Luke Otieno Oywa v Rosemary Awino Owino, Fredrick Omondi Ogidho, Luke Otieno Denga & The Land Registrar, Awasi

Respondents over a parcel of land known as KISUMU/WEST AGORO/2536 (herein called the suit land). 2. The Appellant’s case was that at all material times, LUCIA OCHOLA ONDIEGI, deceased, was the proprietor of the mother title from which the suit land herein was excised. That he bought the suit land from LUCIA OCHOLA ONDIEGI, and her son, one PETER OGIDHO ONDIEGI, both of whom passed on before subdivision of the mother title and transfer of the sold portion in his (Appellant’s) favour. That immediately upon purchase, he took possession of the sold portion of land pending formal sub-division of the mother title and transfer of his portion. That upon the death of the vendors, the 1 st and 2nd Defendants requested him to finance the succession and subdivision process to enable them to transfer the sold portion to him, a request that he (Appellant) honoured and paid as requested. 3. The Appellant’s complaint was that he was surprised to learn that the Respondents had fraudulently subdivided the mother title and transferred the resultant parcels to his exclusion. He therefore, vide the suit, sought the court’s intervention for the following orders; ELCLA E044/2024 JUDGEMENT 2

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(a) A declaration that the title held jointly by the 1 st and 2nd Defendants and the 3rd Defendant in respect of KISUMU/WEST AGORO/2536 and KISUMU/WEST AGORO/2535 respectively and their registration as proprietors thereof were obtained illegally and the same are liable to be and are hereby cancelled, revoked and rendered null and void. (b) An order directing the 4 th Defendant to cancel and revoke the title held jointly by the 1 st and 2nd Defendant and the title held by the 3 rd Defendant in respect of KISUMU/WEST KISUMU/WEST AGORO/2535 registration to thereof AGORO/2536 respectively revert to LUCIA and and the OCHOLA ONDIEGI (deceased). (c) A declaration that the titles in respect of the other properties resulting from the illegal subdivision of the title comprising the estate of LUCIA OCHOLA ONDIEGI, deceased and the registration thereof were obtained illegally and that the same are liable to be and are hereby cancelled, revoked and rendered null and void. ELCLA E044/2024 JUDGEMENT 3

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(d) An order directing the 4 th Defendant to cancel and revoke all title resulting from the illegal sub-division of the title comprising the estate of LUCIA OCHOLA ONDIEGI, deceased and the registration thereof to revert to LUCIA OCHOLA ONDIEGI, deceased. (e) Punitive and exemplary damages for the unlawful action of the Defendant. In the alternative to (a) and (e) above, A declaration that the Plaintiff is the lawful owner of property title No. KISUMU/WEST AGORO/2536. (f) General damages for trespass onto the Plaintiff’s parcel currently registered as property title No. KISUMU/WEST AGORO/2536. (g) Costs of the suit and interest on all monetary awards at prevailing court rates. 4. The record shows that in response to the claim, the 1 st and 2nd Respondents filed 1st and 2nd Defendants’ Memorandum of Defence dated 14th June, 2021 vide which they denied the Appellant’s claim and averred that the claim was speculative; vague and lacking in specificity, that some of the titles sought to be cancelled are registered in the names of persons not parties in the suit and to grant the orders sought would ELCLA E044/2024 JUDGEMENT 4

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condemn them unheard and that the claim was time-barred by statute under the Limitation of Actions Act, that it is the 1 st and 2nd Defendants who had been in occupation of the suit land since 1989 and that the alleged land sale agreement was null and void for failing to be completed within the mandatory statutory stipulated time frame. 5. No defence was filed by the 3rd and 4th Respondents. 6. The record shows that the suit was heard before the trial court which, vide its judgment delivered on 30 th May, 2024, found that the Plaintiff (Appellant herein) had failed to prove his claim. The court dismissed the suit and awarded the costs thereof to the 1st and 2nd Respondents. The appeal. 7. Aggrieved by the judgment, the Appellant preferred the present appeal vide the Memorandum of Appeal dated 28 th June, 2024. The Appellant seeks orders that the appeal be allowed, the judgment delivered on 30th May, 2024 in Nyando MC EL CASE NO. E012 OF 2020, and the consequential decree be set aside; the reliefs sought in the plaint dated 10th ELCLA E044/2024 JUDGEMENT 5

