Jane Adhiambo (Suing as the Legal Representative of the Estate of Jakobo Oyugi Obunga - Deceased) v Hantone Ayaga Olero, The Land Registrar, Homa Bay & The Hon. Attorney General

1. This guiding principle finds direct application in this appeal, which arises from the Judgment and Decree of the Senior Principal Magistrate’s Court at Ndhiwa in MCELC No. E047 of 2024, delivered on 26th November 2025, wherein the Appellant’s suit was dismissed with costs to the 1st Respondent. 2. By a Plaint dated 10th December 2024, the Appellant (suing as the legal administrator of the estate of the late Jakobo Oyugi Obunga) instituted suit against the Respondents seeking: i. A declaration that the registration of the 1st Respondent as sole registered owner of land parcel Kanyamwa/Kabonyo/Kwandiku/2660 (measuring approximately 3.0 Ha) was fraudulent, illegal, and null and void ab initio. ii. An order directing the 2nd Respondent to rectify and amend the register by cancelling the transfer to the 1st Respondent, deleting his name, and reinstating the name of the deceased, Jakobo Oyugi Obunga, to facilitate proper subdivision and transmission. iii. Costs of the suit and interest. 3. The Appellant’s case in the trial court was that the deceased originally owned parcel Kanyamwa/Kabonyo/Kwandiku/2591 (which arose from parcel 1056). She pleaded that during his lifetime, the deceased sold only 5 acres (2.0 Ha) to the 1st Respondent, who entered into possession in 2013. However, in 2024, the 1st Respondent extended his boundary to occupy 3.0 Ha (7.5 acres), thereby encroaching upon the family's retained land. The Appellant further pleaded that the transfer was registered posthumously four months after the deceased’s death on 19th June 2011, making the transaction fraudulent and unprocedural. 2|Page HOMA BAY, ELC L APPEAL NO. E001 OF 2026 -JUDGEMENT

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4. In response, the 1st Respondent filed a Statement of Defence dated 5th February 2025 denying all allegations of fraud, misrepresentation, and illegality. He asserted that in August 2009, he purchased 3.0 Ha (7.5 acres) from the deceased for a total consideration of Kshs. 225,000/- (at Kshs. 30,000/- per acre). He stated that the deceased initiated subdivision of parcel 2591 into parcels 2659 (8.67 Ha) and 2660 (3.0 Ha). All transfer documents and Land Control Board consents were duly executed and lodged at the Homa Bay Land Registry during the deceased's lifetime, but registration delays at the Lands Office resulted in the formal title entry being affected on 4th October 2011. 5. The 2nd and 3rd Respondents did not file pleadings or participate in the lower court proceedings. B. SUMMARY OF LOWER COURT EVIDENCE AND FINDINGS 6. At the trial, the Appellant called three witnesses: i) PW1 (Jane Adhiambo Odongo): Reiterated her plaint, stating she was away from home due to a matrimonial dispute when the sale occurred. She admitted under cross-examination that George Odhiambo (DW2), the deceased’s son, was present during the transaction. ii) PW2 (Lucas Odongo Okumu): Testified that he had leased the land prior to the sale and claimed the deceased sold only 5 acres. On crossexamination, he admitted he had no document or written lease confirming the exact acreage sold. iii)PW3 (Alfred Aluoch Okech): A village elder who testified that 5 acres were sold and that the 1st Respondent later re-fenced a larger portion. In cross-examination, he conceded he was not a surveyor and was not a party to the sale agreement. 3|Page HOMA BAY, ELC L APPEAL NO. E001 OF 2026 -JUDGEMENT

