Yaska Petroleum Limited v Sureshchandra Vallabhdas Somaia, Kisumu County Land Registrar, Dickson Odingo Chiro & Jyoti Jigish

Appellant’s Notice of Motion application dated 29th November 2023. By the said application, the Appellant had sought, inter alia, the setting aside of ex parte orders issued by the trial court on 22nd June 2023 pursuant to which the Appellant’s title to the suit property had been cancelled, and the restoration of the register to the position obtaining prior to the said orders. 2. The dispute revolves around all that parcel of land known as Kisumu/Korando/2390 measuring approximately 0.7 hectares (hereinafter referred to as “the suit property”). The Appellant holds a certificate of title issued on 26th November 2012 and contends that it purchased the suit property from the 3rd Respondent and has been its registered proprietor since then. 3. The suit property has been the subject of protracted and multiple proceedings before various courts and it is necessary to set out the said proceedings, albeit briefly, in order to place the present appeal in its proper context. 4. The genesis of the competing claims may be traced to Kisumu East District Land Disputes Tribunal Case No. 51 of 2008 which was instituted by one Jacob Adero Obiero JUDGMENT ELCA NO. E026 OF 2024 2

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(deceased). The award of the Tribunal was adopted in Kisumu CMCC No. 37 of 2011. Following the demise of the said Jacob Adero Obiero, the 3rd Respondent, who presented himself as his son, obtained letters of administration in Succession Cause No. 357 of 2011 and procured the registration of the suit property in his name on 10th August 2012. The 3rd Respondent thereafter sold and transferred the suit property to the Appellant, which transactions are reflected as entries number 8 to 11 on the green card, culminating in the issuance of the title to the Appellant on 26th November 2012. 5. Subsequently, the 4th Respondent instituted Winam SPMELC No. 31 of 2018: Jyoti Jigish v Dickson Odingo Chiro, Yaska Petroleum Limited and the District Land Registrar claiming ownership of the suit property on the strength of a purchase from one Gladys Atieno Otieno. The Appellant herein was the 2nd Defendant in the said suit. Vide the judgment delivered on 16th March 2020 by Hon. H.M. Nyaberi (SPM), the 4th Respondent’s suit was dismissed with costs and the counterclaim by the 1st and 2nd Defendants therein (the 3rd Respondent and the JUDGMENT ELCA NO. E026 OF 2024 3

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Appellant herein respectively) was upheld. The court declared, inter alia, that the purported transfer of the suit property to the 4th Respondent was null and void ab initio and issued a permanent injunction restraining any interference with the quiet ownership and possession of the suit property by the defendants therein. 6. Aggrieved by the said judgment, the 4th Respondent filed Kisumu ELC Misc. Application No. 002 of 2021 seeking leave to appeal out of time. The said application was dismissed with costs by Hon. Justice S. Okong’o vide the ruling delivered on 19th June 2023, thereby bringing that litigation to an end. 7. In the meantime, the 3rd Respondent had been charged in Kisumu Chief Magistrate’s Court Criminal Case No. 264 of 2019: Republic v Dickson Odingo Chiro with the offence of obtaining registration by false pretences contrary to Section 320 of the Penal Code and two counts of false swearing contrary to Section 114 of the Penal Code. The 1st Respondent was the complainant in the said criminal case. Vide the judgment delivered on 26th April 2023, the trial court (Hon. K. Cheruiyot, SPM) convicted the 3rd JUDGMENT ELCA NO. E026 OF 2024 4

