https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4908

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT SIAYA** **ELCLA NO E014 OF 2024** **MARY AWUOR ONYANGO……………………………… 1ST APPELLANT** **CHARLES ODHIAMBO OKELLO. ………………………2ND APPELLANT** **VERSUS** **BOAZ WYCLIFE DANIEL OMONDI…………………1ST RESPONDENT** **THE LAND REGISTRAR, SIAYA. ……………...…….2ND RESPONDENT** **THE HON. THE ATTORNEY GENERAL………….3RD RESPONDENT** **(Being an appeal from the judgement of Hon Lester Simiyu in the ELC NUMBER E048 of 2020 delivered on 22nd May 2024 at the principal magistrate's court at Siaya)** **JUDGEMENT** 1 By a Memorandum of appeal dated 5/5/2024 the Appellant raised the following grounds of appeal against the judgement of Lester Simiyu in the ELC NUMBER E048 of 2020 delivered on 22nd May 2024 at the principal magistrate's court at Siaya; - 1. That the Learned Magistrate erred in law and fact by failing to consider in totality the 1st and 2nd defendant's evidence on record regarding disputed land parcel numbers SIAYA/KOCHIENG 'B'/762 and SIAYA/KOCHIENG 'B'/763. 2. That the Learned Magistrate erred in law and fact by failing to hold and find that the issues raised by the plaintiff regarding the disputed land parcel numbers SIAYA/KOCHIENG 'B'/762 and SIAYA/KOCHIENG 'B'/763 in Siaya MCELC Case No. E048 of 2020, where (sic) already heard and conclusively determined in the Siaya High Court Civil Misc. No. 6 of 2016 and Kisumu High Court Succession Cause No. 38 of 1998 and Kisumu High Court Succession Cause No. 784 of 2014. 3. That the Learned Magistrate's analysis of the facts and the law regarding the disputed land parcels being SIAYA/KOCHIENG 'B'/762 and SIAYA/KOCHIENG 'B'/763 were against the evidence adduced and disregarded the evidence adduced by the 1st and 2nd defendant. 4. That the Learned Magistrate erred in law and fact by failing to consider national values and principles of good governance when issuing orders as against the decision and the finding of the Siaya High Court in Civil Misc. Case No. 6 of 2016. 5. The Learned Magistrate erred in law by awarding costs to the plaintiff in the suit. 2 Based on the above grounds it is proposed to this court that this Appeal be allowed, the part of the judgment and orders be set aside and the appellant be awarded the costs of this appeal. **SUBMISSIONS** 3 The appeal was canvassed by way of submissions **Appellants Submissions** 4 The appellants submission filed by Ooro Awana Advocate are dated 3/11/2025. Rehashing the brief facts of the case counsel on record identified two issues for determination 1) Whether the trial court lacked the jurisdiction to hear and determine ownership of parcel number SIAYA/KOCHIENG "B"/673, SIAYA/KOCHIENG "B"/762 because of res judicata and 2) Whether the respondents proved fraud on the part of the appellants. 5 On the 1st issue the Appellant submits that at the trial court he raised a preliminary objection on the ground that the suit was res judicata which was dismissed to enable the issue be determined at full trial. It is submitted that during the trial it was very clear that the issue of ownership of parcel number SIAYA/KOCHIENG "B"/673 and SIAYA/KOCHIENG "B"/762 had been determined between the 1st Appellant and the 1st Respondent herein and the trial court had no business litigating over the same subject matter and which was tantamount to sitting on appealover the judgement of the High court. The court is referred to the appellants authorities cited in the trial court. 6 The appellant further submits that the present suit was filed to circumvent the bar of res judicata. Further that despite this case being a land case and, the subject matter, the parties and the main issue was on ownership of the land which was dealt with by the High court hence there is nothing new. Reliance is placed in ***Attorney General & Another ET Vs (2012) eKLR***where court were cautioned to be always vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. 7 On whether the respondents proved fraud on the part of the appellants, recalling the particulars of fraud in the plaint it is submitted that the cancellation of the 1st appellants name was pursuant to a court order issued in the High Court Misc. civil case number 6 of 2016 after the court revoked the grant that resulted to the said entry and not as alleged by the 1st respondent. 8 On the contestation that the appellants name ought not to have been registered on SIAYA/KOCHIENG "B"/673 and SIAYA/KOCHIENG "B"/762 because the same belonged to her, it is submitted that the two parcels were registered in the 1st appellants name through transmission as captured in the green card for the said parcels. The registration into the appellants name was therefore done procedurally and lawfully. 