Bethsheba Bogiti Omao v Julia Kemunto, Gladson Mogire Nyambane, Pamela Kwamboka Omao, Irine Bironga Omao & Damaris Bonareri Omao

any. Efforts by the Court to have the matters amicably settled through mediation and conciliation did not yield any final resolution. 2. Litigation in the cases started on 18 th December 2013 before ELC at Kisii when Kisii ELC No. 496 of 2013 was filed by Bethsheba Bogiti Omao against Henry Magiya Omao and Nelson Ondieki Omao as First and Second Defendants, respectively. Subsequently, Kisii ELC No. 246 of 2014 was filed on 30th June 2014 followed by Kisii ELC No. 81 of 2016 on 30 th March 2016. 3. Kisii ELC No. 246 of 2014 was filed by Bethsheba Bogiti Omao, Dr. Thomas Ombuya Omao Getabu, Evans Lumumba Omao and Beauter Morara Omao as the First to Fourth Plaintiffs, respectively, against Julia Kemunto, Gladson Mogire Nyambane and Nyamira Land Registrar as First to Third Defendants, respectively. On the other hand, Kisii ELC No. 81 of 2016 was filed by Pamela Kwamboka Omao, Julia Kemunto Omao, Irine Bironga Omao and Damaris Bonareri Omao as the First to Fourth Plaintiffs, respectively, against Patiseba Bogiti Omao. 4. Kisii ELC No. 496 of 2013 was consolidated with Kisii ELC No. 246 of 2014 through an order made on 25th May 2017 where the former was made the lead file. Kisii ELC No. 81 of 2016 was added to the consolidation on 11 th October 2017. Later, all the matters were transferred to ELC No. 93 of 2021 (Nyamira) Page 2 of 30 Nyamira ELC on 29 th

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September 2021, whereupon the case number Nyamira ELC No. 93 of 2021 was globally assigned to them. 5. On 19th February 2025, Counsel for the Plaintiff in Kisii ELC No. 496 of 2013 informed the Court that the said matter stood settled following adoption of a mediation settlement agreement on 18th November 2019. The adopted mediation settlement agreement, which was signed by Bethsheba Bogiti Omao, Lumumba Omao, Henry Magiya Omao and Nelson Ondieki Omao, was in the following terms: We the undersigned parties to this action have agreed to settle our dispute on the parcels of land known as MWONGORI SETTLEMENT SCHEME/795/796/801/802 as follows: 1. That the said parcels of land were surveyed and should remain intact as such. 2. That we shall from now work together as a family to promote respect and peace amongst all the family members. 3. That mama Bathseba shall make sure there are enough access roads leading to all the homes of her sons even if it means re-surveying the parcel of land in question especially to Mr. Nelson Ondieki Omao. ELC No. 93 of 2021 (Nyamira) Page 3 of 30

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4. That all the sons should now embark on the process of acquiring title deeds with the support of Mama Bathseba. 5. That we shall sit as a family and handle any unresolved differences at home. 6. The parties proceeded to record a consent on 19 th February 2025 pursuant to which Henry Magiya Omao and Nelson Ondieki Omao were discharged from the consolidated matters. In effect, Kisii ELC No. 496 of 2013 was terminated since all the Defendants in the said case were discharged. Additionally, the claim against Land Registrar in Kisii ELC No. 246 of 2014 was withdrawn with no order on costs on 24th September 2025. 7. Further, the parties further recorded a consent on 24 th September 2025, which was adopted by the Court, as follows: By consent: 1. The matters to proceed before this Court and which are to be constituted upon consolidation as ELC No. 93 of 2021 are Kisii ELC No. 246 of 2014 and Kisii ELC No. 81 of 2016. 2. The claim by the Second Plaintiff in ELC No. 246 of 2014 is abated. 3. The claim by the Third and Fourth Plaintiffs in ELC No. 246 of 2014 as against the First and Second ELC No. 93 of 2021 (Nyamira) Page 4 of 30

