Joseph Aloise Geoghan Ajode (Suing as the administrator of the estate of Celestine Ajode Akoth, Deceased) v Dalmas Odhengo Odhengo, The Hon. Attorney General & The Land Registrar, Kisumu

Ajode Akoth, deceased, (deceased) through a plaint dated 30 th November 2020. The Appellant averred that at all material times to the suit, all that parcel of land known as Title No. Kisumu/Chiga/1748 (the suit property) was registered in the name of the deceased and her mother, Ogore W/O Akoth (Ogore), as tenants in common in equal undivided shares. The Appellant averred that Ogore died on 15 th June 1986 and was survived by the deceased, who died subsequently on 30th April 1987. The Appellant averred that he conducted a search on the suit property to ascertain its ownership status and established that the property had been transferred and registered in the name of the 1 st Respondent. The Appellant averred that the registration of the suit property in the name of the 1st Respondent was made illegally and fraudulently, the particulars of which he pleaded. The Appellant sought judgment against the Respondents jointly and severally for: a declaration that the transfer of the suit property and registration of the same in the name of the 1 st Respondent was irregular, unlawful, fraudulent, null and void; an order for the cancellation of the said registration so that the property reverts to the name of the deceased; and the costs of the suit. ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 2

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The 1st Respondent filed a statement of defence dated 18 th March 2021. The 1st Respondent denied the allegation that he acquired the suit property irregularly, illegally and fraudulently. The 1 st Respondent averred that he lawfully purchased the suit property from Regina Anne Akinyi on 23rd December 2009 and was subsequently registered as the proprietor of the property on 2 nd March 2010. The 1st Respondent averred that when he purchased the suit property from Regina Anne Akinyi, the same was registered in her name. The 1 st Respondent averred that he conducted due diligence before purchasing the suit property and that he was an innocent purchaser of the property for value without notice of any defect in the title Regina Anne Akinyi held. The 1 st Respondent averred that the Appellant was not entitled to the reliefs sought against him. The 2 nd and 3rd Respondents filed a joint statement of defence dated 26 th February 2021 in which they denied the Appellant's claim in its entirety. The 2nd and 3rd Defendants averred that if the suit property was transferred to the 1st Respondent, then the transfer was done lawfully and procedurally. The lower court heard the suit and delivered a judgment on 22 nd May 2024, dismissing the Appellant’s case. ELCA SUIT NO. E036 OF 2024 JUDGMENT In its judgment, the lower Page 3

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court framed two issues for determination, namely: whether the transfer and registration of the suit property in the name of the 1 st Respondent was irregular, unlawful and fraudulent; and whether the Appellant was entitled to the orders sought in the plaint. On the first issue, the lower court observed from the evidence that the 1 st Respondent acquired the suit property from Regina Anne Akinyi, who had survived her then co-registered owners of the suit property, Selina Atieno Ajode and John Okumu Ajode. The court cited sections 24 and 26 of the Land Registration Act 2012 and stated that the registration of a person as the proprietor of land vested in the person the absolute ownership of the land, and that a certificate of title issued to such owner can only be challenged on the grounds of fraud, misrepresentation to which the person is proved to be a party, and where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. The lower court cited Katende v. Haridar & Company Limited [2008] 2 E.A 173 and stated that the 1st Respondent was a bona fide purchaser of the suit property for value from Regina Anne Akinyi and was therefore the lawful owner thereof. ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 4

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The court also cited Vijay Morjaria v. Nansing Darbar & Another [2000]eKLR, and stated that the burden was on the Appellant to prove the fraud alleged against the Respondents. The lower court noted that the Appellant had deliberately left out of the suit the party who sold the suit property to the 1 st Respondent. The court stated that if any fraud occurred in the transfer of the suit property to the 1 st Respondent, it could only have been committed by the seller, who was not a party to the suit. The court held that the Appellant had not proved his case against the Respondents to the required standard and dismissed the suit with costs to the 1 st Respondent. The appeal: The Appellant was aggrieved by the lower court's decision and preferred the present appeal. In his Memorandum of Appeal dated 19th June 2024, the Appellant challenged the lower court’s judgment on the following grounds: that the court erred in ignoring a glaring irregularity, illegality and/or fraud in the process through which the suit property was transferred to the names of Regina Anne Akinyi, Selina Atieno Ajode and John Okumu Ajode; that the court erred in ignoring a glaring irregularity, illegality and/or fraud on the documents alleged to have been used to process the transfer of the ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 5

