Ng'oma & another

2. The appellants are the legal representatives of the estate of Richard Ng’oma Orero (hereinafter “the deceased”), who died on 17th May 2017 and who was, until his death, the registered proprietor of all that parcel of land known as Land Reference No. Kisumu/Manyatta ‘A’/100. The 1st respondent is the registered proprietor of Land Reference No. Kisumu/Manyatta ‘A’/5125, being one of the two parcels resulting from the sub-division of the original parcel. The 2nd respondent is the registering authority for the district and the 3rd respondent is the principal legal adviser to the Government, joined in that capacity. 3. I record at the outset that the name of the 1st respondent appears in the record in two forms, namely “Joan Achieng Aluoch” and “Joan Achieng Oluoch”. Nothing turns on the variance, the identity of the party never having been in issue. For consistency I adopt the form used in the memorandum of appeal and in the Record of Appeal, that is to say, “Joan Achieng Aluoch”. 4. The appeal is brought under section 13(4) of the Environment and Land Court Act, 2011 as read with JUDGMENT ELCA NO. E111 OF 2024 2

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section 79G of the Civil Procedure Act, and this court sits as the first appellate court. The proceedings before the trial court 5. By a plaint dated 20th February 2018 and filed on 6th April 2018, the appellants, then the plaintiffs, sued the respondents, then the defendants, expressly in their capacity as the legal representatives of the estate of the deceased. They pleaded, at paragraphs 6 and 7 of the plaint, that on or about 25th May 2017 the defendants conspired fraudulently to sub-divide Kisumu/Manyatta ‘A’/100 into Kisumu/Manyatta ‘A’/5124 and Kisumu/Manyatta ‘A’/5125 and thereafter fraudulently to transfer the latter parcel to the 1st defendant after the death of the deceased and without the consent of the plaintiffs and/or the family members. 6. The particulars of fraud pleaded were three in number, namely: (a) sub-dividing the deceased’s parcel without the JUDGMENT ELCA NO. E111 OF 2024 3

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consent of family members as required by law; (b) unlawfully and/or illegally entering forged particulars in the transaction and/or transfer documents; and (c) purporting to transact, sub-divide and/or transfer the parcel when the defendants knew, or ought to have known, that the deceased was incapacitated, sick, on his hospital death bed, or dead. 7. The reliefs sought were general damages, an injunction restraining the defendants from alienating, transferring or intermeddling with the deceased’s property, an order directing the 2nd defendant to trace and reconstruct the original parcel from the two resultant sub-divisions, an order for the eviction of the 1st defendant, costs and interest. 8. The 1st respondent filed a statement of defence dated 12th February 2019 in which she denied the alleged fraud, conspiracy and forgery, and pleaded that the deceased had, in his lifetime, agreed to sell to her a portion of the parcel, had received the purchase price in full, had himself procured the sub-division JUDGMENT ELCA NO. E111 OF 2024 and had executed the 4

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instrument of transfer in her favour. The 2nd and 3rd respondents filed a joint statement of defence dated 6th March 2019 and filed on 13th March 2019, in which they denied the allegations of fraud and averred that any subdivision and transfer had been carried out in accordance with the law. 9. Three witnesses testified for the plaintiffs and two for the 1st defendant. The 2nd and 3rd defendants closed their case without calling evidence. 10. PW1, Michael Otieno Ng’oma, a son of the deceased, adopted his witness statement dated 21st March 2018 and produced seventeen exhibits, among them a copy of a green card opened on 10th May 2017 (P.Exh 1), the transfer of land form dated 10th April 2017 (P.Exh 2), a letter of consent dated 10th May 2017 (P.Exh 3), an application for consent of the Land Control Board dated 15th May 2017 (P.Exh 4), a copy of the Kenya Gazette dated 7th October 2016 (P.Exh 5), the title deed dated 15th February 1996 (P.Exh 6), a medical report dated 30th April 2018 (P.Exh 8) and the certificate of death (P.Exh JUDGMENT ELCA NO. E111 OF 2024 5

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14). His evidence was that the 1st respondent had been the family’s tenant, that he learnt in May 2017 that his father was selling a portion of the land to her, that the family objected because the deceased was unwell and did not comprehend the transaction, and that the land was transferred to the 1st respondent eight days after his father’s death. 11. Under cross-examination, PW1 confirmed that the deceased had signed the sale agreement in the presence of two of his step-mothers, Teresia Ngoma and Julia Ngoma; that the photograph, signature and thumbprint appearing on the instrument of transfer were those of the deceased; that the deceased did not deny selling a portion of the land; and that the family’s complaint was that the deceased had not sought the consent of the family. He further conceded that he had no evidence of the deceased’s alleged incapacity beyond the report of PW3, that he had never reported the alleged forgery to any investigative authority, and that although the 1st respondent had fenced off and put up a structure on the JUDGMENT ELCA NO. E111 OF 2024 6

