Gerald Odhiambo Lamba v Pamela Aoko Otieno (Sued and the Administrator of the Estate of the late Edwina Atieno Murai) & 3 others

heart of the dispute is East Gem/ Nyamninia/1351 (‘suit property’). 2 In his plaint dated 0/11/2023, the appellant sued the respondents for unlawfully, fraudulently and secretly transferring the suit property to the 2 nd defendant who subdivided the same to create East Gem/ Nyamninia/2845 and East Gem/ Nyamninia/2846 and who eventually transferred them to the 3 rd defendant without the plaintiff’s knowledge thus dispossessing him of his land. He sought for an order declaring the transfer of the suit property from him to the 2 nd defendant was unlawful, cancellation of the resultant subdivisions in the name of the 3rd defendants and reversion to the plaintiff with a permanent injunction restraining the defendants from interfering with the same and costs. 3 The 1st 2nd and 3rd respondents filed a defence and counterclaim dated 25/03/2024.The 1st/2nd Respondent contended the suit property belonged to her deceased stepmother Edwina Atieno Murai the first registered owner at adjudication. That the plaintiff’s wife Dymphyna Shiwayo Shemechero caused herself to be registered as joint proprietor with the said Edwina Atieno Murai without procuring a transfer from Edwina Atieno Murai and Land Control Board Consent among other statutory requirements as to Stamp Duty, Letters of Administration. 4 The 1st/2nd Respondent contended that the Land Registrar Siaya cancelled and or removed the illegal registrations and had the 1st /2nd Respondent take out the requisite JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 2

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letters of administration for the estate of Edwina Atieno Murai. The 3rd defendant on the other hand contended he was a bonafide purchaser for value without Notice of fraud of East Gem/Nyamninia/2845 and 2846 upon conducting due diligence and paying the purchase price to the duly registered vendors. 5 In the counterclaim the defendants pray for a number of declarations. That the 1st/2nd defendant Deceased stepmother Edwina Atieno Murai was the rightful bonafide owner of the suit property and all the subsequent transfer(s), registrations, subdivisions and or transactions of whatever nature after 22/10/1993 were a nullity and be cancelled and removed from the register. That 1 st/2nd defendant being Edwina Atieno Murai step daughter was the rightful bonafide owner of the suit property having legally succeeded the same. That the 3 rd defendant is the bonafide owner without notice of fraud of East Gem/ Nyamninia/2845 and 2846. 6 The appellant testified alone while the respondents called three (3) witnesses; they included the 1 st respondent, 3rd respondent, one other witness and a land registrar. After hearing the parties, the trial court in its judgment framed 3 issues for determination; Whether the Plaintiff has proved his case on a balance of probabilities, Whether the defendants had proved their case vis counterclaim and who should bear the costs of the suit. 7 The trial court found that the plaintiff had wrestled the title from the hands of the deceased unlawfully by JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 3

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registering himself as the owner of the suit land without due procedure. That before any transaction the land was lawfully held by Edwina Atieno Murai. Further that it is no defence for the plaintiff to state that the land was registered in the name of Dymphyna Shiwayo Murai when in fact and law, she had no good title to transfer. That the transfer of land to the plaintiff was not lawful. In conclusion the court found the plaintiff failed to prove their case on a balance of probabilities and dismissed the suit and upheld the counterclaim in terms of prayer a to c. 8 The appellant vide a Memorandum of Appeal dated 12/11/2025 filed by Messrs. TripleOKlaw LLP being aggrieved has, faulted the judgment of the trial court on the following grounds: 1. THAT the Learned Magistrate erred in law in ignoring the doctrine of indefeasibility of Title as guaranteed by the Government of Kenya under the Torrens System of Registration, as the keeper of the master record of all land and their owners as decreed by Section 23 (1) of the Registration of Titles Act. 2. THAT the learned Magistrate erred in law and fact in failing to interrogate the Appellant's contestation on the jurisdiction and procedure used by the District Lands Registrar to cancel the title issued to the Appellant herein. 3. THAT the learned Magistrate erred in failing to appreciate the provisions of Section 80 of the Land Registration Act, 2012, which exclusively mandates the JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 4

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Environment and Land Court with the power to cancel title on the basis of fraud and not the Land Registrar. 4. THAT the learned Magistrate erred in law and fact in failing to address the Appellant's contest on the irregular cancellation of its title by the Land Registrar without any hearing contrary to the Fair Administrative Actions Act. 5. THAT the learned Magistrate erred in Law and fact in failing to satisfy himself of the basis of the cancellation of the Appellant's title and further, the court failed to appreciate its Jurisdiction as a court of first instance, that is to examine the evidence in establishing the rightful owner of suit property. Instead, the court upheld the registrar's cancellation without question. 6. THAT the court erred in law and fact in cancelling the title held by DYMPHYNA SHIYAYO MURAI without affording her a hearing since she was never a party to the case. If the court found any irregularity with the Appellant's title, the property ought to have reverted to the previous owner who is DYMPHYNA SHIYAYO MURAI. 7. THAT the court erred in law and fact in imputing fraud on DYMPHYNA SHIYAYO MURAI without any evidence and without affording her a hearing. 8. THAT the court erred in law and fact in purporting to entertain a claim for land made more that 32 years later in contravention of the provisions of the Limitation of Actions Act. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 5

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9. THAT the Honourable Magistrate erred in law and fact in finding that the transmission of the property from EDWINA ATIENO MURAI to DYMPHYNA SHIYAYO was done without proper documentation without considering the fact that the property was held in joint tenancy and upon the demise of EDWINA ATIENO MURAI, the property automatically moved to the joint tenant upon proof of death. 10. THAT the Honourable Magistrate erred in law and fact in impeaching the Appellant's title for the sole reason that a sale agreement with DYMPHYNA SHIYAYO was not availed despite the fact that DYMPHYNA SHIYAYO is the Appellant's wife and that there is no dispute or contest over the transfer from DYMPHYNA SHIYAYO to the Appellant herein. 11. THAT the court erred in law and fact in declaring that DYMPHYNA SHIYAYO MURAI's ownership is void without any hearing or an opportunity to lead evidence contrary to Article 50 of the Constitution. 12. THAT the learned Magistrate erred in failing to trace the root of the title and ignored all evidence presented by the Appellant in this case. 13. THAT the Learned Magistrate erred in descending into the arena of litigation and making sweeping assumptions and conclusions not borne by evidence and/or supported by the material placed before the Court. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 6

