https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4565

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISII** **ELCA CASE NO E009 OF 2024** DINAH ORIBO ABUGA …………………….………… 1ST APPELLANT MAISIBA ORIBO ABUGA …………………….……… 2ND APPELLANT VERSUS RICHARD MARAA MOKUA ………………………………RESPONDENT *(being an appeal from the judgment of hon Ocharo, Chief Magistrate, delivered in ELC Case no 308 of 2018 (formerly Kisii ELC case No. 122 of 2017) as consolidated with Kisii CM ELC No.034 of 2022)* **JUDGMENT** 1. The Appellants who were the Defendants and counter-claimants in the subordinate court were unhappy with the finding of the trial magistrate who entered judgment in favour of the Respondent and dismissed their counterclaim. They raised the following grounds in their appeal; 1. The learned Magistrate erred in law and fact by finding that the respondent had tendered evidence and satisfactorily discharged her burden of proof that she was the absolute owner of Nyaribari Masaba/Kiamokama/748 without making a finding as to whether the respondent's husband was legally, regularly and procedurally registered as the proprietor pursuant to the respondent being registered through transmission did not prove the legality of her husband's registration in 1969 before the same was transferred to her name and no valid explanation of how the property which was known in acreage and description then were not captured in the agreement made in 1999- more than thirty (30) years. 2. The learned magistrate erred in law and fact by finding that the sale agreement made in 1999 was valid even though it lacked vital components of a legal agreement and more so since it failed to disclose the description and the size /acreage of the subject matter and in light of glaring inconsistencies and errors, that is, that the Title described the property to be in Hectares while the Official search and the respondent’s claim is for a property in Acres which was not proved on a balance of probabilities. 3. The learned magistrate erred in law and fact by holding that the Certificate of Official Search for was Nyaribari Masaba/Kiamokama/748 in the name of Jason Mokua was absolute evidence that he had acquired the same procedurally and legally yet there was no evidence or simple explanation of the procedure used in registration and more so that no Consent of the Land Control Board, Mutation forms or Transfer documents were ever produced by the Respondent to prove that indeed Oribo Abuga (deceased) lawfully transferred the property as alleged to the respondent’s husband. 4. The learned magistrate erred in law and fact by holding that the respondent acquired a legal title merely because she produced a Succession cause in which she was issued with a grant yet failed to appreciate the appellant’s contention and uncontroverted evidence that the 'root of the title' was tainted with illegalities and irregularities by virtue of fraudulent registration of the title in the name of Jason Mokua, her husband before she apparently acquired through transmission. 5. The learned Magistrate erred in law and fact by holding that the respondent did not have beneficial interest over Nyaribari Masaba/Kimokama/747 as the same was ceded to the defendants in the 70s and, was willing to let them continue in occupation without any congruent evidence and based merely on the oral evidence of a witness. 6. The learned Magistrate erred in law and fact by finding that the respondent lacked locus standi to bring a counterclaim for lack of Letters of Administration ad Litem yet failed to recognise that the respondent sued the appellants while they were not the legal representatives and/or administrators of the Estate of Oribo Abuga against whom a claim could not be sustained and more particularly on the appellant's allegations of fraud which was proved by virtue that registration Nyaribari Masaba/Kiamokama/748 in the name of Jason Mokua was obtained irregularly with no justifiable explanation. **Background** 1. The Respondent’s claim was for a declaration that she was the registered owner Nyaribari Masaba/Kiamokama/748 and an order of permanent injunction restraining the appellants from interefering with her use and possession thereof. 2. I adopt the summary of the case in the subordinate court as narrated by the Appellants thus: the Respondent pleaded (in MCCELC 308 OF 2018) that at all material times to this suit, she was and still is the registered proprietor of all that parcel known as L.R NO Nyaribari Masaba/Kiamokama/748 measuring approximately 1.0 ha which was registered in her name on 11/7/2011 through transmission. That on 24/5/2017, the Appellants entered upon part of the said land without lawful cause and commenced building structures in preparation for interring the remains of Oribo Abuga. The Respondent avers the actions are likely to deprive her of the suit property. 