Onyando & another v Nyangena

b. An order of permanent injunction do issue restraining the defendants by themselves, their agents, servants and anybody claiming through them from chasing away the plaintis, stop utilizing and ploughing L.R No. North Mugirango/Bomwagamo/2574 and 2573 and accord the plaintis peaceful occupation of the aforementioned parcels of land. c. An order of eviction evicting the defendants, their agents, servants and anybody claiming through them from L.R No. North Mugirango/Bomwagamo/2574 and 2573 respectively. d. Costs of this suit. e. Any other relief the Honourable Court may deem t to grant. 4. The Respondents led Statement of Defence and Counterclaim dated 20th December 2016. They denied the Appellant’s averments and stated that the Appellants shared Onyando Mogire (deceased)’s land pursuant to Letters of Administration obtained in Nyamira SRM Succession Cause No. 5 of 2008 through secrecy and concealment of material facts since the Respondents were equally entitled to the land. 5. The Respondents therefore prayed that the Appellants’ case be dismissed with costs and interest and that judgment be entered in their favour against the Appellants for: 6. a. A permanent injunction to restrain the Plaintis (now Defendants) either by themselves, their agents, servants, assigns and/or any other person whatsoever acting on their behalf from trespassing at, remaining on, alienating, disposing or in any way dealing with the portion the Defendants (now Plaintis) are occupying and established a home in any manner whatsoever prejudicial to the Defendants (now Plaintis) quiet possession and enjoyment. b. A declaration that the Defendant (now Plaintis) are lawful owners of the portion they occupy of the suit land. c. Nullication and/or revocation of the Titles issued to the Plaintis (now Defendants) and a declaration that the Defendants (now Plaintis) are bona de owners and new Titles be issued in favour of the Defendants (now Plaintis) and the Plaintis (now Defendants). d. The Plaintis (now Defendants) to meet the costs of the suit. e. Any other relief this Honourable Court may deem t and just to grant in the circumstances. Upon hearing the suit parties, the Subordinate Court (B. Ondego, Chief Magistrate) delivered judgment on 5th August 2025 as follows: The Court nds that these matters touching on transmission of the estate should be canversed (sic) before the succession Court so that the Court can determine the issue of what comprises the estate of the deceased and who the beneciaries of the estate are rst before any other issues can be determined. The upshot of all what I have stated is that the suit is wrongly before this Court and parties need to move the succession Court accordingly for the determination of the issues touching on succession of the estate. Jurisdiction is everything. It has been established that when the Court realizes that it does not have jurisdiction it must drop everything and not venture further. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5553/eng@2026-09-22 2

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I order that this suit together with the counter claim are thereof be struck out and each party to bear their own costs. 7. Aggrieved with the outcome, the Defendants led this appeal on 2nd September 2025 through Memorandum of Appeal dated 1st September 2025. Subsequently on 5th September 2025, they led Amended Memorandum of Appeal amended on 5th September 2025. They prayed in the Amended Memorandum of Appeal that the judgment be set aside, that this Court makes a determination on the issues raised, that the Court declares them registered owners of the suit properties and issues injunction and eviction orders. 8. The following are the grounds of appeal as listed on the face of the Amended Memorandum of Appeal: 1. That the Learned Trial Magistrate erred in law and fact by failing to make any legal determination and or nding concerning matters or issues raised in the plaint, defence and counter-claim together with the evidence of the parties. 2. That the learned trial magistrate erred in law and fact by failing to make a declaration sought by the appellants that they were duly the legally registered owners of L.R North Mugirango/ Bomwagamo/2574 and 2573 respectively. 3. That the Learned trial magistrate erred in law and fact by replying on an extraneous issue visa (sic) vis jurisdiction when the same was never pleaded, raised in the hearing and even in the submissions and therefore, arrived at a wrong conclusion and or nding. 4. That the learned trial magistrate erred in law and fact by making a nding that the matter or issues before the court was touching on transmission of an estate in total disregard of the evidence tendered, submissions led, pleadings led in court and. therefore, arrived at a wrong decision or conclusion. 5. That the learned trial magistrate erred in law and fact by holding that parties should move to a succession court when in fact the appellants tendered evidence of succession proceedings and eventual transmission. 6. That the learned trial magistrate erred in law by striking out the suit preferred by appellants against the weight of evidence adduced and therefore, resulted in a miscarriage of justice and unfairness on the appellant's side. 9. The Appeal was canvassed through written submissions. The Appellants led submissions dated 25th April 2026. The Respondents did not le any submissions despite their advocate attending Court at some stage of the proceedings in the appeal. 10. It was submitted on behalf of the Appellants that they approached the Subordinate Court arming that they were the registered owners of the suit properties and that the Respondents had interfered with their peaceful occupation and/or possession. They produced title deeds, certicates of ocial search and more importantly the certicate of Conrmation of Grant in Nyamira SPMC Succession Cause No. 5 of 2008 distributing the original suit property in the names of the Appellants. 11. It was equally submitted that the Appellants transferred the suit properties in their names all while the grant remained unimpeded making them the undisputed owners of the suit properties. That the Respondents failed to adduce evidence to the contrary and that the evidence the Appellants adduced before the Subordinate Court was adequate to warrant making a declaration that the Appellants herein were the lawfully registered owners of the suit properties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5553/eng@2026-09-22 3

