Jotham Amayayi Akhubula v Isaac Otenyo & 2 Others

2022 in Butere ELC Case No. 101 of 2018. In the impugned judgment, the trial court held that land parcel No. Marama/Inaya/1221, registered in the name of the 1st respondent, was the product of a lawful subdivision and transfer process in which the appellant had participated as the vendor. The court found that the appellant had attended the Land Control Board, given consent for the transfer and executed the relevant transfer documents. It further held that the appellant had failed to prove fraud, misrepresentation or illegality against the respondents, and consequently dismissed the suit with costs. Background 1. Jotham Amayayi Akhulubi, the plaintiff instituted the suit before the trial court by way of a plaint dated 22 nd November 2018, which was later amended on 30 th January 2019. In the amended plaint, he pleaded that he was the registered proprietor of land parcel No. Marama/Inaya/1218, while the 1st defendant was the 2

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registered proprietor of land parcel No. Marama/Inaya/1221. His case was that the 1 st defendant had purchased from him a portion of land measuring 10 feet by 100 feet, being a subdivision of land parcel No. Marama/Inaya/594, at a consideration of Kshs. 20,000/-, out of which the 1st defendant had paid Kshs. 13,000/-, leaving the balance unpaid. 2. The plaintiff further pleaded that the 2 nd defendant and/or his agents irregularly caused the portion measuring 10ft by 100ft to be captured as 0.02 Ha instead of 0.01 Ha, thereby resulting in the present dispute. He averred that the enlargement of the acreage had caused the 1st defendant to encroach upon the road reserve and neighboring parcels, including the access road leading to the plaintiff’s land parcel No. Marama/Inaya/1218. He sought from the court, a declaration that the 1st defendant purchased 10ft by 100ft, equivalent to 0.01 Ha and not 0.02 Ha, cancellation of the 1st defendant’s title, and costs of the suit and interest. 3. In response to the plaint, the 1st defendant filed his defence dated 21st February 2019, in which he denied the 3

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plaintiff’s claim in its entirety. He stated that the suit was sub judice, there being related proceedings in Kakamega HC ELC No. 221 of 2015 and Butere SPMCC No. 73 of 2018, and that the trial court therefore lacked jurisdiction to entertain the matter. He pleaded that the suit was incompetent and prayed that it be struck out with costs. 4. The 2nd and 3rd defendants filed their joint statement of defence dated 15th January 2019, in which they denied the plaintiff’s claim and put him to strict proof. The 2 nd defendant admitted having visited the suit property, but averred that the visit was undertaken pursuant to a court order issued in Kakamega ELC No. 221 of 2015, and denied the allegation that the visit or the resultant report was intended to cover up any irregularity. The 2 nd and 3rd defendants further denied that the plaintiff was entitled to the orders sought, and prayed that the suit be dismissed with costs. 5. The plaintiff filed a reply to the 1 st defendant’s defence dated 15th April 2019, in which he denied the allegations contained in the defence and reiterated the averments in the amended plaint. He denied that the suit was sub 4

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judice in light of Kakamega HC ELC No. 221 of 2015, contending that the parties and subject matter in that suit were different, the subject parcel therein being Marama/Inaya/1219, while the present suit concerned Marama/Inaya/1218. He similarly denied that Butere SRMCC No. 73 of 2018 rendered the suit sub judice, stating that the parcels in issue in that matter were Marama/Inaya/1223 and Marama/Inaya/1221. 6. The suit proceeded to through viva voce evidence. The hearing plaintiff called two witnesses in support of his case, whereas the 1 st defendant testified as the only defence witness. Plaintiff’s evidence 1. PW1 was Jotham Amayayi Akhubula, the plaintiff. He adopted his witness statement filed on 22nd November 2018 as his evidence in chief and produced the documents filed in his list of documents as exhibits. He testified that he entered into an agreement with the 1 st defendant for the sale of a portion measuring 10ft by 100ft out of land parcel No. Marama/Inaya/594 at a consideration of Kshs. 20,000/-, out of which the 1 st 5

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defendant paid Kshs. 13,000/-, leaving a balance of Kshs. 7,000/-. That the 1st defendant later caused the portion due to him to be enlarged and registered as Marama/Inaya/1221 measuring 0.02 Ha instead of the agreed parcels, acreage, which interfered being with neighboring Marama/Inaya/2017 and Marama/Inaya/1223. He stated that he discovered the anomaly in May 2017 when the land was gazetted by the Land Registrar. He produced, among other documents, the sale agreement dated 16th April 2000, search for the original National parcel, surveyor’s Construction report, Authority letters and from the the County Government stopping construction, and pleadings in Kakamega ELC No. 221 of 2015 and Butere ELC No. 73 of 2018. 2. On cross-examination, PW1 admitted that land parcel No. Marama/Inaya/594 belonged to his late father, Nathan Akhukula, and that the 1st defendant was involved in the succession proceedings as a purchaser. That following the death of his brother, he was later substituted as administrator, and that he transferred the land to the 1 st 6