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portion purchased during the lifetime of the deceased, the deceased never complained of any trespass. 12. PW2, Damar Ogola Ng’oma, the second appellant and a widow of the deceased, testified that she had never met the 1st respondent, that she did not consent to the transfer and did not attend any land control board, that the deceased had twenty-one children and that his estate was yet to be distributed, and that she had built houses on the suit property, which she described as her homestead. In cross-examination she stated that the property was family property bought from a person she knew only as “Jagem” for about Kshs. 900,000/=, that she had contributed Kshs. 500,000/= towards its acquisition but had nothing to prove that contribution, and that she could not recall when the land was bought. She conceded that the land was not ancestral land, and that she had not reported the alleged forgery anywhere. 13. PW3, Dr. Samuel Juma, a physician, produced a medical report dated 30th April 2018 (P.Exh 8) in which he opined that the deceased JUDGMENT ELCA NO. E111 OF 2024 had, between 2014 and 2015, 7

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presented with, among other conditions, senile dementia. In cross-examination he stated that he had prepared the report at the request of a person whose name he could not recall and whom he did not know, said to have acted on the instructions of the appellants’ advocate; that he kept both clinical and financial records for his patients; and that he had not produced any record showing that the deceased had ever been his patient. 14. DW1, Joan Achieng Aluoch, testified that the deceased, who was her landlord and a friend of her grandfather, had offered to sell her a portion of the land so as to redeem his title deed, which was held by the Industrial and Commercial Development Corporation as security for a loan. She produced, among other documents, a sale agreement in respect of Kisumu/Manyatta ‘A’/100 (D.Exh 2), a receipt for Kshs. 300,000/=, a further sale agreement (D.Exh 4), deposit slips for Kshs. 690,000/=, Kshs. 50,000/= and Kshs. 3,000/=, an application for consent for sub-division and the consent thereto, a police abstract and notice of loss of the title deed, and a copy of the gazette notice dated 7th October 2016. Her evidence was that the JUDGMENT ELCA NO. E111 OF 2024 8

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deceased personally undertook the sub-division and the process of obtaining consent, that he executed the transfer forms and affixed his thumbprint in his lifetime, that the agreement was witnessed by two of his wives, that the family knew of the sale before he died but took no step to stop it, and that she had fenced off and developed her portion during his lifetime without complaint. 15. DW2, Dominic Ochieng Deka, the husband of DW1, testified that he had witnessed the sale agreement, had paid part of the purchase price on behalf of DW1, and had been present when the deceased signed the transfer documents. He described the deceased as elderly but healthy and of sound mind, using a walking stick and travelling personally to Kisumu to collect rent from his tenants. He further stated that Teresia and Julia had been present in court during the trial but had backed off out of fear, Julia having complained to him of intimidation. 16. The learned trial magistrate framed three issues, namely whether the suit property was fraudulently sub-divided and a portion thereof fraudulently transferred to the 1st JUDGMENT ELCA NO. E111 OF 2024 9

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defendant, whether the plaintiffs were entitled to the reliefs sought, and who should bear the costs of the suit. 17. Directing herself on Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR and Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR, the trial court held that fraud must be specifically pleaded and strictly proved, and that it may not be inferred from the facts. On the evidence, the court found that the pleaded case, namely that the transactions were carried out after the death of the deceased, was contradicted by the oral testimony of both plaintiffs, who confirmed that the transactions had been carried out in the deceased’s lifetime; that PW1 had admitted the deceased’s signature, photograph and thumbprint on the transfer; that the two step-mothers who had witnessed the agreement, and who were available and indeed present in court, had not been called, from which an adverse inference fell to be drawn; that the alleged discrepancy in the dates of the land control board consent could not, without more, establish fraud, more so as consent was not required for the suit property; that the evidence of PW3 JUDGMENT ELCA NO. E111 OF 2024 10