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Defendants in ELC No. 246 of 2014 are hereby withdrawn. 4. The First Plaintiff in ELC No. 246 of 2014 to be deemed as the only Plaintiff in that matter. 5. The defence by the First and Second Defendants in ELC No. 246 of 2014 and the Plaint in Kisii ELC No. 81 of 2016 are to be deemed as the defence and counterclaim in respect to ELC No. 93 of 2021 (the consolidated case). 6. Going forward, the parties in the matter are as follows: Bethsheba Bogiti Omao – Plaintiff Julia Kemunto – First Defendant Gladson Mogire Nyambane – Second Defendant Pamela Kwamboka Omao – Third Defendant Irine Bironga Omao – Fourth Defendant Damaris Bonareri Omao – Fifth Defendant. 8. Consequently, the parties are listed in the heading of this judgment as per the consent order. 9. Kisii ELC No. 246 of 2014 was commenced through Plaint dated 30th June 2014. The Plaintiffs averred in the Plaint that Bethsheba Bogiti Omao was the registered owner of the parcel ELC No. 93 of 2021 (Nyamira) Page 5 of 30

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of land known as Mwongori Settlement Scheme/795 (suit property) and that the Defendants in the matter had fraudulently executed transfer documents and obtained title deeds for Mwongori Settlement Scheme/949 and 950 without the Plaintiff’s participation and consent. 10.The Plaintiffs further averred that the Defendants had invaded the suit property. Consequently, they prayed for judgment against the Defendants for: a) An order for revocation illegally/unprocedurally Settlement or cancellation acquired Scheme/948 and titles i.e. Mwongori of the Mwongori Settlement Scheme/949 and restoration of original title Mwongori Settlement Scheme/795 belonging to the Plaintiff. b) A permanent injunction to restrain the Defendants either by themselves, agents, servants and/or agents from trespassing, encroaching onto and/or otherwise interfering with demised properties Mwongori Settlement Scheme/795 (herein referred to as the suit property) and/or any title emanating therefrom. c) An order for eviction against the Defendants, agents and/or servants Settlement from demised property Mwongori Scheme/795 and/or any title emanating therefrom; d) Costs of and incidental to this suit. ELC No. 93 of 2021 (Nyamira) Page 6 of 30

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e) Such other or further relief that this Honourable Court may deem fit and just to grant. 11.Pursuant to the consent of 24 th September 2025, the defence by the First and Second Defendants in ELC No. 246 of 2014 and the Plaint in Kisii ELC No. 81 of 2016 are deemed as the defence and counterclaim in this matter. 12.The First and Second Defendants in ELC No. 246 of 2014 filed Defence dated 8th July 2014. They denied that Bethsheba Bogiti Omao was the registered owner of the suit property and added that the suit property was subdivided into Mwongori Settlement Scheme/949 and Mwongori Settlement Scheme/950 by 23rd January 2014, hence non-existent as of the time of filing of the suit. They further denied the allegations of fraud and invasion and prayed that the suit be dismissed with costs. 13.Kisii ELC No. 81 of 2016 was commenced by the First, and Third to Fifth Defendants herein through Plaint dated 30 th March 2016. They averred that at all material times Bethsheba Bogiti Omao was the registered owner of L.R Mwongori Settlement Scheme/2 which was ancestral land and was subdivided into L.R Mwongori Settlement Scheme/795, 796, 797, 798, 799, 800, 801 and 802 for purposes of transferring to Bethsheba Bogiti Omao’s sons and daughters. 14.They further averred that after the subdivision part of the land was given to the sons while Bethsheba Bogiti Omao retained ELC No. 93 of 2021 (Nyamira) Page 7 of 30

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L.R Mwongori Settlement Scheme/795 to hold in trust for the daughters. That Bethsheba Bogiti Omao further divided L.R Mwongori Settlement Scheme/795 giving rise to L.R Mwongori Settlement Scheme/948 which Bethsheba reserved to be subdivided and transferred to them and L.R Mwongori Settlement Scheme/949. They further averred that Bethsheba had failed to subdivide and transfer L.R Mwongori Settlement Scheme/948 to them. 15.They therefore prayed for judgment against Bethsheba for: i. A declaration that the plaintiffs are entitled to their respective portion of ancestral land out of L.R No. Mwongori Settlement Scheme/948 as any other children of the Defendant. ii. An order compelling the Defendant to subdivide and transfer the respective portions out of L.R No. Mwongori Settlement Scheme/948 to the plaintiffs or on the alternative the Deputy Registrar be mandated to execute the subdivision and subsequent transfer of Mwongori Settlement Scheme/948 in favor of the plaintiffs. iii. Costs of this suit be borne by the Defendant. iv. Any other relief that this court may deem fit to grant. 16.At the hearing, Bethsheba Bogiti Omao testified as PW1 and adopted her witness statement dated 21 st April 2016 which she ELC No. 93 of 2021 (Nyamira) Page 8 of 30