9 It is asserted that the decision of the trial court to cancel the parcels from the appellants name and that the same to revert back to the respondent’s name was not legally justified as the respondent had not proved fraud and neither did the trial court in its judgement mention any fraud committed by the appellants. 10 The court is invited to vary the judgement and set aside the trial courts order cancelling the names of the appellants herein on parcel number SIAYA/KOCHIENG "B"/673 and SIAYA/KOCHIENG "B"/762 and reinstate the appellants names on the said parcel numbers. **Respondents Submissions** 11 Filed by the National Legal Aid Center the 1st respondents’ submissions are dated 28/11/2025. 12 The 1st respondent identified three issues for determination namely 1) Whether the Ist respondent is the lawful and bona fide proprietor of Land Parcels Nos. SIAYA/KOCHIENG 'B'/762, 671, 672, and 673 ; 2) Whether the learned magistrate erred in law or fact in entering judgment in favour of the Respondent; 3. Whether the appellants have proved fraud or illegality sufficient to impeach the respondent's title and 4) Whether the learned magistrate erred in awarding costs to the 1st respondent. 13 On the 1st issue it is submitted the 1st respondent's registration was done pursuant to a lawful certificate of confirmation of grant, and the titles issued in his name have remained unchallenged since their issuance. That the appellants did not plead or prove any fraud, misrepresentation, or illegality. Mere allegations without cogent proof cannot invalidate a registered title. To buttress this, point the court is referred to Elijah ***Makeri Nyangwae Vs. Stephen Mungai Njuguna & Another (2013) eKLR*** on impeachment of title. That fraud must be specifically pleaded and strictly proved. 14 It is asserted that the appellants offered no evidence linking the respondent to any fraudulent act. The court is referred to ***Kuria Kiarie & 2 Others v Sammy Magera [2018] eKLR***, on the standard of proof in cases of fraud which is higher than a balance of probabilities. It is urged that the trial court correctly found that no fraud was proved and that the respondent's acquisition was genuine and supported by proper succession documentation. 15 Citing the provisions of section 80 of the Land Registration Act Counsel further submitted that the power to rectify the register is vested in the court, not the Registrar acting unilaterally. Therefore, the learned magistrate rightly found that the cancellation was illegal and null and void. 16 On costs it is contended that under Section 27(1) of the Civil Procedure Act, costs follow the event unless the court for good reason orders otherwise. It is urged that the respondent was the successful party, and no misconduct was demonstrated on his part. The award of costs was therefore proper and within the discretion of the trial court. The court is referred to ***Republic v Rosemary Wairimu Munene (Ex parte Applicant) v Ihururu Dairy Farmers Co-operative Society Ltd [2014] eKLR*,** where the court held that costs are meant to compensate the successful party and not to penalize the loser. **ANALYSIS AND DETERMINATION** 17 I have examined and considered the full record of the trial court; the grounds of appeal; and the parties’ respective submissions together with the issues they identified. In my view, the following are the issues that fall for determination in this appeal; 1. ***Whether the issues raised with regard SIAYA/KOCHIENG 'B'/762 and SIAYA/KOCHIENG 'B'/763 were res judicata*** 2. ***Whether the trial court erred in cancelling the name of the 1st and 2nd Respondent on parcel number SIAYA/KOCHIENG "B"/673 and SIAYA/KOCHIENG "B"/762.*** 3. ***Whether the respondent proved fraud on the part of the defendant*** 4. ***Whether the learned magistrate erred in awarding costs to the 1st respondent.*** 18 This is a first appeal. The Court of Appeal in ***Peterson Ndung’u, Stephen Gichanga Gituro. N. Ojwang, Peter Kariuki, Joseph M. Kyavi & James Kimani V Kenya Power & Lighting Company Ltd [ 2018] Eklr*** stated as follows regarding the duty of the first appellate court: - ***“ ………………..This being a first appeal , we are reminded of our primary role as a first appellate court namely to re-evaluate , re-assess and reanalyze the extracts on record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons why...............On a first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate itself and draw its own conclusions though it should always beware in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence……....”