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suit property from Regina Anne Akinyi, Selina Atieno Ajode and John Okumu Ajode to Regina Anne Akinyi; that the court erred by faulting the Appellant for not suing the seller and/or her legal representatives; that the court erred by inferring that the land registrar’s role was simply to register documents without verification; and that the court erred in holding that the 1st Respondent was a bona fide purchaser of the suit property for value. The Appellant prayed that the appeal be allowed, the judgment of the lower court set aside and substituted with a judgment in favour of the Appellant as prayed in his plaint in the lower court. The Appeal was argued by way of written submissions. The Appellant filed submissions dated 28th March 2025. The Appellant framed three issues for determination Respondents dealt with by the court, namely: whether the the suit property fraudulently, unprocedurally, irregularly and/or illegally; whether failure to sue the alleged seller and/or her representatives (Regina Anne Akinyi) rendered the suit fatally defective; whether the land registrar was not required to verify documents and/or instruments during registration; and whether the 1st Respondent acquired an indefeasible title in the suit property. ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 6

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On the first issue, the Appellant submitted that Regina Anne Akinyi, Selina Atieno Ajode and John Okumu Ajode were registered as the joint owners of the suit property on 16 th April 1997 after the death of the initial registered owners, Ogore W/O Akoth and Ajode Akoth on 15th June 1986 and 30th April 1987 respectively; that the registration was effected before the Grant of Letters of Administration in respect of the estate of the two were sought and issued. The Appellant submitted that the registration was irregular, illegal and fraudulent. The case of Zacharia Wambugu Gathimu & another v. John Ndungu Maina [2019] eKLR, was cited in support of the submission. The Appellant submitted that the 1st Respondent produced in evidence a purported uncertified confirmed Grant of Letters of Administration said to have been issued by the High Court at Kisumu in Succession Cause No. 713 of 2008, In the matter of the estates of John Okumu Ajode and Selina Atieno Ajode, which was said to have been used to transfer the suit property from the names of Regina Anne Akinyi, Selina Atieno Ajode and John Okumu Ajode to the name of Regina Anne Akinyi as the sole proprietor thereof on 13 th February 2009. The Appellant submitted that Kisumu High Court Succession Cause No. 713 of 2008, concerned the estate of Richard Ochieng Orwa and had ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 7

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nothing to do with the estates of John Okumu Ajode and Selina Atieno Ajode. The Appellant submitted that the lower court should have taken notice, in any event, that there could not exist one succession cause for two estates and should have found the purported Grant of Letters of Administration and Certificate of Confirmation fake. The Appellant submitted that the lower court should have adopted the criteria set in Hebert L Martin & 2 Others v. Margaret J Kamar & 5 Others [2016] eKLR, in determining whether the 1st Respondent held a valid title. On the second issue, the Appellant submitted that the lower court failed to notice that the suit before it was brought to recover the suit property which was in the hands of the 1 st Respondent. The Appellant submitted that it could not sue Regina Anne Akinyi, who was said to have transferred the suit property to the 1 st Respondent, since he (Appellant) was not a party to the transaction and did not have possession of the documentation relating to it, which the 3 rd Respondent failed to provide. The Appellant submitted that he could not join Regina Anne Akinyi and her previous co-owners of the property, John Okumu Ajode and Selina Atieno Ajode to the suit ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 8

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because he had no evidence that they were involved in the fraudulent transfer of the suit property to the 1st Respondent. On the third issue, the Appellant submitted that the 3 rd Respondent had a duty to verify the authenticity of all the instruments and documents presented for registration. In support of this submission, the Appellant cited Arthi Highway Developers Limited v. West End Butchery Limited & 6 Others [2015]eKLR and Njenga v. Mwangi & 2 others (Environment & Land Case 111 of 2020) [2024] KEELC 4572 (KLR) (6 June 2024) (Judgment). On the last issue, the Appellant submitted that the lower court misapplied section 26 of the Land Registration Act to the extent that it found the 1st Respondent’s title to be indefeasible; and that the seller, Regina Anne Akinyi, did not have a good title to the property which she could transfer to the 1 st Respondent. The Appellant submitted that a thief cannot transfer a clean title. The Appellant cited Alberta Mae Gacii v. Attorney General & 4 Others [2006] eKLR and Iqbal Singh Rai v. Mark Lecchini and the Registrar of Titles, Civil Case No. 1054 of 2001 in support of this submission. ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 9

