https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3974

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT SIAYA** **E.L.C. APPEAL NO. E004 OF 2024** **ROSEMARY AUMA OKUMU …................................APPELLANT** **VERSUS** **RAYMOND OUMA WAWALA.........................RESPONDENT** **MARTIN OMONDI WAWALA………………. RESPONDENT** **(Being an appeal against the judgment and decree of J.P NANDI PM in ELC CASE NO. E30 OF 2021 at Bondo Principal Magistrate’s delivered on 18th May 2022)** **JUDGEMENT** 1 This appeal is a contestation of the outcome of the lower court’s decision (Hon. J. Nandi) in **Bondo MCELC No. E037 of 2021.** The appellant **ROSEMARY AUMA OKUMU** was the plaintiff in the said suit while the respondents in this appeal RAYMOND **OUMA WAWALA** and **MARTIN OMONDI WAWALA** were the defendants. The suit in the lower court related to ownership of parcel of land South Gem/Kaudha /2083 & 2084 **(**herein suit properties**)** registered in the name of the the appellant. The suit properties were subdivisions of parcel South Gem/Kaudha/1794. 2 In her plaint dated 17/06/2021, Rosemary Okumu the appellant herein sued the defendants the respondents herein for trespass to the suit properties. She contended that the defendants trespassed on her land on 2/6/2021 threatening to evict her claiming ownership of the land. According to her she had purchased the suit properties from the defendant’s grandmother one Magdaline Okulu Angugo and who was the administrator of parcel South Gem/Kaudha/1794 (herein mother title). She pleaded she is an innocent purchaser for value without notice of any other party’s claim and has enjoyed quiet possession since purchase of the suit properties on 15/3/2017 and 20/6/2017. 3 That despite notice the defendants had continued to interfere with the peaceful and quiet enjoyment thereof. She sought orders that she be pronounced the bonafide proprietor of the suit property including permanent injunction restraining the defendants and their agents from selling, wasting, cultivating or in any way dealing with the suit properties. 4 The two defendants in response to the suit filed a defence and counterclaim dated 5/07/2021 alleging that the suit properties were a portion of the mother parcel which belonged to their grandfather **Musa Anguso Akulo** who died in 2004 and since then succession has never been carried on his estate. That the defendants were in the process of petitioning the probate court for a grant of letters of administration for his estate. 5 In the counterclaim they prayed that the plaintiff’s suit be dismissed, the title reverts to the name of the original owner **Musa Anguso Akulo** and all the subdivisions be revoked and annulled. That a permanent injunction be issued restraining the plaintiff from selling, wasting or disposing the suit properties. 6 During the hearing viva voce in the trial court, Rose the plaintiff testified and called 2 witnesses. Raymond Ouma Wawala the 1st defendant was the sole witness for the defence. 7 After hearing the parties, the trial court in its judgment framed two main issues for determination 1) Whether the title was obtained fraudulently 2) Whether the plaintiff is an innocent or bonafide purchaser of the suit properties without notice of any defect in title. 8 On the 1st issue the trial court found that at the time of the land being registered in the name of Magdaline Angugo Okulo the original owner had already passed on. The green card did not indicate how the land was registered to Magdaline whether by transmission or transfer. In the absence of such indication the trial court found in favor of the defendants that the registration was done without succession being done in respect of the estate of the late Musa Angugo which was unprocedural. 9 On the 2nd issue the trial court found that though without any doubt the plaintiff was a bonafide and innocent purchaser from Magdaline, and while it is clear the title held by the plaintiff cannot be impugned under section 26(1)(a) of the Act as they were not party to any fraud or misrepresentation the title is nonetheless impeachable under section 26(1) (b) as the title transferred to them by the late Magdaline Agugo Akulu was obtained illegally and unprocedurally. In its final disposition the trial court found that the plaintiff was not entitled to the orders sought and dismissed the suit with costs to the defendant. 10 The trial court further found that the defendants had proved the counterclaim on a balance of probabilities allowed the same and pursuant to article 159(2)(d) of the Constitution of Kenya 2010 issued the following orders 1. A declaration is hereby issued that the sale and transfer of Parcel No. SOUTH GEM/KAUDHA/2083 and 2084 from the late MAGDALINE ANGUGO OKULO to the plaintiff was unprocedural and illegal 2. The title of the plaintiff in respect to the parcel SOUTHIGEM/KAUDHA/2083 and 2084 is hereby cancelled and 1 direct that her name be removed as proprietor of the same reverts back in the name of MUSA ANGUGO OKULO and be so registered as proprietor. 