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filed in Kisii ELC No. 81 of 2016. She produced copies of title deed for LR. Number Mwongori Settlement Scheme/795, mutation form for LR. Number Mwongori Settlement Scheme/2, Land Registrar’s Summons dated 21 st March 2014, application for Registration of caution over title Mwongori Settlement Scheme/795 and title deed for East Kitutu/Bonyamondo II/605 as Plaintiff’s Exhibit numbers 1 to 5, respectively. 17.She stated that she had 10 children in total, four daughters and six sons. That in the year 2011, land parcel number Mwongori Settlement Scheme/2 was registered her name and that she later sub-divided it amongst her sons. That she did not allocate any land to her daughters and that Mwongori Settlement Scheme/795 was subdivided by Julia Kemunto to create parcel numbers Mwongori Settlement Scheme/948 and 949 but without her involvement or authority. She added that her daughters had no right to sue her for land since they had land where they were married. 18.She stated that when she purchased parcel number Mwongori Settlement Scheme/2 her husband was alive and helped her to purchase it. That she gave her sons portions of it but did not give her daughters because they were married, she did not receive dowry from them and since culturally she should not give them land. She added that she did not hold the land in trust for anybody but was the owner. ELC No. 93 of 2021 (Nyamira) Page 9 of 30

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19.Martin Osano, the County Land Registrar Nyamira (PW 2) stated that he did not have parcel file in respect of parcel number Mwongori Settlement Scheme/795 and that the only document that was registered was the mutation form, a certified copy of which he had in court. He produced a copy of a letter dated 7th July 2015 (Plaintiff’s Exhibit number 6) and stated that it was authored by J O Momanyi who was the then Land Registrar Nyamira but who had since passed away. He added that the letter referred to parcels number Mwongori Settlement Scheme/795, 948 and 949 and that it stated that no documents relating to the registration of the parcels could be traced. 20.Under cross examination and re-examination, he stated that Plaintiff’s Exhibit number 6 was misleading since there was a caution stated in a certificate of search dated 3 rd February 2016. He added that he had the mutation forms that subdivided parcel number Mwongori Settlement Scheme/795 to yield parcels number Mwongori Settlement Scheme/948 and 949. He stated that he had the registers for Mwongori Settlement Scheme/948 and 949 and that the two plots had not been subdivided as of the date of his testimony. 21.PW2 further testified that parcel number Mwongori Settlement Scheme/2 was subdivided into parcels number Mwongori Settlement Scheme/795 to 802 and that an access road had been created. That as of the date of his testimony, parcel number Mwongori Settlement Scheme/949 was registered in ELC No. 93 of 2021 (Nyamira) Page 10 of 30

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the name of Gladson Mogire Nyambane and that he had not received any complaint regarding its registration. He added that he visited all the parcels prior to filing a report pursuant to an order of the court which required him to establish the position on the ground. He also stated Plaintiff exhibit number 6 was misleading to the extent that it stated that the registry had no records on the creation of parcels number Mwongori Settlement Scheme/795, 948 and 949. 22.The Plaintiff’s case was then closed. 23.Martin Osano testified as DW1 and stated that parcel number Mwongori Settlement Scheme/2 was subdivided on 22 nd March 2012 into 8 parcels being Mwongori Settlement Scheme/795 to 802. That Mwongori Settlement Scheme/795 was subdivided into Mwongori Settlement Scheme/948 and 949 and that Mwongori Settlement Scheme/949 was transferred to Julia Kermunto Omao on 23rd January 2014 and subsequently to Gladson Mogire Nyambane. 24.DW1 produced certified copies of registers for Mwongori Settlement Scheme/949, Mwongori Settlement Scheme/2 and Mwongori Settlement Scheme/795, copies of surveyor’s registers for Mwongori Settlement Scheme/2 and Mwongori Settlement Scheme/795 and copy of mutation form for Mwongori Settlement Scheme/795. He produced certified copy of register for Mwongori Settlement Scheme/948 and stated ELC No. 93 of 2021 (Nyamira) Page 11 of 30