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November, 2020 be allowed as prayed; and the costs of the appeal and the suit be awarded to the Appellant. 8. The appeal was based on the 10 grounds listed in the Memorandum of Appeal, namely; i. The learned Magistrate erred in fact and in Law by identifying the validity of the Agreement for Sale dated 22 nd October, 1989 as an issue before her for determination; ii. The learned Magistrate erred in fact and in Law by delving into and pronouncing herself on the affairs of the Estate of LUCIA OCHOLA ONDIEGI (Deceased) for which she lacked competent jurisdiction, sitting as an Environment and Land Court; iii. The learned Magistrate erred in fact and in Law by finding that Section 3(3) of the Law of Contract Act, Cap 22 Laws of Kenya was applicable to the subject Agreement and consequently, failing to uphold an oral Agreement between the Appellant and the Deceased; iv. The learned Magistrate erred in fact and in Law by finding that the Contract, whether oral or written, between the Appellant and the Deceased over Title No. KSM/WEST ELCLA E044/2024 JUDGEMENT 6

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AGORO/2536 (“the suit property”) was invalid and unenforceable; v. The Learned Magistrate erred in fact and in Law by finding that the Appellant failed to prove possession of the suit property on a balance of probabilities and/or at all; vi. The Learned Magistrate erred in fact and in Law by finding that the Appellant did not establish proprietary and/or equitable interest over the suit property; vii. The Learned Magistrate erred in fact and in Law by finding that the Appellant did not prove fraud and illegalities on the part of the 1st – 3rd Respondents in the manner in which they obtained the title to the suit property; viii. The Learned Magistrate erred in fact and in Law by failing to revoke, cancel and/or nullify the titles resulting from the illegal and unlawful transactions over Title No. KSM/WEST AGORO/1628 notwithstanding the Respondents’ admission that the same were obtained without conducting succession for the Deceased’s estate. ix. That, alternatively to the foregoing, the Learned Magistrate erred in Law and in fact by failing to declare the Appellant as the absolute owner of the suit property; ELCLA E044/2024 JUDGEMENT 7

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x. The Learned Magistrate grossly misdirected herself in principle by upholding the titles resultant from the illegal and fraudulent transactions over Title No. KSM/WEST AGORO/1628, thus breaching the Court’s duty not to further an illegality which had been brought to its notice; Submissions 9. Pursuant to directions taken on 19 th May, 2025, the appeal was heard by way of written submissions. 10. Written submissions dated 1st September, 2025 were filed by V.H. Law Advocate on behalf of the appellant. Counsel framed 5 issues to be determined in the appeal, namely; i. Whether the learned Magistrate erred in law and in fact by applying Section 3(3) of the Law of Contract Act Cap 23 to the Agreement dated 22 nd October, 1989 and thus arriving at a wrong conclusion that the agreement was invalid and unenforceable (Grounds 1, 3 and 4). ii. Whether the Appellant sufficiently proved possession, his proprietary rights and equitable interest in the suit parcel (Grounds 5, 6 and 9). ELCLA E044/2024 JUDGEMENT 8

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iii. Whether in the absence of the succession proceedings over the estate of the late LUCIA ACHOLA ONDIEGI, the subdivision title No. KISUMU/WEST AGORO/1628 and the resultant titles thereto, including title to the suit parcel, can be said to be legal and valid (Grounds 2, 8 and 10). iv. Whether the learned Magistrate grossly erred in law and fact by holding that the Appellant did not prove fraud and illegalities to the required standard against the 1st to 3rd Respondents (Ground 7). v. 11. What orders are appropriate in the circumstances. On behalf of the 1st and 2nd Respondents, written submissions dated 31st October, 2025 were filed by Onyango & Aywa Advocates. Counsel adopted the issues as framed by the Appellant and responded accordingly. 12. In addition, the parties orally highlighted the written submissions as follows: a. On behalf of the appellant, Counsel referred to the prayers in the Plaint and submitted that these prayers highlight the concern of the Appellant before the trial Court, which was that the transmission of the titles from the estate of Lucia ELCLA E044/2024 JUDGEMENT 9

