https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5126

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. 24 OF 2023** **ARTHUR OBIAYO MUNZATSI................................................APPELLANT** VERSUS **PATRICK MUSALI CHANGILWA...................................1ST RESPONDENT** *(Sued as the legal representative and substitute of the estate of THOMAS CHANGILWA MULUHYA – Deceased)* **JOHN NDECHERE GEORGE......................................2ND RESPONDENT** *(Being an appeal from the Judgment and Decree of Hon. L. Kassan (Chief Magistrate) delivered on 20th September 2023 in Kakamega MCELC No. 66 of 2018 (formerly ELC Case No. 239 of 2014))* **JUDGMENT** **A. INTRODUCTION** 1. This is a first appeal from the judgment of the Chief Magistrate delivered on 20th September 2023 in Kakamega MCELC No. 66 of 2018 (formerly ELC Case No. 239 of 2014). The appellant was the 3rd defendant before the subordinate court. The dispute concerns the ownership of land parcel **North Maragoli/Chavakali/780** and, in particular, whether the appellant acquired a valid and indefeasible title thereto or whether his registration was founded upon an earlier title alleged to have been unlawfully procured. 2. The suit was originally instituted by **Thomas Changilwa Muluhya (deceased)**, whose estate is now represented by the 1st respondent, **Patrick Musali Changilwa**. The deceased's case was that he was the original registered proprietor of the suit property, having been registered on 13th June 1975. He contended that his title was unlawfully displaced following an ex parte judgment in Kakamega SPMCC No. 876 of 1998, pursuant to which the 2nd respondent became registered as proprietor. Although that judgment was subsequently set aside, the 2nd respondent nevertheless transferred the suit property to **Simon Munzatsi Kaisha**, from whom the appellant ultimately acquired title. 3. The respondents maintained that, once the judgment which formed the foundation of the 2nd respondent's registration was set aside, the legal basis of that registration ceased to exist. Consequently, they contended that every subsequent transfer founded upon that registration, including the appellant's title, was liable to cancellation. They therefore sought, among other reliefs, a declaration of ownership, cancellation of the subsequent registrations, rectification of the register and restoration of the suit property to the estate of the deceased. 4. The appellant denied that his title was impeachable. His case was that he lawfully acquired the suit property from his father, **Simon Munzatsi Kaisha**, who had previously purchased it from the 2nd respondent. He maintained that the transaction was undertaken for valuable consideration, that the requisite statutory consents were obtained, and that he was duly registered as proprietor. He therefore contended that he acquired a good title which was protected by law and that he was entitled to the protection accorded to a bona fide purchaser for value without notice of any defect in the preceding transactions. 5. Upon considering the pleadings, the oral and documentary evidence, and the parties' respective submissions, the learned Chief Magistrate entered judgment in favour of the plaintiff. The trial court found that the appellant's title was liable to impeachment, ordered cancellation of the appellant's registration, directed rectification of the land register and granted the consequential reliefs sought. 6. Aggrieved by that decision, the appellant lodged the present appeal. **B. THE APPEAL** 1. In his Memorandum of Appeal, the appellant challenges the judgment of the learned Chief Magistrate on both factual and legal grounds. He contends, in essence, that the learned magistrate erred in assuming jurisdiction to determine the dispute, failed to appreciate the legal effect of the non-joinder of the Attorney General and the provisions of the Government Proceedings Act, misapprehended the evidence relating to the ownership and transfer of the suit property, wrongly rejected his defence that he was a bona fide purchaser for value without notice, and consequently erred in ordering the cancellation of his title and rectification of the land register. 2. The appellant therefore prays that the judgment and decree of the subordinate court be set aside, that the respondents' suit be dismissed, and that the costs of both the suit and this appeal be awarded to him. 3. The respondents oppose the appeal. They support the judgment of the trial court and contend that the learned magistrate properly evaluated the evidence, correctly applied the applicable law, and rightly concluded that the appellant's title was derivative of an unlawful registration and therefore liable to impeachment. They urge the Court to dismiss the appeal with costs. **C. DUTY OF THE FIRST APPELLATE COURT** 1. This being a first appeal, this Court is enjoined to reconsider, re-evaluate and reanalyse the evidence on record and draw its own independent conclusions. In undertaking that exercise, however, the Court must bear in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. 