3. The Respondent further pleads that the Appellants are the widow and son of the late Oribo Abuga, who passed on on 24/5/2017 and are the registered owners of Nyaribari Masaba/Kiamokama/748, while the Appellants are in occupation of a portion allocated to them by the Respondent's deceased husband. In ELC E034 of 2022, the Respondent claimed to be the beneficial owner of the entire parcel known as Nyaribari Masaba/Kiamokama/747 by the fact that the said parcel was purchased by her late husband Jason Amati in 1969. That the Appellant's son, one Duncan Nyangincha, passed on 12/5/2022, and the defendants were making arrangements to inter the remains on the land without her consent, hence the claim before this court. 4. In response to the claim, the Appellants filed a statement of defence and counterclaim on 14/2/2020 alleging that registration, if any, of parcel No. Nyaribari Masaba/Kiamokama/748 in the Respondent’s name was fraudulent and proceeded to particularize the same. 5. The Appellants further aver that they have resided at the property, that is, LR No. Nyaribari Masaba/Kiamokama/261, for many years, and hence the allegations that they came onto the land on 24/5/2017 do not arise. They further state that the land belongs to the deceased Oribo Abuga and that the Respondent is not legally registered as the owner, as alleged. 6. In the counterclaim, the Appellants stated that the deceased, Oribo Abuga, was the owner of L.R. No. Nyaribari Masaba/Kiamokama/261, and that the Respondent's purported subdivision to create L.R. No. Nyaribari Masaba/Kiamoka/748 amounts to fraud on the part of the Respondent and/or her husband. The Appellants contend that the deceased did not sell any land to the Respondent as alleged. 7. The Appellants sought judgment against the Respondent in the subordinate court as follows:- ***i. That the plaintiff's suit be dismissed with costs.*** ***ii. An order cancelling the title to L.R. Nyaribari Masaba/Kiamokama/748 in the name of Rachael Moraa Mokua and the said parcel do revert back to the deceased's name ORIBO ABUYA.*** 1. ***An order of a permanent injunction restraining the plaintiff by herself, agents, servants and/or any other person howsoever from trespassing, interfering with decendant off of the deceased, or having any dealing whatsoever with the property at all.*** 2. ***That the costs of this suit and counterclaim be provided for by the defendants.*** 3. P.W-1: Regina Kerubo Amati is the daughter of the Respondent. She obtained a power of attorney to testify on the Respondent's behalf. Her testimony is that her late father purchased land parcels 747 and 748 in 1968 from Oribo Abuga. Later, in 1970, Oribo returned and was given the whole of 747, after which an attempt was made to access 748. They were chased away by the defendants. 4. During cross-examination, the witness stated that her father purchased 748 in 1968 and 747 in 1969. She admitted that the original title was issued in 1969 but was subdivided upon succession in Cause No 272 of 2006. She could not provide consent to transfer or transfer documents. 5. P.W-2: Johnson Maaka is the late Oribo Abuga's elder brother. He confirmed the evidence of PW2 that his brother had indeed sold land to the Respondent’s husband and moved to settle elsewhere but returned and sought refuge from the Respondent's husband. It was his further evidence that the plaintiff's husband gave him a small portion to occupy. He confirmed that the 2nd Appellant occupies the portion given to him by the Respondent’s late husband. 6. P.W-3: Andrew Masita Abuga testified that he knew both Oribo Abuga and the Respondent's late husband. He confirmed that Oribo sold the Respondent’s husband land in 1968 then left to settle elsewhere but he later approached the Respondent's late husband who surrendered a small portion to him. 7. P.W-4: Aphline Owino is a court assistant at Kisii Law Courts. She produced the file in Succession Cause No. 272 of 2006 relating to the estate of JASON MOKUA AMATI. The witness testified that a grant was issued and later confirmed, and that the properties in question were LR 2113 and Kiamokama/748. 8. The 2nd Appellant testified that his father, Oribo Abuga, never sold any land to the Respondent's late husband, as alleged. He further stated that his late father's land is Nyaribari Masaba/Kiamokama/261, and that this is the portion they have lived on. He further testified that the said portion had never been subdivided and, if so, had been obtained fraudulently and without due process, without his father's consent. In this respect, he produced a copy of the Green Card and the official search. 