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Ochola Ondiego was prima facie irregular and illegal. That the transmission was done without succession to the estate of the deceased owner. Counsel submitted that the titles should be cancelled and the property to go back to the estate of the deceased so that people like the Appellants shall stake their claims as liabilities in the estate of the deceased in a succession cause. b. Counsel submitted further that the agreement dated 22.10.1989 is the agreement pursuant to which the Appellant bought the subject land. That the trial Court found that the agreement was invalid pursuant to the Provisions of Section 3(3) of the Law of Contract Act. That Section 3(3) of the Law of Contract Act came into force in 2003 by way of amendment of the Law of Contract Act and that it could not operate retrospectively. That hence it was a grave error to subject the agreement made in 1989 to the said law. c. Counsel submitted further that there was evidence on record, and particularly the testimonies of PW2 and PW3 on the question that the Appellant took possession of the land after purchase. ELCLA E044/2024 JUDGEMENT 10

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d. That there was sufficient proof of fraud because the Respondent transferred the land without succession. Counsel urged the Court to allow the Appeal, set aside the Judgment and grant the relief sought. e. On behalf of the Respondent, it was submitted that the agreement produced formed the basis of the case. That the Respondent was to demonstrate that the Agreement was an invalid document and not an enforceable contract because; i) It was executed by a person named Peter Ogidho who was not the Vendor ii) It referred to property known as Plot No. 1293 which is unknown to the Estate of Lucia Ochola iii) In the development plan, the Appellant refers to the land as Plot No. 2536, the subject of this suit iv) By that time, Plot No. 2536 was not in existence as it came into existence in the year 2014. f. That the Appellant was obligated to prove that he had taken possession of the property. That there was no proof of this, as PW3 (the spouse of the caretaker) disowned the witness ELCLA E044/2024 JUDGEMENT 11

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statement. That, on the other hand, the Defendant proved that they had possession. g. Counsel submitted further that the allegation of fraud was not sufficiently proved. That the Appellant did not lead any evidence that people had been charged with fraud and that no green card was produced to show the basis of the transfer. h. That regarding succession, some of the property from the mother title had been sold and dispatched to other innocent parties who are not parties in the suit. That adverse orders cannot issue at this point against them. Issues for determination i. Having read the record of appeal and submissions filed by both parties, I adopted the issues as framed by the Appellant as the issues that emerge for determination in this appeal. Analysis and determination 13. This being a first appeal, this court has an obligation to reanalyse and re-examine the evidence placed before the trial ELCLA E044/2024 JUDGEMENT 12

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court and to determine the appeal in any of the ways provided for in section 78 of the Civil Procedure Act. The first issue for determination, which covers grounds 1, 3 and 4 of the appeal, is whether the learned Magistrate erred in law and in fact by applying section 3(3) of the Law of Contract Act Cap 23 to the Agreement dated 22nd October, 1989 and thus arriving at a wrong conclusion that the agreement was invalid and unenforceable. 14. The Appellant’s claim before the trial court was premised on an agreement for sale dated 22nd October, 1989 for the purchase of land from one LUCIA OCHOLA ONDIEGE, deceased. In paragraphs 7, 8 and 9 of the plaint dated 10 th November, 2020, the Appellant referred to the said agreement and the purchase transaction. 15. Vide their 1st and 2nd Defendants' amended Statement of Memorandum of Defence, the 1st and 2nd Defendants denied the sale and averred that the alleged sale agreement and a document dubbed completion of purchase price were all forged and falsified documents. The Respondents averred further that the alleged sale agreement could not confer any ELCLA E044/2024 JUDGEMENT 13

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proprietary interest on the Appellant capable of enforcement as it was an invalid and non-binding agreement on the grounds inter alia that the alleged agreement was and remains in violation of section 3(a)(ii), hence incapable of enforcement. 16. The evidence placed before the trial court is that of the Appellant, who testified as PW1, produced the sale agreement dated 22nd October, 1989 as an exhibit and stated that he was the rightful owner of the land by way of purchase. On crossexamination, the Appellant stated that the agreement was prepared by himself in the presence of the elders. 17. A reading of the judgment shows that one of the issues framed for determination by the trial court was whether the Plaintiff (Appellant herein) had proved his case on a balance of probabilities by demonstrating to the court that there was a valid and enforceable agreement that warranted the court to grant the orders being sought, which the court noted were orders of specific performance. 18. After considering the agreement and noting the submissions tendered by the respective parties regarding the validity of the agreement, the trial court observed that the Plaintiff claimed that he was exempted from the requirements ELCLA E044/2024 JUDGEMENT 14