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Respondent on all three counts upon findings that he had misrepresented himself as the son of the late Jacob Adero Obiero and thereby procured the registration of the suit property in his name, and that the grant issued to him in Succession Cause No. 357 of 2011 had been revoked on 30th November 2016. The court also observed in the said judgment that the complainant was the registered owner of the suit property. The 3rd Respondent was sentenced to fines with default custodial terms. 8. Hot on the heels of the said conviction, the 1st Respondent filed Misc. ELC Application No. E006 of 2023 before the Chief Magistrate’s Court at Kisumu vide a Notice of Motion dated 21st June 2023 expressed to be brought under Sections 73 and 75 of the Land Registration Act among other provisions. Notably, the said application was instituted against the 3rd Respondent herein and the Kisumu County Land Registrar only. The Appellant, notwithstanding that it was at the time the registered proprietor of the suit property, was neither joined as a party nor served with the said application. The 1st Respondent sought orders for the rectification of the green JUDGMENT ELCA NO. E026 OF 2024 5

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card in respect of the suit property by the cancellation of entries number 2 to 11, the cancellation of all title deeds issued in respect of the suit property, and the issuance of a title deed to the 1st Respondent. The application was premised principally on the findings made in Criminal Case No. 264 of 2019. 9. The application dated 21st June 2023 was heard ex parte and on 22nd June 2023 the trial court granted the orders sought. Pursuant thereto, the entries on the green card including those reflecting the Appellant’s proprietorship were cancelled, the register was reverted to the 1st Respondent and a title was subsequently issued in his favour by the 2nd Respondent. It was further deponed that the 1st Respondent thereafter took possession of the suit property and commenced construction thereon. 10. The Appellant averred that it only became aware of the cancellation of its title and of the said proceedings on 28th November 2023 when its principal shareholder and director was informed that there were persons on the suit property. The Appellant thereupon moved with speed and filed the Notice of Motion dated 29th November 2023 JUDGMENT ELCA NO. E026 OF 2024 6

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seeking, inter alia: a temporary injunction restraining the Respondents from interfering with the suit property; the discharge and/or setting aside of the orders of 22nd June 2023 in their entirety; the cancellation of the title issued to the 1st Respondent pursuant thereto; and the restoration of the entries on the green card to the position obtaining prior to 22nd June 2023 reflecting the Appellant’s proprietorship. The application was supported by the affidavit of Ahmed Yasin Abdullahi, the Appellant’s director, sworn on 29th November 2023 to which were annexed, inter alia, copies of the Appellant’s certificate of title, the green card, the judgment in Winam SPMELC No. 31 of 2018 and the ruling in Kisumu ELC Misc. Application No. 002 of 2021. 11. The application was opposed by the 1st Respondent vide the replying affidavit sworn by Sanjay Sureshchandra Somaia. The 1st Respondent admitted that the application dated 21st June 2023 was heard ex parte without any subsequent order as to service or inter partes hearing. He deponed that the 3rd Respondent had been convicted in Criminal Case No. 264 of 2019, that a title procured by JUDGMENT ELCA NO. E026 OF 2024 7

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fraud could not confer a good title upon the Appellant, that the register had since been rectified and the ownership of the suit property reverted to the original owner, and that the application had been overtaken by events and ought to be dismissed with costs. 12. Vide the impugned ruling delivered on 9th May 2024, the trial court dismissed the Appellant’s application with costs. The trial court took the view that in light of the findings in Criminal Case No. 264 of 2019 to the effect that the 3rd Respondent had fraudulently obtained registration of the suit property in his name, the 3rd Respondent had no valid title to pass to the Appellant, and that the orders issued on 22nd June 2023 were therefore “in order and support the true position regarding ownership of the suit property”. The trial court concluded that the application dated 29th November 2023 lacked merit and dismissed the same with costs to the respondents thereto. The Appeal 13. Aggrieved by the said ruling, the Appellant preferred the present appeal vide the Memorandum of Appeal dated JUDGMENT ELCA NO. E026 OF 2024 8