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14. THAT in the circumstances of this case, the Learned Magistrate abdicated her Constitutional, statutory and judicial mandate of fair adjudication and analysis of facts, evidence and findings and perpetuated an injustice in breach of Articles 48 and 159 of the Constitution of Kenya and Sections 1A and 1B of the Civil Procedure Act, Cap 21, Laws of Kenya. 15. THAT the Honourable Magistrate erred in law in making orders that violated the Constitution and the due proper administration of Justice. 16. THAT the Honourable Magistrate in delivering the subject Judgment, violated the overriding objective contained in Section 3B (1) of the Civil Procedure Act in that the Court failed to handle the matter for the purpose of attaining a just determination thereof; 17. THAT the Honourable Magistrate subverted the overriding objective contained in Section 3A (1) of the Civil Procedure Act which obliged the Honourable Magistrate to facilitate a just resolution of the matter before the Honourable Court; 18. THAT the Honourable Magistrate erred in law in making orders that violated the Appellant's property rights guaranteed under Article 40 of the Constitution. 19. THAT the Honourable Magistrate erred in law in reaching a determination without regard to the documents, submissions and the evidence led on behalf of the Appellant during the hearing of the suit; JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 7

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20. THAT the Judgment and Decree of the Lower Court issued on 7th November 2025 is unjust and a gross denial of justice to the Appellant 21. THAT in the circumstances of this case, justice was perverted. 9 On the basis of the above the Appellant prays; a) THAT this Appeal against the Judgment and Decree of the Magistrates Court dated 07.11.2025 at Siaya in Siaya MELC No. E090 of 2023: Gerald Odhiambo Lamba -vs-Pamela Aoko Otieno & Others be allowed. b) THAT the Judgment and Decree issued on 07.11.2025 in Siaya MELC No. E090 of 2023: Gerald Odhiambo Lamba-vs- Pamela Aoko Otieno & Others at Siaya be set aside. c) THAT the costs of this Appeal be awarded to the Appellant. 10 The parties’ counsels agreed to dispose of the appeal by written submissions. The appellant’s counsel filed written submissions dated 23/03/2026 while the respondent who was represented by the firm of Messrs. Jesse David Ochanyo & Kurgat Advocates LLP &Advocates filed theirs on 3/03/2026. Appellant’s submissions 11 The appellant’s counsel consolidated his grounds of appeal into four (4) issues for determination as summarised herebelow. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 8

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12 Whether the firm of Tripleoklaw is properly on record, it was submitted that an appeal is a fresh proceeding and does not need consent or leave to come on record. That Order 9 Rule 5 does not apply to fresh appeals but rather to applications made post judgment within the same suit. 13 Whether the learned magistrate erred in law and fact in failing to interrogate the appellant’s contestation on the jurisdiction and procedure used by the district lands registrar to cancel the title issued to the appellant herein. It was submitted that the court fell into error in failing to fault the cancellation of the Appellant’s title by the land’s registrar. It was urged that under Sections 79 and 80 of the Land Registration Act 2012, only a court can order the cancellation or rectification of a title obtained through fraud or mistake and the Registrar can only rectify errors that do not materially affect a proprietor's interest. Reliance was placed on Irungu v Njuguna & 8 others (Environment & Land Case 75 of 2020) [2025] KEELC 4116 (KLR) and Super Nova Properties Limited &another v District Land Registrar Mombasa & 2 others; Kenya Anti Corruption Commission & 2 others (Interested Parties) [2018] eKLR. Further that by cancelling the Appellant’s title, the lands registrar contravened the Appellant’s constitutional right to protection of its property guaranteed under Article 40 of the Constitution. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 9

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14 Whether the court erred in cancelling Dymphyna Shiyayo Murai’s title without affording her a Hearing. Relying on Article 50 of The Constitution it was counsels’ submission that the court proceeded to cancel the transfer of the suit property from Edwina Atieno Murai to Dymphyna Shiyayo Murai without according her a hearing, a fundamental non-derogable right under article 25. The court was referred to Supreme court (Njoki Ndungu, SCJ) in the decision of Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others Petition No 18 of 2014 as consolidated with Petition No 20 of 2014 [2014] eKLR. Further, that the order was not prayed for in the Pleadings. 15 Whether the claim against Dymphyna Shiyayo was time barred. Counsel contended it was common ground the property was registered jointly between Edwina Murayi and Dymphine Shiyayo Murai on 15.03.1996. The 1st Respondent filed a Counterclaim dated 25.05.2004 claiming that the joint registration of 15.03.1996 was irregular. That this claim was made 21 years after the registration. That pursuant to Section 4 an action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him. The 1st 2nd 3rd Respondent’s submissions 16 The above respondent’s counsel firstly raised two preliminary issues whether the firm of Tripleoklaw LLP is properly on record and whether the Appellants written JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 10

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submissions after the expiry of the 21 days issued period from the 10th February, 2026 should be struck out? 17 On the 1st issue Counsel submitted that the provisions of Order 9 Rule 9 of the Civil Procedure Rules make it mandatory that for any change of Advocates after judgment has been entered to be affected, then there must be an order of the Court upon application with notice to all parties or upon a consent filed between the outgoing Advocate and the proposed incoming Advocate. That law firm of „TripleOKLaw LLP‟ neither sought this Court's leave to come on record as acting for the Appellant nor entered a consent with the outgoing firm of advocates, the firm of „BRUCE ODENY & CO. ADVOCATES‟. That the said provisions were not complied with. It is contended that the absence of such leave of court as provided by the law, and having found that these procedures was not followed by „TripleOKLaw LLP‟, the said firm is not properly on record, and has no legal standing to move the Court on behalf of the Appellant and therefore the memorandum of Appeal herein and written submissions filed outside the issued 21 days by the Honourable court dismissed. Several “Jackline on the 10/2/2026, authorities were also cited should be including Wakesho – Versus - Aroma Cafe [2014] eKLR”; “Serah Wanjiru Kung‟u – Versus - Peter Munyua Kimani [2021] eKLR”; “S. K. Tarwadi – Versus - Veronica Muehlmann [2019] eKLR”; John Langat v Kipkemoi Terer & 2 others [2013] eKLR and JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 11

