Okech (Suing on Her Own Behalf and on Behalf of the Estate of Joseph Okech Gari) v Onjema & 4 others

5. The Plaintis case is that after the death of her father-in-law Gari Ngoga dierences emerged between Odhoji Gari and his 5 brothers who chased him away from Alego Seje. He ended up going to Miwani town where he worked in the sugarcane plantations until 1968. Afterwards Odhoji Gari sought to return to Sakwa Bondo but the Plainti husband was hesitant. However later on around 1967/1968 the Plaintis mother-in-law convinced her son the plainti’s husband to receive Odhoji Gari and his family at Sakwa Bondo. 6. The Plainti further alleged that her husband had allowed a cousin Ngoga Osumna his loyal herdsman to utilize 2 acres of land next to the ancestral homestead in Sakwa but who was since deceased and it is this portion that he allowed Odhoji Gari to occupy. According to the plainti this is the only parcel that Odhoji Gari, his immediate family, 1st defendant and 4th defendant ever owned within the larger family land. That Odhoji Gari was registered as trustee of the family land and not as absolute owner of the ½ share which his daughters were now claiming. That the fact that he was registered together with the Plaintis husband does not entitle him to half the land and were it to be so then the adjudication ocers would have registered him separately as such. 7. The Plainti avers that the suit land has been fully distributed with demarcations on the ground showing which portions to be inherited and by who and there were many people who were in occupation of the land. That since the portion occupied by Odhonji Gari initially belonged to Gari Ngoga’s 6th wife before it was given to the herdsman, it would be her children to rightfully claim the same. That for the 4th Defendant to take half of the land when it was fully occupied by other family members would mean the 1st and 4th defendants who reside in Sakwa & Asembo where they have lived for the last 40 years will disinherit the rightful beneciaries that the deceased was meant to hold the land in trust for. That the rights the 1st and 4th defendants acquired were unlawful to the extent that they took more than 2 acres of land that had been allocated to their father. 8. It is averred that upon discovery of the plans to sell the family land she made attempts to lodge a caution which the 5th Defendant fraudulently rejected paving way for registration of mutations subdividing the parcel North Sakwa/Ajigo/1 giving ½ share to the 1st and 4th Defendant. The particulars of fraudulent and illegal conduct on the part of the Defendants were enumerated in paragraph 21 of the Plaint. 9. The Plainti therefore avers that the 1st 2nd 3rd and 4th Defendants did not get good title over North Sakwa/Ajigo/3017 and 3016. 10. In the result the Plainti prayed for judgment against the defendants therein as follows; a. A permanent injunction restraining the Defendants by themselves or their authorized and or in in any other manners whatsoever interfering with the Plaintis quiet (sic) comprised in land parcel North Sakwa/Ajigo/01 of which a portion has been subdivided to make North Sakwa/ Ajigo/3017 and 3016. b. A declaration that entries No.5 and 6 on the register of North Sakwa/Ajigo/01 were irregular and therefore null and void and the same be cancelled c. An order revoking the titles issued to the 1st 2nd 3rd and 4th Defendants d. A declaration that the deceased Odhonji Gari was holding half share of North Sakwa/Ajigo/01 in trust for the Plainti except for his 2 acres marked on the ground. e. Costs of the suit f. Any other relief https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 2

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The 1St Defendants Statement of Defence 11. The 1st defendant responded to the suit by way of Statement of defence dated 31/10/2023 which was subsequently amended on 2/08/2024 and led on 5/8/2024. The 1st defendant denied that the plainti had a benecial interest in parcel North Sakwa/Ajigo/01 and the subdivisions thereof. 12. It is averred that the parcel North Sakwa/Ajigo/01 was lawfully owned and registered under the names of her father Alex Odhoji Gari and her father’s stepbrother Joseph Oketch Gari as absolute proprietors in common and divided in half shares of approximately 6.9Ha each. That together with the 4th defendant the 1st defendant was entitled as beneciaries of their father’s estate by dint of Certicate of Conrmation of Grant issued in their favor. 13. That the plaintis attempt to challenge the conrmation of the above grant was unsuccessful as evidence by the judgement in Bondo PMCC Succ 63 of 2016. The 1st defendant further denied that the parcel was held on behalf of the entire Gari Ngoga’s family. It is further denied that the land held by Alex Odhonji Gari was only 2 acres as opposed to the undivided 6.9 Ha half share and reiterated he held the same as absolute owner and not in trust and denied any demarcations before the succession process. 14. The particulars of fraudulent and illegal conduct on the part of the 1st Defendant are denied. The rest of the averment are denied, termed as folk tales except the descriptive parts of the parties. The 1st defendant prays that the suit against her be dismissed with costs. 15. The 4th Defendant Statement of Defence is dated 24/01/2025 and led on 3/02/2025. The same echoed the averments raised in the 1st defendants amended statement of defence herein. I will therefore not rehash the contents. The 2nd and 3rd Defendants Statement of Defence 16. The 2nd and 3rd Defendants led a joint statement of Defence dated 31st January 2024. 17. The 2nd and 3rd defendants deny the assertion that the plainti has a benecial interest in land parcel North Sakwa/Ajigo/1, which has since been subdivided and no longer exists and the estate of one Alex Odhoji Gari has therefore been wound up. 18. That the land parcel North Sakwa/Ajigo/1 having been subdivided following a succession cause led by the 1st defendant and to which the estate of one ODHOJI GARI has been wound up, there is no existing or existent cause of action capable of being determined by this court. 19. The 2nd and 3rd defendants further aver that a benecial interest cannot and does not exist on a nonexistent property and to that end; the present suit is a non-starter. 20. It is denied that the plainti's father, the late Joseph Oketch Gari and his step brother the late Alex Odhoji Gari were the registered common owners of the land parcel known as North Sakwa/Ajigo/1 or that they held the said land in half share each undivided for and on behalf of the entire family of Gari Ngoga. 21. The 2nd and 3rd defendants state that they are bonade purchasers for valuable consideration and consequently strangers to the assertion that the land parcel North Sakwa/Ajigo/1 was held by the plainti's father and the late Alex Odhoji Gari on behalf of the entire family of Gari Ngoga. 22. They further deny the assertion that one ODHOJI GARI was registered as a trustee of the family land and not absolute owner of half share to which the 2nd and 3rd defendants now own. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 3

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23. It is denied that the land parcel number North Sakwa/Ajigo/ 1 is the only land parcel ever owned within the large family of ODHOJI GARI or that ODHOJI GARI'S share of the said land was limited to two (2) acres only. 24. The particulars of fraud and/or illegality are denied. Further that the 2nd and 3rd defendants hold good title to the suit land protected under Article 40 of the Constitution of Kenya, 2010 as well as Section 28 of the Land Registration Act as read with Section 93 of the Law of Succession Act. 25. The 2nd and 3rd defendants aver that this suit is a non-starter as they are purchasers of land parcel North Sakwa/Ajigo/3016 for valuable consideration, such sale is protected by Section 93 of the Law of Succession Act and there being no successful variation or revocation of grant which led to the partition of the mother title, there exists no reasonable cause of action against the 2nd and 3rd defendants herein. 26. The 5th Defendant led a statement of defence dated 1/12/2023 where the denied all the allegations raised against them. However they did not participate in the hearing. Hearing And Evidence The Plainti/Applicant’s Case 27. The suit was heard on 2/7/2025; 11/11/2025 and 10/2/2026. The Plainti herein testied as PW1 and introduced herself as the wife of Joseph Okech living in Sakwa. She told the court that the 1st and 4th defendants were her brother in-law Odhojis daughters. PW1 adopted her Witness Statement dated 4/9/2023 as her evidence-in-chief wherein she repeated the averments in the plaint. PW1 produced the documents in her List of Documents dated 4/9/2023 as PEx 1-20 as follows; a. Copy of application for caution for Land Parcel No. North Sakwa/ Ajigo/1 dated 4/06/2017 b. Copy of Green Card for Land Parcel No. North Sakwa/Ajigo/1. c. Copy of ocial Search for Land Parcel No. North Sakwa/Ajigo/3016 d. Copy of ocial Search for Land Parcel No. North Sakwa/Ajigo/3017 e. Copy of ocial Receipt for caution for Land Parcel No. North Sakwa/Ajigo/3016 & 3017 dated 10.07.2017 f. Copy of ocial Search for Land Parcel No. North Sakwa/Ajigo/3016 g. Copy of Preservatory Court Order dated 25/07/2017 h. Copy of application for consent from Land Control Board for Land Parcel No. North Sakwa/ Ajigo/3016 dated 6/07/2017 i. Copy of letter of consent to transfer for Land Parcel No. North Sakwa/Ajigo/3016 dated 6/07/2017 j. Copy of Mutation Form for Land Parcel No. North Sakwa/Ajigo/1 dated 4/07/2017 k. Copy of ocial map for Land Parcel No. North Sakwa/ Ajigo/1 as at 10.07.2017 l. Copy of succession proceedings for Bondo Succession Cause No.63 of 2016 m. Copy of succession proceedings for Siaya Civil Appeal No. 2 of 2019. n. Copy of notice of eviction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 4