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29th November 2024 raising the following grounds of appeal: i. The learned Magistrate erred in law and fact when he held that the Appellant’s application dated 29th November 2023 lacked merit. ii. The learned Magistrate erred in law and fact when he failed to take cognizance of the judgment issued in Winam SPMELC No. 31 of 2018: Jyoti Jigish v Dickson Odingo Ochiro & 2 Others. iii. The learned Magistrate erred in law and fact when he failed to recognize that there was an existing judgment in Winam SPMELC No. 31 of 2018 and orders thereto which were yet to be varied and/or set aside by a court of competent jurisdiction. iv. The learned Magistrate erred in law and fact when he failed to recognize that the Appellant was a bona fide purchaser for value of land parcel number Kisumu/Korando/2390. JUDGMENT ELCA NO. E026 OF 2024 9

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v. The learned Magistrate erred in law and fact in finding that the Appellant’s possession of the subject parcel of land was not continuous. 14. The Appellant prayed that the appeal be allowed; that the entire ruling of Hon. K. Cheruiyot (SPM) delivered on 9th May 2024 be set aside; that the orders made on 22nd June 2023 be discharged and/or set aside in their entirety; that the entries in the green card for the suit property be cancelled save for those of the Appellant and be reverted to the position obtaining prior to 22nd June 2023 reflecting the Appellant’s ownership; that a declaration do issue that the Appellant is the bona fide purchaser for value and the legal and beneficial owner of the suit property; and that the costs of the appeal be awarded to the Appellant. Submissions 15. The appeal was canvassed by way of written submissions. The Appellant filed its written submissions dated 15th July 2026 through the firm of CSA Advocates LLP. The Respondents did not file any written submissions in respect of the appeal, notwithstanding that they were each accorded an opportunity to do so. The absence of JUDGMENT ELCA NO. E026 OF 2024 10

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submissions on the part of the Respondents does not, however, relieve this court of its duty to consider the appeal on its merits, and I have accordingly proceeded to determine the appeal on the basis of the record of appeal, the grounds of appeal and the submissions filed by the Appellant. 16. Counsel for the Appellant identified five issues for determination, namely: whether the Hon. Magistrate erred in cancelling the title of the Appellant; whether the Hon. Magistrate erred in failing to consider the previous proceedings; whether the Hon. Magistrate erred in not cancelling the title issued to the 1st Respondent by the 2nd Respondent; whether this court should overturn the ruling of the trial court; and who should bear the costs of the appeal. 17. On the first issue, counsel submitted that it was not in dispute that the proceedings culminating in the cancellation of the Appellant’s title were conducted in the absence of the Appellant, which was neither joined as a party nor afforded an opportunity to be heard, notwithstanding that the 1st Respondent was fully aware JUDGMENT ELCA NO. E026 OF 2024 11

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of the Appellant’s registered interest in the suit property. Counsel submitted that it is a fundamental principle of law that proceedings likely to affect the rights of a party must be conducted with the participation of that party, and that the failure to accord the Appellant an opportunity to be heard before orders adversely affecting its proprietary rights were made constituted a violation of the rules of natural justice and the constitutional guarantee of a fair hearing. Reliance was placed on the case of Bandi v Dzomo & 76 Others (Civil Appeal 16 of 2020) [2022] KECA 584 (KLR). 18. On the second issue, counsel submitted that it is contrary to the principles of orderly judicial administration and the doctrines of res judicata and finality for a court of concurrent jurisdiction to reopen, reconsider or effectively overturn matters conclusively determined by another court of competent and concurrent jurisdiction. Counsel relied on the case of Bellevue Development Company Ltd v Francis Gikonyo & 7 Others [2018] eKLR for the proposition that judges of concurrent jurisdiction do not possess supervisory jurisdiction over each other. Counsel JUDGMENT ELCA NO. E026 OF 2024 12

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further invoked the functus officio doctrine as expounded in Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR, and submitted that the trial court erred in treating the findings in Criminal Case No. 264 of 2019 as conclusive on the issue of ownership of the suit property, the criminal court having had no jurisdiction to hear and finally determine questions relating to the ownership of or title to land. 19. On the third issue, counsel submitted that the title issued to the 1st Respondent was wholly founded upon the impugned ex parte orders and was therefore legally unsustainable. Counsel cited the cases of Hebert L. Martin & 2 Others v Margaret J. Kamar & 5 Others [2016] eKLR and Munyu Maina v Hiram Gathiha Maina, Civil Appeal No. 239 of 2009 on the requirement that where competing titles exist, the court must investigate the root of each title, and submitted that the trial court dismissed the Appellant’s application without undertaking the necessary inquiry into the validity and root of the competing titles. On costs, counsel relied JUDGMENT ELCA NO. E026 OF 2024 13

