https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3954

Amollo & 2 others v Obetto & 2 others (Environment and Land Appeal E003 of 2025) [2026] KEELC 3954 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELC 3954 (KLR) Republic of Kenya In the Environment and Land Court at Siaya Environment and Land Appeal E003 of 2025 AE Dena, J June 29, 2026 Between Stephen Odhiambo Amollo 1st Appellant Emily Atieno Amollo 2nd Appellant Booker Amollo 3rd Appellant and Boaz Otieno Obetto 1st Respondent Manasses John Obetto 2nd Respondent Omondi Winj 3rd Respondent Judgment 1.The Appellants being aggrieved by the judgement of Hon J.P. Nandi dated 29/11/2024 delivered on 17/12/2024 in Bondo Principal Magistrate Court PMCELCC No. 025 of 2023 penned the following grounds of appeal; -1.The Learned Trial Magistrate erred in law and in fact in making a finding that the 1st and 2nd Respondent has made out a case of adverse possession thus finding in their favour.2.The Learned Trial Magistrate erred in law and in fact in failing to appreciate that the 1st and 2nd Respondents had failed to establish all the necessary ingredients to make a favourable finding of adverse possession on their behalf.3.The Learned Magistrate erred in law and in fact in failing to establish that part of the suit land was already in the name of the 1st and 2nd Respondents and to that extent, the Respondents move seeking adverse possession against a title held by themselves albeit illegally.4.The Learned Magistrate erred in law and in fact in failing to appreciate the issues before him by narrowing it down to a single issue of adverse possession.5.The Learned Magistrate erred in law in failing to appreciate that the claim for adverse possession as presented by the 1st and 2nd Respondents was not only an afterthought but that it also lacked the jurisdiction to entertain that claim by virtue of the provisions of Section 38 of the Limitations of Actions Act.6.Having made a finding that the 1st and 2nd Respondent has unlawfully and irregularly had the suit land, irregularly subdivided and registered in their names, the Learned Trial Magistrate erred in law and in fact in making a finding that the 1st and 2nd Respondents were entitled to the said land.7.The Learned Trial Magistrate having made a finding that the Appellants had succeeded in their counterclaim, the Learned Magistrate erred in law and in fact by awarding the 1st and 2nd Respondents the suit land.8.Having found the suit land had been irregularly and illegally subdivided by the 1st and 2nd Respondents, the Learned Trial Magistrate erred in law and in fact in rewarding the Respondents the suit land.9.The Learned Trial Magistrate erred in law and in fact in failing to appreciate that the 1st and 2nd Respondent’s evidence was full of material contradictions that could not have sustained any positive finding in their favour.10.Having failed to appreciate the issue before him, the Learned Trial Magistrate failed to internalize and analyze the facts, law and appreciate the submissions filed by the Appellant and apply the correct law to enable him arrive at a correct and just decision.11.The Learned Trial Magistrate failed to apply himself judicially and to adequately evaluate the evidence and exhibits by the Appellant and thereby arrived at a decision unsustainable in law.12.The judgment was against the weight of evidence prosecuted by the Appellant. 2.On the basis of the above grounds the Appellants seek the following reliefs; -1.The Appeal be allowed to the extent that the claim presented by the 1st and 2nd Respondent be dismissed and the counterclaim be sustained.2.Costs of this Appeal and of the Lower Court be granted.3.Such further and/or other reliefs as this court may deem just and fit to grant. 3.Directions were issued by the court that the appeal proceeds by way of written submissions which parties complied. Appellants Submissions 4.The Appellants through the firm of Odongo Awino & Co. Advocates dated 14/10/2025 condensed the twelve (12) grounds of appeal herein into 2 as follows; -1.The Learned Magistrate erred in law by holding that the 1st and 2nd Respondent had acquired title to the suit land by adverse possession, a claim that was unproved and further erred in finding and judgment when the said land was already registered in the 1st Respondent's name, thereby rendering the claim legally untenable.2.The Learned Magistrate lacked jurisdiction to entertain and determine a claim for adverse possession, the same being a preserve of the environment and Land Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 5.The Appellants framed three issues for determination namely Whether the claim for adverse possession was proved; Whether a person already registered as proprietor can claim title to the same land by adverse possession