https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5323

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC APPEAL NO. E031 OF 2024** **(Formerly Kisumu CMCC ELC Case No. 88 of 2022)** **RECHO ANYANGO APUT (Suing as the Legal Representative and Administrator of the Estate of JOHNSON OCHIENG AKUNO (Deceased))APPELLANT** **-VERSUS-** **GLADYS AKINYI OGIRA1ST RESPONDENT** **THE HON. ATTORNEY GENERAL2ND RESPONDENT** ***(Being an appeal from the Judgment and Decree of Hon. E.N. Mwenda, Principal Magistrate, delivered on 16th May 2024 in Kisumu Chief Magistrate's Court ELC Case No. 88 of 2022)*** **JUDGMENT** 1. This is a first appeal arising from the Judgment and Decree of Hon. E.N. Mwenda, Principal Magistrate, delivered on 16th May 2024 in Kisumu Chief Magistrate's Court ELC Case No. 88 of 2022. The Appellant, who was the Plaintiff before the trial court, is aggrieved by that Judgment to the extent that it dismissed her suit as against the 1st Defendant (the 1st Respondent herein) and the 4th and 5th Defendants (the Land Registrar, Kisumu County and the Hon. Attorney General, the latter being the 2nd Respondent herein). 2. The suit before the trial court was commenced by way of a Plaint dated 16th August 2022. The Appellant sued in her capacity as the legal representative and administrator *ad litem* of the estate of her late brother, Johnson Ochieng Akuno (“the Deceased”), pursuant to a Limited Grant of Letters of Administration *ad litem* issued on 20th April 2022 by the Senior Principal Magistrate's Court at Winam in Miscellaneous Succession Cause No. E010 of 2022. She sued Gladys Akinyi Ogira as the 1st Defendant, Joseph Ochieng and Joseph Otieno as the 2nd and 3rd Defendants respectively, the Land Registrar, Kisumu County as the 4th Defendant and the Hon. Attorney General as the 5th Defendant. 3. The Appellant's case as pleaded was as follows: that her grandfather, one Kwoka Weya (Deceased), was at all material times the sole registered proprietor of land parcel No. Kisumu/Kadongo/853; that upon his demise on or about 4th February 1987, her brother, the said Johnson Ochieng Akuno, undertook succession and had the parcel transmitted to his name; that Johnson Ochieng Akuno thereafter subdivided the said parcel into two portions, namely land parcels Nos. Kisumu/Kadongo/5634 and Kisumu/Kadongo/5635, both registered in his name; that Johnson Ochieng Akuno died on 24th December 2020; and that upon conducting an official search at the lands office before the family could commence succession over his estate, she discovered that the 1st Defendant had, without any colour of right, procured the transfer and registration of land parcel No. Kisumu/Kadongo/5635 into her name on or about 18th January 2021. 4. At paragraph 11 of the Plaint, the Appellant set out particulars of fraud and illegalities on the part of the 1st Defendant, namely: intermeddling with the estate of the Deceased; forging the consent of the Land Control Board; forging the signature of the Deceased when executing fake land transfer forms; transferring the suit land without obtaining copies of the Deceased's KRA PIN certificate and passport-size photographs; failing to inform the Deceased's family of any claim or to file a citation cause; failing to follow the due process laid down in the Law of Succession Act, Cap 160; and colluding with the 4th Defendant to transfer the suit land into her name. As against the 2nd and 3rd Defendants, the Appellant pleaded trespass upon land parcel No. Kisumu/Kadongo/5634. She sought orders of cancellation of the impugned registration, reversion of title to the name of the Deceased, a permanent injunction, eviction, damages for trespass and *mesne* profits, and costs. 5. The 1st, 2nd and 3rd Defendants neither entered appearance nor filed any defence despite service. The 4th and 5th Defendants filed a Statement of Defence dated 19th September 2022 through the Hon. Attorney General, denying the allegations in the Plaint and averring that if there was any transfer and registration of the suit property, the same was based on documents presented before the 4th Defendant's offices, who exercised due diligence, and that the ensuing registration was conclusive proof of ownership pursuant to Section 26 of the Land Registration Act, No. 3 of 2012. 6. At the hearing, the Appellant testified as PW1 and was the sole witness. She adopted her witness statement dated 16th August 2022 and produced her documents as exhibits, including the Limited Grant *ad litem*, the green cards for land parcels Nos. Kisumu/Kadongo/853, 5634 and 5635, certificates of official search, and the death certificates of Kwoka Weya and Johnson Ochieng Akuno. Her evidence was that no succession had been undertaken in respect of her late brother's estate and that the search revealed that parcel No. 5635 was no longer in his name. The 4th and 5th Defendants closed their case on 11th March 2024 without calling any witness. 