https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2948

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC APPEAL No. E003 OF 2024** **WILSON KIPTUM KETER** …………………………………. **1ST APPELLANT** **DAVID KETER** ………………………………………………. **2ND APPELLANT** **VERSUS** **DANIEL KIPKOSGEI KETER** ………………………….. **1ST RESPONDENT** **ANTHONY NJUGUNA WAWERU** ……………………... **2ND RESPONDENT** ***(Being an Appeal from the Judgement of B. K. Kiptoo (PM), Eldoret Chief Magistrates Court delivered on 8th December, 2023 in ELC No. 34 of 2020)*** **JUDGMENT:** 1. The Appellants herein filed suit against the Respondents vide Plaint dated 10/03/2020 claiming ownership of the parcel of land known as LR No. Olare/Burnt Forest Block 14(Ngeny)/4 (the suit property herein), and asking to be declared the legal and rightfully registered owner thereto. They also sought permanent injunctions restraining the Respondents herein from entering into or otherwise dealing with or interfering with their ownership of the land, and general damages, as well as costs and interests of the suit. 2. The Respondents opposed the suit through an Amended Defence and Counterclaim dated 30/03/2020 denying the allegations in the Plaint. They accused the 1st appellant of illegally and fraudulently acquiring registration of the suit property. They claimed that the 1st Respondent had every right to use the land as the administrator of the estate of Kipketer Chelagat Rongoei. They averred that the 1st Respondent was given 3 Acres of the suit property by the family in the presence of the local administration in 2018. 3. They further averred that the suit property was part of the estate of the deceased where the 1st Appellant and 1st Respondent were co-administrators. They asked for the Appellants’ suit to be dismissed and judgment be entered in their favour for a declaration that the 1st Appellant’s registration was fraudulent, illegal null and void and of cancellation the title, along with an injunction against the Appellants and costs of the suit. 4. The suit was determined through a judgment delivered on 8th December, 2023. The trial court found that the suit property forms part of the estate of the late Kipketer Chelagat Rongoei and ought to be distributed under Section 40 of the Law of Succession Act. The trial court further ordered that the title deed in respect of the suit property, issued in the name of the 1st Appellant herein, be cancelled awaiting determination of the succession cause with respect to the estate of the late Kipketer Chelagat, the owner of the land. Dissatisfied with the said judgment, the Appellants lodged the present Appeal through a Memorandum of Appeal dated 9th January, 2024 on the following grounds: - 5. THAT the learned Magistrate erred in law and in fact in holding that Olare/Burnt Forest Block 14(Ngeny)/4 forms part of the Estate of the Deceased and ought to be distributed in the manner established under Section 40 of the Law of Succession Act. 6. THAT the learned Magistrate erred in law and in fact in finding that the property that was registered in the 1st Appellant’s name was not a free property as per Section 3 of the Law of Succession Act. 7. THAT the learned Magistrate erred in law and in fact in finding that the title deed registered in the 1st Appellants name with respect to land parcel Olare/Burnt Forest Block 14(Ngeny)/4 be cancelled. 8. In the said Memorandum of Appeal, the Appellants seek the following reliefs:- 9. The Appeal be allowed. 10. The judgment of the Subordinate Court be set aside with costs, and this Honourable Court do issue orders of:- 11. An order of declaration that the 1st Plaintiff is the legally and rightfully registered owner of land parcel No. Olare/Burnt Forrest Block 14(Ngeny)/4. 12. An order of permanent injunction to restrain the 1st and 2nd Defendants by themselves, their agents or servants from accessing, trespassing on, ploughing, selling, leasing, disposing off or in any other way interfering with the 1st and 2nd Plaintiffs use, or enjoyment or any portion of the parcel of land known as Olare/Burnt Forrest Block 14(Ngeny)/4. 13. An order of permanent injunction to restrain the 1st Defendant by himself his agents or servants from ploughing, leasing out selling disposing off or in any other way interfering with the Plaintiffs use and enjoyment of land at Gaidi as shared amongst them but their deceased father until the determination of the intended succession proceedings. 14. The costs of this Appeal is borne by the Respondents. 15. Any order that this Honourable Court deems fit and just to grant. 