Charles Obure Nyamesa v Kenneth Mecha Ondieki, Land Registrar Kisii & Attorney General

b. The learned trial magistrate erred in law and fact when he held that the plaintiff had no locus standi, and yet the allegation of lack of locus standi was not pleaded and could not be made on the submissions. c. The learned trial magistrate erred in law and fact when he misdirected himself that the appellant was not the registered owner of the suit parcel BASSI/BOITANGARE/501 before sub-division. d. The learned trial magistrate erred in law and fact when he held that the appellant was suing on behalf of the estate, and yet there was no estate e. The learned magistrate erred in law and fact when he failed to hold that the respondents had no reason to cancel the appellant's registration and subsequent sub-divisions of original parcel BASSI/BOITANGARE/501. f. The learned magistrate erred in law and fact when he considered the 1st respondent's submissions, which are not supported by any evidence from the 1st respondent. g. The learned magistrate erred in law and fact when he held and considered the defence by the 1st respondent, which is not supported by evidence, and yet they were only mere averments. h. The learned trial magistrate erred in law and fact when he disregarded the evidence by the appellant, which evidence was not challenged. i. The learned trial magistrate erred in law and fact when he failed to consider the documentary evidence in support of his case. 2

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j. The learned magistrate erred in law and fact when he failed to hold that the respondents had no powers to cancel and/or revoke the titles in the case. k. The learned trial magistrate failed to properly or at all, analyzes the evidence and the submissions made on the part of the appellant and this reached a wrong decision. l. The judgment and/or decision of the trial magistrate herein is contrary to the weight of the evidence on record and hence manifestly unsafe. 2. The Appellant therefore asks this Honourable Court to make the following orders; a. The appeal herein be allowed and the decision and decree of the Chief Magistrate's Court be set aside in its entirety. b. That the appellant's suit in the Chief Magistrate's Court, that is, Ogembo ELC No. 2 of 2020 be allowed as prayed. c. That Costs of this appeal and in the Chief Magistrate's Court be borne by the respondents. 3

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d. Any other further orders and/or reliefs that this honourable court may deem fit to grant. 3. In the suit filed before the subordinate court, the Appellant had pleaded that sometime in the year 2009, Okore Obure, the owner of land parcel No. Bassi Boitangare 501 transferred the said parcel to one of his sons, Charles Obure Nyamesa, to hold in trust for himself and his two brothers. 4. He stated that after the plaintiff got registered to the land parcel in question, he transferred the share he was holding in trust to his two brothers, a small section to a purchaser and titled deeds were issued to all the transferees. The plaintiff avers that when he went to the Lands Office to obtain a search, he realised that the Land Registry had cancelled all the titles he had transferred to the respective parties without valid reasons. 5. Additionally, he pleads that the 1st Respondent caused him to be arrested and while he was in custody, the 1st Respondent proceeded to illegally construct on the suit land. He urged that orders of eviction be granted against the 1st Respondent and orders declaring the actions of the 2nd Respondent null and void. 6. From the evidence adduced by the Appellant and the 2 nd Respondent, it is true that on 10th February, 2025, the 2nd Respondent cancelled the registration of the Appellant, which then reverted the suit title to the name of the original owner pending proper succession. The Appellant avers that 4

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this should not have happened as the suit property no longer formed part of the deceased estate. 7. The Appellant submits that from the testimony tendered, no evidence was produced to show whether the said OKORE OBURE died or not; the respondents did not produce any evidence of a death certificate. It is his submission that the suit land was transferred from OKORE OBURE to the appellant, CHARLES NYAMESA OBURE. According to him, he returned all the requisite transfer instruments to the 2 nd Respondent before the land was registered in his name. 8. The Appellant submits that the trial court misdirected itself to find that he did not have locus standi to sustain the suit. Further, he blames the learned magistrate for erring in law and fact in considering the 1 st Respondent's submissions, which are not supported by any evidence. He also urges that the learned magistrate erred in law and fact in considering the 1st Respondent's defence, which was not supported by evidence and consisted of mere averments. 9. In arguing that his case before the subordinate court was merited, the Appellant repeated the evidence adduced during the hearing. In analysing whether the 1st Respondent was entitled to inherit a piece of the suit land, the Appellant raised new matters that were not presented before the trial magistrate. Inter alia; a) Who are the biological parents of the 1st Respondent? 5