3. A permanent injunction is hereby issued restraining the plaintiff from entering into, dealing or in any way interfering with the land parcels SOUTH GEM/KAUDHA/2083 and 2084. 4. The plaintiff defendants will have costs of the suit with interest. 11 Aggrieved by the above decision the appellant has raised the following grounds of appeal; - 1. That the Learned Magistrate erred in law and fact by failing to find and hold the plaintiff was a purchaser for value without notice of any defect in title. 2. That the Learned Magistrate erred in law and fact by failing to find and hold that no fraud or fraudulent dealing was proved on the part of the appellant herein. 3. That the Learned Magistrate erred in law and fact by failing to find and hold that the defendant did not prove their case as against the plaintiff to the required standard. 4. That the Learned Magistrate erred in law and fact by descending to determine issues not pleaded and canvassed by parties at trial hence arriving at a wrong decision. 5. That the Learned Magistrate erred in law and fact by failing to appreciate the equitable doctrine of constructive trust in favor of the plaintiff based on the land sale agreement that was valid and consideration paid in full. 6. That the Learned Magistrate erred in law and fact by dismissing the plaintiff's suit anchored on Article 10(1)(b), 10(2)(b) and 159(2)(d)(e) of the Constitution of Kenya, 2010. 7. That the Learned Magistrate failed to appreciate that the facts as deposed and the evidence as adduced by the plaintiff were not controverted and that the suit ought to have succeed on that basis. 8. That the Learned Magistrate erred in law and fact by making a decision in favor of the defendant that exceeded the weight of the facts and evidence as adduced by the plaintiff hence arriving at the wrong decision 9. That the Learned Magistrate erred by arriving at a decision that the vendor had no capacity to sell the suit land. 10. That Learned Magistrate failed to exercise his discretion judiciously in awarding costs to the defendants. 12 On the basis of the above grounds the appellant proposes to ask this court that; - 1. The appeal is allowed 2. The judgment and orders of Hon. J.P. Nandi, P.M. in ELC CASE NO. E30 of 2021 at Bondo Principal Magistrate's Court, delivered on the 18th day of May, 2022 be set aside. 3. The appellant be awarded the costs of this appeal and the Lower Court. 13 The parties’ counsels agreed to dispose of the appeal by written submissions. The appellant’s counsel filed his written submissions dated 5/10/2024 while the respondent filed his dated 27/03/2025. **Appellant’s Submissions** 14 On grounds 1,2,3 it is submitted that throughout the trial process it was never proved and evidence adduced to indicate that the appellant was a party to any fraud or misrepresentation or engaged in any corrupt scheme or in obtained the title through procedural impropriety that would impeach her title and which the trial court found so, That the appellant ought to be treated as bonafide purchaser for valuable consideration without actual or constructive notice of any defect who is in actual possession of the title which she enjoyed from the year 2017 to 2021. 15 On grounds 8 & 9 of appeal it is submitted the trial court wrongly and erroneously cancelled the appellants titles as there was no evidence submitted by the respondents to demonstrate that they in any way violated the dictate of section 26 of the LRA and such ought not to have been protected under section 25 of the same Act. Moreover, there was no prayer to support cancellation and reversion of the title to the Magdalenes husband as such the evidence relied upon was against the facts adduced by the respondents and was prejudicial to the appellant. 16 On ground No. 6 of the appeal it is urged that while the trial court placed reliance on article 159 (2)(d) the court failed to appreciate and promote national values since had it considered the same vis a vis the facts and conduct of the respondents it would not have arrived at its decision since the vendor being a wife was a beneficiary to the deceased estate. Reliance is placed on the persuasive decision of the ***Court of Appeal of Uganda Civil Appeal No.81 of 2020 Dr. Diana Kanzira Vs. Habert Natukunda Rwanchwebde, Roger Tukamuhabwa Rwanhwende*** where it was held that even where there is no grant of probate issued such beneficiary would dispose the decease estate only to the tune of her share as a beneficiary to the deceased estate. 