https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3226

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E020 OF 2023** **SABETI NALIAKA………………............................ APPELLANT** **VERSUS** **ELIZABETH HUMBER..................................1ST RESPONDENT** **MAUREEN BURETSE NZAKA......................2ND RESPONDENT** **ANTONY SHANGO…………….……………..……..3RD RESPONDENT** ***(Being an appeal against the judgment of Hon. R. S. KIPNGÉNO (PM) delivered on 5th September 2023 in BUTALI ELC Case No. E08 of 2020 as consolidated with ELC Case No E12 OF 2020)*** **JUDGMENT** **Introduction** 1. This appeal was filed by Sabeti Naliaka, challenging the judgment of Hon. R. S. KIPNGÉNO (PM) delivered on 5th September 2023 in BUTALI PM ELC Case No. E08 of 2020 as consolidated with ELC Case No E12 OF 2020. In the impugned judgment, the trial court cancelled the appellant’s title and ordered that the family of Webo Kisaka-deceased will have to take out letters of administration and all parties claiming from the estate be informed to participate in the estate. **Background** 1. By a plaint filed on 27th February 2020 and dated 26th February 2020, Sabeti Naliaka Webo sued Elizabeth Humber and Maureen Bureste Nzaka, alleging that she was the registered proprietor of land parcel No. Kakamega/Sirungai/111 (suit property) which she lawfully acquired from her father one Webo Kisaka alias Wepo Chisaka. She stated that the defendants had unlawfully encroached on the suit property. She sought the following orders; 2. **An order of permanent injunction** 3. **An eviction order against the defendants, their servants, agents and or anyone claiming under them and for vacant possession of the parcel of land No. Kakamega/Surungai/111 and the demolition of all structures erected thereon.** 4. **Costs of the suit and interest** 5. **Any other relief that this Honourable court may deem fit and just to grant.** 6. The defendants filed amended defence and counterclaim dated 1st July 2020, denying the plaintiff’s claim and seeking cancellation of her title. The defendants stated that the plaintiff obtained registration of the suit property by fraud alleging that she forged the land control board consent and transfer documents. Further that she caused the transfer of the suit property to herself without the knowledge of the defendants and the registered owner. That she colluded to transfer the land to herself knowing that the defendant’s husband and family were residing on the suit property. 7. On 12th March 2020, Antony Shiango Shibweche, sued Webo Kisaka and Sabeti Naliaka Webo in Butali ELC Case No. 12 of 2020 by way of plaint dated 11th March 2020. He stated that on 8th June 2004 he purchased from Webo Kisaka, two acres of land to be hived from land parcel No. Kakamega/ Sirungai/ 111 which belonged to and was registered in the name of Webo Kisaka, the father of Sabeti Naliaka Webo at a consideration of Kshs. 240, 000/=. That he had paid the entire consideration and taken possession of the sold portion. 8. That since 2004, he had been enjoying peaceful, quiet and notorious occupation of the suit property to the exclusion of everyone else until he learnt that the 2nd defendant had fraudulently transferred the suit property to herself in 2019 despite being aware that the plaintiff was in occupation. He accused the 2nd defendant of fraud as particularized in his defence and counterclaim above. He stated that the 2nd defendant cannot benefit from a fraudulent act and had sued the plaintiff’s wife in Butali ELC case No. E008 of 2020. 9. He sought the following orders; 10. **Cancellation of title issued to the 2nd defendant in respect of the suit property L.P Kakamega/ Surungai/ 111 and revert back to the 1st defendant** 11. **Specific performance on the agreement dated 8th June 2006 entered into between the plaintiff and the defendant** 12. **Costs** 13. **Interest** 14. **Any other reliefs this court deems fit to give in the foregoing circumstances.** 15. In a joint defence dated 28th May 2020, the defendants denied the plaintiff’s claim and stated that they were not privy to the sale agreement presented by the plaintiff. They denied allegations of fraud as well as the allegation of the plaintiff’s occupation. 16. They alleged that it was the plaintiff who had attempted to obtain the title to the suit property by fraud by forging the signature of Webo Kisaka on the sale agreement, transfer instrument and application for consent. They accused the plaintiff of abusing his power as a member of Kabras Land control Board. 