David Osundwa (Suing as the administrator of the estate of Namani Ngeto Opwora) v Mohammed Ongiyo Okumu & Dalton Adego Mweresa

herein) had purchased two acres of land from the deceased plaintiff and had produced the relevant agreements, as well as title and transfer documents in support of his claim. The court further held that the appellant had not proved the alleged fraud in the transfer of land parcel No. South Wanga/Buchifi/2391 to the 1st respondent, nor in the subsequent sale to the 2 nd respondent. Relying on the surveyor’s report, the court found that the suit land measured two acres and that the alleged boundary did not divide the land into two equal portions as contended by the appellant. Consequently, the court held that the appellant had failed to prove his case on a balance of probabilities, dismissed the suit and awarded costs to the respondents. Background 2. The suit before the trial court was commenced by the plaintiff, Namani Ngeto Opwora by way of a plaint dated 26th March 2018. Following his demise, he was later substituted in the suit by David Osundwa. The plaintiff pleaded that he was the registered owner of Land Parcel No. South Wanga/Buchifi/2391, measuring approximately 2

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0.8 Ha (2 acres), being his beneficial share from Land Parcel No. South Wanga/Buchifi/773. That on 29th February 2006, he sold a portion measuring 1 acre to the 1st defendant at an agreed consideration of Kshs. 140,000/-, to which he was paid a deposit of Kshs. 90,000/-. 3. That by virtue of being elderly, illiterate, unwell and without children, Namani Ngeto released his original title deed and identity card to the 1st defendant for purposes of facilitating subdivision and transfer of the one acre sold. That the 1st defendant took possession of the purchased one acre, leaving the remaining one acre in the plaintiff’s possession, but thereafter became evasive, failed to pay the balance of the purchase price and declined to surrender the plaintiff’s title for the remainder of the land. 4. The plaintiff pleaded that in January 2018, he discovered that the 1st defendant had fraudulently caused the whole of land parcel No. South Wanga/Buchifi/2391 to be transferred to himself. The particulars of fraud pleaded included transferring the land without the mandatory 3

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consent of the Land Control Board, colluding with advocates to indicate that two acres had been sold instead of one acre, transferring the entire land without full consideration, taking advantage of the plaintiff’s illiteracy, age and health condition, and allegedly forging the plaintiff’s thumbprint. 5. That he reported the matter at Otiato Administration Police Camp and at Mumias Police Station and that the 1 st defendant had, with intent to defeat justice, sold the suit land to the 2nd defendant vide an agreement dated 14 th March 2018. He contended that the 2nd defendant took possession of the whole land, destroyed the boundary separating the two acres, alienated the land and fenced off the entire parcel. He therefore sought, inter alia, a declaration that the transfer of land parcel No. South Wanga/Buchifi/2391 to the 1st defendant was fraudulent, null and void; nullification of the said transfer and reversion of the title to the plaintiff’s name; a further declaration that the sale agreement between the 1 st and 2nd defendants was null and void; and costs of the suit. 4

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6. In response to the plaint, the 1st defendant filed a statement of defence dated 5th April 2018, denying the plaintiff’s claim. He pleaded that he lawfully purchased a portion of land from the plaintiff, measuring two acres, and that the plaintiff voluntarily executed all the documents leading to the registration of the said portion in the 1st defendant’s name. That by an agreement dated 29th August 2016, he paid the plaintiff Kshs. 90,000/-, leaving a balance of Kshs. 50,000/- out of the agreed purchase price of Kshs. 140,000/-, which balance was to be paid upon completion of the transfer process and issuance of the title deed. That he took possession and used the land peacefully with the plaintiff’s consent, and that in 2014, the plaintiff facilitated the transactions which led to the issuance of title for land parcel No. South Wanga/Buchifi/2391 in his name. That after obtaining the title through the Land Control Board process, he paid the plaintiff the balance of Kshs. 50,000/on 2nd March 2018, which payment was acknowledged in an agreement signed before the Senior Chief of Buchifi 5

