Joyce Agola Aloo (Suing as Administrator and Legal Representative of Estate of Andrew Aloo Otiu (Deceased) v Alfred Aduor Amuga & Siaya County Land Registrar

2) An order cancelling the title issued to the 1st defendant Alfred Oduor Amuga, on the 19th September 2018 and rectifying the Siaya Land Register to cancel and remove the registration of the subject property to the defendant on 13th July 2017 and substituting thereon the name of the deceased plaintiff Andrew Oloo Otiu and issuing a title thereafter to the deceased plaintiff, his successors and assigns. 3) Permanent injunction restraining the defendant, his agents, employees, successors and assigns from entering into, remaining in, using, wasting, disposing of, alienating property known as SIAYA/ KADENGE/ 391, and or from in any manner whatsoever interfering with the plaintiff and the deceased plaintiff proprietary interest of and over the same. 4) General Damages for trespass costs and interest on costs at 14% p.a. 2 The plaintiff Appellant claim was that the 1 st defendant purchased the parcel SIAYA/ KADENGE/391 comprising the estate of Andrew Oloo Otiu (herein Patriarch) when it was under adjudication and purported to have it registered under his name illegally. The plaint sets out the particulars of illegalities under paragraph 4 of the Plaint. 3 The Plaintiff averred that the 1 st defendant had no immunity of whatever nature from the law as his first registration was obtained unlawfully and without fidelity to the law. That the title obtained was a nullity and the need to recall it. ELC L APPEAL E037 OF 2024 JUDGMENT 2

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4 The suit was not defended and proceeded on formal proof by Hon. Benjamin Limo PM, where the Plaintiff testified as the sole witness in support of her case. The trial court in its delivered judgement on the 25th September 2024 distilled one issue for determination ‘to whom does the land belong to and if it does belong to the plaintiff is he entitled to be registered as the new owner of the land.’ 5 The trial court relying on the provisions of section 143 of the Registered Land Act held that the defendant being the registered owner his rights cannot be defeated. That the plaintiffs attempt to overturn the process of adjudication which had been exhausted before the title was issued to the 1st defendant on the ground that the defendant got himself registered against the title unlawfully cannot be supported by law. The trial court proceeded to dismiss the suit. 6 Aggrieved by the Judgement the Appellant who was the Plaintiff therein vide a Memorandum of Appeal dated 30/9/2024 raised the following grounds of appeal. 1) THAT the Trial Magistrate erred in law and fact by misconstruing the evidence and therefore arrived at a wrong conclusion of both law and fact. 2) THAT the Trial Magistrate erred in law and fact by disregarding the proprietary interest of the Appellant in the property known as SIAYA/ KADENGE/ 391 by refusing to find for the Appellant in the case before him. 3) THAT the Trial Magistrate erred in law and fact by failing to appreciate that the 1 st Respondent herein had admitted ELC L APPEAL E037 OF 2024 JUDGMENT 3

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that the deceased Appellant was the owner of the subject property, which rendered his acquisition unlawful without following the process set out in the Law of Succession Act Cap 160 and thereby arrived at a wrong decision upholding the 2nd Respondent's purported interest in the subject property. 4) THAT the Trial Magistrate erred in law and fact in upholding the 1st Respondent’s purported interest in the subject property despite clear evidence of illegality in his purported acquisition. 5) THAT the Trial Magistrate erred in law and fact by refusing jurisdiction to cancel the registration of the subject property to the 1st Respondent and to reverse the title to the Appellant and by instead concluding that it was an adjudication complaint/ dispute despite evidence to the contrary. 6) THAT the Trial Magistrate erred in law and fact in dismissing the appellant's suit despite the Appellant proving her case to the required standard of proof. 7 On the basis of the above grounds the Appellant prays; a) THAT the entire judgement and decree of Hon. Mr Benjamin Limo PM delivered on 25th September 2024 in SIAYA CM ELC NO. E021 OF 2022 be and are hereby set aside, and are substituted with a judgement in favour of the Appellant as per her Plaint filed in the aforesaid primary suit. ELC L APPEAL E037 OF 2024 JUDGMENT 4

