https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4743

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMABAY** **ELC APPEAL NUMBER E043 OF 2024** **MONICA OCHIENG……………………………………….1ST APPELLANT** **ELLY OKUMU AYIEYO…………………………………….2ND APPELLANT** **VERSUS** **DAVID ONYANGO MIRERI………………………….1ST RESPONDENT** **PERIS AKINYI ODERO………………………………. 2ND RESPONDENT** **(Being an Appeal from the Judgment and decree of the Magistrate’s court of Kenya at Oyugi’s by Hon S.O ONGERI delivered on 24th September ,2024 in ELC CASE No. E026 OF 2021)** **DAVID ONYANGO MIRERI & PERIS AKINYI ODERO (Suing as personal representatives of the estate of** **PATRICK MIRERI………………………………………………..PLAINTIFFS** **VERSUS** **MONICA OCHIENG ……………………………………….1ST DEFENDANT** **ELLY OKUMU AYIEYO …………………………………...2ND DEFENDANT** **JUDGMENT** **BEFORE: JUSTICE** **J.W WANYONYI, JUDGE** **INTRODUCTION:** 1. The Appellants who are the Plaintiffs in the lower court sued the Respondent seeking for: 2. An order cancelling the title deed CENTRAL KASIPUL/ KACHIEN/ 1541 issued the Defendant 3. A permanent injunction against the Defendants, their families, employees and or /or agents from barring them from entering, tilling, using and or occupying the parcel of land known as CENTRAL KASIPUL/KACHIEN/1541. 4. Costs and interests. 5. The Appellants state that they are son and daughter in law to one Patrick Mirerei(Deceased) who was the original owner of land known as CENTRAL KASIPUL/KACHIEN /1541, that the deceased left for Tanzania in early 1990’s and returned in 1993 only to find that the Respondents had taken possession and ownership of his land to the extent of registering themselves as owners , that prior to his death the Deceased did everything possible to pursue the issue even to an extent of placing a caution on the land , that upon his demise the beneficiaries have taken up the issue to no avail , and that, since the title was obtained by fraud the same ought to be cancelled . 6. In their written statement of defence and counterclaim, the respondents denied the respondent's claim. They state that the Adjudication register was opened on 26th June,1976, and on the same date, they were registered as proprietors of the suit property at half share each having obtained a first registration which cannot be defeated, that the Deceased was present during Adjudication and only left for Tanzania in 1990’s. In the counterclaim the Appellants are the Plaintiffs while the Respondents as listed as defendants they state that they were registered as owners of the suit parcel on 26th June,1976 , that the counterclaimed is entitled to exclusive rights , that the Respondent’s late father made several efforts by using the offices of by then provincial Administration which held various arbitrations and whose verdict did not yield any fruits , that the Respondents having discovered that the land belongs to the counterclaimed and his late brother , unlawfully entered and trespassed, that the counterclaimed is bound to be denied of the benefits attendant to ownership of the suit property .The counterclaim prays for judgment in terms of prayer (a) (b) (c ),(d) and (e) of the counterclaim. T**he appellant's evidence in the court below:** 1. In her defence as D.W.1, Monica Adhiambo Ochieng, states that she is the wife to the 1st Defendant (Counter claimer) that her counterclaim is that she owned the Deceased land as she inherited it from the the deceased. She states that the land belongs to Elkana jointly with the 2nd Defendant one Elly Ayieyo. She states that she has lived on the land for 15 years and that the land is in her late husband’s name and the 2nd Defendant. Incross examination she says she doesn’t know how her husband acquired the land. She says that she is not aware of elders meeting and resolutions, and that, she is not aware of any meeting her late husband attended over the land. 1. D.W.2 Elly Okungu Ayieyo, the 2nd Defendant (Appellant), testified that he knows nothing about the land. He says that the land was registered in his names and his late brother. The land was measured and found to be 0.3 Ha., In cross examination he says he knows nothing about Patrick Mireri. Neither is he known to the Respondents. He says he knows the Assistant [Chief. He](http://chief.he) says adjudication was done in 1972 and that he was not aware of the meeting held in 1993 at the Assistant Chief’s [Office. In](http://office.in) passing the court noted that no title deed or land document was produced by this witness. **The respondent's evidence in the court below:** 1. P.W.1, Peris Atieno, the 1st respondent adopted her witness statement. She also produced