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was unreliable, the report having been prepared after the death of the deceased and after the filing of the suit, and no record having been produced to show that PW3 ever attended to the deceased; that the plaintiffs had failed to demonstrate that the suit property was matrimonial property requiring spousal consent; and that the 1st defendant had demonstrated how she came to be registered as proprietor. 18. The trial court accordingly answered the first issue in the negative, found that the plaintiffs were not entitled to the reliefs sought, and dismissed the suit with costs. The appeal 19. Aggrieved by that judgment, the appellants filed a memorandum of appeal dated 23rd December 2024 raising seven grounds, which may be summarised as follows: that the learned magistrate erred in law and in fact in failing to find that Kisumu/Manyatta ‘A’/100 was fraudulently sub-divided and Kisumu/Manyatta ‘A’/5125 fraudulently transferred to the 1st respondent (ground 1); in failing to consider the medical reports and the evidence JUDGMENT ELCA NO. E111 OF 2024 11

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of the appellants’ expert witness on the mental incapacity of the deceased at the time of the transaction (ground 2); in failing to find that the suit property was matrimonial property for which spousal consent was required (ground 3); in finding that the appellants were not entitled to the reliefs sought and in dismissing the suit with costs (ground 4); in failing to enter judgment against the 2nd and 3rd respondents, who, it was said, neither filed a defence nor defended the suit (ground 5); in finding that the 1st respondent had demonstrated how she came to be registered as proprietor of Kisumu/Manyatta ‘A’/5125 (ground 6); and in failing to analyse and take into account the appellants’ submissions and authorities (ground 7). 20. The appellants pray that the appeal be allowed, that the judgment and decree of 18th December 2024 be set aside in their entirety, and that the costs of the appeal and of the proceedings in the lower court be borne by the 1st respondent. Submissions JUDGMENT ELCA NO. E111 OF 2024 12

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21. The appeal was canvassed by way of written submissions. The appellants filed submissions dated 16th October 2025 through the firm of Erykah Law Advocates, and the 1st respondent filed submissions dated 29th May 2026 through the firm of M/s Owiti, Otieno & Ragot Advocates. The 2nd and 3rd respondents did not file any written submissions. 22. The appellants argued all seven grounds together. Their first contention was that the 1st respondent procured title by fraud or misrepresentation, the deceased having died on 17th May 2017 and being incapable of transferring the land on 25th May 2017, and no grant of representation having been taken out in respect of his estate at the time of registration, so that the transfer offended sections 45(1) and 55(1) of the Law of Succession Act. They relied on James Karogo Njau v Walter Njau Muchunu & 6 others [2022] eKLR. Secondly, they submitted that the burden lay on the 1st respondent to prove that the signature and handwriting on the transfer and the application forms were those of the deceased, relying on sections 70, 107 and 109 of the Evidence Act and on JUDGMENT ELCA NO. E111 OF 2024 13

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Khamala v Robinson Security Ltd (Appeal E024 of 2023) [2024] KEELRC 2076 (KLR). Thirdly, they pointed to the discrepancy between the date of the letter of consent and the date of the application for consent, relying on Silas Towett Kamuren & Another v Moses Simatwa & Another [2019] eKLR. Fourthly, they submitted that the deceased was polygamous, that the suit property was matrimonial property, and that no spousal consent was obtained. Fifthly, they submitted that no stamp duty was paid, rendering the transaction invalid. Finally, they submitted that the evidence of PW3 established that the deceased lacked capacity, relying on Dhalay v Republic (1995–1998) EA 29 and Mutonyi v Republic (1982) KLR 203 for the proposition that a reasoned expert opinion which stands unrebutted ought not to be rejected. 23. The 1st respondent submitted that the appellants sued exclusively as administrators of the estate and therefore stand in the shoes of the deceased, with the consequence that the appeal asks the court to set aside a sub-division and a sale which the deceased himself undertook and JUDGMENT ELCA NO. E111 OF 2024 14

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from which he took the full benefit. She submitted that the sub-division of land is a process undertaken by the registered proprietor and the land registry, in which a proposed purchaser plays no part; that fraud was neither particularised nor proved to the requisite standard; that the appellants themselves admitted that the deceased executed the agreements and the transfer and affixed his thumbprint; that no forensic examination was ever undertaken and no complaint was ever made to any investigative authority; that the two wives who witnessed the agreement were deliberately withheld, permitting an adverse inference; that land control board consent was not required, the suit property being situate within the boundaries of the Municipality of Kisumu; that the question of matrimonial property was never pleaded; that the 2nd and 3rd respondents did in fact file a defence, and that in any event the burden of proof never shifted from the appellants, relying on Karugi & another v Kabiya & 3 others [1983] KECA 38 (KLR); and that the evidence of PW3 was properly rejected, an expert opinion being of no weight where the substratum of facts upon which it JUDGMENT ELCA NO. E111 OF 2024 15