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that the parcel was unsubdivided and registered in the name of Bogiti Omao as of the date of his testimony 25.He stated that Bethsheba Bogiti Omao also remained the registered owner of parcels number Mwongori Settlement Scheme/801, 802 and 796 while parcels number Mwongori Settlement Scheme/797, 798, 799 and 800 were registered in the names of Beauter Morara Omao, Methusela Chanai Omao, Evans Lumumba Omao and Thomas Ombuya Omao, respectively. That the parcels were transferred without any challenge being registered. 26.DW1 further stated that although the parcels were agricultural land thus requiring consent of the Land Control Board prior to transfer, he did not have any consent of the Land Control Board in respect of transfer of Mwongori Settlement Scheme/948 to Julia Kemunto or even evidence of payment of stamp duty for the transfer of Mwongori Settlement Scheme/949 to Julia Kemunto. He further stated that since he did not have the parcel files for Mwongori Settlement Scheme/948 and 949, he could not tell if transfers, consent of the Land Control Board and other relevant documents were in the said files. 27.Julia Kemunto Omao (DW2) testified that the Bethsheba Bogiti Omao (the Plaintiff) is her mother and was the registered proprietor of parcel number Mwongori Settlement Scheme/2 which she acquired from the government together with DW2’s ELC No. 93 of 2021 (Nyamira) Page 12 of 30

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deceased father and which was registered in the Plaintiff’s name to hold in trust. She added that they were ten siblings and that parcel number Mwongori Settlement Scheme/2 was subdivided in the year 2012 and her brothers were given their parcels. 28.She added that she was also given parcel number Mwongori Settlement Scheme/949 as a free gift on 23 rd January 2014. She stated that she and her sisters moved the court to ensure that there was no discrimination and that besides her, none of her sisters was given any land. She further stated that Kisii ELC 215 of 2014 was filed but was later withdrawn. 29.DW2 went on to testify that she sold parcel number Mwongori Settlement Scheme/949 to Gladson Mogire Nyambane through sale agreement dated 28th January 2014 which was witnessed by the Plaintiff. That the purchase price was Kenya Shillings Three Million (3,000,000) out of which she received a deposit of Kenya Shillings Two Million Seven Hundred Thousand (2,700,000/=) through RTGS. 30.She also stated that she went to the Land Control Board with Gladson Mogire Nyambane and applied for Land Control Board consent which was booked on 2nd February 2014. 31.She stated that the Plaintiff applied for subdivision of Mwongori Settlement Scheme/948 on 3rd November 2014, that a consent was issued and mutation prepared but the subdivision was not effected since her brother Thomas ELC No. 93 of 2021 (Nyamira) Page 13 of 30

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Ombuya Omao (since deceased) registered a caution on 11 th November 2014. 32.DW2 produced copies of the following documents as further defence exhibits: pleadings in Kisii ELC 215 of 2014, mutation form for Mwongori Settlement Scheme/2, sale agreement dated 28th January 2014, RTGS form, application for consent of the Land Control Board booked on 2 nd February 2014, transfer dated 11th February 2014, title deed in the name of Gladson Mogire Nyambane, title deed her name, application for consent of the Land Control Board, consent of the Land Control Board dated 18th August 2014 and certificate of official search dated 5th August 2014. 33.Gladson Mogire Nyambane (DW3) adopted his witness statement dated 24th February 2026 and stated that parcel number Mwongori Settlement Scheme/949 was registered in his name after he purchased it from Julia Kemunto (the First Defendant) through sale agreement dated 28 th January 2014. That the agreement was signed by the First Defendant, the Plaintiff and the Plaintiff’s husband. 34.He stated that he conducted due diligence before the purchase and that prior to buying, he was informed that the Plaintiff was selling land. That he was directed to the Plaintiff’s home whereupon the Plaintiff showed him parcel number Mwongori Settlement Scheme/802 but before he could transact, the Plaintiff’s son by the name Magiya told him that parcel number ELC No. 93 of 2021 (Nyamira) Page 14 of 30

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Mwongori Settlement Scheme/802 belonged to him and that he should buy a different parcel. 35.He added that the Plaintiff told him that she would call him later to sell to him another parcel and that the Plaintiff called him three months later. When he went, he found the Plaintiff with three of her daughters. The Plaintiff told him that she had given land to her daughters and that only the First Defendant had obtained a title. He also stated that the Plaintiff and her daughter offered to sell to him parcel number Mwongori Settlement Scheme/949 which was registered in the First Defendant’s name. 36.DW3 went on to testify that he conducted a search and obtained consent dated 4th February 2014 from the Land Control Board then executed a transfer on 11 th February 2014. He produced copies of the consent and transfer as exhibits and further stated that he obtained copies of consent to transfer issued by the Land Control Board on 7 th January 2014, transfer registered on 23rd January 2014 and copies of green cards in respect of parcels number Mwongori Settlement Scheme/949 and 795, all of which showed him that parcel number Mwongori Settlement Scheme/949 was properly transferred to the First Defendant. 37.He added that the purchase price was KShs 3 million and that he gave an extra KShs 200,000 in cash to the Plaintiff as a token of appreciation. He also stated that he took possession ELC No. 93 of 2021 (Nyamira) Page 15 of 30