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7. The 1st Respondent testified as DW1 and called two witnesses: i) DW1 (Hantone Ayaga Olero): Admitted a copy of the Sale Agreement dated 14th August 2009 (D. Exh 1) after explaining that he lost the original during employment transfers. He also produced the Green Card (D. Exh 2), Mutation Forms (D. Exh 3), Land Control Board Consent (D. Exh 4), and Chief's Letter (D. Exh 5). ii) DW2 (George Odhiambo Oyugi): Son of the deceased, who confirmed being present during the sale, boundary demarcation, and execution of the agreement. He explicitly testified that his father sold 7.5 acres (3.0 Ha) at Kshs. 30,000/- per acre, totaling Kshs. 225,000/-. iii)DW3 (Boniface Ogallo Orucho): Confirmed facilitating the transaction and testified that the deceased was energetic, mentally sound, and actively led the process before the Land Control Board. 8. In her judgment dated 26th November 2025, the learned Senior Principal Magistrate (Hon. E.M. Onzere) found that: i) Under Section 68(1)(c) of the Evidence Act, the copy of the sale agreement was properly admissible as secondary evidence because the loss of the original was satisfactorily explained. ii) The sale agreement, mutation forms, and Land Control Board consent proved that the deceased intended to sell and transfer 3.0 Ha to the 1st Respondent. iii)The Appellant failed to discharge the high standard of proof required to establish fraud under Section 26 of the Land Registration Act. iv)The registration of parcel 2660 in favor of the 1st Respondent was procedural and lawful, despite the registration entry occurring four months after the deceased’s death. Consequently, the suit was dismissed. III. MEMORANDUM OF APPEAL & SUBMISSIONS 4|Page HOMA BAY, ELC L APPEAL NO. E001 OF 2026 -JUDGEMENT

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9. The Appellant’s Memorandum of Appeal dated 2nd January 2026 sets forth 16 grounds of appeal, which condense into four main issues: i) Whether the trial magistrate erred in admitting and relying upon a copy of the sale agreement without accounting for the loss of the original or fulfilling statutory conditions. ii) Whether the 1st Respondent’s title was acquired fraudulently, illegally, or through intermeddling with a deceased's estate, given that the transfer was registered four months posthumously without succession and without evidence/instruments of transfer produced from the Lands Office. iii)Whether the trial court failed to evaluate the Appellant’s evidence, including survey reports indicating boundary/acreage discrepancies. iv)Whether the 1st Respondent discharged his burden of proof to establish a valid root of title. 10.Appellant's Submissions: Counsel for the Appellant submitted that under Section 3(3) of the Law of Contract Act, the sale agreement produced did not conform to statutory requirements. It was argued that the 1st Respondent failed to produce any signed instrument of transfer or receipt from the Land Registry to prove how parcel 2660 was transferred into his name on 4th October 2011, months after the deceased died on 19th June 2011. The Appellant contended that transferring land posthumously without letters of administration constitutes intermeddling under Section 45 of the Law of Succession Act, rendering the title null and void. 11.1st Respondent's Submissions: Counsel for the 1st Respondent submitted preliminary objections that several grounds of appeal violated 5|Page HOMA BAY, ELC L APPEAL NO. E001 OF 2026 -JUDGEMENT

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Order 42 Rule 1 of the Civil Procedure Rules for being argumentative and vague. On the merits, Counsel argued that the trial court properly admitted secondary evidence of the sale agreement pursuant to Sections 64, 66, and 68(1)(c) of the Evidence Act. It was submitted that all underlying transaction documents (mutation forms, LCB consent) were executed by the deceased during his lifetime, and the subsequent registration was merely the completion of a valid pre-existing contract. Furthermore, the Appellant failed to prove fraud beyond ordinary civil probability. IV. ISSUES FOR DETERMINATION 12.As a first appellate court, this Court is duty-bound under the principles in Selle & Another v. Associated Motor Boat Co. Ltd. & Others [1968] EA 123 to re-examine, re-evaluate, and analyze the entire evidence on record to arrive at its own independent conclusions. 13.Having evaluated the record and submissions, three core issues arise for determination: i) Whether the trial court erred in admitting and relying on secondary evidence of the land sale agreement. ii) Whether the 1st Respondent lawfully acquired title to Land Parcel Kanyamwa/Kabonyo/Kwandiku/2660, or whether the registration was vitiated by fraud, illegality, lack of transfer documents from the Lands Office, and posthumous registration. iii)Who bears the costs of the lower court and this appeal? V. ANALYSIS & COURT DETERMINATION Issue 1: Admissibility of Secondary Evidence (Loss of Original Sale Agreement) 6|Page HOMA BAY, ELC L APPEAL NO. E001 OF 2026 -JUDGEMENT

