Ogetonto & another v Ogetonto

2. c. That the Learned Trial Magistrate misdirected himself both in law and on fact in deliberately failing to properly analyze the evidence as presented before him by the parties, scrutinize the documents produced as evidence and apply the same to the relevant applicable laws. d. That the Learned Trial Magistrate abdicated his judicial duty to consider, appreciate, and where necessary, apply the relevant legal provisions and case laws in scenarios similar to the instant suit before delivering the impugned Judgement. e. That the Learned Trial Magistrate erred in law in failing to consider the pleadings led by the Appellant and proceeding to selectively analyze a portion of evidence that was geared towards supporting the arguments put forth by the Respondent. f. That the Judgement and decision by the learned trial Magistrate is against the weight of evidence on record. On the grounds of appeal set out above, the Appellants ask that this Court nd that the 1st Respondent did not prove her case on the balance of probabilities. Consequently, that this appeal be allowed and the judgment and decree of Hon. P.C. Biwott (C.M.) delivered on 9th January, 2026 in Suit No. Ogembo CM ELC Case No. E021 of 2024 be set aside, varied, and/or quashed. Background of the case in the subordinate court: 3. This case concerns land parcel number Bassi/Bondonya/1401 (hereinafter the “Suit Land”), which, according to the Plaint, as amended on 18th March, 2025, was registered in the name of Nyamanya Neko (deceased) until 21st October, 2016. The Respondent pleaded that the Land Registrar, Kisii, colluded with Solomon Ogetonto Nyamanya to transfer the Suit Land into the name of Solomon Ogetonto before the commencement and completion of succession proceedings in respect of the estate of Nyamanya Neko. 4. There is no dispute that Solomon Ogetonto is also deceased. Before his death, he subdivided the land parcel 1401 into two: Bassi/Bondonya/4046 and 4047, and transferred parcel number Bassi/ Bondonya/4047 to the 1st Appellant. The 1st Appellant, in turn, sold it to the 2nd Appellant. The 1st Respondent (Plainti in the proceedings before the trial court) sued for revocation of the initial transfer from Nyamaya Neko to Solomon Ogetonto, and of all other subsequent dealings with the Suit Land Bassi/Bondonya/1401. 5. In the Statement of Defence dated 26th March, 2025, it is pleaded that the 1st Appellant is son to Solomon Ogetonto. That Solomon acquired the Suit Land from his father, Nyamaya Neko, and later subdivided it among his two families. Bassi/Bondonya/4046 measuring approximately 1.31 Ha was transferred to the 1st Respondent and 4047, measuring approximately 0.49 Ha, was transferred to the 1st Appellant. 6. The Appellants also raised a counterclaim against the 1st Respondent, asserting that land parcel Bassi/ Bondonya/4047 is registered in the name of the 1st Appellant. They averred that the 1st Respondent had trespassed onto the said parcel of land, destroyed the boundaries, and started cultivating it at the exclusion of the Appellants. The Appellants therefore prayed for orders: dismissing the 1st Respondent’s suit with costs, a declaration that parcel number Bassi/Bondonya/4047 belongs to the 1st Appellant, a permanent injunction restraining the 1st Respondent from trespassing onto or dealing with land parcel number Bassi/Bondonya/4047, and general damages in the form of mesne prots 7. The Respondents called three witnesses to support their claim, including Eucabeth Kwamboka Ogetonto, who testied as PW-1. She adopted her written statement dated 5th August, 2024, and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5534/eng@2026-09-17 2

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produced documents in accordance with the lists of documents dated 5th August, 2024, and 8th May, 2025. She had stated in her witness statement that the original owner of the Suit Land, Nyamaya Neko, was her husband, but in Court and during cross-examination, she testied that it is Solomon Ogetonto who was her husband while Nyamaya Neko was her father-in-law. 8. PW-1 testied that she did not know how the 1st Appellant came to be registered as proprietor of parcel number Bassi/Bondonya/4047, as, to her knowledge, the succession to the estate of Nyamaya Neko, the initial registered owner, had not yet been completed. In cross-examination, she denied having a cowife and denied knowing the 1st Appellant as Solomon Ogetonto’s son. 9. Marcus Melzedek Ogetonto (PW-2) testied that he is the son of PW-1 and stated that they reside on the Suit Land registered in the name of his grandfather Nyamaya Neko, whose estate is yet to be done. He also denied knowing the 1st Appellant and maintained that his father had only one wife. 10. PW-2 recounted that the area chief, Oganda Mageto, issued two letters of introduction, one including the families of the 1st Appellant and 1st Respondent, and the other including only the 1st Respondent’s family. The latter letter was written rst. He also stated that the chief had caused him and his brother to be arrested. 