16. The Appeal was admitted for hearing on 8th October, 2025. The Court further directed that the Appeal be canvassed by way of written submissions. **Submissions:** 1. The Parties have complied with the said directions, with the Appellants filing their submissions dated 27th January, 2026 and the Respondents filing submissions dated 17th March, 2026. ***The Appellants’ Submissions;*** 1. In support of the Appeal, Counsel for the Appellants submitted that under Section 3 of the Law of Succession Act, on the definition of free property of a deceased, and submitted that it is only property that the deceased held a legal registrable interest in, which can be transmitted upon his death, can be deemed part of his estate. Counsel submitted that at the time his late father, Kipketer Chelangat died on 17/12/2006, the suit property had not been registered in his name. Counsel submitted that his late father was a partner in Ego Letyo Partners during his lifetime, and had contributed KShs. 1,000/- towards purchase of the property. 2. Counsel explained that there were outstanding payments that had not been cleared, which the 1st Appellant settled to the group, and thereafter completed the transaction and was issued with a title deed. Counsel thus argued that the suit property was legally registered to the 1st Appellant, who was issued a title deed on 22/01/2024. Counsel submitted that the 1st Respondent claimed that the land had been purchased by their father who paid KShs. 17,000/- for 31 Acres, but was later refunded KShs. 6,000/-, yet no single document was produced in support of this claim. 3. Counsel further submitted that the 1st Respondent had admitted that the 1st Appellant’s title was issued by the land registry and not by the deceased. Counsel argued that there is no proof of ownership by the deceased, thus no basis for the trial magistrate to find that the land formed part of his estate. Counsel asserted that the trial magistrate misapplied Section 3 of the Law of Succession Act and ignored binding authority. Counsel relied on ***Mumbi M’Nabea vs David M. Wachira (2016) eKLR***, ***Palace of Investments Limited vs Geoffrey Kariuki Mwenda & Another (2015) eKLR*** and ***in Re Estate of Alexander Kamau Githinji (Deceased) (Succession Cause 53 of 2018)(2024) KEHC 8483 (KLR)***. 4. Counsel further cited Section 26(1) of the Land Registration Act and argued that cancellation of title is a drastic remedy only exercisable where registration is shown to have been procured fraudulently, by misrepresentation, mistake or illegally. Counsel urged that the 1st Appellant’s registration was proper within the meaning of Section 26(1), and he is thus entitled to the full rights and privileges arising therefrom. Counsel added that the Respondent had not pleaded or availed any evidence of forgery, misrepresentation or illegality in the acquisition of the land. 5. Counsel submitted that there was no evidence to show that the land was allocated to the deceased, and neither was any member of Ego Letyo Partners called to shed light on the matter. Counsel cited Section 107 of the Evidence Act, and submitted that he who alleges must prove. He asserted that the cancellation order was predicated on the mistaken finding that the land formed part of the Deceased’s estate. Counsel argued that in the absence of proof of fraud or procedural irregularity, the trial magistrate had no jurisdiction to cancel the 1st Appellant’s title. 6. Counsel pointed out that DW2 had testified that the 1st Appellant had the family’s blessings, and as the area chief, he had endorsed the documents relating to the land which belonged to Ego Letyo & Partners. Counsel however termed DW’s testimony hearsay, claiming he had no knowledge of the matters of the Appellant’s family. Counsel submitted that the cancellation order was unmerited and unjustified and should be set aside. Counsel asked the court to find that the 1st Appellant was the bona fide owner and affirm his title. 7. Counsel concluded by submitting that the trial Court’s judgment is flawed and contrary to the express provisions of the Law of Succession Act regarding the free property of the deceased, and the Land Registration Act on indefeasibility of title. Counsel reiterated the prayers in the Memorandum of Appeal and relied on ***Frann Investment Limited vs Kenya Anti-Corruption Commission & 6 Others (2024) KECA 714 (KLR)***, ***Gichinga Kibutha vs Caroline Nduku (2018) eKLR*** and ***Shimoni Resort vs Registrar of Titles & 5 Others (2016) eKLR***. ***The Respondents’ Submissions;*** 1. Counsel for the Respondents on his part, submitted that the trial magistrate rightly found that the suit land was the property of the deceased. Counsel referred to the Plaint where the Appellants admitted that the deceased was a member of Ego Letyo & Partners, which owned the suit land. Counsel also referred to the Appellant’s Witness Statement where the Appellants further admitted that the suit parcel was acquired by their father alongside other people. Counsel pointed out that PW1 had further admitted to being an administrator of the deceased’s estate. 2. Counsel also submitted that DW1 had testified that their late father had paid KShs. 17,124/-, and was later refunded KShs. 6,000/-, having cleared what was due from him as purchase price prior to his death. Counsel submitted that there was nothing to be paid by the Appellants. Counsel urged that the Appellants had produced no evidence of payment by them or their mother, and that the said claim was an attempt to alienate the suit land from their father’s estate. 