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14.Primary evidence is the production of the document itself under Section 64 of the Evidence Act. Secondary evidence is admissible under Section 68(1)(c) of the Evidence Act when the original has been lost or destroyed, or when the party offering evidence cannot produce it in reasonable time due to reasons not arising from his own default. 15.During his testimony, DW1 stated under oath that he misplaced the original sale agreement following multiple employment transfers across the country. The learned trial magistrate evaluated this explanation and admitted the copy as D. Exh 1. However, admissibility is distinct from probative value. 16.On re-evaluating the copy of the sale agreement (D. Exh 1), this Court observes significant inconsistencies. While DW1 and DW3 claimed in cross-examination that the sale agreement was executed before a local Chief, the document produced in court is an agreement prepared by an advocate based in Nairobi (Oriaro & Co. Advocates). Crucially, the local Chief is not an attesting witness on D. Exh 1. While Section 68(1)(c) allows secondary evidence upon loss of an original, lost agreements must be corroborated by clear and uncontradictory surrounding circumstances when their execution is directly challenged. Issue 2: Validity of Title, Posthumous Transfer, and Lack of Lands Office Documents 17.Under Sections 24 and 25 of the Land Registration Act, No. 3 of 2012, registration confers absolute ownership. However, under Section 26(1) of the Act, a title may be challenged and cancelled if it was acquired fraudulently, illegally, unprocedurally, or through a corrupt scheme. As affirmed in Munyu Maina v. Hiram Gathiha Maina (Civil Appeal No. 239 7|Page HOMA BAY, ELC L APPEAL NO. E001 OF 2026 -JUDGEMENT

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of 2009), when a registered proprietor's root of title is challenged, it is insufficient to merely "dangle" the title deed; the proprietor must prove the legality and procedural propriety of the acquisition. 18.A critical legal hurdle in the 1st Respondent’s root of title lies in the execution and registration of the transfer instrument: i) Absence of Transfer Documents: DW1 admitted in cross-examination that he did not file or produce in court any executed Transfer Form (RL1) or Land Registry booking receipt. He claimed he lodged the documents in November 2009, but no primary or secondary evidence from the Land Registrar was adduced to corroborate this claim. ii) Failure of Lands Office Evidence: The 2nd Respondent (Land Registrar, Homa Bay) failed to file a defence, submit a statutory report, or produce the parcel file/register documents showing how entry No. 2 on the Green Card was effected. iii)Posthumous Registration: It is common ground that the deceased, Jakobo Oyugi Obunga, died on 19th June 2011. The Green Card (D. Exh 2) reveals that parcel Kanyamwa/Kabonyo/Kwandiku/2660 was registered in the name of the 1st Respondent on 4th October 2011— nearly four months after the deceased's death. 19.The trial magistrate held that because subdivision consent and mutation forms were executed during the deceased's lifetime (in 2009–2010), the deceased intended to transfer the land, and the delay was merely administrative at the Lands Office. This Court finds that reasoning fundamentally flawed in law. 20.A Power of Attorney or authority of an owner over his property lapses immediately upon death. Once a registered proprietor dies, their legal 8|Page HOMA BAY, ELC L APPEAL NO. E001 OF 2026 -JUDGEMENT