and Whether the Trial Court had jurisdiction to entertain the suit. 6.It is submitted that the entry into the land while in its original form being No. Siya/Got Agulu/940 was permissive in nature. The subsequent purchase of part of the land from the 1st Respondent done in the year 2008 demonstrates that his entry was predicated on a belief that he had obtained permission and title through a commercial transaction. That the 1st Respondent did not enter as a trespasser or a squatter, but as a purported purchaser. The entry was with permission and cannot be considered "adverse". Reliance is placed in Mtana Lewa v Kahindi Ngala Mwangandi [2015] eKLR, 7.That the presence of the 2nd Appellant, who was operating a business ("a going concern") on the suit property including his settlement therein with his family amounted to shared occupation as well as physical interruption of the 1st and 2nd Respondent’s possession. Thus, the Respondents' use of the land was neither exclusive nor uninterrupted but was shared and contested. The statutory 12-year period, if it ever began, was broken by the entry and occupation of the Appellants. 8.It is submitted that by pleading that the Appellants should "grant" him quiet possession, the 1st respondent acknowledges he is not the true possessor. A clear admission that his possession is not "as of right." 9.The 1st and 2nd Respondents' admission of being purchasers and registered proprietors of the suit property contradicts the doctrine of adverse possession, which presupposes that the claimant is a trespasser whose possession is averse to the title of the registered owner. The 1st Respondent could not maintain a claim for adverse possession over land for which they already hold title. The court is referred to the Court of Appeal decision in Wambugu v Njuguna [1983] KLR 172 and the case of Mwilu v Muyanga & another (Environment & Land Case E003 of 2021) [2023] KEELC 20726 (KLR) 10.The Appellants contend that, the trial Court in its finding No. 3 directed for the cancellation of title No. Siya/Got Agulu/1629 and SIAYA/ GOT AGULU/ 1630 and in finding No. 5 directed that upon such cancellation being affected, the Respondent's do commence succession proceedings with a view to transferring the land into the name of the 1st and 2nd Respondents. This finding is termed erroneous in law, fundamentally misapprehending the nature of both adverse possession and succession law, and results in a grave miscarriage of justice. That the 1" and 2nd Respondents' registration as the proprietors of the new title fundamentally undermined their claim for adverse possession. That adverse possession is not a remedy to cure a defective title acquired through an illegal process. 11.Further that the estate of the deceased, Booker Amollo Omondi, upon his death, became a vestible property held in trust for all his lawful beneficiaries, who may include children, spouses, and other dependents as per the Law of Succession Act (Cap 160). The land parcel LR No. Siya/Got Agulu/940 forms part of this estate. 12.It is contended further that by the orders issued the trial court usurped the role of the Succession Court: It pre-determines the distribution of an estate asset outside of a proper succession cause, where all beneficiaries can be heard. It illegally extinguishes the proprietary rights of all other beneficiaries without their consent, knowledge, or any due process and who were not party to the proceedings. 13.On jurisdiction of the trial court to determine cases of adverse possession reliance is placed in the Court of Appeal decision in the case of Sugawara v Kiruti (Sued in her capacity as the Administratrix of the Estate of Mutarakwa Kiruti Lepaso alias Mutaragwa Kiruti Lepaso alias Mutaragwa Kiroti Leposo and in her own Capacity) & 3 others (Civil Appeal E141 of 2022) [2024] KECA 1417 (KLR) (11 October 2024) (Judgment), where the Court of Appeal emphasized that claims for adverse possession fall within the jurisdiction of the ELC and not the Magistrate's Court, unless specifically conferred jurisdiction under the enabling statute. 14.That though not raised before the trial court the issue of jurisdiction is very fundamental, it can be raised at any stage, even on appeal, as such an issue goes to the root of the proceedings. The court is referred Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service (Civil Appeal 244 of 2010) [2019] KECA 767 (KLR) (Civ) (10 May 2019) (Judgment) and Floriculture International Limited v Central Kenya Limited & 3 others [1995] KECA 147 (KLR). 