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Florence Hare Mkaha v Pani Tawakal Mini Coach & another [2014] eKLR. 18 On the 2nd issue Counsel outlined the directions issued by this court on 10/2/2026 that the appeal was to be canvassed by way of written submissions and each party was given 21 days each. The Appellant and his advocates were to file their submissions and serve it upon the respondents within 21 days from the said date. The 1st, 2nd and 3rd respondents were then required to respond to the same vide their own written submissions. That the 21 days issued period to the Appellant and his advocates was due on 2 ND MARCH, 2026 and as at the 3/03/2026 at 12.16 pm, the Appellant’s written submissions were yet to be filed or served and the same should be struck out of the court record. 19 It is urged that rules of procedure and timelines fixed by the courts must be honored for certainty purpose and proper case management. That time is a crucial component in dispensation of justice. That Court orders are sacrosanct and must be obeyed at all times without excuse. ln this regard the court was referred to Nicholas Kiptoo Arap Korir Salat Vs Independent Electoral and Boundaries Commission and 6 Others (2013) eKLR, Nick Salat v Independent Electoral and Boundaries Commission & 7 others and Hadkinson v Hadkison (1952) 2All ER 567. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 12

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20 On behalf of the respondent’s, counsel identified the following additional issues for determination summarised as follows; 21 Who was the rightful owner of the original suit land parcel known reiterating the as East Gem/Nyamninia/1351 defendants claim and their - In respective evidence, counsel submitted that the rights of a registered owner of property are clearly set out under sections 24, 25 and 26 of the Land Registration Act, 2012, as indefeasible. Moreover, under the Torrent System of registration which is applicable in Kenya the title of a bona fide purchaser for value without notice of fraud could not be impeached and cited Petition No. 29 of 2012 and Civil App. No.12 of 2013 Charles Karethe Kiarie & 2 Others -vs- Administrators of Estate of John Wallance Muthare (deceased) & 5 Others (2013) eKLR to buttress the point. 22 It is contended that section 26 of the Land Registration Act, 2012 the successor of the Registration of Titles Act has provisions similar to section 23 of the Registration of Titles Act and emphasised the sanctity and indefeasibility of title. The court is invited to rely on Moya Drift Farm Ltd. v. Theuri (1973) EA; Republic v Land Registrar Taita Taveta District & another [2015] eKLR and Park View Shopping Arcade v. Kangethe & 2 Ors. (KLR) (E&L) 592. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 13

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Whether Dymphyna the appellants Shiyayo estranged Shimechero wife one acquired good ownership of un-divided share of the original land parcel Lr. No. East Gem/Nyamninia/1351 alongside the late Edwina Atieno Murai and had a claim over the said un-divided share of the said original land parcel. 23 Counsel contended that Dymphyna Shiyayo Shimechero never acquired a good ownership of un-divided share of the original land parcel L.R NO. EAST GEM/NYAMNINIA/1351 which measured 1.04 Ha and had no claim whatsoever of the said undivided share. Rehashing the averments in the defence it is submitted that the statutory documents were never produced by the Siaya District Land Registrar giving an indication that they were missing and thus the land was acquired through malicious/fraudulent misrepresentation of facts. Counsel cited means and Hebert L Martin & 2 Others v Margaret J Kamar & 5 Others {2016} and Munyu Maina v Hiram Gathiha Maina, Civil Appeal No.239 of 2009 requiring investigation of the legality of root of title where there is challenge. Whether the appellant acquired a good title of the original land parcel Lr. No. East gem/nyamninia/1351 from the late Edwina Atieno Murai and Dymphyna Shiyayo Shimechero. 24 It was submitted that the appellants registration to East Gem/Nyamninia/1351 was fraudulent. That on 13/12/2018 JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 14

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as evidenced by entry no. 5 of the parcel file’s green card to the original suit land L.R NO. EAST GEM/NYAMNINIA/1351 dated 7/8/2023, the appellant illegally caused his names to be registered in the said aforementioned original suit parcel in place of the 1st/2nd respondent’s deceased step-mother Edwina Atieno Murai and the appellant’s alleged wife one Dymphyna Shiyayo Shimechero, who the 1 st/2nd respondent’s deceased step-mother had passed away on 13/11/2006 translating to over 12 years after the illegal registration done on the said 13/12/2018 contrary to Section 26 (1) of the Land Registration Act, No. 3 of 2012 and without legally taking out letters of administration intestate to the estate of the late Edwina Atieno Murai as required under Sections 38 and 66 Cap. 160, Law of Succession Act, Laws of Kenya. 25 That appellant’s estranged wife one Dymphyna Shiyayo Shimechero never signed any transfer forms for transfer of her share, never appeared before the Siaya Land Control Board (L.C.B) as required under Section 17 (1) (a), (b) and (c) of the Land Control Act, Cap 302, Laws of Kenya, no consent was obtained as required under Section 8 (2) of the Land Control Act, Cap 302, Laws of Kenya through application for consent for Land Control Board by both parties, nor producing evidence of payment of Stamp Duty as required under Section 5 of the Stamp Duty Act, Cap. 480, Laws of Kenya and the same was contrary to Section 19 (2) of the Stamp Duty Act, Cap. 480, Laws of Kenya. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 15

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26 Counsel referred extensively to the judgement of Sila Munyao J (now JA) in Alice Chemutai Too v Nickson Kipkurui Korir & 2 others [2015] eKLR where the learned judge cancelled title on the basis of lack of succession proceedings among other irregularities while noting that the import of Section 26 (1) (b) as being to remove protection from an innocent purchaser or innocent title holder. That title is impeachable so long as that title was obtained illegally, un-procedurally or through a corrupt scheme. That the title holder need not have contributed to these vitiating factors Whether the 3rd respondent is the legal and lawful owner of the suit land Gem/Nyamninia/2845 Gem/Nyamninia/2846 parcels and and a LR l.R bonafide no. no. East East purchaser without notice of fraud. 27 Rehashing the evidence, Counsel submitted that the requirements set out in the case of Katende Vs Haridar Company Limited (2008) 2 E.A 173 for one to be availed the plea of bonafide purchaser for value without notice have been met by the 3rd defendant. It is contended that the 3rd respondent herein prior to purchase had conducted due diligence of the property at Siaya Land’s Registry (Ardhi House) as required by the basic principles of the law and confirmed that indeed the land parcel was in the names of the 1st/2nd respondent herein one Pamela Aoko Otieno who was the then Vendor and who had been registered on the JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 16