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rests is not proved, relying on Stephen Kinini Wang’ondu v The Ark Limited [2016] eKLR. Analysis and determination 24. I have carefully considered the memorandum of appeal, the Record of Appeal, the rival written submissions and the authorities cited, together with the pleadings, the evidence and the judgment of the trial court. 25. This being a first appeal, my mandate is settled. In Selle & Another v Associated Motor Boat Company Limited & Others [1968] EA 123, the predecessor of the Court of Appeal held that a first appeal is by way of retrial, and that the appellate court is under a duty to reconsider and re-evaluate the evidence on record, to weigh conflicting evidence and to draw its own conclusions, bearing always in mind that it has neither seen nor heard the witnesses and must therefore make due allowance in that respect. That caution was expressed in Peters v Sunday Post Limited [1958] EA 424 in these terms: JUDGMENT ELCA NO. E111 OF 2024 16

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“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.” 26. I have approached the record in that spirit. Having considered the grounds of appeal and the submissions, I frame the issues for determination as follows: (i) Whether the appellants proved that Land Reference No. Kisumu/Manyatta ‘A’/100 was fraudulently sub-divided and that Land Reference No. Kisumu/Manyatta ‘A’/5125 was fraudulently transferred to the 1st respondent; (ii) Whether the registration of the transfer after the death of the deceased, and in the absence of a grant of representation, vitiated the 1st respondent’s title; (iii) Whether the trial court erred in its treatment of the evidence of PW3 on the capacity of the deceased; JUDGMENT ELCA NO. E111 OF 2024 17

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(iv) Whether the suit property was matrimonial property in respect of which spousal consent was a pre-requisite; (v) Whether the trial court erred in declining to enter judgment against the 2nd and 3rd respondents and in failing to consider the appellants’ submissions; and (vi) What orders ought to issue, and who should bear the costs of the appeal. (i) Whether fraud was proved 27. The law governing pleading and proof of fraud is not in doubt. In Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, Tunoi, JA (as he then was) stated that it is well established that fraud must be specifically pleaded, that particulars of the fraud alleged must be stated on the face of the pleading, that the acts alleged to be fraudulent must be set out and then stated to have been done fraudulently, and that fraudulent conduct must be distinctly alleged and distinctly proved, it not being allowable to leave fraud to be inferred from the JUDGMENT ELCA NO. E111 OF 2024 18

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facts. In Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR, the Court of Appeal, adopting Ndolo v Ndolo [2008] 1 KLR (G & F) 742, reiterated that because an allegation of fraud or forgery borders on the criminal, the standard of proof required is higher than that in ordinary civil cases, though it does not attain the standard of proof beyond reasonable doubt. 28. The particulars of fraud pleaded in the plaint were, as I have set out above, three. I consider each in turn. 29. As to the first particular, that the parcel was sub-divided without the consent of family members, I agree with the trial court, and with the 1st respondent, that the complaint is untenable in law. Sections 24, 25 and 26 of the Land Registration Act, 2012 vest in the registered proprietor the absolute ownership of the land together with all rights and privileges belonging or appurtenant thereto, and section 25(1) subjects that ownership only to leases, charges and other encumbrances noted on the register and to overriding interests declared in section 28. It is common ground that the deceased was the sole registered JUDGMENT ELCA NO. E111 OF 2024 19

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proprietor of Kisumu/Manyatta ‘A’/100, that the land was not ancestral land, and that he had acquired it by purchase from a third party. There is no rule of law which requires a registered proprietor of land held in his own right, and not upon any trust, to obtain the consent of his adult children or of his family before sub-dividing it. Indeed, the process of sub-division is one initiated by the registered proprietor and completed by the survey and registration authorities; a proposed purchaser plays no part in it. There was no evidence whatsoever that the 1st respondent participated in the sub-division of the parent parcel. 30. There is a further and more fundamental difficulty. The appellants sued, and expressly pleaded that they sued, in their capacity as the legal representatives of the estate of the deceased and in no other capacity. PW1 confirmed as much repeatedly in his evidence. An administrator who sues in that capacity does not sue for his own benefit; he sues in the place of the deceased and asserts the rights which the deceased himself could have asserted. It follows that the case which the appellants placed before the trial JUDGMENT ELCA NO. E111 OF 2024 20