15.It is further submitted that the claim as presented by way of plaint and not Originating Summons as contemplated under the provisions of Order 37 Rule 7 of the Civil Procedure Rules, 2010, read together with Section 38 of the Limitation of Actions Act (Cap 22). It cannot be cured under Article 159(2)(d) of the Constitution or Section 100 of the Civil Procedure Act, as it goes to the root of the court's jurisdiction and competence of the pleadings. The court is referred to Kweyu v Omuto [1990-1994] EA 234 and Kimani Ruchine & Another v Swift Rutherford & Co. Ltd [1980] KLR. 16.The court is urged to find merit in the appeal, set aside the judgment of the Trial Court in its entirety, and substitute it with an order dismissing the 1st and 2nd Respondent's suit with costs, both in the lower court and in this Appeal and confirming the judgment of the Trial Court as far as their counterclaim is concerned with costs. The Respondents’ Submissions 17.The Respondents submissions are dated 1/12/2025 condensed the 12 grounds of appeal into two and in relation thereto identified two issues Whether the trial court had the jurisdiction to determine a claim for adverse possession at the time it did and whether the claim for adverse possession was merited 18.Citing the Court of Appeal in the case of Peter Mbiri Michuki v Samuel Mugo Michuki [2014] eKLR which dismissed an appeal founded on a claim for adverse possession emanating from a Magistrate Court it is submitted that prior to the recent clarification issued by the court of appeal, there had been divergent positions in the High Court and subordinate courts regarding the jurisdiction of Magistrates in such matters. The trial court therefore exercised jurisdiction in good faith and in accordance with the then-prevailing legal understanding. 19.That the later pronouncement by the Court of Appeal cannot retrospectively render its decision null and void. Relying on the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, it is further urged that the Supreme Court held that jurisdiction flows from the Constitution or statute, and that judicial pronouncements clarifying jurisdiction operate prospectively unless the contrary is stated. 20.That in Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd [2014] eKLR, the Court emphasized that the principle of finality of judgments and the rule of law would be undermined if subsequent judicial interpretations were to invalidate decisions rendered in accordance with the law as previously understood. That a decision of the Court of Appeal delivered after the Magistrate's judgment cannot retroactively take away from the lower court jurisdiction it lawfully exercised under the then-prevailing legal framework. 21.In response to the contention that an already registered proprietor cannot benefit from order of adverse possession it is submitted that this argument misconstrues the factual and legal basis of the trial court's decision, especially because the Respondents had proven long and uninterrupted possession of the suit land for a period exceeding twelve (12) years. The trial court correctly found that registration does not override long-standing possession that meets the threshold for adverse possession. Registration under the Land Registration Act, 2012 is subject to overriding interests under Section 28(h), which expressly includes rights acquired by adverse possession. Therefore, the Respondents' possession, which had matured by law, constituted an overriding interest binding upon the registered title. 22.It is submitted that the case was registered in 2023, parties dispensed with pre- trial directions proceeded to hearing fully defended, That the defendants never arrested the judgement herein, whatsoever, since the court of appeal decision came after. The appellants now want the law to act in retrospect. The court is urged to stop them in their malice. 23.The court is urged to dismiss the appeal. Analysis And Determination 24.Having analyzed the Record of Appeal, the rival submissions of the parties, the twelve grounds of appeal can be consolidated into the following main issues for determination1.Whether the trial court had jurisdiction to hear and determine the claim for adverse possession and if yes2.Whether the Plaintiffs/Respondents proved the claim for adverse possession3.Whether having made a finding that the Appellants had succeeded in their counterclaim, the Learned Magistrate erred in law and in fact by awarding the 1st and 2nd Respondents the suit land.4.What reliefs ought to issue5.Who bears the costs of this appeal? 