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o. Copy of notice of intention to sue the AG. p. Copy of ocial Search for Land Parcel No. North Sakwa/Ajigo/3015 q. Copy of ocial Search for Land Parcel No. North Sakwa/Ajigo/3016 r. Copy of ocial Search for Land Parcel No. North Sakwa/Ajigo/3017 s. Limited Grant of Letters of Administration Ad Litem issued at Bondo on 24/08/2023 28. She testied that her husband was the only son entitled to inherit the entire parcel North Sakwa/ Ajigo/1 since it belonged to his mother being the 2nd wife of Gari Ngoga. She also testied that Odhoji Gari and his daughters ought to have had their inheritance at Alego Seje where the 1st wife of Gari Ngoga had been settled. PW1 testied that Odhoji Garis name was erroneously registered to share the land equally yet on the ground the land was fully utilized by the family members including her motherin-law, her cowives, the plainti’s mother and 6 step mothers, except two acres which he was entitled to. The land was one big undivided piece of land but everyone had their demarcated parcels. PW1 claimed that the action of Odhoji Garis daughters taking half of the land after his demise was wrong as it was not what was reected on the ground occupation. 29. PW1 testied that on 4/7/2017 they learnt from a neighbor that the land was being sold and when they went to lodge a search, they were kept waiting by the Land Registrar until the end of the day when he gave them a green card conrming closing of the title North Sakwa/Ajigo/1. That they later carried out searches on 10/7/2020 and attempts to lodge cautions against the two subdivisions were hampered by the Land Registrar who promised he would register them but later hurriedly allowed registration of transfer to the 2nd and 3rd defendants from the 4th Defendants. That in view of this they obtained preservatory orders in Succession Cause No. 63 of 2016 on 25/7/2020. That the subdivision was undertaken without the consent of the estate of the plainti’s husband. 30. PW1 asserted that the above actions have exposed several legitimate beneciaries of the estate putting them at the risk of losing land they have known as their home since birth and who were likely to be evicted by the 1st 2nd and 3rd defendants. That though they lodged objections in the probate proceedings their appeal in Siaya Civil Appeal No. 2 of 2019 the court advised them to le the instant proceedings before the ELC as it lacked jurisdiction as a probate court. PW1 prayed that the titles given to 1st 2nd 3rd and 4th defendants be revoked to allow the family a chance to succeed and partition the estate accordingly. 31. PW1 upon cross-examination testied that Odhoji Garis inheritance was in Alego. On being referred to paragraph 5 of her witness statement PW1 asserted that the family witnessed the demarcation but did not raise any objection. She conrmed it was Joseph her husband who registered the land. She agreed she was obligated to take out succession after her husband’s death which she did not. She conceded she had no document to proof that Odhoji Gari was to hold the land in trust for others. 32. PW1 further conceded this was not the rst case they have lodged in court. She denied that the reason the Land Registrar refused to register the caution was because they were doing it after the 1st and 4th defendants had been given the land by the succession grant. She asserted the land was family land and it was not true that Odhoji and Joseph were to each hold ½ share of the land. PW1 termed the documents as a lie. 33. PW1 disowned the contents of paragraph 5 of her witness statement. She claried Odhoji and Joseph were registered because they were the only male adults during adjudication. She conceded she was a witness before this court in another related matter but which she was not aware was dismissed. She was also not aware the appeal referred in her witness statement was dismissed. She agreed she has only sued https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 5

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the witnesses to the purchase and not the buyers since she did not know them. To her it was not wrong to buy land except that there were many people living on the land and it was not clear where they will be relocated to. PW1 conceded she had no evidence to proof Odhoji was entitled to only 2 acres. 34. PW2 was Mary Jacinta Nyagwala. PW2 adopted her Witness Statement dated 4/9/2023 as her evidence in chief. She told the court that she hails from Yimbo Usenge area and that the Plainti was her brothers (Okech Gari) wife. PW2 claimed in her witness statement that she was born in 1947 in the parcel North Sakwa/Ajigo/1 which is family land and belonged to the wives of Gari Ngoga which includes her mother Herina Abor the last wife. That she is the only child of the said Herina. 35. PW2 asserted that Odhoji Garis share of family land was in Alego where he had been chased away by his brothers because of persistent land disputes. That he came to Sakwa with the 1st and 4th defendants who were never born in North Sakwa/Ajigo/1. She testied that by then the said land had already been divided among the wives of Gari Ngoga resident in Sakwa and it is for this reason that his brother Joseph Okech rejected his plea to be given land in Sakwa. The witness however added that Odhoji Gari was permitted to temporarily stay on a portion belonging to Magdalina Oluoch her step mother who had shifted to Alego but was expected back as she had children as he looked for his own land to settle. According to PW2 Magdalina never returned. PW2 denied Odhoji was entitled to half the family land and emphasized that his share must be restricted to the portion that belonged to Magdalina measuring approximately two acres. 36. It was her evidence that the half share taken by the 1st and 4th defendants belonged to 5 people whose children have also inherited namely Rosalia Awuor (Joseph Okech 1st Wife); Angelina Onywera (Joseph Okech 2nd Wife); Herina Abor (PW2 mother); Magdalina Oluoch (portion inherited by Odhoji Gari) and Adda Anyango (Gari Ngoga 4th wife). PW2 maintained the 1st and 4th defendants should share the portion Odhonji inherited from Magdalina together with Magdalinas two daughters. That there was no land for Odhojis daughters to sell to 3rd parties and reiterated that their father held the half share for himself and other family members and who were in actual occupation. 37. On cross examination PW2 agreed Odhoji Gari is the legitimate son of Gari Ngoga and was entitled to the estate. According to her the deceased Gari Gonga left the land registered in his name to his children. She added that before his death he gave each of his wives a portion and the wives gave the same to their children. She claried that Odhoji and Joseph Okech were stepbrothers sharing one father but born of dierent mothers. She disowned her statement that Odhonji was entitled to 2 acres. She agreed that once a person dies his/her immediate next of kin inherit the property. On being asked whether the 1st and 4th Defendants were entitled to inherit their father’s estate she reiterated that their father did not own land but conceded that assuming their father owned land elsewhere they would be entitled to inherit. She agreed that once they inherit, they would be entitled to deal with the land in any manner they wished to. 38. On re-examination, PW2 reiterated that Odhoji had only been permitted to stay on the land temporarily by Joseph. That his mother had land and that is the only land Odhoji was entitled to. She conrmed she went to Kisumu and explained to the lawyer about the case. 39. The Plainti also called Benta Ochieng who testied as PW3. PW3 adopted her Witness Statement dated 4/9/2023 as her evidence in chief. She told the court that she lived in Ngiya and that she knew the property very well as well as Joseph Okech her brother and the 1st and 2nd defendants who she indicated were his brothers’ daughters. She stated in her witness statement the land belonged to Gari Gonga, that Odhoji Gari entitlement to land was in Alego where he Odhoji lived with his mother and where his mother was buried. That Odhoji approached Joseph who declined his request for land and thereafter their mother gave him a small portion for building a house out of pity. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 6

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40. The witness asserted that several family members were at risk of losing their homes. That the 1st 2nd 3rd and 4th defendants who have obtained title were likely to evict the other family members living on the land and asked the court to revoke the said titles. 41. The witness was also cross examined. PW3 conrmed that Odhoji was a son of her deceased father but could not conrm whether he was to inherit as an heir or out of pity or out of the fact that his mother was not buried on the land at Sakwa. She also did not know if Odhojis daughters were supposed to inherit. She however added that upon the death of Gari Ngoga all his grandchildren were entitled to the land. 42. On further cross examination PW3 conrmed the 1st and 4th defendants were the daughters of Odhoji Gari. She told the court she was learning for the 1st time before this court that the land was registered in the names of Joseph and Odhoji. PW3 conrmed she had testied before in a case on the same land though she could not remember the specics due to passage of time. She denied the contents of paragraph 6 of her witness statement seeking the revocation of the titles issued to 1st 2nd 3rd and 4th defendants. 43. PW3 reiterated on re-examination on her prayer for revocation of the titles that she wanted the court to give the land because they are all children of Gari and the land should not be given to only two people. 44. PW4 was Henry Nyadenge from Ajigo sublocation. He introduced himself as a retired Assistant chief for Ajigo Sublocation since 1993. PW4 adopted his Witness Statement dated 4/9/2023 as his evidence in chief. He told the court he knew the Plainti as well as the 1st and 4th defendants who were Odhojis children. He stated in his witness statement that the procedure for land adjudication was led by the head of the family, witnessed by family members, in the presence of land adjudication ocer and village elder. It was Joseph Okech Gari who registered the land with himself and his brother Odhoji as a block for his children and wives. 45. PW4 testied that Odhoji was always quarrelling with the mothers and sisters in law and he had contemplated sending him away as the assistant Chief. He had once warned him when he attempted to extend his land boundaries. He claimed several family members were at risk of losing their homes through eviction by the defendants who hold title. 46. This witness was also cross examined and testied that adjudication happened around 1971/2 and he was present as Joseph’s witness and there was no emerging issue. That Joseph registered the land with Odhoji as his brother. He testied he did not know what a green card entails though he claimed that Odhoji became troublesome after registration trying to extend the boundaries as per the title at the land registry. That he tried to mediate the dispute on his own and never referred the parties to the Land Registrar. 47. He testied on further cross examination that he has never met the 3rd defendant. He was not related to Joseph. He sought revocation of the titles for the reason that it could bring all the children back together since Okech children were not aware when the land was being registered. PW4 conceded that upon death of parents their children are entitled to inherit their property. He asserted that he was not aware of any succession proceedings and appeal thereof. 48. The witness claried in re-examination that though the land was registered to two people it was to be divided to the larger family. 49. PW5 was Jane Ajwang Okech Gari a sister to Joseph Okech Gari the plainti’s husband. She conrmed that the 1st and 4th defendants were the daughters of Odhoji Gari her brother. PW5 adopted her Witness Statement dated 4/9/2023 as her evidence in chief where she states that she was born and lived https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 7

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in North Sakwa/Ajigo/1 until she got married. She later came back home and lived in Ajigo for about three years during which time Odhoji Gari came home and asked Joseph for land. However, Joseph declined noting he did not have enough land to give him but was convinced by an inuential family tie to accommodate his brother. She described Joseph as a very kind brother to them. 50. PW5 testied that Joseph allocated Odhoji the land left by PW5 mother Magdalina on temporary basis as he looked for his own land to settle which he never did. That upon his death he was buried on the piece he was given measuring 2 acres. She claimed Odhojis daughters were never born in the land but came in as young girls. That Odhoji Gari’s rightful portion to own was in Alego where his mother was given land and where she lived until her death. 51. The witness asserted that her father had 7 wives who she listed. Those in Sakwa were the 1st wife, 2nd wife 3rd wife and 4th wife. She reiterated that several family members were at risk of losing their homes through eviction by the 1st 2nd 3rd and 4th defendants who hold title. She also sought that the titles be revoked. 52. Upon cross examination PW5 testied that she had no agreement to show that Odhoji was given the land on temporary basis. She conrmed that when Odhoji was alive no one challenged the ownership of the land. He was buried in the land (Sakwa). She conceded the contents of her witness statement were based on what she could remember and had no documents to substantiate the same. 53. On further cross examination PW5 conrmed she testied in a matter concerning the land on 28/2/2023. She testied that she seeks revocation of the titles since the defendants are strangers. While she was aware the land was registered in the names of Joseph and Odhoji she denied it was for half share each. She conceded having testied in Succession proceedings in Bondo led by the 1st and 4th Defendants as a witness for the objector therein one Henry Oketch. That she was aware Henry appealed to the High Court she was not aware the same was dismissed. She wasn’t aware this would mean the grant remained intact. PW5 testied she was not aware the defendants used the same to sell to the 3rd defendant. 54. According to PW5, while the 1st and 4th Defendants were entitled to their father’s land and to deal with it in any manner, they ought to have convened a prior family meeting to discuss the same. She reiterated the land was family land and even Joseph was never given land. She did not know how Joseph and Odhoji ended up being registered as proprietors. 55. The witness claried in re-examination that Odhoji was occupying a portion of half the land. 56. Maurice Oyugi Okech testied on behalf of the Plainti as PW6. He adopted his Witness Statement dated 4/9/2023 as his evidence in chief. He testied that the plainti was his stepmother and Joseph Gari was his father. Like the rest of the witnesses, he conrmed the relationship of the parties. He stated as per his witness statement that parcel North Sakwa/Ajigo/1 belonged to his father Joseph who inherited it from Gari Ngoga. PW6 claimed that he was born and bred in the said parcel peacefully. Upon marriage his wife was given her own portion to till. He established his homestead according to luo customs in his mother’s piece of land now claimed to be North Sakwa/Ajigo/3017. That under the said customs no one could wake up and decide where they pitched and had to obtain prior elders’ approval. As to Odhojis inheritance he reiterated that his was in Alego as already stated by the other plainti’s witness. 57. PW6 claimed that there are many families living on the land and it is not true only Odhojis 2 daughters can have a say over half of the family land. That on two occasions the 1st defendant and her agents in the company of a prospective buyer sought to evict him including a notice to vacate in 2020. Like the rest of the plainti witnesses he sought for the revocation of the titles. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 8