17 It is urged that leaving the appellants without a remedy and rescinding the land to the deceased and issuing a permanent injunction against them was unfair and prejudicial and would lead to the rise of cases where beneficiaries sell land and instruct other persons to object to the sale. 18 With regard to costs it was contended that the trial court did not exercise its discretion judiciously since the appellant had a valid sale agreement and lost both the land and the purchase price also unjustly enriching the respondents. The justice of the case would require that each party bears its own costs to the suit. **Respondents Submissions** 19 The Respondents opposed the Appeal and urged this Court to uphold the judgment of the trial court delivered on 18th May 2022. 20 Concerning whether the Appellant was a bona fide purchaser for value without notice, the Respondents submitted that the doctrine could not apply in the circumstances of this case. They relied on Article 40(6) of the Constitution, Section 26(1)(b) of the Land Registration Act, and the decisions in ***Lawrence Mukiri v Attorney General (2013) eKLR****,* ***Katende v Haridar & Company Ltd (2008) 2 EA 173****, and* ***Arthi Highway Developers Ltd v West End Butchery & 6 Others (2015) eKLR*** to argue that a purchaser can only acquire a valid title where the vendor possesses a lawful title. Since Magdaline Okullo Angugo allegedly acquired title without succession proceedings, the Respondents contended that she had no valid title capable of passing to the Appellant. Consequently, any titles issued to the Appellant over parcels SOUTH GEM/KAUDHA/2083 and 2084 were liable to cancellation. 21 The Respondents further argued that the Appellant failed to demonstrate the requisite due diligence expected of a purchaser. They submitted that although the Appellant conducted searches and obtained green cards, she failed to investigate the root of title and the circumstances under which the vendor had acquired ownership. Reliance was placed on ***Esther Ndegi Njiru & Another v Leonard Gatei (2014) eKLR****,* where the Court emphasized that due diligence extends beyond obtaining a certificate of official search. The Respondents asserted that had the Appellant undertaken proper inquiries, she would have discovered that the vendor lacked the legal capacity to deal with the estate property of the deceased. 22 The Respondents also submitted that the Appellant was aware that there were grandchildren of the original owner and beneficiaries of the estate. They contended that despite such knowledge, the Appellant proceeded with the transactions and therefore could not claim to be an innocent purchaser without notice. They further pointed out that no receipts or documentary proof of payment of the alleged purchase price were produced at trial, thereby casting doubt on the alleged consideration paid for the suit properties. 23 Regarding the second ground of appeal on constructive trust, the Respondents submitted that the trial court did not determine issues that were neither pleaded nor canvassed. They argued that their counterclaim specifically challenged the legality of the Appellant’s titles and sought cancellation thereof together with reversion of the land to the original parcel. In their view, the issue of constructive trust could not arise where the sale agreements themselves were founded on an invalid title and where the vendor lacked capacity to sell the property. They maintained that equity could not be invoked to sanitize an illegality or confer legitimacy upon transactions founded on unlawful acquisition of title. 24 The Respondents further submitted that Article 40 of the Constitution does not protect property that has been unlawfully acquired. They argued that the trial court properly applied Articles 24 and 40(6) of the Constitution in finding that the Appellant ought to have investigated the root of title before purchasing the land. Since the titles in question were allegedly procured through an unlawful process, the trial court was entitled to deny constitutional protection and order their cancellation. 25 On the third ground of appeal, the Respondents contended that the trial court’s findings were fully supported by the evidence on record and were neither biased nor against the weight of the evidence. They relied on Section 107 of the Evidence Act to submit that the burden of proof lay upon the Appellant to establish the legality and sanctity of her title. They argued that the Appellant failed to discharge that burden, whereas the Respondents demonstrated that the registration process leading to the impugned titles was illegal, unprocedural, and contrary to succession law. They further relied on ***Kassim Ahmed Omar & Another v Anwar Ahmed Abed & Others*** and ***Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others [2015] eKLR*** to submit that a title obtained illegally or unprocedurally may be impeached notwithstanding the innocence of the registered proprietor. 