7. By the Judgment impugned herein, the learned trial magistrate held that the standard of proof for fraud is higher than a mere preponderance of probabilities; that the Appellant had pleaded that the 1st Defendant forged documents and signatures to perpetrate the fraud, but the said forgeries were not placed before the court; that the documents in question being public documents contained in the Land Registrar's parcel file, the court was not told why they had not been presented; and that consequently, the court could not rule in the Appellant's favour despite the cause being undefended. The learned trial magistrate accordingly dismissed the suit against the 1st Defendant with no order as to costs, dismissed the suit against the 4th and 5th Defendants with costs upon finding that collusion had not been proved, and issued a permanent injunction restraining the 2nd and 3rd Defendants from interfering with land parcel No. Kisumu/Kadongo/5634, with costs to the Appellant as against them. **The Appeal** 8. Aggrieved by the said Judgment, the Appellant preferred the instant appeal vide a Memorandum of Appeal dated 31st May 2024 and filed on 5th June 2024, raising the following four grounds: *i. That the learned Honourable Principal Magistrate erred in law and in fact in finding that the Appellant did not plead or specify the particulars of fraud as against the Respondents;* *ii. That the learned Honourable Principal Magistrate failed to appreciate that the 1st Respondent's claim and title to land parcel No. Kisumu/Kadongo/5635 was being impeached on other grounds (including illegality) apart from fraud;* *iii. That the learned Honourable Principal Magistrate erred in law by imposing upon the Plaintiff, now Appellant, a higher standard of proof than the one ordinarily expected in civil cases including those involving fraud, and further erred in law and in fact by shifting to the Plaintiff the evidential burden of proof on matters that were otherwise asserted in the 2nd Respondent's pleadings; and* *iv. That the judgment on the matter under appeal was given against the weight of evidence.* 9. The Appellant prayed that the Court sets aside the portion of the Judgment subject to this appeal and allows both the appeal and the suit in the trial court as against the two Respondents herein, with costs of the appeal and of the suit in the lower court. 10. The appeal was canvassed by way of written submissions. The Appellant filed her written submissions dated 9th February 2026 through the firm of M/s Juliet Dima & Associates Advocates. Despite being duly served, neither the 1st Respondent nor the 2nd Respondent filed any submissions in response. **The Appellant's Submissions** 11. Counsel for the Appellant submitted that this being a first appeal, the Court is enjoined to re-evaluate and re-analyse the entire evidence and draw its own conclusions. On the first issue, counsel submitted that pleadings must be read as a whole and not selectively, and that the particulars pleaded at paragraph 11 of the Plaint met the threshold required under Order 2 Rule 10 of the Civil Procedure Rules, 2010. It was submitted that although the trial court correctly acknowledged that fraud was pleaded with particulars, it erred in concluding that the Appellant had failed to prove the same, and in adopting a narrow and technical view of proof by insisting on the production of forged transfer instruments while disregarding compelling circumstantial and documentary evidence pointing to fraud and illegality. 12. Counsel submitted that the Appellant demonstrated that the registered owner of parcel No. 5635 was deceased at the time of the transfer to the 1st Respondent; that no grant had been taken out for the estate of Johnson Ochieng Akuno nor any citation cause filed compelling the same; and that registration nonetheless took place. Reliance was placed on **Boniface Munyao Muinde v Mutinda Muindi & 2 Others [2016] KEHC 3493 (KLR).** It was submitted that these facts demonstrated a prima facie case of illegality and intermeddling under Section 45 of the Law of Succession Act, Cap 160, and that dealing with the estate of a deceased person without a grant is void *ab initio* and does not require further proof in the criminal sense. Counsel cited **In the Matter of the Estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR) and In re Estate of Nzioki Mwatu (Deceased) [2019] KEHC 2807 (KLR).** 13. On the standard of proof, counsel relied on **Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR** for the proposition that while fraud is proved on a standard higher than a balance of probabilities, proof beyond reasonable doubt is not required. It was submitted that the unexplained registration of land in the name of a third party after the death of the registered proprietor, without succession, met this standard and warranted judicial intervention. 14. On the burden of proof, counsel submitted that once the Appellant had demonstrated that registration of parcel No. 5635 was effected after the death of the registered owner and without succession, the evidential burden shifted to the 2nd Respondent, representing the Land Registrar, to explain the process through which registration was effected; that during trial the 4th and 5th Defendants neither called witnesses nor produced registry documents to justify the impugned registration; and that the trial magistrate failed to draw an adverse inference from their silence. Reliance was placed on **Kariuki v Kawa & 2 Others [2024] KEHC 9066 (KLR),** Section 112 of the Evidence Act, Cap 80, and Section 26(1)(a) and (b) of the Land Registration Act. Counsel further invoked Article 40(6) of the Constitution as read with Section 93 of the Law of Succession Act, submitting that a title obtained through