11. Oganda Michieka Mageto (PW-3), the area chief of Riosiri location, in his testimony conrmed that he wrote two letters regarding the family of Solomon Ogetonto. One letter, dated 9th May, 2024, introduced only PW-1st Respondent's family. The other letter, dated 23rd August, 2024, also included the family of the alleged second wife and her son (1st Appellant). 12. He also testied that Solomon Ogetonto was selling a portion of or the entire land parcel number Bassi/ Bondonya/4047 to the 2nd Appellant through his son, the 1st Appellant. PW-3 witnessed the execution of the agreement for sale. In re-examination, PW-3 explained that he wrote two dierent letters because each family had its distinct land since Solomon Ogetonto subdivided his land while he was alive and gave each family its portion. 13. Each of the Appellants relied on their own testimony. The 1st Appellant, Dickson Nyamanya Ogetonto (DW-1), adopted his written statement dated 26th March, 2025 and testied that Solomon Ogetonto Nyamaya is his father and Nyamaya Neko is his grandfather. He stated that his father acquired title to the Suit Land from his grandfather. 14. His father then subdivided it into parcels Bassi/Bondonya/4046 and 4047, with parcel number Bassi/ Bondonya/4046 given to the Respondent’s house and Bassi/Bondonya/4047 handed over to him and his mother, Joyce Nyanduko Ogetonto. He therefore asserts that each family was given its portion of the Suit Land, and thus the 1st Respondent should not interfere with his ownership and use of his bequeathed share. 15. In cross-examination, the 1st Appellant testied that his grandfather died in 1997 and his father transferred the land to him in the year2010. He asserted that his father concluded succession over Nyamaya Neko’s estate before transferring the land to him, although he could not state the case number for the succession matter or details of the Land Control Board Consent to transfer the land to him. 16. He also testied that his father sold a portion of Bassi/Bondonya/4047 to the 2nd Appellant through him. He conrmed that his father received the purchase price from the 2nd Appellant. 17. Mellen Bosibori Nyaega, the 2nd Appellant also adopted her written statement dated 26th March, 2025 as her evidence in support of her defence. She testied that she bought part of parcel number Bassi/ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5534/eng@2026-09-17 3

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Bondonya/4047 from the 1st Appellant. She placed reliance on the Defendants’ list of documents, produced as D-Exhibit 1-5. 18. During cross-examination, the 2nd Appellant conrmed that her brother signed the sale agreement and the transfer forms on her behalf because she lives in London, UK. She also testied that she paid the purchase price to Solomon Ogetonto and that she is unaware of how Solomon and the 1st Appellant obtained ownership of the land she was buying. This Appeal: 19. Directions issued for prosecuting the appeal by way of written submissions. The Appellants’ submissions led by the rm of Ochoki & Co. Advocates are dated 20th June, 2026. Counsel identies two issues for determination: whether the 2nd Respondent's evidence was necessary before rendering the impugned judgment, and whether the appeal is merited. 20. Learned Counsel for the Appellants cited R.G. Patel v Lalji Makanji (1957) E.A. 314, the case of Kinyanjui Kamau v George Kamau [2015] eKLR, and Central Kenya Limited v Trust Bank Limited & 4 Others [1996] eKLR to submit that the allegations of fraud must be pleaded and strictly proved. The party alleging fraud must tender evidence to prove their case on a standard higher than a “balance of probabilities” as applicable in ordinary civil cases, but not beyond reasonable doubt as in criminal cases. 21. Counsel therefore submitted that the 1st Respondent’s case did not meet the higher standard of proof applying to fraud allegations because the Land Registrar was never called to testify. In this argument, reliance was further placed on Muriithi v Makena [2024] KEELC 6936, where the Court reprehended the Plainti for failure to join the Land Registrar to a suit appertaining to land fraud. 