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court was, in substance, that the deceased was asking the court to undo a sub-division which he himself had lawfully initiated and completed. The estate cannot in the same breath assert the deceased’s title and impeach the deceased’s own dealings with that title. The first particular of fraud was therefore misconceived. 31. As to the second particular, the entry of forged particulars, the appellants did not identify in their pleading what was forged. That alone falls short of the requirement of distinct particularisation. But the difficulty runs deeper. It was PW1, the appellants’ own principal witness, who confirmed in cross-examination that the photograph, the signature and the thumbprint on the instrument of transfer were those of his late father, and who further confirmed, upon being shown the agreement by his own advocate, that the deceased had indeed signed it. PW2 likewise did not challenge the execution. No document examiner was called, notwithstanding that the appellants had in their possession the deceased’s identification documents and other specimens of his signature, and notwithstanding that the deceased’s discharge of charge and original title JUDGMENT ELCA NO. E111 OF 2024 21

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deed were, on PW1’s own account, in the appellants’ custody. No complaint of forgery was ever made to the police or to any other investigative authority. In those circumstances there was, quite simply, no evidence of forgery before the trial court. 32. The appellants’ reliance on section 70 of the Evidence Act and on Khamala v Robinson Security Ltd (Appeal E024 of 2023) [2024] KEELRC 2076 (KLR) is, with respect, misplaced. Section 70 requires proof of a signature where the signature is in dispute. Here, the execution of the agreements and of the transfer by the deceased was admitted by the party alleging forgery. A fact admitted need not be proved. In Khamala, the authenticity of the document and of the signature was disputed throughout and the party relying on the document called no evidence to establish it; that is the opposite of the position on this record. The burden of proving the pleaded forgery lay, under sections 107 and 109 of the Evidence Act, on the appellants who asserted it, and it was never discharged. JUDGMENT ELCA NO. E111 OF 2024 22

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33. A word is necessary on the discrepancy in the dates of the letter of consent and the application for consent of the Land Control Board. Two points arise. First, that discrepancy was never pleaded as a particular of fraud; the appellants cannot litigate a case they did not plead, and to permit them to do so would be to allow the court to infer fraud from a fact, contrary to Vijay Morjaria. Second, and in any event, the suit property lies within the boundaries of the Municipality of Kisumu. By section 2 of the Land Control Act, Cap. 302, agricultural land does not include land situate within a municipality, and the advisory of the Office of the Attorney General appearing at page 78 of the Record of Appeal confirms that position. Consent of the Land Control Board was accordingly not required for the transaction at all. As the trial court aptly observed, it is difficult to see why a party would forge a document which was not needed in the first place. The decision in Silas Towett Kamuren & Another v Moses Simatwa & Another [2019] eKLR does not assist the appellants; there the discrepancies formed part of a larger matrix of JUDGMENT ELCA NO. E111 OF 2024 23

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established irregularities affecting agricultural land for which consent was indispensable. 34. As to the third particular, that the respondents transacted knowing the deceased to be incapacitated, sick or dead, the pleaded case that the transactions took place after the death of the deceased was contradicted by the appellants’ own evidence. Both PW1 and PW2 confirmed in court that the transactions had been carried out during the lifetime of the deceased. The documentary record bears this out: the first sale agreement is dated 25th February 2014, the second 11th April 2015, and the instrument of transfer was executed by the deceased on 10th April 2017 before an advocate who certified that the deceased appeared before him, was identified by his identity card, and freely and voluntarily executed the instrument having understood its contents. The question of the deceased’s mental capacity I address separately under issue (iii) below. 35. I would add one further observation on the evidence. Teresia Ngoma and Julia Ngoma, two of the wives of the JUDGMENT ELCA NO. E111 OF 2024 24

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deceased, witnessed the sale agreement. It was PW1’s evidence that they had told him they signed under duress and without knowing the contents of what they were signing. They were available. They were, as the trial court expressly noted, present in court during the hearing. They were not called. Where a party fails to call a witness who is available and whose evidence goes to the heart of the case, the court is entitled to infer that the evidence, had it been given, would have been adverse to that party. The trial court drew that inference, and it was fully entitled to do so. 36. Standing back and re-evaluating the whole of the evidence, as I am obliged to do, I am satisfied that the appellants did not come close to proving fraud to the heightened standard the law requires. On the contrary, the evidence established a transaction which, on its face, was regular: an agreement for sale executed and witnessed, consideration in the sum of approximately Kshs. 1,040,000/= paid in instalments and evidenced by a receipt and bank deposit slips, a sub-division procured by the vendor himself, an instrument of transfer executed JUDGMENT ELCA NO. E111 OF 2024 25