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land on 17/10/2022 as owner after succeeding her late step – mother one Edwina Atieno Murai vide SUCC. CAUSE NO. 61/2019 which was duly indicated in the parcel file’s green card dated 23/03/2022. 28 Counsel further relied on the provisions of Article 40 whose objective it is urged is to protect proprietary rights under the law. Such rights are governed by statutes, for example, in this case, the title issued is governed by the provisions of the Registration of Titles Act (repealed) to buttress the arguments. 29 The Attorney General did not participate in this appeal on behalf of the 4th Respondent. ANALYSIS AND DETERMINATION 30 I have considered the grounds of appeal listed in the Memorandum of Appeal, the lower court record, and the rival arguments proffered by both Counsels in their submissions. 31 I have noted that the Appellant has condensed his grounds of appeal into 4. The Respondents have raised some preliminary issues that must be addressed in the first instance. The following issues arise for determination; 1) whether the firm of Tripleoklaw LLP is properly on record and 2) whether the Appellants written submissions filed after the expiry of the 21 days issued period should be struck out? 3) Whether this appeal has merit. In considering this the court will seek to address the following questions JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 17

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a) Who is the rightful owner of the suit property between the Plaintiff and the 1st/2nd Defendant? b) Did the Land Registrar have jurisdiction to cancel title? c) Did the court err in cancelling Dymphyna’s title? d) Whether the counterclaim is time barred for purporting to recover the suit property on behalf of the Edwina Murai (deceased) e) Whether the 3rd Defendant is a bonafide purchaser for value without notice of fraud f) Who bears the costs of this appeal? 32 The duty of an appellate court is stipulated under Section 78 of the Civil Procedure Act which reads; “Subject to such conditions and limitations as may be prescribed, an appellate court shall have power; (a)to determine a case finally; (b)to remand a case; (c) o frame issues and refer them for trial; (d) to take additional evidence or to require the evidence to be taken; (e) to order a new trial. (2,) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.” JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 18

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33 The Court of Appeal in Peterson Ndung’u, Stephen Gichanga Gituro. N. Ojwang, Peter Kariuki; Joseph M. Kyavi & James Kimani V Kenya Power & Lighting Company Ltd [ 2018] Eklr stated as follows regarding the duty of the first appellate court: “ ………………..This being a first appeal , we are reminded of our primary role as a first appellate court namely reanalyze the to re-evaluate extracts on , re-assess record and and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons why...............On a first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate itself and draw its own conclusions though it should always beware in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence……....” 34 In Mbogo and Another v Shah [1968] EA 93, the court stated: “…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it failed to JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 19

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take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 35 The locus classicus on the above remains the case of Selle Vs. Associated Motor Boat Co. (EA.123) where it was stated that the court must reconsider the evidence, evaluate it itself and draw its own conclusions but bearing in mind that it did not have the benefit of seeing the witnesses who testified before the trial court. Whether the firm of Tripleoklaw LLP is properly on record; - 36 The Respondents through their counsel on record relied on the provisions of Order 9 Rule 9 to impeach the representation of the Appellant by the firm of Tripleoklaw LLP. 37 The provisions of Order 9 Rule 9 of the Civil Procedure Rules, 2010 provides for change of Advocates to be affected by order of Court or consent of parties to wit: When there is a change of Advocate, or when a party decides to act in person having previously engaged an Advocate, after judgment has been passed, such change or intention to act in person shall not be affected without an order of the Court — a. upon an application with notice to all the parties; or JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 20

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b. upon a consent filed between the outgoing Advocate and the proposed incoming Advocate or party intending to act in person as the case may be” 38 The proceedings of the trial court show that the Appellant who was the Plaintiff therein was represented by the firm of Bruce Odeny & Company upto the point of the delivery of the judgement on 7/11/2025. This appeal has been filed on behalf of the Appellant by the firm of TripleOKLaw LLP. Counsel for the Appellant does not deny in its submissions that it did not seek leave of this court to come on record post judgement or filed a consent with the firm of Bruce Odeny & Company. Indeed, the record does not bear any of these. 39 The impugned firm urges that an appeal is a new suit and therefore the provisions of Order 9 are not applicable. However, they did not lead the court to any precedent where the courts have pronounced themselves in this regard. 40 I have noted all the cases cited by Counsel for the Respondent. However, in Tobias M. Wafubwa v Ben Butali [2017] KECA 142 EKLR the Court of Appeal discussed at length the application of Order 9 Rule 9 of the Civil Procedure Rules thus; ‘The application of rule 9 is an issue that has incessantly recurred vexed the courts, and in determining the issue, of whether or not compliance is mandatory, the courts have reached JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 21

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varied conclusions dependent on the circumstances and facts of each case. Needless to say that, in each case, the purport of these rules, their application, and the mischief that sought to be addressed requires to be taken into account. This case involved an appeal from the Principal Magistrate’s court to the High Court, and it is with this in mind that we take cognisance of the apt observations of Sitati, J. in the case of Stanley Mugambi vs Anthony Mugambi [2005] eKLR where it was stated thus; “The issue for determination is whether commencing an appeal by an advocate other than the one who conducted the case in the lower court falls within the provisions of Order III Rule 9A. In my considered view, I do not think so. My reading of the provisions of Rule 9A is to the effect that such change or intention is restricted to a suit that is either going on or one that has been concluded. The rule does not apply to appeals. If the intention of the drafters was to include appeals under this rule it would have been so stated. To my mind, Rule 9A envisages a situation where after judgment has been entered, a new advocate desires to come on record for purposes of applying for stay of execution or to proceed with execution proceedings in that suit. If any other meaning were to be assigned to the rule, the High Court and the Court of Appeal would be inundated with time consuming applications by advocates wishing to file appeals on behalf of litigants who were represented by different advocates in the lower court. I would agree with Mr. C. Kariuki for the appellant/respondent that the aim of Rule 9A was only intended to prevent parties from throwing out an advocate after judgment with the aim of denying the advocate the fruits of their costs. I therefore find that this application is misplaced and misconceived. It would, in my view, be draconian to JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 22