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Location. He stated that the suit was without merit and prayed that it be dismissed with costs. 7. The 2nd defendant similarly filed a statement of defence denying the plaintiff’s claim and putting him to strict proof. He pleaded that the plaintiff was a stranger to him, as he did not purchase the suit land from the plaintiff. The 2nd defendant averred that before entering into the sale agreement dated 14th March 2018, he conducted an official search in respect of land parcel No. South Wanga/Buchifi/2391 and confirmed that the same was registered in the name of the 1st defendant, Mohammed Ongiyo Okumu. That after executing the sale agreement and paying the purchase price to the 1 st defendant, he was given possession of the land and commenced cultivation thereon, upon which the plaintiff later interfered with his workmen while they were working on the land. He prayed that the suit against him be dismissed with costs. 8. The suit proceeded to through viva voce evidence. Both 6 hearing the plaintiff and

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defendant called four witnesses each in support of their cases. Plaintiff’s evidence 1. PW1 was David Osundwa Makokha, the plaintiff and administrator of the estate of Namani Ngeto Opwora. He testified that land parcel No. South Wanga/Buchifi/2391 emanated from South Wanga/Buchifi /773, and that although the deceased had sold only one acre to the 1 st defendant, the 1st defendant caused the entire parcel measuring two acres to be transferred to himself. PW1 produced several documents in support of the plaintiff’s case, including title and search documents, tribunal proceedings, chief’s letters, transfer documents, application for consent, consent, land sale agreement and the deceased’s death certificate. He testified that the deceased had complained that he had given his identity card and title deed to the 1st defendant for purposes of transferring the portion sold but later discovered that the 7

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entire parcel had been transferred. He stated that the deceased and the 1st defendant had each been using one acre, and that the deceased remained in use of his portion before his demise. 2. On cross-examination, PW1 stated that he was not present when the sale agreement was made and that he only saw the agreement later. He acknowledged that the agreement between the deceased and the 1st defendant referred to two acres, that the parcel itself measured two acres, and that the suit was filed in 2018, several years after the agreement. He also stated that he was not seeking to personally take the land, but wanted the deceased’s portion to revert to the family of Opwora. He maintained, however, that the deceased intended to retain one acre and that the 1st defendant was only entitled to one acre. 3. PW2 was Ludovic Wambutsi Okumu. He adopted his witness statement dated 29th January 2020 as his evidence in chief and stated that he knew the deceased, Namani Ngeto Opwora, from childhood. That he heard that the deceased had sold only one acre of land to the 1 st 8

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defendant and that, before the dispute arose, the deceased and the 1st defendant were each cultivating their respective one-acre portions. That when the 1 st defendant later sold the land to the 2 nd defendant, he allegedly showed him two acres instead of the one acre that he had purchased. He testified that he saw surveyors measuring the land in the absence of the administrator and neighbors, and that when he inquired, he was informed that they had been directed by the chief. That, at the material time, the deceased was alone, unwell and without his wife, and that the family later moved him from the land to his original home so that they could take care of him. 4. On cross-examination, PW2 stated that his evidence that the deceased sold one acre to the 1st defendant was based on what he had heard, as he was not present when the sale took place and that his statement did not indicate when or from whom he received that information. That he did not know when the land was sold since he had lived in Nairobi between 1973 and 2005 and neither was he a witness to the sale between the defendants herein. That 9

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he knew PW1 and that he was unaware of any case between PW1’s father, Emmanuel Makokha and the deceased, Namani Ngeto. 5. PW3 was Andrew Nambi Makokha. He adopted his witness statement dated 29th January 2020 as his evidence in chief and testified that he knew the deceased, Namani Ngeto Opwora, who was his paternal uncle. That the deceased sold only one acre of land to the 1 st defendant, who took possession of the said portion around the year 2007, while the deceased retained and continued using the remaining one acre until about February 2018. He stated that there existed a boundary between the two portions, marked by trees, some of which were later cut by the 2 nd defendant. That he attended a meeting at the chief’s office concerning the dispute, where it was stated that the 1 st defendant was to retain one acre and pay Kshs. 50,000/- to the deceased who was to retain the other acre. That although he advised that David be involved before any agreement was made, the deceased was later given money. He maintained that the deceased was old, unwell and not in a 10