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b) THAT the Appeal be and is hereby allowed with costs of the appeal to the Appellant. 8 The Respondents did not respond to the appeal despite service as evidenced by the Affidavit of Service sworn by Andrew Ombwayo Advocate Counsel on record for the Appellant, sworn on 16/9/2025. Also on record are affidavits of service sworn by Mr. Ombwayo on 17/10/2025 and 19/11/2025. 9 The appeal was disposed by way of written submissions. The Appellant filed submissions dated 2/07/2026 in support of the appeal. Appellants Submissions 10In reiterating the Plaintiffs claim and evidence before the trial court Counsel submitted that Section 25(1) of the Land Registration Act 2012 permitted the Appellant to challenge the registration of the suit land that belongs to her late husband, who never sold it to the 1st Respondent, in such circumstances of collusion, illegality and unlawful acquisition by the 1st Respondent, and her evidence had not been rebutted. 11Counsel asserted that the registration of the 1st Respondent was subject to the overriding interests namely the Appellant’s spousal rights over the suit matrimonial property, the trust under which the property was held, on behalf of beneficiaries, which the Patriarch never broke as he never sold the subject suit property to the 1 st Respondent; and the ELC L APPEAL E037 OF 2024 JUDGMENT 5

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beneficiary rights on intestacy provided under Part V of the Law of Succession Act which are recognized under the provisions of section 28 of the Land Registration Act 2012. 12On Ground 1 of the Appeal Counsel submitted that the Trial Court placed unneeded emphasis on the fact that the 1st Respondent had been identified by the Siaya Land Adjudication Officer as the owner of the subject land as at the 15th May 2014 when the land was still under adjudication but refused to acknowledge the import or effect of the Land Sale Agreement dated earlier on the 17th March 2014. That the land sale agreement is an acknowledgement by the 1st Respondent that the property was owned by the deceased Appellant, and that he acquired it illegally through a beneficiary of the Estate before commencement or conclusion of succession proceedings. 13It is further submitted that in light of the subject land sale agreement that the registration of the 1st Respondent as a 1st registered owner of the subject property did not follow due process as he would have otherwise been registered as a 2nd registered owner by purchase. 14Counsel contended that the trial Court further erred in law by mis-applying Section 143(1) of the Repealed Registered Land Act Cap 300 Laws of Kenya which ceased operation on 12/5/2012 when the Land Registration Act 2012 came into effect. That by the 17/3/2014 when the 1st Respondent purported to acquire the property of a deceased person that appellant having died on 8/8/1998 before the distribution of ELC L APPEAL E037 OF 2024 JUDGMENT 6

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his estate, the provision applied by the Trial Court had ceased to operate. 15Further that the Court ignored the provisions of Section 25(1), as read with Section 26(1)(b) of the Land Registration Act 2012 that permits a proprietor of land, such as the Appellant herein, to challenge the 1st Respondent’s title to the subject property on the basis of inter alia illegality which, in her case, was specifically pleaded at Paragraph4(a-f), 9 and 10 (sic) of her Plaint and upon her unchallenged testimony and the evidence adduced as EX. P1-6. 16That had such a mis-construction of the law and the facts of this case not occurred, the Trial Court could have found for the Appellant. 17On ground No.2 Counsel reiterated his submissions filed in the trial court including the arguments herein to the effect that the sale agreement having settled the issue of ownership and which has not been disputed by the 1st Respondent and stands as the only testimony of how he was registered as owner of the deceased Appellant’s land. 18On grounds 3 and 4 Counsel reiterated his submissions addressing noncompliance with the Law of Succession Act by the 1st defendant. 19On ground 5 counsel contended that the Trial Court misapplied a repealed Respondent’s title statute to hold that the 1 st was indefeasible despite its patent illegality despite sections 25 and 26 Land Registration Act ELC L APPEAL E037 OF 2024 JUDGMENT 7

