Michael Omomwa Wakaba v Stephen Jeremiah Okoth (Suing as the Administrator of the Estate of Nahori Ligeyo Wahombo) & Land Registrar, Awasi

settle, build, farm and bury their dead on the suit land for over 30 years with no eviction, objection or legal action. 2) by holding that the sale agreement dated 10 th January, 1982 was valid. 3) by declaring that the registration of Michael Omomwa Wakaba as the proprietor of land parcel KISUMU/SIDHO EAST/3083 is illegal, null and void. 4) by directing 2nd the Defendant to revoke the registration of the 1st Defendant and rectify the land register to reflect the Plaintiff (suing as the administrator of the estate of NOHORI LIGEYO WAHOMBO) as the rightful proprietor pending completion of full succession and/or other legal process of transfer of ownership. 2. The Appellant seeks that the appeal be allowed, the judgement and decree of Hon. L.N. Kiniale (SPM) delivered on 29 th May, 2020 be set aside and be substituted with an order dismissing the Plaintiff/Respondent’s suit with costs and that in the alternative the court do make such orders as it deems just to grant. ELC LA E055/2025 JUDGEMENT 2

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3. A brief background of the appeal, as can be gathered from the record of appeal, is that the Appellant was the 1 st Defendant in NYANDO MC ELC NO. E005 OF 2020 (herein called the suit). He had been sued together with the Land Registrar, Awasi Land Registry, by the Respondent vide the plaint dated 13 th October, 2020. The 1st Respondent had filed the suit in his capacity as the Administrator of the Estate of one PATRICK OLOO NAHORI LIGEYO, deceased. The subject matter of the suit was a parcel of land known as KISUMU/SIDHO EAST/3083. 4. The case of the 1st Respondent in the suit was that his father, the deceased, bought the suit land from one Leonadus Lwakaba Akongo vide an agreement dated 10 th January, 1983 and had been in occupation of the land. That the Appellant fraudulently caused himself to be registered as owner of the suit land and illegally commenced construction thereon. The Respondent therefore sought a declaration that the registration of the Appellant as proprietor of the suit land was illegal, unlawful and that the same should be revoked, an order compelling the Land Registrar to nullify the registration of the Appellant as proprietor of the suit land and to rectify the register in that regard, costs of the suit together with any ancillary relief that the court deems just to grant. ELC LA E055/2025 JUDGEMENT 3

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5. The record shows that the Appellant filed a defence dated 10 th March, 2021. He denied the 1st Respondent’s claim and prayed that the suit be dismissed with costs. 6. The case was heard before the trial court, which vide the judgement dated 29th May, 2025, found that the Respondent had proved his case and entered judgement in his favour as prayed in the plaint. 7. Being dissatisfied with the judgement, the Appellant preferred the present appeal. Submissions 8. The appeal was heard by way of written submission. Written submissions dated 22nd February, 2026 were filed by Tawo Maito & Company Advocates for the Appellant, while written submissions dated 22nd December, 2025 were filed by Pascal & Associates for the 1st Respondent. No submissions were filed for the 2 nd Respondent. Analysis and determination 9. This being a first appeal, this court is obligated to re-analyse the evidence placed before the trial court and draw its own ELC LA E055/2025 JUDGEMENT 4

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conclusions. 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 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.” 10. The first ground of appeal faulted the trial court for holding that the Defence witnesses failed to explain how and why Nahor Ligeye’s family was allowed to settle, build, farm and bury their dead on the suit land for over 30 years with no eviction, objection or legal action, and the second ground of appeal faulted the trial court for holding that the sale agreement dated 10 th January, 1982 was valid. Out of these 2 grounds of appeal, the Appellant framed one issue for determination, namely: whether the Plaintiff/Respondent established equitable interest in the suit land. ELC LA E055/2025 JUDGEMENT 5

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11. It was submitted on behalf of the Appellant that the trial court held that the agreement for sale of land dated 10 th January, 1982 between the Respondent’s father, one Patrick Oloo Nahori, and the 1st Defendant’s father, one Leonardus Wakaba Okongo, for the purchased land parcel No. KISUMU/SIDHO EAST/3083 was valid. Counsel submitted that the trial court held further that the agreement, coupled with occupation of the land, created an equitable interest. 12. Counsel submitted that, in so holding, the trial court failed to take into account the fact that the agreement was made about 35 years before the subject land came into existence, and that this was an indication that the agreement must have been forged after 2017, when the land came into existence. That the suit land came into existence on 9th May, 2017 after sub-division of parcel No. KISUMU/SIDHO EAST/1527. That the agreement dated 10 th January, 1982 was never executed or witnessed by the registered owner (the Appellant) and that the alleged vendor was not the registered owner and hence did not have capacity to sell it. That the sale agreement was not presented to the Land Control Board for approval in accordance with Section 6 of the Land Control Act and that the trial court ignored the testimony of DW1 as corroborated ELC LA E055/2025 JUDGEMENT 6