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strike out the appellant’s appeal on the ground raised in the application.” These observations were supported by Makhandia, J, (as he then was) in the case of Martin Mutisya Kiio & Another vs Benson Mwendo Kasyali, Machakos High Court Misc. Application No. 107 of 2013 where in respect of order 9 rule 9 it was asserted that; “… such submission has no legal basis, … that where a firm of Advocates has acted for a party in the lower court, those instructions are terminated and/or were spent or exhausted with the conclusion of the trial in the lower court. An appeal is different ball game; it can be filed by any other firm of Advocates on instructions of the Appellant without necessarily having to file Notice of Change of Advocates or filing an application to come on record in place of the previous Advocates. In other words, an appeal is fresh proceedings which can be initiated by any other firm of Advocates on instructions of the Appellant without regard to the previous Advocates who acted in the trial court.” And echoed by Emukule J, in the case of Kenya Pipeline Company Limited vs Lucy Njoki Njuru [2014] eKLR who adopted the same approach when he stated; “More importantly unlike the ordinary trial or review, or other interlocutory applications within the same cause or matter, an appeal is a “different ball game”. The proceedings are fresh or new, and are before a Superior Court, and a party, including both the Appellant or Respondent, are at liberty to change or instruct a new set of counsel to represent them.” We are of the same view, and would adopt the same approach in its entirety in matters concerning appeal. Once a judgment is entered, save for matters such as applications for review or execution or stay of execution inter alia, an appeal JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 23

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to an appellate court is not a continuation of proceedings in the lower court, but a commencement of new proceedings in another court, where different rules may be applicable, for instance, the Court of Appeal Rules, 2010 or the Supreme Court Rules, 2010. Parties should therefore have the right to choose whether to remain with the same counsel or to engage other counsel on appeal without being required to file a Notice of Change of Advocates or to obtain leave from the concerned court to be placed on record in substitution of the previous advocate. As this dispute concerned an appeal from the Principal Magistrate’s Court to the High Court, it involved the commencement of new proceedings, and we are satisfied that the respondent’s counsel was entitled to commence them without filing a Notice of Change of seeking the leave of the court to be placed on record. We would go further to add that, provided that where the failure to comply with the rule 9 did not undermine the jurisdiction of the court, or affect the core of the dispute in question, or prejudice either of the parties in any way as to lead to a miscarriage of justice, then, Article 159 of the Constitution and the overriding principles could be called upon to aid the court to dispense substantive justice through just, efficient and timely disposal of proceedings. A similar approach was invoked in the case of Boniface Kiragu Waweru vs James K. Mulinge [2015] eKLR where in addressing the issue of non-compliance with order 9 rule 9 this Court observed thus; “All in all we are not persuaded that non-compliance with Order III rule 9A of the Civil Procedure Rules was meant to make the following proceedings incompetent or a nullity, efficacious as the provision was meant to be. Indeed all times, the set procedures ought to be followed or complied with. However, we find that non-compliance, in the JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 24

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present matter, did not go to the root of the proceedings. The non-compliance we may say, was procedural and not fundamental. It did not cause prejudice to the appellant at all…” In the instant case, the learned judge took the view that, the issue being one of failure to comply with rule 9 was a procedural lapse that did not go to the root of the appeal and duly invoked the directions of Article 159 of the Constitution in dismissing the appellant’s application. Emphasis is mine. 41 This court agrees entirely with the above dictum. Drawing guidance from the above decision I will proceed on the basis that the non compliance is not fatal as it does not go to the root or substance of the appeal herein. The court finds that the issue of non-compliance with order 9 rule 9 by the respondent is without merit, and is dismissed. 42 Should the submissions filed on behalf of the Appellant be struck out for being filed out of time? Indeed on 10/2/2026 this court issued directions on the disposal of this appeal by way of written submissions in the presence of both counsels. The Appellant was to file their submissions within 21 days and the Respondents within 21 days of service of the Appellants Submissions. The 21 days ended on 3/03/2026. The Appellants submissions are dated 23 rd March 2026 and filed on the same date, which is another 20 days later. 43 This court notes that the parties appeared before it on 15/04/2026 the date set for highlighting. Ms. Obuya for the Appellant informed the court that they had filed their submissions. Mr. Ochanyo for the Respondents was JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 25

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present in court. He did not raise any objection to the submissions having been filed out of time but acquiesced to taking a date for judgement. He is therefore estopped from raising the objection now. 44 Moreover, I will consider the Appellants right of appeal, the fact that he appointed Counsel to represent him knowing very well his appeal would be argued. I think striking out the submissions would be draconian and amount to punishing the litigant for the mistakes of his counsel which does not meet the ends of justice. I would rather exercise my discretion in favor of considering this appeal on its merit. 45 Having resolved the two preliminary issues above I will go into the substantive merits of the appeal based on the questions outlined earlier. Who is the rightful owner of the suit property between the Plaintiff and the 1st/2nd Defendant; - 46 The main contestation by the plaintiff in its plaint was that he is the bonafide owner of the suit property (herein mother title) which he was dispossessed of through unlawful and fraudulent means by the Defendants. Specifically, it was transferred from the Plaintiff to the 2 nd defendant with the help of the 4th Defendant (herein Land Registrar). That following the said transfer the 2 nd defendant in the same manner caused the mother parcel to be subdivided into two portions namely East Gem/ Nyamninia/2845 and East Gem/ Nyamninia/2846 JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 26

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(herein the subdivisions) and sold them to the 3 rd defendant. The Plaintiff therefore sought a declaration to that effect and cancellation of the ensuing titles and reversion of the same to the plaintiff. 47 However, in rebuttal the 1st and 2nd defendants who are one and the same person except that she is sued in two different capacities denied the allegations pointing that the land belonged to her deceased step mother Edwina Atieno Murai (herein Edwina). That being the deceased stepdaughter of Edwina she was the bonafide owner of the mother title. The 1st defendant further alleged that the registration of the plaintiff stemmed from an unlawful registration of his wife Dymphyna Shiwayo Shemechero (herein Dymphyna) as a joint proprietor together with Edwina. 48 Arising from the above the 1 st defendant sought by way of counterclaim that Edwina was the rightful owner of the mother title and that all subsequent transfers after the 22/10/93 were a nullity and the same be removed from the register. Further the 1st defendant be declared the bonafide rightful owner as step daughter having legally succeeded the property pursuant to sections 38 and 66 of the Law of Succession Act. 49 The trial court identified the main issue for determination as whether the Plaintiff had proved their claim on a balance of probabilities. On the burden of proof Section JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 27