26 The court is invited to dismiss the appeal with costs and the judgment of the subordinate court be upheld. **ANALYSIS AND DETERMINATION** 27 This is a first appeal. The duty of this Court, in addition to considering submissions by the appellants and the respondents, is to analyze and re-assess the evidence on record and reach an independent conclusion. This approach was adopted in ***Arthi Highway Developers Limited vs. West End Butchery Limited & 6 Others [2015] eKLR,*** where the court cited the case of **Selle vs. Associated Motor Boat Co. [1968] EA 123** and held as follows; - **“*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.”*** 28 I have carefully perused the record of appeal (ROA) including the lower court pleadings and impugned judgment. I have also carefully considered the grounds of appeal and the parties’ respective rival submissions and considered applicable provisions of law, case law and common law principles as enunciated by courts. The court frames the following as issues for determination; - 1. Whether the appeal is merited. In deciding this issue, the court shall analyse 2. Whether or not the Appellant holds good titles over parcel Gem/Kaudha /2083 & 2084 3. Whether the Plaintiff was a bonafide purchaser without notice of any defect in the title held by the vendor Magdalene. 4. Whether the defendants proved the counterclaim to the required standard to warrant the orders issued by the trial court 5. Whether the ground No. 5 of appeal on constructive trust is properly raised. 6. Whether the award of costs was justified 7. What reliefs ought to issue 8. Who should bear the costs of this appeal? **Whether the ground No. 5 of appeal invoking constructive trust is properly raised on appeal.** 29 I must at the earliest opportunity resolve whether the ground No. 5 invoking constructive trust is properly raised. In raising this ground, the appellant contents that the Learned Magistrate erred in law and fact by failing to appreciate the equitable doctrine of constructive trust in favor of the plaintiff based on the land sale agreement that was valid and consideration paid in full. 30 On the other hand the respondents urge that the same was neither pleaded nor canvassed. In this regard I will be guided by the Court of Appeal decision in **Kenya Hotels Limited VS. Oriental Commercial Bank Limited [2018] eKLR** where the court emphasized that all grounds of appeal must arise from the issues that were sufficiently pleaded, canvassed, raised or succinctly made issues at the trial. That a new point which has not been pleaded or canvassed in trial court should not be allowed to be taken to appeal, unless it touches on jurisdiction of the court. 31 I have looked at the pleadings. Issues draw from the parties’ pleadings and this court has taken note the issue of constructive trust was not the subject for adjudication before the trial court. The leave of this court was also not sought to introduce it as appeal. **Whether or not the Appellant holds good title over parcel Gem/Kaudha /2083 & 2084** 32 In my considered view, the crux of this appeal is the cancellation of the titles held by the Plaintiff appellant on the basis of illegality and lack of capacity. The plaintiff craved to be declared a bonafide proprietor of the suit properties contending she was an innocent purchaser for value without notice of any defect of the vendor’s title. 33 I have reviewed the trial courts decision. The trial court noted that the plaintiff had produced the title deeds for the suit properties. The trial court then in view of the two titles produced was guided by the provisions of section 26 of the Land Registration Act which provides as follows; - Section 26 (1) of the Land Registration Act: - **“*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-*** 1. ***On the ground of fraud or misrepresentation to which the person is proved to be a party; or*** 2. ***Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”*** 34 The trial court guided by the above provisions and rightly so noted that the law is extremely protective of title and that title can only be impeached where it is acquired fraudulently or through a corrupt scheme in which the owner is a party. 35 The first issue identified by the trial court was whether the suit was obtained fraudulently. Upon review of the documents produced in evidence the learned magistrate observed thus ‘…that the death certificate of Musa Angugo Okulo shows that he died on 4/8/2004. At the time the land was being registered in the name of Magdalene Angugo Okulo the original owner had already passed on. How Magdaline got registration over the suit land is not indicated in the green card. It was not shown whether it was on transmission or transfer. In the absence of such indication, I find in favor of the defendants that the registration was done without succession being done in respect of the estate of the late Musa Angugo Okulo which was unprocedural.’ 