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58. On cross examination PW6 admitted there was no agreement in proof of that Odhoji was given the land to stay on temporary basis. He conceded Odhoji was given the land under customary law. He denied that title supercede custom. 59. PW6 testied in further cross examination that indeed he testied in the objection proceedings by Henry whose objection was dismissed and appeal thereof was also dismissed. He stated he was before court to object to the dismissal and the grant being valid pursuant to the said dismissal. He conrmed that the 1st and 4th defendants were entitled to inherit their fathers land and use the same in any manner they wished. He conceded he did not have proof to show his father inherited the land neither anything to show that his father gave Odhoji only 2 acres. He conrmed he lives in subdivision 3017. 60. The witness stated in reexamination that he was opposed to the way/process the 1st and 4th defendants inherited the land. 61. The Plainti also called George Ouma Okech to testify in support of the case as PW7. He introduced himself as a printer technician and Joseph Okech son. He told the court he knew the Plainti as his step mother as well as the 1st and 4th defendants who were his fathers’ nieces. PW7 adopted his Witness Statement dated 4/9/2023 as his evidence in chief where he stated he was born and bred in parcel North Sakwa/Ajigo/1 belonged to his father Joseph who inherited it from Gari Ngoga. 62. PW7 testied that his mother left his father and he was adopted and brought up by Herina as her son. That upon her death she bequeathed him one of her pieces of land which is where he established his homestead in accordance to luo customs which the 1st and 4th defendants graced. That it came as a surprise to learn that the land he was bequeathed belonged to the 1st and 2nd defendants. The rest of his evidence echoed the evidence of PW6 on threats for eviction from the land. PW7 also sought that the titles held by the 1st 2nd 3rd and 4th defendants be revoked. 63. Cross examined PW7 stated that he had no title for the piece of land he was bequeathed by Herina as the land was a block. He termed the green card reecting Joseph and Odhoji as wrong since they were holding the land in trust for the rest of the family. He disputed the 1978 entry therein though he was 3 years old in 1978. He denied Joseph’s beneciaries live in parcel 3015. 64. PW7 on further cross examination testied that he received notice to vacate though he could not remember it was for parcel 3017. He told the court the land has approximately 40 people. He had no evidence of Joseph objecting to Odhojis half share. He conceded that the 1st and 4th defendants obtained certicate of conrmation of grant but was not aware of the transmission. He disagreed that the only way to succeed land was through court. 65. With the above the plainti’s case was marked as closed. The Defence Evidence 66. DW1 Agnes Nyambara Onjema testied on 10/2/2026. She adopted her witness statement dated 6/8/2023 as her evidence in chief and produced the documents in her list of documents dated 2/8/2024 as DW1 Ex 1-6. 67. DW1 stated in her witness statement that the land parcel number North Sakwa/Ajigo/1 measuring approximately 13.8 Ha was lawfully owned and registered under names of the late Alex Odhoji Gari and her stepbrother the late Joseph Oketch Gari as the absolute proprietors in common with the land divided in half shares, that is, approximately 6.9Ha each. The two held the land in common in divided shares and the half share of her father the late Alex Odhoji Gari was never held in trust of the whole family of Gari Ngoga. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 9

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68. DW1 claimed that following the demise of Alex Odhoji Gari, she led succession cause at Bondo Law Court where she was legally recognized as a beneciary of her father’s estate measuring approximately 6.9Ha, and by dint of Certicate of Conrmation of Grant issued in favour of the 1st Defendant and 4th Defendant became the lawful owners of the said portion. That the Grant of Letters of Administration Intestate is dated 1st July, 2016. 69. The witness asserted that later on, the said Grant of letters of Administration was conrmed and a Certicate of Conrmation of the Grant dated 11th January, 2017 issued. That it is in the strength of the said Certicate of Conrmation of Grant the ownership of half share of the subject land parcel belonging to the late Alex Odhoji Gari bestowed on the 2nd Defendant and herself. 70. DW1 added that the Plainti sought to challenge the issuance of Certicate of Grant of Letters of Administration to herself and 4th Defendant in Judgment delivered by Hon. E. N. Wasike, SRM on 5th December, 2018 in Bondo PMCC SUCC. 63 of 2016 and which was dismissed on appeal. That in the said Judgment, the Court armed that she and the 4th Defendant were the rightful owners of their father's half share of the suit property herein hence lawfully entitled to sale, transfer or otherwise deal in the property as they deemed it just. 71. She claimed there had not been any demarcation on the land on the suit property before the succession process and later on following sale of part of it to the 2nd and 3rd Defendants herein. To this end, there has not been any illegal and/or fraudulent dealing on the suit land. DW1 asserted the allegations of the Plainti are false if not baseless and the suit uncalled for and ought to be dismissed with Costs to the Defendants herein. 72. Upon cross examination DW1 conrmed Joseph and Odhoji were stepbrothers born of the same father Gari Ngoga but dierent mothers. That the said Gari Gonga had two homes in Alego where he housed three wives and Sakwa housed 4 wives. He did not buy the land. She conrmed she was present during the registration of Joseph and Odhonji having been born and living in the land together with other members of the family. They were holding the land in trust because she too was entitled to her father’s land. That in Luo customs land is tilled in accordance to how a father has allocated it to his wife and children. Each child tills their mother’s portion and no one crosses over to another’s land. 73. DW1 claimed that her grandmother was buried in Alego and all her children were allocated land there except Odhoji Gari and who never built a home in Alego. She was not aware of Oluoch Nyar Ouma and whether Odhoji inherited his piece of land. She asserted that her father was given the land by Joseph because he was called to come and stay in Sakwa. She conceded that her inheritance would be from the 7th wife where her father stayed. She reiterated they were entitled to the share as seen in the search they obtained. 74. DW1 insisted that she had been tilling his father’s portion of land even while she was married for 50 years and she did not require any consent to transfer the same to herself regardless of the same having been registered in two names. She conceded that as at the transfer in 2017 Joseph was deceased. She conceded she was assisted by the chief and the lands registry to partition the land. She claimed they sought to involve Josephs family but they declined. It was her evidence that she had not sold her share as she intended to settle in it. 75. On further cross examination DW1 conrmed she got married while staying in the suit property. The search conrmed Joseph and Odhoji held half share each. They had no intention of doing anything on Josephs share and only did succession in respect of their fathers share. She conrmed there were objection proceedings led by Henry Oloo Okech, Mary Oloo, George Ouma Okech and Moses who wanted the land which were dismissed. The partition was done when the grant had already been https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 10

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conrmed and which gave her the power to sell. She told the court the portion sold to the 2nd and 3rd defendant is not occupied neither was it being cultivated. 76. DW2 was Angeline Akinyi Aduda the 4th Defendant. She adopted her witness statement dated 24/01/2025 as her evidence in chief. She produced the documents in her list of documents dated 24/01/2025 as DW2 Ex 1-4. The contents of the witness statement reect those of DW1 and I will not rehash them. DW2 asserted that after the succession process the 1st defendant and herself divided the half share of the late Odhoji Gari and the rest of the subdivisions. She denied knowledge of any fraudulent and illegal dealings on their part. 77. The witness was also cross examined and agreed that her father did not buy the land but it belonged to his father. On being shown the green card she insisted that for those whose fathers’ names were not in the register had no right to the property. She asserted her entitlement by dint of her father’s name in the green card. She insisted Joseph family refused to do their fathers succession because they insisted the whole land belonged to them. 78. DW2 conrmed that they did not give Joseph family the option to buy at the point of sale. During survey they gave notice to Josephs family. The portion she sold had no people however her sister’s portion had people. She stated that she took nobody’s land as there were distinct boundaries for the two registered owners on the ground despite the absence of beacons. 79. The 1st and 4th Defendants case was closed after the above evidence. The 3rd Defendants Case 80. DW3 was Gift Noelle Wango Kwawango the 3rd Defendant and daughter of the 2nd defendant who died during the pendency of the proceedings. She adopted her witness statement dated 30/9/2024 as her evidence in chief and produced the documents in her list of documents dated 1/8/2024 as DW3 Ex 1-6. She testied that she lives in the United States but retains her Kenyan Citizenship. The documents comprised Sale agreement dated 14/6/2017 Certicate of Conrmation of grant dated 11/01/2017; initial Grant; Title deed for North Sakwa/Ajigo/3016; Application for Land Control Board Consent; Consent of Land Control Board. 81. DW3 testied that her mother handled the purchase transaction for a portion of parcel North Sakwa/ Ajigo/1 from the 1st and 2nd defendants at a consideration of Kshs.4.8 million. That though she was in the USA her mother kept her abreast of the happenings. She was aware the land had been vested to the said defendants by Certicate of Conrmation of grant dated 11/01/2017. DW3 asserted pursuant to the sale she and her mother were the registered owners of parcel North Sakwa/Ajigo/3016 measuring 3.5Ha. 82. DW3 told the court her mother applied for Land Control Board Consent which consent was issued. She claimed they were innocent purchasers for valuable consideration. That the suit was an abuse of the court process since the plainti and her kin had led previous cases on the same subject land which was dismissed. She further testied that she was aware the 1st and 4th defendants were the heirs of ½ share of parcel North Sakwa/Ajigo/1 and it is on the basis of the Certicate of Conrmation of Grant that they were able to get title in their name and thereafter sold to her the portion. 83. The witness stated she was also aware of objections to the said grant which was dismissed on appeal where the court armed the 1st and 4th defendants were rightly entitled to their fathers share in parcel North Sakwa/Ajigo/1. She asserted the portion they bought was rightly hived o the said share and enjoyed the protection of the law. That the portion at time of purchase was unoccupied and undeveloped. She invited the court to dismiss the suit with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 11