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b) Is the father of the appellant the same as the father of the 1 st Respondent? c) Who was the 1st Respondent the registered proprietor of the parent land BASSI/BOITANGARE/501? d) Was the 1st Respondent born by the time the appellant's late mother, OKORE OBURE, obtained the 1st registration? 10.He submitted that the answers to the above from the testimony and documentary evidence which the 1st respondent evaded by failing to testify ; It is the appellant's testimony that the 1st respondent herein was brought by the area Chief in the year 2011 and claimed that her mother was once married by the appellant 'slate father in 1950(s) before she separated with the appellant's father and got married at Nyakegogi area, where the 1st respondent's mother, biological father and other biological brothers are residing up to date and the 1st respondent has a homestead and piece of land there. The 1st respondent was malicious and mischievous and had refused to accept the reality that he was born at Nyakegogi, where his biological father was. 11.From the foregoing, it is not in dispute that the appellant's mother was the initial registered owner of all that parcel of land BASSI/BOITANGARE/501 and she obtained first registration before the 1st respondent was born and thus she could not be registered to hold in trust land for a stranger in this case the 1st respondent. The respondent 6

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did not bring fort any evidence to support his claim. The mere pleadings of a statement of defence and a bundle of documents, which was not produced and which is not supported by any evidence, do not form any basis of argument in the respondent's submissions. 12.The Appellant submitted extensively on why it was wrong for the 2 nd Respondent to revoke his title without first informing him. He cited the provisions of articles 24, 40 and 60 of the Constitution in support of his arguments. He also cited among others the case of Republic v The Registrar of Titles & The Hon. Attorney General ex-parte David Gachina Muriithi, Misc Civil Application JR. No. 95 of 2010, where Justice G.V. Odunga held that: " ... it is clear that the right to property is constitutionally protected and a person can only be deprived of that right as provided under the Constitution. Both under the Constitution and the relevant statutory provisions, a registered proprietor's title to land cannot be arbitrarily cancelled without the proprietor being afforded an opportunity of being heard. A decision by the Registrar to unilaterally cancel or revoke a title, even if he had such powers, would fly in the face of the express constitutional provisions." 7

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13.In Kuria Greens Limited -vs- Registrar of Titles and Commissioner of Lands Nairobi, HC Petition No. 107 of 2010 (unreported), Musinga J held that even if land had been unlawfully acquired, the state could not revoke the registered owner's title without following due process, and doing so was a violation of Articles 40 and 47 of the Constitution. 14.The Appellant contended that the 2nd respondent had no reason to cancel the titles and/or revoke the entire process that led innocent parties to lose their ownership of land. The learned magistrate erred in law and fact when he failed to hold that the respondents had no reason to cancel the appellant's and BASSI/BOITANGARE/501. 15.None of the Respondents filed submissions Analysis and determination: 16.This court is alive to its jurisdiction, sitting as a first appellate court, restated in the case of …. Thus; 17. This court frames the following questions based on the grounds of appeal in the determination of the dispute: 1. Whether the trial magistrate erred in holding that the Appellant lacked locus standi. 2. Whether or not the 2nd Respondent erred in cancelling the registration of the appellant. 3. Whether or not proof of trespass of the 1st Respondent was made 8

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4. What orders ought to issue. 18. On the first issue, the learned trial magistrate agreed with the submissions of the 1st Respondent that at the time of filing of the suit, the land had reverted back to Okore Obure who was already dead. Hence, the Appellant was required to obtain letters of administration of the late Okore Obure before filing the suit. In the submissions before this court, the Appellant challenges the decision, submitting that there was no proof of the death of Okore Obure for such a finding to stand. He added that he was the registered owner of the suit property before the same was cancelled; hence, there was no estate that required taking out letters of administration. 19. The 2nd Respondent produced a green card which showed the Appellant became the registered owner of the suit property in the year 2009. Subsequently, his registration was cancelled in 2015 for reasons stated on the said green card: “court order issued in case no 91 of 2013.” It is the cancellation that prompted the Appellant to file this suit to challenge the action by the 2nd Respondent. 20. It is my considered opinion that since the Appellant was challenging the action cancelling his registration which reverted back the suit title to the name of Okore Obure, he did not need to take out letters of administration to bring such an action. 9