36 I have also seen the said title deeds for South Gem/Kaudha/2084 dated 20/12/2017 and 2083 dated 21/12/2017 both showing Rosemary Auma Okumu the Plaintiff/Appellant as the absolute registered proprietor. PW1 evidence from her witness statement which she adopted as her evidence in chief is that the history of the suit properties starts with parcel LR. South Gem/Kaudha/14 which was registered in the name of Angugo Okulo the grandfather to the defendants. Mzee Angugo before his demise subdivided the parcel into two resulting into parcels 1594 and 1595 in the year 1988. This history is confirmed by the green card for parcel South Gem/Kaudha/14 produced by PW1. (See page 18 of ROA) 37 According to PW1 she entered into a sale agreement with Mzee Angugo’s widow Magdaline in 2017 who was the registered owner of LR South Gem/Kaudha/1794. The green card for parcel 1794 (see Supplementary Record of Appeal) was produced by PW2. It shows that this parcel register was opened on 8/9/09 in the name of Magdaline Okulu Angugo and on 22/8/2017 it was closed on subdivision of four parcels 2082,2083, 2084 and 2085. The green card also shows that the parcel 1794 was a subdivision of parcel 1594 which was one of the parcels that were subdivided by Mzee Angugo in 1988. Two sale agreements dated 15/3/2017 and 20/6/2017 were produced for sale of a part of parcel 1794. Thereafter it is her evidence that she paid the full purchase price including for the survey and subdivision and the titles were issued. 38 Following up on the trial court finding that the transfer in the name of Magdalene following the death of her husband was done without succession, I will look at the relevant law. 39 The Land Registration Act defines ‘transmission" thus - ***means the passing of land, a lease or a charge from one person to another by operation of law on death, insolvency or otherwise;*** 40 Section 61 of the Land Registration Act further states; - ***Transmission on death of a sole proprietor or proprietor in common*** *(1)If a sole proprietor or a proprietor in common dies, the proprietor’s personal representative shall, on application to the Registrar in the prescribed form and on the production to the Registrar of the grant, be entitled to be registered by transmission as proprietor in the place of the deceased with the addition after the representative’s name of the words "as executor of the will of ......................... [deceased]" or "as administrator of the estate of ........................................ [deceased]", as the case may be.* *(2)Upon confirmation of a grant, and on production of the grant the Registrar may, without requiring the personal representative to be registered, register by transmission—(a)any transfer by the personal representative; and(b)any surrender of a lease or discharge of a charge by the personal representative.(3)In this section, "grant" means the grant of probate of the will, the grant of letters of administration of the estate or the grant of summary administration of the estate in favour of or issued by the Public Trustee, as the case may be, of the deceased proprietor.* 41 It is also noteworthy that Section 26 of the Land Registration Act includes transmission as one of the instances for passing land. The trial court therefore took the right trajectory in looking for proof of succession/transmission. 42 From the above law it is clear that before transmission upon death the beneficiary in this case the spouse had to take out a grant of letters of administration for the estate of the deceased upon which she formally would become the Legal Representative of the estate of the deceased. 43 It is not in dispute that Magdaline was a spouse to Mzee Ongugo though it is also DW1 evidence that there were 2 additional spouses which I will not delve in. Guided by the law upon Mzee Ongugo’s death the only lawful way parcels 1594 and 1595 or even 1754 would devolve to Magdaline or any of the beneficiaries would be through transmission after a grant of letters of administration has been issued by the probate court in respect of the deceased estate and confirmed. 44 It is now trite it is no longer enough for a registered proprietor of land to dangle a title. The plaintiff title was being challenged and the burden of proof was upon the plaintiff to defend the root of her titles which I have already traced to parcel 1594 belonging to mzee Ongugo. I will be guided by case of ***Samuel Kamere v Lands Registrar, Kajiado [2015] eKLR*** where, the Court of Appeal held as follows: - ***“In totality, despite the reference to the various registration documents, it is remarkable that the only documents that were available for scrutiny by the trial court were the plaintiff’s original title dating back to 5th April 1991, the appellant’s title issued upon registration of the transfer, and the Land Register. Other than these documents, there is nothing to show why the appellant’s name was entered on the Land Register, or on what basis the registration was effected. Without any documents to support the registration of the appellant as the proprietor of the suit property, the appellant failed to discharge the evidentiary burden of proof as required, and the only conclusion that we can reach on a balance of probabilities is that, since the appellant has not proved or shown the root of his purported title, he could not acquire title to the suit property, which in any event, was incapable of passing to him upon the registration of the purported transfer.”