22. On the second issue, Counsel submits that none of the Appellants was involved in the subdivision of the Suit Land. The 1st Appellant received the land from his father, Solomon Ogetonto, and he remains the registered proprietor. His ownership of the land may therefore only be defeated on the grounds enumerated in Section 26 of the Land Registration Act No. 3 of 2012. 23. It was submitted further that the 2nd Appellant, who bought a portion of the impugned land from the 1st Appellant, was a bona de purchaser for value without notice of deciency in title. 24. The 1st Respondent, through supplementary submissions dated 16th July, 2026, led by the rm of Mageto & Co. Advocates, states that the trial Court cannot be faulted for delivering judgment without the benet of the Land Registrar’s evidence, as the Appellants could have procured his attendance through a witness summons if they believed his evidence was pivotal to the case. At any rate, the trial Court’s judgment was principally anchored on the illegality of the transfer of land prior to completion of probate processes. 25. With regards to the argument that the 2nd Appellant was a bona de purchaser without notice, learned Counsel Mr. Mageto submits that the doctrine only protects purchasers who exercise due diligence before purchase. He submits that the 2nd Appellant is not a bona de purchaser because she did not investigate the legality of the vendor’s title in advance of the purchase. ANALYSIS AND DETERMINATION 26. The Court is cognizant of its obligation as the rst appellate Court. It has a duty to reconsider, analyse, and re-evaluate the evidence on record and reach its own conclusions, always mindful that it did not https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5534/eng@2026-09-17 4

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have the benet of seeing or hearing the witnesses. This obligation was more aptly dened by the Court of Appeal in Selle & Another v. Associated Motor Boat Co. Ltd. & Others [1968] EA 123 at 126, that: “ An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briey put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound to follow the trial judge’s ndings of fact if it appears that either he clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally.” 27. Having carefully considered the grounds raised in the Memorandum of Appeal, the record of the trial Court, and the respective submissions of the parties, the Court considers that the appeal turns on the following issues for determination: a. Whether the allegations of fraud were proved to the applicable legal standard. b. Whether the 2nd Appellant was a bona de purchaser for value without notice. c. What orders should the court grant? Whether the fraud alleged was proved: 28. Section 109 of the Evidence Act Cap. 80 Laws of Kenya places the burden of proving a fact on the party that desires the Court to believe the existence of that fact. The 1st Respondent pleaded fraud at two levels in her amended Plaint: rst, against the Land Registrar, who was sued as the 3rd Defendant; and second, against the present Appellants (sued as the 1st and 2nd Defendants). Accordingly, the burden was squarely upon her to prove to the Court that the transfer of the suit land from Nyamaya Neko to Solomon Ogetondo was fraudulent and, as a consequence, that all other transactions originating therefrom were void ab initio. 29. Relying on the case of R.G. Patel v. Laji Makanji (1957) E.A. 314, Mr Ochoki, learned Counsel for the Appellants, rightly identied the requisite standard of proof in civil cases where allegations of fraud are made. The standard, as stated in the cited case, is that “allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required”. 30. The enduring words of Tunoi J.A. in Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] KECA 223 (KLR) drive the point home. He stated thus: “ It is well established that fraud must be specically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 31. The 1st Respondent pleaded that the 3rd Respondent fraudulently caused the registration of the Suit Land in the name of Solomon Ogetonto before probate proceedings were taken in respect of the estate of Nyamaya Neko, the rst registered owner of the Suit Land parcel 1401. She also blames the 3rd https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5534/eng@2026-09-17 5