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proper state of mind to understand the transaction, and that the document he signed at the chief’s office was merely to acknowledge that he had received the money on behalf of the deceased, and not a sale agreement. 6. On cross-examination, PW3 stated that he was not present when the deceased and the 1st defendant entered into the original land transaction. That the deceased had previously sold two acres to one Mwalimu Raphael, leaving two acres, out of which he sold one acre to the 1 st defendant and retained one acre. That the 1 st defendant used one acre until 2018 when he sold the land to the 2nd defendant, who then began using two acres, prompting the dispute. PW3 stated that the 2 nd defendant was not present at the chief’s office when some agreement was signed and that he was unaware whether PW1 had placed any caution on the land. 7. Pw4 was Monica Bor, from the District Land Registrar’s office. She produced the green card of the suit land which showed that the 1st defendant was the current registered owner, having been registered on 30th April 2014 and stated that the parcel title and documents showing 11

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transfer of ownership from Namani Ngeto to Mohammed Okumu were unavailable. She testified that the parcel measured 0.80 hectares, equivalent to two acres. She further stated that the parcel title and the supporting documents relating to the transfer from Namani Ngeto to Mohammed Okumu were missing from the parcel file, though the title appeared genuine from the register. On cross-examination, she confirmed that such original documents ought to be retained at the Lands office, that the missing documents had been reported to the police, and that it would not be proper to register two acres if the transfer documents showed one acre. That marked the close of the plaintiff’s case. Defence evidence 8. DW1 was Mohammed Ongiyo Okumu, the 1st defendant. He adopted his witness statement dated 8 th August 2018 as his evidence in chief and testified that in 2006, the deceased, Namani Ngeto Opwora, approached him and offered to sell to him two acres of land out of land parcel No. South Wanga/Buchifi/773 at a consideration of Kshs. 140,000/-. He stated that they executed a sale agreement 12

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dated 29th August 2006 before an advocate, whereupon he paid Kshs. 90,000/-, leaving a balance of Kshs. 50,000/-. That he took possession of the two acres after the sale and used the same for farming but it was later discovered that the land was registered in the name of the deceased’s father, Emmanuel Makokha Opwora, and that he assisted the deceased in pursuing proceedings before the Land Disputes Tribunal, which ultimately resulted in the deceased being awarded a portion of the land measuring 5 acres. According to him, the costs he incurred in the tribunal proceedings were orally agreed to offset the outstanding balance of the purchase price. Pursuant to the resultant proceedings, the land was subdivided, and his two-acre portion was transferred to him in April 2014 as land parcel No. South Wanga/Buchifi/2391. That the deceased remained on the land until 2018 and had no wife or children. He stated that he later paid the balance of Kshs. 50,000/- before the chief to avoid further misunderstanding, after which he sold the land to the 2nd defendant in 2018. That there was no boundary dividing the suit parcel into two portions, 13

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and that the deceased had pulled down his houses and moved to another nearby parcel. 9. During cross-examination, DW1 confirmed that he purchased the land in 2006 and that, at the time, the land was not in the deceased’s name. He stated that he assisted the deceased to go before the Land Disputes Tribunal and maintained that the deceased was then of sound mind. That he sold the land to the 2 nd defendant after clearing the balance of Kshs. 50,000/-. 10. DW2 was Dalton Adego Mweresa, the 2nd defendant. He adopted his witness statement dated 8th August 2019 as his evidence in chief. He testified that pursuant to a signed agreement dated 14th March 2018, he bought the suit land, measuring two acres, from the 1st defendant at a consideration of Kshs. 700,000/-. That before purchase, he visited the land, saw a copy of the title deed, conducted an official search and confirmed that the land was registered in the name of the 1st defendant and was free from any encumbrances. That upon payment, they applied for Land Control Board consent, which was granted and the 1st defendant signed the transfer documents, but before he 14