*** 45 What did PW1 have to say about the allegations that the person who sold her the property had not complied with the law on succession. She testified in cross examination ‘*I did not ask if succession had been done in respect of the estate of the late Musa Angugo Akulo.’* PW2 the plaintiffs husband also confirmed that together with his wife they never asked Magdalene if she did succession. This therefore means the plaintiff could not explain how Magdaline was registered as proprietor. PW3 told the trial court she was the eldest grand daughter of Musa Angugo Okulo confirmed in cross examination that Magdalene did not do succession. 46 I think section 61 (1) hereinbefore has clearly shown how the transmission is endorsed on the register. It must be endorsed by adding the words ‘as administrator of the estate of ……………………’. In other words, there must be an endorsement relating to succession. 47 I have also looked at the green card produced for the title 1794. Such endorsement or entry would be on the column for ‘CONSIDERATION AND REMARKS’ it is empty except the overlap of numbers of the subdivisions. There are therefore no remarks on how Magdalene was registered as proprietor and the only conclusion the court can make and is that the registration of Magdalene was not pursuant to transmission following succession proceedings. This was also corroborated by PW2. The trial court was therefore right in finding that the registration was done without succession in respect of the estate of the late Musa Angugo Akulo since the relevant entry had no indication that the transfer was pursuant to succession. The title was therefore registered irregularly or illegally. 48 It has been urged that there was no evidence led by the defendants to show the plaintiffs participation and or knowledge of the fraud or illegalities committed. I must first observe that no allegations of fraud were particularised in the pleadings and I will therefore not dwell on the issue. However, it has been established that for a title to be impeached on grounds of illegalities the holder need not have participated in the same. 49 The above position and clarification was addressed in the case of ***Alice Chemutai Too v Nickson Kipkurui Korir & 2 others [2015] eKLR*** the Court expressed itself thus: - ***It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. Where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation. However, where person intends to indict a title on the ground that the title has been acquired illegally, unprocedurally, or through a corrupt scheme, my view has been, and still remains, that it is not necessary for one to demonstrate that the title holder is guilty of any immoral conduct on his part. I had occasion to interpret the above provisions in the case of Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & Another, Eldoret ELC Case No 609 B of 2012 where I stated as follows: - “…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent titleholder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally, or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions. “I stand by the above words and I am unable to put it better than I did in the said dictum.”*** 50 The court thus finds no reason to fault the finding of the trial court. 51 What then would be the import of the above finding? Based on the provisions of section 26(1)(b) the said title can be impeached. The consequence of impeachment can only mean the registration of Magdalene as proprietor was unprocedural, illegal and as such were null and void. Moreover, since Magdalene was not the personal representative as envisaged under the Law of Succession Act, she had no capacity to deal with the deceased property and effectively could not therefore pass good title to the plaintiff. 52 Im further guided by the case of ***Virginia Mwari Thuranira -vs- Purity Nkirote Thuranira [2017] eKLR****,* the court nullified the sale agreement under Section 82(b)(ii) of the [Law of Succession Act](https://new.kenyalaw.org/akn/ke/act/1972/14), for the seller had not become a legal representative with authority to deal with the estate, since dealing with the land amounted to intermeddling with the property, hence was an illegality or a nullity. 53 On the basis of the foregoing the Plaintiff cannot be held as a lawful owner of the suit parcels as the root of the same have been impeached. Nothing comes out of an illegality. 54 This court has noted the submissions made on behalf of the appellant that had the court adhered to national values as envisaged under the constitution of Kenya and considered a wife was a beneficiary to the deceased estate it would not have arrived at the decision. I have also noted the persuasive decision of the ***Court of Appeal of Uganda Civil Appeal No.81 of 2020 Dr. Diana Kanzira (Supra).