https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4997

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT KISUMU** **ELC(LA) NO. E019 OF 2025** **VITALIS OWITI NYAGAMBI & SEFRINE ACHIENG ODERA…………...APPELLANTS (Suing as the legal representative of the estate of MORRIS MIGOT NYAGAMBI- Deceased)** **VERSUS** **THE LAND REGISTRAR KISUMU COUNTY…………………………………......RESPONDENT** **JUDGMENT** 1. Being dissatisfied with the judgment and decree delivered by Honourable Melanie Ochieng (PM), in Maseno MCELC number E013 of 2021 delivered on 05.02.2025 between Vitalis Owiti Nyagambi & Sefrine Achieng Odera (Suing as the legal representative of the estate of Morris Migot Nyagambi(deceased)) and Castro Omondi & the County Land Registrar Kisumu, in respect to green card entries 2 to 6 for Land Parcel West Kisumu/Ojola/252, the Appellants filed the Memorandum of Appeal dated 23.02.2025, and sought the following reliefs; 2. The judgment and decree on quantum in Maseno MCELC No. E013 of 2021 be set aside. 3. The Honourable Court be pleased to make its own finding. 4. The Cost of the Appeal be provided for. 5. The Appellants penned 5 grounds of Appeal; as follows; 6. That the Learned Magistrate erred in fact and Law by ignoring that the Respondent failed to call the land registrar a material witness hence this may be interpretation of an indication of knowledge that the Appellants evidence is true, or at least that the tenor of the evidence withheld is unfavourable to the Respondent’s cause. 7. The Honourable Trial Magistrate erred in fact and law when she failed to consider that the Respondent failed in *toto* to produce any documents and/or Succession cause court order in support of transfers land Parcel No. West Kisumu/Ojola/252 from Morris Migot Nyagambi who passed on in the year 1986 to Albert O. Odhiambo from 1995 and later transferred to Felgone Achieng Odhiambo in the year 1999. 8. The Honourable Trial Magistrate erred in Law in particular **Section 107 and 108 of the Evidence Act Cap 80 Laws of Kenya** when she failed to consider the submissions of the Appellants herein. 9. The Learned Trial Magistrate erred in law and misdirected herself to the extent when she failed to cancel entries number 2 to 6 on the green card which were subject of alleged succession cause whose Certificates of grant of administration were not produced by the Respondent as exhibits before court. 10. The Learned Trial Magistrate erred in law and fact by failing to consider that the Respondent exhibit was only a caution put by the 1st Appellant herein. 11. On the strength of the above grounds of Appeal, the Appellants sought for the reliefs set out at Paragraph 1 of this judgment. 12. Upon admission of the Appeal the court issued directions for disposal of the Appeal by way of written submissions which the court summarizes as herefollows; **Appellants Submissions** 1. The Appellants’ submissions submit on one summarized issue, whether the court should cancel entries 2 and 6 on the green card which were subject of an alleged succession cause whose grant was not produced by the Respondent herein. 2. In which the Appellants submit that the Respondent transferred the suit property without taking into account the letter of administration of the late Morris Migot alias Morris Migot Nyagambi who died on 20.07.1986 and contrary to **Section 45 of the Laws of Succession Act**. The Appellants also relied on the cases of **Veronica Njoki Wakagoto (deceased) [2013] eKLR** and **In the Estate of Barasa Kanenje Manya (Deceased) [2020] eKLR**. 3. The Appellants submit that this court has authority to allow the Appeal on the strengths of the above submissions and revert the suit land back to the late Morris Migot relying on **Section 80 (1) of the Land Registration Act**. **Respondent’s Submission** 1. The Respondent did not file submissions. **Issues for Determination** 1. The issue arising from the Record of Appeal as well the submissions, and upon consideration of the law, the court frames the following as issues for determination. * + - 1. Whether or not the Appeal is merited, this issue shall equally determine which between the plaintiffs suit before the trial court, and defence was merited and ought to have been upheld? 2. What reliefs ought to issue. 3. Who bears the costs of the Appeal. **Analysis and Determination** 1. It is this court’s duty as a first Appellate court to “***reconsider the evidence, evaluate it and draw its own conclusion”*** as stated in Selle and Another Vs. Associated Motor Boat Limited and 3 Others. 