*** Also see **Kenya Ports Authority Vs Modern Holdings Ltd (EA) Limited (2017) KECA 293 KLR.** 19 The duty of an appellate court is further stipulated under Section 78 of the Civil Procedure Act which reads; - ***“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.”*** ***Whether the issues raised with regard SIAYA/KOCHIENG 'B'/762 and SIAYA/KOCHIENG 'B'/763 were res judicata*** 20 The plea of res judicata goes to the root of the jurisdiction of the court. The court notes the bar of res judicata was before the trial court and a ruling rendered on 7/4/2021 (page 115- 117). The trial court found that the preliminary objection did not meet the threshold of a preliminary objection as it was not on a pure point of law. The trial court ordered that the relevant evidence be placed on record to facilitate interrogation of the issue in the right forum. Essentially a decision was deferred to the main hearing. 21 From the proceedings the 1st defendant maintained throughout the trial that all the claims raised by the plaintiff over the parcels herein were heard on merit in Siaya Misc.Civil Case No.6 of 2016 where the court found the plaintiff had intermeddled with the estate of the 1st defendants’ father. The High court then nullified the grant of letters of administration the plaintiff had used to affect the transfers to himself. After cancellation of the said grant the 1st defendant obtained a grant, gathered the estate of her deceased father accordingly culminating into the transfer of the suit properties into her name. 22 This court has keenly read the judgement of Aburili J (page 128 – 151 of the ROA) in the above proceedings. The court did not make any specific order for cancellation of title but only cancelled the grant issued to Boaz the plaintiff in the trial court and ordered a fresh petition be lodged by Mary the Appellant herein or by any other appointed person with the consent and full participation of Mary being the sole surviving daughter of and child of Peres Onyiso. The judgement further reveals that the proceedings before the High were purely for nullification of the grant that Boaz had obtained in respect of the estate of Peres/ and which the court nullified. The court did not in its final determination make an order of cancellation of title. 23 I have also keenly read the judgement of the trial court to appreciate how the trial court pronounced itself on the bar of res judicata which the court had during the interlocutory stage dismissed for not meeting the threshold of a pure point of law. Indeed, the same ought to have been raised by way of an application where the documentation/pleadings would have been availed for proper scrutiny. The issue was therefore still alive during the hearing. 24 Trial court did not pronounce itself substantively on whether the suit was res judicata. But I get the dilemma it was faced with because there was nothing in my view stopping the trial court determining the issue of ownership within the contest of the claims before it provided that the court was clear on the jurisdiction of the ELC court as against pronouncing itself on the matters the succession court had pronounced itself on. This would be a no-go zone as show would be sitting on appeal of a decision of the High Court. 25 Further I take cognisance and agree with the observations of the Honourable Justice Aburili at page 72 that any person laying claim to the estate of Perez could only lay such claim through Mary Awuor Onyiso (the 1st defendant in the present proceedings) by interalia waiting for the grant to be issued in her name and sue her for the recovery of entitlement. The Plaintiff in the trial court seems to have taken the cue from Justice Aburili and commenced the proceedings for ownership of the suit property as hinted by the Honourable Judge. The proceedings in the trial court were therefore properly before the said court subject to my observations on the boundaries set. 26 I have drawn guidance from **Pricilla Ndubi and Zipporah Mutiga -vs- Gerishon Gatobu, Meru Succession Cause No. 720 of 2013** where it was held; - **“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues on ownership of the property in the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.” Emphasis is mine** 27 This court is also persuaded by the dictum of Gikonyo J in **Re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR** where