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before an advocate and bearing the vendor’s photograph, signature and thumbprint, and a purchaser who took possession, fenced her portion and put up a structure upon it during the vendor’s lifetime without a whisper of complaint from him. Ground 1 of the memorandum of appeal, and with it grounds 4 and 6, must fail. (ii) Registration after the death of the deceased 37. The appellants’ most substantial argument on this appeal is one which the trial court did not address in terms, and which I am therefore bound to consider. It is this: the deceased died on 17th May 2017; the instrument of transfer was presented for registration and registered on 25th May 2017, eight days later; no grant of representation had by then been taken out in respect of his estate; and therefore, it is said, the registration was an act of intermeddling contrary to section 45(1) of the Law of Succession Act, Cap. 160, and offended section 55(1) of that Act, so that the 1st respondent’s title cannot stand. Reliance was placed on James Karogo Njau v Walter Njau Muchunu & 6 others [2022] eKLR. JUDGMENT ELCA NO. E111 OF 2024 26

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38. The first thing to be said is that the premise of the appellants’ submission, namely that the deceased “could not have risen from the dead to transfer the land to the defendant on 25th May 2017”, misreads the record. The 25th of May 2017 is the date on which the instrument was presented to and received by the land registry, as the registry stamp on the transfer at page 18 of the Record of Appeal shows. It is not the date of execution. The deceased executed the transfer on 10th April 2017, some five weeks before his death, and the transferee executed it on 10th May 2017, a week before his death. What occurred after the death of the deceased was not a transfer by him but the registration of an instrument he had already executed. 39. That distinction is decisive. Section 45(1) of the Law of Succession Act prohibits any person from taking possession of, disposing of, or otherwise intermeddling with any free property of a deceased person otherwise than as authorised by the Act or by a grant of representation. The free property of a deceased person is the property which is beneficially his at the date of his JUDGMENT ELCA NO. E111 OF 2024 27

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death. Where, in his lifetime, a registered proprietor has entered into a binding contract for the sale of his land, has received the whole of the purchase price, has executed and delivered the instrument of transfer together with the completion documents, and has put the purchaser into possession, the vendor thereafter holds the legal estate upon a bare trust for the purchaser. The purchaser is in equity the owner. The interest which passes to the estate on the vendor’s death is the bare legal title, held upon that trust, and the personal representatives take the estate subject to the equity. That has been the position since at least Lysaght v Edwards (1876) 2 Ch D 499, and it is a principle which our courts apply, section 3 of the Judicature Act preserving the application of the doctrines of equity. 40. It follows that the portion of land sold to the 1st respondent, fully paid for, delivered into her possession and covered by an executed transfer, was not free property of the deceased in the sense contemplated by section 45(1). Had the transfer not been registered, the personal representatives of the deceased would have JUDGMENT ELCA NO. E111 OF 2024 28

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been bound to complete it; indeed, the sale agreement itself defined the vendor as including his personal representatives, heirs and executors. The appellants, suing as administrators, took the estate subject to that obligation. They cannot use the machinery of the Law of Succession Act to repudiate a bargain which their predecessor in title made, performed and profited from. 41. James Karogo Njau is distinguishable on its facts. There, the land of a deceased person was transferred to third parties in circumstances where the deceased himself had done nothing in his lifetime to divest himself of it, and no consideration moving from him was in issue. Here, everything which the vendor was required to do, he did, and he did it while alive. 42. I do not, however, wish to be understood as approving the course which the registration took. Once the 2nd respondent was aware, or ought to have been aware, that the proprietor named in an instrument presented for registration had died before presentation, the prudent and proper course was to decline to register until the transfer JUDGMENT ELCA NO. E111 OF 2024 29

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was completed by duly appointed personal representatives, or until the court so directed. I say no more on that, since no relief is sought against the 2nd respondent on that footing and the point was not the subject of evidence. But the irregularity, if such it was, was an irregularity of process on the part of the registering authority. It was not fraud on the part of the 1st respondent, and section 26(1)(a) of the Land Registration Act protects a proprietor save where fraud or misrepresentation is proved against him as a party. 43. Finally on this issue, even had I been persuaded that the registration was liable to be impeached, I would have hesitated long before granting the reliefs sought. The appellants asked the trial court to reconstruct the parent parcel and to evict the 1st respondent. They did not plead, offer or tender restitution of the Kshs. 1,040,000/= which the deceased received and which went towards redeeming his charged title and meeting his expenses. He who seeks equity must do equity. An estate cannot retain the price and recover the land. Issue (ii) is accordingly resolved against the appellants. JUDGMENT ELCA NO. E111 OF 2024 30