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defendant. He conceded that a survey was done in his presence, that he attended the Land Control Board, gave consent to the transfer and did not protest before the Board. He however maintained that although the mutation form reflected the 1st defendant’s acreage as 0.02 Ha, that was not the correct acreage, as the agreement was for 10ft by 100ft. On re-examination, he stated that at the Land Control Board, he only consented to the 1st defendant getting the portion sold under the agreement. 3. PW2 was Tabitha Awinja Amayayi, the plaintiff’s wife. She adopted her witness statement filed on 22 nd November 2018 as her evidence in chief. She testified that she witnessed the sale agreement made on 16 th April 2000 between the plaintiff and the 1st defendant in respect of a portion measuring 10ft by 100ft out of land parcel No. Marama/Inaya/594, at a consideration of Kshs. 20,000/-, out of which Kshs. 13,000/- was paid upon execution. That the 1st defendant had not paid the balance of Kshs. 7,000/and had, in collusion with the surveyor, caused the land to be enlarged and registered as Marama/Inaya/1221. 7

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4. On cross-examination, PW2 confirmed that the agreement was for 10ft by 100ft and that Kshs. 13,000/- was paid at the time of execution. She admitted that the agreement did not specify when the balance was to be paid and that the balance was not expressly referred to therein. Further that there were other cases concerning the land, and that the 1st defendant had lived on the land from the year 2000 until the suit was filed in 2018. Defence evidence 1. DW1 was Isaac Otenyo Amunga, the 1 st defendant. He adopted his witness statement dated 21 st February 2019 as his evidence in chief and produced the documents in his list and further list of documents as exhibits. He testified that he acquired the land through succession proceedings in Kakamega High Court Succession Cause No. 362 of 2000, after which he processed title for land parcel No. Marama/Inaya/1221. That the title had an anomaly on acreage, which prompted him to write to the Land Registrar Kakamega, for rectification. That the land survey was carried out in the presence of all parties, including the plaintiff as administrator, and that the 8

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survey report showed that he had not encroached onto the plaintiff’s land. 2. On cross-examination, DW1 stated that he acquired the land as a purchaser and not as a beneficiary of the estate. He admitted that the original agreement related to a portion measuring 10ft by 100ft, and that his title deed reflected 0.02 Ha. He denied having fraudulently increased the acreage, and stated that he bought the land for Kshs. 20,000/=, paid Kshs. 13,000/= at the time of execution and later cleared the balance, although he had no documentary proof of the balance. That the transfer could not have been processed, nor Land Control Board consent obtained, without the plaintiff’s participation. He maintained that the grant and the survey process superseded the initial agreement, and that the parcels were properly demarcated pursuant to the survey carried out with the court’s sanction. That marked the close of the defence case. 3. Upon considering the pleadings, evidence adduced and the submissions filed by the parties, the trial court held that the 1st defendant’s 9 title to land parcel No.

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Marama/Inaya/1221 was obtained through a lawful process in which the plaintiff had actively participated. The court found that the plaintiff was involved in the succession proceedings, subdivision, survey, Land Control Board process and transfer of the portion to the 1 st defendant, and that he did not raise any objection at the material time. It further held that the allegation of nonpayment of the balance of the purchase price was an afterthought, and that no fraud, misrepresentation or illegality had been proved against the defendants and dismissed the suit with costs. 4. Having been dissatisfied with the trial court’s decision, the appellant lodged the present appeal vide a Memorandum of appeal dated 15th June 2022, citing the following grounds of appeal: a. The Learned Trial Magistrate erred in law and in fact in failing to look at and/or consider the sale agreement presented by the appellant and ignoring its evidential value thus arriving at a wrong decision. b. The Learned Trial Magistrate erred in law and in fact by failing to appreciate that the appellant's major dispute was on the acreage 10

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of land purchased by the respondent and subsequently reaching a wrong decision. c. The Learned Trial Magistrate erred in law and in fact by applying law partially and thereby reaching a finding that there was no fraud, misrepresentation or illegality on the part of the respondents. d. The Learned Trial Magistrate erred in law and in fact in making a finding that the Respondent had proved its case when there was no evidence to support that position. e. The Learned Judge was in her judgment manifestly biased against the Appellant by failing to consider and weigh the Appellant's evidence as against the Respondents' evidence and the circumstances of the case, thus arriving at a wrong conclusion. f. The Learned Trial Magistrate erred in law and in fact in making a finding that the appellant did not prove his case on a balance of probabilities as required in civil cases. g. The Learned magistrate misdirected herself in treating the facts and evidence before her superficially and consequently coming to a wrong conclusion on the same. 5. The appellant prayed that the trial court’s judgment dismissing his suit be set aside, and be substituted with 11