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84. On cross examination and being referred to the Sale agreement DW3 noted they purchased 6 acres though the title deed was for 3.45Ha equivalent to 8.265 acres. She conceded the value declared in the LCB application is Kshs.400,000/-. She conrmed she was not present during the survey for the subdivision and could not conrm if her mother was present. She assured that her mother did due diligence. DW3 told the court she did not know where the beacons of the piece they purchased were but emphasized she knows the parcel and it was not being used by anyone. 85. She denied PW6 and PW7 claims that they had constructed in the parcel in 2013/2014 and charged that if that was true it was never disclosed to them by the vendors. According to her the search they did represent due diligence. She emphasized they were not buying from the other registered owners share and it was not her responsibility to secure their consent. Moreover, at the time of purchase the mother title had already been closed and there were documents showing the vendors as owners. DW3 insisted the caution dated 4/7/2017 was done after the mother title was closed. She became aware of it after the sale and it never went through. 86. DW3 told the court she was not aware of the rival claims on the land since the due diligence from the documents did not show there was a problem even at the point of transfer and payment of the balance of the purchase price. 87. On further cross examination DW3 conceded there was a variance in the acreage as stated in the sale agreement and the transfer. She conrmed she did not attend the LCB meeting held on 6/7/2017 and could not conrm the vendors attendance and whether it was a special sitting or not. She insisted the balance of the purchase price was paid through her mother from funds sent by her from USA though she did not have proof of the same. While she was not in touch with the vendors, she claimed the completion date was 18/7/2017. 88. DW3 claried in re-examination that for title to have been issued it means they paid the full purchase price. That the 1st and 4th defendants have not raised any claim on the balance as envisaged in paragraphs 5 and 6 of the sale agreements. 89. With the above the 3rd defendants’ case was marked as closed. Submissions 90. At the close of the hearing, the court invited the parties to le their nal submissions which they complied. The Plainti/Applicant’s Submissions 91. The Plainti’s submissions are dated 19/04/2026, led through the rm of Ben Aduol Nyanga & Co. Advocates. Counsel identied three main issues for determination namely 1) Whether the Plainti has proved fraud and illegality against the Defendants; 2) Whether the 2nd and 3rd Defendants were innocent purchasers with value; and 3) Whether the Plainti has proved her claim of customary trust against the 1st and 4th Defendants. 92. On the rst issue Counsel for plainti relies on the provisions of Sections 26(1) and 80 of the Land Registration Act, 2012 (LRA) to challenge the titles as acquired fraudulently, unprocedurally or illegally. It is submitted that the suit land measuring 13.8 hectares, was registered in 1978 under the former Registered Land Act, Cap 300 (RLA) in common between JOSEPH OKECH GARI and Alex Odhoji Gari, with each holding an undivided half-share. That pursuant to Section 101(1) and 103(1), (2) of the repealed RLA and Section 91(5), (6) of the LRA 2012, a tenant in common cannot deal https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 12

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with or transfer an undivided share to an outsider without the written consent of the remaining coproprietor. 93. Counsel contends that the 4th Defendant as administrator of Alex Odhoji Gari’s estate, fraudulently disposed of portions of the land to the 2nd and 3rd Defendants without seeking or obtaining consent from Joseph Okech Gari or his estate. Furthermore, while Section 91(8) of the LRA empowers the Land Registrar to dispense with consent upon adequate proof no such proof or dispensation was made, and maintains that these illegal transactions were facilitated directly by the 5th Defendant. 94. On the second issue, the Plainti asserts that the 2nd and 3rd Defendants fail the test of innocent purchasers for value without notice and are merely trespassers. It is contended that the Plainti's witnesses established that permanent houses built by PW7 in 2013 and PW6 in 2014 existed on the land long before the Defendants acquired titles proving a total failure of due diligence regarding family occupation on the suit property. The Plainti highlights contradictions in the Defendants' case, noting that while the 3rd and 4th Defendants claimed parcel North Sakwa/Ajigo/3016 was unoccupied the Plainti produced eviction notices served by those same Defendants upon the occupants, which undermines their claim of vacant possession. 95. Additionally, regarding parcel North Sakwa/Ajigo/3016 measuring 3.45 Ha, the 3rd Defendant stated she purchased it for Kshs. 4,800,000/- from the 4th Defendant yet the purchase price varied between the sale agreement and the Land Control Board consent and no evidence was tendered in court to prove payment of the balance. 96. Regarding the claim of customary trust it is submitted that this is anchored under Sections 24(a), 25 and 28(b) of the Land Registration Act, 2012 which recognizes customary trusts as overriding interests. Tracing the ancestral history of the property, it is urged that the land devolved from Gari Ngoga, who had seven wives. When the land was adjudicated in 1974, the only adult males present were Joseph Okech Gari and Alex Odhoji Gari, who were registered to hold the property in trust for all family beneciaries. 97. Counsel contended that the mother of the late Odhoji Gari was Gari Ngoga's 1st wife and she had settled in Alego, where Odhoji was raised. When Odhoji later approached Joseph Okech Gari seeking a place to stay, Joseph allowed him to temporarily occupy an approximate 2-acre portion that had been used by his stepmother, Magdalina Oluoch Nyar Ouma, while awaiting her return. Magdalina never returned and was eventually buried in Alego allowing Odhoji Gari to continue tilling that same 2-acre portion. Because the 1st and 4th Defendants were already born and grown up by the time Odhoji Gari moved onto the property their claim that they were born and raised on the suit parcel is false. 98. It is contended that throughout his lifetime, Odhoji Gari never occupied or farmed more than 2 acres nor did he construct a traditional home on the land according to Luo customs. A clear, undisturbed boundary separating Odhoji’s 2 acres from the rest of the land existed on the ground for over 40 years. Counsel submits that the 1st and 4th Defendants are only entitled to that 2-acre portion and their recent actions are an attempt to unprocedurally disinherit the occupying beneciaries who have lived there peacefully. As the occupying beneciaries are entitled to quiet enjoyment, the Plainti has established a proper basis for a permanent injunction. 99. Finally, on the issue of costs, the Plainti relies on Section 27 of the Civil Procedure Act, which mandates that costs follow the event unless the court orders otherwise for good cause. It is urged that having proved her case on a balance of probabilities on behalf of all beneciaries of the late Joseph Okech Gari, the Plainti prays that the Court grant all the reliefs sought in the Plaint and award full costs of the suit against the Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 13

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1st & 4th Defendants Submissions 100. The 1st and 4th submissions are dated 19/04/2026, led through the rm of Brian & Brian A. Advocates. Counsel identied ve main issues for determination namely 1) Whether the Plainti has proved fraud or illegality in the registration and subsequent dealings with the suit property 2) Whether the 1st and 4th Defendants lawfully dealt with the estate of the late Odhoji Gari; 3) Whether the Plainti has proved the existence of a customary trust; 4) Whether the present suit is barred by the doctrine of res judicata; 5) Whether the Plainti is entitled to the reliefs sought; 101. Addressing the Plainti's primary claim under Sections 26(1) and 80 of the Land Registration Act, Counsel argues that the Plainti has failed to prove any fraud or illegality to warrant the impeachment of title. Citing established precedents such as Wafula v Maru [2024] KECA 1435 (KLR) and Karanja v Kamau & Another [2024] KECA 1701 (KLR) the Defendants emphasize that allegations of fraud require specic pleading and strict proof to a standard higher than the ordinary balance of probabilities. 102. It is contended that the Plainti oered no evidence of deceit, forgery or collusion with the Land Registrar. Furthermore, the caution lodged by the Plainti’s side on 4th July, 2017, merely asserted a claim of interest rather than proof of fraud and was rendered ineective as the register was closed on that same date upon subdivision. That since the land was held under a tenancy in common each owner possessed an independent transmissible share meaning the lack of consent from Joseph Okech Gari’s estate did not constitute an illegality or fraud. 103. Building upon the legal framework of common ownership, the Counsel contends that the administration and subsequent dealings with the estate by the 1st and 4th defendants were executed in full compliance with the law. It is urged that under the provisions of Section 91(5) of the Land Registration Act, a tenant in common holds a distinct share that is freely transmissible upon death without requiring the consent of co-tenants or their estates. That the 4th Defendant acted strictly within her powers under a conrmed grant from the Bondo succession proceedings to transmit and subdivide Odhoji’s half-share via a mutation form dated 4th July, 2017. There being no evidence that these actions encroached upon or interfered with Joseph Okech Gari’s separate share, the administration of Odhoji’s estate remains legally unimpeachable. 104. Turning to the Plainti’s assertion of a customary trust under Sections 25 and 28(b) of the Land Registration Act, the Counsel posits that such a claim must be specically pleaded and proven with clarity regarding its nature, scope and beneciaries as required by the Supreme Court in Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari. Counsel adds that Plainti’s claim that Odhoji Gari was limited to holding only two acres in trust for the family is completely unsupported by survey maps, boundary reports or adjudication records. That this assertion was further undermined by contradictory witness testimonies some claiming Odhoji Gari’s entitlement was limited to two acres while others alleged his share lay in an unproven parcel in Alego and by a complete lack of documentary proof regarding his alleged temporary occupation. Additionally, the Plainti's nearly 40-year delay from 1978 to 2017 in challenging the register constitutes acquiescence, as equity aids the vigilant and not those who sleep on their rights. 105. Counsel further contends that the entire suit is strictly barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act. Applying the test set out in Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] KECA 477 (KLR), it is submitted that all four legal elements are satised: the subject matter (SAKWA/AJIGO/1) and the core issue of customary trust are identical; the parties are litigating under the same family title and the matter was fully heard, determined and armed through Bondo Succession Cause No. 63 of 2016 and Siaya High https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 14