2. The principles governing the role of a first appellate court are well settled. In ***Selle & Another v Associated Motor Boat Co. Ltd & Others***, the former Court of Appeal for East Africa stated that a first appellate court is under a duty to reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. An appellate court will not lightly interfere with findings of fact unless they are based on no evidence, are founded on a misapprehension of the evidence, or it is demonstrated that the trial court acted on wrong principles in reaching its conclusions. 3. I have accordingly revisited the pleadings, the evidence on record, the judgment appealed from, the memorandum of appeal, and the parties' submissions. I shall determine the appeal on the basis of my own independent evaluation of the evidence and the applicable law. **D. ISSUES FOR DETERMINATION** 1. Although the memorandum of appeal raises several grounds, the issues emerging for determination may, in my view, be condensed into the following: 2. Whether the subordinate court had jurisdiction to hear and determine the suit. 3. Whether the proceedings were rendered incompetent by the alleged failure to join or issue notice to the Attorney General and the applicability of the Government Proceedings Act. 4. Whether the appellant established that he acquired a lawful and indefeasible title to land parcel North Maragoli/Chavakali/780. 5. If not, whether the learned trial magistrate properly ordered the cancellation of the appellant's title and rectification of the land register. 6. I shall consider each of these issues in turn. **E. WHETHER THE SUBORDINATE COURT HAD JURISDICTION TO HEAR AND DETERMINE THE SUIT** 1. The appellant contends that the learned trial magistrate lacked jurisdiction to entertain and determine the dispute. Jurisdiction being the foundation upon which judicial authority rests, it is appropriate that this issue be addressed at the outset. If the subordinate court lacked jurisdiction, then the proceedings and the judgment arising therefrom would be a nullity irrespective of the merits of the parties' respective cases. 2. The appellant's complaint is essentially that the subordinate court assumed jurisdiction that was not conferred upon it by law. The respondents, on the other hand, maintain that the dispute was one relating to ownership and title to land, a matter falling squarely within the jurisdiction conferred upon designated magistrates under the applicable statutory framework, and that no evidence was placed before the trial court to demonstrate that the value of the suit property exceeded the court's pecuniary jurisdiction. 3. It is now trite that jurisdiction flows from the Constitution or statute and cannot be conferred by the parties through consent, acquiescence or waiver. In ***Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd***, the Court of Appeal famously stated that jurisdiction is everything and that without it a court has no power to make one more step. Whenever a question of jurisdiction is properly raised, the court is under a duty to determine it before embarking upon the merits of the dispute. 4. The dispute before the subordinate court concerned competing claims to ownership of land parcel North Maragoli/Chavakali/780, together with prayers for cancellation of title and rectification of the land register. Such disputes are, by statute, within the jurisdiction of designated magistrates exercising jurisdiction in environment and land matters, subject only to the applicable pecuniary limits. 5. I have independently reconsidered the record and the judgment appealed from. I find no material demonstrating that the value of the suit property exceeded the pecuniary jurisdiction of the subordinate court. Neither has the appellant pointed to any valuation report, admission, pleading or other evidence from which such a conclusion could properly be drawn. A jurisdictional objection founded upon pecuniary value must be supported by evidence; it cannot rest on bare assertion. 6. Equally, no statutory provision has been identified which deprived the subordinate court of jurisdiction to determine a dispute concerning ownership of land and rectification of the register. On the contrary, the issues raised by the pleadings fell squarely within the class of disputes that Parliament has authorised designated magistrates to hear and determine. 7. The learned trial magistrate considered the objection and concluded that the court possessed the requisite jurisdiction. Having undertaken my own independent evaluation of the record and the applicable law, I find no basis for interfering with that conclusion. The appellant has not demonstrated that the trial court exceeded either its subject-matter or pecuniary jurisdiction. 