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2012 granting him powers to impeach and set aside the title of the 1st Respondent. Notwithstanding that it wrongly appeared as a 1st registration. 20On ground no. 6 Counsel urged that the Appellant provided unchallenged evidence which proved her case to the required standard of a preponderance of evidence hence she was entitled to judgement as per her Plaint. The court is invited to reverse the trial court decision. ANALYSIS AND DETERMINATION 21 This is a first appeal. It is the courts duty to analyse and reassess the evidence on record and reach its own conclusions in the matter but having in mind that I did not hear the parties. See Selle -vs- Associated Motor Boat Co. [1968] EA 123. 22 In my considered view, the crux of this appeal is whether the trial court erred in law and fact in failing to impeach the 1st defendant title on the grounds raised by the Plaintiff. 23 This court has been called to disturb the finding of the trial court and whether in so arriving at its finding, the trial court acted on some wrong principles of law or misconstrued the evidence adduced. 24 I have already noted that the suit was undefended. However, the burden of proof still lay on the Plaintiff to ELC L APPEAL E037 OF 2024 JUDGMENT 8

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proof his case on a balance of probabilities. I draw guidance from the case of Kirugi and Another v Kabiya & 3 others [1987] KLR 347 where the Court of Appeal held that; “The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”. 25 Section 107 (1) and (2) of the Evidence Act Cap 80, Laws of Kenya provides. (1) Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which the assets 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. 26 The Plaintiff brought the suit as administrator and Legal Representative of the Andrew Aloo Otiu her deceased husband. She produced grant of letters of administration intestate in respect of the estate of Andrew Aloo Otiu dated 8/9/2021 issued in Siaya SPM P&A No.222 of 2021. 27 The Plaintiff adopted her witness dated 22/3/2022 as her evidence in chief that during adjudication and demarcation the suit property had been recorded in her husband’s name. She later learnt that her son John Maranda Oloo had without the authority and consent of her family colluded with the 1st defendant purporting to ELC L APPEAL E037 OF 2024 JUDGMENT 9

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sale the land to the 1st defendant. That following investigations the Siaya District Land Adjudication Officer they were informed the 1st defendant thereafter caused his name to be entered into the adjudication records before the process was concluded. That vide a search she confirmed that the 1st defendant was registered as the owner thereof and title issued. 28 A letter dated 15/5/2014 was produced in evidence. The record of appeal does not bear the Certificate of Official search however the same is found in the trial court file confirming Alfred Oduor Amuga was registered absolute proprietor on 13/7/2017 and title issued on 19/9/2018. 29 I think the question of which law was applicable becomes a pertinent issue in view of the contestation that the trial court applied the wrong provisions of the law. 30 Arising from the official search above the parcel register having been opened in 2017 the applicable law was the Land Registration Act 2012 and not the repealed Registered Land Act. The Registered Land Act would only have been applicable had the transaction happened before the 2010 Constitution. Even the impugned sale agreement appears to have been executed in the year 2014 when the RLA had already been repealed. 31 The trial court applying the provisions of section 143 of the repealed Act found that the defendant is the registered owner by virtue of first registration; and under ELC L APPEAL E037 OF 2024 JUDGMENT 10

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the provisions of section 143 of the Registered Land Act his rights cannot be defeated. 32 Clearly therefore the trial court erred in applying the provisions of section 143 of the repealed statute and I agree with the Appellant in this regard. 33 Section 26 (1) of the Land Registration Act is the applicable law and provides as follows "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, encumbrances, easements, conditions contained subject or to restrictions endorsed in the and 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." 34 Arising from the aforesaid provisions the above protection is not absolute. Section 26(1)(b) explicitly provides that the certificate of title may be challenged if it is proved that ELC L APPEAL E037 OF 2024 JUDGMENT 11

