https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5046

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELCLA E052 OF 2025** **ALICE OLWENY....................................................................APPELLANT** **VERSUS** **PETER AUMA ONYANGO (Suing as the legal representative of** **SAMUEL ONYANGO OJOWA alias ONYANGO OJOWA (deceased)).....................1ST RESPONDENT** **THE ATTORNEY GENERAL (Sued on behalf of** **THE LAND REGISTRAR)............................................2ND RESPONDENT** *(Appeal from the Judgment and Decree of Hon. Benson Ireri (S.P.M) delivered on the 28th May 2025 in Kisumu CMC ELC No. 62 of 2019)* ## JUDGMENT ### **Introduction** [1] The matter before this Court is an appeal from the judgment delivered on 28 May 2025 in Kisumu MC ELC/62/2019, and the ensuing decree. The dispute concerns ownership of the land parcel known as KISUMU/OJOLA/997. The 1st Respondent herein, Peter Auma Onyango, instituted the suit in his capacity as the legal representative of the estate of his late father, Samuel Onyango Ojowa (alias Onyango Ojowa), against Lawi Olweny Oyoo. Upon subsequent discovery that Lawi Olweny Oyoo was deceased, the plaint was amended on 16 September 2019 to substitute the deceased with the current Appellant, Alice Olweny, in her capacity as the widow and legal administrator of the estate of the late Lawi Olweny Oyoo. [2] Before the Trial Court, the 1st Respondent sought a permanent injunction to prevent the Appellant and her agents from interfering with the land parcel KISUMU/OJOLA/997, including alienating or destroying it, and requested that the District Land Registrar rectify the land register to revert the title to the deceased Samuel Onyango Ojowa. The Trial Court ruled in favour of the 1st Respondent. ### **Evidence Adduced Before the Trial Court** **The Plaintiff's (1st Respondent’s) Evidence** [3] PW1, Peter Auma Onyango, adopted his witness statement dated 26th April 2019 as his evidence-in-chief. He testified that he was born in 1958 and is the son of the late Samuel Onyango Ojowa. He averred that his late father was the registered proprietor of the suit land, KISUMU/OJOLA/997. To substantiate his claims, PW1 produced a bundle of documents, including a Limited Grant of Letters of Administration Ad Litem authorising him to institute the suit; his father’s Certificate of Death, showing the date of death as 16th May 1973; a copy of the search certificate; a statutory notice of intention to institute proceedings against the Attorney General; a demand letter addressed to the Appellant; a certified copy of the land register (green card); the adjudication record showing his father as the declared owner; and an application for Land Control Board consent. [4] The 1st Respondent stated that his family has lived on the suit parcel for generations and that several deceased family members are buried there, whereas the Appellant’s family has never occupied or possessed the property. During cross-examination, PW1 maintained that, because his father died in 1973, it was factually impossible for him to have transferred the land in 1992. [5] PW2, Patricia Akumu Okal, adopted her witness statement dated 21st September 2020. She corroborated PW1’s testimony in full, confirming that their father died in 1973 and never sold the suit land to anyone during his lifetime. She further stated that her family had been in occupation of the suit land since her birth and that the Appellant was a trespasser on the land. [6] PW3, Michael Otieno Auma, a grandson of the deceased, born in 1982, adopted his witness statement dated 21 September 2020. He stated that he had lived on the suit parcel throughout his life. He provided evidence that the land demarcation occurred long before his grandfather’s death. He further testified that he established his own homestead on the land in 2010 and that his late wife, along with his grandmother and mother, were buried on the suit parcel. **The Defendant’s (Appellant’s) Evidence** [7] DW1, Alice Olweny, adopted her witness statement, in which she recorded that her late husband, Lawi Olweny Oyoo, lawfully purchased the suit land in 1992 from Maurice Obondo Alai. DW1 produced several documents to support her claim of lawful acquisition, including an Agreement for Sale of Land dated 15 January 1992, which purported to record the sale of land parcel W. KISUMU/OJOLA/997, measuring 1.1 hectares, from Maurice Obondo Alai to Lawi Olweny Oyoo for a consideration of Kshs. 115,000. She further produced a copy of the Title Deed issued on 18 February 1992 in the name of Lawi Olweny Oyoo, together with an official search confirming this registration. [8] The 1st Respondent averred that although her family did not permanently reside on the land, they visited the property periodically to ensure it was free from squatters. She alleged that during one such visit in 2016, she discovered the 1st Respondent trespassing and erecting structures on the land. [9] Upon cross-examination, she stated that her rural home is not on the suit land. Neither she nor any of her relatives occupy the land. She said her husband worked for the Kenya Commercial Bank and died in 2005. She conceded that Onyango Ojowa was the registered owner of the land when her husband bought it, but that