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could obtain title, the present suit arose. That there was no boundary dividing the suit land into two portions and that he purchased the entire two acres as an innocent purchaser for value without notice. 11. On cross-examination, DW2 stated that there was no boundary dividing the land when he purchased it. He acknowledged that an order was later issued barring him and the 1st defendant from using one acre of the suit land reiterated that he attended a special Land Control Board for purposes of transfer of the land from the 1 st defendant to himself, but did not know whether the deceased was notified of the said attendance. 12. DW3 was Edward Oaka Oyagi, an advocate of the High Court. He adopted his witness statement dated 18 th August 2018 as his evidence in chief. He testified that in 2006 he was practising under the firm name of Makokha Oaka & Co. Advocates in Mumias and that the sale agreement dated 29th August 2006 was executed before him. That the parties to the agreement were Namani Ngeto Opwora and Mohammed Okumu, and that the agreement related to the sale of two acres out of land 15

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parcel No. South Wanga/Buchifi/773 at a consideration of Kshs. 140,000/-, out of which Kshs. 90,000- was paid in his presence. 13. On cross-examination, DW3 stated that the agreement was in English, and conceded that he had not expressly stated that he read or interpreted its contents to the parties in Kiswahili before they signed. That the signature appearing on the agreement differed from the one appearing in his usual pleadings. On re-examination, however, he maintained that the parties were aware of the contents of the agreement before signing the same. 14. DW4 was Joshua Julius Adura, the senior chief of Buchifi Location. He adopted his witness statement and testified that on 2nd March 2018, Namani Ngeto Opwora and Mohammed Ongiyo Okumu went to his office accompanied by their witnesses. He stated that they informed him that Namani had earlier sold two acres of land to Mohammed at a consideration of Kshs. 140,000/-, out of which Kshs. 90,000/- had been paid, leaving a balance of Kshs. 50,000/-which Mohammed paid on that day. That the parties had prepared an agreement which 16

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they presented to him for attestation and record purposes. He stated that he retained a copy, endorsed the parties’ copies, signed and affixed his official rubber stamp. 15. On cross-examination, he confirmed that prior to the settlement agreement, Namani had complained of fraud against Mohammed and that he had written a letter to the Land Registrar to enable Namani to place a caution. He also stated that the agreement was not written in his presence, but was brought to him by the parties, who accepted it before him. On re-examination, he clarified that he wrote the letter to the Land Registrar before the settlement agreement was made, and that both parties were before him when he adopted and endorsed the agreement. That marked the close of the defence case. 16. Following a request by Ms. Omar, counsel for the plaintiff, the court conducted a site visit to the suit land on 9th July 2021, in the presence of all parties, and further ordered for the County Surveyor to visit the land and file a report in court regarding the matter. 17

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17. Upon considering the pleadings and the evidence adduced by the parties, the trial court held that the 1 st defendant had demonstrated that he purchased two acres from the deceased plaintiff at a consideration of Kshs. 140,000/-. The trial court further held that the appellant herein had not proved the alleged fraud since no charges were preferred against the 1st defendant. The court also relied on the surveyor’s report, which showed that the suit parcel measured approximately two acres and that the alleged boundary did not divide the land into two equal portions. Consequently, the court found that the appellant had failed to prove his case on a balance of probabilities and dismissed the suit with costs to the respondents. 18. Aggrieved by the trial court’s judgment, the appellant lodged the present appeal vide a memorandum of appeal dated 24th August 2022, citing the following grounds of appeal: a. That the trial magistrate erred in fact and law in failing to find that the sale agreement relied on to acquire title to the suit land was an illegality, null and void. 18

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b. That the trial magistrate erred in fact and law in failing to consider the express evidence of Advocate Oyagi that he did not author the sale agreement. c. That the trial magistrate erred in fact and law in failing to consider the entire evidence in totality but selectively. d. That the trial magistrate erred in law and fact by purporting to testify on behalf of the PW4, the land registrar. e. That the trial magistrate clearly ignored the appellant's submissions in his case analysis. f. That the trial magistrate erred in finding that the 1st respondent was exonerated of fraud for lack of criminal charges when he presented no such transfer documents in court. 19. The appellant sought the following prayers: i. Setting aside of the judgement delivered in MUMIAS SPM ELC NO. 55 of 2018 on in its entirety. ii. A declaration that the transfer of land parcel number SOUTH WANGA/BUCHIFI/2391 to the 1st defendant was fraudulent, null and void and therefore nullification of the transfer of land parcel number SOUTH WANGA/BUCHIFI/2391 to 19