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the registration was obtained misrepresentation, or was through acquired fraud, illegally, unprocedurally, or through a corrupt scheme. 35 The particulars of collusion, illegal and unlawful Acquisition by the 1st defendant is pleaded as hereunder; a) Purporting to purchase property comprising the Estate of a deceased person on or about the 17 th March 2014 whilst knowing that the letters of administration intestate and or certificate of confirmation of grant respecting that estate of the deceased Plaintiff who died on 8 th August 1998 had not been granted and or issued. b) Colluding and purporting to acquire good title of the subject property from an incompetent donor and or purported seller without the authority or consent of the beneficiaries of the deceased's estate or of the legal representative c) Changing and or causing the changing of the particulars of the Adjudication Register to indicate the 1st defendant as the beneficial owner of the subject property instead of the deceased plaintiff herein. d) Transferring or purporting to transfer the subject property to his, the 1st defendant's name without the necessary spousal consent, or the Land Control Board consent, or without such valid consents. ELC L APPEAL E037 OF 2024 JUDGMENT 12

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e) Registering and or causing the registration of the property to the 1st defendant's name without acquiring any good or lawful title to the property. f) Dispossessing the beneficiaries of the deceased plaintiff of their property interest in the subject property. 36 I will emphasize that the burden of proof lay on the plaintiff to prove the above assertions. Firstly, it was for the Plaintiff to proof that the suit property belonged to the estate of adjudication. her deceased The Plaintiff husband before relied a on and letter at dated 15/05/2014 from Land Adjudication Department Siaya – the letter confirms that parcel Siaya/Kadenge 391 is registered under Alfred Oduor Amuga. The letter further states that the title deeds for Kadenge Adjudication Section were not ready since the said section was still under adjudication. 37 The plaintiff also adduced an agreement for sale of land dated 17/03/2014 between one John Maranda Aloo and Alfred Oduor Amuga sued as the 1 st defendant in the trial court. 38 The letter from the Land Adjudication office was never controverted and I found no reason to disbelief it. This letter points to the fact that by 15/5/2014 the adjudication record still bore the names of the deceased. Furthermore, the purported vendor confirms in the agreement that he ELC L APPEAL E037 OF 2024 JUDGMENT 13

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was selling as beneficiary and intended administrator of the estate of his late father Andrea Aloo Otiu. This is enough proof that the parcel Siaya/Kadenge/391 belonged to his deceased father. 39 Clearly the sale agreement was executed while the record still held the names of the deceased. Further that at the time of execution of the agreement title had not yet issued. I note that the trial court questioned why this complaint was not made under the dispute resolution mechanisms provided under the Land Adjudication Act before the title was issued. 40 Moreover it is clear to me that the letter does not state that at any point the register was changed to the name of the 1st defendant following which then the Plaintiff would have noticed and lodge the requisite complaint. In any event as long as the land had become registered it no longer was under the jurisdiction of the Land Adjudication Act and therefore any remedy would be through the court of law. 41 But most importantly is the issue of capacity and which issue was pleaded. The vendor who the plaintiff told the court was her son and which was corroborated by the letter dated 8/01/2020 from the chief where John Maranda Aloo is named as one of the deceased beneficiaries (son). Granted he was a beneficiary but did this perse bequeath upon him the right to dispose of his father’s land? ELC L APPEAL E037 OF 2024 JUDGMENT My 14

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answer is in the negative. Firstly, he had no capacity to deal with the property of his deceased father when he was not the legal administrator of his fathers’ estate. 42 The provisions of Section 45 (1) of the Law of Succession Act provide that; "Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person." 43 Section 80 (2) of the Law of Succession Act: "A grant of letters of administration, with or without the will annexed shall take effect only as from the date of such grant." 44 Section 82 of the Law of Succession Act: "Personal representatives shall subject only to any limitation imposed by their grant, have the following powers: to enforce, by suit or otherwise, all causes of action which by virtue of any law, survive the deceased or arising out of his death for his personal representative; to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of ELC L APPEAL E037 OF 2024 JUDGMENT 15

