[2025] KEELC 3392 (KLR)

Otieno v Mitula & another (Environment and Land Appeal E009 of 2023) [2025] KEELC 3392 (KLR) (24 April 2025) (Judgment)

Neutral citation: [2025] KEELC 3392 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Environment and Land Appeal E009 of 2023

E Asati, J

April 24, 2025

Between

Jane Atieno Otieno

Appellant

and

Domnic A. O. Mitula

1st Respondent

David Osteen Okoyo (Suing as the Administrator of the Estate of Perez Atieno Okoyo)

2nd Respondent

(Being an appeal from the judgement/decree of Hon. Rashid F. - SRM delivered on 9th September 2022 in Winam MELC NO 113 OF 2018)

Judgment

Background 1. A brief background of the appeal herein as can be gathered from the Record of Appeal is that the suit, the subject matter of the appeal was first filed in the Environment and Land Court at Kisumu as Kisumu ELC Case No. 142 of 2016 between Domnic A.O Mitula (the 1st Respondent herein) and one Margaret Awuor Sewe. This was vide the plaint dated 21st June 2016. The plaint was later amended and replaced with the amended plaint dated 1st February 2017 replacing Margaret Awuor Sewe with the appellant herein as the Defendant and adding the 2nd Respondent herein as the 2nd Plaintiff. By court order dated 17th October 2018, the suit was transferred to Winam Magistrate’s Court for hearing and disposal where it was assigned the current case number.

2. The 1st Respondent’s claim in the suit was that he bought a portion of land measuring 105 x 42 x 39 feet (approximately 0. 029Ha) of land parcel known as Kisumu/Manyatta “A”/2329 (herein the suit land) from Margaret Awuor Sewe, deceased, at Kshs.70,000/=

3. The 2nd Respondent’s case was that one Peres Atieno Okoyo also bought a portion of land measuring approximately 0. 02 Ha being part of the same parcel of land from the same seller and that the 2nd Respondent was the personal representative of Peres Atioeno Okoyo.

4. That although the said seller did sign the transfer of land forms, the sub-division and transfer was not done in favour of the 1st Respondent because he had gone abroad for a long time. It was the Respondents’ case that he had had open and peaceful use and occupation of the sold portion of the land since the year 1995 and 1997 respectively and developed the land by inter alia putting up residential units from which they earn monthly rental income.

5. The Respondents therefore sought for of; -a.a declaration that the plaintiffs are entitled to exclusive and unimpeded right of possession and occupation of all that piece of land known as L. R. No Kisumu/Manyatta “A”/2329(portion measuring 0. 029 Ha) and a portion measuring 0. 02 Ha (the suit property).b.a permanent injunction do issue restraining the defendant whether by herself or her servants or agents or otherwise howsoever from remaining on or continuing in occupation of the suit property.c.a declaration that the Defendant’s title was illegally acquired and same be cancelled and the register be rectified.d.A declaration that the defendant being the administrator of the estate of the late Margaret Awuor Sewe, is holding the property in trust for the plaintiffs with respect to the portions sold and an order of specific performance do issue directing the Defendant to effect subdivision of the portion sold.e.general damages andf.costs of this suit together with interest thereon at such rate and for such period of time as the honourable court may deem fit to grant.g.Any such other or further relief as the court may deem appropriate.

6. The Defendant Jane Atieno Otieno filed defence and counter-claim dated 11th July 2016 wherein she denied the 1st Respondent’s claim and sought for orders of: -a.Possession of the whole of land parcel Kisumu/Manyatta “A”/2329. b.An order of eviction of the plaintiff (now defendant) from Land Parcel No. Kisumu/Manyatta “A”/2329. c.An order of injunction permanently restraining the plaintiff, his employees, servants, workers and/or agents from entering upon, remaining on, taking possession of, carrying out any construction, or any other activity whatsoever on the suit parcel or any part thereof and from alienating or interfering by any means howsoever with the property known as Kisumu/Manyatta “A”/2329d.Costs of the suite.Any other relief that the honourable court deems fit to grant.