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of section 3(3) of the Law of Contract Act and concluded that since in the suit before it there was already a written agreement, the provisions in respect of absence of a written agreement were not applicable. The court found that the agreement relied on by the Plaintiff could not be enforced or confer any rights or interests on the Plaintiff with respect to parcels 1628, 2536 and 2 sister parcel numbers. That this was simply because the said parcels did not feature anywhere in the said agreement. The Appellant faults the trial court for this finding. 19. It has been submitted herein on behalf of the Appellant that contrary to the learned Magistrate’s conclusion, the requirements for section 3(3) of the Law of Contract Act (as amended in 2003) could not have been applicable because the agreement was entered into in 1989 and is excluded from the requirement of section 3(3), which came into operation on 1 st June, 2003. That section 3(7) of the Act excludes the application of section 3(3) to contracts entered into prior to the amendment. 20. Counsel relied on the case of Civil Appeal No.22 of 2013, Peter Mbiri Michuki (2014)eKLR (Peter Mbiri) case for this ELCLA E044/2024 JUDGEMENT 15

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submission. Counsel submitted that as much as the holding in the Peter Mbiri case was in respect of oral agreements, the agreement reached in the case before the trial court was partly oral and partly written, as demonstrated by the conduct of the parties, and that hence, the section of the law was not applicable. 21. Counsel submitted that, having produced a written agreement of sale that described the general terms thereof, coupled with the evidence by the witnesses, the Appellant proved on a balance of probabilities that the agreement was over a specific and ascertained parcel even though the same was unregistered at the time. Counsel relied on the case of Mkalla -vs- Kikop & Another [2022]KEEL (3109) KLR, where it was held that in the absence of a title deed, the court has to rely on the oral evidence together with the available documentary evidence, namely the sale agreement and payment schedule, to ascertain who between the plaintiff and the Defendant is the owner of the suit land. 22. Counsel urged the court to find that the agreement for sale met the essential elements of a contract and was therefore valid. ELCLA E044/2024 JUDGEMENT 16

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23. On behalf of the 1st and 2nd Respondents, it was submitted on this issue that the trial Magistrate did not make any error either of fact or law. That the Appellant’s entire case rested on the agreement dated 22nd October, 1989, which the Appellant claimed conferred upon him proprietary interest over the suit property. 24. Counsel submitted that under Kenyan law, no interest in land can pass or be created except in the manner prescribed by law and that section 3(3) of the Law of Contract Act (preamendment) required that no suit shall be brought upon a contract for the disposition of an interest in land unless the agreement is in writing and signed by the party to be charged or by a person lawfully authorized. That although the requirement for attestation was introduced later in 2003, the fundamental principles of certainty, capacity and lawful title applied then as now. 25. That the Appellant failed to produce credible evidence of a valid sale. That the submissions that the agreement was partly oral and partly written were an afterthought, as the written note was the only material produced by the Appellant and relied on in the trial. That under the parole evidence rule, ELCLA E044/2024 JUDGEMENT 17

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as reflected in section 97 of the Evidence Act, oral evidence cannot vary or supplement the terms of a written agreement except in narrowly defined circumstances not applicable in the present case. Counsel relied on the case of Fidelity Commercial Bank Limited -vs- Kenya Grange Vehicle Industries Limited [2017]eKLR and Prudential Assurance Company of Kenya -vs- Sukhwender Singh Jutney and Another, Civil Appeal No.23 of 2005 to support the submission. 26. Counsel submitted further that the property description as “a plot at Katito Market” was vague and incapable of identifying any specific parcel of land. That the later insertion of the parcel No.1293 by the Appellant only compounded the uncertainty. 27. That the trial court properly examined the alleged agreement and, upon finding that the vendor lacked good title, the property description was uncertain, the agreement lacked essential formalities and proof of consideration, and there was no evidence of possession or performance, rightly concluded that the document was invalid and unenforceable even under the pre-amendment Section 3(3) of the Law of Contract Act. ELCLA E044/2024 JUDGEMENT 18

