John & 2 others (All Suing as the Legal Representatives of the Estate of John Seme ole Saiyalel) v Masoi & 3 others (Environment and Land Appeal E024 of 2025) [2026] KEELC 3184 (KLR) (21 May 2026) (Judgment)

**REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT** **AT KILGORIS** **ELC (LA) E024 OF 2025** **TOBIKO ISAIAH JOHN………………………………………...………………..1ST APPELLANT** **TOBIKO JOHN SEME……………………………………..…………………….2ND APPELLANT** **TOBIKO SIMON SEME……………………………………...…………………..3RD APPELLANT** **(All suing as the legal representatives of the Estate of JOHN SEME OLE SAIYALEL)** **VERSUS** **JOHN SIKANA MASOI……………………………………………………….1ST RESPONDENT** **THE LAND ADJUDICATION AND SETTLEMENT OFFICER TRANSMARA** **WEST/EAST/SOUTH SUBCOUNTY……………………………………..2ND RESPONDENT** **THE DIRECTOR OF LAND ADJUDICATION AND SETTLEMENT………3RD RESPONDENT** **THE HONOURABLE ATTORNEY GENERAL…………………………….4TH RESPONDENT** **JUDGMENT** 1. Aggrieved by the Judgment and decree of Hon. Wilson Kitur (P.M0 delivered on 29th day of April 2025 in Kilgoris MELC E024 of 2022, the Appellants, Tobiko Isiah Seme , Tobiko John Seme and Tobiko Simon Seme (All suing as the legal representatives of the Estate of John Seme Ole Saiyalel) preferred this Appeal against John Sikana Masoi as the 1st Respondent, the Land Adjudication and Settlement Officer Transmara West/East/South sub-county the 2nd Respondent Director and Land Adjudication and Settlement the 3rd Respondent the Honourable Attorney General as the 4th Respondent and sought the following reliefs; - 2. That the judgment and/or decree of the Learned Trial Magistrate dated 29th of April 2025 be set aside, varied and/or quashed. 3. The court be pleased to re-evaluate the evidence on record and make an independent decision. 4. That the Appeal be allowed by entering judgment in favour of the Appellants in terms of the plaint dated the 20th day of May 2022 and the counter-claim dated 22 September 2022 be dismissed. 5. The 1st Respondent to bear the cost of the suit and counter-claim before the trial court. 6. Costs of the Appeal be borne by the Respondents. 7. Any such and/or further orders that the Honourable court shall deem just and expedient in the circumstances. 8. Pursuant to the resolve to file the Appeal, the Appellants vide their Memorandum of Appeal dated 14th day of May 2025 penned 6 grounds of Appeal as herefollows; - 9. The Learned Trial Magistrate erred in law when the same failed to properly evaluate evidence on record thus reaching erroneous decision. 10. The Learned Trial Magistrate erred in law and in fact when the same dismissed the Appellant’s case. 11. The Learned Trial Magistrate erred in law and fact when he failed to comprehend and appreciate the import and efficiency of section 26 of the Land Registration Act. 12. The Learned Trial Magistrate erred in law when he made a decision the effect whereof sanitised the 1st Respondent’s title over the suit property, which was illegally acquired by the Respondent. 13. The Learned Trial Magistrate erred in law he failed to appreciate that the Estate of John Seme Ole Saiyalel were deprived of the suit property through an illegal and fraudulent scheme by ignoring the evidence tabled before him thus occasioning a miscarriage of justice. 14. The Learned Trial Magistrate erred in law and fact when he relied on extraneous issues as a basis of his determination of the case before him. 15. On the strength of the above grounds the Appellant sought for the orders set out at paragraph 1 of this judgment. 16. The initial record of Appeal dated 30th day of June 2025 was incomplete, hence the Appellants filed a supplementary record of Appeal dated 30th October 2025 which equally was incomplete and a second supplementary record of Appeal dated 19th of December 2025 was filed. 17. Upon admission of the Appeal, directions were taken for the Appeal to be canvassed by way of written submissions. 18. Mr. O.M Otieno Learned Counsel appeared for the Appellant while Mr. Ochwangi Learned counsel appeared for the 1st Respondent, and Mr. Ranah Learned State counsel appeared for the 2nd, 3rd and 4th Respondent. 19. Their respective submissions in respect of the Appeal are summarized as herefollows; - **Appellants Submissions** 1. The Appellants consolidated all the grounds of Appeal and submitted on them singularly. 