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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. 50 The trial court found that the plaintiff did not prove his claim on a balance of probabilities and allowed the counterclaim raised. The Plaintiff’s title was impeached for the reasons rendered and which I will revisit later in this judgement. 51 The particulars of illegality were pleaded at paragraph 10 of the Plaint as follows; a) The 2nd defendant's action of including the plaintiff's land parcel East Gem / Nyamninia / 1351 in the 1st defendant's succession cause in Siaya CM Succession 61 of 2019 yet the property was not part of the deceased's estate was intended to steal the plaintiff's land. b) Deliberately with ill intention listing the plaintiff's land parcel East Gem / Nyamninia / 1351 as part of the estate of the 1st defendant was unprocedural and for the 4th defendant to entertain the transmission without detecting that the land was currently then registered in JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 28

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the name of the plaintiff confirms a collusion between the 1st, 2nd and 4th defendant in the illegality. c) Unlawfully transferring the ownership of the suit property from the name of the plaintiff to that of the 2nd defendant without a consent from the land control board. d) Unlawfully transferring the ownership of the suit property from the name of the plaintiff to that of the 2nd defendant without the plaintiff executing any transfer instruments in favour of the 2nd defendant. e) Secretly sub dividing land parcel East Gem / Nyamninia / 1351 into East Gem / Nyamninia / 2845 and East Gem / Nyamninia /2846 without the knowledge of the plaintiff who is the current occupant in constant use. f) Threatening to evict the plaintiff from the suit land without lawful basis. 52 In my view (a) and part of (b) of the above particulars ought to have been canvassed before the said succession cause 61 of 2019. The trial court was divested of jurisdiction to find that the suit property was not part of the deceased property and that the same was unprocedural. It cannot seat on appeal of the succession court proceedings. The right procedure would have been through an objection before the said court. I have noted that on the face of the judgement the trial court did not touch on this ground and I will therefore leave it at that. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 29

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53 The rest of the particulars (b), (c), (d) and (e) warranted the consideration of the trial court and the burden of proof still lay on the plaintiff to prove the assertions. 54 The Plaintiff had to first prove he was the owner of the suit property before the alleged impugned transfer to the 1 st/2nd defendant. 55 The plaintiff testified as PW1 produced a copy of title deed for the mother parcel East Gem/ Nyamninia/1351 in the name Gerald Odhiambo Lamba as the registered proprietor issued on 13/12/2018. He also produced a green card for the mother title opened on 22/10/93 showing that on 15/3/1996 the registered proprietors were Edwina Atieno Murai and Dymphyna Shiyayo Shimechero under the comments ‘TRANSFER OF UNDIVIDED SHARE’. A title deed was issued the same day. It was his case based on the witness statement dated 9/11/2023 which he adopted as his evidence in chief, that he lawfully acquired the land from its previous owner Dymphyna his wife. The Green card also confirms that on 13/12/18 the mother title was transferred to the Plaintiff and title issued on 7/1/19. 56 However the same green card reveals that on 18/7/19 Pamela Aoko Otieno the 1st defendant herein was registered proprietor vide Succ cause 61/19 PMC vide RL 19 and title JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 30

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issued to Pamela. It is the removal of the plaintiff’s name that was contested by PW1. 57 The 2nd Defendant pleads that the illegal entries undertaken by Dymphyna were cancelled out and or removed from the register by the Land Registrar and had the 2 nd defendant legally take out grant of letters of administration intestate of the estate of Edwina pursuant to the Law of Succession Act. As already noted above the registration of the 1 st defendant was pursuant to Succ cause 61/19 PMC. There is no contestation that the suit property was first registered to Edwina in October 1993 who the 1 st defendant claims to be her stepmother. I have already pointed that the forum for any objection arising from the succession was before the same court empowered under the Law of Succession Act. 58 However it is important to note that the trial court was still seized of jurisdiction to render itself on the issue of ownership of the suit property. On the cancellation of the plaintiff’s title by the Land Registrar, the trial court drew from the testimony of Mr. Mutua, Land Registrar who testified that the plaintiff registration was cancelled on 13/12/18 having been done in error and that it had been done without the required transmission documents. That the entry of Dymphyna was not procedural and therefore before the said transfer the land was lawfully being held by Edwina. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 31

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59 In his submissions filed in the trial court the Plaintiff identified the issue whether due process was undertaken prior to cancelation of the plaintiff’s title. In this regard Counsel had argued on the basis that the land registrar did not have powers to cancel title but that such powers were vested only in the court. Counsel in the trial court referred to the provisions of section 79 of the Registration Land Act (sic). 60 Section 79 of the Land Registration Act is on Rectification of the register and stipulates as follows: “79. Rectification by Registrar. (1) The Registrar may rectify the register or any instrument presented for registration in the following cases— (a) in formal matters and in the case of errors mistakes or omissions not materially affecting the interests of any proprietor; (b) in any case and at any time with the consent of all affected parties; or (c) if upon resurvey, a dimension or area shown in the register is found to be incorrect, in such case the Registrar shall first give notice in writing to all persons with an interest in the rectification of the parcel. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 32

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(d) for purposes of updating the register; (e) for purposes of correcting the name, address or other particulars of the proprietor upon the written application by the proprietor in a prescribed form. (2) No alteration affecting the title of the proprietor may be made pursuant to sub-section (1) without the proprietor' s consent unless (a) the proprietor has by fraud or lack of proper care caused or substantially contributed to the error, mistake or omission; or (b) it would for any other reason be unjust for the alteration not to be made. Provided that a written notice of ninety days shall be given to the proprietor of such intention to make the alteration. (3) Upon proof of the change of the name or address of any proprietor, the Registrar shall, on the written application of the proprietor, make an entry in the register to record the change. (3A) A person aggrieved by the decision of the Registrar under this section may apply to the Court for any necessary orders. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 33