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The 1st Respondent filed submissions dated 14th July 2025. On the issue of whether the Respondents dealt with the suit property fraudulently, irregularly or illegally, the 1 st Respondent submitted that the 1st Respondent had challenged the legal capacity of the Appellant to challenge the 1st Respondent’s title. The 1st Respondent submitted that the Limited Grant of Letters of Administration Ad Litem dated 21 st September 2020, on the strength of which the 1 st Respondent brought the lower court suit, was issued in respect of the estate of Celestine Ajode Akoth, who was different from Ajode Akoth, one of the original owners of the suit property. The 1 st Respondent submitted that Celestine Ajode Akoth and Ajode Akoth could not have been the same person because the Appellant had already obtained a Grant of Letters of Administration in respect of the estate of Celestine Ajode Akoth on 6th March 2006 and there was no indication in that Grant that Celestine Ajode Akoth was also known as Ajode Akoth. The 1 st Respondent submitted that, in any event, the allegations of irregularity, illegality and fraud in the acquisition of the suit property by the 1st Respondent were not proved. The 1 st Respondent submitted that the standard of proof of fraud is higher than the standard of ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 10

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proof on a balance of probabilities. The 1 st Respondent cited several cases in support of these submissions, which I have considered. The 1st Respondent submitted that he purchased the suit property from Regina Anne Akinyi, who at the material time was registered as the sole proprietor of the suit property. The 1 st Respondent submitted that if there was any fraud, it could only have been committed before he purchased the suit property and that there was no evidence that he was involved in any such fraud. The 1 st Respondent submitted that the suit property was registered in the joint names of Regina Anne Akinyi, Selina Atieno Ajode and John Okumu Ajode, who were the administrators of the estates of the first registered owners, Ajode Akoth and Ogore W/O Akoth and that following the death of Selina Atieno Ajode and John Okumu Ajode, the property vested in the survivor of the three, Regina Anne Akinyi, who was registered as the sole proprietor of the property under the doctrine of survivorship in joint tenancies. The 1st Respondent denied that the Grant of Letters of Administration in respect of the estates of Selina Atieno Ajode and John Okumu Ajode were fraudulent, noting that the same were not revoked. ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 11

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The 1st Respondent further submitted that the registration of Regina Anne Akinyi as the owner of the suit property on 13 th February 2009 was not challenged by the Appellant or anyone else until after her death. The 1st Respondent submitted that due process was followed in registering the suit property in his name; that he produced in evidence a copy of the agreement of sale dated 23 rd December 2009 and the consent of the Land Control Board. On whether he was an innocent purchaser of the suit property for value and obtained an indefeasible title, the 1 st Respondent submitted that the Appellant failed to prove fraud, illegality and irregularity in the process through which he acquired the property. The 1 st Respondent submitted that his title to the suit property was protected under sections 24 and 26 of the Land Registration Act. On the Appellant’s failure to join the person who sold the suit property to the 1st Respondent to the suit or her representative, the 1st Respondent submitted that investigation into the validity of a title must start at the root and not at the top of the title. The 1 st Respondent submitted that before the suit property was registered in the name of the 1st Respondent, it passed through Regina Anne Akinyi, Selina Atieno Ajode and John Okumu Ajode, and Regina Anne ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 12

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Akinyi. The 1st Respondent submitted that Regina Anne Akinyi, Selina Atieno Ajode and John Okumu Ajode have been accused by the Appellant of having had the property registered in their names without obtaining a Grant of Letters of Administration in respect of the estates of Ajode Akoth and Ogore W/O Okoth although they are not parties to the suit; and that Regina Anne Akinyi has also been accused of manufacturing a fake Grant of Letters of Administration and Certificate of Confirmation of Grant without being made a party to the suit. The 1st Respondent submitted that the Appellant's suit before the lower court was defective for non-joinder of these parties. In conclusion, the 1st Respondent submitted that a registered proprietor of land enjoys full protection of the law save in the circumstances outlined in section 26 of the Land Registration Act, which the Appellant failed to prove. The court was urged to dismiss the appeal. Analysis and determination: I have considered the pleadings and the proceedings of the lower court, the court's judgment, the Appellant's grounds of appeal, and the submissions of counsel for the parties. As this is a first appeal, this Court must reconsider and re-evaluate the evidence on record ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 13