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upon purchase and he was still in occupation as of the date of his testimony. 38.Pamela Kwamboka Omao (DW4) adopted her witness statement dated 30th March 2018 and stated that all her siblings benefited from the subdivision of Mwongori Settlement Scheme/2 save for her and her two sisters Irene and Damaris. She added that the Plaintiff tried to get them to get part of the land but was stopped by the registration of a caution on 11 th November 2014 by her brother Thomas and that they then filed this case to enable them get part of the land. 39.DW4 further testified that the land was not ancestral land and that parcel number Mwongori Settlement Scheme/948 was still available as of the date of her testimony and she was farming on 1 acre of it. That the said parcel was supposed to be subdivided into five portions out of which she was to get one portion. She also stated that Mwongori Settlement Scheme/2 was not their ancestral land and that instead, their ancestral land was at Mochenwa where their grandparents were buried. 40.Irene Bironga Omao (DW5) adopted her witness statement filed on 30th March 2018 and stated that she did not have any other land besides parcel number Mwongori Settlement Scheme/948 where she was living with the Plaintiff as of the date of her testimony. She added that she filed this suit to compel the Plaintiff to give her part of the suit property. ELC No. 93 of 2021 (Nyamira) Page 16 of 30

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41.Defence case was then closed, after which directions for filing and exchange of written submissions were issued. The Plaintiff filed submissions dated 15th May 2026. 42.It was submitted on behalf of the Plaintiff that the evidence adduced and corroborated by the Land Registrar demonstrated that the subdivision, transfer and eventual registration of parcels number Mwongori Settlement Scheme/948 and 949 was undertaken illegally, unprocedurally, fraudulently and in blatant violation of mandatory statutory provisions governing disposition of agricultural land. 43.It was also submitted that the Plaintiff was the registered proprietor of land parcel Mwongori Settlement Scheme/2 which she later subdivided among her sons, giving rise to parcel numbers Mwongori Settlement Scheme/795, 796, 797, 798, 799, 800, 801 and 802. That she specifically testified that parcel number Mwongori Settlement Scheme/795 remained in her name and that she never consented to its subdivision into parcels number Mwongori Settlement Scheme/948 and 949. 44.It was equally submitted that the Plaintiff never executed any lawful transfer documents, mutation forms or consents authorizing the subdivision or transfer of parcel number Mwongori Settlement Scheme/795 and that her testimony was categorical that the First Defendant unlawfully caused parcel number Mwongori Settlement Scheme/795 to be subdivided into parcel number parcel number Mwongori Settlement ELC No. 93 of 2021 (Nyamira) Page 17 of 30

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Scheme/948 and 949 and later transferred parcel number Mwongori Settlement Scheme/949 to the Second Defendant without the Plaintiff’s knowledge or authority. 45.It was further submitted that the Defendants themselves admitted during testimony that Land Control Board Consent had not been obtained prior to the impugned transfer. That the alleged subsequent attendance before the Land Control Board by Gladson Mogire Nyambane (DW3) could not sanitize a process that had already been fundamentally defective. 46.It was also submitted that the evidence before the Court clearly established that the subdivision and transfer were done without lawful consent of the registered owner, that mandatory Land Control Board consent was not obtained, mutation and transfer documents were not duly registered and that the Land Registrar admitted that the process was irregular and fraudulent. 47.It was consequently submitted that an eviction order against the Defendants was warranted as the actions of the First and Second Defendants amounted to trespass. It was further submitted that the Defendants had failed to establish any lawful beneficial interest over the suit property. Reliance was placed on the case of Oganga & Another v Orangi & 3 Others [2023] KEELC 16348 (KLR). The Plaintiff therefore urged the Court to enter judgment in her favour as sought. ELC No. 93 of 2021 (Nyamira) Page 18 of 30