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28. That equity cannot help a party relying on a defective and uncertain agreement that was never capable of performance. 29. I have considered the pleadings, the evidence, the submissions, the agreement dated 22nd October, 1989 and the Law of Contract Act Cap 23 Laws of Kenya. The grounds upon which the trial court ultimately concluded that the agreement was invalid and unenforceable were explained in the judgment. These were that the plot number or title of the land being sold was only inserted by the Appellant himself and, by his own admission, as No. 1293, so that when the contract was entered into, the property being sold remained unknown until the Plaintiff wrote plot No.1293 on the agreement. The court found that there was no meeting of the minds of the parties to the agreement in regard to the property that was the subject of the sale. 30. The second reason was the capacity of the seller to sell the land. The trial court noted that no document was produced to show that Peter, the seller, was the owner of the sold land. That there was no evidence to show who the registered owner of the sold land was in the year 1989. That the green card ELCLA E044/2024 JUDGEMENT 19

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produced showed that Lucia Ochola Ondiegi became the registered owner of the land in the year 1994 and was issued with the title deed in respect thereof on 26 th July, 1996. The trial court further noted that the land parcel No.1293 was not shown to be the suit land and that it belonged to the seller, one Peter Ondiegi Ogidho. That no evidence was produced to justify the Plaintiff’s claim over parcel No.1628. 31. On these grounds, the court found that the agreement was invalid and unenforceable. 32. From the foregoing, it is not correct that the trial court based its finding entirely on non-compliance with the provisions of section 3(3) of the Law of Contract Act. The elements of a valid agreement were not demonstrated. 33. I find that the trial court did not err in finding that the agreement was invalid and unenforceable. The land parcel admittedly later inserted in the agreement by the appellant was Plot No. 1293. It was not explained how the same relates to the suit lands herein. The mutation forms and the copy of registers produced by the appellant do not show this. Instead, the documents show that the original parcel was number 1277, ELCLA E044/2024 which was subdivided JUDGEMENT vide the mutation dated 20

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13/11/1993 to produce inter alia parcel number 1628, which was subdivided to create the suit land and parcel numbers 2534 and 2536. The second issue for determination is whether or not the Appellant sufficiently proved possession, his proprietary rights and equitable interest in the suit land. This covers grounds 5, 6 and 9 of appeal. 34. The Appellant had pleaded in paragraph 9 of the plaint that immediately after purchase he took possession of the sold land pending formal sub-division of the mother title and transfer of his portion. On cross-examination, the Appellant testified that he took possession of the land on 6 th November, 1989 and constructed six units on the plot for rental. That the houses were occupied by tenants. 35. PW2 testified that he had been staying on the suit land from his birth to 2012. PW3 testified that the Appellant took possession in the year 1990. That she had a shop near the land and she could see the land and the rental houses that were thereon. PW4, who disowned her witness statement, stated that there was a ‘mabati’ structure built on the land. ELCLA E044/2024 JUDGEMENT 21

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36. The 1st and 2nd Respondents denied that the Appellant ever took possession of the suit land. In paragraph 5(9) of the defence, they denied that the Appellant took possession and built rental houses on the suit land and denied further that the Appellant had been in quiet possession and peaceful enjoyment of the land since 1989. DW1, the 1 st Respondent, testified on cross-examination that she had been on the land since 1989 and that the Appellant only moved onto the land after the case had been filed. 37. Upon examining the evidence, the trial court observed that apart from the documents written by the Plaintiff on the expenses and work done on the land, the witnesses confirmed that there was nothing to show that there were rental houses on the said land, or photographs or expert report to confirm and value the structures on the disputed land. 38. In this appeal, it has been submitted on behalf of the Appellant that the learned Magistrate was unrealistic to expect the Appellant to provide photos of mud houses that had long since fallen down due to their transient nature and that possession can be actual or constructive and that proof thereof does not have to be the actual staying on the land. ELCLA E044/2024 JUDGEMENT 22