Maurice Obondo was the seller. She said she has the original title to the land and that her husband took a loan of Kshs. 105,000, which he did not fully repay. [10] DW2, Beatrice Atieno Awuor, the widow of the aforementioned Maurice Obondo Alai, stated that her late husband purchased the land from Samuel Onyango Ojowa in 1992. She further claimed that the seller was still alive at the time of purchase and that her husband sold the land to Lawi Olweny Oyoo in the same year due to financial constraints. ### **Judgment of the Trial Court** [11] After evaluating the pleadings, documentary exhibits, and oral testimony, the Trial Court noted that Samuel Onyango Ojowa died in 1973. The Court then observed that the sale agreement relied on by the Appellant to prove her title was dated 15 January 1992 and executed solely between Maurice Obondo Alai and Lawi Olweny Oyoo. The Court found that Maurice Obondo Alai was never the registered owner of the suit property, nor did he hold a valid grant of letters of administration to legally deal with the deceased proprietor’s estate. Grounding its legal determination on Section 45 of the Law of Succession Act, the Court held that the purported transfer of the deceased’s real property without the extraction of letters of administration amounted to unlawful intermeddling, which vitiated the entire transaction. [12] Regarding possession and the Appellant’s trespass claim, the Trial Court held that the oral evidence overwhelmingly showed that the 1st Respondent and his family had been in occupation of the land since the original owner’s death in 1973. Accordingly, the Court issued a permanent injunction restraining the Appellant from interfering with the property and ordered the rectification of the land register. ### **The Memorandum of Appeal** [13] Aggrieved by the Trial Court's judgment, the Appellant filed a Memorandum of Appeal dated 3rd September 2025, on four primary grounds, formulated as follows, namely that the Trial Magistrate: a) Erred in law and fact by misdirecting himself and allowing the plaintiff to shift the cause of action from trespass to fraudulent acquisition without proper pleadings. b) Erred in law and fact by failing to appreciate that a claim of fraud regarding how the Appellant acquired the property known as Kisumu/Ojola/997 ought to have been distinctly pleaded and proved, and, in fact, the court inferred fraud contrary to law, as required under Order 2 Rule 4(1) of the Civil Procedure Rules. c) Erred in law and fact by failing to consider that the 1st defendant had produced a valid sale agreement, a title deed, and an official search, all of which demonstrated lawful acquisition of the suit property. d) Erred in law and fact in finding that the 1st defendant trespassed onto the suit property, despite clear evidence that the land was lawfully acquired and registered in the name of Lawi Olweny Oloo (deceased). ### **The Parties Submissions** [14] The Appellant advanced the primary argument that the 1st Respondent's original suit was fundamentally framed as a claim in trespass. However, as the trial proceedings progressed, the 1st Respondent allegedly shifted the case to one founded on fraud and the illegal acquisition of land. The Appellant submitted that this shift was made without the filing of proper pleadings and without pleading particulars of fraud in the plaint. [15] Relying on Order 2 Rule 4(1) of the Civil Procedure Rules, the Appellant argued that matters such as fraud and illegality must be specifically pleaded and particularised. The Appellant further argued that parties are strictly bound by their pleadings and that a court cannot determine issues that have not been properly raised before it. The Appellant cited the cases of ***Kahora v Ng’ang’a [2025] KEHC 11888 (KLR)*** and ***Daniel Otieno Migore v South Nyanza Sugar Co. Ltd,*** in which the court stated: ***“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded.”*** [16] The Appellant cited a wealth of jurisprudence to support the principle that fraud must be distinctly alleged and strictly proved to a standard higher than the ordinary balance of probabilities. One such decision is the Court of Appeal’s in ***Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR,*** which: ***“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”*** [17] The Appellant strengthened this point by citing ***Kinyanjui Kamau v George Kamau [2015] eKLR,*** which emphasised that allegations of fraud require proof beyond the mere balance of probabilities, and ***Ndolo v Ndolo [2008] 1 KLR (G & F) 74,*** which stated: ***“Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases... In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.”