an illegal process cannot enjoy statutory protection. Counsel concluded that the Appellant's evidence was consistent, documentary and uncontroverted, and that the dismissal of the claim relating to parcel No. 5635 was against the weight of the evidence and occasioned a miscarriage of justice. **Analysis and Determination** 15. I have carefully considered the entire record of appeal, the grounds of appeal, the submissions filed and the applicable law. This being a first appeal, this Court is under a duty to re-evaluate, re-assess and re-analyse the evidence on record and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and making due allowance for that. **See Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR**. I note, in this regard, that the evidence tendered before the trial court was almost entirely documentary and wholly uncontroverted, which considerably diminishes the deference that would ordinarily attach to findings founded on the demeanour of witnesses. 16. Having considered the grounds of appeal and the submissions, the following issues commend themselves for determination: ***i. Whether the registration of land parcel No. Kisumu/Kadongo/5635 in the name of the 1st Respondent was proved to be fraudulent and/or illegal;*** ***ii. Whether the learned trial magistrate applied the correct standard and burden of proof;*** ***iii. Whether the suit as against the 4th and 5th Defendants was properly dismissed with costs; and*** ***iv. What reliefs and orders should issue, including on costs.*** **Whether the registration of land parcel No. Kisumu/Kadongo/5635 in the name of the 1st Respondent was proved to be fraudulent and/or illegal** 18. The law on proof of fraud is well settled. In **Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, Tunoi, JA (as he then was)** held that fraud must be specifically pleaded, that the particulars of the fraud alleged must be stated on the face of the pleading, and that fraudulent conduct must be distinctly alleged and distinctly proved, it not being allowable to leave fraud to be inferred from the facts. Similarly, in **Kinyanjui Kamau v George Kamau [2015] eKLR, the Court of Appeal, citing Ndolo v Ndolo (2008) 1 KLR (G & F) 742,** restated that allegations of fraud must be strictly proved, the standard of proof being higher than that required in ordinary civil cases, namely proof upon a balance of probabilities, though certainly not one beyond reasonable doubt as in criminal cases. 19. Measured against that yardstick, the learned trial magistrate cannot be faulted for finding that the specific allegations of forgery namely, the forging of the Land Control Board consent and of the Deceased's signature on transfer instruments were not strictly proved. The alleged forged instruments were not produced before the trial court, and forgery cannot be presumed. Had the Appellant's case rested on forgery alone, the dismissal would have been unimpeachable. 20. The Appellant's case did not, however, rest on forgery alone. Paragraph 11 of the Plaint was expressly headed “particulars of fraud **and illegalities**” and pleaded, in addition to forgery, intermeddling with the estate of the Deceased and failure to follow the due process laid down in the Law of Succession Act. The second ground of appeal is therefore well taken: the 1st Respondent's title was being impeached on the distinct ground of illegality, apart from fraud. It is trite that pleadings must be read as a whole and not selectively, and a court is bound to determine all the causes of action disclosed by the pleadings and the evidence. 21. The following facts were established by uncontroverted documentary evidence produced by PW1. First, the green card for land parcel No. Kisumu/Kadongo/5635 (P Exhibit 8) shows that the register was opened on 28th October 2020 upon the subdivision of parcel No. 853, with Johnson Ochieng Akuno registered as the first proprietor. Secondly, the certificate of death of Johnson Ochieng Akuno (P Exhibit 4) shows that he died on 24th December 2020. Thirdly, the same green card, together with the certificate of official search dated 14th December 2021 (P Exhibit 7), shows an entry of a “transfer” in favour of the 1st Respondent, Gladys Akinyi Ogira, registered on 18th January 2021, followed by the issuance of a title deed. Fourthly, the Limited Grant *ad litem* (P Exhibit 2) was only issued on 20th April 2022, limited to the purposes of filing suit, and PW1's unchallenged testimony was that no succession had been undertaken over the estate of the Deceased. 22. The inescapable conclusion from those facts is that the impugned transfer was registered a mere twenty-five days after the death of the registered proprietor. A deceased person has no legal capacity to execute a transfer instrument, to apply for or attend before a Land Control Board, or to pass any interest in land. Upon the death of Johnson Ochieng Akuno, land parcel No. Kisumu/Kadongo/5635, being part of his free property, could only be dealt with by a duly constituted personal representative upon the issuance of a grant of representation. Sections 79 and 82 of the Law of Succession Act provide that the estate of a deceased person vests in his personal representatives, whose powers flow from the grant. As at 18th January 2021, no grant of representation whatsoever existed in respect of the estate of the Deceased. 