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by that of DW2. That in the absence of a valid agreement for sale, the trial court erred in law and in fact by holding that the Respondent established an equitable interest in the suit land. 13. On behalf of the Respondent, it was submitted that the trial court rendered a decision that aptly resonated with the pertinent facts surrounding the matter, the entire body of evidence adduced during trial, and the law and reached a perfectly sound verdict. That the 1st Respondent’s family purchased the suit land vide an agreement executed in the year 1982 from LEONARD WAKABA OKONGO, the father of the Appellant. That the agreement was tendered in evidence and its authenticity was never challenged before the court. That PW4, PW5 and PW1 all affirmed the fact of sale of the suit land. 14. I have considered the pleadings, evidence and submissions. The record shows that it was pleaded in paragraph 4 of the plaint that the Respondent’s father, one Patrick Oloo Ligeyo, purchased the suit land from one Leonardus Wakaba Akongo vide agreement dated 10th January, 1982. To support this pleading, the Respondent testified vide his witness statement dated 17 th May, 2021 that his father bought the land in 1983. He testified that he personally witnessed the seller being paid. That the initial payment and ELC LA E055/2025 JUDGEMENT 7

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purchase was for a portion measuring 1 acre, and that later in the year 1986, he again bought another 1 acre of the land. 15. The proceedings show that among the documents the Respondent produced as exhibit was a land sale agreement dated 10th January, 1982. It shows that the buyer was Nahori Ligeyo, the seller was Lewnadus Wakaba Okongo, and the land being sold was approximately 2½ acres of unregistered subdivision in Sidho East/Kamagaga/Kabar/Wang’aya/Sidho/West. The purchase price was shown to be Kshs.6500. The agreement was produced as Exhibit 2. 16. The other agreement was written partly in Dholuo. I find no translation of the same in the court record. The part of it written in Swahili language shows that the land being sold was No. 3083, the purchase price was 4000/- and was paid by four instalments as follows: on 1st October, 1986 – Kshs1000, 8th October, 1986 – Kshs 1500, 11th December, 1986 – Kshs 1150, and 19 th January, 1987 – Kshs 350. 17. In his testimony in court, the Plaintiff testified that his father bought the land at Kshs.5500/- which he paid by instalments of 1400 in 1982 and 4000 in 1986. ELC LA E055/2025 JUDGEMENT 8

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18. The basis of the Respondent’s claim in the suit was the land sale agreement. The agreement was produced by PW1 (the Respondent) as Exhibit 2 – although marked as PMF.2 (see page 74 of the record). The Appellant, vide his submissions, identified the agreement as the one on page 24 of the record of appeal. The document on page 24 of the Record of Appeal is written in Dholuo. There are, however, other agreements on pages 22 and 23 of the record of appeal which were filed together with the plaint. 19. The evidence surrounding the agreement or agreements was not clear. Firstly, there was no evidence that the alleged seller of land was the owner of the land being sold. There was no evidence that Leunadus Wakaba Akongo was the owner of the land at the time of sale. The Appellant produced a copy of the register (green card) that traced the history of the suit land to parcel No.1527. There was no evidence that parcel No.1527 belonged to the seller. 20. Secondly, the green card showed that the suit parcel came into existence on 9th May, 2017 as a resultant parcel of sub-division of land parcel No.1527. The register also showed that the Appellant was the first registered owner of the suit land upon its creation in 2017. It is not therefore fathomable how the same land parcel number could have been the subject of land sale agreements ELC LA E055/2025 JUDGEMENT 9

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written in 1982 and 1986. Some explanation was necessary as to how the parties in the agreement got to know of the parcel number of the suit land in 1982 and 1986 long before the parcel was created. 21. Thirdly, the size of the land bought is not clear. The green card parcel shows that the size of the entire land No. KISUMU/SIDHO EAST/3083 measured 1.1 Ha, which translates to about 2.7 acres. In the plaint, the Respondent claimed the entire land parcel No. KISUMU/SIDHO EAST/3083. In his witness statement dated 17th May, 2021, adopted as his evidence-in-chief, he claimed 2 acres: one acre bought in 1982 and another one bought in 1986. He maintained this in his cross-examination, where he stated that the land in total was 2 acres. PW2, on cross-examination, stated that the land was 2½ acres in total. PW3 stated that the land purchased was 1 acre and that he did not know whether there was any additional land. According to PW4, the land claimed by the appellant measured 2.5 acres. 22. I find that the evidence placed before the Court did not support a finding that the agreement was valid. Further, the agreement dated 1986 was not pleaded or mentioned in the plaint. ELC LA E055/2025 JUDGEMENT 10