7. The record shows that in the course of the proceedings, the 1st Respondent’s suit was dismissed for non-attendance and an appeal to the Environment and Land Court against the dismissal was also dismissed. The matter therefore proceeded to hearing of the appellant’s counter-claim only.

8. The record shows that the counterclaim was heard before the trial court which vide the judgment dated 9th September 2022 found that the counterclaim had no merit and dismissed it with no order as to costs.

The Appeal 10. Aggrieved by the judgment, the appellant preferred the present appeal on the grounds that: -a.the Hounorable Magistrate erred in law and fact by incorrectly applying the law in the Land Act, Land Registration Act, ownership of property and legal test on the case and issues before her and thereby arriving at an erroneous finding.b.the Hounorable Magistrate erred in law and fact by failing to consider submissions and arguments of Counsel for the appellants and in failing to consider an apply case law cited which precedents are binding upon the court hence arrived at a wrong decision.c.the Learned Trial Magistrate erred in law and fact by failing to find that the appellant is absolute owner of the disputed parcel number Kisumu/Manyatta/2329. d.the Hounorable Magistrate erred in law and fact by lowering the standard required to prove proprietorship of land.e.the Learned Trial Magistrate erred in law and fact in dismissing the defendant’s strong and powerful counterclaim without any justification or reasonable cause.f.that the Hounorable Magistrate was biased in her decision making.g.the Hounorable Magistrate ignored the solid evidence given by the defendants.h.the decision was against the weight of the evidence and the learned trial Magistrate left the parties in state of confusion and directionless.i.the hounorable Magistrate did not consider the contradictions in the Respondent’s case and thus arrived at an unjust decision.

11. The appellant prays for order that: -i.The appeal be allowed.ii.The appellant’s counter-claim be allowed.iii.The cost of the subordinate court and High court be awarded to the appellant.

Submissions 12. Pursuant to directions given on 29th May 2024, the appeal was disposed of by way of written submissions.

Appellant’s submissions 13. It was submitted on behalf of the appellant vide the written submissions dated 9th August 2024 filed by Mwamu & Co Advocates that the appellant was the valid and legal owner of the estate. Counsel submitted that the appellant had testified that she filed succession cause No. 1136 of 2023 vide which she was issued with Grant of Letters of Administration and Confirmation of Grant and consequently issued with a title deed in respect of the suit land. Counsel relied on the cases of Wainaina –vs Kiguru & another (ELC Case No, E023 OF 2021) (2022) KEELC 3261 (KLR), Wanjeziro –vs – Abdulbasil Abeid Said & Another (2022) eKLR and the provisions of Section 26(1) of the Land Registration Act to support the submission.

14. Relying on the provisions of section 45 of the Law of Succession Act and the case of Onyuka –vs- Migwalla (2005) eKLR where the court held that the absence of a grant of Letters of Administration invalidates a sale agreement in respect of land registered in the name of a deceased person, Counsel submitted that as at the time the Respondent’s agreement was being made, one Margaret Awuor Sewe was not yet confirmed as the Administrator of the Estate of the late Nahashon Sewe Olweny hence the sale agreement she entered into was invalid by dint of Section 82 of the Law of Succession Act.

15. Counsel further submitted that the appellant’s prayers ought to have been granted upon dismissal of the Respondent’s suit. Counsel relied on the case of Kenya Ports Authority –vs- Supernova Properties & 2 others (2022) eKLR.

16. On whether the counterclaim had merit, Counsel relied on the cases of Yaya Towers Limited -vs- Trade Bank Limited (in Liquidation) Civil Appeal No. 35 of 2000 and D.T –vs- Muchima in which it was emphasized that a court should aim at sustaining a suit rather than terminating it by summary dismissal.

17. On whether it was appropriate for the applicant to be denied costs after dismissal of the initial suit, Counsel relied, inter alia, on the provisions of Section 27 of the Civil Procedure Act to the effect that costs follow the event.

Respondent’s submissions 18. Written submissions dated 12th November 2024 were filed on behalf of the Respondent by Julius Olaha & Company Advocates.