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12. It was also submitted that the First Respondent insisted that she was daughter in law to the First Appellant but evidence on record revealed that the First Appellant had no known sons but three daughters. The Appellants argued that there were glaring inconsistencies in the testimonies of both Respondents where the First Respondent testied that she was brought to be the wife of the First Appellant’s son, while the Second Respondent testied that the First Respondent had gone to be the wife of the deceased. 13. It was further submitted that the Respondents had interfered with the Appellants possessory rights when they purported to seek a portion of the suit properties though in the wrong forum. The suit thus ought to have been allowed as the Appellants had proved the case on balance of probabilities. That instead, the Trial Court erred by striking it out on grounds that the suit could only be dealt with in a succession court. 14. It was consequently submitted that the Appellants proved their case on balance of probabilities and that their evidence was disregarded by the trial Court leading to an unfair decision contrary to the evidence and submissions of the Appellants. That the Appellants were seeking orders related to title of land and not any issue concerning succession and that the trial Court had jurisdiction to determine the suit before it. Consequently, the Appellants urged the Court to allow the appeal and to award them costs of both the appeal and of the proceedings in the Subordinate Court. 15. This is a rst appeal. The mandate of a rst appellate Court was discussed by the Court of Appeal in Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR) as follows: … this being a rst appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testied during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the ndings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a rst appellate court must of necessity proceed with caution in deciding whether or not to interfere with the ndings of a trial court, but of course where such ndings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgement. This position is anchored in section 78 of the Civil Procedure Act, which requires a rst appellate court to re-evaluate, reassess and reanalyse the extracts of the record and draw its own conclusions. 16. I have carefully considered the grounds of appeal, the entire record and the submissions. The issues that arise for determination are whether the Subordinate Court had jurisdiction and whether the reliefs that the parties sought were available. 17. Jurisdiction is an ever present issue in all proceedings. As has often been restated by the Courts, jurisdiction is the entry point in any matter that the Court is called upon to determine and is the very life and soul of any proceedings. Without it, the proceedings come to a certain end and the Court cannot take any further step. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR. 18. The futility of proceedings conducted without jurisdiction is obvious. A suit led devoid of jurisdiction is dead on arrival and cannot be remedied. See Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] eKLR. The holding of the Court of Appeal https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5553/eng@2026-09-22 4

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in National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 Others [2023] KECA 80 (KLR) further drives the point home thus: Jurisdiction, a mantra in adjudication connotes the authority or power of a court to determine a dispute submitted to it by contending parties in any proceeding. A Court of law is invested with jurisdiction to hear a matter when: (a) it is properly constituted as regards numbers and qualications of members of the bench, and no member is disqualied for one reason or another; (b) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and, (c) the case comes before the Court initiated by due process of law, and upon fullment of any condition precedent to the exercise of jurisdiction. The three ingredients must co-exist in order to infuse jurisdiction in a Court. Where a Court is drained of the jurisdiction to entertain a matter, the proceedings owing from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity. 19. The case that the Appellants pleaded in the subordinate Court was straightforward: they contended that they were the registered proprietors of the suit properties and that the Respondents had driven them out of the suit properties. It is for those reasons that they sought a declaration that they were sole registered owners who were entitled to exclusive use and occupation, a permanent injunction to restrain the Respondents from using the suit properties and eviction of the Respondents. 20. On their part, the Respondents countered the Appellants’ case by contending that the Appellants obtained title to the suit properties through succession proceedings that were conducted in secrecy and concealment of material facts. On that basis, they sought a permanent injunction against the Appellants, a declaration that they were lawful owners of the portion that they occupied and nullication of the Appellants titles. 21. On the face of it, the Appellants’ and Respondents’ cases concerned the use and occupation of, and title to, land and were brought before the Subordinate Court in exercise of its jurisdiction under Section 26 (3) and (4) of the Environment and Land Court Act and Section 9 (a) of the Magistrates’ Courts Act. 22. Quite apart from the reasons that the Respondents gave for challenging the Appellants’ title, which reasons they collectively referred to as illegality, fraud and bad faith in the particulars at paragraph 15 of the Defence and Counterclaim, the parties’ cases were within the jurisdiction of the Subordinate Court. While the Subordinate Court could not change the determinations in Nyamira SRM Succession Cause No. 5 of 2008, the outcome of that would simply mean that the allegations of illegality, fraud and bad faith, which were grounded on the theory that the succession proceedings were awed, had not been established. 23. The mere claim that the succession proceedings were awed did not take the Respondents’ counterclaim outside the jurisdiction of the Subordinate Court. It is also important to note that there was nothing in the Appellants’ case that ousted the jurisdiction of the Subordinate Court. I am satised that that the Learned Magistrate erred when he held that he did not have jurisdiction. The Subordinate Court had jurisdiction. 24. I now turn to the second issue for determination, as to whether the reliefs that the parties sought were available. 25. There was no dispute that the Appellants were the registered proprietors of the suit properties. Indeed, the certicates of search that were produced conrm that the First Appellant was registered as proprietor of the parcel of land known as L.R No. North Mugirango/Bomwagamo/2574 on 23rd https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5553/eng@2026-09-22 5