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capacity to transfer property ceases. Any title held under the Registered Land Act (now Land Registration Act) cannot be transferred posthumously on the basis of unverified, unproduced transfer instruments executed prior to death without undergoing transmission under the Law of Succession Act (Cap 160). 21.Section 45(1) of the Law of Succession Act explicitly prohibits any dealing with, taking possession of, or disposing of an estate of a deceased person without a grant of representation. In the absence of an executed transfer instrument produced from the Land Registry, and with no evidence from the Land Registrar explaining how a dead person "transferred" land on 4th October 2011, the registration entry was legally void and unprocedural. 22.As established in Oindo v. Okech & Another [2025] KEELC 6894 (KLR) and Mwambeo v. Mwambeo [2026] KEELC 1426 (KLR), a transfer of land effected after the death of the registered proprietor without representation under the Law of Succession Act is an absolute nullity. The 1st Respondent failed to discharge his burden under Munyu Maina to establish a clean and lawful root of title. The learned magistrate erred in fact and law by excusing the complete absence of transfer instruments and ignoring the fatal statutory effect of posthumous registration. 23.Munyao J. (as he then was) in the case of Hubert L. Martin & 2 Others v Margaret J. Kamar and 5 Others [2016] KEELC 1092 (KLR) found as follows: “The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply 9|Page HOMA BAY, ELC L APPEAL NO. E001 OF 2026 -JUDGEMENT

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because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld.” 24.Similarly, the Court of Appeal in the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR expressed thus: “We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.” 25.From the above it goes without saying that a deceased person ceases to exist as a legal entity and cannot transfer property in praesenteri. Following an individual's demise, any attempt by family members or third parties to alienate, sell, or convey title to immovable land without first obtaining a Grant of Probate or Letters of Administration from a competent court is bad in law. In the absence of such judicial 10 | P a g e HOMA BAY, ELC L APPEAL NO. E001 OF 2026 -JUDGEMENT

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representation, no individual possesses the unilateral legal authority to convey a clean, recognized title to a third-party purchaser, rendering any such posthumous transfer void or voidable at the instance of the rightful legal heirs. VI. DISPOSITION & ORDERS 26.In the result, the Appellant’s appeal succeeds. The Judgment and Decree of the Senior Principal Magistrate’s Court at Ndhiwa dated 26th November 2025 in MCELC No. E047 of 2024 is hereby set aside and substituted with the following orders: 1. IT IS HEREBY DECLARED that the registration of the 1st Respondent, HANTONE AYAGA OLERO, as the registered owner of Land Parcel KANYAMWA/KABONYO/KWANDIKU/2660 on 4th October 2011 was unprocedural, illegal, and null and void ab initio. 2. AN ORDER IS HEREBY ISSUED directing the 2nd Respondent (Land Registrar, Homa Bay) to rectify the register KANYAMWA/KABONYO/KWANDIKU/2660 by of Land Parcel cancelling the transfer entry in favor of the 1st Respondent and reinstating the parcel into the name of the deceased, JAKOBO OYUGI OBUNGA. 3. The suit property shall revert to the Estate of the late Jakobo Oyugi Obunga to facilitate lawful administration, determination of legitimate purchaser claims, and transmission in accordance with the Law of Succession Act. 4. The 1st Respondent shall bear the costs of the suit in the lower court and the costs of this appeal. 11 | P a g e HOMA BAY, ELC L APPEAL NO. E001 OF 2026 -JUDGEMENT

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Orders accordingly. DATED, SIGNED, AND DELIVERED ELECTRONICALLY AT HOMA BAY THIS 21ST DAY OF SEPTEMBER 2026. JUSTICE J.W WANYONYI, JUDGE ENVIRONMENT AND LAND COURT OF KENYA, HOMA BAY Judgment delivered in open court in the presence of: 1. Ms. Obwanda for the Appellant 2. Mr. Omondi for the 1st Respondent 3. Court Assistant: Ouma 12 | P a g e HOMA BAY, ELC L APPEAL NO. E001 OF 2026 -JUDGEMENT

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