2. In fulfilment of that duty, the court has reviewed the pleadings, proceedings and the impugned judgment. The Appellant herein was the plaintiff before the trial court and vide his Plaint dated 5th November 2021, the Plaintiff averred that; 3. he brought the suit as an administrator-ad-litem of the Estate of Moris Migot Nyagambi who died intestate on or about 20.01.1986, while he was the registered owner of all that parcel of land referred to as title No. West/Kisumu/Ojola/252 and that as at date of death of the late Moris Migot Nyagambi the suit property was still registered in his name. 4. the 1st Defendant trespassed on to the suit property, and the plaintiff discovered that the suit property had fraudulently and/or illegally transferred to Albert D. Odhiambo and subsequently transferred to Felgone Achieng Odhiambo wife of the said Albert Odhiambo. 5. He pleaded particulars of fraud on the part of Defendants to include, transferring property without undertaking successions proceedings; without knowledge of beneficiaries of the Estate of Moris Migot Nyagambi. 6. Plaintiffs equally pleaded particulars of trespass, and sought for cancellation of the entries 2 to 6 of the green card and register of West Kisumu/Ojola/252 and for the title to revert to Moris Migot and an order for vacant possession of West Kisumu/Ojola/252 and a permanent injunction. 7. The 1st Defendant filed defence and averred that * + - 1. he was not aware of Vitalis Nyagambi, and he denied being the Administrator of the Estate of Albert O. Odhiambo and Felgone Achieng Odhiambo. 2. The 1st Defendant further denied knowledge of the late Moris Migot Nyagambi, and averred that the suit property was still in the name of Felgone Achieng Odhiambo and no succession had been undertaken in respect of the Estate of Felgone Achieng Odhiambo. 3. The 1st Defendant denied the allegation of fraud and trespass pleaded against him; and sought for the dismissal of the plaintiffs suit. 8. The 2nd defendant filed a defence vide the Hon. the A.G’s office and denied the averments in the Plaint in totality and prayed for the plaintiffs suit to be dismissed with costs. 9. The matter proceeded for hearing, the plaintiff testified as P.W.1 and adopted his statement and in cross-examination he conceded that the 1st defendant did not feature in the green card and there was no photograph to show the alleged trespass. 10. After consideration of the evidence the trial court found that the plaintiff had failed the duty of proving that the 1st Defendant was the personal representative of the Estate of Albert O. Odhiambo and/or Felgone Achieng Odhiambo, but found that he had been sued in his personal capacity. 11. The trial court equally found that the plaintiff had failed to prove his case against the defendants and dismissed the case provoking this Appeal. 12. The said finding was sufficient for the court to hold that the 1st Defendant had been wrongly sued as he was sued in the administrator of the Estate of Albert O. Odhiambo and Felgone Achieng Odhiambo as per paragraph 6 of the Plaint and yet he was not sued in his personal capacity. 13. The learned trial court thus fell in error to make a finding that the 1st Defendant was sued in his personal capacity, as paragraph 6 of the Plaint stated the capacity in which the 1st Defendant was sued, was as an Administrator of the Estate. 14. The green card adduced in the matter as a P.Exhibit 3 showed that at the time of the death of Moris Migot Odhiambo the suit property was in his name and that it was transferred to third parties in 1995 almost a decade after his death, it thus arises a very substantive issue as to how the suit property changed hands and which the plaintiff ought to have been given an opportunity to ventilate against the proper parties, now that the 1st defendant was not the property party. 15. It is the court findings that the learned trial magistrate ought to have struck out the plaintiff suit against the first defendant instead of dismissing the same when she found that the 1st Defendant was not the Administrator of the Estate of Albert O. Odhiambo and Felgone Achieng Odhiambo, hence the plaintiff was non-suited against him and proceed to determine the issue of the transfer of the title to third parties by the 2nd Defendant 16. In the end I find the Appeal to be merited and substitute the order for dismissal with an order for striking out the suit, against the 1st defendant and since no evidence was called by the 2nd Defendant as to how the suit property was transferred to Albert Odhiambo and Felgona Odhiambo, the Appeal is thus merited. 17. The Appellant is at liberty to institute fresh proceedings against the right parties. 18. The costs of suit in lower court are awarded to the 1st Respondent while the cost of the Appeal are awarded to the Appellant. Dated at Kilgoris this 28th day of July, 2026 Hon. M.N Mwanyale Judge **In the presence of** CA – Sylvia/Clara Mr. Alego for the Appellant N/A for the Respondent