9. The 2nd Appellant urged the court that the portions emanating from 261 should be reverted so that succession can be carried out. The witness stated that the Respondent filed a citation, cause No. E015 of 2023, seeking that the Appellants take out letters of administration. Hence, in his view, it cannot be true that the Respondent did succession. According to him, land parcel numbers 747, 747,748 and 749 do not exist. The witness produced a copy of the green card and a map as exhibits in support of this case. 10. In cross-examination, the witness insisted that all the allegations by the Respondent regarding the purchase of land and the transfers from his late father to the Respondent's late husband were fraudulent. He further stated that he had not taken out letters of administration. He also stated that the Respondent obtained the title fraudulently, as she had not demonstrated how the transfer was made or how her late husband purchased the land. **Submissions**: 1. The appeal was prosecuted by filing of written submissions. Vide submissions dated 12th March, 2026, the appellants submit that the respondent's claim is founded on an alleged sale by the late Oribo Abuga to the respondent's late husband, Jason Mokua Amati. They argue that the respondent failed to produce any valid sale agreement relating to the alleged transactions in 1968 and 1969 as the agreement dated 5th March 1999, is legally deficient. This is because it did not identify the land being sold, its acreage, the parties' identification details, or contain the essential terms of a land sale agreement. They further argue that no consent of the Land Control Board, transfer instruments, mutation forms or survey documents were produced to demonstrate a lawful transfer of agricultural land. 2. In support of this argument, the appellants rely on **Kinsasia v Kinsasia & 4 Others (ELA 19 of 2025) KEELC 6558 (KLR)**, where the court outlined the essential ingredients of a valid land sale agreement, namely identification of the parties, description of the land, consideration, obligations of the parties, dispute resolution mechanism, completion terms and execution. They also invoke **section 3(3) of the Law of Contract Act** and **section 38 of the Land Act**, arguing that a land sale agreement that lacks these statutory requirements is unenforceable. 3. The appellants further submit that the respondent failed to establish the root of her title. They argue that there was no evidence explaining how Jason Mokua lawfully became the registered owner because there was no written sale agreement contemporaneous with the alleged purchase, Land Control Board consent, transfer documents, mutation forms or green card tracing the history of the title were produced. The appellants maintain that the respondent bore the burden of demonstrating that the title was acquired legally and procedurally, particularly after allegations of fraud and illegality had been raised. 4. The appellants contend that the trial magistrate misapplied **section 26(1) of the Land Registration Act** by treating the certificate of title as conclusive proof of ownership without considering the statutory exceptions permitting impeachment of title where it has been obtained through fraud, illegality or procedural impropriety. They argue that the respondent's title falls within these exceptions because its root was never satisfactorily explained. To reinforce this position, the appellants cite **Henry Muthee Kathurima v Commissioner of Lands & Another [2015] eKLR**, where the Court of Appeal held that the doctrine of indefeasibility of title is not absolute and does not protect titles acquired fraudulently or unprocedurally. 5. They also rely on **Korir v Njoki & Another (Civil Appeal No. 34 of 2020) [2023] KECA 439 (KLR)** for the proposition that where the root of title is questioned, the registered proprietor must explain the process through which the title was obtained rather than merely producing a title deed. They submit that the respondent failed to discharge that burden. 6. Regarding parcel **Nyaribari Masaba/Kiamokama/747**, the appellants argue that the respondent's own evidence established that the land had been voluntarily surrendered back to Oribo Abuga. They therefore submit that the respondent cannot simultaneously claim a beneficial interest in the same parcel. They contend that no documentary evidence was produced to prove ownership or a beneficial interest in parcel 747, and that the oral evidence was contradictory and largely hearsay. 