3. Counsel referred to the testimony of DW1 and PW6 to the effect that the partners of Ego Letyo had subdivided the land among themselves by the time their parents died, and produced a letter of consent to sub-divide dated 13/2/1992. Counsel accused the 1st Appellant of betraying his fiduciary duties by excluding other siblings. Counsel argued that the 1st Appellant contradicted himself by claiming to have paid for the land, and also claiming that his mother had paid for it. 4. Counsel submitted that the 1st Appellant and the 1st Respondent had instituted Eldoret CM Succession Cause No. 59 of 2016, but the same is yet to be concluded since the suit land had been excluded. Counsel argued that the trial court sat as a land court to determine if the 1st Appellant was legally registered as the proprietor, for which it had jurisdiction under Article 165(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. Counsel urged that the court would lack jurisdiction if it was sitting as a probate & administration Court. 5. Counsel explained that the mandate of the probate and administration court is to determine the assets of the deceased, identity of the rightful beneficiaries of the estate, ascertain their shares and distribute the estate accordingly. Counsel relied on ***Re Estate of Alice Mumbua Mutua (Deceased) (2017) eKLR***. Counsel submitted that upon cancellation and/or restoration of the title, the land be included in the schedule of assets in Eldoret CM Succession Cause No. 59 of 2016. Counsel asked that the appeal be disallowed with costs to the Respondents. **Analysis and Determination:** 1. This court has considered the grounds set out in the Memorandum of Appeal, the Record of Appeal, as well as submissions by counsel on behalf of the parties herein, and the authorities filed in the matter. The Court has identified the key issues for determination in the present appeal as follows:- 2. *Whether the property known as Olare/Burnt Forrest Block 14(Ngeny)/4 forms part of the estate of the late Kipketer Chelagat;* 3. *Whether the trial court was right to cancel the 1st Appellant’s title to the suit property?* 4. *Whether the Appeal herein is merited; and* 5. *Who shall bear the costs of the Appeal?* 6. Section 78 of the Civil Procedure Act sets out the powers of a first appellate court as follows:- ***78. Powers of appellate court*** ***(1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—*** ***(a) to determine a case finally;*** ***(b) to remand a case;*** ***(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.*** 1. These powers were re-affirmed in the case of ***Selle vs Associated Motor Boat Co. (1968) EA 123***, where the court held thus:- ***“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).”*** 1. Ordinarily, the first Appellate Court is the final court of fact and therefore a litigant is entitled to a full, fair and independent consideration of the evidence at the appellate stage. See the case of ***Njenga vs Rimpason & another (Suing as the legal representatives of the Late Rimpason Ole Santamu alias Impasol Ole Kurary Santamu) & another (2024) KEELC 7029 (KLR)***. This being a first appeal, the court has to decide it on both the facts as well as the law. It is therefore the court’s duty to analyse and re-assess the evidence on record and reach its own conclusions. 2. **Whether the property known as Olare/Burnt Forrest Block 14(Ngeny)/4 forms part of the estate of the late Kipketer Chelagat;** 3. Per the suit filed in the lower court, the Appellants claim that the land was acquired by the 1st Appellant legally, and that he was issued with his title by the Land Registry. According to the Appellants, the land does not therefore form part of the estate of their late father, Kipketer Chelagat, as he was never registered as the proprietor thereto, nor is their evidence that the same was ever allotted to him. 4. From the pleadings and the evidence adduced, the parties are in agreement that the land is currently registered in the name of the 1st Appellant, and his title was exhibited before the trial court. The significance of the said title is affirmed in Section 26(1) of the land registration Act, which provides that:- ***26. Certificate of title to be held as conclusive evidence of proprietorship*** ***(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—*** ***(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or*** ***(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.*** 1. In ascertaining who the rightful owner of the suit land is, this court must interrogate the root of title and the documentary evidence presented by the parties. In this case, the Respondents did in fact challenge the 1st Appellant’s title on grounds of fraud, which they specifically pleaded in their Amended Defence and Counterclaim. The Respondents opposed the Appellants’ claims, asserting that the land belonged to their late father, who had purchased it with others, through a vehicle known as Ego Letyo & Partners. 