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48.The Defendants filed submissions dated 8th June 2026. It was submitted on behalf of the Defendants that no particular evidence was adduced to prove fraud on their part and that the Plaintiff having on her volition caused subdivision of Mwongori Settlement Scheme/795 and transfer of Mwongori Settlement Scheme/949 to her daughter, simply disowned her own actions under pressure from her sons and accused her daughters of fraud. Reliance was placed on the cases of Vijay Morjaria vs. Nansingh Madhusingh Darbar & Another [2000] eKLR in support of the contention that fraud cannot be inferred and that fraud had not been proved. 49.The Defendants equally submitted that the Second Defendant obtained a consent before Mwongori Settlement Scheme/949 was transferred to his name and that he was emphatic that indeed the application was made and a consent letter issued. That, in any case, he spent a sum of KShs 3 million as consideration to acquire the parcel in a transaction witnessed by the Plaintiff, thereby creating a constructive trust that went beyond the requirements of Section 6 of the Land Control Act. Relying on the cases of Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri [2014] eKLR and Kitilit v Kibet [2018] KECA 573 (KLR), the Defendants argued that equity demands that the sale between the First and Second Defendants be held as valid and enforceable. 50.It was further submitted that the Second Defendant was a bona fide purchaser for value as envisaged in the case of ELC No. 93 of 2021 (Nyamira) Page 19 of 30

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Katende v Haridar & Company Limited [2008] 2 EA 173 and that the Plaintiff who now seeks to nullify the subject sale agreement was present, witnessed the sale agreement and even received some money from the Second Defendant. That the Plaintiff's presence in the transaction stood as an assurance to the Second Defendant that the property was being sold without any third-party claim and with a valid traceable root. 51.It was also submitted that on account of common understanding and common intention within the Omao family, parcel number Mwongori Settlement Scheme/2 was registered in the name of the Plaintiff with a promise from her that it was family land in which all family members had a stake. That a constructive trust arose in respect of the property and upon its subdivision, the Plaintiff retained Mwongori Settlement Scheme/795 which she held in trust for her daughters. Relying on Lloyds Bank Pie - vs- Rosset, (1991) 1 AC 107,132, and William Kipsoi Sigei v Kipkoech Arusei & another [2019] eKLR, the Defendants urged the Court to hold that a constructive trust arose over Mwongori Settlement Scheme/948 in favour of the daughters. 52.In conclusion, the Defendants submitted that the Plaintiff had failed to prove her case to the required standard and that consequently, the same must fail. That on the other hand, the Defendants had proved their counter claim to the required standard and were entitled to orders sought. ELC No. 93 of 2021 (Nyamira) Page 20 of 30

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53.I have carefully considered the pleadings, the evidence and the submissions. Before I identify the issues for determination, I find it necessary to highlight several aspects of the dispute that are not contested. 54.As noted in the opening paragraph of this judgment, the dispute traces its roots to land parcel number Mwongori Settlement Scheme/2. Parties agree that the Plaintiff was the registered proprietor of the said parcel. According to the certified copy of the register in respect of the parcel which was produced in evidence, the register was opened on 16 th December 1981, with the first registered proprietor being the Settlement Fund Trustees. The Plaintiff was the second registered proprietor with her name appearing in the register initially as Bathsheba Mogeti then Patseba Mogiti Omao following a correction of name. On 22 nd March 2013, the title was closed upon subdivision of the parcel into Mwongori Settlement Scheme/795 to 802. The Plaintiff testified that she did the subdivision herself. 55.Among the subdivisions, the one that is of concern in this case is Mwongori Settlement Scheme/795. The register in respect of the parcel shows that the Plaintiff was registered as the first registered proprietor on 22nd March 2012 and that on 23rd January 2014 the title was closed upon subdivision of the parcel into Mwongori Settlement Scheme/948 and 949. ELC No. 93 of 2021 (Nyamira) Page 21 of 30

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56.The registers in respect of parcels number Mwongori Settlement Scheme/948 and 949 were also produced. They show that the Plaintiff was registered as proprietor of Mwongori Settlement Scheme/948 on 23 rd January 2014 and that Gladson Mogire Nyambane (the Second Defendant) was registered as the third proprietor of Mwongori Settlement Scheme/949 on 11th February 2014 by way of transfer. Previous registered proprietors of Mwongori Settlement Scheme/949 were the Plaintiff who was registered as the first proprietor on 23rd January 2014 and Juliah Kemunto Omao who was registered by way of transfer as the second proprietor on 23rd January 2014. The Plaintiff and the Second Defendant remained the registered proprietors, respectively, of Mwongori Settlement Scheme/948 and Mwongori Settlement Scheme/949 as of the date of trial. 57.The issues that arise for determination are whether fraud has been established, whether trust has been established and whether the reliefs sought by the Plaintiff and the Defendants should issue. 58.The law has gone to great lengths to fortify the rights of a registered proprietor of land. From the onset, Article 40 of the Constitution guarantees protection of the proprietor’s right to property. 59.Further protection is secured through Section 24 of the Land Registration Act which provides as follows: ELC No. 93 of 2021 (Nyamira) Page 22 of 30