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on Section 27 of the Civil Procedure Act and the case of Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others, SC Petition No. 4 of 2012; [2014] eKLR and urged that costs follow the event. Analysis and determination 20. This being a first appeal, this court is under a duty to reevaluate, re-assess and re-analyse the material that was placed before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the parties. This duty was aptly stated in the celebrated case of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. 21. Further, the decision under challenge was made in the exercise of the trial court’s discretion upon an application to set aside ex parte orders. The circumstances under which an appellate court may interfere with the exercise of discretion by a trial court were settled in Mbogo & Another v Shah [1968] EA 93 where it was held that an appellate court will interfere where the trial court misdirected itself in law, misapprehended the facts, took JUDGMENT ELCA NO. E026 OF 2024 14

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into account considerations of which it ought not to have taken account, failed to take into account considerations of which it ought to have taken account, or where its decision, albeit a discretionary one, is plainly wrong. 22. I have carefully considered the entire record of appeal, the grounds of appeal and the submissions filed. In my view, the following issues arise for determination in this appeal: i. Whether the orders issued on 22nd June 2023 were made in violation of the Appellant’s right to be heard; ii. Whether the trial court erred in relying on the findings in Criminal Case No. 264 of 2019 and in disregarding the previous civil proceedings relating to the suit property; iii. Whether the trial dismissing the dated November 29th court Appellant’s 2023 erred in application and what orders should issue; and iv. Who should bear the costs of the appeal. JUDGMENT ELCA NO. E026 OF 2024 15

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Whether the orders issued on 22nd June 2023 were made in violation of the Appellant’s right to be heard 23. The following facts are common ground on the record. First, as at 21st June 2023 when the 1st Respondent filed Misc. ELC Application No. E006 of 2023, the Appellant was the registered proprietor of the suit property, having held a certificate of title since 26th November 2012. Secondly, the Appellant was not made a party to the said application, which was instituted against the 3rd Respondent and the 2nd Respondent only. Thirdly, the application was heard ex parte and, by the 1st Respondent’s own admission in the replying affidavit filed before the trial court, there was no subsequent order for service or for an inter partes hearing. Fourthly, the orders of 22nd June 2023 directly cancelled the entries on the register reflecting the Appellant’s proprietorship and resulted in the cancellation of the Appellant’s title and the issuance of a title to the 1st Respondent. 24. It is also evident from the record that the 1st Respondent was at all material times aware of the Appellant’s JUDGMENT ELCA NO. E026 OF 2024 16

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registered interest in the suit property. The 1st Respondent was the complainant in Criminal Case No. 264 of 2019 in which the evidence, including that of the investigating officer, disclosed that the suit property was registered in the name of the Appellant. Indeed, the very green card exhibited in the application dated 21st June 2023 bore the entries reflecting the Appellant’s proprietorship. The 1st Respondent nevertheless elected not to join or serve the Appellant. 25. The right to a fair hearing is guaranteed under Article 50(1) of the Constitution which provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. The audi alteram partem principle, that no person shall be condemned unheard, is one of the twin pillars of natural justice and has long been recognized as a cornerstone of our legal system. In Mbaki & Others v Macharia & Another [2005] 2 EA 206 , the Court of Appeal stated that the right to be heard is a valued right and it would offend all notions of justice if the JUDGMENT ELCA NO. E026 OF 2024 17

