Bon Otieno Obuna v Elizabeth Atieno Ayoo

the Respondent the Plaintiff in a suit before the Magistrate’s Court, namely KISUMU CMC ELC NO.135 OF 2019 (herein referred to as the suit). A reading of the plaint dated 4 th November, 2019, a copy of which is on pages 6 to 8 of the record of appeal shows that the Respondent herein had sued the Appellant jointly with the District Land Registrar Kisumu and the Regional Surveyor Kisumu over a parcel of land known as KISUMU/KADONGO/321 (herein called the suit land) sub-divided into KISUMU/KADONGO/5098 and KISUMU/KADONGO/5112 (herein called the resultant parcels). 2. The Respondents’ claim in the suit was that she was the beneficial proprietor of 1/3 of the suit land. That she was the administrator of the estate of Angeline Orimba Agan. Her complaint was that the Appellant colluded with the Land Registrar, Kisumu, to cause fraudulent subdivision of the suit land into the resultant parcels. She therefore sought; a) An order for rectification of the register and cancellation of the registers in respect of the resultant parcels. ELCLA E079/2024 JUDGEMENT 2

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b) Cancellation of the Appellant’s name from the suit land and that the land be reverted to the name of Angeline Orimba Agina and Jason Abiero Nyawuor c) Costs of the suit d) Any other relief the Honourable Court deems fit to grant. e) A permanent order of injunction. 3. The record shows that in response to the Respondent’s claim, the Appellant filed the 1st Defendant’s Statement of Defence dated 6th April, 2023, denying the Respondent’s claim. The suit was heard by the trial court, which, vide its judgment dated 12th September, 2024, found that the Respondent had proved her case against the Defendant in the suit to the required standards. The court entered judgment in favour of the Respondent as prayed in the plaint. The appeal 4. Dissatisfied with the judgment, the appellant preferred the present appeal on the grounds that; i. The learned trial Magistrate erred in law and in fact by failing to appreciate that the Appellant was a common ELCLA E079/2024 JUDGEMENT 3

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tenant of undivided share in parcel No. KISUMU/KADONGO/321, which was subdivided to give rise to parcel No. KISUMU/KADONGO/5099, 5110, 5111 and 5112. ii. The learned trial Magistrate erred in law by failing to appreciate that Angeline Orimba Agina, before her death, transferred her share and interest in land parcel No. KISUMU/KADONGO/321 after following the due process prescribed in law. iii. The learned trial Magistrate considered extraneous issues which did not form part of the evidence, thus making it a flawed finding not supported by evidence iv. The learned trial Magistrate erred in law and fact by failing to appreciate the evidence, exhibits and submissions made, with the result that he arrived at an erroneous decision and conclusion. 5. The Appellant sought that the appeal be allowed in the terms that the judgment and decree of the learned Magistrate delivered on 13th September, 2024 be set aside and in its place dismiss the Respondent’s claim in the ELC NO.135 OF ELCLA E079/2024 JUDGEMENT 4

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2019 and that the costs of the appeal and in the lower court be awarded to the Appellant. Submissions 6. The appeal was heard by way of written submissions. Written submissions dated 20th December, 2025 were filed by Omondi Abande & Company Advocates on behalf of the Appellant, while written submissions dated 10 th January, 2026 were filed on behalf of the Respondent by Ohayo & Company Advocates. Analysis and determination 7. This being a first appeal, this court is obligated to re-analyse the evidence/material placed before the trial court and draw its own conclusions and decide the appeal in any of the ways provided for in section 78 of the Civil Procedure Act. In Selle & Another vs Associated Motor Boat Company Limited and Others [1968] EA 123, it was held that a court handling a first appeal is not necessarily bound to accept the findings of fact by the court below. It stated “An appeal to this court is by way of retrial, and the principles upon which this court acts in such an appeal ELCLA E079/2024 JUDGEMENT 5

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are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.” Guided accordingly, the court now proceeds to determine the issues herein. The first ground of appeal is whether or not the trial Magistrate erred in fact and law by failing to appreciate that the Appellant was a common tenant of undivided shares in land parcel No. KISUMU/KADONGO/321 which was sub-divided to give rise to parcel Numbers KISUMU/KADONGO/5099, 5100, 5111, 5112. 8. It was submitted on behalf of the Appellant that the evidence clearly indicates the history and background of the suit land; that it was ancestral land belonging to one Orwako, deceased, who had 2 wives. That the suit land, being ancestral land passed down along the lineage, was to be shared between the two houses of the two co-wives. That the suit parcel was shared equally among the three descendants of Mr. Orwako, being Jason Abiero Nyawir, Julius Ombede and Joram Agan Omanje. ELCLA E079/2024 JUDGEMENT 6