8. I therefore find that the subordinate court was properly seized of the dispute and that the ground of appeal challenging its jurisdiction is without merit. **F. WHETHER THE FAILURE TO JOIN OR ISSUE NOTICE TO THE ATTORNEY GENERAL RENDERED THE PROCEEDINGS INCOMPETENT** 1. The appellant next argues that the proceedings were fatally defective because the Attorney General was neither joined as a party nor served with a notice under the Government Proceedings Act, notwithstanding that the dispute touched on entries made in the land register by public officers. It is contended that the omission rendered the proceedings incompetent and deprived the trial court of jurisdiction to grant the orders sought. 2. The respondents take a contrary view. They submit that the dispute was essentially between private individuals claiming competing proprietary interests in the suit property. Although the Land Registrar would inevitably be required to implement any order directing rectification of the register, no substantive relief was sought against the Government, the Land Registrar or any other public officer. Consequently, they contend that neither the joinder of the Attorney General nor compliance with the Government Proceedings Act was a prerequisite to the institution or determination of the suit. 3. The record supports the respondents' position. The gravamen of the plaintiff's claim was that the appellant's title, and those of his predecessors, were liable to cancellation because they were derived from a registration founded upon an *ex parte* judgment that had subsequently been set aside. The reliefs sought were directed at determining the competing proprietary rights of the parties before the court. The role of the Land Registrar was purely consequential, namely to give effect to any lawful order of rectification that the court might ultimately issue. 4. The law is equally clear that no suit shall be defeated by reason only of the misjoinder or non-joinder of parties. Order 1 Rule 9 of the Civil Procedure Rules embodies that principle by directing courts to determine disputes on their merits so far as the rights and interests of the parties actually before the court are concerned. A party alleging that non-joinder is fatal must demonstrate that the absent party was necessary for the effective and complete adjudication of the dispute and that prejudice resulted from the omission. 5. In the present appeal, the appellant has not demonstrated what prejudice he suffered as a result of the Attorney General not being joined. Neither has he shown that the trial court was incapable of effectively determining the dispute between the parties before it in the absence of the Attorney General. The issue before the court was not the legality of any administrative act by the Land Registrar, but the validity of the competing proprietary claims arising from the transactions affecting the suit property. 6. I am therefore unable to agree that the proceedings were rendered incompetent by the non-joinder of the Attorney General or by the alleged non-compliance with the Government Proceedings Act. The learned trial magistrate cannot be faulted for proceeding to determine the real controversy between the parties. This ground of appeal likewise fails. ## G. WHETHER THE APPELLANT ESTABLISHED A LAWFUL AND INDEFEASIBLE TITLE TO THE SUIT PROPERTY 1. The principal issue in this appeal is whether the appellant established that his registration as proprietor of land parcel **North Maragoli/Chavakali/780** was founded upon a lawful process capable of protection under the law. While the appellant relies on the fact of registration, the respondents contend that the registration was merely derivative of an earlier title whose legality had been successfully challenged. The resolution of this issue therefore requires the Court to examine not only the appellant's certificate of title but also the legality of the chain of transactions through which that title was acquired. 2. The evidence before the trial court showed that the suit property was originally registered in the name of **Thomas Changilwa Muluhya**, the deceased whose estate is represented by the 1st respondent. It was the respondents' case that the deceased's title was displaced following an *ex parte* judgment obtained in Kakamega SPMCC No. 876 of 1998, pursuant to which the 2nd respondent became registered as proprietor. The evidence further disclosed that the *ex parte* judgment was subsequently set aside. Notwithstanding that development, the 2nd respondent transferred the suit property to **Simon Munzatsi Kaisha**, who in turn transferred it to the appellant. The respondents' case was therefore that every subsequent transaction was founded upon a title whose legal basis had ceased to exist. 