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rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard. 26. Similarly, in Onyango Oloo v Attorney General [19861989] EA 456, the Court of Appeal held that a decision arrived at in violation of the rules of natural justice is invalid, and that denial of the right to be heard renders any consequent impeccable it decision might null and void however otherwise be. The principles governing the setting aside of ex parte orders and judgments were further restated by the Court of Appeal in James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR, where a distinction was drawn between a regular and an irregular ex parte judgment; where the judgment or order is irregular, having been obtained without due process such as service upon the affected party, the same is liable to be set aside ex debito justitiae, as a matter of right, and the court does not even venture into considerations of the merits of the intended defence. 27. The proceedings before the trial court sought and obtained nothing JUDGMENT ELCA NO. E026 OF 2024 less than the destruction of the 18

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Appellant’s registered title. Section 80 of the Land Registration Act, under which rectification of the register on account of fraud or mistake may be ordered, is instructive. Subsection (2) thereof provides that the register shall not be rectified to affect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by their act, neglect or default. A determination of such matters self-evidently could not be made behind the back of the very proprietor whose title was sought to be impeached, and without according that proprietor an opportunity to defend its title. 28. To compound matters, the application dated 21st June 2023 was presented and determined ex parte without disclosure to the trial court of the judgment in Winam SPMELC No. 31 of 2018 and the ruling in Kisumu ELC Misc. Application No. 002 of 2021, both of which directly concerned the suit property and the chain of title through JUDGMENT ELCA NO. E026 OF 2024 19

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which the Appellant claimed. A party who approaches the court ex parte is under a duty of utmost candour and full and frank disclosure of all material facts, including those adverse to its case. The non-disclosure of the said decisions was, in my view, material, and the orders obtained in those circumstances were on that account also amenable to being set aside. 29. It follows, and I so find, that the orders of 22nd June 2023, insofar as they cancelled the entries reflecting the Appellant’s proprietorship and divested the Appellant of its registered title without the Appellant having been joined, served or heard, were irregular and were made in flagrant violation of the Appellant’s constitutional right to a fair hearing and the rules of natural justice. Such orders were, as against the Appellant, a nullity and were liable to be set aside ex debito justitiae. The first issue is accordingly answered in the affirmative. Whether the trial court erred in relying on the findings in Criminal Case No. 264 of 2019 and in disregarding the previous civil proceedings JUDGMENT ELCA NO. E026 OF 2024 20

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30. A reading of the impugned ruling reveals that the trial court’s decision rested almost entirely on the findings made in Criminal Case No. 264 of 2019. The trial court reasoned that since the criminal court had found that the 3rd Respondent fraudulently obtained registration of the suit property in his name, the 3rd Respondent had no valid title to pass to the Appellant, and that the orders of 22nd June 2023 accordingly reflected the true position regarding ownership of the suit property. 31. With respect, that approach was erroneous in a number of ways. First, the jurisdiction of the criminal court in Criminal Case No. 264 of 2019 was confined to determining the criminal culpability of the 3rd Respondent on the charges preferred against him. The criminal court had no jurisdiction to hear and conclusively determine questions of ownership of or title to land, which questions are by dint of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, as read with the applicable provisions on the pecuniary and territorial jurisdiction of subordinate courts, reserved for determination in properly constituted civil proceedings. JUDGMENT ELCA NO. E026 OF 2024 21

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Any observations made by the criminal court on the ownership of the suit property were incidental to the criminal charge and could not amount to a conclusive determination of proprietary rights binding upon the Appellant. 32. Secondly, the standard and burden of proof, the parties, and the issues in the criminal case were materially different. The Appellant was not the accused person in the criminal case and no charge was preferred against it; neither was any finding made that the Appellant had knowledge of, or participated in, the fraud attributed to the 3rd Respondent. A conviction of a vendor for offences relating to the acquisition of his own registration does not, without more, dispose of the title of a subsequent registered proprietor. Under Section 26(1) of the Land Registration Act, the certificate of title held by the Appellant was prima facie evidence of proprietorship, and the same could only be impeached upon proof, in civil proceedings to which the Appellant was a party, of fraud or misrepresentation to which the Appellant was shown to be a party, or upon proof that the title was acquired JUDGMENT ELCA NO. E026 OF 2024 22