it was stated; **“…I am aware that this Court does not have jurisdiction to determine the validity or enforceability of the said agreement. Environment and Land Court does. It is the court which is constitutionally mandated to determine such matters.” …thus, where issues on ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed.” Emphasis is mine** 28 It is clear therefore that as to ownership of the land the plea of res judicata is not applicable these being issues within the jurisdiction of the Environment and Land Court. I will also take the above approach in considering the merits of the decision of the trial court. **Whether the trial court erred in cancelling the name of the 1st and 2nd Respondent on parcel number SIAYA/KOCHIENG "B"/673 and** **SIAYA/KOCHIENG "B"/762.** 29 The plaintiff respondent in this appeal (herein Boaz) in the amended plaint approved by the trial court order dated 11/8/2021 avers that since 13/10/2008 he has been registered proprietor of parcel 762 having received a valid transfer from Perez Onyango Onyiso the mother of the 1st defendant. Further that parcel 671, 672 and 673 were registered in his name but were fraudulently deregistered and transferred to the names of the 1st and 2nd defendant and who colluded without his knowledge or consent with the aid of the Land Registrar sued as the 3rd defendant. The particulars of fraud against each of these three parties were listed and which I will revisit later in this judgement. Consequently, owing to the illegal actions the plaintiff sought an order reversing the illegal entries in the parcel registers for parcels 762,671,672 and 673 back to him. 30 The 1st defendant and 2nd defendants filed a defence which was a general denial in my view. The 1st defendant (herein Mary) adopted her witness statement dated 10/2/2023 where she stated she was relying the documents produced in court these would be the documents in her list of documents. She avers that she is the only surviving biological child/daughter of Perez Onyango Onyiso (herein Perez). She rightfully conducted succession in her estate as directed by the High court at Siaya, the same were never challenged by the plaintiff and ultimately got registered as the proprietor of the suit land. That the court rendered its decision in the succession proceedings and the plaintiff now claims under the disguise of the present land matter. That no issues of fraud have ever been lodged against her. 31 The 2nd defendant in her witness statement of even date which she adopted as her evidence in chief relied on the same documents and stated that the plaintiff has never been a beneficiary of the estate of Perez Onyango Onyiso. 32 The Land Registrar sued as the 3rd defendant never participated in the proceedings 33 After hearing the party’s viva voce the trial court entered judgement against the defendants jointly and severally and made an order interalia reversing all subsequent entries on parcel 762,671,672,673 and reverted them to the plaintiff Boaz. 34 The trial court did not identify the issues for determination and I think this is where the accusation of failure to render herself on the issues may have arisen. The importance of framing issues cannot be gainsaid as was seen in the case of **Rukidi vs. Iguru and Another [1995-1998] 2 EA 318**. However, upon listing and describing all the documents produced before court, the learned Magistrate referred to the provisions of section 26 (1) of the Land Registration. Act on the circumstances under which a title which must be taken by the courts as prima facie evidence of ownership may be challenged. 35 The above provisions state; - *26(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 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.*** 36 I note that the trial court recognised that the parties had by consent and or by the defendants in both cross examination and submissions filed by their counsel that it had been conceded that parcels 671 and 672 ought to revert to the Plaintiff. That this admission was backed by the green cards produced as PEX6. The trial court then proceeded to enter judgement reversing all entries in respect of the same and reverted them to the plaintiff. 37 I note that PEX 6 is the green card for 762 (page 87 ROA). However, I note that the correct green card should be for plot 672 and which shows that parcel was registered to Boaz on 26/9/1990 and on 1/9/2020 to Mary Owuor Onyango the 1st Defendant under RL 19 and RL7 and title deed issued on 3/9/20. The green card for parcel 671 shows it was registered to Boaz on 26/9/1990 and title deed issued on 12/9/1997. This green card and title form part of the annexures of the supporting affidavit to the Notice of Motion dated 12/5/2021 for leave to amend the plaint. They are therefore part of the record the application having been allowed by the court. 