2. The Appellants submit *interalia* that 3. the suit property, hitherto known as plot number 271 was adjudicated and demarcated in the name of one John Seme Ole Saiyalel, who passed on before the issuance of adjudication record and a registration and issuance of a title deed in his name. 4. The name of the deceased was crossed and 1st Respondent’s name inserted in the Adjudication record. That it is purported that the 1st Respondent and John Seme appeared before the Land Adjudication officer on 26th of August 2008 and made an Agreement of sale, thereby necessitating the change from John Seme Ole Saiyalel to 1st Respondent in the records; which agreement was fronted as an objection and thus necessitated to Amendment of the adjudication Record. The Appellant submits that John Ole Seme died in September of 2003 and could not have post humorously sold the parcel of land. The Appellants thus submit that the 1st Respondent acquired the parcel illegally and his root of title was under challenge. He placed reliance on the decision in the case of Munyu Maina Vs. Hiram Gathina Maina (2013) eKLR. 5. On the strength of the above the Appellant submits for the Appeal to be allowed. **1st Respondent’s submission** 1. The 1st Respondent submits that illegality in the process of land adjudication as pleaded by the Appellant could only be challenged by way of judicial review and not by way of a suit. In this regard the 1st Respondent cited the decision in the case of Ephanus Njuki Kamumo Vs. District Land Adjudication and Settlement Officer Igamba Ng’ombe sub county, as well as the decision in Kilgoris ELC Case No. E009 of 2022, Francis Oloishai Kisaka versus Evaline ARAMI Muyia and 3 Others and the 1st Respondent submits that there was no proper suit before the trial court in the first place and hence the Appeal lacks merit and thus urged the court to dismiss the Appeal with costs. **2nd to 4th Respondent’s Submissions** 1. The 2nd to 4th Respondents Represented by Mr. Ranah Learned State Counsel framed and submitted on (3) issues for determination. 2. On issue 1, on whether the 1st Respondent obtained title lawfully after adjudication. The 2nd to 4th Respondents submit that they were objection proceeding in 2008 before the demise of the deceased. The objection proceedings indicate that the land had been sold for Kshs.600,000/= by John Seme to the 1st Respondent and that John Seme had thumbprinted to signify his presence. 3. The 2nd to 4th Respondents relied on the testimony of the D.W.2 a Land Adjudication and settlement assistant Officer who testified to the existence of the objection proceedings which were used to amend the adjudication register and facilitated the processing and registration of the title the name of the 1st Defendant in hence the 1st Respondent’s acquisition of the title was lawful through valid objection proceedings in the course of the after the adjudication process. The 2nd to 4th Respondents place reliance in the decision of Mbui Mukangu Vs. Gerald Mutwiri as well as Section 26(1) of the Land Registration Act on the proposition of a protection of a lawful acquired title 4. On issue No. 2, the 2nd to 4th Respondents, submit that the Appellants did not prove fraud on part of the 2nd to 5th Respondents, on a balance of probabilities to the required standard as set out in Kinyanjui Kimani Vs George Kamau (2015) eKLR. 5. The 2nd to 4th Respondents urged the court to dismiss the Appeal with costs. **Issues for Determination** 1. Arising from the record of Appeal, the rival submissions the court frames the following as issues for determination as follows; - 2. Whether or not the Appeal is competent and further whether court has jurisdiction to hear and determine the Appeal 3. Whether or not the Appeal is merited, in deciding this, the court shall determine which between the Appellants suit as plaintiff before the trial court and the Respondent’s as Defendants defence and counter claim was merited? 4. What reliefs ought to issue. 5. Who bears the costs of the Appeal. **Analysis and Determination** 1. In his submissions the 1st Respondent submits that the suit is challenging the validity of actions of a public officer and the said actions could not be challenged via a plaint, and that plaintiffs ought to have Judicial Review hence his suit before the trial court was incompetent *ab intio*, To support this limb of submissions, the 1st Respondent has cited the court of Appeal decision in Njeru Mairani and 2 Others Vs. the Director of Land Adjudication and Settlement as well as Ephantus Njuki Kamumo versus District Land Adjudication and Settlement officer and Kilgoris ELC Case No. E009/2022 Francis Kisaka Vs. Evaline Arami Muyia. 