3. The appellant did not dispute the sequence of transfers through which he acquired the suit property. His defence was that he purchased the property from his father, Simon Munzatsi Kaisha, for valuable consideration, obtained the requisite statutory consents, and was duly registered as proprietor. He maintained that he had no knowledge of any defect affecting his predecessor's title and that his registration was therefore protected by the provisions of the Land Registration Act. 4. The learned trial magistrate carefully considered the competing evidence and concluded that the appellant's title could not be divorced from the circumstances under which his predecessor acquired the suit property. The court found that the appellant's title was derivative of the 2nd respondent's registration and that, once the legal foundation of that registration was removed by the setting aside of the *ex parte* judgment, the subsequent transfers could not confer a better title upon the appellant. 5. I have independently re-evaluated the evidence on record and I am unable to fault that reasoning. The appellant's case proceeds on the assumption that registration alone is sufficient to defeat every competing claim. That proposition, however, does not reflect the current state of the law. Although sections 24 and 25 of the Land Registration Act confer upon a registered proprietor the rights and privileges appurtenant to ownership, those rights are not absolute. Section 26(1) expressly provides that a certificate of title is prima facie evidence of ownership but may be challenged where it is shown that the registration was procured through fraud, misrepresentation, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. 6. The effect of those provisions is that where the legality of the root of title is specifically challenged, the inquiry does not end with the production of a certificate of title. The registered proprietor bears the evidential burden of demonstrating that the title was acquired through a lawful process. That principle was authoritatively stated by the Court of Appeal in ***Munyu Maina v Hiram Gathiha Maina***, where the Court held that once the root of title is under challenge, the registered proprietor must go beyond merely producing the instrument of title and demonstrate the legality of how it was acquired. 7. The same principle was emphasised in ***Arthi Highway Developers Ltd v West End Butchery Ltd & 6 Others,*** where the Court of Appeal observed that a title founded upon an unlawful process cannot be sanitised merely by subsequent transfers. A transferee acquires only such interest as the transferor was legally capable of passing, unless the law expressly provides otherwise. 8. Applying those principles to the present appeal, it was incumbent upon the appellant to demonstrate not only that he was duly registered but also that the title passing through his predecessors had a lawful origin. The trial court found that the registration of the 2nd respondent was founded upon an *ex parte* judgment which was subsequently set aside. Once that factual premise was established, it became necessary for the appellant to demonstrate that his predecessor nevertheless acquired a valid and subsisting title capable of being transferred. The record, as analysed by the trial court, did not disclose such evidence. 9. Indeed, the appellant's evidence principally focused on the transaction between himself and his father. While that evidence may have demonstrated compliance with the formal requirements governing the immediate transfer, it did not answer the more fundamental question raised by the respondents, namely whether Simon Munzatsi Kaisha himself had acquired a valid title capable of transmission. The legality of the appellant's title could not be considered in isolation from the legality of the title held by his predecessor. 10. In my respectful view, the learned trial magistrate correctly appreciated that distinction. The issue before the court was not whether the appellant complied with the procedural formalities attending his own transfer, but whether the title that ultimately reached him was one recognised and protected by law. Registration cannot cure an antecedent defect that goes to the root of title. Where the foundation upon which subsequent transactions rest is shown to have been removed, the superstructure erected upon that foundation cannot ordinarily stand. 