38 From the proceedings I note that DW2 conceded that plot 672 did not belong to Perez. I did not come across any record by DW1 during the hearing conceding that this parcel did not belong to Perez. However, I keenly perused the judgement in High Court Misc. 6 of 2016. The same never dealt with these two parcels 671 and 672 – See paragraph 3 of the judgement which lists the assets for which the grant was sought. Also see paragraph 7 (f). I also further note ground 2 of the appeal does not mention these two parcels. I also note in the 1st and 2nd defendants’ submissions dated 14/3/2024 (page 206 – 208 of ROA) in the trial court filed by the firm of Oduor Achar the conclusion states that he concedes that parcels Siaya/Kochieng B 671 & 672 be reverted back to the Plaintiff as the rightful owner as their inclusion into the grant of letters of administration was an error. 39 Additionally I have further noted that counsel for the appellant affirms in paragraph 2 of the submissions that indeed the appellant conceded that Siaya/Kochieng B 671 & 672 were erroneously registered in the name of the Appellant and that the same ought to be cancelled and registered in the name of the 1st Respondent. 40 Having satisfied myself as above, then I will not disturb the trial courts finding with regard to parcels Siaya/Kochieng ‘B’ 671 & 672. The order relating to them was cancellation and to be reverted to the Plaintiff Boaz. 41 But what about the parcel number SIAYA/KOCHIENG "B"/673 and SIAYA/KOCHIENG "B"/762 and whose cancelation is the crux of this appeal? 42 Concerning parcel 762 above the trial court highlighted the contents of the green card produced relating to this parcel and also commented on the outcome of the Land Disputes Tribunal and appeals committee which it observed had concluded that the land 762 belonged to PEREZ the mother to the 1st defendant (this was Mary) and thereafter through an appeal to the provincial appeal committee determined the issue and title issued. The trial court also highlighted all the entries culminating into the transfer of the parcel to Perez, then Boaz and thereafter vesting of the same to the 1st and 2nd defendants by succession. The trial court also did the same for parcel 673 whose entries mirrored those of 672. 43 The trial court pronounced itself thus; - ***‘Concerning these two parcel the real question is how did the register appear at the time of succession in the estate of PEREZ ONYANGO ONYISO? It is clear that at the time of death of PEREZ ONYANGO ONYISO on 24/5/2014 this (sic) two parcels*** ***SIAYA /KOCHIENG ‘B’/762 and SIAYA /KOCHIENG ‘B’/673 had already transited by transfer to the plaintiff on 13/10/2008. The question now is whether at the time of the succession undertaken by the defendants was valid. The answer is in the negative as there was then no estate for PEREZ comprised in SIAYA /KOCHIENG ‘B’/762 and SIAYA /KOCHIENG ‘B’/673.*** ***It is now my return Form P&A form 54 dated 3/7/2020 in succession cause no 92 of 2019 in the Estate of PEREZ wherein the 1st and 2nd defendants were issued, 673 and 762 was of no consequence’.*** 44 I respectfully think the above pronouncement was a no-go zone for the trial court exercising jurisdiction donated by section 26 of the ELC Act. The trial court had no jurisdiction whatsoever to invalidate succession proceedings. This was the preserve of the Court of Appeal sitting on appeal against the decision of the court that issued the grant. 45 But having made the above observation, this court has seen the green card for parcel 762. The parcel was registered in the name of Okello Onyiso on 26/9/90, on 3/9/99 it was registered to Perez Onyango Onyiso through succession, on 13/10/08 it was transferred to Boaz Oduor Wycliffe Daniel Omondi and a title deed issued on the same day. The rest of the entries indicate there was an appeal but which was dismissed and title deed re-issued to Boaz in 2014 (see page 88). At page 89 is another green card for the same parcel depicting that the earlier title had been surrendered on 13/10/2008. This green card was also produced (see page 154 of ROA) 46 As an appellate court one of my duties is to review the evidence and come up with my independent conclusion. I will therefore interrogate how the land transmitted to the 1st and 2nd defendant in the year 2020 when the green card clearly shows that the same was registered in the name of Boaz at that time. PW1 evidence is that it was done without his knowledge or consent. Mary who testified as DW1 testified in cross examination that she never informed Boaz because she does not know Boaz. That all she knew is that she was registered by the Land Office. She was assisted by her nephew to get her registered and she could not know if the said nephew used proper procedure. 