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(4) The Cabinet Secretary may by regulations prescribe the guidelines that the Registrar shall follow before rectifying or directing rectification under this section and without prejudice to the generality of the foregoing, the regulations may provide for (a) the process of investigation including notification of affected parties; (b) hearing of the matters raised; and (c) the criteria to be followed in coming up with the decision. 61The above provisions empower the 4th Defendant to rectify the register by correcting errors, mistakes, and omissions provided they do not materially affect the proprietary interests of a party, upon giving a written notice of 90 days to the affected parties. This court finds support in the case of Misoy v Jerotich & another (Environment & Land Case 40 of 2021) [2022] KEELC 13339 (KLR) (29 September 2022) (Judgment) where the court held that: “A reading of Section 79 of the Land Registration Act clearly limits the scope of the registrar powers to correction of errors, mistake and omissions and not materially affecting the interests of any proprietor. Subsection (2) which the registrar relied on provides for issuance of written Notice of 90 days to the proprietor.” JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 34

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62In Republic v Bishop Patrick Ligawa Nyagudi & 4 others; Ex-parte: Archbishop Naphtaly Yongo Okuon & 3 others [2021] eKLR, the court, while elucidating the meanings of errors and mistakes, as well as the necessity for a hearing before rectification, expressed the following: “Let us then have a closer look at the powers granted vide Section 79 (1). It will be seen that Section 79 (1) gives the Land Registrar power to rectify the register or instrument presented for registration, but it is for fairly limited and procedural matters, that do not go to address or settle any controversy over the proprietorship of the land. Section 79 (1) (a) is in fact categorical that the Land Registrar can correct errors, mistakes, or omissions, not materially affecting the interests of any proprietor. Section 79 (1) (a) would certainly cover some small slips and obvious errors, say, the value of consideration where a figure can be seen to be obviously missing (for example the missing zero in KShs. 1,000,00/= instead of KShs. 1,000,000/= yet the amount in words is Kenya Shillings One Million). The correction of errors, mistakes or omissions can also be made with consent of the parties under Section 79 (1) (b), and these would still have to be minor and not going to title, nor have a bearing on proprietorship. Section 79 (1) (c) covers corrections on acreage where there has been a resurvey where it is apparent that the dimensions shown in the register are incorrect, and even to JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 35

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exercise this power, notice has to be given to the parties affected so that they can comment on this rectification. Section 79 (1) (d) covers rectification for purposes of updating the register, and there is not really much here, because it is simply a clerical entry for keeping the register up to date. Section 79 (1) (e) covers rectifications of names, addresses and other particulars of the proprietor on the written application of the proprietor. It could be that the proprietor has changed the name due to marriage or through a deed poll and he/she wants the register to reflect this change of name. Again, no issue on proprietorship arises. Subsection (2) of Section 79 makes provision Registrar’s for powers the exercise pursuant to of the sub-section Land (1) without the consent of the proprietor, and this would cover issues related to fraud, lack of proper care, due to error or mistake of the proprietor, and even then, a 90 days notice has to be given.” 63It has been admitted both in the Defence and the testimony of the Land Registrar that the name of the Plaintiff was removed from the register. Removing and or striking out the name of registered proprietor is an action that materially affects the interest of the registered proprietor and therefore excluded from the corrections that the Land Registrar is empowered to effect. Moreover, there was no evidence JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 36

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adduced of notice having been issued to the plaintiff by the Land Registrar. 64Therefore it is my finding that the Land registrar acted ultra vires and unprocedural in removing the Plaintiffs name from the parcel register. The trial court thus erred. 65The trial court also pointed that the plaintiff had hinged his ownership on purchase but had not produced a copy of the attendant sale agreement and invoked the provisions of section 3(3) of the Law of Contract Act as to the requirement for a contract of disposition in land to be in writing, signed by the parties and witnessed. I will not reproduce the said provisions. The trial court observed that as at the time of the said sale between Dymphyna and the Plaintiff was ongoing or otherwise the Land Registrar had cancelled the transfer of the land to the Plaintiff. 66Building on the above the trial court relying on the case of Daudi Kiptugen Vs. Commissioner of Lands & 4 Others (2015) eKLR whose purport was that the acquisition of title cannot be construed only in the end result but must be hinged on the process of its acquisition and that where it is not acquired through the proper process of acquisition, the title cannot be said to be a good title. The trial court held thus ‘that being the case, it is the finding of this court that this whole scenario paints a picture that the Plaintiff in cahoot with unknown persons colluded to irregularly register and transfer to the plaintiff care(sic) without due process’. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 37

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67The trial court impeached the title under the provisions of section 26 (1)(b) noting the title holder need not have participated in the vitiating factors citing the decision in Elijah Makeri Nyangwara Vs Stephen Mungai Njuguna & Ano. (2013) KLR. The trial court further found that Dymphina did not hold good title to transfer. 68But be that as it may, this court agrees entirely with the rendition given by Justice Sila Munyao (now JA) in Daudi Kiptugen Vs. Commissioner of Lands & 4 Others (supra). The root of the plaintiffs title derived from Dymphyna’s title to the mother title. So how did Dymphyna get herself into the register? I will go back to the registration of Edwina Atieno Murai and Dymphyna as proprietors. The Green card produced by PW1 is silent on how the registration into the names of Edwina and Dymphyna was done. No documentation of the said transfer executed by Edwina was presented before court. 69My review of the proceedings reveals that PW1 upon cross examination told the trial court that ‘The land was registered with Edwina and Divina (Sic this must be Dymphyna). Edwine died then Divinas son the land transferred land to her. Edwina was the sister to the wife of my brother. …. Divine bought from Edwina at Kshs. 150,000/=. She bought the whole parcel of land. We have no sale agreement between the two of them. Edwina passed in 2006. Divine is alive in USA. She is JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 38

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number two in the list of witnesses. My sister in-law was present. She is not a witness.’ 70Dymphyna’s title had been challenged on the basis of irregularities on how her name found its way into the register as a purported joint owner with Edwina Murai. The purported sale agreement between the Plaintiffs wife and Edwina was not produced, neither was the transfer document executed by Edwina in favor of Dymphyna. Clearly from the foregoing the Plaintiff did not successfully defend Dymphynas title which was the root of his title. If Dymphyna was still alive in USA it is not clear why the plaintiff chose not to enjoin her to the suit, failed to call her as his witness and further failed to procure the documents from her. I find no reason to depart from the trial court finding that Dymphyna did not hold a good title. 71Moreover the transfer to the Plaintiff in 1996 is not supported by any documents of such transfer. This court is alive to the fact that there are many ways of transfer of land one being by purchase, gift and even transmission. It is not clear throughout the trial court proceedings how the land moved from Dymphyna to the plaintiff not even the transfer of land document was produced and the burden of proof lay on the plaintiff which he did not discharge. 72PW1 stated in cross examination the land was transferred to him by his wife. He did not call Dymphyna as his witness to corroborate his evidence having been put on notice by the JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 39