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and draw its own conclusions on the issues raised for determination before the lower court. In Kenya Ports Authority v. Kuston (Kenya) Limited [2009] 2EA 212, the Court of Appeal stated that: “On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” In Makube v. Nyamuro[1983] KLR 403, it was held that: “…a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.” From the grounds of appeal, I am of the view that the main issue arising for determination in this appeal is whether the lower court erred in failing to find that the 1 st Respondent acquired the suit property irregularly, illegally and fraudulently and as such did not hold a valid title to the property. ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 14

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The suit property was registered under the Registered Land Act, Chapter 300 of the Laws of Kenya (repealed). The Registered Land Act was repealed by the Land Registration Act 2012. Sections 27 and 28 of the Registered Land Act provide as follows: “27. 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. 28. The rights of a proprietor, whether acquired on first 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 – ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 15

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(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect 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.” The two sections have been reproduced in sections 24 and 25 of the Land Registration Act 2012 as follows: “24. Subject to this Act— (a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and (b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 16

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25. (1) The rights of a proprietor, whether acquired on first 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 (b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. Section 26 of the Land Registration Act, 2012 provides as follows: 26. (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 17

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contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” In Nairobi Civil Appeal No. E789 of 2023, Mas Construction Ltd. v. Abdul Waheed Sheik & 6 others, the Court of Appeal stated as follows: “68. It is an indisputable fact that the appellant and the Abduls claim ownership and/or title to the same parcel of land. This Court in Presbyterian Foundation v Kibera Siranga Self Help Group Nursery School (Civil Appeal 64 of 2014) [2023] KECA 371 (KLR) (31 March 2023) (Judgment) stated as follows regarding a claim over the existence of two titles in respect of the same parcel land: “The best evidence of ownership of immovable property is the title deed to it and that is why the question of the root of title is important. Root of title is the deed to which title to a property is ultimately traced to prove that the owner has good title. Accordingly, when there are competing interests as in this case, the parties are required to give evidence of title, starting with a "good root of title." A good root of title and an unbroken chain of ownership is required. To be a good ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 18

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root of title, a document must satisfy each of the following requirements: (a) it must deal with or show the origin of the ownership of the whole legal and equitable interest in the land in question; (b) it must contain a recognizable description of the property; (c) it must not contain anything that casts any doubt on the title.” 69. In the same vein, this Court in Munyu Maina vs Hiram Gathiha Maina [2013] eKLR held that: “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.” In Supreme Court Petition No. E033 of 2023, Harcharan Singh Sehmi & another v. Tarabana Co. Limited & 5 others , the court stated as follows: “(ii) Whether the doctrine of Innocent Purchaser for value Without Notice protects a purchaser of an illegally/irregularly allocated title over public land [66] This issue persistently continues to rear its head whenever the legality of a subsequent ELCA SUIT NO. E036 OF 2024 JUDGMENT title over land Page 19

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following a purchase is called into question. The main bone of contention, has always revolved around the concept of “indefeasibility of title” where holders of such titles under challenge, not only erect the latter as a shield, but also tend to fall back upon the doctrine of innocent purchaser for value without notice. authoritatively This Court and with has since finality on pronounced the itself question of indefeasibility of title in circumstances where a title is called into question regarding its legality. Holders of impugned titles, especially those acquired before the promulgation of the 2010 Constitution always call into service the provisions of Section 23 of the Registration of Titles Act Cap 281 (now repealed). [67] Pursuant to Section 23 of the repealed Act, a certificate of title was held as conclusive evidence of proprietorship. It read: “23. (1) The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.” ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 20

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[68] Upon repeal (of the Registration of Titles Act), the effects of registration are now governed by Section 26 of the Land Registration Act No. 3 of 2012 which provides; “26. (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. (2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.” This draws from Article 40 that the right to property does not extend to any “property that has been found to have been unlawfully acquired.” See Article 40(1) and (6) of the Constitution. [69] It is important to take note of the critical shift in terminology from the repealed Act to the current statute. Under the Registration of Titles Act, a certificate of title was ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 21