19. Counsel submitted that while the Respondents agreed with the impugned judgment to the extent of dismissal of the appellant’s counterclaim, they joined issue with the court’s failure to conclusively settle the dispute between the parties by failing to order sub-division of the suit property between the appellant on the one hand and the Respondents on the other having found that the Respondents were entitled to their respective portions of the suit property. Counsel proposed the issues for determination in the appeal to be;a.whether the appellant concealed material facts at the time of applying for a Grant of Letters of Administration in respect of the Estate of Nashon Sewe Olweny.b.whether the Respondents have purchasers’ interest in the suit property and consequently innocent purchasers for value without notice of any impropriety in the title.c.whether the rights of the Respondents who are in possession and occupation are equitable rights and overriding interests which are binding on the suit property.d.whether the Respondents are entitled to their respective portions of the suit property on account of adverse possession.e.whether the suit property should be sub-divided and the respective portions transferred to the Respondents.

20. Counsel submitted that the appellant owed a duty to the Probate/Succession Court, pursuant to which she obtained Letters of Administration, to disclose all material facts touching on the suit property, particularly the fact that the 1st and 2nd Respondents herein were in actual possession and occupation of their respective portions of the suit land spanning 18 and 16 years respectively as at the time of application for Grant of Letters of Administration in 2013. Counsel relied on the case of Kamundia & 6 Others -vs- Maingi & 3 others Civil Appeal No. 2012 of 2019, where a Grant obtained by concealment from court of material information was found to have been obtained fraudulently. Counsel submitted that therefore the process leading to the registration of the appellant as owner of the suit property was fraudulent hence the title is not absolute.

21. Counsel also relied on the provisions of section 26 of the Land Registration Act on the grounds upon which title to land can be impeached and the case of Chutta -vs Ndung’u (Civil Appeal 293 of 2018) (2024) that land whose title was not acquired regularly was not protected under article 40 of the Constitution on the protection of the right to property. Counsel submitted further that the Respondents were bona fide purchasers in good faith for value without notice of the fact that the vendor, one Margaret Awuor Sewe who presented herself as the proprietor thereof had no capacity to dispose of the same for want of Letters of Administration.

22. On whether the rights of the Respondents are equitable rights and overriding interests which are binding on the suit property, Counsel submitted that evidence was adduced that the Respondents have been in actual and physical possession and occupation of the suit property from the respective dates of purchase. That the possession was open, continuous and uninterrupted. That in the year 2002 the 2nd Respondent buried her sister on the suit land, an act which was conspicuous and not objected to by the appellant.

23. That the trial court visited the suit property and confirmed the fact and further that the Respondents had built residential structures with tenants living in the same. Relying on the case of Macharia Mwangi Maina & 87 Others -vs - Davidson Mwangi Kagiri (2014) eKLR Counsel submitted that the Respondents having been in possession and occupation of the suit property for a period of over twenty years the possession created an overriding interest in favour of the Respondent and against the appellant, Counsel also referred the court to the case of Peter Mbiri Michuku –vs- Samwel Mugo Michuki (2014) eKLR where it was held that the rights of a person in possession or occupation of land are equitable rights which are binding on the land and the land is subject to those rights.

24. Counsel submitted further that the rights of the Respondents are not only equitable rights but also overriding interest.

25. Relying on the case of Isaac Cypriano Shingore -vs- Kipketer Togon (2016) eKLR Counsel submitted that continued possession by the Respondents of their portions of the suit property was not by virtue of the agreements of sale already voided for want of capacity of the vendor, but the same was independent possession adverse to the title of the original owner.

26. That in adverse possession, the tile of a registered proprietor is not extinguished but is held in trust for the person who by virtue of the Limitation of Actions Act has acquired the title as against the registered proprietor. That the possession by the Respondents is not only adverse to the deceased Nashon Sawe Olweny, but to the entire estate pursuant to the provisions of the Limitation of Actions Act.