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the 1st defendant MOHAMMED ONGIYO OKUMU and reversion of the entire title to the plaintiff's name NAMANI NGETO OPWORA. iii. Upon such declaration, a further declaration that the sale agreement dated 14/3/2018 between the defendant for entire the 1st and land 2nd parcel number SOUTH WANGA/BUCHIFI/2391 is null and void. iv. 20. Costs of the appeal. The appeal was canvassed by way of written submissions. On record are submissions filed in court by the appellant on 15th November 2023 and submissions dated 16th respondents; both of March which 2026 this filed court by the has duly considered. Appellant’s submissions. 21. Counsel for the appellant submitted that the trial court erred in finding that the 1st respondent lawfully acquired title to the suit property since it was the deceased plaintiff’s case was that he sold only one acre to the 1st respondent, although the agreement dated 29th 20

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August 2006 indicated two acres. That the deceased was elderly, illiterate, unwell and vulnerable, and that the 1 st respondent took advantage of his condition to cause the entire parcel measuring two acres to be transferred to himself. 22. The appellant further submitted that the sale agreement relied upon by the 1st respondent was illegal, null and void. Counsel contended that the agreement was written in English, was not shown to have been read or explained to the deceased, and lacked a verification clause confirming the language in which it was explained to the parties. Further, that Advocate Oyagi, who testified for the defence, admitted that he did not author the agreement and that the signature appearing on the agreement belonged to one Daniel Kombo, a clerk who was never called as a witness. 23. Counsel also faulted the trial court for failing to properly consider the evidence of the Land Registrar, PW4, who testified that the parcel file did not contain the transfer documents used to transfer the suit land from Namani Ngeto to Mohammed Okumu. The appellant 21

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averred that the missing transfer documents material, as they would have shown whether were the deceased signed transfer documents for one acre or two acres. That the absence thereof supported the allegation that the transfer was fraudulent, irregular and effected through a corrupt scheme. 24. The appellant averred that the trial court failed to properly appreciate the effect of the site visit, the County Surveyor’s report proceedings. and Counsel the Land submitted Disputes that Tribunal the surveyor’s report showed that the land had two distinct portions, with approximately 0.8 acres being used by the deceased’s family and 1.16 acres by the 1 st respondent, which, supported the appellant’s case that the 1st respondent had only purchased one acre. He further submitted that in the Land Disputes Tribunal proceedings dated 4th October 2007, the deceased admitted that he had sold only one acre to the 1st respondent. The appellant prayed for the court to allow the appeal, set aside the judgment of the trial court, nullify the transfer 22

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to the 1st respondent and declare the subsequent sale to the 2nd respondent null and void. Respondents’ submissions. 25. The respondents submitted that the trial court did not err in finding that the sale agreement dated 29 th August 2006 was valid since the alleged absence of a verification clause did not render the sale agreement invalid, and that the trial court properly considered the evidence of Advocate Oyagi together with the totality of the evidence on record. They submitted that fraud must be specifically pleaded and strictly proved, and that the appellant had only raised suspicion and unproved allegations. They relied on Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, for the proposition that fraudulent conduct must be distinctly alleged and distinctly proved, and that fraud cannot be inferred from facts. 26. On the evidence of the Land Registrar and the missing transfer documents, the respondents submitted that the absence of some documents from the Lands Registry file did not, by itself, prove fraud. They argued 23

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that the 1st respondent was the registered proprietor of the suit land and that his title was protected under sections 24, 25 and 26 of the Land Registration Act. It was their submission that the burden lay on the appellant to displace that title by proving fraud, misrepresentation, illegality or procedural impropriety, which burden had not been discharged. 27. The respondents submitted that the trial court considered the evidence in its totality, including the sale agreement, the Land Registrar’s evidence, the County Surveyor’s report, the Land Disputes Tribunal proceedings and the evidence of both parties. That the 2 nd respondent purchased the land from the 1st respondent in 2018 after conducting due diligence, paying valuable consideration and obtaining Land Control Board consent, and was therefore entitled to protection as a bona fide purchaser for value without notice. They prayed for this court to dismiss the appeal, uphold the trial court’s judgment, confirm the validity of the 1 st respondent’s title and the subsequent sale agreement dated 14 th March 2018, and award them costs of the appeal. 24