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judgment entered in his favor and that the appeal be allowed with costs to the appellant. 6. The appeal was canvassed by way of written submissions. On record are submissions dated 3rd May 2024, filed by the appellant, subsequent supplementary submissions dated 23rd April 2025 and submissions by the 1 st respondent dated 1st April 2025; all of which this court has carefully considered. Appellant’s submissions. 7. The appellant submitted that the trial court erred by failing to give due consideration to the sale agreement dated 16th April 2000, which was produced in evidence without objection. agreement clearly Counsel submitted that showed that 1 st the the said respondent purchased a portion measuring 10ft by 100ft, equivalent to 0.01 Ha, and not 0.02 Ha as reflected in the resultant title deed. It was argued that the 1 st respondent admitted on cross-examination that he bought land measuring 10ft by 100ft, and that his title deed nevertheless reflected 0.02 Ha. Counsel therefore submitted that the title held by 12

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the 1st respondent was properly impeached, as it exceeded the acreage purchased under the agreement. 8. The appellant further submitted that the acquisition of title is a process, beginning with the agreement for sale and ending with issuance of title, and that where the root of title is challenged, the registered proprietor must demonstrate that the title was legally and procedurally acquired. Reliance was placed on section 26(1) and section 80(1) of the Land Registration Act, Munyu Maina v Hiram Gathiha Maina [2013] eKLR and Harsharan Singh Sehmi & Another v Tarabana Company Limited & Others. Counsel also submitted that the matter was not a pure boundary dispute within the meaning of section 18 of the Land Registration Act, but a claim seeking to impeach and rectify title on account of the acreage reflected therein. In the supplementary submissions, counsel argued that the 1 st respondent’s objections founded on Order 2 Rule 10 of the Civil Procedure Rules and limitation were being raised for the first time on appeal, and that the 13

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appellant’s claim was not for recovery of land but for rectification of title to reflect what was actually sold. 9. In his supplementary submissions, the appellant responded to the 1st respondent’s arguments on defective pleadings, jurisdiction and limitation. He submitted that the objection under Order 2 Rule 10 of the Civil Procedure Rules was being raised for the first time on appeal, and that no prejudice had been shown to have been occasioned by any alleged want of particulars. He further submitted that the claim was not statute-barred, as it was not a claim for recovery of land, but one for rectification of title to reflect the actual portion sold. 1st Respondent’s submissions. 10. Counsel for the 1st respondent submitted that the amended plaint was defective as it alleged collusion, illegality and trespass without pleading the necessary particulars as required under Order 2 Rule 10 of the Civil Procedure Rules. He further submitted that the dispute was, in substance, a boundary dispute, and that under section 18 of the Land Registration Act, the court could not entertain such a claim unless the 14

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boundaries had first been determined by the Land Registrar or relevant survey authority. 11. The 1st respondent further submitted that the survey report on record showed that the disputed boundaries involving parcel Nos. Marama/Inaya/1221 and 1223 had been demarcated in the presence of the concerned parties, and that parcel Nos. Marama/Inaya/1218, 1219 and 1222 were stable in their approximate positions. It was argued that the appellant did not produce any contrary survey report or evidence capable of proving encroachment. Counsel also submitted that the trial court correctly found that the appellant participated in the succession proceedings, subdivision, mutation, Land Control Board process and transfer of the land to the 1st respondent, and that no fraud, misrepresentation or illegality was proved. 12. Lastly, the 1st respondent submitted that the appellant’s suit was time-barred, the agreement having been made in the year 2000 while the suit was filed in 2018. He further argued that the certificate of confirmation of grant in Kakamega Succession Cause No. 15

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362 of 2000 awarded the 1st respondent 0.075 Ha, whereas his title reflected only 0.02 Ha, and that the mutation form was signed by the appellant as administrator together with other beneficiaries. Counsel therefore maintained that the appellant’s claim was devoid of merit and prayed for the court to dismiss the appeal with costs. Analysis and determination 13. The court has carefully considered the appeal, the entire trial submissions. court record and the parties’ rival The role of this court as a first appellate court is to re-evaluate the evidence and make its own independent conclusions bearing in mind that it had no opportunity to see or hear witnesses and make due allowance for that. This position was stated in the case of Selle & Another –vs- Associated Motion Boat Co. Ltd & Others (1968) EA 123. 14. The duty of the first appellate court was discussed in the case of Gitobu Imanyara & 2 Others v. Attorney 16