17. They further averred that Elizabeth Humber moved into the suit property in 2014 on allegations that she was a purchaser of the suit property, which occupation was immediately resisted by the 1st defendant by way of complaints to the area Chief, which culminated in Butali ELC Case No. 8 of 2020. That the plaintiff’s suit was time barred, *sub judice* and that the sale agreement was unenforceable under the Law of Contract Act and the Matrimonial property Act. 18. In an application dated 11th June 2020, Antony Sibweche sought orders inter alia; to be joined to Butali ELC Case No. 8 of 2020 as an interested party; status quo in respect of the suit property and consolidation of Butali ELC case No. E008 of 2020 with Butali ELC Case No. E12 OF 2020. In a ruling dated 6th August 2020, the trial court consolidated the two suits as prayed. From the proceedings, it is apparent that ELC E008 of 2020 was the lead file. 19. Together with their pleadings, parties filed witness statements and list of documents in support of their respective cases. It is however important to note at this stage that Webo Kisaka, the previous registered owner of the suit property appears to have recorded one witness statement in favour of the plaintiff and another witness statement in favour of the defendants. He however died before the suit was heard. 20. The matter was heard by way of *viva voce* evidence. The plaintiff Sabeti Naliaka presented two witnesses while the defence presented three witnesses. **Plaintiff’s evidence** 1. PW1 was Sabeti Naliaka the plaintiff. She adopted her statement dated 26th February 2020 as her evidence in chief and produced documents filed. Her testimony was that she was the registered proprietor of the suit property and that the defendants had encroached thereon. She stated that her father never sold the suit property to the defendants. 2. On cross examination she denied the allegation that the suit property was sold to the defendant in 2004. She conceded that the suit property has houses belonging to the defendants and alleged that she saw the houses in 2014. She also stated that she was not at the suit property in 2014. That her father transferred the suit property to her in 2014 and she obtained title in 2019. That her father had eye problems. 3. She further stated that she had no minutes for the Land Control Board. She conceded that the transfer instrument she had produced was incomplete as it lacked her signature; some spaces were not duly filled; the same was not dated and did not have the Land Registrar’s endorsement. 4. PW2 was Jacob Burudi Lunani, the plaintiff’s cousin. His testimony was that his father Lunani Kisaka was a brother of Webo Kisaka. His testimony was that Webo Kisaka willingly transferred the suit property to PW1. That his father owned parcel North Kabras/ Silungai/112 and they are in the process of succeeding his estate. That his grandfather owned a parcel of land which was in 1973 subdivided into 5 portions for his father and uncles being North Kabras/ Silungai/ 110, 111, 112, 113 and 114 respectively. 5. The witness informed court that the occupation on the ground does not reflect registration because Reuben Imbiakha is on parcel No. 110 instead of No. 114 while Sikolia Kisaka is on parcel No. 114 instead of 110. That Webo Kisak ought to be on parcel No. 111 but occupied part of parcel No. 112. That his uncles agreed to have parcel No. 111 be used a pasture. That in 2014 he started seeing strangers on the suit property. That he learnt of a sale to the defendants because by then Webo Kisaka was occupying his land by mutual agreement. That they have filed a suit vide Butali E25 of 2020 seeking eviction of Webo Kisaka from their land. 6. He maintained that the suit property herein was fraudulently sold by Reuben Kisaka, his wife and son being Jelida Shanyisa and Kisaka Imbiakha respectively, who signed the agreement. That Webo Kisaka denies selling the suit property to the defendants and none of his wives or children witnessed the sale. That a signature in the sale agreement indicated as belonging to his father was a forgery because his father was not aware of the sale. 7. On cross examination, he stated that the suit property was sold in 2004. That he knows the 1st defendant well and that she had been in possession of the suit property for 19 years as her houses on the suit property were built in 2004. That the land was not sold by Webo but by another person and that Wepo had vision problems. That marked the close of the plaintiff’s case. **Defence evidence.** 1. DW1 was Antony Shango Shibweche. He adopted his statement dated 11th March 2020 as his evidence in chief and produced documents filed. His testimony was that Webo Kisaka sold him land in 2004 in a written agreement that was signed by 10 people. That on that date, he paid Khs. 200, 000/= and paid the balance of Kshs. 40, 000/= later. That Webo signed transfer and applied for land control board consent. That in 2019 he received a chief’s letter requiring his eviction. That he occupied the suit property in 2004, built a permanent house and drilled a borehole. That he has lived peacefully on the land for over 20 years. 2. That when Webo realized that the suit property had been registered in the plaintiff’s name, he made a report to the Directorate of Criminal Investigations. He stated further that the plaintiff obtained registration by fraud. 