11. I therefore agree with the trial court that the appellant did not discharge the evidential burden imposed upon him once the legality of the root of his title was directly challenged. The learned magistrate cannot be faulted for concluding that the appellant's title remained vulnerable to impeachment under section 26(1) of the Land Registration Act. 12. I accordingly find no merit in the appellant's challenge to the trial court's finding that his title was liable to impeachment. **H. WHETHER THE APPELLANT WAS A BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE** 1. Closely intertwined with the foregoing issue is the appellant's contention that, even if there existed defects in the title held by his predecessor, he nevertheless acquired the suit property as a bona fide purchaser for value without notice and was therefore entitled to protection under the law. 2. Before the trial court, the appellant testified that he purchased the suit property from his father, **Simon Munzatsi Kaisha**, for valuable consideration. He maintained that the transaction was undertaken openly, that the requisite statutory consents were obtained, and that he had no knowledge of any dispute affecting the suit property. On that basis, he contended that the learned trial magistrate ought to have upheld his title notwithstanding any defects that may have affected the earlier transactions. 3. The respondents took a different view. They contended that the doctrine of a bona fide purchaser could not avail the appellant because the title from which he derived his interest had itself been impugned. They further maintained that the appellant did not demonstrate that he undertook reasonable inquiries into the history of the title before acquiring the property and that, in any event, one cannot obtain a better title than that possessed by the transferor. 4. The learned trial magistrate rejected the appellant's defence and found that the doctrine was inapplicable in the circumstances of the case. The court reasoned that the appellant's title was entirely dependent upon the validity of the title held by his predecessor and that the subsequent registration could not cure defects affecting the root of title. 5. I have independently reconsidered the evidence on this issue and I find no basis for interfering with that conclusion. The doctrine of a bona fide purchaser protects an innocent purchaser who acquires legal title for valuable consideration, in good faith and without notice of any defect in the vendor's title. However, the doctrine is not intended to validate a title which the law itself regards as having no legitimate foundation. 6. In determining whether the doctrine applies, the Court must examine the entire transaction and not merely the purchaser's assertion of good faith. Payment of consideration and registration, though important, are not by themselves conclusive. The Court must also be satisfied that the purchaser acquired the interest honestly, without notice of any defect and after undertaking such inquiries as were reasonably expected in the circumstances. 7. In the present case, the respondents did not merely allege procedural irregularities in the appellant's transfer. Their challenge went to the very foundation of the title passing through the 2nd respondent and thereafter to Simon Munzatsi Kaisha. Once that foundation was called into question, the appellant bore the evidential burden of demonstrating that the interest transferred to him was one capable of legal protection. 8. The evidence relied upon by the appellant principally established the transaction between himself and his father. It did not satisfactorily explain how the earlier defects identified by the trial court ceased to affect the title that eventually reached him. As the Court of Appeal observed in ***Arthi Highway Developers Ltd v West End Butchery Ltd & 6 Others***, subsequent transfers cannot ordinarily sanitise a title whose root is shown to have been unlawful. 9. Equally instructive is the decision of the Supreme Court of Kenya in ***Dina Management Ltd v County Government of Mombasa & 5 Others***, where the Court reiterated that the constitutional protection accorded to property rights does not extend to property that has been unlawfully acquired. The protection of registered title therefore presupposes a lawful acquisition. 10. In the circumstances of this case, I am not persuaded that the learned trial magistrate erred in declining to uphold the appellant's plea of bona fide purchaser. The appellant may well have acted in the belief that he was acquiring a valid title, but that belief, without more, could not confer a better interest than that possessed by his predecessor if the root of that predecessor's title was itself legally unsustainable. 11. I therefore find no merit in the appellant's complaint that the learned trial magistrate erred in rejecting his defence founded on the doctrine of a bona fide purchaser for value without notice. **I. WHETHER THE TRIAL COURT PROPERLY ORDERED RECTIFICATION OF THE REGISTER** 1. The final substantive complaint concerns the order directing the cancellation of the appellant's registration and the rectification of the land register. The appellant contends that the learned trial magistrate exceeded the powers conferred by law and that, having found him to be the registered proprietor, the court ought not to have interfered with his title. 