47 For me it would be understandable if the registered proprietor Boaz was deceased (God forbids) and the 3rd respondent endorsed the transmission pursuant to the provisions of section 61 of the Land Registration Act but only in favor of his personal representative. Mary Awuor clearly was not Boaz personal representative. She lodged the documents in her capacity as administrator of the estate of Perez. 48 Mary cannot hide under the guise that the succession has not been set aside or that the judgement in High Court Misc was not challenged. I have already noted that the said judgement did not make any order of cancelation of title. Assuming the learned Judge in High Court Misc No. 6 of 2016 had made an order of cancelation of the titles, then this would have been the order lodged by Mary which would have paved way for the 3rd Respondent to register the transmission to Mary. 49 The registration of Mary as the proprietor of the parcel was irregular to the extent that the parcel register still bore the name of Boaz as the registered proprietor. Clearly even the Land Registrar was wrong. In **Republic v Land Registrar, Kilifi & another Ex-Parte Daniel Ricci [2017] eKLR, the Court** emphasized that: *"The role of the Land Registrar is not merely clerical. The Registrar is required to exercise due diligence, verify documents, and ensure that fraudulent transactions are not registered."* 50 Similarly, in **John Kibunja v The Land Registrar Thika & Another [2019]** eKLR, it was held: ***"The Land Registrar must always ensure that proper safeguards are followed in the registration of transfers. Any registration arising from irregular or unlawful process is void ab initio."*** 51 It has been contented by counsel for the appellant that Mary only did what she did pursuant to the grant issued. However, it is trite that under the provisions of section Section 26 (1) (b) where land has been acquired illegally, unprocedurally or through a corrupt scheme and in such instance, the holder of the title does not need to be a participant in the issues that vitiate the title. This principle was affirmed in the case of **Elijah Makeri Nyangwara vs Stephen Mungai Njuguna, Eldoret ELC No. 609B of 2012 (2013) eKLR,** 52 The trial court further made a finding that there was no fraud pleaded and proved against the plaintiff but the defendant with regard to the registration of the two parcels in the name of Boaz and thus the registration of the plaintiff is not impeached. 53 The Court of Appeal in ***Vijay Morjaria – Versus - Nansingh, Madhusingh Darbar & another [2000] eKLR*** held that: ***“It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved and it is not allowable to leave fraud to be inferred from the facts.”*** 54 Applying the above to the present suit, I have looked at the Defence filed herein (page 118 of the ROA) and I must note that it is just but a general denial. There was no basis upon which to make a finding of fraud. I would therefore not fault the trial court finding in this regard. However, must also reiterate my finding on the irregularity as analysed herein before and impeach the title registered to Mary by transmission on 1/9/2020. 55 The 1st and 2nd defendants submitted before the trial court (page 208 of the ROA) that in the event the court were to cancel the titles registered in the name of the 1st defendant, then the same should revert to the estate of Perez Onyiso (deceased) for proper administration by the 1st defendant. 56 I have anxiously considered the above proposal. I have considered the same against the judgement of my sister Justice Aburili who had the opportunity of hearing the disputing party’s viva voce. Moreover, the said judgement has not yet been appealed against by the Respondent herein and it therefore stands. 57 At paragraph 85 of the judgement (page 148 of ROA). Concerning parcel 673 the learned Judge observed thus; - *‘With respect to Land parcel No. 673, the record shows that on 13/10/2018 Boaz Oduor became the registered owner thereof. This was before the demise of Peres Onyiso. It is not stated in what capacity he acquired the title as there is no evidence that he bought it from Peres or that she gifted it to him.’