2. The Appellant submits that the trial court lacked jurisdiction to entertain the suit before it and cites the decision in the case of Republic Vs. The Senior Resident Magistrate’s court Kilgoris exparte the clerk, county council of Transmara as well as in Makula International Ltd Vs. His Eminence Cardinal Nsubuga and Another (a Ugandan High court decision). 3. The 2nd to 4th Respondents did not make submissions on the issue of jurisdiction. 4. Whereas in principle the submission by the 1st Respondent is correct that administrative actions by public officers can only be challenged by way of Judicial Review and/or a Petition, as was observed by E. Washe J, in Kilgoris ELC Case No. E009/2022 Francis Kisaka Vs. Evaline Arami Muyia, the pleaded cause of action in this Appeal and the matter before the trial court, revolved around a challenge on the 1st Respondent’s title on allegation of Fraud and illegalities as pleaded at paragraph 15 (a-m), 16, 17 of the Plaint. 5. The pleaded fraud and irregularities did not form part of the issues before the adjudication committee and objection proceedings, hence it is a new cause of action that sought declarations to that effect 6. The court thus has a residual jurisdiction to entertain declaratory proceedings filed in a normal suit as opposed to judicial review proceedings. In finding and holding so I am persuaded by the decision of Dume Deri Mumbo and 19 Others (suing on their behalf and behalf of Wandarari clan Vs. Cabinet Secretary of Lands Housing and Urban Development and Others 2016 eKLR which held interalia; - ***“……although a litigant can file a suit in a matter where the adjudication register pursuant to the provisions of the land adjudication Act has been closed and a title issued….consequently, the court can only interfere with the decision of the bodies established under the Act by way of Judicial Review proceedings or where a new cause of action is introduced after the proceedings of the Minister have closed then and only then can the court interfere by way of an ordinary suit or Judicial Review proceedings…”*** 1. In the case of Nicholas Njeru Vs. Attorney General & 8 others (2013) eklr. also held a similar position in respect of declaratory suits as opposed to Judicial Review Proceedings. The court observed as follows at paragraph 23 “**23. We agree these prayers could have perfectly fitted the bill under judicial review as they seek to supervise the powers of persons exercising public authority. However, we do not entirely agree with the learned Judge’s observation that the court had no jurisdiction to grant a declaratory order. We know of no limit to the powers of the court to grant a declaratory order except such limit as it may in its discretion impose upon itself. See the English case of PYX GRANITE CO. LTD V MINISTRY OF HOUSING & LOCAL GOVERNMENT [1958] 1 QB 554** **In that case the Statute made provision for a determination by the Minister which was expressly made ‘final’. The Pyx Company did not go to the Minister; instead, they sought a declaration in the High Court. The Minister argued the Court had no jurisdiction to entertain a claim for declaration. Lord Denning said:** **‘I take it to be settled law that the jurisdiction of the High Court to grant a declaration is not to be taken away except by clear words’.”** 1. The Authorities cited by Mr. Ochwangi in particular the Njeru Mairani decision is not relevant as the same dealt with the issue of *Resjudicata* which is not the same herein. The court finds that there was a competent suit before the trial court and the Appeal is equally competent and this court has jurisdiction to hear and determine this Appeal **On issue No.2** 1. This being a first Appeal, the court is aware of its duties as a first Appellate Court as stated in Selle Vs. Associated Motor Boat Co. (1968) EA 123. The duties to “***reconsider the evidence, evaluate it and draw its own conclusion”***. 2. In discharge of the said duties, the court has analysed the record of Appeal, in the plaint before the trial court appearing at Pages 7-11 of the said record of Appeal, it was the Appellant case as plaintiff’s that: - 3. The deceased (John Seme Ole Saiyalel) had been adjudicated as owner of Nkararo Adjudication Section Plot Number 271 Measuring 11.78 Hectares on 17/10/1990 and that he passed on 01/09/2003 before he was registered. 