documents as exhibits number 1 -8. She says the deceased was her father-in-law and that he lived in Tanzania for long. She produced a chief’s letter in support and that when he came back, he found people had encroached on the land. She states that though the invaders left the title deed was never cancelled. After her father-in-law died invaders came back. She says she has lived on the land for over 30years since 1990. In cross examination she states that she is a daughter in law to Patrick Mirerei (Deceased). She states that the deceased owned parcel number 1541 and that she lives on that parcel. She says that the land is fraudulently registered in the name of the Defendants. She finally says that When the Deceased came back, he took steps to gain ownership of the land in vain. 7. PW2, David Onyango Mireri,2nd Respondent also adopted his statement. He says he is a son to Patrick Mireri. He says they have letters from the Area chief and minutes to show that the issue was deliberated upon. He says the search confirm that the 1st Appellant is the owner of the land and that the Appellants took possession when the deceased had gone to Tanzania. In cross exam he says his father when to Tanzania and came between 18/10/89 and 21/11/1998. He says when the matter was resolved at the chief’s office it was resolved that the Appellants vacate the land. He confirms that they were evicted but they came back after the death of the deceased. 11. PW3, Samson Odhiambo Osae, a retired Civil servant and former a Senior Assistant chief from 1987 to 1998 says all the parties were his subjects and that he knows the land. He says Plot number 1541 belonged to Patrick Mireri. He says that Patrick went to Tanzania during adjudication and in his absence the land was registered in the Appellants name. He came back and went to stay on the land. He went to Tanzania twice and came back again. That the Appellants were chased out. When the deceased went the first time the land was vacant and when he came back, he built then left again. When he went back the 2nd time they invaded the land again. When Patrick came back, they were reported and ordered to leave. Upon Patrick’s death they came back again. In re-exam he says that Patrick was in Tanzania when adjudication was done and the 1st Appellant took advantage of the situation: **Judgment of the court below:** 12**.** The Learned trial Magistrate delivered his judgment on 29th September, 2024 and made a finding that the title was obtained in the absence of the deceased, and evidence showed the Deceased was buried on the land. 13. The trial court found further that the appellants are not entitled to occupation nor ownership of the suit land, and, proceeded to cancel the title and ordered the same to be registered in the name of the Deceased 15. He also issued a permanent injunction against the Appellants restraining them from using or occupying the parcel of Land known as CENTRAL KACHIENI /1542 16. Consequently, he dismissed the Counterclaim with costs to the Respondents. **The grounds of appeal:** 17. The appellant was dissatisfied with that decision and appealed to this court on the following grounds, namely; 1. The learned trial Magistrate failed to consider, evaluate and analyze the evidence on record thereby coming to a wrong conclusion on both law and f. 2. The learned trial Magistrate erred in law and fact by failing into account relevant factors and a result ended up with a wrong decision on the Authenticity of signature of the Deceased on the Adjudication records. 3. The learned trial Magistrate erred in law and fact by considering issues thereby arriving at a wrong determination as regards the usage and occupation of the suit parcel. Arguments of Counsel for the appellant: 18. In their submissions, counsel for the 1st appellant, submitted on three issues namely; 1. Whether the trial court erred in fact and in law in hearing and determining a time barred suit. 2. Whether the trial court erred in fact and in law in granting the relief of cancellation of title to Land Parcel number CENTRAL KASIPUL/KACHIENI /154. 3. Who will bear costs of the case. 4. On the 1st issue the Appellant’s counsel states that the Respondent in the main suit admitted that the defendants (now Appellant) were in occupation of the property without their consent and as such the cause of action for recovery of land would fail under section 7 of the limitation of Actions Act, that peaceful occupation of the suit property was interrupted 1993 yet the main suit was instituted in the trial court at Oyugis ELC CASE NUMBER E026 OF 2021 in 2021 , after a staggering twelve(27) years later , that failure to institute proceedings within the prescribed time frame of twelve years rendered the suit untenable. Counsel relies on the case of [Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/1982/10/eng%401982-01-30) where the court observed “**The law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest. Special provision is made for infants and for the mentally unsound. But, rightly or wrongly, the Act does not help persons like the applicant who, whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done.”