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Court Civil Appeal No. 2 of 2019. That the Plainti cannot circumvent res judicata by reframing claims or seeking to have a court sit on appeal over a court of concurrent jurisdiction. 106. That because the Plainti has failed to establish a customary trust, prove fraud or overcome the bar of res judicata, she is not entitled to any of the remedies sought. Counsel urges that under the principles of Giella v Cassman Brown & Co. Ltd, an injunction cannot issue where no enforceable right is established, nor can titles holding statutory protection be canceled without proof of fraud or illegality. That the balance of rights favors the Defendants, and granting an injunction would undermine the sanctity of title and defeat a completed succession process. 107. That since the Plainti failed to establish the nature, scope or existence of the alleged trust or the purported two-acre limitation there is no basis for the court to grant declaratory relief aecting the registered land. Building on this, Counsel argues that the prayer for cancellation of entries and titles must also fail as a direct consequence of the Plainti's failure to prove fraud, misrepresentation, or illegality. 108. On costs relying on Section 27(1) of the Civil Procedure Act, which mandates that costs follow the event, Counsel prays that the suit be dismissed in its entirety with costs awarded to the 1st and 4th Defendants for being subjected to repetitive litigation over settled matters. 3rd Defendant Submissions 109. The 3rd Defendants submissions are dated 20/05/2026, led through the rm of Odongo Okal & Company Advocates. Counsel identied six issues for determination 1) Whether the 2nd and 3rd Defendants are bona de purchasers for value without notice, and whether their title is indefeasible. 2) Whether this court can cancel the titles of the 2nd and 3rd Defendants in light of the succession court's observation and the principle of indefeasibility 3) Whether the Plainti has pleaded and proved fraud with the required particularity and standard. 4) Whether the dealing by the 1st and 4th Defendants with their half share oended Section 91(6) of the Land Registration Act 5) Whether the Plainti has proved a claim of customary trust against the 1st and 4th defendants 6) Whether the Plainti's claim is an abuse of process given the earlier struck-out suit and the concluded succession proceedings. 110. Counsel submits that the suit parcel was originally registered in equal shares as a tenancy in common between Joseph Oketch Gari and Alex Odhoji Gari. Following Odhoji’s death, his share was lawfully transmitted to his children, the 1st and 4th Defendants under Bondo Succession Cause No. 63 of 2016 a determination armed on appeal in Siaya High Court Civil Appeal No. 2 of 2019, which held that a 1/2 share vested in the personal estate of each co-proprietor. The 1st and 4th Defendants subsequently subdivided their half shares into parcels North Sakwa/Ajigo/3016 and North Sakwa/Ajigo/3017, after which the 4th Defendant sold her portion to the 2nd Defendant and 3rd Defendant as joint owners. Therefore, the Plainti's present suit is an abuse of court process, a collateral attack on concluded succession proceedings and a re-ling of ELC Case No. 21 of 2021 which was previously struck out. 111. Addressing the issue of ownership, Counsel asserts that the 3rd and 2nd Defendant are bona de purchasers for value without notice whose title is indefeasible under Sections 24, 25 and 26 of the Land Registration Act. Citing Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General & 4 others [2017] KECA 700(KLR), it is emphasized that the said defendants paid valuable consideration in good faith, conducted due diligence, obtained Land Control Board consent and had no notice of any defect or trust. They were completely uninvolved in the preceding subdivision and any restriction allegedly lodged by the Plainti on 4th July, 2017, was either unregistered, unserved or lifted given that new titles issued on that exact date. Consequently, their absolute statutory title cannot be challenged without proof that they participated in fraud or misrepresentation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 15

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112. Counsel submits that the Court cannot cancel their titles, as the power of rectication is strictly circumscribed by the doctrine of indefeasibility. It is urged that although the succession court noted a lack of jurisdiction to cancel titles transferred to third parties in a probate cause, the same protection applies in an Environment and Land Court unless third-party purchasers are proven to have participated in fraud. Furthermore, the Plainti was fully aware of the succession and subdivision but failed to le suit to restrain dealings until after the titles had changed hands and substantial resources were invested. That under the doctrine of laches, equity will not assist a party who sleeps on their rights to unwind a transaction completed years prior. 113. Further counsel urges that the Plainti’s failed to plead and prove fraud in accordance with Order 2 Rule 10 of the Civil Procedure Rules. That the law requires fraud to be specically pleaded with detailed particulars and strictly proven. While the Plainti made broad, general allegations of fraud against the 2nd and 3rd Defendants the plaint contains no specic particulars against the 2nd and 3rd Defendants. That moreover there is no evidence demonstrating that the 2nd and 3rd Defendant were aware of any alleged fraud or that they colluded with the 4th Defendant. 114. Responding to the Plainti's argument under Section 91(6) of the Land Registration Act which mandates co-owner consent when dealing with an undivided share, it is contended that this provision is entirely inapplicable. It is submitted that the 1st and 4th Defendants did not transfer an undivided share; rather they partitioned the land into distinct parcels North Sakwa/Ajigo/3016 and North Sakwa/Ajigo/3017. That a tenant in common is entitled to partition property without co-tenant consent to convert an undivided interest into an independent title. The transaction was strictly conned to Odhoji’s half share without encroaching upon Joseph Oketch Gari's estate and even if a technical breach of Section 91(6) had occurred during subdivision it cannot invalidate titles issued to the 2nd and 3rd Defendants, who acquired their titles in good faith. 115. Turning to the claim of a customary trust, Counsel submitted that the Plainti’s argument is fatally contradicted by the appellate nding quoted from the judgment of Lady Justice Aburili. In that decision, the High Court expressly held that a 1/2 share of the whole 13.8 Ha of North Sakwa/Ajigo/1 belonged to the estate of each co-proprietor and vested in their respective personal estates upon death, which directly negatives the concept of trust property. In trust law, property held in trust does not form part of a trustee's personal estate available for distribution to heirs thus treating it as personal estate conrms absolute benecial ownership. 116. Furthermore, citing the Supreme Court landmark precedent in Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari [2018] eKLR, Counsel argues that a customary trust requires proof that the land was ancestral or family land before registration. That in the present case registration as tenants in common in equal shares indicates two distinct families owning separate half-shares rather than one family holding the property in trust. Finally, the succession court evaluated and dismissed the trust objections due to fundamental contradictions among the Plainti's own witnesses regarding land ownership, conrming that no customary trust encumbered Odhoji Gari's half share. 117. In conclusion, it is submitted that the 3rd and 2nd Defendant are innocent, bona de purchasers for value without notice who acquired a clean title from a registered proprietor following a fully concluded succession process. That the Plainti’s allegations of fraud, illegality, and customary trust are entirely unsubstantiated, contradict prior judicial ndings, and fail to meet the required legal standard. Furthermore, any alleged procedural irregularities regarding the subdivision or Land Control Board consent involve the vendor the 4th Defendant and the land registry cannot legally be visited upon the 2nd and 3rd Defendants. The court is invited to dismiss the Plainti’s suit with costs awarded to the 2nd and 3rd Defendants. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 16

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Analysis And Determination 118. I have perused and considered the pleadings, the oral testimonies of the witnesses who testied and the documentary evidence adduced herein. I have equally perused and considered the written submissions and authorities led herein by the Learned Advocates for the parties. The following issues are for determination; 1. Whether the present suit is barred by the doctrine of res judicata; 2. Whether the Plainti has proved the existence of a customary trust; 3. Whether the Plainti has proved fraud and illegality against the Defendants 4. Whether the 2nd and 3rd Defendants were innocent purchasers for value without notice 5. Whether the Plainti is entitled to the reliefs sought in the Plaint dated 4th September 2003. 6. What orders commend in the circumstances of this suit. 7. Who bears the costs of this suit? Whether the suit is barred by the doctrine of res judicata. 119. The plea of res judicata was rst raised by the 2nd and 3rd defendants in the grounds of opposition dated 10/11/2023 in opposition to an application dated 13/10/2023 that was led before court by the Plaintis. The record bears a Notice of Preliminary Objection dated 8/11/2023 to both the plaint dated 4/9/2023 and application dated 13/10/2023 led by the 1st Defendant but the same does not raise the plea of res judicata, the same was largely on locus standi. The court notes that paragraph 22 of the 2nd and 3rd Defendants Defence alludes to the existence of numerous cases led by the plainti which had all been dismissed and or struck out and terming the present suit as an abuse of the court process. 120. Arising from the foregoing it is in order for this court to consider whether the present suit is res judicata. The objection goes to the root of the courts jurisdiction to make a determination on this case. In the case of Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 the court held that jurisdiction is everything and once a court determines that it lacks jurisdiction it must immediately down its tools. 121. The 1st and 4th Defendants submit that the present suit is barred by the doctrine of res judicata. It is noteworthy that Counsel for the Plainti did not address this issue. The court has been referred to the provisions of section 7 of the Civil Procedure Act and rightly so as this is the substantive law on res judicata. 122. Section 7 of the Civil Procedure Act Cap 21 provides that: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 17

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123. The Black’s law Dictionary 10th Edition denes “res judicata” as “ An issue that has been denitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a nal Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…” 124. The threshold to be met for a suit to be termed as being res judicata was enunciated by the Court of Appeal in the case of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR), and which spells out the factors to be considered as follows; For the bar of res judicata to be eectively raised and upheld on account of a former suit, the following elements must be satised, as they are rendered not in disjunctive but conjunctive terms; a) The suit or issue was directly and substantially in issue in the former suit. b) That former suit was between the same parties or parties under whom they or any of them claim. c) Those parties were litigating under the same title. d) The issue was heard and nally determined in the former suit. e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. 125. I will review the objection based on criteria set out above. I must rst identify the former suit. This has been identied by the objectors as Bondo Succession Cause No. 63 of 2016. This court notes that the Plaintis plead at paragraph 24 of the Plaint herein that save for proceedings under Succession Cause No. 63 of 2016 and Civil Appeal No. 2 of 2019 and ELC No. 21 of 2021 there is no other suit pending or previous proceedings in court between the Plaintis and the defendants. 126. The judgement in the above Succession cause led at Bondo as well as the judgement on appeal were produced by the Plainti - See items 12 & 13 of the documents produced by the Plainti listed elsewhere in this judgement. As to ELC No. 21 of 2021 nothing in relation thereto was placed before me however Counsel for the 3rd defendant has submitted that the same was struck out. Having been struck out then it was not heard on its merits and res judicata would not apply. 127. My perusal of the judgement reveals that Henry Oloo Oketch, Mary Ogol Gari Maurice Oyugi Oketch and George Ouma Oketch initially objected to the succession cause in the estate of Alex Odhoch Gari Alias Odhoji Gari. They then metarphosed into plaintis by consent of the parties and with permission of the court. The Petitioner Angeline Akinyi Aduda therein became the Defendant. Looking at the parties it is clear that only the 4th defendant in the present proceedings was a substantive party in the proceedings at Bondo where she was the defendant. Siprosa the Plainti in the present proceedings was not a party to the said proceedings but testied therein as PW6. The parties clearly are not the same especially the inclusion of the buyers of the portion of the land that is the 2nd and 3rd defendants in the present suit. 128. But what were the issues in the former suit and are they directly or substantially in issue in the present suit. The defendants posit that the subject matter in the present suit is land parcel SAKWA/AJIGO/1 and its subdivisions which observation this court agrees with and notes is the same properties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 18