23. Section 45(1) of the Law of Succession Act is emphatic that no person shall, except so far as may be expressly authorised by law, for purposes of this Act, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person. The courts have consistently held that any dealing with, or purported transfer of, the free property of a deceased person otherwise than under a grant of representation constitutes intermeddling and is a nullity. See **In the Matter of the Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR,** cited by the Appellant. Whatever instrument was presented to the Land Registrar in support of the impugned transfer, it could not lawfully have been executed by a proprietor who was already dead, and no personal representative capable of executing it existed. The purported transfer was accordingly void *ab initio*. As was famously stated in **Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169,** if an act is void, then it is in law a nullity; it is not only bad, but incurably bad, and every proceeding which is founded on it is also bad and incurably bad; you cannot put something on nothing and expect it to stay there. 24. The consequence in registration terms is provided for under Section 26(1) of the Land Registration Act, which stipulates that the certificate of title issued by the Registrar shall be taken by all courts as prima facie evidence that the person named as proprietor is the absolute and indefeasible owner, and that 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. It is now well settled that under limb (b), it is not a requirement that the registered proprietor be shown to have participated in the illegality or unprocedural acquisition; it suffices that the title was so acquired. A certificate of title, moreover, is not a panacea for a defective root of title: where a title is challenged, the registered proprietor must demonstrate the legality of the process by which the title was acquired. See **Munyu Maina v Hiram Gathiha Maina [2013] eKLR and Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others [2015] eKLR.** 25. In the instant case, the 1st Respondent never entered appearance, never filed a defence, never testified, and has not participated in this appeal. She therefore placed nothing before the trial court, or this Court, to demonstrate the root of her title or the legality of the process by which she came to be registered. The registration of a transfer of land from a deceased proprietor, in the absence of any grant of representation, is the very paradigm of a title acquired illegally and unprocedurally within the meaning of Section 26(1)(b) of the Land Registration Act. Such a title enjoys no statutory protection, and Article 40(6) of the Constitution withholds constitutional protection from property found to have been unlawfully acquired. **Whether the learned trial magistrate applied the correct standard and burden of proof** 27. Flowing from the foregoing, it is evident that the learned trial magistrate fell into error in two respects. First, he treated the Appellant's case as one founded exclusively on forgery-based fraud, requiring production of the forged instruments as a *sine qua non*, and thereby failed to consider and determine the distinct and dispositive plea of illegality and intermeddling, which stood proved by objective, uncontroverted public documents requiring no proof of the mechanics of any forgery. The illegality lay not in how any instrument was signed, but in the incontestable fact that the registered proprietor was dead and unrepresented when the transfer was registered. 28. Secondly, the learned trial magistrate faulted the Appellant for failing to produce the transfer documents from the Land Registrar's parcel file, when those documents were, by his own finding, public documents in the custody of the 4th Defendant. Section 112 of the Evidence Act, Cap 80, provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. Once the Appellant established, by the death certificate, the green card and the certificates of official search, that the registration post-dated the death of the proprietor and that no succession had been undertaken, she had discharged the legal burden cast upon her under Sections 107 and 108 of the Evidence Act, and the evidential burden shifted to the Defendants and in particular to the 4th Defendant, the custodian of the instruments of registration to explain the basis upon which the registration was effected. The 4th and 5th Defendants elected to close their case without calling a single witness or producing a single document. Nothing therefore displaced the prima facie case of illegality, and the trial court ought to have so found. To require the Appellant to produce documents held in the exclusive custody of her adversaries, on pain of dismissal, was to shift the burden of proof wrongly and to hold her to an unattainable standard. 