** 5. **Counsel also referred to the case** LT COLONEL PETER NGARI KARUME & OTHERS VS ATTORNEY GENERAL, NAIROBI CONSTITUTIONA PETITION NUMBER 18 OF 2006(2009) eKLR, NYAMU.J, held that: ‘**’the petitioner had all the time to file their claim under the ordinary law and the Jurisdiction of the court but they now did and are now counting on the constitution. None of the petitioners has given an explanation of the delay of 24 years was inordinate. I have considered the entire Petition and as I have already stated, in my view the petitioners have come to court too late and have in addition not offered any concrete evidence in support of their allegations and they cannot succeed for this reason as well’’.** Counsel concludes by saying that the court erred in entertaining the suit as the Respondents lacked the locus standi to institute the suit. 1. On the 2nd issue Counsel submit that under section 28 of the RLA (Section 26) a first registration cannot be defeated. He relies on the case of [Ochola v Obeti [2004] KEHC 1036 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2004/1036/eng%402004-10-14) and [Nyangw’ara v Njuguna & another [2013] KEELC 161 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/161/eng%402013-02-21) where the court held that it is protective on title and provides two instances for cancellation. 2. On fraud he relied on the case of [Orieny & another v National Bank Of Kenya [2024] KEHC 6002 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/6002/eng%402024-05-20) where the court addressed the principles of fraud. He says the Respondents did not adduce evidence to support the particulars of fraud. Counsel prays that the appeal be allowed with costs. **Arguments of Counsel for the respondents**: 1. Counsel for the respondent submits that evidence adduced supports the fact that Mireri was the original owner of the suit land before adjudication had commenced and that the appellants took advantage of his absence. Counsel concurs with the holding of the Learned trial Magistrate that when the root of a title is under challenge it is not sufficient to dangle the instrument of title as evidence of ownership. The registered proprietor must go beyond the instrument and prove the legality of how he acquired title and that the Appellant availed the of title as evidence of ownership but they never availed evidence to rebut the documents availed by the respondent pertaining to ownership. Counsel relied on the case of [General & another v Hussein & 3 others [2025] KECA 1022 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1022/eng%402025-06-05) where the court referred to its own decision in Korir versus Njoki[*& Another (Civil Appeal 34 of 2020*](https://kenyalaw.org/akn/ke/judgment/kehc/2023/25058)) [2023] KECA 439 (KLR) where it was held as follows: **“In this case, the appellant’s title was being challenged on the ground that the proprietors of the suit land were not aware of the circumstances under which he allegedly acquired interest thereunder. It was that very title whose authenticity was in dispute. In those circumstances he could not just come to court and place the very same title before the court and claim that the evidence was sufficient. He ought to have gone further and explained the process by which he obtained the said title. In this case there was no such evidence and since he was not physically involved in the transaction, he ought to have called the person who transacted on his behalf even if he could not call the alleged seller**.” (Emphasis mine) **Duties of a first appellate court:** 1. It is the duty of this court as a first appellate court to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion (see ***[Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates](https://kenyalaw.org/akn/ke/judgment/keca/2013/208%22%20%5Ct%20%22_blank)***[2013] eKLR, In a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions. 1. In exercise of its appellate jurisdiction, this court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. In particular, this court is not bound necessarily to follow the trial magistrate’s findings of fact if it appears either that he or she 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 demeanor of a witness is inconsistent with the evidence in the case generally. 