25.This is a first appeal. The Court of Appeal in Peterson Ndung’u, Stephen Gichanga Gituro. N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani V Kenya Power & Lighting Company Ltd [ 2018] Eklr stated as follows regarding the duty of the first appellate court: -“………………..This being a first appeal , we are reminded of our primary role as a first appellate court namely to re-evaluate , re-assess and reanalyze the extracts on record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons why...............On a first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate itself and draw its own conclusions though it should always beware in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence……....”Also see Kenya Ports Authority Vs Modern Holdings Ltd (EA) Limited (2017) KECA 293 KLR. 26.The duty of an appellate court is further stipulated under Section 78 of the Civil Procedure Act which reads; -“Subject to such conditions and limitations as may be prescribed, an appellate court shall have power;SUBPARA (a)to determine a case finally;SUBPARA (b)to remand a case;SUBPARA (c)to frame issues and refer them for trial;(d)to take additional evidence or to require the evidence to be taken;(e)to order a new trial.(2,)Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.” Whether the trial court had jurisdiction to hear and determine the claim for adverse possession 27.This court notes that the jurisdiction of the trial court to determine the claim of adverse possession was never an issue during the trial court proceedings. Infact the respondents herein contend that this court should not entertain the issue. 28.Indeed the desired position is that an objection on jurisdiction should be raised at the earliest opportunity for reason that without jurisdiction a court cannot move any further step in a matter in the absence of jurisdiction - see Owners of Motor Vessel ‘Lilian S’ Vs Caltex Oil (Kenya) Limited 1989. However, the issue of jurisdiction being raised post judgement has now been settled by the Court of Appeal in Floriculture International Limited Vs Central Kenya Ltd & 3 Others (1995) eKLR and Kenindia Assurance Co. Ltd Vs Otiende (1989) 2KAR 162. 29 .Counsel for the respondents have urged that judicial pronouncement clarifying jurisdiction operate prospectively unless the contrary is stated. While this may be the position, I think the Court of Appeal restated the law as it has always been with regard to section 38 of the Limitation of Actions Act which is the substantive or foundational statute on jurisdiction as pertains adverse possession. I will revisit this issue later in this judgement. 30.The Plaintiff in the Re Amended plaint under prayers a) and b) sought a declaration that the title of No. Siya/Got Agulu 1630 and 940 has been extinguished by the plaintiff’s adverse possession thereof for a period of 12 years in terms of the Limitation of Action Act. That the plaintiffs have become entitled thereto by dint of the said adverse possession. 31.The jurisdictional point arises from the decision of the Court of Appeal in the case of Pauline Chemuge Sugawara Vs Nairuko Ene Mutarakwa Kiruti (2024) KECA 1417 (KLR). Indeed, the court discussed various decisions of the ELC court on the Jurisdiction of the Magistrates Court. These covered those in support of the proposition that the Magistrates Court is vested with Jurisdiction and decisions against, but with more recent decisions in the year 2023 taking the position that the Magistrates Courts are not seized with jurisdiction to adjudicate upon claims founded on adverse possession on the face of explicit provisions contained in section 37 & 38 of the Limitation of Actions Act cap 22 of the Laws of Kenya. 32 .The Court of Appeal delivered its judgement on 11/10/2024 and held that the Magistrates court lacked jurisdiction to hear matters under the provisions of section 37 and 38 of the Limitation of Actions Act. 33.In clarifying the law, the learned Judges of the Court of Appeal held thus; -“Notwithstanding the expansion of the jurisdiction of environment and land usage to the Magistrates Courts, it is instructive that under Section 9 (a) of the Magistrates Court Act, various matters are specified for determination, but claims for adverse possession are not included in that section. And that, it is only the Environment and Land Court which has jurisdiction to hear and determine claims for adverse possession." 34.Clearly from the foregoing dictum the Court of Appeal simply restated the law as it had been since time immemorial as earlier observed. I would not call it a clarification. The impugned judgement herein was prepared and delivered after the judgement of the Court of Appeal. It is submitted that the defendants’ appellants never arrested the judgement and are now estopped. The court will in this regard be guided by the fact that the trial court was not seized of jurisdiction under section 38 of the Limitation of Actions Act. 35.I’m further emboldened by The Court of Appeal holding in Desai v Warsama [1967] EA 351 thus; -“A judgment given without jurisdiction is void; it cannot be sanctified by the passage of time or the silence of the parties.” 