*** 55 I think my hands are tied. Our law criminalizes dealing with a deceased property or his estate without a lawful grant and disposing without a confirmed a grant. In my view the wifes/widows share as a beneficiary can only be conferred by the court and her share can only be known after it is confirmed since this is when the estate is distributed. I’m emboldened by the holding in the case of ***St Thomas Academy Limited vs Githumu Kangema Limited and Others (2024) KEELC 7025 (KLR)*** where the court underscored the nemo dat principle which means one cannot give what he does not have. **Whether the Plaintiff was a bonafide purchaser without notice of any defect in the title held by the vendor Magdalene.** 56 The Appellant contends that the trial court erred in law and in fact in failing to find and hold the Plaintiff was a purchaser for value without notice of any defect of title. In considering this defence the learned trial Magistrate focused on due diligence and which is now established to be one of the key grounds underpinning a defence of innocent purchaser for value without notice. 57 The trial court referring to the case of ***Esther Ndegi Njiru & Another Vs. Leornard Gatei (2014) eKLR*** cited by counsel for the Plaintiffnoted at paragraph 19 and 20 of the judgement (page 46 and 47 ROA) that the plaintiff was under a duty to go beyond the search and the green card and establish the history and root of the title before executing the sale agreement. The trial court however went further to note that *‘…. the plaintiff cannot shield herself with the title she holds though ‘without any doubt she was an innocent purchaser from Magdalene Angugo Akulo. The act of the late Magdalene Angugo Akulo of processing the title to her name without succession proceedings in respect of the estate of Musa Angugo Akulo who was the original owner was patently illegal and she must have known they were. The processing the title to her name and thereafter selling the suit parcel of land to the unsuspecting plaintiff was illegal and unprocedural. The late Magdalene Angugo Akulo must have known what she was doing. She was simply a con woman as she was not clothed with the requisite capacity and authority to dispose of the suit parcels without succession'.* 58 I have already analysed and pronounced myself on the above issues under the first issue on whether the plaintiff holds lawful titles. What I understand the trial court to state is that the title of an innocent purchaser however innocent as long its roots draw from an illegal title then it cannot benefit from the plea of innocent purchaser for value without notice it must be impeached under the provisions of section 26 (1)(b) of the land Registration Act. In any event I have already noted that both PW1 and PW2 conceded that they did not ask about succession of the deceased estate. I would still uphold the trial courts finding in this regard. 59 Additionally I must emphasise that the above discourse has now been finally settled by the Supreme Court of Kenya in the case of **Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment) Neutral citation: [2023] KESC 30 (KLR)** the Apex Court of Kenya held thus *“To establish whether the appellant is a bonafide purchaser for value therefore, we must first go to the root of the title, right from the first allotment…Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible...* *Article 40 of the* [*Constitution*](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution) *entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired.”* **Whether the defendants proved the counterclaim to the required standard.** 60 It is trite that a counterclaim is a separate suit and therefore must be proved. According to the pleadings the suit land in question is a portion of a parcel of land formally known as South Gem/Kaudha 14 which land belonged to their grandfather Musa Angugo Okulu who died in the year 2004. They produced, Death Certificate for Musa Angugo Okulo which I have already alluded to elsewhere in this judgement, Green Card for South Gem/Kaudha/14 which confirmed the property originally belonged to the Musa Angugo Okulo which he subdivided into 1594 and 1595, Limited grant adlitem issued on 16/11/2021 in Probate and Administration Cause No. E18 of 2021 in respect of the estate of Musa Angugo Okulo; Chiefs Letter dated 2/6/2021 which introduces the defendants as the deceased grandsons. 61 All the above evidence was not controverted. Their main issue was the fact that the transfer to Magdalene was irregular without succession. It is not contested that the plaintiff bought the suit properties from Magdalene. As long as the plaintiff failed to defend the root of her title then the counterclaim ought to have been upheld. I have already noted that no allegations of fraud were particularised and therefore this is a no gone zone. I have also found that the title can be impeached under section 26(1)(b) for irregularities and the plaintiff need not be shown to have participated in the vitiating factors. 