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General [2016] eKLR, where the Court of Appeal stated as follows; ‘‘An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must consider the evidence, evaluate it itself and draw its own conclusions, although it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 15. Having considered the grounds of appeal, the core issue that arise for the court’s determination is whether the trial court was right in upholding a title whose acreage was more than the acreage purchased by the title holder. 16. Section 26 of the Land Registration Act provide for indefeasibility of title as follows; “Certificate of title to be held as conclusive evidence of proprietorship (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the 17

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proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, encumbrances, easements, conditions contained subject or to the restrictions endorsed and in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) On the ground of fraud or to the person is title has misrepresentation which proved to be a party; or (b)Where the certificate of been acquired illegally, unprocedurally or through a corrupt scheme.” 17. Therefore, registration of land, vests in a proprietor, absolute and indefeasible ownership rights, unless it is proved that the acquisition of title was through fraud, misrepresentation, want of procedure, illegality or corruption. 18. In Arthi Highway Developers Limited v West End Butchery Limited & 6 Others, [2013] e KLR, the court maintained that a title founded on fraud or illegality cannot be shielded by the doctrine of indefeasibility of 18

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title, even where the acquisition was by an innocent purchaser. 19. Similarly, in the case of Munyu Maina v Hiram Gathiha Maina Civil Appeal No.239 of 2009, [2013] e KLR, the Court of Appeal held that:“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.” 20. In the present case, the dispute was that the appellant sold to the 1st respondent, land measuring 10 feet by 100 feet, which is 0.01 Ha, but that the resultant title indicated 0.02 Ha. The fact that the 1 st respondent purchased land measuring 10 feet by 100 feet is confirmed both by the sale agreement and the 1 st respondent’s testimony. Land measuring 10 feet by 100 19

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feet has an acreage of 0.01 Ha. Therefore, it follows that the acreage that should reflect on the respondent’s title should be approximately 0.01 Ha. In this case however, the acreage reflected on the respondent’s title is 0.02 Ha, which is double what should be reflected. The sale agreement and the parties’ respective testimonies do not align with the acreage on the title. 21. It is unlawful and irregular for a person to purchase 0.01 Ha but have a title indicating 0.02 Ha. The fact that the appellant executed the transfer and obtained consent in respect of double acreage is irrelevant. What is important and fundamental is the acreage sold. What was sold should be the same acreage reflected on the title. It is telling that the respondent’s acreage kept changing. The respondent obtained title through a succession process and the grant reflects 0.03 Ha. Does that override the fact that the respondent purchased 0.01 Ha and is entitled to that specific portion? I do not think so. As what was sold was 0.01Ha, it is my finding that the respondent’s title is irregular and unlawful and ought to be cancelled. However, as no fraud or wrongdoing was 20

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proved as against the respondent, the 1 st respondent is entitled to a title with the correct acreage. 22. In the premises, I find and hold that the trial court erred in upholding a title that reflected double the size of the land purchased. For that reason, I find and hold that this appeal is merited and the same is hereby allowed. I therefore set aside the judgment of the lower court dated 19th May 2022 and substitute it with an order allowing the appellant’s claim as follows; a) A declaration is hereby made that the 1 st respondent purchased from the appellant herein land measuring 10 feet by 100 feet which is 0.01 Ha and not 0.02 Ha. b) An order is hereby issued that the title deed for parcel No. Marama/Inaya/1221 held by the 1 st respondent is hereby cancelled. The 1 st respondent is ordered within 60 days of this judgment to surrender to the Land Registrar, Kakamega County, the original title deed in respect of parcel No. Marama/Inaya/1221 for cancellation. The Land Registrar is directed to cancel the same and subsequently issue a new title deed to the 1st respondent in respect of the 21

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said title, reflecting the correct acreage thereof as being 0.01 Ha at the 1st respondent’s cost. 23. Regarding costs, section 27 of the Civil Procedure Act, provide those costs follow the event and are awarded at the court’s discretion. In this case, I take the position that in view of the fact that the appellant voluntarily executed transfer documents in this matter and the 1 st respondent having noted the discrepancy was unwilling to have the title corrected, I order that each party shall bear its own costs of the appeal and the costs in the court below. 24. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN MICROSOFT COURT/VIRTUALLY TEAMS VIDEO THROUGH CONFERENCING PLATFORM THIS 23RD DAY OF SEPEMBER 2026 A. NYUKURI JUDGE In the presence of; Mr. Siwolo holding brief for Mr. Odongo for the appellant 22

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1st respondent in person No appearance for the 2nd and 3rd defendants Court Assistant- Delphine 23

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