7. On the counterclaim, the appellants argue that the trial magistrate erred in holding that they lacked locus standi to seek cancellation of the title because they had not obtained letters of administration to the estate of Oribo Abuga. They submit that the respondent sued them in their personal capacities rather than as administrators of the deceased's estate. 8. Consequently, they contend that it was inconsistent for the court to permit the respondent's claim while rejecting their counterclaim on the ground of lack of capacity. They ask this court to set aside the judgment of the learned trial magistrate; allow their counterclaim; cancel the title to parcel **Nyaribari Masaba/Kiamokama/748;** restore the property to the deceased's estate; issue a permanent injunction against the respondent; and award the appellants the costs of the suit and the appeal. 9. On the other hand, the Respondent submitted that the appeal lacks merit and urges the court to uphold the judgment of the trial court. The respondent argues that the appellants' first four grounds rest on the mistaken assumption that the agreement dated 5th March 1999 was the instrument by which the respondent's late husband acquired the suit property. 10. According to the respondent, the green card demonstrates that **Jason Mokua**, deceased, became the registered proprietor of parcel No. 748 on 11 May 1969. The 1999 agreement merely recorded and confirmed a sale that had taken place in 1968 and was not itself the sale agreement transferring ownership. The agreement acknowledged that Oribo Abuga had sold the land to Jason Mokua and affirmed that Jason was entitled to occupy, cultivate and develop the land without interference. 11. Relying on the evidence before the trial court, the respondent contends that the learned magistrate correctly found that she had established the root of her title. The respondent's husband purchased the land in 1968, was issued with a title in 1969, the earlier transaction was later reduced into writing in 1999, and upon his death the respondent lawfully acquired the property through transmission in Succession Cause No. 272 of 2006. 12. Regarding the fifth ground of appeal, the respondent submits that the complaint is misconceived because the finding challenged was actually favourable to the appellants. The respondent therefore argues that the ground lacks any practical basis for disturbing the judgment. On the sixth ground, the respondent submits that the appellants lacked the legal capacity to institute the counterclaim on behalf of the estate of the deceased since they had not first obtained letters of administration. 13. To support this position, the respondent relies on **Edema & 2 others v Edema & 5 others**, **(Miscellaneous Succession Cause E001 of 2022) [2022] KEHC 9960 (KLR) (6 July 2022) (Ruling) Neutral citation: [2022] KEHC 9960 (KLR)** which held that proceedings commenced before obtaining a grant of letters of administration are incompetent because only a personal representative is empowered under section 82(a) of the Law of Succession Act to enforce causes of action on behalf of a deceased's estate. 14. The respondent also cites **John Marete Kirema & another v Gladys Karimi M'Muthamia & 3 others (2013) eKLR**, in which the court held that an intended administrator or a person who has merely petitioned for letters of administration has no locus standi to institute proceedings until a grant of representation has been issued. Further reliance is placed on **Njoroge (Suing as the Legal Administrator of the Estate of Darius Njoroge Kaime) v Koriata & another**, where the court reiterated that a party must possess the requisite legal authority, including letters of administration where acting for a deceased's estate, before instituting proceedings. 15. She submits that the appeal should be dismissed with costs placing reliance on **Rai & 3 others v Rai & 4 others** **(2014) KESC 31 (KLR)** where the Supreme Court affirmed the principle that costs ordinarily follow the event, although the court retains discretion to depart from that rule where the interests of justice or other special circumstances so require. **Analysis and Determination:** 1. I have considered the pleadings, the evidence and the submissions adduced before the subordinate court and the judgment rendered thereof. I have also reviewed the submissions rendered in support of and against the appeal. This court is conscious of its duty as the first appellate court as set out by the Court of Appeal in **Peters vs. Sunday Post Limited [1958] EA 424**, the predecessor of this Court, the Court of Appeal for Eastern Africa, stated that: **“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide.”