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to be regarded by courts as conclusive evidence that the person named therein was the absolute and indefeasible owner of the land. However, under current legislation, a certificate of title is to be regarded by courts as prima facie evidence that the person named therein is the absolute and indefeasible owner of the land. It is therefore no longer possible for a title holder to erect the certificate of title as a barrier to an inquiry into its legality or otherwise. [70] In Dina Management Limited vs. County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), this Court held that to determine whether a party is a bona fide purchaser for value, a court must first go to the root of the title, we stated: “94. To establish whether the appellant is a bona fide purchaser for value therefore, we must first go to the root of the title, right from the first allotment, as this is the bone of contention in this matter.”” From the evidence on record, the suit property was registered in the names of Ajode Akoth and Ogore W/O Akoth as the first registered owners on 14th December 1983. Ajode Akoth died on 30th April 1987 while Ogore W/O Akoth died on 15th June 1986. Ajode Akoth was the son of Ogore W/O Akoth. The Appellant is the son of Ajode Akoth and the grandson to Ogore W/O Akoth. Ajode Akoth had a sister named Regina Anne Akinyi (the Appellant’s aunt) and three wives, two of ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 22

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whom were Monica Anyango Ajode (the Appellant’s mother) and Selina Atieno Ajode (Appellant’s step-mother). On 14th February 1996, the land registrar registered a restriction against the title on the ground that Ogore W/O Akoth, one of the registered owners of the suit property, was deceased. About 10 years after the death of Ajode Akoth and Ogore W/O Akoth, the suit property was registered in the names of Regina Anne Akinyi, Salina Atieno Ajode, and John Okumu Ajode, the aunt, step-mother, and step-brother of the Appellant, respectively, on 16 th April 1997. The record does not make it clear the circumstances under which the deceased persons' property was registered in their names. On the same date, 16th April 1997, there is an indication that Regina Anne Akinyi, Salina Atieno Ajode, and John Okumu Ajode transferred the property to themselves, suggesting that the first registration may have been a transfer by transmission upon them obtaining a Grant of Letters of Administration in respect of the estate of the deceased persons. There are, however, no details of the succession cause in which such Grants were issued, if at all. The subsequent transfer to their names could have been effected by them in their capacity as the administrators of the estates of the deceased persons in their favour ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 23

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as beneficiaries of the said estates. Again, no further details are provided on the transfer. It is unclear whether Regina Anne Akinyi, Salina Atieno Ajode, and John Okumu Ajode were registered as owners of the suit property as joint tenants or tenants in common. John Okumu Ajode died on 4 th July 2007, while his mother, Selina Atieno Ajode died on 22 nd July 2007, leaving Regina Anne Akinyi as the sole surviving owner of the suit property. On 13th February 2009, the suit property was registered in the sole name of Regina Anne Akinyi. From the record, the registration followed the presentation to the land registrar of the Death Certificates for Salina Atieno Ajode and John Okumu Ajode, suggesting that Regina Anne Akinyi, Salina Atieno Ajode, and John Okumu Ajode may have been registered as joint tenants of the property. I hasten to add that the register contains no such indication. The information narrated herein is contained in a certified copy of the extract of the register for the suit property attached to the replying affidavit of the Appellant sworn on 24 th August 202, filed in the lower court on 24th August 2021 in response to the 1 st Respondent’s Notice of Motion dated 28th June 2021. About a year after the property was registered in the sole name of Regina Anne Akinyi, she transferred it ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 24

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to the 1st Respondent on 2nd March 2010. The 1st Respondent was issued with a title deed for the property on the same date. The 1 st Respondent was registered as the owner of the suit property 13 years after the property was acquired by Regina Anne Akinyi, Salina Atieno Ajode, and John Okumu Ajode, who were the Appellant’s aunt, stepmother and step-brother. It was this transfer and registration of the suit property in the name of the 1st Respondent that was challenged by the Appellant before the lower court. The Appellant contended that the registration was irregular, illegal and fraudulent, all of which were denied by the 1 st Respondent. I agree with the 1st Respondent that the burden of proof was on the Appellant. In his evidence and submissions, the Appellant has attributed the alleged irregular, illegal and fraudulent activities to Regina Anne Akinyi, Salina Atieno Ajode, and John Okumu Ajode. The three are accused of causing the suit property to be registered in their names after the death of the first registered owners without a Grant of Letters of Administration. This happened 13 years before the 1st Respondent came to the picture. Regina Anne Akinyi is also accused of causing the suit property to be registered in her sole name after the death of Salina Atieno Ajode and John Okumu Ajode using a ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 25