27. Counsel urged the court to dismiss the appeal and to determine the case finally as provided for under section 78 of the Civil Procedure Act by making an order for cancellation of the tile held by the appellant and ordering sub-division of the suit property to be conducted by the Land Registrar with a view of issuance of respective title documents to the appellant, the 1st and 2nd Respondents respectively. Counsel urged the court to award costs to the Respondents.

Issues for determination 28. From the grounds of appeal and the written submissions made, the following emerge as the issues for determination herein: -a.whether the trial court erred in application of the law in the issues before her;b.whether the trial court failed to consider submissions and precedents relied on by the appellant;c.whether the appellant proved before the trial court that she was the absolute owner of the suit land;d.whether the court lowered the standard of proof required to prove proprietorship of land;e.whether the trial court erred in dismissing the counterclaim.f.whether the decision of the trial court was against the weight of the evidence.g.whether or not this court should decide the case finally by making an order for sub-division of the suit land between the appellant and the Respondents as submitted by Counsel for the Respondents;h.what order to make on costs.

Analysis and determination 29. This being a first appeal, this court is under a duty to reconsider and analyze the evidence adduced before the trial court and arrive at its own independent conclusion. In the case of Selle and another vs Associated Motor Boat Company Ltd and others 1968 E.A 123 it was held that:“An appeal to this court from a trial by the High Court is by way of a 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 never seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not- necessarily bound to follow the trial court’s findings of fact if it appears either that he 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.”

30. The evidence placed before the trial court by the appellant in support of the Counter-claim comprised of her own testimony and the exhibits that she produced.

31. The Appellant testified as PW1 and stated that the suit land belonged to her father-in-law, Nashon Sewe Olweny, deceased. That she undertook succession vide Succ cause No. 1136 of 2013 and the land was transferred in her favour. That after that Dominic Mitula claimed that the land was his. That she did not know how Domnic Mitula acquired the land. That it was after she was issued with the Grant that she discovered that there were temporary structures erected on the land and people were living in them.

32. PW1 testified further that she was not aware of any transaction between the plaintiff and her mother in law one Margaret Awuor Sewe in respect of the suit land and that any such transactions are null and void as her mother in law had no legal capacity to carry out any transactions pertaining to the deceased’s estate and in particular, the suit property. The appellant produced Certificate of Confirmation of Grant, copy of certificate of official searches dated 11th July 2016 and 11th October 2015, copy of Kenya Gazzette dated 15th July 2014, copy of title deed, copy of ruling dated 24th May 2018 in Succession Cause No. 1136 of 2013 and copy of Ruling dated 24th January 2012 by Hon Justice Kibunja.

33. She stated that she lives on one part of the land while the other part is occupied by the plaintiffs’ clients.

34. On behalf of the Respondents, 2 witnesses testified in respect of the counter-claim. DW1 was the Domnic Mitula, the 1st Respondent. He adopted the contents of his witness statement as his evidence. He stated that he bought a portion of the suit land measuring 105 x 42 x 39 ft which is approximately 0. 029 Ha from Margaret Awuor Sewe at Kshs.70,000/= vide land sale agreement dated 16th February 1995.

35. That immediately after purchase he took possession of the land and developed residential units thereon. That in 1997 the seller sold a portion measuring 0. 02 Ha next to his to Peres Atieno Okoyo. That he had had peaceful occupation of the land for a period of over 20 years. That on 13th June 2016 the Defendant (appellant herein) invaded their portion of the suit land and removed iron sheets from the tenants’ houses to their loss and detriment. That the transfer of the land to the defendant was done unprocedurally and that her title ought to be cancelled. That at the time of purchase, there was no title deed in the name of anybody as no titles had been issued in Manyatta “A” area. That at the time of sale, the seller had lost her son, the husband of the appellant herein and she wanted to sell the portion of land so as to get money and construct a house for the widow, the appellant herein on the remaining portion of the suit land. That he sympathized and bought the land. That the appellant was present at the time of purchase and that title deed was issued in the name of Nashon Olweny, posthumously. That Margaret used the money he paid to her to build the house for the appellant and that the appellant resides on her plot.

