her case and more particularly lawful ownership of the suit property, on the required standard and the appellants failed to demonstrate any justication for their presence thereon, and hence the trial court was right in granting eviction orders sought against the appellants. 49. Ultimately, I nd no merit in this appeal which I hereby dismiss with costs to the respondent. 50. 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; Mr. Omondi holding brief for Mr. Mugodo for the respondent No appearance for the appellant Court Assistant: Delphine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18629/eng@2025-12-19 11

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