2. Before proceeding further, I must address the introduction of a new ground of appeal by the appellants in their submissions; the issue of the trial court’s jurisdiction. The appellants were bound by the grounds postulated in their memorandum of appeal and this court will disregard it. 3. Courts have ordinarily frowned upon parties who raise new issues in the Appeal and which were not addressed in the court below 4. In **Kenya Hotels Limited vs. Oriental Commercial Bank Limited [2018]** eKLR that:“ **Where the applicant seeks to introduce an entirely new point, there are well known strictures that seek to ensure firstly, that an appellate court does not, in disguise, metamorphose into a trial court and make first- instance determinations without the benefit of the input of the court from which the appeal arises…Due to these fundamental concerns, the Courts have developed fairly elaborate principles that guide it in determining whether or not to allow a new point on appeal. In Openda v. Ahn, (ca 42/1981) this Court identified some of the principles to include that all grounds of appeal must arise from issues that were sufficiently pleaded, canvassed, raised or succinctly made issues at the trial; that the point sought to be introduced must be consistent with the applicant’s case as conducted in the trial court, not changing it into a totally different case; the matter must have been properly pleaded and the facts in support of the new point must have come out in the trial court.”** 5. This ground must therefore fail. **Grounds one; whether the Learned Trial Magistrate failed to properly evaluate and analyze evidence on record.** 1. **The issue that was laid before** the Trial Magistrate and which arose from the pleadings, evidence and submissions was whether the title was lawfully and legally obtained. 2. Fraud’ has been defined in Blacks Laws Dictionary as; **“Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to cause him an injury.**’’ 1. Further from the Black’s Law Dictionary Ninth Edition at Page 731 also defines ‘fraud’ as: - “**A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.”** 2. It has been held by the Court of Appeal that a party is required to prove the issue on a standard beyond a mere balance of probability (**See Ratilal Gordhanbhai Patel – Versus - Halfi Makanji (1953) EA 314, Eva Kimea & Another – Versus - Nawal Abdulrahman, Abdalla C.A No. 52 of 2014 Malindi and Malindi C.A No. 26 of 2013 Kalume Karisa Mbithe & Another Vs Bromine Investment Limited.** 3. On the standard of proof required for claims based on fraud, courts have held that the standard of proof is higher than in the ordinary civil cases. 4. In the case of\_” **Koinange & 13 others – Versus - Charles Karuga Koinange 1986 KLR** at page 23 the court held that: - “**When fraud is alleged by the Plaintiffs the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required**.” 5. Section 109 of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46) Cap 80 is clear that; ''The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.'' 6. The well-known mantra “**he who asserts must prove.”** was well pointed out by the Court of Appeal in [*Jennifer Nyambura Kamau vs Humphrey Mbaka Nandi*](https://kenyalaw.org/akn/ke/judgment/keca/2013/423) (2013) eKLR as follows; “**We have considered the rival submissions on this point and state that Section 107 and 109 of the**[***Evidence Act***](https://kenyalaw.org/akn/ke/act/1963/46)**places the evidential burden upon the appellant to prove that the signature on these forms belong to the respondent. Section 107 of the**[***Evidence Act***](https://kenyalaw.org/akn/ke/act/1963/46)**provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”** 1. **Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the**[***Evidence Act***](https://kenyalaw.org/akn/ke/act/1963/46)**provides, the burden lies on that person who would fail if no evidence at all were given on either side.”** 2. In [*James Muigai Thungu vs County Government of Trans-Nzoia & 2 others*](https://kenyalaw.org/akn/ke/judgment/keelc/2022/231) (2022) eKLR it was held that;“**It is now settled law that whosoever asserts the existence of a legal right or liability is vested with the burden to prove it except in so far as the law may expressly exempt him or her.”** 3. **I have looked at the plaint dated 24th April ,2025 and I find and hold that the main issue raised is fraudulent acquisition of title through the adjudication process. The Respondents have pleaded that adjudication was done at a time when the Deceased was the bonafide original owner of the said title. The details of fraud are particularized at paragraph 18 thereof.