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The second issue for determination, which combines the 3 rd, 4th and 5th grounds of appeal, is whether or not the Respondent proved fraud and/or illegality to warrant cancellation of the Appellant’s title to the suit parcel of land. 23. It was submitted on behalf of the Appellant that it is trite law that he who alleges must prove and that fraud must be specifically pleaded, the particulars thereof must be stated on the face of the pleadings and proved in evidence above a balance of probabilities. That it was the Plaintiff’s duty to demonstrate that the suit land was originally registered in the name of Leonardus Wakaba Akongo and that the Appellant fraudulently, unprocedurally and/or through a corrupt scheme, transferred the same to his name. 24. On behalf of the Respondent, it was submitted that there is in existence a land sale agreement executed by and between the families of the parties herein in the year 1982, that the family of the Respondent has been in peaceful and quiet possession and enjoyment of the land from 1982. That there were witnesses to the agreement who testified in court, and that there was evidence tendered that several family members of the Respondent who died were buried on the suit land. ELC LA E055/2025 JUDGEMENT 11

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25. I note that the Respondent brought the suit as an Administrator of the estate of his late father who is said to have bought the suit land. I find no evidence that the agreement allowed the Respondent’s father to take possession of the land or that the Respondent’s father bought land from a person who had capacity to sell it. 26. The Respondent’s claim was based on fraud. The Respondent pleaded in paragraph 6 of the Plaint that registration of the suit land in favour of the Appellant was by fraud. The particulars of fraud were itemized in paragraph 7 of the plaint as follows; i. effecting an illegal, unlawful and illegitimate transfer of the suit/subject parcel, ii. depriving the applicant herein and the heirs to the estate of the deceased of their legal entitlement in terms of the suit property, iii. commencing illegal construction work on the suit property, iv. fraudulently transferring the suit property to his name, v. subjecting the plaintiff to grave harm, prejudice, immense loss and tremendous hardship. ELC LA E055/2025 JUDGEMENT 12

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27. The burden to prove the existence of these particulars and that the same amounted to fraud lay with the claimant under the provisions of sections 106 to 109 of the Evidence Act. Fraud has been defined in Black’s Law Dictionary, 11th Edition, as “A knowing misrepresentation or knowing concealment of material facts made to induce another to act to his or her detriment.” 28. It is an established principle of law that a claim based on fraud must be specifically pleaded and strictly proved. The Court of Appeal in Vijay Morjaria vs Nansingh, Madhusingh Darbar & another [2000]eKLR held that: “It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act 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.” ELC LA E055/2025 JUDGEMENT 13

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29. On the standard of proof required for claims based on fraud, courts have held that the standard of proof is higher than in ordinary civil cases. 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.” 30. And in the case of Kinyanjui Kamau vs George Kamau [2015] eKLR, the court dismissed the appeal as it was not demonstrated that the appellants had proved fraud to the required degree and stated that: “It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo (2008)1KLR (G & F) 742 wherein the court stated that “... we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove the allegation lay squarely on him. Since the ELC LA E055/2025 JUDGEMENT 14

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Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely, proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases. In a case where fraud is alleged, it is not enough to simply infer fraud from the facts.” 31.I have keenly read the proceedings and the record of appeal generally. I find no evidence of fraud on the part of the appellant in the exercise of transfer of the suit land. There was no evidence of any misrepresentation on the part of the appellant. Instead, there was evidence that it is the Appellant who is in occupation, having taken over and started construction. There is no claim based on adverse possession. 32. The grounds for cancellation of title to land are provided for under sections 26 and 80 of the Land Registration Act as follows: “1. Certificate of title issued by the Registrar upon registration, or to a purchaser upon transfer or transmission by the proprietor shall be taken as prima facie evidence that ELC LA E055/2025 JUDGEMENT 15

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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, un-procedurally or through a corrupt scheme.” Section 80 deals with rectification of the register of land by the court as follows: “1. Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud, 2. The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or ELC LA E055/2025 JUDGEMENT 16

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mistake or substantially contributed to it by any act, neglect or default.” 33. I find that none of these grounds were proved to warrant the cancellation of the title under the provisions of the Land Registration Act or at all. 34. I find that the appeal has merit. The appeal is allowed with the result that the judgment of the trial court is set aside and substituted with a judgment dismissing the suit. Each party shall bear its own costs of the suit and 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 Assistant. No appearance for the Appellant. No appearance for the Respondent. ELC LA E055/2025 JUDGEMENT 17

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