2. The Respondents aver that the suit property thus forms part of the estate of the late Kipketer Chelagat. The Respondents further argue that the 1st Appellant fraudulently replaced the name of the late Kipketer Chelagat’s name in the entity known as Ego Letyo & Partners, and procured registration as the owner of the land. The Respondents accused the 1st Appellant of abusing his fiduciary duty as the administrator of his father’s estate, by fraudulently registering the land in his name to the exclusion of the other beneficiaries of the said estate. 3. His registration and title having been challenged, the 1st Appellant, as the registered proprietor ought to go beyond the instrument of title itself and prove the legality of how he acquired it and show that the acquisition was legal, formal and free from any encumbrances. These sentiments were expressed in ***Munyu Maina vs Hiram Gathiha Maina (2013) KECA 94 (KLR)***, where the Court of Appeal held as follows:- ***“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”*** 1. Notably, in the Plaint as well as in his witness statement and the statements of the Appellants’ witnesses, the 1st Appellant admits that the land was acquired by his late father through the entity known as Ego Letyo & Partners. The 1st Respondent produced a list of the original allottees of Ego Letyo & Partners, which also set out their respective shares of L.R. No. 7014 measuring 200 Acres. Among the said members, was Kipketer Chelagat, who was allocated a total of 31 Acres of the said land. 2. The Appellants presented no evidence that the 1st Appellant was of his own right one of the original 8 members of Ego Letyo & Partners. His only claim to the suit land can be traced through his father’s interests as a member of the said entity. 3. Notably, the Appellants claimed that Ego Letyo Partners had not subdivided the land at the time of their father’s demise, and thus the deceased had not been allotted the suit portion. However, PW6 whose father was also among the original members of Ego Letyo, testified that by the time their fathers died, they had subdivided the land. He further testified that when their fathers died, they agreed that the titles be issued to the children, and he referred to the letter of consent to subdivide dated 13th February, 1992. 4. Indeed, a Letter of Consent from the Ainabkoi Land Control Board dated 13th February, 1992 approving a subdivision of LR No. 7014 into 8 portions was produced before the court. This was done way before the demise of Kipketer Chelagat in 2016. Furthermore, the Appellants confirmed that they moved to the land before their father’s death. The 1st Appellant adopted his witness statement, in which he stated that his mother moved to the suit land in the year 1966. 5. This testimony confirms that as at the time of the late Kipketer Chelagat’s death, the land had been subdivided and each of the original 8 buyers had been showed their portions. Moreover, the issue of subdivision is irrelevant in this case since it is well admitted that the late Kipketer Chelagat was a member of the entity that purchased the land known as LR No. 7014, and was entitled to 31 Acres thereof even if the land remained undivided. 6. There was also an allegation that the Appellants and their mother paid any outstanding amounts on the land. This allegation was however not proved as the Appellants did not provide any evidence of payments made by either them or their mother towards purchase of the suit property. But that aside, the Appellants’ allegation that their mother contributed to the purchase of the suit land was equally not proved. 7. Nevertheless, the document title Muster Roll for the Month for Ngeny Farm LR No. 7014, dated 6th August, 1987 shows not only the acreages of the respective members, but also that an amount of KShs. 6,000/- was refunded to the late Kipketer Chelagat. The said document is duly signed and stamped by the Chief of Olare Location. This refund is explained in the Chiefs letter dated 6th September, 1988 attached to the letter 6th July, 1990, both found at pages 125-126 of the Record of Appeal. 8. The above-stated Chief’s letter detailed a land dispute between Kipketer Chelagat and Kipkosgei Changwony on the one side as complainants, versus Ego Letyo, Cherotich Cheptum, Barsolai Cheboi and Bundotich Barsolai, all six parties being the original members of Ego Letyo and partners. The findings of the elders as depicted in the letter, are that the complainants had paid more money including their part of the debt. The elders ordered that any money paid not used for the farm would be refunded. Therefore, there is no proof to the Appellants’ claims that there were outstanding arrears on the purchase price or that they paid with their mother’s help. 9. As regards the contributions made by the Appellants towards processing the titles, I note that the Respondents claim that they refunded KShs. 31,000/- to the Appellants as their share of the said contribution. No evidence was produced of this payment. I note however that the succession court has authority to determine the level of contribution by the Appellants, if any, and distribute the assets of the deceased as it deems fit. Thus this matter will be better addressed by the said court. 