** 4. **The plaintiffs (now Respondents) called evidence in support of their and the former chief (SAMSON OSANYA ODHIAMBO) at page 71 who is well known to both families. He confirms that the suit land plot number 1541 belonged to Patrick, that adjudication was done in his absence, and the same registered in the names of the 1st Defendant, that the Defendants were chased out after he returned and when the deceased came back again, he developed the land and after leaving a second time they invaded the land once more. He says upon Patrick’s death they repeated the invasion. He confirms that a meeting of elders was called and they were ordered to leave.** 5. **The Defendants were also given an opportunity of presenting their case. The 1st Appellant testifies as DW 1. She states that the land was acquired by her later husband and the 2nd Appellant his brother; that she has lived on the land for 15 years without interruption. However, she faltered in cross examination when she says that she doesn’t know how the land was acquired and she is also not aware of the elders meeting.** 6. **DW2 was the 2nd Appellant. He says he knows nothing about the land but says the land was registered in his name and his Deceased brother. In cross examination he says he is not known to Patrick.** 7. **In his Judgment the Magistrate aptly summed up the evidence and correctly depicted the issues for determination.** 8. **At the onset the Magistrate with specific reference to Section 26(1) of the Land Registration Act observed that the Appellants relied heavily on the same and that was done on the basis that the 1st Defendant is the registered owner.** 9. **He then referred to the authority of ALICE CHEMUTAI TOO VS NICKSON KIPKURUI KORIR where it was held that a title can be impeached if is procured through fraud or misrepresentation.** 10. **The court in impeaching the title found that the deceased was the owner of the title and the same was obtained when the Deceased was away in Tanzania. The court also noted that there was evidence to show that the deceased was buried thereon.** 11. **In essence the court questioned the integrity of the title document.** 12. **Counsel has in his submissions stated that a 1st Registration cannot be impeached.** 13. The trial court is faulted for its finding of fraudulent acquisition of title by the appellant and declaration of ownership of the land in favour of the respondent. By virtue of section 26 of *the Land Registration Act*, a certificate of title is conclusive proof of ownership Section 24 (a) of the Land Registration Act states the registration of a person as the proprietor of land shall vest in that person absolute ownership together with all such rights and privileges thereto. Within Section 25 of this Act a registered proprietor holds title subject to leases, charges, encumbrances, conditions, restrictions, liabilities, rights and interests including overriding interests which have been recognized by Section 28 (b) of the same Act to include customary trusts. (see *Kampala Bottlers v. Damanico (U) Ltd, S. C. Civil Appeal No. 22 of 1992 and* *H. R. Patel v. B.K. Patel [1992 - 1993] HCB 137)*. 14. Registered proprietors are given indefeasible title that can only be disputed subject to statutory fraud which they themselves may have committed (see *Frazer v. Walker [1967] 1 AC 569; [1967] 1 All ER 649*). In this case the Respondents had the onus of proving fraud against the Appellants. 15. They duly complied with Order 2 rule 10 of *The Civil Procedure Rules*, where a party who relies on fraud as part of the cause of action, is required to plead the same. Consequently, where impeachment of title is sought by reason of fraud perpetrated in the course of its acquisition, the particulars of fraud must be specified in the pleadings and the allegation of fraud must relate to the way in which the proprietor gained registration. The acts alleged to be fraudulent must be set out and then it should be stated that these acts were done fraudulently. 16. The standard of proof is beyond mere balance of probabilities required in ordinary civil cases though not beyond reasonable doubt as in criminal cases *[1994-95] HCB 80*). A title deed is indefeasible, indestructible or cannot be made invalid save for specific reasons listed in the Land Registration *Act*, which essentially relate to error, fraud or illegality committed in procuring the registration. Notwithstanding the foregoing a person who is registered as proprietor has a right to the land described in the title, good against the world, immune from attack by adverse claim to the land or interest in respect of which he or she is registered (see *Frazer v. Walker [1967] AC 569*). 