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their duties, all or any part of the assets vested in them as they think best: Provided that Any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and No immovable property shall be sold before confirmation of the grant; 45 In Trouistik Union International & another v Jane Mbeyu & another [1993] KECA 89 (KLR) ‘At common law, death by itself automatically divests the deceased of his chose in action and the reason for this is because in law, the dead have no rights. But no legal right is without an owner so it must be vested in a person or entity…Our Law of Succession Act, cap 160, did not provide for the vesting of an intestate’s property between the date of death and the grant of letters in any entity. So, the suggestion that it will be vested in the courts conforms with the common law notions of the transmission of an intestate’s right or estate. It ought to be remembered that all these temporary custodians of an intestate’s rights are bare trustees only. But as soon as a grant is obtained, the right or estate vests automatically and by force of the grant in the administrator. ELC L APPEAL E037 OF 2024 JUDGMENT 16

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46 In Virginia Mwari Thuranira -vs- Purity Nkirote Thuranira [2017] eKLR, the court nullified the sale agreement under Section 82(b)(ii) of the Law of Succession Act, for the seller had not become a legal representative with authority to deal with the estate, since dealing with the land amounted to intermeddling with the property, hence was an illegality or a nullity. 47 I think I have said enough to show that the 1 st defendants title cannot be sustained as it was obtained illegally. It must be impeached under the provisions of 26 (1)(b). What orders should issue on appeal? 48 The orders sought by the plaintiff in the trial court have already been outlined elsewhere in this judgement. The land must revert to the real owner of the suit property being the deceased Andrea Aloo Otiu who was recorded at adjudication as the first registered owner of the suit property. This court is empowered under the provisions of section 80 of the Land Registration Act to issue orders of rectification of the register. 49 With regard to distribution to the beneficiaries this jurisdiction lies elsewhere and not the trial court or even this court. 50 I have also noted that the plaintiff sought for general damages for trespass. However, this prayer is not supported by the pleadings as this was not a suit for trespass. ELC L APPEAL E037 OF 2024 JUDGMENT 17

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51 A permanent injunction has been sought as well. The court having determined the ownership of the suit property as belonging to the late Andrew Oloo Otiu (deceased) then orders of permanent injunction against the 1 st defendant are warranted. His recourse may lie against the share of the person who sold to him upon distribution. 52 As regards costs since the suit property belongs to a deceased person, let each party bear their own costs of both the proceedings in the trial court and this appeal. 53 In the upshot, I find the appeal to have merit and I set aside the judgment and decree of the of Hon. Mr Benjamin Limo PM, delivered on the 25th September 2024 in Siaya CM ELC No. E021 of 2022 and substitute therefor an order that judgment be entered for the appellant against the respondents in the following terms; 1) A declaration that Andrew Aloo Otiu (deceased) is the lawful owner of property known as SIAYA/KADENGE/391. 2) An order cancelling the title issued to the 1st defendant Alfred Oduor Amuga, on the 19th September 2018 and rectifying the Siaya Land Register to cancel and remove the registration of the subject property to the said defendant on 13th July 2017 and substituting thereon the name of the deceased Andrew Oloo Otiu and issuing a title in the name of the said Andrew Oloo Otiu. 3) Permanent injunction restraining the defendant, his agents, employees, successors and assigns from entering into, remaining in, using, wasting, disposing of, alienating ELC L APPEAL E037 OF 2024 JUDGMENT 18

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property known as SIAYA/ KADENGE/ 391, and or from in any manner whatsoever interfering with the deceased proprietary interest of and over the same. 4) Each party shall bear their own costs of the proceedings below and this appeal. Order accordingly Delivered and Dated This 28th Day of September 2026 HON. LADY JUSTICE A.E. DENA JUDGE 28/09/2026 Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of: Mr. Andrew Ombwayo for the Appellants No appearance for Respondents COURT ASSISTANT: Victor Bwire ELC L APPEAL E037 OF 2024 JUDGMENT 19

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