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9. That therefore the suit land, being ancestral land, was coowned by three 3 descendants, and that since there was no instrument clearly stating it was a joint tenancy, the type of ownership relevant in the instant case was a tenancy in common as per section 91(5) of the Land Registration Act. That these provisions of law legitimize the claim of the Respondent’s mother, Angelina Orimba, over a share of the suit land as she was the wife of Joram Agan Omanje, one of the 3 co-owners. 10. That the process was initiated before Angeline Orimba died, when they went to the Land Control Board. That the transfer led to the Appellant’s inclusion in the register as one of the co-owners alongside Anjeline Orimba Agan and Jason Abiero Nyawir. That the green card at page 60 of the record of appeal shows that the transfer took place when the Respondent’s mother, Anjeline Orimba Agan, was still alive. 11. Counsel submitted that further proof that the type of ownership was tenancy in common and that the Appellant was one of the tenants in common is the green card in respect of the suit land because it shows that both the Appellant and the Respondent’s mother were co-owners ELCLA E079/2024 JUDGEMENT 7

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alongside Jason Abiero Nyawir. That the documents have indicated that each of the three co-owners are entitled to a 1/3 share of the suit property, which is consistent with the provisions of section 91(3)(b) of the Land Registration Act. 12. That the Chief’s letter dated 14th September, 2016 clearly lists the three as co-owners of the suit property. That the Respondent indicated in her pleadings that her only share is 1/3 of the parcel and not the entire parcel. 13. That only the mother’s share, which is a 1/3 share, can be passed to the Respondent. That the law on partition of parcels held in common is in section 94 of the Land Registration Act, 2012. That the Appellant, being one of the tenants in common, applied for the partition of the suit land equally among the 3 Co-defendants. That the partition was legally effected and the result thereof was that each of the three co-tenants got their independent portions as follows; (i) KISUMU/KADONGO/5098 – Angeline Orimba Agan (ii) KISUMU/KADONGO/5099 – Jason Abiero Nyawir (iii) KISUMU/KADONGO/5100 – Bon Otieno Abuna ELCLA E079/2024 JUDGEMENT 8

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That the trial court’s findings, disregarding the Appellant as a stranger and not having any interest in the suit parcel, and the subsequent findings were not supported by evidence. 14. On behalf of the Respondent, it was submitted that PW2 testified that the Appellant took possession of the suit land forcefully in the year 2017. Counsel cited section 91 of the Land Registration Act, which makes provisions on co-tenancy. Counsel submitted that the law provides that no tenant in common shall deal with their undivided share in favour of another person without consent in writing. That in the instant case, the Appellant admitted that he did the subdivision without involving the Plaintiff despite her being the Administrator of the estate of her late mother, Angeline Orimba. That the Appellant cannot claim to be a common tenant of undivided shares when the green card portrays the division of shares by way of fraction. 15. That the trial Magistrate did not err in fact and in law by failing to appreciate that the Appellant was a common tenant of undivided shares in land parcel No. KISUMU/KADONGO/321 as the sub-division to create the resultant numbers was made illegally and un-procedurally. ELCLA E079/2024 JUDGEMENT 9

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16. I have considered these submissions. I have read the green card in respect of the suit land. It shows that the suit land was first registered on 27th October, 2008 in the name of Bon Otieno Obuna, Angeline Orimba Agin and Jason Abiero Nyawir P.O. Pau Akuche, each owning 1/3 share thereof. 17. The green card shows that on 18 th January, 2016, a caution was placed by Elizabeth Atieno Oyoo and that on 12 th July, 2017, the caution was removed and the title closed on 21st September, 2017 upon subdivision to create the resultant parcels. The proceedings before the trial court show that PW1 Charles Ochieng Ayoo adopted the contents of his witness statement dated 28th September, 2021 as his evidence in chief. He stated that the Plaintiff was his mother. That since his mother and her siblings were all female, the Appellant took advantage. 18. The copy of register (green card) in respect of the suit land produced showed that the suit land was owned in common by the 3 people named therein. No other copy of register or evidence was produced to controvert the contents of the said copy of register. The trial court in the judgment reverted the land to Angeline Orimba Agan and Jason Abiero ELCLA E079/2024 JUDGEMENT 10

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Nyawir and made an order that the name of Bon Otieno Abuna be removed and/or cancelled from the register. The Respondent pleaded in paragraph 6 of the plaint that she was entitled to 1/3 of the suit land. 19. I find that it was erroneous to order for cancellation of the name of the Appellant from the register when it was clear from the register that the Appellant was one of the 3 common tenants owning 1/3 of the land. The trial court erred in the trial Magistrate erred in fact and law by failing to appreciate that the Appellant was a common tenant in land parcel No. KISUMU/KADONGO/321. The second ground of appeal faults the trial court for failing to appreciate that Angelina Orimba Agin, before her death, transferred her shares and interest in the land parcel number KISUMU/KADONGO/321 after following due process prescribed in law. 20. The Appellant denied the 1 st Respondent’s claim vide his Statement of Defence. In his evidence, he claimed that Angelina Orimba Agan transferred the land to him. To support this claim, the Appellant produced a Letter of Consent dated ELCLA E079/2024 JUDGEMENT 11