** 1. Consequently, I frame the following questions for determination: 2. **Whether the Respondent proved the legality of her husband’s title for L.R. No 748.** 3. **Whether the trial magistrate erred in finding that the certificate of title for 748 was absolute** 4. **Whether the trial court erred in holding that the Appellants lacked the locus standi to bring a counterclaim** 5. Starting with the first question, the record does show that the Respondent produced title for the suit property Nyaribari Masaba/Kiamokama/748. Also produced is a copy of green card with the entry of her husband’s name at number 2 dated 11.05.1969. The Respondent told court that after the demise of her husband, she took out letters of administration of his estate and acquired the suit land through transmission. 6. It is the Appellants' contention that the deceased acquired the suit title through fraud, and it is trite law that the burden of proving fraud lies on their shoulders. One of the particulars of fraud pleaded is the failure to produce a sale agreement. The Respondent cited non-compliance with the provisions of section 3(3) of the Law of Contract Act, which requires dispositions of land to be in writing. 7. The Appellants forgot to note that section 3(3) of Law of Contract Act Cap 23 came in force on 1st June, 2003 while the impugned transfer into the deceased name took place in 1969. Prior to the amendment in 1981 or thereabouts, the law permitted oral agreements for the sale of land. Section 3(7) states thus; **The provisions of subsection (3) shall not apply to any agreement or contract made or entered into before the commencement of that subsection.** 8. Despite the above provision, the transacting parties later entered into a written agreement in 1999 which was executed and their signatures witnessed. Clause 1, Oribo Abuga state he had sold to Jason Mokua in 1968. This clause reads thus; ***“Kuwa mimi Oribo Abuga niliuzia Bw. Jason Mokua Amati kipande cha shamba (1968) langu. Kwa sababu ya uhusiano mzuri uliopo kati yang una Jason mokua Amati, bwana Jason mokua amekubali kunipa ngombe mmoja na mbuzi mmoja kwa hiari yake ili mimi Oribo nitumie wanyama hao kulipa mahari kwa bibi yangu.”*** 1. Although the size of land sold is not stated, the seller, Oribo, acknowledges that he had sold land to Jason in 1968 and that Jason was giving the animals out of his own free will. This evidence is corroborated by the evidence of PW3 who said that after Oribo sold the land he moved away. After sometimes, he returned and he was surprised that Jason Mokua-deceased opted to give Oribo some land to settle on. Similarly, PW1 confirms through her evidence that her father surrendered back L.R. No 747 back to Oribo-deceased. 2. The appellants submitted that this sale agreement was null and void for not complying with the law. On the face of it, the impugned document was signed by Oribo and Jason (both deceased) and their signatures were witnessed by five people. No document was presented by the Appellants to establish that any of these signatures were forged. 3. In [**Kukal properties Devt Ltd v Maloo and 3 others**](http://kenyalaw.org/caselaw/cases/view/46190) the Court of Appeal held where a contract is in writing and clear and unambiguous no extrinsic evidence may be called to add or detract from it. A suit then could not be defeated if there was part performance by taking possession or a party had performed or was willing to perform its part of a contract. See [**Peter Mbiri Michuki v Samuel Mugo Michuki**](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/342) **[2014] eKLR**. 4. The Appellants were not the ones selling land to Jason Mokua-deceased hence the circumstances are distinguishable from the case of In the Court of Appeal in Korir -y- Nioki & Another (Civil Appeal 34 of 2020) [2023] KECA 439 (KLR) held as follows: **"In this case, the appellant's title is being challenged on the ground that the proprietors were not aware under what circumstances he had acquired interest hereunder. It was that very title whose authenticity was in dispute. In the circumstances, he could not come to court and place the very same title before the court and claim that the evidence was sufficient. He ought to have gone further and explained the process by which he obtained the same title. In this case there was no such evidence and since he was not physically involved in the transaction, he ought to have called the person who transacted on his behalf if he could not call the alleged seller."