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21.The second issue for determination before the trial court was whether the 2nd Respondent acted legally in cancelling the title of the Appellant and reverting the land back to the name of Okore Obure. The trial magistrate having analysed the evidence adduced found thus; “The Plaintiff stated that the land was transferred to him by his mother however there is no document of transfer. There is no consent from the LCB and similarly no mutation file. It also follows, as stated by DW1, that the green card was registered in the plaintiff's name on 26.11.2009, while the mother is said to have died in 2000. The burden was on the plaintiff to prove that the titles he seeks to reinstate were acquired procedurally and legally. In this case, he did not avail such proof.” 22. The claim before the trial magistrate sought orders directing the 2 nd Respondent to reinstate the titles for parcel numbers Bassi/Bointangare/2655,2666, 2667 and 2668 which he purports to have nullified. The 1st Respondent filed a statement of defence dated 25th January, 2017 denying the claim and pleading inter alia that the Appellant had employed dubious means in obtaining the registration of the suit title to his name without first obtaining letters of administration of the estate of Okore Obure. 23. Therefore, it is the 1st Respondent who raised in his statement of defence questions challenging the process by which the Appellant acquired title to 10

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the suit property. The learned magistrate correctly stated the law that, he who alleges a fact must prove and in this case, the burden was on the 1 st Respondent to prove the illegalities he was alleging. The record bears that the 1st Respondent did not present any evidence during the trial. Hence, the issues raised in his defence remained mere allegations. 24. Section 107 to 109 of the Evidence Act Cap 80 places the burden of proof on the shoulder of the person alleging the existence of a fact which in this case was the 1st Respondent. Section 107 states that: (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 25. In addition to the lack of proof of illegalities pleaded by the 1st Respondent, the 2nd Respondent, through the evidence of DW1, stated that the basis for reverting the title to the name of Okore Obure was a court order arising from civil case no. 91 of 2013. She admitted during cross-examination that the orders issued in that civil case, according to the copy of the ruling produced in evidence, were an order striking out the suit for lack of jurisdiction. 11

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26. A perusal of the copy of the ruling in civil case no 91 of 2013; Charles Obure Nyamesa versus Kennedy Mecha Ondieki, the Appellant had vide an interlocutory application sought orders restraining the 1 st Respondent herein from trespassing on to the land L.R. No. Bassi/Boitangare/501 pending determination of the suit. The application and the entire suit were struck out with the words, “I do not have jurisdiction to handle this matter at both the interim and final stage. I will therefore not go into the merits of the application. The matter is dismissed for want of jurisdiction.” 27. This was the material placed before the learned magistrate, which on the face of it showed that there was no clear order directing the 2 nd Respondent to cancel the Appellant’s title. Instead, he introduced new issues as the reasons why the Appellant’s title ought not to be reinstated, i.e., lack of documents of transfer. The evidence of the Appellant acquired his title through a transfer from his mother stood as none of his blood brothers raised any concerns. The reasoning that he ought to defend his title would stand had the 1st Respondent adduced evidence to support the alleged fraud/illegalities against the Appellant. 28. It is trite law that fraud cannot be inferred, and the standard of proof must meet the threshold above the balance of probabilities. See the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another 12

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[2000] eKLR, where Tunoi, JA. (as he then was) stated as follows: “It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 29. Consequently, I hold that the learned trial magistrate erred in shifting the burden on the Appellant to show that he acquired his title regularly when the cancellation was done without a court order and without giving him a hearing. Secondly, the 1st Respondent did not adduce any evidence to support the allegations raised in his statement of defence. 30. The third issue is whether the Appellant proved the allegations of trespass against the 1st Respondent. In his evidence before the trial court, which was contradicted, the Appellant stated that upon release from prison, he found the 1st Respondent had built on his land, but the 1st Respondent never gave any reasons. The 1st Respondent failed to justify his presence on the suit land, and his occupation without the Appellant's consent is definitely a trespass. 13

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31. In light of the foregoing analysis, I can safely conclude that the appeal is merited. The Appellant is entitled to the reliefs sought and which I hereby grant as follows; a) The appeal is allowed and the judgment and decree of the Principal Magistrate dated 2nd February, 2020 is hereby set aside in its entirety. b) That the appellant's suit in the Chief Magistrate's Court, that is, Ogembo ELC No. 2 of 2020 be allowed as prayed thus; i. An order is hereby issued compelling the 2 nd Respondent to reinstate L.R. No. Bassi/Boitangare/2665, 2666, 2667 and 2668 that he had nullified. ii. The 1st Respondent is declared a trespasser and is hereby granted 90 days to vacate the Appellant’s land. In default, execution shall issue. c) That Costs of this appeal and costs of the suit in the Subordinate Court be borne by the Respondents. Judgment dated, signed and delivered at Kisii this 24th September, 2026. A. OMOLLO JUDGE 14

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