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129. 129 The issues identied by the trial court were – 1) Whether Okech Gari and Odhoji Gari held the suit land in trust for the other family members 2) Whether the Grant of Letters of Administration which were later conrmed were obtained fraudulently. The rst issue is clearly pleaded in the plaint herein and both counsels in their submissions have distilled the same issue for determination arising from the pleadings. 130. Upon considering the pleadings evidence of the parties and the documents presented before it, the trial court held thus ‘I therefore nd the argument that the deceased persons were holding the land in trust of the entire family to be of no legal eect and so the same must fail’. 131. On the second issue above the trial court held thus ‘On the issue that she obtained the grant fraudulently, I nd no basis of the same as she has ably demonstrated that she basically concentrated on the estate of Odhoji Gari, her father and she followed all the requisite steps until conrmation of the said grant. I have gone through the proceedings leading to the said grant and subsequent conrmation and I nd no fault’. The trial Court Hon. E. Wasike found the objection proceedings to be of no merit. 132. The objectors being dissatised with the above judgement preferred Civil Appeal No. 2 of 2019. My perusal of the judgement of the High court sitting on appeal R.E. Aburili dated 29th May 2020 revealed the following; - 133. With regard to the issue whether the estate of Odhoji in terms of the half share was held in trust for some other family members as alleged by the objectors the High Court held thus – ‘….is not stated on the register. Even if it was so presumed, it is not for this court or a succession court to determine as a succession court is deprived of any jurisdiction to determine the elements of trust in a succession proceeding.’ The court guided by case precedent In the Matter of the Estate of Peter Igamba Njoroge, Succession Cause No. 432 of 2009 (unreported) and H.C Succession Cause No. 864 of 1996 (2015) eKLR held thus; ‘The upshot is that this court and the succession court at that lacks jurisdiction to resolve proprietary interest on land based on the alleged trust’ 134. The eect of the above nding was to make the issue of whether Odhoji Gari held the land in trust for the rest of the family available for prosecution and determination before this court, the Environment and land court. I have not been led to any decision of the Court of Appeal overturning the judgement of the High Court. The trial court was not a competent court to have considered and determined the issue of trust. 135. On the occupation of the subdivisions which is also a highly contested issue in the present proceedings the High Court in its judgement above left the matter for determination by the Environment and Land Court as contemplated in Article 162(2)(b) of the Constitution. 136. The High court noting that part of the property had changed hands to third parties who were not parties to the proceedings declined to make any adverse orders against them without aording them an opportunity to be heard. This arms the issues pitting fraud cannot be res judicata. 137. I think I have said enough to demonstrate that the present suit is not res judicata and it is the nding of this court that the same is properly before this court. 138. Having resolved the jurisdictional issue I will now proceed and consider the rest of the issues; - https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 19

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Whether the Plainti has proved customary trust over the suit property; 139. Based on the pleadings the plainti’s suit has been led on her own behalf as the administrator of the estate of Joseph Okech Gari her late husband (hereinafter Joseph) and his beneciaries whose particulars are all listed in paragraph two of the Plaint herein. The parcel in dispute in these proceedings is North Sakwa/Ajigo/1 situate in Sakwa (herein suit property) which according to the Plainti rst belonged to her father-in-law Gari Ngoga (herein the patriarch). This is not in dispute. It is also not disputed that the suit property is registered in the names of both her deceased husband Joseph and his step brother Odhoji Gari. However according to the plainti, the two were to hold ½ share each undivided for and on behalf of the entire family of the patriarch residing in Sakwa Bondo since the patriarch also had another home in Alego Seje. Though I also note she was claiming that the entire land belonged to her husband. 140. The Plaintis also states that although Odhoji Gari was registered as a co-owner, he was only entitled to a portion measuring approximately two (2) acres, the remainder allegedly being held in trust for other family members. On the other hand, the 1st and 4th Defendants who are Odhoji Garis daughters deny that their father held the land in trust for the rest of the family. That based on the title he was a co-owner of a dened ½ share of the entire of the suit property. Consequently, upon his death they obtained grant of letters of administration and proceeded to partition the suit land accordingly with knowledge of Josephs family and transmitted the land into their names and the 4th defendant sold her portion to the 2nd and 3rd Defendants which they were entitled to do. 141. All the Counsels agree that the issue of customary trust arises and which this court also distils from the pleadings led. This calls rstly for a discussion of the legal underpinnings of the concept of customary trust and the established jurisprudence around it. 142. The suit property was registered in 1978. The operative law then was the retired Constitution of 1963 and the Registered Land Act Cap 300 (now repealed by the Land Registration Act 2012). The relevant sections provided as follows; 27. 28. 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; 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 and expressed agreements, liabilities and incidents of the lease. The rights of a proprietor, whether acquired on rst registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject – a. to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 20

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b. 143. The provisions of Section 30 reads; 30. 144. unless the contrary is expressed in the register, to such liabilities, rights and interests as aect the same and are declared by section 30 not to require noting on the register: Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee. Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and aect the same, without their being noted on the register – (a) rights of way, rights of water and prots subsisting at the time of rst registration under this Act; (b) natural rights of light, air, water and support; (c) rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law; (d) leases or agreements for leases for a term not exceeding two years, periodic tenancies and indeterminate tenancies within the meaning of section 46; (e) charges for unpaid rates and other moneys which, without reference to registration under this Act, are expressly declared by any written law to be a charge upon land; (f) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription; (g) the rights of a person in possession or actual occupation of land to which he is entitled in right only of such possession or occupation, save where inquiry is made of such person and the rights are not disclosed; (h) electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals, weirs and dams erected, constructed or laid in pursuance or by virtue of any power conferred by any written law: The current regime is the Land Registration Act 2012 and echoes the above provisions under Sections 24, 25 and 28 Section 24 reads; 24.(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)…. Section 25 reads; 25.(1) The rights of a proprietor, whether acquired on rst registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 21

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(b) 28. 145. to such liabilities, rights and interests as aect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. “Unless the contrary is expressed in the Register all registered land shall be subject to the overriding interest without being noted in the register which include rights acquired or in the process of being acquired by virtue of any written law relating to the Limitation of Actions or Prescriptions.” The Black’s Law Dictionary, 9th Edition denes a trust as: “ 1. The right, enforceable solely in equity, to the benecial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benet of a third party (beneciary).” 146. In the case of Peter Ndungu Njenga vs Sophia Watiri Ndungu [2000] eKLR the Court observed: “The concept of trust is not new. In case of absolute necessity, but only in case of absolute necessity, the court may presume a trust. But such presumption is not to be arrived at easily. The courts will not imply a trust save in order to give eect to the intention of the parties. The intention of the parities to create a trust must be clearly determined before a trust is implied.” Emphasis is mine 147. In the case of Peter Gitonga V Francis Maingi M’ikiara [2007] KEHC 1392 (KLR) Lenaola J stated thus; 14. ‘A “trust” can be created under customary law and the circumstances surrounding registration must be looked at to determine the purpose of the registration. This was what led Muli J. to say this; “ Registration of titles are a creation of law and one must look into the considerations surrounding the registration of titles to determine whether a trust was envisaged.” See HCCC 1400 of 1973 as quoted in Mwangi vs Mwangi [1986] KL R 328 at 332, by Shah J.A.’ 148. The Supreme Court in the case of Isack M’Inanga Keibia Vs. Isaaya Theuri M’Lintari & Another (2018) eKLR rendered itself on recognition of customary land rights thus; ‘Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benet of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are: 1. The land in question was before registration, family, clan or group land 2. The claimant belongs to such family, clan, or group 3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous. 4. The claimant could have been entitled to be registered as an owner or other beneciary of the land but for some intervening circumstances. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 22

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5. 149. The claim is directed against the registered proprietor who is a member of the family, clan or group. Recently the court of Appeal in Mbasa v Mbasa & another (Civil Appeal E034 of 2021) [2025] KECA 1420 (KLR) (31 July 2025) (Judgment) – aptly stated thus; On the rst issue, Customary trust is a recognized legal principle, especially in cases where land is passed down through generational inheritance within communities. The Supreme Court of Kenya, in Isack M’Inanga Kiebia (supra), outlined four key elements necessary to establish a customary trust: the land must have been historically owned by the claimant’s lineage or family, meaning it should have been passed down through generations as part of traditional inheritance; the claimant must prove that he was entitled to the land under customary law practices, demonstrating that he had a recognized right to possess or use the land according to communal traditions; Additionally, the registered owner must have acquired the land subject to the customary rights of others, meaning that even though they hold title to the land, they must have acknowledged the existing customary claims over it at the time of registration; lastly, the claimant must show continued occupation or possession consistent with the alleged trust, proving that his presence on the land has not been interrupted and aligns with the customary arrangement under which he claims ownership.’ 150. It is trite therefore a customary trust need not be noted in the register. The legal burden to proof customary trust rests with the one who asserts the same. Customary trust has been asserted by the Plainti and she must discharge this burden. This position was armed in Mbui Mukangu v Gerald Mutwiri Mbui [2004] eKLR. 151. From the judicial decisions hereinabove the relationship of the parties is pertinent. It is not in dispute that the Parties are related except the 2nd and 3rd defendants who have been sued as the buyers of one of the subdivisions of the suit property. The Plainti is the wife of Joseph Okech Gari who is the son of Gari Gonga (the patriarch). She has also named the beneciaries of the estate of her husband comprising 3 sisters, several sons, daughter inlaw, grandson and a widow. The 1st and 4th Defendants are step sisters to Joseph sharing the same father but born of dierent mothers. The Plainti have led the suit on her own behalf and on behalf of the estate of Joseph and for the said beneciaries. The Plainti adduced in evidence Limited Grant of Letters of Administration Ad Litem issued at Bondo Law Court dated 24/8/2023. 152. It was also incumbent upon the Plainti to proof that the suit property was ancestral/ clan land. PW1 testied that the suit property belonged to Gari Gonga who had two homes one in Alego Seje and Sakwa where the suit property is situate. PW2 also traced the suit property to Gari Ngoga. PW3 stated in her witness statement that the suit property belonged to her father Gari Gonga. It is therefore undisputed that the suit property belonged to the patriarch and was thus family/ ancestral land. Neither Joseph nor Odhonji bought the same. 153. However, it is further not in dispute that the land is not registered in the name of Gari Ngoga the patriarch. The rst registered owners at the opening of the register on 9/10/1978, this was at adjudication were Joseph Okech Gari and Odhoji Gari with remarks ½ share against each name. This is evidenced by the Green Card certied on 4/7/2017 produced by both the Plainti as well as the 1st Defendant. 154. Since a customary trust need not be noted on the register, the court must then look at the circumstances surrounding the above registration. This is where the intention of the parties to create a trust must be https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 23