10. The 1st Appellant produced documents showing that he had contributed towards offsetting a charge registered in favour of the Commissioner of Income Tax, as well as paid rates and claims to have incurred expenses towards processing of the title. While all this may be true, this did not entitle the 1st Appellant to registration of the deceased’s estate without first adhering to the provisions of the Law of Succession Act. 11. In any event, the 1st Appellant was included in the processing of the title as an administrator on behalf of his father. In the Minutes of Ngeny Farm dated 21st May, 2013, it is clearly indicated against his name that he was an administrator and not the owner of the land. The 1st Appellant cannot therefore claim to have been acting as the original buyer of the suit land when he procured registration in his name. 12. In addition, I note that the Chief’s meeting held on 20th October, 2016 was held after issuance of the Grant in CM Succession Cause No. 59 of 2016. It is possible that the said meeting was to guide the family on the division of the assets of the deceased. However, without being endorsed by the probate court, the outcomes of the said meeting are not binding as the said office had no jurisdiction to distribute the assets of the deceased’s estate. 13. All in all, the 1st Appellant herein bore the burden of persuading the court that his title to the suit land was acquired legally and procedurally. The 1st Appellant however failed to show that he is the one that purchased the suit property or that he was a member of Ego Letyo Partners, the entity that originally purchased the land. 14. In failing to do so, the 1st Appellant failed to prove the root of his title. Consequently, it is clear that the land was purchased fully by the late Kipketer Chelagat. In the premises, the trial court therefore was right to hold that upon his demise, the suit land formed part of the assets of his estate. 15. **Whether the trial court was right to cancel the 1st Appellant’s title to the suit property?** 16. Having found that the land did not belong to the 1st Appellant, but was part of his late father’s estate, the next issue is to determine what is to happen to the title held by the 1st Appellant. Section 26(1) of the Land Registration Act clearly allows a title to be challenged on the grounds set out thereunder. Arising out of the provisions of the said statutory provision, the 1st Appellant’s title was challenged on the ground that it was acquired fraudulently. 17. The trial court having equally found that the land belonged to the estate of the late Kipketer Chelagat, it went ahead and ordered a cancellation of the 1st Appellant’s title. The Appellants claim that the trial magistrate erred in ordering the cancellation of the title deed registered in the 1st Appellants name. 18. It is not lost on this court that the 1st Appellant and the 1st Respondent were appointed co-administrators of the estate of Kipketer Chelagat, vide a Grant of Letters of Administration issued in Eldoret CM Succession Cause No. 59 of 2016 on 1st September, 2016. This appointment solidified his role as an administrator and not the owner of the suit land. But most importantly, before the issuance of the said grant, no one had authority to deal with the suit property as is provided under Section 45 of the Law of Succession Act, which reads:- ***45. No intermeddling with property of deceased person*** ***(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.*** 1. Therefore, aside from obtaining title, the 1st Appellant had no authority to transfer and/or obtain registration of the suit property in his name before the grant was issued. He did so in contravention of Section 45(1) of the Law of Succession Act, which acts are criminalised under Section 45(2) thereof. 2. That being so, the 1st Appellant’s acquisition of the suit property can neither be said to be legal nor procedural, and going by the provisions of Section 45(2), the 1st Appellant’s actions border on an illegality. This court has already found that the root of the 1st Appellant’s title was not proved. 3. Where the root of title is shown to be illegal, fraudulent, or procedurally defective, as is the case here, the law allows for the cancellation of such title under 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.*** 1. From the above cited provision, the law recognises several scenarios in which a title deed may legally be cancelled or revoked. The relief of cancelling a title is not exercised casually, but upon sufficient proof being tabled before the court of the alleged mistakes or fraud. Section 80(2) further requires that the proprietor be aware of the alleged omission, fraud or mistake. I have no doubt that by the facts pleaded in this suit, the 1st Appellant was not only aware, but took part in the events that led to the registration of the land in his name. 2. It follows that a title issued contrary to the Law of Succession can be cancelled because the registration was unlawful from the start. The procedural irregularities in that regard are sufficient ground for cancellation of the 1st Appellant’s title. Consequently, the trial court’s decision to order cancellation of the 1st Appellant’s title was valid owing to the finding that the land belonged to the estate of the late Kipketer Chelagat. 