*** [18] The Appellant relied on the statutory doctrine of indefeasibility of title, as enshrined in Section 26(1) of the Land Registration Act. The Appellant submitted that the production of a valid sale agreement, a title deed, and an official search constituted prima facie evidence of absolute ownership. The Appellant argued that, because the 1st Respondent failed to prove fraud, the statutory protection of the title should have remained intact. To this end, the Appellant cited ***Thuku v Kimani & 2 others [2023] KEELC 21323 (KLR)*** and ***Munyu Maina v Hiram Gathiha Maina [2013] eKLR,*** arguing that the burden of proving a defect in the title rests on the challenger. [19] Finally, the Appellant raised the defence of limitation of actions. The Appellant argued that under Section 7 of the Limitation of Actions Act, actions to recover land must be brought within twelve years. As the land was registered in 1992 and the suit was filed in 2019, the Appellant submitted that the action was statutorily barred. The Appellant further argued that Section 26 of the Limitation of Actions Act (which suspends time in cases of concealed fraud) could not apply because the registration was a matter of public record and could have been discovered with reasonable diligence, citing ***Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR)*** to argue against aiding indolent claimants. [20] The 1st Respondent argued that the Appellant’s entire case on appeal was based on a fundamental misunderstanding and misrepresentation of the Trial Court’s ruling. They highlighted that throughout the proceedings, including the amended plaint, evidence, and the trial Magistrate’s judgment, fraud was not pleaded as a ground for challenging the title. Instead, the decision was grounded solely in the doctrine of illegality. The 1st Respondent submitted that the trial court rightly held that the acquisition process was a nullity because it was conducted in violation of Section 45 of the Law of Succession Act. [21] In relation to Section 26(1) of the Land Registration Act, the 1st Respondent submitted that the indefeasibility of title does not protect a registration obtained illegally or unprocedurally. The 1st Respondent argued that Section 26(1)(b) specifically permits the impeachment of a title acquired illegally. The 1st Respondent urged this Court to uphold the Trial Magistrate’s findings. ### **Analysis and Determination** [22] As a first appellate court, the duty of this Court is well-settled and beyond reproach. It is to comprehensively re-evaluate, re-assess, and re-analyse all the evidence tendered before the trial court, both oral and documentary, and to arrive at an independent conclusion, whilst bearing in mind the caveat that the appellate court neither saw nor heard the witnesses testify and must therefore make due allowance for the Trial Magistrate’s assessment of witness demeanour. This principle was succinctly articulated in ***Selle and Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123*,** where the predecessor to the Court of Appeal held: "***“An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears, either, that, he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally”.*** [23] Having appreciated this appellate mandate, the issues in this appeal can generally be categorised into five main areas: a) Whether the trial court impermissibly shifted the cause of action and unlawfully inferred fraud contrary to the rules of pleading under Order 2 Rule 4(1) of the Civil Procedure Rules. b) What is the legal effect of Section 45 of the Law of Succession Act on the transaction resulting in the Appellant’s registration? c) Whether the Appellant’s title is protected by the doctrine of indefeasibility under Section 26(1) of the Land Registration Act, and the distinction between impeachment under Section 26(1)(a) and 26(1)(b). d) Whether the 1st Respondent’s suit was time-barred under the provisions of the Limitation of Actions Act. e) Whether the trial court's finding on trespass against the Appellant was sustainable in light of the evidentiary record. **Fraud, Illegality and the Rules of Pleading** [24] The Appellant’s principal ground of appeal is that the 1st Respondent failed to plead and strictly prove fraud, as required by Order 2 Rule 4(1) of the Civil Procedure Rules. The Appellant further contends that the trial Magistrate misdirected himself by inferring fraud and shifting the cause of action from a simple claim of trespass to one of fraudulent acquisition. To adjudicate this issue properly, it is imperative to set out the exact wording of Order 2 Rule 4(1) of the Civil Procedure Rules 2010, which reads: *“A party shall in any pleading subsequent to a plaint plead specifically any matter, for example performance, release, payment, fraud, inevitable accident, act of God, any relevant Statute of limitation or any fact showing illegality-* *(a) which he alleges makes any claim or defence of the opposite party not maintainable;* *(b) which, if not specifically pleaded, might take the opposite party by surprise; or* *(c) which raises issues of fact not arising out of the preceding pleading.”* [25] The jurisprudence cited by the Appellant, particularly ***Vijay Morjaria v Nansingh Madhusingh Darbar & Another*** and ***Kinyanjui Kamau v George Kamau,*** accurately reflects the settled position of the law in Kenya on the pleading of fraud. It is trite law that allegations of fraud must be distinctly pleaded, particularised, and proved to a standard higher than the ordinary balance of probabilities. Fraud cannot be inferred from circumstances; it must be strictly proved. A reading of the Trial Court’s judgment and the pleadings on record indicates that the Appellant has conflated the legal concepts of “fraud” and “illegality”. The Magistrate’s reasoning and ultimate determination were founded entirely and expressly on the doctrine of illegality under Section 45 of the Law of Succession Act. [26] There is a profound distinction between “fraud” and “illegality” in Kenyan civil and land law. Black’s Law Dictionary (11th Ed) defines fraud as: *“A knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment.”