36. On cross examination DW1 stated that the seller did not have documents of ownership as the land belonged to the seller’s husband who was deceased as at the time of sale. That the defendant wrote her name on the agreement but without signature.

37. DW2 was one David Osteen David. He stated that he was the son and Administrator of the estate of Peres Atieno Okoyo the 2nd Defendant in the Counter-claim. That her mother bought a portion of the suit land and took possession. That his late sister Beatrice Aoko Okoyo was buried on the said portion of land when she died. That the land is rented out and that there is a tenant in occupation.

38. The first issue for determination is whether the trial court erred in application of the law in the issues before her.

39. This issue is drawn from ground 1 of appeal that the Hounorable Magistrate erred in law and fact by incorrectly applying the law in the Land Act, Land Registration Act, ownership of property and legal test on the case and issues before her and thereby arriving at an erroneous finding.

40. In respect of this ground, 3 issues were raised on behalf of the appellant vide the written submissions namely; that pursuant to the provisions of section 26(1) of the Land Registration Act, the appellant was the valid and legal owner of the suit land secondly that pursuant to the provisions of section 45 of the Law of Succession Act, in the absence of Letters of Administration the sale agreements were invalid and lastly that upon dismissal of the suit, the appellant’s prayers ought to have been granted.

41. Regarding validity of the sale agreements, a reading of the judgement shows that the trial court did find that Margaret Awuor Sewe, deceased did not have capacity to sell the land to the defendants as she did not have Letters of Administration. That the land sale transactions were a nullity ab initio.

42. In respect of the issue that the appellant was the absolute valid and legal owner of the suit land, a reading of the judgement reveals that the trial court took into account the period that the Respondents had been in occupation of their respective portions of the suit land, the activities and developments they had carried out thereon and the appellant’s failure to exert his rights as the owner thereof. The trial court also visited the suit land and observed as follows:“I visited the suit land on 1st July 2022 and noted that the 1st Defendant’s part of the land had an incomplete structure while the 2nd Defendant’s part of the house had a grave. The 2nd Defendant informed the court that his sister was buried on his section of the land in the year 2002. The plaintiff confirmed to the court that she was aware that the 2nd Defendant’s sister one Beatrice Aoko Okoyo was buried on the piece of land. That she was present but never raised an objection to the burial. Similarly, the 2nd defendant’s section of land had old rental houses that seemed to have been built more than 15 years ago….I further noted when I visited the scene that a public road passes through the suit land. One part is exclusively occupied by the Plaintiff while the other part is occupied by the Defendants.”

43. The record shows that the trial court then concluded that the 1st Respondent had been in occupation of his portion of the land for 21 years before the suit was filed while the 2nd Respondent had occupied the land for 19 years. That the appellant had not taken any step to sue the Respondents for trespass and did not object when the 2nd Respondent’s deceased sister’s body was interred on the land. The trial court then found that the counterclaim had no merit and dismissed it.

44. Did the trial court err in doing this? The appellant’s claim as contained in the counterclaim was essentially for recovery of the portions of the suit land occupied by the Respondents. The trial court established that the Respondents had been on the land for periods in excess of 12 years. This was not denied by the Appellant. Sections 7 and 13 of the Limitation of Actions Act provide-“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”Section 13(1)A right of action to recover land does not accrue unless the land is in possession of some person in whose favour the period of Limitation can run (which possession is this Act referred to as adverse possession), where under sections 9, 10, 11 and 12 of this Act a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.(2)Where a right of action to recover land has accrued and thereafter, before the right is barred, the land cease to be in adverse possession, the right of action is no longer taken to have accrued and a fresh right of action does not accrue unless and until some person again takes adverse possession of the land.(3)For the purpose of this section, receipt of rent under a lease by a person wrongfully claiming in accordance with section 12 (3) of this Act, the land in reversion is taken to be adverse possession of the land.

45. In view of these provisions of the law, the appellant’s cause of action had been caught up by the limitation period. Further, under section 28 of the Land Registration Act, rights acquired or in the process of being acquired by virtue of written law relating to limitation of actions or by prescription are overriding interests to which all registered land is subject.