29. I therefore find, upon my own re-evaluation of the evidence, that while the specific allegations of forgery were not strictly proved, the Appellant proved, to the requisite standard and indeed by uncontroverted evidence, that the registration of land parcel No. Kisumu/Kadongo/5635 in the name of the 1st Respondent on 18th January 2021 was illegal, unprocedural and void, the same having been effected after the death of the registered proprietor and without any grant of representation over his estate. The first, second, third and fourth grounds of appeal accordingly succeed to that extent. **Whether the suit as against the 4th and 5th Defendants was properly dismissed with costs** 31. The claim pleaded against the 4th Defendant was one of collusion with the 1st Respondent. Collusion connotes a corrupt agreement, and like fraud, it must be specifically proved. Beyond the fact of registration itself, no evidence was tendered connecting the 4th Defendant to any corrupt scheme with the 1st Respondent. The mere fact that the Land Registrar effected a registration that has now been found to be void does not, without more, prove collusion. I therefore find no basis to disturb the finding that collusion was not proved. 32. That said, the wholesale dismissal of the suit against the 4th and 5th Defendants **with costs** cannot stand. The 4th Defendant registered a transfer of a deceased person's land in circumstances which, at the very least, amounted to a mistake within the meaning of Section 80(1) of the Land Registration Act, which empowers this Court to order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that the registration was obtained, made or omitted by fraud or mistake. The 4th Defendant, having been called upon to explain the registration, offered no explanation whatsoever. Furthermore, the Land Registrar is a necessary party for purposes of effecting the consequential orders of cancellation and rectification. In those circumstances, it was not a proper exercise of discretion to condemn the Appellant, whose grievance has been vindicated, to pay the costs of the very office whose unexplained registration precipitated the litigation. The award of costs to the 4th and 5th Defendants is accordingly set aside and substituted with an order that each party bears its own costs as between the Appellant and the said Defendants. **What reliefs and orders should issue, including on costs** 34. Having found that the impugned registration was void, the appropriate consequential relief is the cancellation of the entries in the register relating to the registration of the 1st Respondent as proprietor of land parcel No. Kisumu/Kadongo/5635 and the rectification of the register pursuant to Section 80(1) of the Land Registration Act, by restoring the name of Johnson Ochieng Akuno (Deceased) as the registered proprietor thereof, to abide the due administration of his estate under the Law of Succession Act. For the avoidance of doubt, the orders issued by the trial court against the 2nd and 3rd Defendants in respect of land parcel No. Kisumu/Kadongo/5634, which were not the subject of this appeal, remain undisturbed. 35. On costs, Section 27 of the Civil Procedure Act, Cap 21, provides that costs follow the event unless the court, for good reason, orders otherwise. The Appellant has succeeded in this appeal as against the 1st Respondent, whose unexplained and void registration occasioned both the suit and this appeal. The Appellant is accordingly entitled to the costs of this appeal and of the suit before the trial court as against the 1st Respondent. As between the Appellant and the 2nd Respondent, and for the reasons already given, each party shall bear its own costs of the appeal and of the suit below. **Final orders** 36. In the end, the appeal is merited and the same is allowed in the following terms: **i. The Judgment of the trial court delivered on 16th May 2024 in Kisumu Chief Magistrate's Court ELC Case No. 88 of 2022 is hereby set aside to the extent that it dismissed the suit as against the 1st Defendant, and is substituted with an order allowing the Appellant's claim against the 1st Defendant (the 1st Respondent herein);** **ii. A declaration is hereby issued that the transfer and registration of land parcel No. Kisumu/Kadongo/5635 in the name of the 1st Respondent, Gladys Akinyi Ogira, effected on or about 18th January 2021, was illegal, null and void *ab initio*;** **iii. Pursuant to Section 80(1) of the Land Registration Act, the Land Registrar, Kisumu County is hereby directed to cancel all entries in the register of land parcel No. Kisumu/Kadongo/5635 relating to the said transfer and registration, together with any title deed issued in consequence thereof, and to rectify the register by restoring the name of Johnson Ochieng Akuno (Deceased) as the registered proprietor of the said parcel, to abide the administration of his estate in accordance with the Law of Succession Act, Cap 160;** **iv. The order of the trial court dismissing the suit as against the 4th and 5th Defendants is varied by setting aside the award of costs in their favour; the dismissal of the claim of collusion is affirmed, with each party bearing its own costs of the suit and of this appeal as between the Appellant and the said Defendants;** **v. The orders issued by the trial court against the 2nd and 3rd Defendants in respect of land parcel No. Kisumu/Kadongo/5634 remain undisturbed; and** **vi. The Appellant shall have the costs of this appeal and of the suit before the trial court as against the 1st Respondent.** It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 21ST DAY OF AUGUST 2026.** **E.K. WABWOTO** **JUDGE** **In the presence of:** **Ms. Atieno for the Appellant** **N/A for the 1st Respondent** **N/A for the 2nd Respondent** **Court Assistant: Joanne Omondi.**