4. That on 30/01/2021 the Plaintiff learnt that the 1st Defendant had been registered as the owner of Transmara/Nkararo/271 on 08/01/2021 and a title issued to him, 5. That the registration of the 1st Petitioner was illegally and fraudulently done and particulars of illegality were pleaded at paragraph 15 (a-m) which included the existence of an objection proceedings relating to objection No.261, held on 26th August, 2008. 6. The 1st Defendant filed a defence and pleaded that; 7. The suit property was never registered in the name of the deceased person and the particulars of illegalities and fraud were denied. 8. The 1st Defendant reserved the right to raise and canvass preliminary objections as hereunder:- 9. That the suit was time barred under section 4 of the Limitation of Action Act, section 7of the Public Authorities Act and section 13(A) of the Government Proceedings Act. 10. Plaintiffs lacked locus standi to initiate the proceedings and were busy bodies. 11. The suit disclosed no cause of action and was legally untenable suit was *Resjudicata* and an abuse of the due process of court. 12. The Defendant filed a counterclaim in which he claimed absolute and exclusive ownership of the suit property and sought for permanent injunction against the plaintiffs to bar them from building, alienating, selling, transferring and interfering with L.R No. Transmara /Nkararo/271. 13. The 2nd to 4th Defendants filed a statement of defence and pleaded *interalia* that: - 14. John Seme Ole Saiyalel was only identified during the commencement of the adjudication process but was never registered as the owner of Nkararo Adjudication Section Plot No.271. 15. That pursuant to objection proceedings No. 261, the demarcation record was Amended to reflect the 1st Defendant and the 1st Defendant was lawfully and procedurally registered. 16. That at the time of the demise of John Seme Ole Saiyalel, he had not been registered hence had no proprietary rights that had accrued to him so as to form part of his Estate. 17. The 2nd to 4th Defendant denied the allegations of fraud and illegalities and averred that there was a previous suit being Kilgoris ELC No. E045 of 2021 hence the suit was bad in Law and an abuse of the court processes. 18. The 2nd to 4th Defendants sought for the dismissal of the Plaintiff’s suit. 19. The Learned trial magistrate heard evidence from the plaintiff and the defendants. P.W1 testified and referred to a copy of this father’s death certificate which was produced by PW2 P Exhibit 3, and the objection proceedings that resulted in the registration of the 1st Defendant as P Exhibit 6. 20. D.W.1, John Sikawa Masoi in his testimony indicated that he was adjudicated the parcel as a member of Nkararo Land Adjudication Section in 2008 and that he had lived thereon since 2008. On cross examination the witness stated that the adjudication record is dated 17/10/1990 and he vehemently denied having purchased the property from John Seme in 2008 21. D.W.2, a land adjudication settlement assistant officer, confirmed that the demarcation book had identified John Seme Ole Saiyalel (the deceased) and later transferred to John Sikawa Masoi through objection No.261. after evaluation of the evidence the trial court found that the Plaintiff’s through their brother a one Mr. Leonard Ole Seme had sold the suit property to the 1st defendant and had now turned around alleging Fraud and sought for cancellation of the 1st defendant’s title. 22. I have reviewed the record of Appeal, the pleadings before the trial court as well as the evidence presented before it. For starters as drawn the 2nd to 4th Defendants statement of defence essentially confirms the averments in the Plaint. for instance, the 2nd to 4th Statements of Defence confirmed demarcation of the suit property in 1990 to Mr. John Seme Saiyalel thus subtly admitting the averments of the plaint in that regard, but they pleaded further that the demarcation was subject to finalisation of the adjudication process and registration of the proprietor. The Both PW1 and DW2 produced similar copies of the record. 23. Secondly the Plaintiff had pleaded that john Seme Saiyalel’s name was crossed out on the adjudication record on the strength of objection proceedings no. 261, and the pleaded that the in so far as the objection proceedings referred to an agreement of sale entered into in 2008 by John Seme Ole Saiyalel and the 1st defendant this was not possible as John Seme had passed on in 2003. The 2nd to 4th defendants in their defence pleaded that the amendment to the adjudication record was made as a result of an objection proceedings pursuant to an Agreement for sale, which they pleaded was procedural, again confirming the averments of the Plaint. 