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39. Counsel cited Obuba -vs- Nyambwatana [2022]KECA where the Court of Appeal faulted the trial court for equating possession with staying on the suit property. That the Appellant proved his equitable interest in the suit property, which ought to be protected by law even though the persons he transacted with are since deceased. 40. On behalf of the 1st and 2nd Respondents, it was submitted that the burden of proof lies upon the person asserting ownership or possession. Counsel cited section 107(1) of the Evidence Act Cap 80 Laws of Kenya. That the Appellant failed to discharge the burden of proof as he did not produce even a single rent receipt, tenant witness, or rental record, development plan, construction permits, or photographs as alleged to substantiate his claim. 41. That for possession to be recognized in law, it must be actual, open and exclusive and not speculative or inferred. Counsel distinguished the case of Obuba -vs- Nyambwatana relied on by the Appellant and submitted that, unlike the case herein, the cited case involved undisputed long-term possession and cultivation of land for over twenty-five years. That in the present case, the Appellant did not demonstrate ELCLA E044/2024 JUDGEMENT 23

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any continuous, visible occupation, cultivation, or development of the suit land. 42. I have considered the pleadings, evidence and submissions. It is true that the burden of proof rested with the Appellant to prove possession. He failed to do so. The evidence was not only deficient but inconsistent. The appellant produced no photographs, survey report, or any expert report to show the developments, if any, by the appellant on the suit land as evidence of possession. PW2 alleged that he had lived on the land from birth to 2012; PW3 claimed that he used to see the rental units from her shop but that she left the area where the suit land is situate in 1996. PW4 disowned her witness statement and stated that it was a mabati structure that was built on the land. The third issue for determination is whether, in the absence of succession proceedings over the estate of the late Lucia Ochola Ondiegi of title No. KISUMU/WEST AGORO/1628 and the resultant titles thereto, including title to the suit parcel, can be said to be legal and valid. ELCLA E044/2024 JUDGEMENT 24

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43. There was no dispute that, as at the time of subdivision of land parcel No.1628 to produce the suit land and other resultant parcels, succession to the estate of Lucia, the registered owner, had not been undertaken. The judgment shows that the trial court considered the matter. The Appellant, who is not a personal representative of the deceased, lacked capacity to challenge the manner in which the property of the deceased was administered and/or distributed. He did not bring the suit on behalf of the estate of Lucia. 44. The land he bought as described in the agreement was not No.1628 but No.1293. The nexus between parcel No. 1293 and No. 1628 was not established. The appellant did not demonstrate that he had capacity/locus standi to question the validity of the resultant parcels. The next issue for determination is whether or not fraud was proved. 45. From the evidence, if any fraud was committed, it was by the Appellant, who drafted the sale agreement, later inserted a parcel number in the absence of the seller, and purported to ELCLA E044/2024 JUDGEMENT 25

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buy land from a person who was not the registered owner. From the evidence on record, the trial court was right in finding that the Appellant had not proved fraud against the Respondents to the required standard. 46. The standard of proof is above a balance of probabilities, as held in Koinange & 13 others vs Charles Karuga Koinange 1986 KLR at page 23, the court held that: “When fraud is alleged by the Plaintiffs, the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt; something more than a balance of probabilities is required.” This standard of proof was not attained in the present case. Conclusion 47. Having determined that the trial Magistrate did not err in finding that the sale agreement dated 22 nd October 1989 was invalid and unenforceable, that the appellant did not sufficiently prove possession of the suit land as pleaded, that the appellant, not being a personal representative of the ELCLA E044/2024 JUDGEMENT 26

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estate of Lucia Ochola, lacked the capacity to question the distribution or handling of the property of that estate and that fraud was not proved to the required standard, I find that the appeal lacks merit. The appeal is hereby dismissed. Costs of the appeal are awarded to the 1st and 2nd Respondents. Orders accordingly. Judgment dated and signed at Kisumu and delivered this 24th day of September, 2026, virtually through the Microsoft Teams Online Application. E. ASATI, JUDGE. In the presence of: Chuma/Zeddy/Atika: Court Assistants. Awuor for the Appellant. Onyango for the 1st and 2nd Respondents. ELCLA E044/2024 JUDGEMENT 27

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