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6th December, 1991 from Maseno Land Control Board giving consent for the transfer of land parcel No. KISUMU/KADONGO/321 by Angeline Orimba Agan to Bon Otieno Abuna and Anjeline Orimba Agan. 21. The Respondent’s position as pleaded in paragraph 8(1) of the plaint is that the actions of the Appellant were fraudulent because the Appellant colluded with the Land Registrar, Kisumu, to cause the second register to be secretly opened and fraudulently created for land parcel No. KISUMU/KADONGO/321 that reflected the Appellant’s name. The Respondent, however, produced no evidence to prove that a second register was opened as pleaded. Further, the Appellant did not prove that Angelina Orimba Agan transferred her share or interest to the Appellant because the consent that was given was for transfer of the entire land to the Appellant and Angelina Orimba Agina. 22. I find no evidence of what steps were taken thereafter; no transfer documents were produced to show that the consent matured into a transfer of the suit land in favour of the Appellant and Angelina Orimba Agan. The copy of the register (green card) produced showed that the land was ELCLA E079/2024 JUDGEMENT 12

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registered in the name of three people at the time when the register was opened on 27th October, 2008. I find that the second ground of appeal has not been proved. The third and fourth grounds of appeal fault the trial court for the manner in which it handled the evidence placed before it. 23. The record shows that in arriving at its decision, the trial court considered the evidence placed before it and noted that the Appellant had been charged in a criminal case in relation to the suit land and convicted. That the charges were forcible detainer and obtaining registration by false pretenses. The court found that the Appellant had failed to prove the legitimacy and authenticity of his claim of ownership of the suit land. That the suit land was the property of 3 persons initially was not contested. These 3 persons included the deceased Angelina Orimba Agan, who, according to paragraph 6 of the plaint, was entitled to 1/3 share thereof. 24. It is not disputed that at the time when the property was partitioned to create the resultant parcels, and the register in respect of the suit land closed, Angelina Orimba Agan had died. The appellant stated that by the time they were doing ELCLA E079/2024 JUDGEMENT 13

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the subdivision of the suit land in September 2018, Angelina Orimba was already deceased. PW1, a son of the Respondent, testified that Anjeline Orimba Agan died on 1 st March 1993. The green card produced as exhibit shows that the title in respect of the suit land was closed on 21/9/2017 upon subdivision to create the resultant parcels. 25. Under section 91 of the Land Registration Act, which makes provision for sub-division and partition of land held in common, the participation of all tenants in common is mandatory. In the present case, the Appellant proceeded to cause the partition of the suit land without the participation of Angelina Orimba Agan or her estate. This was unlawful. 26. The trial court did not err in finding that the Respondent had proved that the sub-division/partition of the suit land was unlawful. The subdivision having been unlawful, the suit land should revert to its original status as per entry No. 1 on its register for partitioning amongst the three common tenants in accordance with the law. For the foregoing reasons, I find that the appeal has merit and succeeds partly. The appeal is hereby allowed as follows. ELCLA E079/2024 JUDGEMENT 14

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a. The judgment of the trial court is hereby set aside and substituted with the following orders: i. Sub-division/partition of the suit land to create the resultant parcels and the registers for the resultant parcels are hereby cancelled, and the land hereby reverted to the original registration is number KISUMU/KADONGO/321 to be registered in the names of Angelina Orimba Agina, Jason Abiero Nyawir and Bon Otieno Abuna as per entry No. 1 of the register. ii. An order of permanent injunction is hereby issued Appellant, his restraining servants the and/or employees, from entering, remaining on, cultivating, developing, or in any other way using or interfering with and/or curtaining the 1st Respondent’s ELCLA E079/2024 JUDGEMENT 15

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use of the 1/3 share of the suit land belonging to Angeline Orimba Agina. iii. Costs of the suit are awarded to the 1 st Respondent to be paid by the appellant. b. Each party shall bear its own costs of the appeal. Orders accordingly. Judgment dated and signed at Kisumu and delivered this 24th day of September, 2026, virtually through Microsoft Teams Online Application. E. ASATI, JUDGE. In the presence of: Chuma/Zeddy/Atika …Court Assistants. No appearance for the Appellant. Ohayo for the Respondent. ELCLA E079/2024 JUDGEMENT 16

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