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(iii) The evidence of PW3 and the capacity of the deceased 44. Ground 2 asserts that the trial court failed to consider the medical reports and the evidence of the appellants’ expert. With respect, that is not what the record shows. The learned magistrate devoted a substantial passage of her judgment, at page 222 of the Record of Appeal, to the evidence of PW3 and to her reasons for rejecting it. The complaint is therefore not that the evidence was not considered, but that it was not accepted. That is a different matter altogether. 45. The law starts from a presumption that an adult person is of sound mind and competent to manage his affairs. The burden of displacing that presumption lies upon the party who asserts incapacity, here the appellants. Expert evidence tendered under section 48 of the Evidence Act is relevant, but it is not binding on the court. It remains for the court to determine what weight, if any, to attach to an opinion, having regard to the qualifications of the expert, the material upon which the opinion is founded, and the other evidence in the case. As was stated in Stephen JUDGMENT ELCA NO. E111 OF 2024 31

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Kinini Wang’ondu v The Ark Limited [2016] eKLR, expert evidence is worthless unless it is founded upon a substratum of facts proved, independently of the expert, to the satisfaction of the court. 46. The infirmities in the evidence of PW3 were serious and cumulative. The report (P.Exh 8) is dated 30th April 2018, that is, some eleven months after the death of the deceased and some two months after the filing of this suit. PW3 conceded that he prepared it on the instructions of a person whose name he could not recall and whom he did not know. Although he testified that he opened and kept a file for every patient, he produced no clinical record, no treatment note, no attendance record and no receipt to establish that the deceased had ever been his patient, still less that he had attended to him in the period 2014 to 2015 as the report asserts. And critically, the opinion which the appellants sought to extract from the report is that the deceased suffered from senile dementia, a mental illness; yet PW3 is, on the face of the report, a physician and not a mental health practitioner within the meaning of section 2 of the Mental Health Act, Cap. 248. JUDGMENT ELCA NO. E111 OF 2024 32

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47. Against that stood a body of contemporaneous evidence pointing the other way: the deceased personally reported the loss of his title deed and procured a gazette notice to that effect on 7th October 2016; he personally initiated and pursued the sub-division of his land; he executed the transfer before an advocate who certified that he understood its contents; he continued to travel from his rural home to Kisumu to collect rent from his tenants; and, as DW2 testified, he was elderly and used a walking stick but was otherwise well. It is also not without significance that if the appellants truly believed their father to be labouring under a mental illness at the material time, no application was made under the Mental Health Act to protect him or his property, and no step was taken to restrain the transaction in his lifetime, though they knew of it. 48. The authorities relied upon by the appellants do not carry them further. Dhalay v Republic (1995–1998) EA 29 addresses the position where a properly qualified expert gives a reasoned opinion and there is no other evidence in conflict with it. JUDGMENT ELCA NO. E111 OF 2024 Here the expert’s qualification to 33

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pronounce upon a mental illness was in question, the factual substratum of his opinion was not proved, and there was abundant evidence in conflict with it. Mutonyi v Republic (1982) KLR 203 is to similar effect and does not assist. 49. The finding of the trial court that the evidence of incapacity was unbelievable was, in my respectful view, a finding fully open to her on the evidence, and I would not disturb it. Ground 2 fails. (iv) Matrimonial property and spousal consent 50. Ground 3 contends that the suit property was matrimonial property requiring spousal consent. The short answer is that no such case was pleaded. The plaint pleaded, consistently and repeatedly, that the consent of the family had not been obtained. Matrimonial property and spousal consent are creatures of a distinct statutory regime and give rise to distinct issues of fact. Parties are bound by their pleadings, and a party may not, at the trial or on appeal, set up a case different from that which he has pleaded. JUDGMENT ELCA NO. E111 OF 2024 34

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51. Even if the point were open, it fails on the evidence. Section 93(2) and (3) of the Land Registration Act, 2012 and section 6 of the Matrimonial Property Act, 2013 protect a spouse’s interest in the matrimonial home and in property acquired during the subsistence of the marriage in which the spouse has contributed. The appellants adduced no evidence that the portion sold formed part of any matrimonial home. PW1, a son of the deceased, testified that his mother and step-mothers were housewives dependent on the deceased. PW2 claimed to have contributed Kshs. 500,000/= towards the acquisition of the land but produced nothing whatsoever in support, could not say when the land was bought or for how much beyond a vague figure, and could not name the vendor. DW1 and DW2 testified that the property carried rental houses and no matrimonial home, and that evidence was not effectively displaced. 52. There is, moreover, the same capacity difficulty that attends the rest of the appellants’ case. The 2nd appellant sued not in her personal capacity as a widow asserting a spousal interest, but as a legal representative of the JUDGMENT ELCA NO. E111 OF 2024 35