17. In the instant case, fraud was specifically pleaded and proved. The respondents did establish that their father/father-in-law had proprietary priority over the current registered proprietor hence entitling them to entitling to such relief. 18. I also note that the category of interests the Deceased had was, otherwise known as overriding interests, which though not registered at the Land Registry, still bind a party who acquires land that is subject to such interests. Although the mirror principle means that the register is intended to reflect accurately all the facts material to a given title, overriding interests are the one important exception to the mirror principle. These interests are reflected in section 66 (3) of *The Land Registration Act*, and include certain rights of occupation, public rights of way, easements acquired by enjoyment, etc. Under that section, land included in any certificate of title is deemed to be subject to rights subsisting under any adverse possession of the land, existing at the time of registration. In essence, the registered proprietor’s estate is not paramount where any part of the proprietor's parcel was adversely occupied at the time of registration. 19. To have overriding status, the interest must be a proprietary interest (see National *Provincial Bank v. Ainsworth [1965] AC 1175*). Personal rights such as a licence do not confer overriding status (see *Strand Securities v. Caswell [1965] Ch 958*). The concept of overriding interests is intended to encourage a practice of careful enquiry as to the fact of occupation, and if necessary, as to the rights of occupiers. 20. The law requires that intending transferees make inquiries as to any and all occupants of a property, even where such occupancy is not inconsistent with the title being sold. If there is actual occupation, and the occupation has rights, the purchaser takes subject to them. (see ***Ferrishurst Ltd v. Wallcite Ltd [1999] 1 All ER 977; [1999] Ch 355*).** 21. The interest of an adverse possessor will override the title if it would have been obvious on a reasonably careful inspection of the land at the time of creation of the title or where the registered proprietor had actual knowledge of the occupier’s interest at the time of creation of the title. Actual possession means apparent or patent possession, such as would put a person inspecting the land on notice that there was some person in occupation (see *Williams & Glyn’s Bank Ltd v. Boland [1981] A.C. 487* and *Malory Enterprises Ltd v. Cheshire Homes Ltd [2002] Ch. 216*). What is required is physical presence on the land. 22. What is required is some evidence of previous occupation and an intent to return to the property; physical evidence in or around the property would be required to satisfy this requirement. Occupation by a representative may be sufficient (see *Abbey National Building Society v. Cann [1991] 1 AC 56*; *Lloyds Bank v. Rosset [1989] Ch 350* and *Strand Securities v. Caswell [1965] Ch 958*). The respondents did prove these facts by production of documents and oral evidence. The Appellants have indeed shown that the Deceased left for Tanzania twice and on both occasions, he came back and occupied the land. 23. In *Strand Securities v. Caswell [1965] Ch 958,* Denning MR held that, “fundamentally," the purpose of protecting overriding interests by actual occupation is "to protect the person […] from having his rights lost in the welter of registration." Perhaps the most important of overriding interests is that of someone that is in actual occupation. Consequently, section 66(3) of *The Registration of Titles Act* protects those with an interest in the land. 24. Actual occupation is a matter of fact, not a matter of law. A person should be regarded as being in actual occupation of land only if he or she is physically present on the land and his or her occupation is apparent on a reasonable inspection of the land. If there is actual occupation, and the occupier has rights, the occupier takes subject to them. If not, he does not. In this case actual occupation has been proved as rightly found by the Learned trial magistrate. Evidence confirms that when Deceased acquired the land, he occupied same the left to Tanzania and when he came back, he built a house before leaving again for Tanzania. The husband to the 1st Appellant and the 2nd Appellant took advantage of his absence and registered themselves as owners notwithstanding occupation by the Deceased. He made a complain to the Area Chief who convened a meeting and ordered the invader to move out. 25. The Deceased had by virtue of occupation acquired an Overriding interest which binds the registered proprietor even though they have been neither substantively registered nor protected by means of an entry on the register. As a result, the person who claims the overriding interests is authorized to exercise the right against the land even though they are unregistered interests which disregard the registered title. 