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Analysis and determination 28. The court has carefully considered the appeal, the entire trial court record and the parties’ rival submissions. The role of this court as a first appellate court is to re-evaluate the record 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. 29. The duty of the first appellate court was discussed in the case of Gitobu Imanyara & 2 Others v. Attorney 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 25

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has neither seen nor heard the witnesses and should make due allowance in this respect.” 30. Having considered the grounds of appeal, the key issue that arise for the court’s determination is whether the trial court was right in concluding that the acquisition of title of the suit property by the 1 st respondent was neither fraudulent nor unlawful. 31. 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 purchaser of registration, land upon a or to a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is owner, the absolute subject easements, to and the restrictions indefeasible encumbrances, and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— 26

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(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or (b)Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 32. Therefore, a certificate of title issued upon registration or transfer is the apparent evidence that the person in the title is the absolute and indefeasible proprietor of the land. The title may only be challenged on the grounds of fraud or misrepresentation to which the proprietor is proved to have been a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. 33. In the case of Dina Management Limited v County Government of Mombasa & 5 Others (Petition 8 (010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment), the Supreme court of Kenya held that a title obtained unlawfully cannot confer lawful ownership. 27

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34. It is trite that fraud ought not only be pleaded, but the same must be strictly proved on a standard that is higher than the standard of the balance of probabilities required in ordinary civil cases but slightly lower than the proof of beyond reasonable doubt required in criminal cases. In the case of Kinyanjui Kamau vs George Kamau [2015] eKLR the court stated as follows;…It is trite law that any allegations of fraud must be pleaded and strictly proved. We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the 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; In cases where fraud is alleged, it is not enough to simply infer fraud from the facts. 35. In the instant case, the appellant pleaded that the 1st respondent acted fraudulently because there was no consent from the land control board; colluded with the advocate to indicate two acres when he only purchased one acre and was in possession of two acres and made a 28

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transfer of the entire parcel without payment of the consideration. 36. I have considered the sale agreement produced by the appellant. The same was drawn by Makokha & Company Advocates of Mumias Town. The land sold was parcel No. S. Wanga/Buchifi/773 measuring 2 acres. The agreement was executed by both the vendor and purchaser and each party had two witnesses who attested the execution of the sale agreement. Mr. Edward Oaka Oyagi Advocate was the one who drafted the agreement and confirmed that the appellant indeed sold two acres. PW2 confirmed that the land which the 1st respondent took possession after survey was 2 acres. PW3 confirmed that the 1st respondent purchased 2 acres. He also confirmed payment of Kshs. 50, 000/= being balance of the consideration. Seven people were present during the agreement for the sale of two acres and therefore the allegation that the appellant only sold one acre is not true and is dishonest. 37. In view of the clear and cogent evidence before me, I am persuaded that the appellant sold the suit property 29

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comprising two acres to the 1st respondent and the entire consideration was paid. The appellant having sold the entire two acres, he has no legal or equitable interest in the suit property. The fact that the Land Registrar indicated that the supporting documents in her parcel file were missing did not show any wrongdoing on the part of the 1st respondent. The sale happened in 2006. The appellant was in possession of the sale agreement all his time, yet only filed the case in 2018, that is after 12 years. This court therefore asks itself the question as to who would benefit from the missing documents at the lands registry? Is it the purchaser or the person denying having sold two acres and not having received the entire consideration, when evidence has shown that indeed the entire consideration for the two acres was paid? 38. I therefore find and hold that no fraud or illegality was proved as against the 1st respondent and therefore the trial court was right in concluding that there was no fraud or illegality on the part of the 1st respondent. 39. For the above reasons, I find no justification to interfere with the judgment made by the trial court. 30

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40. In the premises, I find no merit in this appeal, which I hereby dismiss with costs. 41. 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; Ms Omar for the appellant No appearance for the respondents Court Assistant- Delphine 31

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