24. Dw2 in cross examination however conceded that the it would not have been possible for John seme Ole Saiyalel to have entered into an agreement for sale in 2008 and appeared personally In the Objection proceedings to affirm that position and append his thumb print the Objection proceedings since he passed on in 2003. It follows therefore that the entire objection proceedings was perpetuated by illegalities and was fraudulently done and was thus a sham, since the suit property had been demarcated in 1990, it was no possible that the 1st defendant would have been demarcated the same parcel in 2008, as he pleaded in His defence either, after finalisation of the adjudication process. 25. It is thus the courts finding the courts finding that the acquisition of the title by the 1st defendant was therefore pursuant to an amendment In the adjudication register which amendment was facilitated by the illegal fraudulent and otherwise sham objection proceedings and was therefore a nullity *ab intio*. As per the reasoning in **Mcfoy Vs. United Africa Co. Ltd 1961 3ACC ER 1169** Where the court stated *interalia* “***if an act is void, then it is in law a nullity, it is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to say there it will collapse”.*** 26. In this regard the court finds that the Plaintiffs case before the Trial court was thus merited and that the learned magistrate erred in finding otherwise. 27. The learned trial magistrate found that the Sale of the suit property was facilitated by the plaintiffs’ older brother Mr. Leonard Ole Seme, the Appellants indicate that they could not stop the 1st defendant from taking possession of the suit property as they were young and in school, this court therefore finds and deems the architect of this deceptive and fraudulent sale in 2008 was the said Mr. Leonard Ole seme. 28. Thus, in answer to issue no 2, the court finds that the Appellants case as Plaintiff before the trial court was merited and that their appeal herein is thus merited. 29. On what reliefs ought to issue, though the Appeal is merited the prayers sought in the Appeal seeking for the Appeal to be allowed as per the prayers in the Plaint cannot issue as prayed for the reasons that if the court is allow the whole suit property to revert to the estate of John Seme ole Saiylel and noting that the Appellants confirmed that Mr. Leonard Ole seme as their brother and may be thus entitled to a share of that suit property as a beneficiary of his father’s estate , and noting that the court has found that he is the one who facilitated the deception herein, he would thus benefit from his wrong action, and Equity frowns upon such conduct; as per the reasoning adopted in KPA Vs. Timberland (K) Ltd the Court of Appeal, 2017 Civil Appeal No. 24 of 2011 (K.E.L.A) 2017 where at paragraph 20 observed as follows; ***“it must be remembered that courts exist for the purpose of doing justice between the parties and must rebut any legal and technicalities that are meant to defeat substantive rights as we have a fused jurisdiction of both law and equity ……to allow such a plea would be to convert the judicial process into a cynical game of sheer chicanery where victory belongs to the crafty and good faith is viciously punished”.*** 30. Applying the same reasoning herein Mr. Leonard Ole Seme, cannot be heard to benefit from a share of the suit property by virtue of being a beneficiary of the Estate of his late father, having sold the suit property to the 1st Defendant and it must thus be deemed that he sold his entitlement and/or share in that this suit property to the 1st Defendant who has built a home thereon since 2008. 31. Thus, the reliefs commending themselves to the court are as follows: - 32. The Appeal herein is allowed and the entire judgment of the trial court is hereby set aside. 33. The matter is remitted to the trial court under Section 78 (c) of the Civil Procedure Act for a retrial on the sole issue of ascertaining Mr. Leonard Ole Seme’s shares (in term of acreage) of the suit property, which shares (acreage) shall be transferable to the 1st Defendant/Respondent and the residue of the suit property is awarded to the Appellants 34. Each party shall bear its own cost in this Appeal but the Appellant shall have costs in the trial court. Dated at Kilgoris this 21st day of May 2026 Hon. M.N. Mwanyale Judge **In the presence of** CA – Sylvia/Clara Mr. Ochwangi for 1st Respondent Mr. Ranah for 2nd to 4th Respondent Ms. Opondo for Appellant