* This involves a deliberate, deceptive scheme and a mens rea of deceit, which necessitates strict pleading of particulars (who, what, when, where, and how the deception occurred) and a high evidentiary burden of proof. [27] According to Black’s Law Dictionary (11th Ed), illegality is *“An act that is forbidden by law.”* This means that if a transaction violates a written law, it is illegal, irrespective of whether the parties acted with deceptive intent or merely out of ignorance. Consequently, proving illegality does not require the elevated standard of proof required for fraud. While the facts showing illegality must be pleaded under Order 2 Rule 4(1) to avoid taking the opposite party by surprise, the standard of proof remains the ordinary civil standard: the balance of probabilities. If the court is satisfied that the facts demonstrate a violation of a statute, the transaction is illegal. There is no requirement in law to particularise illegality to the same rigorous degree as fraud, nor is there a requirement to prove it to a higher standard. [28] On reviewing the Amended Plaint, the analysis indicates that the 1st Respondent pleaded at paragraph 6 that the Appellant’s acquisition of the land was an “illegally” conducted transaction. Because the 1st Respondent pleaded illegality, and the trial court predicated its findings squarely on illegality (specifically, a violation of the Law of Succession Act) rather than fraud, the Appellant’s contention that the court unlawfully inferred fraud is entirely without merit. The Magistrate did not invoke fraud, and there is no legal requirement to particularise and prove illegality to the heightened standard required for fraud. Therefore, the Trial Court did not run afoul of the rules of pleading or the standards of proof. **The Legal Effect of Section 45 of the Law of Succession Act** [29] To determine whether the acquisition of the suit property was indeed illegal, the Court must examine the chain of events in accordance with the strictures of the Law of Succession Act (Chapter 160, Laws of Kenya). Section 45 of the Law of Succession Act provides that: *“(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.* *(2) Any person who contravenes the provisions of this section shall-* *(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and* *(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.”* [30] The legal framework governing the property of a deceased person in Kenya is designed to freeze the estate immediately upon death. The law provides that no person, regardless of their biological relationship to the deceased, commercial intentions, or possession of a purported sale agreement, has the legal capacity to transfer, sell, or alienate the deceased’s property without first obtaining a grant of representation. The transmission of land upon death can occur only by operation of law after a court-issued grant has been obtained and confirmed. [31] Courts in Kenya have consistently adopted a stringent interpretation of Section 45. Any transaction undertaken in contravention of Section 45 is not merely voidable; it is a statutory offence that renders the resulting transaction null and void *ab initio.* Intermeddling encompasses any act or acts that dissipate, diminish, or put at risk the deceased’s free property. ***In re Estate of Isaac Kaburu Marete (Deceased) [2017] eKLR,*** which stated: ***“Acquisition of land before confirmation of grant is unlawful and does not enjoy property rights under the Constitution. [6] Upon meticulous consideration of the protest, all arguments filed and the law, I am of the following persuasion. I will restate once again what I stated in the case of the Matter of the Estate of M’Ajogi M'Ikiugu alias Ikiugu Ajogi (Deceased) on sale of estate property before confirmation of grant as follows:- Sale of estate property before confirmation-Courts have said time and again- and I will not be tired of stating it again- that, under section 82(b) (ii) of the Law of Succession Act, sale of immovable property of the estate before confirmation of grant is prohibited…”*** [32] Applying these statutory principles to the case clearly shows that the transaction was illegal. The Death Certificate proved that Samuel Onyango Ojowa, the registered owner, died on 16th May 1973. The Appellant’s late husband, Lawi Olweny Oyoo, claimed to have purchased the land via an Agreement for Sale dated January 15, 1992. Notably, the agreement listed Maurice Obondo Alai, not the registered owner at the time, as the vendor. [33] The trial Magistrate correctly questioned how Maurice Alai could lawfully transfer a title that did not belong to him. Even if the Court were to entertain DW2’s oral testimony that Maurice Alai purchased the land from Samuel Onyango Ojowa in 1992, that narrative is impossible, as the registered owner had been deceased for 19 years at the time. At the time of the purported sale to the Appellant’s husband in 1992, the estate of Samuel Onyango Ojowa was