36.My hands are tied by the decision of the Court of Appeal and I cannot depart from it. It is the finding of this court that the trial Magistrate having lacked jurisdiction to entertain a claim of adverse possession the findings of adverse possession in favor of the decree holder herein cannot be sustained. 37.It is the finding of this court that the trial court lacked jurisdiction to determine the claim for adverse possession. 38.In view of the above finding the court will not review the merits of the trial court decision awarding the suit property to the plaintiff pursuant to adverse possession. 39.The court however notes from a perusal of the pleadings that the Plaintiffs claim was presented in two limbs. In addition to the claim for adverse possession, the plaintiffs also claimed as purchasers. Under this limb it is their case that they purchased land in two tranches. At paragraph 9 of Re-Amended Plaint, it is averred that other than the occupation and possession of 12 years the plaintiffs are bonafide purchasers for value without notice, of the entire parcel No. Siya/Got Agulu 940. This is expounded at paragraph 12 where the plaintiff averred that a sale agreement was entered on 8/4/2006 between the 1st Plaintiff and the 1st Defendant for half the land for a consideration of Kshs. 100,000/-. At paragraph 12 the second transaction took place on 17/12/2008 between the same parties. The particulars of breach of trust at paragraph 45 also reiterates the purchasers claim. The prayers for eviction and permanent injunction in my view are premised on this claim as well. 40.In its Defence & Counterclaim Further amended on 23/01/2024 the 1st 2nd and 4th defendants averred at paragraph 4 that purchase of No. Siya/Got Agulu/940 was conducted while the same was still registered in the name of Booker Amollo Omondi who had died in 1997 consequently the purported vendors had no legal capacity and or authority to enter into any transaction alienating the deceased property or any part thereof. That the sale was void abinitio. At paragraph 5 it is averred any acts of partitioning/subdivision into No. Siya/Got Agulu/1630 and 1629 were termed as intermeddling with the estate of the deceased within the meaning of section 45 of the Law of Succession Act. 41.This limb of the claim therefore was not affected by the plea of jurisdiction and I will therefore proceed to discuss and make a determination on the same. 42.Did the trial court pronounce itself on the issue? my reading of the judgement shows that the trial court identified the purchase of the land which belonged to the deceased and the fact that the parcel No. Siya/Got Agulu/940 was at the time registered in the name of Booker Amollo Omondi (deceased) as facts which were not in dispute. Other facts identified as not in dispute was the subdivision of the same without succession being done. That the parties were in agreement the said subdivision and transfer of the resultant title deeds was illegally done. 43.In their submissions at the trial court dated 1/10/2024 the defendants at paragraph 25 pointed that the prayer that the title be vested and confirmed in the name of the plaintiffs after due process was an admission by the plaintiffs that the manner in which they acquired the property by purchase was tainted with illegality thus the request the acquisition be ‘re-started afresh’ to enable them get good title. 44.The Plaintiffs on the other hand had submitted that even if the court were to find that the two sale agreements were void and illegal on account of intermeddling, the mere fact of the plaintiff’s continued possession of the portion of the suit land from the year 1980 when the 1st plaintiff took possession or 2006 since the 1st sale agreement was executed and later whole possession taken after 2008 is self evidence of adverse possession. 45.The trial court then proceeded to cancel the titles for the subdivisions and reverted the land to its original land being No. Siya/Got Agulu/940 in the name of Booker Amollo Omondi (deceased). The trial court then undertook an analysis of the claim largely on the basis of adverse possession. The trial court found thus; -“In conclusion I find that the plaintiffs have been able to prove their claim based on adverse possession and not on the sale agreements" 46.Clearly from the foregoing the court did not allow the claim based on the sale agreement. Moreover, the analysis was largely silent on the issue except that the trial court based the computation of the statutory period of limitation to have commenced from the time of payment of the purchase price. I have already made a finding that the trial court was divested of jurisdiction to determine the claim of adverse possession. 47.But adding my voice to the issue, the claim based on purchase was not sustainable. It appears that it is not in dispute that the original title was in the name of Booker Amollo Omondi (deceased) the plaintiff pleadings infact state that they undertook the transaction awaiting succession. It is clear from the reliefs granted that as at the time of the impugned judgement succession had not been undertaken. 