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determined. Were these two persons designated to hold the land on behalf of the family? I have already noted the two were sons of Gari Gonga. 155. Starting with the pleadings, it is averred at paragraph 9 of the plaint that the two registered owners herein were the registered common owners of the suit property and that they were to hold the title half share each undivided for and on behalf of the entire family of the patriarch residing in the said suit property. I hear the plainti to be stating that both Joseph and Odhoji were to hold their portions in trust for the patriarch’s family living in Sakwa where the suit property is situated. But the pleadings and evidence also reveal that the Plaintis claims the entire land for her husband Joseph whom she claims to have inherited the same from his father Gari Ngoga which seems to be a contradiction of paragraph 9 of the plaint. 156. What is clear from paragraph 19 of the Plaint is that the patriarch died in 1947 and therefore was not present during adjudication. What is the evidence of those who were present during adjudication? 157. PW1 stated in paragraph 5 of her witness statement that Odhoji Garis name was erroneously registered to share the land equally yet on the ground the land was fully utilized by the family members including her mother-in-law, her cowives, the plainti’s mother and 6 step mothers, except two acres which he was entitled to. For me this would have been an issue to be raised under the dispute resolution framework set under the Land Adjudication/Consolidation Act then. My thoughts were actually conrmed by the witness during cross examination when upon being referred to this very issue conceded that the family witnessed the demarcation but did not raise any objection. 158. In fact PW1 further conrmed it was Joseph her husband who registered the land. PW5 the assistant chief conrmed that he was Joseph witness during adjudication and there were no issues. From the evidence it is the same Joseph who later after being convinced allowed his step brother to settle in the land. To me Joseph knew exactly what was happening and there was nothing erroneous about the registration and that is why he never objected during his life time. 159. Moreover it would not make sense that Joseph being privy to the fact that he allowed his step brother to temporarily settle only on two acres would allow the registration in ½ share and not the 2 acres. Again, the question of why ½ share lingers. This puts into doubt the line of arguments that it was not intended for Odhoji to be registered as half owner and that he was there temporarily. There was no documentary evidence adduced by the plainti to show that Odhoji Gari was entitled to only 2 acres and on temporary basis. PW5 conrmed on cross examination that when Odhoji was alive no one challenged the ownership of the land. PW7 conrmed he had no proof that Joseph objected to Odhojis half share. 160. For me Joseph’s conduct shows it was the intention of the brothers, at the time of registration, that each one of them would have distinct interests over their respective shares to wit the ½ share. It is not in dispute that Odhoji was buried in his side of the said ½ share. It appears that issues cropped up only after the death of the two brothers when Odhojis children purported to have the ½ share of their father. 161. It is the nding of this court that the plainti has failed to discharge the burden of the existence of a customary trust against the other half share registered under Odhoji Gari. There is no customary trust. Whether the Plainti proved has proved fraud and illegality against the Defendants 162. The plainti in addition to her claim that Odhoji Gari held the land in trust for the entire family of Gari Gonga pleaded that the rights of the 1st Defendant and 4th Defendant acquired from the suit property were unlawful to the extent that they took more than two acres of land that had been allocated to their father. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 24

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163. In relation to the above allegations, I think my analysis aforegoing has captured part of the evidence in relation to the claim that Odhoji was allocated only 2 acres and no more. None of the witnesses who testied for the plainti led any documentary proof in this regard. What is on record is the green card which allocated both registered proprietors ½ share each of the suit property. 164. The Plainti has further pleaded that there was fraudulent and illegal conduct on the part of the 1st 2nd 3rd 4th and 5th defendants, outlined verbatim as hereunder; Particulars of Fraudulent And Illegal Conduct on the part of the 1st, 3rd 4th and 5th Defendants: 165. a. That the 5th Defendant on 1" FEB 2017 illegally registering 3 owners on title North/Sakwa/Ajigo/1 in entry No.5. On the same day that the 4th Defendant had been registered as a co-owner with Joseph Oketch Gari to reect halfshares as per the register in entry No.4. b. Illegally adding the name of Agnes Nyambara, the 1" Defendant, as a co-owner without the consent of the legal representatives of the estate of Joseph Oketch Gari. c. That the 5 Defendant declining to register a caution placed by legal representatives of the estate of Joseph Oketch Gari, the co-owner of North/ Sakwa/Ajigo/1 on the 4 JULY 2017 and; proceeding hurriedly to illegally CLOSE the title without the consent of the legal representatives of Joseph Oketch Gari d. On the same day, 4 July 2017, illegally registering the 1st Defendant and 4th Defendant to part of the land under North Sakwa/Ajigo/3016 and North Sakwa/Ajigo/3017 respectively. e. The 5th Defendant partitioning the land between Agnes Nyambara And Anjeline Akinyi Aduda vide entry no. 5 without the consent of the lands control. As entry no. 5 was done the same day with entry no. 3. f. 2nd ,3rd and 4th Defendants hurriedly, on 6" July 2017, proceeding to apply for and obtain consent of the Land Control Board to transfer title (North Sakwa/ Ajigo/3016) g. The 5 Defendant deliberately declining to register cautions applied for by the Plainti on 10 July 2017 against any dealings on the new illegal titles North Sakwa/Ajigo/3016 and North Sakwa/Ajigo/3017 in order to defeat the Plainti's claim. h. The 5th defendant registering the illegal transfers of North Sakwa/Ajigo/3016 to the 2nd and 3rd Defendants on 18 July 2017 despite the protestations from the Plainti. i. The 5th Defendant hurriedly registering the new illegal titles North Sakwa/Ajigo/3015, North Sakwa/Ajigo/3016 and North Sakwa/Ajigo/3017 without the approval of the Land Control Board or amending the map. It is important at this juncture to revisit how the 1st and 4th Defendants came to be the registered as proprietors. From the green card produced by PW1 for the suit property North Sakwa/Ajigo/1 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 25

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referred to earlier in this judgement entry No. 4 dated 1/12/2017 is in favor of Joseph Oketch Gari and Angeline Akinyi Aduda in respect of ½ share. With regard to Angeline Akinyi the registration was pursuant to R.L 19. Entry No. 5 dated 1/2/2015 shows three names Angeline Akinyi Aduda, Agnes Nyabara Onjema and Joseph Okech Gari made pursuant to the same succession cause. 166. According to the documents presented before court a grant of letters of administration intestate issued to Angeline Aduda on 15/6/2016 in Succession Cause No. PM 63 of 2016 at Bondo. A certicate of conrmation of grant was issued in respect of the estate of Odhoji Gari to the said Angeline Akinyi Aduda. It is dated 11/07/2017 but it reects the grant was conrmed on 5/01/2017.The schedule shows the suit property North Sakwa/Ajigo/1 (6.9) Ha was distributed to Agnes Nyabara Onjema and Angeline Akinyi Aduda ½ share as heirs. The 6.9 Ha no doubt represents the half share of their father. 167. Agnes and Angeline are sued as the 1st and 4th defendants and it is not in dispute that they are the daughters of Odhoji Gari one of the registered proprietors of North Sakwa/Ajigo/1. 168. It has been urged that pursuant to Section 101(1) and 103(1), (2) of the repealed RLA and Section 91(5), (6) of the LRA 2012, a tenant in common cannot deal with or transfer of undivided share to an outsider without the written consent of the remaining co-proprietor. 169. The Black’s Law Dictionary 11th Edition denes tenancy in common as follows; “ A tenancy by two or more persons in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship. – Also termed common tenancy; estate in common of joint tenancy. “If there be a doubt when an estate was, at its creation, a joint tenancy or a tenancy in common; or if, conceding the estate to have been a joint – tenancy at its creation, there be a doubt whether there had not been a subsequent severance of the jointure – in all such cases, equity will resolve the doubt in favour of tenancy in common. A. C. freeman, co-tenancy and partition 67(2d ed 1886) “The central characteristic of a tenancy in common is simply that each tenant is deemed to own by himself, with most of the attributes of independent ownership, a physical undivided part of the entire parcel. Thomas F. Bergin & Parne. G. Haskell preface to Estates in land and future interests.’ 170. Section 91 of the Land Registration Act 2012 provides for co tenancy as follows; 1. In this Act, co tenancy means the ownership of land by two or more persons and includes joint tenancy or tenancy in common. 2 .Except as otherwise provided in any written law, where the instrument of transfer of an interest of land to two or more persons does not specify the nature of their rights there is a presumption that they hold the interests as tenants in common in equal shares. 3. An instrument made in favour of two or more persons and the registration giving eect to it shall show; a. Whether those persons are joint tenants or tenants in common; and b. The share of each tenant, if they are tenants in common 4 ………………………………………………………… 5. If any land, lease or charge is owned in common, each tenant shall be entitled to an undivided share in the whole and on the death of a tenant, the deceased’s share shall be treated as part of their estate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 26