** 1. The appellants averred that the Respondent or her predecessor in title did not obtain the LCB consent of the relevant area for the transaction. The Respondent through her attorney stated that they had produced as Pex 2,3,and 4 original receipts and land adjudication register for L.R no. 261 now 748 and 747 surrendered to her father (deceased) by Oribo Abuga (deceased). The adjudication register dated 22/4/1969 has receipt no 149991 of Kshs 20 for two new registers. Receipt no 149992 for Kenya shillings 50 was paying for survey fee. 2. The Appellants did not bring evidence from the Land Adjudication officer that these transactions did not take place. Looking at these documents, it appears that the transfer was effected during the adjudication process; hence, there was no need to obtain Land Control Board Consent. On the face of the Respondent’s exhibits, it was incumbent upon the Appellant to demonstrate that LCB consent was required as he who alleges must prove. 3. The Appellants fault the trial magistrate for finding the Respondent’s title was absolute. The trial court cited section 26 of the Land Registration Act, which provides that a certificate of title is prima facie evidence of ownership unless it is successfully challenged as having been acquired by fraud or misrepresentation, or illegally. 4. The learned magistrate gave reasons for finding the title indefeasible, noting that the Respondent went to great lengths to explain how the title was acquired by her husband. The magistrate also referred to the agreement dated 5/3/1999, which was intended to affirm the parties’ intention long after the suit title had been registered in the name of Jason Mokua, deceased. In addition to the documents produced, the Plaintiff’s evidence was corroborated by the evidence of PW3, a brother of Oribo Abuga, who confirmed that the sale took place. 5. In his evidence before the learned magistrate, the 2nd Appellant, the sole witness, averred that their land was parcel no Nyaribari Masaba/ Kiamokama/261, but he had no documents to support this assertion. The Appellants took issue with the size of the land stated on the certificate of official search of 1.0 acre vis-à-vis the size in the title for 748. However, the size of the land indicated on the title is the same as that stated on the green card, 1.0ha. This argument would have substance if the size on the title were different from that on the green card, but it is possible whoever filled in the certificate of search made a mistake. 6. The last question is whether or not the learned trial magistrate erred in holding that the Appellants lacked locus to bring the counterclaim. They argue that having been sued by the Respondent, it was wrong for the trial court to turn around and say that they had no capacity. 7. At page 5 of the judgment, the magistrate held thus; ***“A counterclaim is a suit in its own right so that any party suing must have the capacity to sue. The portion 261 was allegedly registered in the name of Oribo Abuga who passed on in the year 2017. The defendants therefore brought this suit for the benefit of the estate of the late Oribo Abuga and they ought to have taken out letters of administration ad litem to enable them file suit. The plaintiff relies in the case of Isaya Masira Momanyi vs Daniel Omwoyo & another [2017] e KLR to support this assertion.”*** 1. The Respondent had sued the Appellants for their individual actions as set out in paragraph 5 of the plaint thus; ***“On or about the 24th day of May 2017. the defendants herein, without any lawful cause, basis, and without any colour of right whatsoever, entered upon part of the suit property and while thereon commenced building structures in preparation for interring the remains of the deceased; ORIBO ABUGA.”*** 1. They were not sued on behalf of the estate of Oribo Abuga and cannot use the fact of being sued to bring a claim for rights accruing to them through the deceased without following the law. The Appellants do not deny they did not take out letters of administration hence I find the trial magistrate was correct. 2. Lastly, the question of parcel Nyaribari Masaba/Kiamokama/747 was not awarded to the Respondent in the impugned judgment as the Respondent clearly stated in her evidence that she respected the wish of her father who had surrendered the land back to Oribo. A copy of the green card shows Oribo Abuga is the registered owner. In fact, it did not form part of the prayers in the plaint. 3. In light of the foregoing analysis, I hold that there is no merit in this appeal and dismiss it. The judgment of the trial magistrate rendered on 28th February, 2024 is upheld. The costs of the Appeal to the Respondent. **Dated, Signed and delivered at Kisii this 9th day of July, 2026** 1. **OMOLLO** **JUDGE**