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illegally, unprocedurally or through a corrupt scheme. As was held in the cases of Munyu Maina v Hiram Gathiha Maina (supra) and Hebert L. Martin & 2 Others v Margaret J. Kamar & 5 Others (supra), cited by the Appellant, an inquiry into the root and validity of competing titles is required, and such an inquiry can only be undertaken in a properly constituted suit in which all affected parties participate and evidence is tested. No such inquiry was undertaken by the trial court. 33. Thirdly, the effect of the orders of 22nd June 2023 and of the impugned ruling was to reopen and effectively reverse, in a miscellaneous application, matters touching on the same suit property and the same chain of title which had been the subject of the judgment in Winam SPMELC No. 31 of 2018 and the ruling in Kisumu ELC Misc. Application No. 002 of 2021. In the said judgment, the counterclaim of the 3rd Respondent and the Appellant had been upheld and a permanent injunction issued protecting their possession of the suit property. Whereas the 1st Respondent was not a party to those proceedings and the strict requirements of Section 7 of the Civil Procedure Act JUDGMENT ELCA NO. E026 OF 2024 23

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may therefore be open to debate, the subsisting decisions of courts of competent jurisdiction directly concerning the suit property could not simply be ignored or overridden by a court of concurrent jurisdiction in a summary and ex parte manner. As was held in Bellevue Development Company Ltd v Francis Gikonyo & 7 Others (supra) , courts of concurrent jurisdiction do not possess supervisory jurisdiction over each other. If the 1st Respondent considered that he had a claim to the suit property notwithstanding those decisions, the avenue open to him was to institute a properly constituted suit in which all persons with a registered or claimed interest, including the Appellant, would be joined and heard, and in which the competing roots of title would be investigated in accordance with the law. 34. Fourthly, and relatedly, the procedure adopted by the 1st Respondent was itself incapable of sustaining the orders granted. The cancellation of a registered title on account of fraud is a serious matter involving contested questions of fact which must be specifically pleaded and strictly proved. Such questions cannot be determined summarily JUDGMENT ELCA NO. E026 OF 2024 24

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in a miscellaneous cause commenced by way of a Notice of Motion, heard ex parte on affidavit evidence, in the absence of the registered proprietor. The second issue is therefore also answered in the affirmative. Whether the trial court erred in dismissing the Appellant’s application dated 29th November 2023 and what orders should issue 35. The gravamen of the Appellant’s application dated 29th November 2023 was that its title had been cancelled ex parte, in proceedings to which it was not a party and of which it had no notice, and in disregard of subsisting decisions of competent courts. Those complaints went to the root of the validity of the orders of 22nd June 2023. In dismissing the application, the trial court did not address the complaint of denial of a hearing at all; instead, the trial court proceeded to affirm the correctness of the ex parte orders on the merits by reference to the findings in the criminal case. In doing so, the trial court misdirected itself in law, failed to take into account considerations it ought to have taken into account, and arrived at a decision that was plainly wrong. This court is therefore entitled, on the JUDGMENT ELCA NO. E026 OF 2024 25

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principles in Mbogo & Another v Shah (supra), to interfere with the exercise of the trial court’s discretion. 36. Once it is found, as I have found, that the orders of 22nd June 2023 were a nullity as against the Appellant, everything founded upon them must fall with them. The title issued to the 1st Respondent by the 2nd Respondent flowed entirely from, and was wholly dependent upon, the said orders. As Lord Denning famously stated in Macfoy v United Africa Co. Ltd [1962] AC 152 , if an act is void, then it is in law a nullity; it is not only bad, but incurably bad, and every proceeding which is founded on it is also bad and incurably bad; you cannot put something on nothing and expect it to stay there. The consequential orders of cancellation and restoration of the register must therefore follow. 37. I must, however, sound a note of clarity on the reach of this judgment. The question of the ownership of the suit property as between the 1st Respondent, who claims as an original registered proprietor under entry number 1 of the register and alleges that the subsequent entries were procured by fraud, and the Appellant, which claims as a JUDGMENT ELCA NO. E026 OF 2024 26