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Respondent for allowing the subdivision of the Suit Land into parcel numbers Bassi/Bondonya/4046 and 4047 and for issuing certicates of title in respect of the subdivisions. 32. In support of this assertion, the 1st Respondent produced a certied true copy of the Green Card for land parcel number Bassi/Bondonya/1401, which shows Nyamaya Neko as the rst registered proprietor of the Suit Land, registered on 14th February, 1971. The Land was later transferred and registered in the name of Solomon Ogetondo Nyamaya on 21st September, 2016. The copy of the records does not state whether the registration of Solomon as proprietor of the Land was as a result of transmission or transfer. 33. The 1st Respondent testied that Nyamaya Neko died in 1982 and presented letters of administration ad litem that indicate that Nyamaya Neko passed away on 26th September, 1982. On the other hand, the 1st Appellant testied that Nyamaya Neko passed away in 1997 and land parcel no. Bassi/ Bondonya/4047 was transferred to him (1st Appellant) in 2019 by his father. 34. It is manifest from the testimonies of the parties, and irrespective of the evidentiary incongruities, that by the time the Suit Land Bassi/Bondonya/1401 was being transferred into the name of Solomon Ogetonto in 2016, Nyamaya Neko was long deceased. Solomon Ogetonto was not made part of these proceedings, and understandably so because he was already dead, going by the evidence of the area Chief who testied as Pw3. 35. The 1st Respondent pleaded that the 1st Appellant colluded with Solomon Ogetonto (deceased) and the 3rd Respondent in subdividing L.R. No 1401 and causing the new titles to be produced without due process. Yet the 1st Respondent produced only the green card for the said parcel, which bears no names of the 1st and 2nd Respondents. The 1st Respondent did not present to the trial court copies of the mutation form subdividing the said parcel of land that would link the 1st Appellant to this transaction if at all. section 26 of the Land Registration Act imposed a duty on the 1st Respondent, alleging fraud, to demonstrate how the 1st Appellant was a party to the alleged fraud in transferring the land from Namanya Neko to the name of Solomon Ogetonto. 36. The learned trial magistrate, in his nding, quoted the provisions of “sections 45, 79 and 82 (b)(ii) of the Law of Succession, which provide that no person may deal with the immovable property of a deceased person before obtaining and conrming a grant of representation. That such dealings amount to intermeddling and are void ab initio. The alleged transfer from a deceased person to another deceased person followed by subdivision and sale is not merely irregular, it is illegal to the core.” 37. The trial magistrate correctly cited the provisions of the law and went further to cite the case law of Arthi Highway Developers Ltd versus West End Butchery Ltd and others (2015) eKLR, which held that fraud and illegality vitiate title. The trial court proceeded to nd that the 1st Respondent had proved fraud premised on the contradictory chief’s letter, falsied and/or unveried identity particulars and registration of deceased persons as proprietors and acquiescence or participation by the land registry. 38. However, based on the pleadings and the evidence adduced, it is mny holding that the learned trial magistrate missed the point when he made a nding that the suit property was transferred from a https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5534/eng@2026-09-17 6

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deceased person to another deceased person. At paragraph 7a of the amended plaint, the 1st Respondent pleaded thus; “ …on or about the 21.10.2016, the 3rd Defendant in the cause of his duty fraudulently and illegally colluded with one Solomon Ogetonto Nyamanya and transferred the subject land 1401 to the name of Solomon Ogetonto Nyamanya of ID No 1364735.” 39. In the written statement of Pw2, he said that he discovered the fraudulent dealings upon the demise of his father, who is said to have died in the year 2024. According to the area Chief (Pw3), Solomon Ogetonto had two families, but in one of the letters he recognised only the 1st Respondent's family. Pw3 also testied that the said Solomon Ogetonto participated in the sale of the suit portion number 4047 in the year 2022 through the 1st Respondent. Pw3 was one of the witnesses to the sale. 40. The Appellants produced a copy of the sale agreement dated 30th September, 2022, where the 1st Appellant was the vendor and Mr Solomon Ogetonto Nyamanya signed as a witness by thumbprinting. All this evidence points to the fact that when the transfer was eected from Nyamanya Neko to Solomon Ogetonto Nyamanya, Solomon was alive. Hence, the learned trial magistrate erred in holding that the transfer was from a deceased person to another deceased person. 