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estate. A personal claim founded on spousal rights was therefore not before the trial court, and it is not before me. Ground 3 fails. (v) The 2nd and 3rd respondents, and the appellants’ submissions 53. Ground 5 asserts that the trial court ought to have entered judgment against the 2nd and 3rd respondents because they neither filed a defence nor defended the suit. The ground is factually incorrect. The 2nd and 3rd respondents filed a joint statement of defence dated 6th March 2019, which appears at pages 82 to 83 of the Record of Appeal and which was filed on 13th March 2019. They also filed written submissions in the trial court, at pages 225 to 228 of the Record of Appeal. 54. In any event, the proposition of law underlying the ground is unsound. The burden of proving his case rests at all times upon the person who brings it, and it neither shifts nor is lessened by reason of the failure of a defendant to file a defence or to call evidence. In Karugi & Another v Kabiya & 3 Others [1983] KECA 38 (KLR), the Court of JUDGMENT ELCA NO. E111 OF 2024 36

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Appeal held that a plaintiff must prove his claim even where a matter proceeds by way of formal proof. The appellants having failed to prove fraud, their suit fell to be dismissed against all three defendants irrespective of whether the 2nd and 3rd defendants called evidence. Ground 5 fails. 55. Ground 7 complains that the trial court failed to analyse the appellants’ submissions and authorities. A reading of the judgment shows that the learned magistrate expressly recorded that she had considered the pleadings, the evidence in its totality and the submissions of the parties, and she engaged with the very authorities on fraud upon which both sides relied. A trial court is not obliged to deal seriatim with every authority cited to it; it is obliged to identify the issues, apply the correct legal principles and give reasons. That the learned magistrate did. Ground 7 fails. 56. For completeness, I should deal with the submission on stamp duty, which was argued but not pleaded and does not correspond to any ground in the memorandum of JUDGMENT ELCA NO. E111 OF 2024 37

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appeal. It fails on that basis alone. I would add that under the sale agreement the obligation to pay stamp duty and registration fees fell upon the purchaser, that the instrument bears an endorsement of registration fees and a receipt number, and that no evidence was tendered to establish non-payment. An assertion from the bar is not evidence. (vi) Disposition and costs 57. Having re-evaluated the evidence afresh, I have come to the same conclusion as the trial court, and substantially for the same reasons, fortified by my findings on the question of registration after death. The appellants failed to prove fraud, failed to prove incapacity, failed to establish any entitlement to spousal consent, and failed to displace the 1st respondent’s explanation of how she came to be registered as proprietor of Kisumu/Manyatta ‘A’/5125. There is nothing in the judgment of the trial court which discloses a misapprehension of the evidence, an error of principle, or a conclusion which no reasonable tribunal could have reached. The appeal is without merit. JUDGMENT ELCA NO. E111 OF 2024 38

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58. On costs, the ordinary rule is that costs follow the event, and I see no reason to depart from it as between the appellants and the 1st respondent, who has been put to the expense of defending both the suit and this appeal. The 2nd and 3rd respondents did not participate in this appeal and filed no submissions, and I make no order as to costs in their favour. Final orders 59. In the result, the final orders which commend themselves to me, and which I hereby make, are as follows: i. THAT the appeal dated 23rd December 2024 be and is hereby dismissed in its entirety. ii. THAT the judgment and decree of the Chief Magistrate’s Court at Kisumu delivered on 18th December 2024 in MCELC No. 209 of 2018 be and are hereby upheld. iii. THAT the appellants shall bear the costs of this appeal, which costs shall be payable to the 1st respondent. JUDGMENT ELCA NO. E111 OF 2024 39

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iv. THAT there shall be no order as to costs as between the appellants and the 2nd and 3rd respondents. v. THAT the file is hereby closed. DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 17THDAY OF SEPTEMBER, 2026. E. K. WABWOTO JUDGE In the presence of:Ms. Achieng for the Appellants. Mr. Otieno David for the 1st Respondent. N/A for the 2nd and 3rd Respondents. Court Assistant; Joanne Omondi. JUDGMENT ELCA NO. E111 OF 2024 40

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