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Subject to this Act— (a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and (b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. 60.Additionally, absent a successful challenge, the law constrains the Court uphold the proprietor’s title. Section 26 of the Land Registration Act obligates the court to accept the proprietor’s certificate of title as prima facie evidence of proprietorship unless the provisos under Section 26 (1) (a) or (b) are established. Those provisos lay down the grounds on which a title can be nullified as fraud or misrepresentation to which the registered proprietor is proved to be a party or where it is shown that the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme. Thus, despite the ironclad protection, title to property which is found to have been unlawfully acquired is open to impeachment. ELC No. 93 of 2021 (Nyamira) Page 23 of 30

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61.As pleaded in her Plaint in Kisii ELC No. 246 of 2014, the Plaintiff is challenging the registration of the First Defendant and subsequently the Second Defendant as proprietors of Mwongori Settlement Scheme/949 on grounds of fraud. She pleaded particulars of fraud at paragraph 9 of the Plaint. To succeed in her quest to nullify the First and Second Defendant’s titles, the Plaintiff must not only prove fraud to the required standard but must additionally prove that the First and Second Defendants were party to such fraud. 62.The law is that fraud must be pleaded, particularised, and strictly proven to standard higher than the usual one in civil cases of proof on a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt. See Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR and John Mbogua Getao v Simon Parkoyiet Mokare & 4 others [2017] eKLR. In cases where fraud is alleged, it is not enough to simply infer fraud from the facts. See Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR. 63.In her testimony, the Plaintiff simply stated that Mwongori Settlement Scheme/795 was subdivided by the First Defendant to create parcel numbers Mwongori Settlement Scheme/948 and 949 without her involvement or authority. She did not offer any more details. She neither claimed that her signatures on the transactional documents were forged nor offered any expert evidence to discount the signatures. Her only other witness, the Land Registrar, also testified for the defence. He ELC No. 93 of 2021 (Nyamira) Page 24 of 30

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produced a certified copy of the mutation form that was used to subdivide Mwongori Settlement Scheme/795. A perusal of the document shows at pages two and four, the name Patseba and a thumbprint in the spaces provided for “signature or marks of the proprietor.” Nothing was availed to show that the thumbprint is not hers. 64.The Land Registrar testified that he had not received any complaint regarding registration of the Second Defendant as proprietor and disowned a letter dated 7th July 2015 written by a previous Land Registrar stating that the registry did not have documents relating to the registration of parcels number Mwongori Settlement Scheme/795, 948 and 949. He termed the letter misleading and added that since he did not have the parcel files, he could not tell if transfers, consent of the Land Control Board and other relevant documents were in the said files. 65.The First Defendant who is accused of having subdivided Mwongori Settlement Scheme/795 without the Plaintiff’s involvement or authority testified that she was given parcel number Mwongori Settlement Scheme/949 by the Plaintiff as a free gift. Nothing has been availed to show if the Second Defendant was involved in the actual subdivision of Mwongori Settlement Scheme/795. All that we have is sale agreement dated 28th January 2014 pursuant to which he purchased Mwongori Settlement Scheme/949 from the First Defendant. Significantly, the agreement bears the Plaintiff’s name and ELC No. 93 of 2021 (Nyamira) Page 25 of 30

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thumbprint as a witness. The Plaintiff did not offer any evidence to dispute her said status as a witness. 66.A party alleging fraud cannot succeed on the basis of raising suspicions and questions, however serious they be. Proof of fraud must always be to required standard which is higher than proof on a balance of probabilities but lower than proof beyond reasonable doubt. The Plaintiff has not met this requirement. Her invitation to infer fraud must be declined. I find that fraud has not been proved. Since that was the basis upon which the Second Defendant’s title was challenged, the challenge equally fails. Similarly, there is no basis upon which to grant permanent injunction or eviction order against the Defendants as sought. 67.The Second issue for determination is whether the Defendants have established trust. Whether trust exists is a question of fact which must be proven by the party alleging it, through evidence. See Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR. In Dorcas Indombi Wasike v Benson Wamalwa Khisa & another [2010] eKLR the Court of Appeal stated: The appellant’s counsel, Mr Amolo, cited several authorities and a careful reading of all those authorities reveal one thing. Whether or not a trust exists is a matter of evidence. Those authorities, and in particular Mbothu & 8 Others ELC No. 93 of 2021 (Nyamira) Page 26 of 30