* 58 At paragraph 83 the Learned Judge observed thus; - ***‘The court observes that the said old lady in one of the photographs which betrays Boaz’s angelic face is shown being made to thump-print documents and therefore the question is whether that paralysed old day had the mental and physical capacity to sign off anything/property for anybody.*** 59 At paragraph 101 the learned judge observes- ‘. ***that Boaz never filed a schedule of distribution of the estate of Peres…. He assigned to himself 100% shares of each land parcel of land named therein****.* 60 At paragraph 102 the learned judge found that he was unable to believe that Boaz was acting in good faith when he got involved in the matters land and estate of the Late Peres. This in my view consist of fraudulent misrepresentation. 61 Should this court faced with the above record ignore it? In my view no. I find credence in the provisions of Section 44 of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46) provides as follows;“44 (i)A Final judgment, order or decree of a competent Court, which confers upon, or takes away from any person any legal character or which declares any person to be entitled to any such character or be entitled to any specific thing not against any specified person, but absolutely is admissible when the existence of any such legal character or the title of any such person to any such thing is omissible.” 62 This court based on the foregoing finds that the two titles for the parcels parcel number SIAYA/KOCHIENG "B"/673 and SIAYA/KOCHIENG "B"/762 must be cancelled. 63 It is the finding of this court that the trial court erred in cancelling the name of the 1st and 2nd Respondent on parcel number SIAYA/KOCHIENG "B"/673 and SIAYA/KOCHIENG "B"/762 in favor of the Plaintiff. **What orders therefore commend to be issued in this appeal?** 64 This court has upheld the judgement of the trial court allowing the cancellation of the titles Siaya/Kochieng ‘B’ 671 and Siaya/Kochieng ‘B’ 672 and reversion thereof to Boaz Wyclife Daniel Omondi to the extent that it was pursuant to the consent of the parties. 65 Having held that *the* trial court erred in cancelling the name of the 1st and 2nd Respondent on parcel number SIAYA/KOCHIENG "B"/673 and SIAYA/KOCHIENG "B"/762 in favor of the Plaintiff, it is my view the titles which must be impeached can only revert to the estate of Perez Onyango Onyiso. 66 On costs, Section 27(1) of the Civil Procedure Act provides as follows: - ***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.*** 67 The import of the foregoing provision is that, although the award of costs remains a matter within the discretion of the court, such discretion is guided by the established principle that the successful party in any suit or litigation should ordinarily be awarded for the costs incurred thereunder. Consequently, a departure from the general rule that costs follow the event must be justified by good and sufficient reasons. 68 This court notes this dispute has been protracted and would not add more expenses on either side. Due to the goodwill extended by the defendants conceding that parcels Siaya/Kochieng ‘B’ 671 and Siaya/Kochieng ‘B’ 672 revert to the Plaintiff and to mend relationships I think it would be prudent for parties to each bear their own costs. 69 The following orders therefore issue to dispose of this appeal and replacing (except 1) the orders of the trial court in the following terms; - 1. An order reversing all entries on parcel Siaya/Kochieng ‘B’ 671 and Siaya/Kochieng ‘B’ 672 and revert the parcels thereof to the Plaintiff Boaz Wyclife Daniel Omondi. 2. An order reversing all entries on parcel Siaya/Kochieng ‘B’ 673 and Siaya/Kochieng ‘B’ 762 and reverting the parcels to Perez Onyango Onyiso. 3. The orders in 1 and 2 above shall be implemented by the Land Registrar in charge of Siaya/Kochieng of within 90 days of this order. 4. An order of prohibition directed at the Plaintiff Boaz Wyclife Daniel Omondi from dealing with the parcels Siaya/Kochieng ‘B’ 673 and Siaya/Kochieng ‘B’ 762. 5. That each party shall bear their own costs of the proceedings in the trial court as well as this appeal. **Delivered** and **Dated** This 28th **Day** of **July 2026** **HON. LADY JUSTICE A.E. DENA** **JUDGE** **28/07/2026** **Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:** Mr. Ooro F for Appellant Mr. Boaz Wycliffe 1st Respondent No appearance for 2nd & 3rd Respondent Court Assistant – Abiud Wekesa