unrepresented. The record confirms that no grant of letters of administration had been obtained by Maurice Alai, the Appellant’s husband, or any other party at that time. [34] Consequently, any attempt by Maurice Alai to sell the land, and any corresponding attempt by Lawi Olweny Oyoo to purchase and register it, constituted intermeddling with the free property of a deceased person. The transaction contravened the express prohibition in Section 45 of the Law of Succession Act. Accordingly, the resulting transfer of title to Lawi Olweny Oyoo was vitiated by illegality and void ab initio. The Trial Magistrate’s application of the law on this point was faultless. **Indefeasibility of Title** [35] The Appellant asserted that the certificate of title issued to her late husband was conclusive proof of absolute ownership that could only be impeached by proof of fraud. The doctrine of indefeasibility in Kenya is codified in Section 26 of the Land Registration Act, 2012, which provides that: *“26. (1) The certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except* *a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or* *b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme”.* [36] Section 26(1)(b) is intended to ensure that the land register does not become a refuge for titles derived from statutory violations. As noted in the preceding analysis, the Trial Court found, and this Court affirms, that the title was acquired in violation of Section 45 of the Law of Succession Act. Such a violation constitutes an illegal and unprocedural acquisition within the meaning of Section 26(1)(b) of the Land Registration Act. It is a well-established tenet of Kenyan law that a party cannot plead the protection of indefeasibility to shield a title that was procured illegally. **(see** ***Dina Management Limited v County Government of Mombasa and 5 Others [2023] eKLR*.)** [37] In this case, the Appellant’s title rests on an intermeddling transaction that is void *ab initio*. A void transaction cannot confer a valid title, regardless of any subsequent physical certificate of title issued by the land registry. The Appellant's reliance on Section 26(1)(a) regarding the high standard of proof for fraud is therefore legally misplaced. The 1st Respondent successfully impeached the title under Section 26(1)(b) on the basis of statutory illegality. As previously discussed, proving illegality under Section 26(1)(b) does not require the higher standard of proof associated with fraud; it requires only proof on a balance of probabilities that the acquisition process violated the law. The trial Magistrate correctly utilised the illegality of intermeddling to pierce the veil of indefeasibility. **Limitation of Actions** [38] The Appellant submitted that the 1st Respondent’s claim was statutorily time-barred under Section 7 of the Limitation of Actions Act, noting that the suit was filed in 2019, approximately 27 years after the registration of the property in 1992. The Appellant argued that the time for filing suit had long lapsed and that the 1st Respondent could not rely on Section 26 of the Limitation of Actions Act to suspend time, as the registration was a matter of public record. [39] This argument must fail on two distinct grounds. First, the Appellant did not raise this issue in the pleadings before the Trial Court, nor did she raise it in her submissions. She also did not include it as one of the grounds in the Memorandum of Appeal. It arose for the first time in the submissions in support of the appeal. Second, time does not validate an illegality. Since the transfer of the property was executed in contravention of Section 45 of the Law of Succession Act, it was void ab initio. An act that is legally void at its inception cannot mature into a valid legal right merely through the effluxion of time. A nullity remains a nullity, and a court cannot be barred by limitation statutes from declaring an illegal act void. **Findings on Trespass** [40] The final issue concerns the Trial Court's finding that the Appellant’s entry onto the land amounted to trespass. The Appellant argued that, as she held the registered title, she could not be deemed a trespasser in law, and that it was the 1st Respondent who was trespassing on her property. Having affirmed the Trial Court’s finding that the Appellant’s title was acquired illegally and was thus a nullity, it follows that the Appellant possessed no lawful authority to enter, utilise, or interfere with the suit property. The Trial Court’s issuance of a permanent injunction to halt this trespass was, therefore, entirely justified, legally sound, and supported by the weight of the evidence on record. **Final Orders** [41] After re-evaluating the evidence and the law, this Court finds that the Appellant’s appeal is without merit. Accordingly, the Court orders: a) The Appeal is hereby dismissed in its entirety. b) The Judgment and Decree of Hon. Benson Ireri (S.P.M) delivered on the 28th of May 2025 in Kisumu CMC ELC No. 62 of 2019 is wholly upheld and affirmed. c) The 1st Respondent shall have the costs of this Appeal, to be borne by the Appellant. **Delivered, signed, and dated this 23rd day of July 2026.** **C.C. Oluoch** **Judge** In the presence of: Faith Court Assistant In the absence of both parties