2. The power of a court to direct rectification of the register is expressly provided for under section 80 of the Land Registration Act. That jurisdiction enables the Court to order the cancellation or amendment of any registration where it is satisfied that the registration was obtained, made or omitted through fraud, mistake or other circumstances recognised by law. The jurisdiction is discretionary and must be exercised judiciously, having regard to the facts of each case and the rights of all affected parties. 3. Having independently reviewed the record, I have already found no basis for interfering with the trial court's conclusion that the appellant failed to establish a lawful and indefeasible title. Once that finding was properly reached, rectification of the register became the natural statutory consequence. A court cannot, on the one hand, find that a registration is liable to impeachment and, on the other, leave the register uncorrected. 4. I am also satisfied that the order made by the learned trial magistrate was sufficiently clear and capable of implementation. It identified the registration to be cancelled and the consequential correction required to restore the register in accordance with the court's findings. The appellant has not demonstrated that the order was uncertain, incapable of execution or otherwise outside the powers conferred by section 80 of the Land Registration Act. 5. In the result, I find no error in principle or in law in the trial court's decision to direct rectification of the register. The appellant has therefore failed to demonstrate any basis upon which this Court should interfere with the exercise of the trial court's discretion. **J. DISPOSITION** 1. I have carefully reconsidered the pleadings, the evidence adduced before the trial court, the judgment appealed from, the memorandum of appeal, the parties' submissions and the applicable law. As required of a first appellate court, I have undertaken an independent evaluation of the entire record while bearing in mind that I neither saw nor heard the witnesses testify. 2. Upon that re-evaluation, I am not persuaded that the learned trial magistrate misdirected himself either on the facts or on the law. The appellant has failed to demonstrate that the subordinate court lacked jurisdiction to entertain the dispute or that the proceedings were rendered incompetent by the non-joinder of the Attorney General. Equally, the appellant has not established any basis for interfering with the trial court's finding that the title to land parcel **North Maragoli/Chavakali/780**, held by the appellant, was liable to impeachment. 3. The evidence before the trial court disclosed that the respondents' challenge was directed at the root of the appellant's title and not merely at the formalities attending his registration. Once that root was successfully challenged, the evidential burden shifted to the appellant to demonstrate the legality of the process through which the title ultimately reached him. Like the trial court, I find that the appellant did not discharge that burden. His reliance on registration alone was insufficient to answer the challenge mounted against the legality of the title from which he derived his interest. 4. I am likewise satisfied that the learned trial magistrate correctly rejected the appellant's plea that he was a bona fide purchaser for value without notice. The protection afforded to an innocent purchaser cannot be invoked to validate a title where the very foundation upon which it rests has been shown to be legally unsustainable. In the circumstances of this case, the appellant acquired no better title than that held by his predecessor. 5. Having properly found that the appellant's registration was liable to impeachment, the learned trial magistrate was entitled to invoke the powers conferred by section 80 of the Land Registration Act and direct rectification of the register. I find no error in principle or law that would justify appellate interference with that exercise of discretion. 6. Consequently, I find that the appeal is devoid of merit. **K. ORDERS** 1. Accordingly, I make the following orders: 2. The appeal is dismissed in its entirety. 3. The judgment and decree of the Chief Magistrate delivered on 20th September 2023 in Kakamega MCELC No. 66 of 2018 (formerly ELC Case No. 239 of 2014) are hereby affirmed. 4. The orders issued by the trial court relating to the cancellation of the appellant's registration as proprietor of land parcel **North Maragoli/Chavakali/780** and the consequential rectification of the land register are upheld. 5. The appellant shall bear the costs of this appeal. It is so ordered. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT KAKAMEGA THIS 13TH DAY OF JULY 2026. **P. MUSYIMI** **JUDGE** **In the presence of:** Mr. Ajevi: Court Assistant Mr. Lugandiru Adv h/b for Mr. Musiega for the Appellant Mr. Bosita Adv h/b Mr. Getanga Mr. Getanda for the 1st Respondent