41. Secondly, although the trial magistrate found that the 1st Respondent had proved the fraud, he does not state who was guilty of the fraud between the 1st and 2nd Appellants, considering the 1st Respondent's argument that Solomon Ogetonto needed a conrmed certicate of grant to deal with the free property of the late Nyamanya Neko. The 1st Respondent is the wife of Solomon Ogetonto Nyamanya but chose to take letters ad litem on behalf of the estate of Namanya Neko, her father-inlaw, to bring this suit. 42. Neither the 1st Respondent nor PW2 does not explain why they did not take out letters of administration to the estate of Solomon Ogetonto Nyamanya, so that the administrator could be joined to the proceedings in the suit led in the court below. In my view, the non-joinder of the estate of Solomon Ogetonto created a gap to the disadvantage of the 1st Respondent’s case. I say so because the questioned transactions- the transfer from Neko’s name to Solomon’s and the subsequent subdivisions were undertaken by Solomon Ogetonto Nyamanya and not the Appellants. 43. There is no way the learned magistrate could make a nding of fraud as pleaded in paragraph 7(A) of the amended plaint against a party not before him, inter alia, by accepting and acting on misinformation from one Solomon Ogetonto Nyamanya, issuing a title to the subject land to the said Solomon Ogetonto Nyamanya in awareness of misinformation and misrepresentation of facts, and intermeddling with the estate of the late Nyamanya Neko. 44. Once the allegations of fraud against the deceased, Solomon Ogetonto Nyamanya, failed on account of joinder, the title in the name of Solomon Ogetonto Nyamanya remains intact. As already stated above, the 1st Respondent did not demonstrate, on a standard beyond the balance of probabilities, that the 1st Appellant participated in the subdivision of Parcel 1401 as alleged in paragraph 8 of the amended plaint. 45. In addition, by the time the Chief (Pw3) wrote the contradicting letters dated 9th May, 2024, and 28th August, 2024, the transfer and subdivision complained of had already taken place on 21.10.2016 and 3.4.2019. Thus, the two letters have no bearing on the fraud pleaded and the learned trial magistrate erred in relying on the two letters as part of the evidence proving the fraud. 46. Assuming the transfer into the name of Solomon Getonto was not procedural, can the court grant the orders sought? It is my considered opinion that the answer is no because of failure to join the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5534/eng@2026-09-17 7

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estate of the said Solomon Ogetonto. The genesis of the dispute was premised wholly on the transfer from Namaya Neko to Solomon Ogetonto, yet the 1st Respondent chose not to join his estate in these proceedings. 47. The Court of Appeal in the case of Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others [2020] KECA 326 (KLR)armed the trial court’s decision in Alton Homes Limited & another v Davis Nathan Chelogoi & 2 others; Joshua Omondi Hallonda & 2 others (Interested Parties) [2019] KEELC 1122 (KLR) where the learned Judge had this to say: “ It is not in doubt that the right to be heard is a valued right and is enshrined in our Constitution. This right was not observed herein because for reasons not made clear to this court, the 2nd defendant failed to bring on board the 1st interested party whom he sold his suit property to thus orders were issued by this court which Orders have adversely aected the 1st interested party. The Constitution of Kenya is very clear on the right to protection of one’s property and the said property cannot be arbitrarily taken away from such an owner without being heard or without being accorded an opportunity to ventilate his case.” 48. Learned Counsel for the Appellants, Mr Ochoki, submitted that the Land Registrar’s evidence, as custodian of land records, was necessary for the 1st Respondent to prove the alleged fraud to the designated standard. However, Section 143 of the Evidence Act provides that “no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact”. Hence, the Land Registrar’s evidence was dispensable where the alleged fraud and illegality were proved. In this regard, the learned Magistrate did not misdirect himself in holding that fraud had been proven without the benet of the 2nd Respondent’s evidence. 