48.The two sale agreements could not stand the legal test. I say so because Section 45 of the Law of Succession Act provides that no person shall take possession of, dispose of, or otherwise intermeddle with any free property of a deceased person, unless authorised by law. In the Re Estate M’Etirikia Nkatha (deceased) [2021] eKLR, the court held that any party seeking to transfer a deceased property before confirmation of a grant has to make an application for partial confirmation of the grant to allow them to sell a portion thereof. This was not done. 49.In Virginia Mwari Thuranira -vs- Purity Nkirote Thuranira [2017] eKLR, the court nullified the sale agreement under Section 82(b)(ii) of the Law of Succession Act, for the seller had not become a legal representative with authority to deal with the estate, since dealing with the land amounted to intermeddling with the property, hence was an illegality or a nullity. 50.In Isaya Masai Mwita v Joseph Mwangi Mbugua [2017] eKLR held: “An agreement to sell land that is not owned by the seller, nor backed by a grant of representation where the land is registered in a deceased's name, is void for all purposes.” 51.In D. Njogu & C. Advocates -vs- National Bank of (K) Ltd [2016] eKLR, the court observed that any contract that contravenes a statute is illegal ab initio and unenforceable. It is not enough therefore to submit that the agreements were made in good faith to help the Defendants. 52.But I think it is the orders made by the trial court that are being challenged in this appeal. The trial court entered judgement as follows; -1.That an order is hereby issued directing the Land Registrar Bondo to cancel titles over parcels No. Siya/Got Agulu/1629 and 1630 in the names of Stephen Odhiambo Amollo & Joshua Omondi Amollo and Manasses John Obetto & Eagle - Eyed Investigators and be reverted back to the original land being No. Siya/Got Agulu/940 in the name of the late Booker Amollo Omondi.2.That the plaintiffs are hereby declared to have become entitled to the WHOLE of parcel Number LR. No. Siya/Got Agulu/940 measuring approximately 1.20Ha, by having had adverse possession of the said land for over twelve (12) years, precisely 17 years having occupied, used and enjoyed peacefully and openly as of right without interruption.3.That an order is hereby issued against the 1st, 2nd and 3rd defendants compelling them to commence succession in respect of the late Booker Amollo Omondi to be able to transfer and register the land parcel L.R No. Siya/Got Agulu/940 measuring approximately 1.20Ha to the plaintiffs.4.That an order of a permanent injunction is hereby issued restraining the defendants, their servants, agents, employees, heirs and assignees and/or any other person(s) acting on their behalf from interfering with the plaintiffs' occupation, enjoyment and use of land LR. No. Siya/Got Agulu/940 measuring approximately 0.58 Ha as demarcated on the ground.5.That since the parties have succeeded in their cases each party to bear own costs of the case and counterclaim. 53.I have already noted elsewhere in this judgement that the trial court on the basis that the parties were in agreement the said subdivision and transfer of the resultant title deeds was illegally done and proceeded to cancel the title. I will add that when PW1 was recalled for further cross examination by Mr. Odongo he testified that ‘any subdivision done was illegal as the owner of the registered land was deceased.’ Cross examined by Lawi Advocate PW1 told the court ‘I want the title deed to be reverted back to 940’. Cross examined by the court PW1 testified that ‘They did not do succession but they transferred the land to me’. PW2 evidence in chief was that ‘The title was transferred to us illegally’ Cross examined by Lawi Advocate PW2 told the court that ‘…my father did not execute the transfer documents as well as myself and the said transfer is void abnitio’ PW3 upon cross examination by Mr. Odongo told the court that ‘At the time, the land was in the name of Late Booker Amollo, the sisters had no authority to sale the land of the deceased,.it was an illegality which I presided over’ 54.The power to cancel title is donated to the court including rectification of the register under the provisions of section 80 of the Land Registration Act which provides as follows; -80.Rectification by order of Court(1)Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.(2)The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default. 