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vs Waitimu & 11 Others [1986] KLR 171, are clear that: “The law presumes never a trust, implies, the Court but case of in never absolute necessity. The Courts will not imply a trust save in order to give effect to the intention of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.” 68.The Defendants’ case, as pleaded in their Plaint in Kisii ELC No. 81 of 2016 dated 30th March 2016 which is deemed a counterclaim, is that Mwongori Settlement Scheme/2 which was ancestral land and that the Plaintiff was registered as its proprietor as well as Mwongori Settlement Scheme/795 in trust. In their submissions, the Defendants argued that a constructive trust arose in respect of Mwongori Settlement Scheme/795. 69.The question of applicability of the equitable doctrine of constructive trust to land transactions is well settled. See Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR and Willy Kimutai Kitilit v Michael Kibet [2018] eKLR. Pursuant to Section 28 (b) of the Land Registration Act, all registered land is subject to overriding interests as may subsist such as trusts, including customary trusts. ELC No. 93 of 2021 (Nyamira) Page 27 of 30

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70.In Shah & 7 others v Mombasa Bricks & Tiles Limited & 5 others (Petition 18 (E020) of 2022) [2023] KESC 106 (KLR) (28 December 2023) (Judgment), the Supreme Court held thus: [74] Vide Section 3(1) of the Judicature Act, Cap 8 Laws of Kenya, the doctrines of equity are applicable in Kenya and form part of our laws. It states that common law, doctrines of equity and statutes of general application shall apply in so far as the inhabitants circumstances of permit subject and Kenya and to its such qualifications as those circumstances may render necessary. … [78] The applicability of the doctrine of constructive trust is therefore now settled within our jurisdiction and is applied to land sale transactions. … [87] We have also established that constructive trusts can arise in various circumstances, including in land sale agreements. Trust is an equitable against remedy which unconscionable is an conduct. intervention Where the circumstances of the case are such that it would demand that equity treats the legal owner as a trustee, the law will impose a trust. It is imposed ELC No. 93 of 2021 (Nyamira) Page 28 of 30

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by law whenever justice and good conscience require it. On this issue and for the reasons given above, we therefore find that a constructive trust can be imported into a land sale agreement to defeat a registered title. 71.Although the Defendants claimed that Mwongori Settlement Scheme/2 and by extension Mwongori Settlement Scheme/795 were ancestral land, I note that the Third Defendant was specific in her testimony that Mwongori Settlement Scheme/2 was not their ancestral land and that instead, their ancestral land was elsewhere at Mochenwa where their grandparents were buried. That position aligns with the material on record which shows that the Plaintiff acquired Mwongori Settlement Scheme/2 from the Settlement Fund Trustees. 72.The Defendants also contended that the Plaintiff was registered as proprietor of Mwongori Settlement Scheme/795 in trust them as daughters. Given the history of the land up to creation of Mwongori Settlement Scheme/795, I found no basis for that contention. Instead, what is apparent is that the daughters believe that they are entitled to land from their mother, just as the sons. They even called to their aid Article 27 of the Constitution, citing equality of genders. 73.From the material on record, the Plaintiff subdivided Mwongori Settlement Scheme/2 and transferred portions of it to her sons and even her daughter, the First Defendant. A proprietor is at ELC No. 93 of 2021 (Nyamira) Page 29 of 30

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liberty to freely transfer her land, even in a discriminatory manner. She cannot be forced by her children to give them land in her lifetime. The Courts have made this manifestly clear. See Oganga & Another v Orangi & 3 Others (supra). I find that the Defendants have failed to establish trust. It follows that they are not entitled to the reliefs that they seek. 74.In view of the foregoing, both the Plaintiff and the Defendants have failed to prove their respective cases. I dismiss both. Considering the outcome and the relationship between the parties, I make no order on costs. Dated, signed, and delivered at Nyamira, this 7th day of October 2026. D. O. OHUNGO JUDGE Delivered in the presence of: Mr Oremo for the Plaintiffs Mr Nyambati for the Defendants Court Assistant: B Kerubo ELC No. 93 of 2021 (Nyamira) Page 30 of 30

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