49. The second issue is whether the 2nd Appellant was a bona de purchaser for value without notice. Upon acquiring proprietorship of the Suit Land, Solomon Ogetonto subdivided it into two portions. He transferred one portion to Eucabeth Kwamboka, his wife, who is the 1st Respondent. He transferred the other portion to the 1st Appellant, his alleged son, who subsequently, by an agreement dated 30th September, 2022, sold the said piece of land known as Bassi/Bondonya/4047 to the 2nd Appellant for K.Shs. 1,500,000/-. 50. The learned trial magistrate correctly stated the law that one cannot purchase a good title from a void root. That the law does not protect indolence, recklessness and/or willful blindness, citing the holding in Munyu Maina versus Hiram Gathiha Njuguna (2013) eKLR. The trial magistrate made this nding because he had earlier found that the 1st Respondent had proved the transfer of parcel 1401 to the name of Solomon Ogetonto was fraudulent. 51. It is not in dispute between the two Appellants that they executed a sale agreement dated 30th September 2022. At the time of sale, the suit title was registered in the name of the 1st Appellant. The 1st Appellant's title could be challenged only if Solomon Ogetonto or his estate were sued and the estate entered a defence denying the transfer of the said parcel to the 1st Appellant. Further, the green card and the title document evidence that the transfer to the 1st Appellant was made in 2019, during the lifetime of Solomon Ogetonto. 52. The 1st Appellant acknowledges receipt of Kenya shillings One Million Three Hundred Thousand (Kshs 1,300,000) from the 2nd Appellant at execution of the sale agreement. The balance of Kenya Shillings Two Hundred Thousand (Kshs 200,000) was to be paid after the transfer of the title into the 2nd Appellant’s name. This demonstrates that the Appellant paid consideration but also explains why she does not hold a certicate of title in her name. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5534/eng@2026-09-17 8

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53. The 2nd Appellant's transaction can be voided only if the initial transaction was voided. Secondly, she stated that she conducted a search through his brother, who conrmed that the title was in the name of the person selling, and that the sale agreement showing the person who transferred to the Vendor was also part of the impugned transaction. No evidence linked the 2nd Appellant to the impugned actions of Solomon Ogetonto-deceased. 54. It is my nding that the trial court erred in nding that the 2nd Appellant was reckless or blind without giving reasons on what the 2nd Appellant failed to. 55. The Appellants, in support of their counter-claim, produced a copy of the title deed demonstrating that the 1st Appellant is the registered owner of the suit title. Having held that there was no evidence presented vitiating the transfer from Solomon Ogetonto-deceased to the 1st Appellant, I hold that they are entitled to enjoy the rights stated in sections 24 and 25 of the Land Registration Act. 56. The Appellants sought for general damages equivalent to mesne prot but they did not lead evidence to support any loss suered. Therefore, I award none. 57. In the conclusion, I nd that the appeal is merited. As a result, I make the following orders: a. The Judgment of Hon P.C Biwott dated 9th January, 2026 arising out of Ogembo CM ELC E021 of 2024 is hereby set aside. b. The 1st Respondent’s case is dismissed for lack of proof. c. Judgment is entered for the Appellants by granting the orders in the counterclaim thus; i. The 1st Appellant is declared the legal and lawful owner of L.R. No. Bassi/ Bodonya/4047 and therefore has capacity to transfer to the same to the 2nd Appella. ii. An order of permanent injunction be and is hereby issued, directed at the 1st Respondent, her servants, agents or persons claiming through her, from interfering in any way with the use and occupation of the said land, Bassi/Bodonya/4047. d. No general damages awarded. e. Costs of this appeal and the costs of the suit in the subordinate Court to the Appellants. JUDGMENT DATED, SIGNED & DELIVERED AT KISII THIS 17TH SEPTEMBER 2026. A. OMOLLO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5534/eng@2026-09-17 9

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