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purchaser for value from the 3rd Respondent, has never been tried in any properly constituted civil proceedings to which both of them were parties. That question does not fall for determination in this appeal, which is concerned with the regularity of the proceedings and orders of the trial court, and nothing in this judgment should be construed as a determination of that question either way. For that reason, whereas the appeal succeeds, I decline, at this stage, to grant the declaration sought that the Appellant is the bona fide purchaser for value and the legal and beneficial owner of the suit property. The parties remain at liberty to have the question of ownership determined in a properly constituted suit before a court of competent jurisdiction, in which all interested parties are joined and the competing roots of title are investigated in accordance with the principles in Munyu Maina v Hiram Gathiha Maina (supra). 38. Before concluding, I echo the observation made by counsel for the Appellant on the interface between parallel criminal and civil proceedings touching on the same subject matter. Where a criminal case involving a civil JUDGMENT ELCA NO. E026 OF 2024 27

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subject is prosecuted alongside or in place of a civil claim, courts must remain astute to the limits of their respective mandates. Criminal courts should refrain from making determinations or framing orders that resolve questions of ownership of property, which questions are reserved for civil proceedings, as doing so breeds jurisdictional conflict, uncertainty and the risk of abuse of the court process, as the history of this matter amply demonstrates. Who should bear the costs of the appeal 39. Section 27 of the Civil Procedure Act provides that costs follow the event unless the court, for good reason, orders otherwise: see Jasbir Tarlochan Singh Rai Singh Rai & Others 4 & 3 Others (supra) . v The Appellant has succeeded in the appeal. It is the 1st Respondent who instituted and prosecuted the ex parte proceedings that occasioned this appeal and who opposed the Appellant’s application before the trial court. The 2nd Respondent is a statutory office holder who acted pursuant to court orders, while the 3rd and 4th Respondents did not participate in the proceedings before the trial court on the impugned application or in this JUDGMENT ELCA NO. E026 OF 2024 28

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appeal. In the circumstances, the costs of the appeal and of the application before the trial court shall be borne by the 1st Respondent. Final orders 40. In the end, the appeal dated 29th November 2024 is merited and the same is allowed. Consequently, this court makes the following orders: i. The Ruling and Orders of Hon. K. Cheruiyot (SPM) delivered on 9th May 2024 in Kisumu Chief Magistrate’s Court Misc. ELC Application No. E006 of 2023 be and are hereby set aside and substituted with an order allowing the Appellant’s Notice of Motion application dated 29th November 2023. ii. The ex parte orders issued on 22nd June 2023 in Kisumu Chief Magistrate’s Court Misc. ELC Application No. E006 of 2023 be and are hereby set aside in their entirety. JUDGMENT ELCA NO. E026 OF 2024 29

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iii. Any title deed issued to the 1st Respondent in respect of land parcel number Kisumu/Korando/2390 pursuant to the orders of 22nd June 2023 be and is hereby cancelled, and the 2nd Respondent shall rectify the register of the said parcel by restoring the entries thereon to the position obtaining as at 21st June 2023, reflecting the Appellant as the registered proprietor. iv. The costs of the appeal and of the application dated 29th November 2023 before the trial court are awarded to the Appellant and shall be borne by the 1st Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 1ST DAY OF OCTOBER 2026. E. K. WABWOTO JUDGE In the presence of:Mr. Aira h/b for Mr. Madowo for the Appellant N/A for the 1st Respondent JUDGMENT ELCA NO. E026 OF 2024 30

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N/A for the 2nd Respondent N/A for the 3rd Respondent N/A for the 4th Respondent Court Assistant:- Joanne Omondi. JUDGMENT ELCA NO. E026 OF 2024 31

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