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forged Grant of Letters of Administration and Certificate of Confirmation. Again, this was done a year or so before the 1 st Respondent came to the scene. Although the Appellant accused the 1st Respondent of fraud and, in his submission, referred to him as a thief, no evidence was adduced to prove that the 1 st Respondent was aware of the activities of Regina Anne Akinyi, Salina Atieno Ajode, and John Okumu Ajode and was involved in them. I agree with the 1st Respondent that the Appellant's failure to join Regina Anne Akinyi, Salina Atieno Ajode, and John Okumu Ajode, or their legal representatives, to the suit was fatal to his claim. I am aware that non-joinder or misjoinder, per se, does not defeat a suit. However, where a necessary party is not joined, it may defeat the claim. In this case, the Appellant’s suit was to stand or fall on proof of the irregularities, illegalities and fraudulent activities of Regina Anne Akinyi, Salina Atieno Ajode and John Okumu Ajode. I agree with the Appellant that if he had established that the suit property was registered in the names of Regina Anne Akinyi, Salina Atieno Ajode and John Okumu Ajode, and subsequently in the sole name of Regina Anne Akinyi irregularly, illegally and fraudulently, Regina Anne Akinyi ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 26

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would not have held a valid title to the suit property and could not have passed a good title to the 1st Respondent. However, how could the lower court reach a finding on the alleged irregularities, illegalities and fraudulent activities of Regina Anne Akinyi, Salina Atieno Ajode, and John Okumu Ajode in a suit in which they were not parties? Were they or their estates not having a right to be heard before they were condemned? The answer must be in the affirmative. It follows, therefore, that the lower court could not find that the Appellant had proved that Regina Anne Akinyi, Salina Atieno Ajode, and John Okumu Ajode acquired the suit property illegally and fraudulently. Since the titles held by Regina Anne Akinyi, Salina Atieno Ajode and John Okumu Ajode, and subsequently in the sole name of Regina Anne Akinyi were not assailed, the Appellant’s case had to fail. The Appellant had sought an order that the registration of the suit property in the name of the 1st Respondent be cancelled and the property reverted to the name of the deceased first registered owners. Even if the registration of the 1st Respondent as the proprietor of the suit property were to be cancelled, how would the land revert to the name of the first registered owners, without the registrations in between relating to Regina Anne Akinyi, Salina Atieno ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 27

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Ajode and John Okumu Ajode being similarly cancelled, and how can they be cancelled without them being parties to the suit? The 1st Respondent established that he acquired the suit property from Regina Anne Akinyi, who was the registered owner of the property. He produced a copy of the agreement of sale and the Land Control Board's consent. The fact that Regina Anne Akinyi transferred the property to him and that he was issued with a title deed was not disputed. Since Regina Anne Akinyi was not a party to the suit and her registration as the owner of the suit property was, in the circumstances, not challenged, I find no basis for the challenge mounted against the 1st Respondent’s registration as the owner of the suit property. It is my finding that the lower court did not err in failing to find that the 1st Respondent acquired the suit property irregularly, illegally and fraudulently. In my view, the lower court reached the correct conclusion that the Appellant’s case was not proved to the required standard. Conclusion In the final analysis and for the foregoing reasons, I find no merit in the Appellant’s appeal. The appeal is dismissed with each party bearing its own costs. ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 28

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Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at 28th day of September 2026 Kisumu on this E.K.WABWOTO JUDGE Judgment delivered virtually through Microsoft Teams Video Platform in the presence of: N/A for the Appellant N/A for the 1 st Respondent N/A for 2 nd and 3rd Respondents Joanne Omondi -Court Assistant ELCA SUIT NO. E036 OF 2024 JUDGMENT Page 29

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