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August 2013 and a title deed issued to her on 30th August 2013. Similarly, the Second Appellant was registered as proprietor of the parcel of land known as L.R No. North Mugirango/Bomwagamo/2573 on 23rd August 2013 and a title deed issued to her on 30th August 2013. On 31st December 2013, a caution was registered against both parcels in favour of the Second Respondent who was claiming beneciary interest. 26. The law on title to registered land is plain enough. A registered proprietor of land is entitled to rights and privileges clearly spelt out in the law. Foremost, Article 40 of the Constitution guarantees protection of right to property. Additionally, Section 24 of the Land Registration Act makes specic provisions as follows: Subject to this Act— (a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and (b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. 27. Section 26 of the Land Registration Act obligates the Court to accept the certicate of title issued by the Land Registrar as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner and the title is not to be challenged except on the grounds specied in the provisos under Section 26 (1) (a) or (b). Those provisos state that the grounds on which a title can be nullied are fraud or misrepresentation to which the registered proprietor is proved to be a party or where it is shown that the certicate of title has been acquired illegally, un-procedurally or through a corrupt scheme. Thus, despite the fortied protection, title to property which is found to have been unlawfully acquired is open to impeachment. 28. Given the Appellants’ registered proprietorship, the only way in which the Respondents could successfully resist the Appellants’ claim was if they succeeded in impeaching their titles. Otherwise, the Appellants’ rights as registered proprietors would have to be upheld. 29. The Respondents opted to challenge the Appellants’ titles on grounds of illegality, fraud and bad faith. As is manifest from paragraphs 14 and 15 of the Defence and Counterclaim, the alleged illegality, fraud and bad faith were exclusively tied to the manner in which the Appellants obtained title by way of transmission through Nyamira SRM Succession Cause No. 5 of 2008. The learned Magistrate was not sitting on appeal against the conrmation of grant in Nyamira SRM Succession Cause No. 5 of 2008. Any complaint of any shortcoming in the succession proceedings could only be raised in the succession proceedings themselves or on appeal. 30. Further, the Respondents’ allegations of fraud required to be pleaded, particularised, and strictly proven to standard higher than the usual one in civil cases of proof on a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt. See Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR and John Mbogua Getao v Simon Parkoyiet Mokare & 4 others [2017] eKLR. In cases where fraud is alleged, it is not enough to simply infer fraud from the facts. See Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR. 31. The Respondents did not prove their allegations of illegality, fraud and bad faith to the required standard. In those circumstances, they were not entitled to the reliefs that they sought. On the other hand, the Appellants were entitled to relief. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5553/eng@2026-09-22 6

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32. In the result, I nd merit in this appeal, and I therefore allow it. I make the following orders: a. b. I set aside the judgment and decree of the Subordinate Court and replace it with the following orders: i. The Respondents’ counterclaim is dismissed. ii. A declaration is hereby issued that the First Appellant was the registered proprietor of the parcel of land known as L.R No. North Mugirango/Bomwagamo/2574 and the Second Appellant was the registered proprietor of the parcel of land known as L.R No. North Mugirango/Bomwagamo/2573 and therefore entitled to their exclusive use and occupation. iii. A permanent injunction is hereby issued restraining the Respondents by themselves, their agents, servants and anybody claiming through them from chasing away the Appellants from L.R No. North Mugirango/Bomwagamo/2574 and 2573, utilizing and ploughing L.R No. North Mugirango/Bomwagamo/2574 and 2573 and interfering with the Appellants’ peaceful occupation of the aforementioned parcels of land. iv. The Respondents together with their agents, servants and anybody claiming through them to vacate from L.R No. North Mugirango/Bomwagamo/2574 and 2573 within 90 (ninety) days of service upon them of this judgment. In default, an order of eviction to issue. The Appellants shall have costs of both this appeal and of the proceedings before the Subordinate Court. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 22ND DAY OF SEPTEMBER 2026. D. O. OHUNGO JUDGE Delivered in the presence of: Mr Langat for the Appellants No appearance for the Respondents Court Assistant: B Kerubo https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5553/eng@2026-09-22 7

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