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171. 6. No tenant in common shall deal with their undivided share in favour of any person other than another tenant in common, except with the consent in writing, of the remaining tenants, but such consent shall not be unreasonably withheld. 7. Joint tenants…………………………. 8. The Registrar may upon receipt of adequate proof dispense with the consent under subsection (6) if the Registrar considers that the consent cannot be obtained or is being withheld unreasonably and the Registrar shall note on the register and on the instrument the reasons for dispensing with the consent. 9 .A person who is aggrieved by the decision of the registrar may apply to the court for the necessary orders. When it comes to matters inheritance section 103 guides as follows; 103. (1)Where any land, lease or charge is owned in common, each proprietor shall be entitled to an undivided share in the whole, and on the death of a proprietor his share shall be administered as part of his estate. (2) No proprietor in common shall deal with his undivided share in favour of any person other than another proprietor in common of the same land, except with the consent in writing of the remaining proprietor or proprietors of the land, but such consent shall not be unreasonably withheld. 172. It is not in dispute that as the time of the entries no. 4 and 5 hereinabove both the common registered proprietors were deceased. Only their personal representatives could within the meaning of section 2 of the Law of Succession Act grant the consent. What is clear from the evidence is that a written consent was not obtained from the plainti the widow of Joseph and or the legal representative of Joseph. DW1 asserted in her evidence that they did not need consent for they were dealing with their father’s portion and that the plainti was not interested in taking out a grant for the reason that they were claiming the entire land. 173. Indeed there is evidence that parties were feuding before the succession court. There is however a proviso that the consent should not be unreasonably withheld. On the other hand, Counsel for the Defendant urges that a tenant in common is entitled to partition property without co-tenant consent to convert an undivided interest into an independent title. 174. I must state that the process of partition of land owned in common, is a process within the jurisdiction of the Land Registrar and is provided for in Section 94 of the Land Registration Act as follows; 94(1) Any of the tenants in common may, with the consent of all the tenants in common, make an application, in the prescribed form, to the Registrar for the partition of land occupied in common and subject to the provisions of this Act and of any other written law applying to or requiring consent to a subdivision of land and of any covenants or conditions in a certicate of title or certicate of lease, the Registrar shall eect the partition of the land in accordance with the agreement of the tenants in common. (2) An application may be made to the Registrar, in the prescribed form, for an order for the partition of land owned in common by; a. Any one or more of the tenants in common without the consent of all the tenants in common; or https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 27

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b. Any person in whose favour an order has been made for the sale of an undivided share in the land in execution of a decree. 175. The above is the procedure the 1st and 4th defendants ought to have followed if they felt the consent was not forthcoming. While under Section 94(2) of the said Act the Land Registrar is given discretion to order partition in certain instances without consent of all the tenants in common having regard to the factors set out under Section 94 (3) of the Act, the reasons for the exercise of the said discretion were not noted in the register as required under the law as evidenced by the ocial searches presented before court. I can only therefore conclude the procedure was not followed. 176. DW1 admitted that she was assisted by the land registrar and the chief but did not allude to any such application or tender any evidence of the process undertaken to dispense with consent. 177. The issue of consent is not novel and has been a subject of many judicial decisions where the courts have consistently held that consent of a co-owner is a prerequisite. 178. In Wairimu Vs Mugumo Nyankinyua Kiambaa Co. Ltd & 2 Others (Environment & Land Appeal E025 of 2024) KEELC 1435 (KLR) – the court held; ‘In the instant case, even though the 3rd Respondent stated that he had consulted the Appellant before he sold a portion of the suit property, it is clear that he did not obtain her consent as required by the law. Nevertheless, he went ahead and partitioned the land after which he sold what he considered to be his share to the 2nd Respondent. In his evidence the 3rd Respondent admitted that he did not inform the Appellant about the survey nor did he inform her that he was going to the 1st Respondent’s oce to have the land divided into two portions so that two certicates could be issued. What the 3rd Respondent ought to have done when the Appellant declined to purchase his share was to apply to court for partition or sale of the suit property. From the evidence on record, it is clear that the 3rd Respondent sold a portion of the suit property to the 2nd Respondent contrary to the provisions of section 91(6) of the Land Registration Act and it is therefore my nding that the said sale is null and void.’ 179. The Court of Appeal in Eighty-Four Investments Ltd -vs- Irungu & 4 Others, Civil Appeal No. 122 of 2019 [2025] KECA 1365 [KLR] (25th July 2025) had this to say; ‘Against those principles, there is no dispute that the deceased and Singh became registered as proprietors of the property, as tenants in common in equal shares in 1986. A tenancy in common, as dened in Blacks Law Dictionary, 8th edition is a “tenancy by two or more persons, in equal or unequal undivided shares, each person having an equal right to possess the whole property but no right of survivorship.” 78. By the time the deceased entered into the sale agreement dated 13th March 2007 with the appellant, Singh was undoubtedly a coowner of the property. Yet, Singh was not a party to the sale agreement, nor did he give his consent to the sale to the appellant. The agreement for sale dated 13th March 2007 made absolutely no reference to Singh and nor was his registered interest as a co-owner in the property mentioned in that agreement. The deceased could not, to the exclusion of Singh, sell the property to the appellant, or to any other person for that matter as he purported to do.’ 180. Applying the above to the facts of the instant case clearly there was an illegality/irregularity in the partition which can cause the impeachment of a title issued by dint of such partition under the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 28

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provisions of section 26 of the Land Registration Act 1(b) which allows for title cancellation for unprocedural acquisition even without proven fraud. Whether the 2nd and 3rd Defendants are innocent purchasers for value without notice of trust 181. The 2nd Defendant died during the pendency of the proceedings. The 3rd defendant is the daughter of the deceased and the impugned title is in her name. In support of her case, she produced Sale agreement dated 14/6/2017; Certicate of Conrmation of grant dated 11/01/2017; initial Grant; Title deed for North Sakwa/Ajigo/3016; Application for Land Control Board Consent; Consent of Land Control Board. According to the 3rd defendant the conrmation of grant vested the ½ of the suit property to the 1st and 4th defendants and that the portion they bought was rightly hived o the said share and enjoyed the protection of the law. She also stated they were innocent purchasers for value. According to her the transaction was conducted by her deceased mother who kept her fully aware of the happenings. She also supported the case of the 1st and 4th Defendant. 182. In Munyu Maina -vs- Hiram Gathiha Maina [2013] KECA 941 [KLR], the court stated that when a registered proprietor root of title is under challenge, it is not sucient to dangle the instrument of tile as proof of ownership and that a party must go beyond the instrument and prove the legality of how he acquired the title by showing the acquisition was legal, formal and free of any encumbrances. 183. The 2nd and 3rd defendants root of title arises from the said partition and as long as the partition was irregular and for this reason alone the ensuing title cannot be sustained it is vitiated. It does not matter that the grant was conrmed. I will be quick to add that this is not to say this court is impugning the grant, I’m very clear in my mind that this court has no such jurisdiction. 184. The court is further emboldened and guided by the decision of the Court of Appeal which was armed by the Supreme Court of Kenya in SC Petition 8 (E010) of 2021 Dina Management Limited Vs County Government of Mombasa & 5 Others where the Supreme Court of Kenya pronounced thus; (111) Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution.’ 185. It has been urged that the title is protected under the provisions of section 93 of the Law of Succession Act. This section avails protection for a purchaser in a regular sale made in strict compliance with the law. For avoidance of doubt, the said Section provides as follows: “ (1) All transfers of any interest in immovable or movable property made to a purchaser either before or after the commencement of this Act by a person to whom representation has been granted shall be valid, notwithstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act. (2) A transfer of immovable property by a personal representative to a purchaser shall not be invalidated by reason only that the purchaser may have notice that all the debts, liabilities, funeral and testamentary or administration expenses, duties, and legacies of the deceased have not been discharged nor provided for.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 29

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186. It is my considered view that the said provisions cannot be invoked at this stage though the court is aware that the grant still stands. The 2nd and 3rd defendants’ recourse lies against the 1st and 4th defendants. 187. For the foregoing reasons the 2nd and 3rd defendants were in my view not bonade purchasers. They also ought to have been keener with the court cases and especially the 2nd defendant who was on the ground sealing the deal. Whether the Plainti is entitled to the reliefs sought in the Plaint dated 4th September 2003. 188. The orders sought by the Plainti have already been highlighted elsewhere in this judgement. This court having made a nding that the Plainti has failed to prove a claim of customary trust then they are not entitled to the 1st and 4th defendants ½ share of their fathers’ Odhojis estate which is the substantive relief sought in this suit. 189. What orders then would commend in the circumstances noting that the plainti is not successful in its bid for declaration of a customary trust but in view of the nding that the partition was irregular. However, I must emphasize that the 1st and 4th defendants underlying property right in the ½ share of their father’s estate has been upheld by this court. 190. The court cannot sanction the irregularity. It is trite that the court has jurisdiction to order partition under the provisions of section 94 of the Land Registration Act. However, the jurisdiction to partition lies with the Land Registrar. It is also trite that this court has powers to order a rectication of the register. Moreover, the provisions of Section 13 (5) of the Environment & Land Court Act empowers this court to make any order and grant any relief as the court deems t and just. 191. This court must therefore order that the partition be undertaken afresh by the Land Registrar with a view to demarcating the ½ share of both the initial deceased proprietor’s estate on the ground and for purposes of issuing two separate titles to the deceased proprietors. Thereafter pursuant to the conrmed grant of letters of administration of the estate of Odhonji Gari the 1st and 4th defendants shall be at liberty to deal with the estate as they please. As regards the 2nd and 3rd defendants their recourse lies in pursuing the 1st and 4th defendants should they deem it necessary to do so. Who bears the costs of this suit? 192. On who bears the costs of this suit the court is guided by the case of Jasbir Singh Rai & 3 other v Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012 [2014] eKLR where the Supreme Court of Kenya held that costs follow the event. However, it is also trite that the award of costs is not cast in stone but courts have ultimate discretion. In exercising this discretion, courts must not only look at the outcome of the suit but also the circumstances of each case. The plainti and the parties she is suing on behalf and the 1st and 4th defendants are all relatives. There is life after this litigation and in my view an order for costs will only escalate bad blood rather than harness good relations. It is my considered view that each party should bear their own costs. 193. The following orders therefore issue to dispose of this suit 1. The plaintis’ suit is dismissed. 2. An order hereby issues that the titles resulting from the impugned partition being titles North Sakwa/Ajigo 3015; North Sakwa/Ajigo 3016 and North Sakwa/Ajigo 3017 shall be cancelled. 3. An order hereby issues that the Land Registrar Bondo shall in the presence of the parties undertake a fresh partition of the parcel North Sakwa/Ajigo/1 and issue separate titles to https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 30

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the initial registered proprietors Joseph Okech Gari and Odhonji Gari within 60 days of this judgement. 4. The costs of the exercise in 3 above shall be borne by the 1st and 4th Defendants 5. Each party to bear their own costs of this suit. DELIVERED AND DATED THIS 24TH DAY OF SEPTEMBER 2026 HON. LADY JUSTICE A.E. DENA JUDGE 24th /9/2026 JUDGEMENT DELIVERED VIRTUALLY THROUGH CONFERENCING PLATFORM IN THE PRESENCE of: MICROSofT TEAMS VIDEO Ms. Achieng Holding brief for Mr. Nyaga for plainti Ms Odhiambo holding brief for Ms Essendi for 5th defendant Mr Odongo for 3rd defendant Court Assistant: Victor Bwire https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5666/eng@2026-09-24 31

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