3. **Whether the Appeal herein is merited;** 4. The next step is to determine whether the present Appeal is merited. The Appellants only advanced three grounds of appeal in this case. The first was that the trial Magistrate erred in law and in fact in holding that Olare/Burnt Forest Block 14(Ngeny)/4 forms part of the Estate of the Deceased. 5. This court has examined the manner through which the 1st Appellant’s title was acquired and determined that the same was irregular and bordering on illegality. This court has also upheld the trial courts finding that the land forms part of the estate of the late Kipketer Chelagat. That being the case, the suit property ought to be distributed in the manner established under Section 40 of the Law of Succession Act as held by the trial court. For this reason, the first ground of appeal fails. 6. Secondly, the Appellants claimed that the trial Magistrate erred in law and in fact in finding that the property that was registered in the 1st Appellant’s name was not a free property as per Section 3 of the Law of Succession Act. At page 6 of the judgment, the trial court held that:- ***“It is therefore clear that the only property that forms part of the estate of the deceased is that property which the deceased herein was legally competent to dispose of during his lifetime and in which by the time of his death, interests had not been terminated.”*** 1. Section 3 aforesaid defines free property in relation to a deceased person as follows:- ***“free property, in relation to a deceased person, means the property of which that person was legally competent freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death”*** 1. In this case, the interests of the late Kipketer Chelagat over the suit property were not extinguished by his death. He remained the purchaser of the land as a member of Ego Letyo Partners, and could have freely disposed of it during his lifetime if he had chosen to do so. The property therefore was free property of the late Kipketer Chelagat, for which the Appellants were barred by Section 45 of the Law of Succession Act from intermeddling with. 2. That definition definitely has been held to include any parcel of land which belonged to a deceased, which he intended to transfer to a third party, but he died before transferring it. See ***In re Estate of Edward Murithi Mutegi (Deceased) (Succession Cause E011 of 2021) (2023) KEHC 22440 (KLR) (21 September 2023) (Ruling)***. From the foregoing, the Appellants failed to prove that the suit land was not the property of the deceased. As a result, this ground of appeal also fails 3. The final ground of appeal was that the trial Magistrate erred in law and in fact in finding that the title deed registered in the 1st Appellant’s name with respect to land parcel Olare/Burnt Forest Block 14(Ngeny)/4 be cancelled. The court has considered the cancellation of the 1st Appellant’s title and found that the trial magistrate was justified in issuing the cancellation order and that the said relief was merited. For that reason, this ground of appeal equally fails. 4. **Who shall bear the costs of the Appeal?** 5. Turning to the issue of costs, Section 27 of the Civil Procedure Act provides that:- ***27. Costs*** ***(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:*** ***Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.*** 1. In accordance with the provisions of Section 27 above, the general rule therefore is that costs follow the event. A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. The present Appeal having failed, the court duly notes that the Appellants have not successfully prosecuted this appeal. Ideally therefore, the Respondents would otherwise be entitled to the costs of the appeal. 2. However, I note that this is a dispute majorly between siblings, even if only half-siblings. In the spirit of fostering peace and future amicable relations, if any can be possible, the court will decline to award costs to the Respondents. **Orders:-** 1. Consequently, all the three grounds set out in the Memorandum of Appeal dated 9th January, 2024 having failed, it follows that the present appeal is therefore not merited, and the orders sought therein cannot issue. The appeal is dismissed. There shall be no order as to costs. 2. Orders accordingly. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** on this **14TH** day of **MAY**, **2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** **In the virtual presence of:-** Mr. Tarago & Ms. Lihanda for the Appellant. Mr. Murgor for Respondent. Court Assistant - Laban.