55.The circumstances of this case resonate with the above where there was omission to undertake succession proceedings and the belief that parties had capacity to dispose of the property as long as the widow and the deceased had no issues (infact they witnessed the agreements). The trial court did not err therefore in cancelling the titles and reverting it to the deceased name. Indeed, transactions founded on intermeddling of deceased’s estates are untenable in law, null and void. The trial court further having found in favor of the plaintiffs by dint of adverse possession proceeded to make orders which would facilitate the enforcement of its orders. 56.The trial court made an order directing that the defendants commence succession proceedings in respect of the late Booker Amollo Omondi to be able to transfer and register the land parcel L.R No. Siya/Got Agulu/940 measuring approximately 1.20Ha to the plaintiffs. The Appellants contend that is the preserve of the probate court and amounted to distribution of the deceased estate without hearing the other beneficiaries who were not party to the proceedings in the trial court. 57.This court is of the considered view that having made the orders of adverse possession in favor of the plaintiff for the entire land the only order that would be required would be for the rectification of the register by the Land Registrar. The trial court role was to determine ownership and which he had done. 58.But what about the counterclaim raised by the defendants in response to the main suit? The trial court made a final order to the effect that since the parties have succeeded in their cases each party to bear own costs of the case and counterclaim. The contention by the appellants is that having nullified the subdivisions for the reasons already noted then the trial court should not have vested the land to the plaintiffs. I will be very brief on this point. I have already noted that from the judgment the plaintiff’s suit was successful on the claim for adverse possession and it failed on the claim of bonafide purchasers. The appellants contestation cannot therefore be right. It follows therefore the counterclaim could not be sustained in view of the trial court finding on adverse possession except that the trial court was divested of jurisdiction to hear and determine a claim for adverse possession. 59.I think I have said enough to demonstrate that the appeal succeeds to the extent that the trial court did not have jurisdiction to hear and determine a claim for adverse possession. The orders requiring the commencement of the succession proceedings shall collapse with the finding that the trial court had no jurisdiction to hear and determine the claim for adverse possession. The orders of cancellation of the titles shall be sustained to the extent that the subdivisions were found to be illegal and rightly so, the same shall revert to L.R No. Siya/Got Agulu/940 in the deceased name Booker Amollo Omondi. 60.The court however notes that the plaintiffs in the main suit are in possession of the portion of the suit property. By dint of the purported sale and occupation I think the plaintiffs still have an opportunity to claim as possible creditors in the succession proceedings and pending the confirmation and distribution of the deceased estate -Booker Amollo Omondi. Consequently, the court is inclined to order that the status quo be maintained with regard to their occupation on the ground upto the date of confirmation of the grant. 61.Who bears the costs of this appeal? It is trite that costs follow the event. However, the same are discretionary. Based on the facts and circumstances of this case I think it would be prudent to let each party bear their own costs of this appeal. 62.The appeal partly succeeds and is disposed of by making the following orders; -1.The Appeal be and is hereby allowed to the extent that the claim presented by the 1st and 2nd Respondent be dismissed.2.That an order is hereby issued directing the Land Registrar Bondo to cancel titles over parcels No. Siya/Got Agulu/1629 and 1630 in the names of Stephen Odhiambo Amollo & Joshua Omondi Amollo and Manasses John Obetto & Eagle - Eyed Investigatorsand be reverted to the original land being No. Siya/Got Agulu/940 in the name of the late Booker Amollo Omondi.3.An order of status quo hereby issues in terms of the Plaintiffs occupation on the ground pending the confirmation of grant and distribution of the estate of the late Booker Amollo Omondi with regard to the parcel No. Siya/Got Agulu/940. These orders shall terminate on the date the grant is confirmed by the relevant court.4.The parties to bear their own costs of this appeal. DELIVERED AND DATED THIS 29TH DAY OF JUNE 2026.HON. LADY JUSTICE A.E. DENAJUDGE29/06/2026Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:Mr. Siwolo holding brief for Mr.Odongo for the AppellantsMr. Okanda for RespondentsCourt Assistant:Dorothy Wanyanga