62 It is my finding that the counterclaim was proved to the required standard of a balance of probabilities. 63 But of importance is the question whether the orders issued were warranted. The orders arising from the trial court judgement have already been captured elsewhere in this judgement. The trial court found that the sale and transfer of Parcel No. SOUTH GEM/KAUDHA/2083 and 2084 from the late MAGDALINE ANGUGO OKULO to the plaintiff was unprocedural and illegal. The court directed that the same be cancelled and reverted back in the name of MUSA ANGUGO OKULO and be so registered as proprietor. 64 It is urged that leaving the appellants without a remedy and rescinding the land to the deceased and issuing a permanent injunction against them was unfair and prejudicial and would lead to the rise of cases where beneficiaries sell land and instruct other persons to object to the sale. 65 It is my considered view that having found that the transaction of the transfer to Magdalene was irregular/illegal and that the said Magdalene lacked capacity to enter into an agreement with the plaintiff and that there was no good title passed to the plaintiff it was inevitable that the titles were to be cancelled and the only logical thing to follow was for the property to revert to the Estate of MUSA ANGUGO OKULO for distribution to the said estate since the estate has a legitimate interest in the suit property. The title had to revert to its true owner. The trial court sitting on jurisdiction donated by section 26 of the ELC Act could not go further than this as it is divested of powers to distribute the estate of the deceased. 66 I find no reason to overturn the grant of the two prayers above. 67 But what about the orders of permanent injunction restraining the plaintiff from entering into, dealing or in any way interfering with the land parcels SOUTH GEM/KAUDHA/2083 and 2084. I have also noted the decree at page 49 of the ROA bears orders that the Plaintiff vacate the suit parcels within 90 days of the date of the judgement in default the defendants to evict her. In my considered view these orders were premature. Why do I say so? The deceased estate is yet to be distributed. The parcels have simply reverted to the deceased estate awaiting such distribution. The Defendants have not been declared the owners of the property and their shares are unknown. An opportunity still lies for the appellant to claim from Magdalenes share of the property once determined upon confirmation of grant by the succession court. 68 For the above reason I will therefore vacate the orders of permanent injunction and eviction and replace them with an order that the status quo on the suit properties South Gem/Kaudha /2083 & 2084shall **be** maintainedpending the distribution of the estate of MUSA ANGUGO OKULO by the appropriate court. These orders of status quo shall automatically lapse upon confirmation of grant of the estate of MUSA ANGUGO OKULO. 69 The award made on costs has also generated concerns by the appellant for the reason that loosing both the land and the purchase price also unjustly enriching the respondents. That the justice of the case would require that each party bears its own costs to the suit. I’m aware that by dint of Section 27 of the Civil Procedure Act costs abide the outcome of the suit. I will not disturb the finding on costs. 70 The upshot of the foregoing is that this court finds this appeal lacks merit and it is dismissed except for the orders of permanent injunction and eviction as discussed above. 71 By the provisions of Sections 3A of the [Civil Procedure Act](https://new.kenyalaw.org/akn/ke/act/1924/3) and Section 3 of the [Environment and Land Court Act](https://new.kenyalaw.org/akn/ke/act/2011/19), this court shall exercise its inherent powers for the ends of justice to be met. The orders of permanent injunction and eviction against the appellant are hereby substituted with orders that the status quo on the suit properties South Gem/Kaudha /2083 & 2084shall **be** maintainedpending the distribution of the estate of MUSA ANGUGO OKULO by the appropriate court. The appellant either by herself, agents, and or servants shall not dispose and or undertake any further construction and or developments on South Gem/Kaudha /2083 & 2084. 72 The orders of status quo above shall automatically lapse upon confirmation of grant of the estate of MUSA ANGUGO OKULO. 73 Each party to bear their own costs of this appeal. **DATED** at **SIAYA** this 29th Day of June 2026 **HON. JUSTICE A. E. DENA** **JUDGE** **29/06/2026** **Judgement delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:** Mr. Oduol for the Appellants Ms. Ohayo for the for Respondent Court assistant: Dorothy Wanyanga