46. In view of the foregoing, I find that the trial court did not err.

47. The other issue raised is that the court ought to have granted the appellant’s prayers upon dismissal of the Respondents’ suit. However, the counterclaim being itself a suit within the main suit, was subject to trial and proof in accordance with the provisions of the Civil Procedure Act and Rules and the Evidence Act. The appellant had to discharge the burden of proving the counterclaim on a balance of probabilities. It has not been demonstrated herein that the trial court erred in proceeding to hear and determine the counterclaim on its merits.

48. Although in ground 2 of the appeal in which the appellant raises the issue of whether the trial court failed to consider submissions, arguments, the law and precedents cited by Counsel for the appellant it was not demonstrated what aspects of the submissions, arguments, law or precedents the trial court failed to consider and how this impacted the outcome of the suit.

49. Similarly, ground 4 of the appeal on whether or not the court lowered the standard of proof required to prove proprietorship of land was also not substantiated.

50. The ground 3 is whether the appellant had proved before the trial court that she was the absolute registered owner of the suit land. This issue has been addressed in determination of ground/issue No. 1 herein. Although the appellant produced a title deed which she said she obtained upon transmission of the suit land through a succession process, the history of the suit land shows that the Respondents held overriding interests on the suit land to which the appellant’s title is subject and that her claim for recovery of the land occupied by the Respondents had become time barred by virtue of the provisions of Section 7 of the Limitation of Actions Act.

51. The next grounds of appeal are whether or not the trial court erred in dismissing the counter-claim and whether or not the decision of the trial court was against the weight of the evidence.

52. Having analyzed the evidence, I find that the trial court was justified to dismiss the counter-claim, that the weight of the evidence supported the trial court’s findings that the Respondents had been on the land for a long period.

53. On whether this court should decide the case finally by making an order for cancellation of the appellant’s title and sub-division of the suit land between the appellant and the Respondents as submitted by Counsel for the Respondents, it was submitted on behalf of the Respondents that the court should determine the suit finally as provided for under section 78 of the Civil Procedure Act by making an order for cancellation of the title held by the appellant and to ordering for sub-division of the suit property to be conducted by the Land Registrar with a view of issuance of title documents to the appellant and the 1st and 2nd Respondents respectively.

54. There was no response by the appellant to this submission.Section 78 of the Civil Procedure Act provides as followsi.Subject to such conditions and limitations as may be prescribed, an appellate court shall have power -a.to determine the case finally;b.to remand a case;c.to frame Issus and refer them for trial;d.to take additional evidence or to require the evidence to be taken;e.to order a new trial;ii.Subject as aforesaid, the appellate court shall perform as nearly am any be the same duties are conferred and imposed by this Act on courts of original jurisdiction in respect of suit, instituted therein”

55. From the record, it is clear that by the end of the case the trial court had found that the appellant was not an absolute owner of the suit land because the Respondents were entitled to the respective portions that they occupy. It is common ground that the Respondents’ suit was dismissed for non-attendance and an appeal to the Environment and Land Court against the dismissal was also dismissed. There is no evidence that the appellant ever pursued the matter to the Court of Appeal. The Respondents therefore had no claim before the trial court. The only matter that remained before the trial court for determination was the counterclaim. The appeal herein relates to the counterclaim. This court can hence decide issues concerning the counterclaim. There is no cross- appeal by the Respondents for determination by this court, challenging the trial court’s decision on grounds that the court did not resolve the dispute before it. As such there is no basis for this court to order cancellation of the appellant’s title or subdivision of the suit land to create titles for all the parties.

56. All is, however, not lost as the parties can still pursue other action including Alternative Justice System, Mediation, other form of ADR or a claim based on adverse possession.

57. For the foregoing reasons I find that the appeal has no merit, it is therefore hereby dismissed. Costs to the Respondents.

58. Orders accordingly.

JUDGEMENT DATED AND SIGNED AT KISUMU, DELIVERED VIRTUALLY THIS 24TH APRIL, 2025 THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence of:Maureen: Court Assistant.Mwamu for the appellant.Olaha or the Respondents.