26. In the instant case the fact that the respondents buried their mother and father on the land in dispute is inconsistent with here being a mere licensee. It is more consistent with the deceased having a proprietary interest in the land. At the time the appellants processed their title they had actual notice of the Deceased’s adverse possession. The husband to the 1st Appellant and the 2 Appellant therefore acquired title subject to that interest. Where an overriding interest exists it terminates through unity of both tenements or release that is duly executed and evidenced in writing. Once an overriding interest is established, it means that a non-owning cohabitant may be able to retain the right to occupy against the registered proprietor. The trial court therefore came to the correct conclusion in holding that fraud had been proved suit. The respondent’s overriding interest only extends to the part of the land in actual occupation. 27. The Court of Appeal in the case of **Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR** held: - “The intention of the parties to create a trust must be clearly determined before a trust will be implied.” See **Gichuki vs. Gichuk.** 28. In Isaack **M’Inanga Kiebia v. Isaaya Theuri M’Lintari (Supra)** held in paragraph 52 as follows: - ‘…we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor. 29. In the case of **Jangoro & 2 others v Otieno & 2 others (Environment and Land Appeal E011 of 2022) [2023] KEELC 17837 (KLR)** (8 June 2023) (Judgment) the court observed thus This court cannot turn a blind eye on illegality. See the recent Supreme Court of Kenya decision of Petition no. 8 (E010) of 2021 Dina Management Limited v. County Government of Mombasa & 5 others. I note that when the appellants were sued they had an opportunity to explain how they acquired the title, in other words delve into the root of title but they chose not to do so .This court finds that once the manner in which a title was acquired is questioned the burden shifts to the party who has the title issued in his names to give an adequate explanation. In this case the Appellants miserably failed to discharge the same. They rather folded their hands and deftly avoided touching on the said process. 57.In [Kalama & another v Attorney General & 7 other 2026] KEELC 70 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/70/eng%402026-01-21) the court stated thus: **‘’Regarding indefeasibility as the first registered owners, it is clear that the provisions of the**[***Land Registration Act***](https://kenyalaw.org/akn/ke/act/2012/3)**under which the title in the year 2025 was issued do not exclude any title from challenge on the basis of fraud, not even a first registration title. The matters regarding fraud claimed by the plaintiffs would have to be investigated, with the background being their claim that the land was their ancestral land that was adjudicated properly and stolen between the date of adjudication in 1995 and the date of issuance of title to the extent that the resultant misappropriated portions were being beaconed in 2025, and so the claim of extinction of their rights does not therefore arise. This court would be in a position to order, if such fraud was proved at the hearing, that the titles issued to the 4th to the 8th defendants be cancelled.** 1. **This court cannot fault the holding of the Learned trial magistrate regarding the manner of acquisition of title and the order made to cancel same on the basis of fraud indeed though not expressly stated the Appellants have since registration held the title in trust for the Estate of the Deceased.** Order: 1. In the final result, there is no merit in the appeal. It is accordingly dismissed. The costs of the suit and of the appeal are awarded to the respondent. Judgment, Dated and delivered at Homa Bay ELC Court this 13th day of July 2026. In the presence of; 1. Kimberly for 1st and 2nd Respondent-Present 2. Akira for Nyanga for the 2nd Appellant – Present 3. 1st appellant -Absent 4. Court Assistant, Ms. Bosibori. JUSTICE J.W. WANYONYI RESIDENT JUDGE, HOMABAY