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allegations of illegalities pleaded in the Defence. It is not enough for counsel to have stated that the Land Registrar was selective on what he produced from the parcel file. It was not enough to state in re-examination that he had sued the defendant and had no problem with Divina. The burden of proof still lay on the plaintiff to proof how the property moved from his wife to himself which he failed to discharge. On this basis alone the plaintiffs title would be impeachable. 73There was a proposition that Dymphyna did not require a grant since the property was jointly own. I have looked at the submissions in this regard led at the trial court and it is my respectful view that Counsel for the Appellant misapplied the law. The presumption of common ownership is the applicable law and in a common ownership therefore the land did not revert to Dymphyna alone but with the estate of Edwina and therefore the provisions of Section 2 and 45 of the Law of Succession Act were applicable see Moses Bii v Kericho District Land Registrar & another [2015] KEHC 7708 (KLR). 74The upshot of the foregoing is that the Plaintiff did not discharge the burden of proof that he was the lawful owner of the suit property comprising the mother title. Whether the court erred in cancelling Dymphyna Shiyayos title 75The trial court allowed the Defendants counterclaim effectively finding that the 1st/2nd defendant Deceased stepmother Edwina Atieno Murai was the rightful bonafide JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 40

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owner of the suit property and all the subsequent transfer(s), registrations, subdivisions and or transactions of whatever nature after 22/10/1993 were a nullity and be cancelled and removed from the register. This was in tandem with prayer 1 of the counterclaim. 76It is trite that the counterclaim is a separate suit and claim. The record shows that Dymhyna was not a party to the proceedings in the trial court. She was not made a party by the Plaintiff in the main suit because his position was that he had no problem with her. The 2 nd defendant did not sue her either in the counterclaim though it was clear that she wanted Edwina Murai to be declared the owner of the suit property for whom she held a grant of letters of administration. It is not in dispute that Edwina was the registered proprietor of the suit property as at 22/10/1993 before the same came to be registered in her name and that of Dymphyna on 15/3/1996. 77The 2nd defendant challenged Dymphynas registration on the basis of irregularities on how her name found its way into the register as a purported joint owner with Edwina Murai.The pertinent question is whether a claim to revert the land to Edwina can be determined in the absence of Dymphyna in view of the entry in the parcel register dated 15/3/1996. The appellants lay emphasis on the right to be heard under Articles 50 of the Constitution and Articles 40 on protection to right to property. I have read the Supreme court decision in Evans Odhiambo Kidero & 4 others v Ferdinand JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 41

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Ndungu Waititu & 4 others (supra) cited by the appellants which I note dealt with the right to be heard within the contest of an election petition. This court agrees on the solemnity of the right to be heard. 78However every case is decided on its own facts and merits. There is no one jacket that fits all. In the circumstances of this case, I think my observations in the previous analysis speak to this issue. The plaintiff had the opportunity to enjoin Dymphyna to the suit whom he confirmed in cross examination was still alive and while he listed her as one his witnesses failed to procure her to testify. The plaintiff cannot then be heard to state that Dymphyna was not given an opportunity to be heard both in his claim and the counterclaim. 79For the counterclaim I have already noted that it is a separate suit. The defendant responded to the suit that was served upon her. She did not join Dymphyna as a party. Is this fatal to the Counterclaim? In my view the answer is an emphatic no. Though the issue of how Dymphyna got herself registered as owner of the suit property ‘jointly’ with Edwina would have been better addressed if she were a party, this court already made a finding that the plaintiff who came in his own right and under Dymphynas title failed to defend the legality of its root. The entry of Dymphyna could not be sustained in law and was rightly impeached. The court was obligated to make a decision as among the parties who were before the court. JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 42

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80Additionally I think the issue of the cancelation of Dymphynas title without according her a hearing is neither here nor there. I say so because by the time of filing the suit in the trial court Dymphyna had no interest in the suit property having transferred it to the Plaintiff. It was therefore for the Plaintiff to defend the root of his title which he failed to as demonstrated in my analysis a foregoing. 81I think my analysis foregoing has affirmed the irregularities cited by the Defendants and noting that a title is impeachable under the provisions of section 26(1)(b) I see no reason to overturn the trial courts finding pertaining to the counterclaim raised in this regard. 82It is therefore the finding of this court that the trial court did not err in the cancellation of Dymphynas title. 83The court has noted the submission that the claim against Dymphyna Shiyayo was time barred. Having been brought after a period of 21 years. I have perused the reply to the Defence & Counterclaim, this issue was not pleaded by the Plaintiff Applicants in the trial suit. I have also perused the submissions filed by the Plaintiff at the trial court. The Plaintiff never decanted this as an issue for determination in the trial court proceedings. Moreover, the leave of this court was not sought and obtained prior to the new issue being raised. But having made this observation what is clear is that Dymphyna Shiyayo Shimechero is JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 not a party to these 43

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proceedings and therefore there was no claim against her in the entire proceedings. Whether the 3rd Defendant is a bonafide purchaser for value without notice of fraud 84The 3rd defendants’ case is that he is a bonafide purchaser for value. The Plaintiff having been unable to defend his root of title which derived from Dymphynas title and which I have also found to have been irregular then I have no basis upon which to find against the 3rd defendant who purchased the properties from the 2nd defendant. 85As to who bears the costs of this appeal, since costs follow the event, the Respondents shall have costs of this appeal except the Land Registrar who in this appeal. did not participate 86The upshot of the foregoing is that this appeal lacks merit and it is hereby dismissed with costs to the Respondents except the Land Registrar. Orders accordingly. Delivered and Dated This 29th Day of September 2026 HON. JUSTICE A. E. DENA JUDGE 29/09/2026 JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 44

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Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: Mr. Obuya for the Applicants/Appellants Mr. Ochanyo for the 1st,2nd & 3rd respondents N/A for 4th Respondents Court assistant: Victor Bwire JUDGMENT SIAYA ELC APPEAL NO. E071 OF 2026 45

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