3. On cross examination, he maintained that he purchased the suit property from Webo Kisaka and that he knew Reuben Kisaka, Webo’s elder brother. That the sale was witnessed by family members. That Webo Kisaka signed the agreement but his wife or son did not. That 10 family members signed the agreement. That the Assistant Chief signed the sale agreement and that the balance of the consideration was cleared the following day. That Webo Kisaka died in 2018 and not 2021 as stated in the death certificate. 4. FurthertThat Webo died after this case had been filed and that he appeared in court once. That Webo did not deny selling land to him and he even made a report to the Directorate of Criminal Investigations. That Webo did not appear before the Land Control Board and that if he transferred the land to the plaintiff, he could not have reported to the Directorate of Criminal Investigations. That Webo did not surrender the title deed to him. 5. DW2 was Maureen Buretse Nzaka. Her testimony was that she lives on a portion of parcel No. 112 since 2018 as her husband has constructed a permanent house on the land upon purchase of land from Antony Shibweche, a cousin of her father in-law. 6. On cross examination, she stated that she got married to her husband Kennedy Nalwa in 2015. 7. DW3 was Shem Imbiakha, the plaintiff’s cousin and a son of Reuben Imbiakha. He stated that his father had sought his consent for sale of the suit property. That he was not present at the time of sale in 2004 and that his father had to avail Webo to facilitate the sale. 8. On cross examination, he stated that Webo reported the issue of plaintiff’s registration to the Directorate of Criminal Investigations. That it was his father Reuben Imbiakha who sold the land to Antony Shibweche. That his father relocated Webo to parcel No. 112. 9. The defence counsel prayed that the witness expected to testify in this matter had testified in Butali 25 of 2020, and sought orders that their evidence applies herein. The defence counsel then proceeded to close its case. No response to that application was recorded and the trial court did not address that prayer. It proceeded to fix the matter for mention for submissions. Both parties filed submissions 10. On consideration of the pleadings, evidence and submissions, the trial court pointed out that the Kisaka brothers agreed on registration of their respective parcels but latter adjusted the possession and use of the land allowing Reuben to have the suit property, although this arrangement was not formalized. 11. The trial court pointed out the ambiguity that arose from the death of Webo who had recorded witness statements for each party favourably but passed on before the matter was heard. It held that the transfer of the suit property to the plaintiff was meant to defeat the defendant’s interest who was in possession. Ultimately, the trial court cancelled the plaintiff’s title ordered that the family takes out letters of administration with involvement of all interested in the state. The court ordered each party to bear its own costs. 12. It is upon being aggrieved with the above judgment that the appellant challenged the trial court’s judgment vide a Memorandum of appeal dated 11th September 2023, citing the following grounds of appeal; 13. **The trial magistrate decision was against the weight of evidence.** 14. **The learned trial magistrate arrived at his decision by taking into consideration extraneous matters.** 15. **The trial magistrate completely failed to make a decision on the dispute before him and instead transferred the same to a court with no jurisdiction to entertain the dispute.** 16. **The trial magistrate's decision was not supported by evidence but conjecture.** 17. **The learned trial magistrate erred in law when he copy pasted his own judgment in a different case involving different parties and different cause of action.** 18. **The trial magistrate did not make any decision as against the 1st and 2nd respondents who were parties before him.** 19. **The learned trial magistrate properly raised the issues for determination but erred when he failed to answer or properly answer any of them, leading to an impasse.** 20. **The trial magistrate erred in law and fact when he over relied on the evidence of the current area chief who was an accomplice in the fraudulent sell of the suit land by one REUBEN IMBIAKHA KISAKA to the respondents, which he signed as a witness at the time when he was the area assistant chief and not chief as the trial magistrate wrongly understood.** 21. **That trial magistrate erred in law and fact in finding that there was a mutual consent of brothers to alter their occupation of their respective portions of land when no evidence was tendered in that regard.** 22. **The trial magistrate erred in law and fact in finding that there was a consent of the Land Control Board in favor of the respondents when the purported consent was not supported by minutes of the Board and was also attached to a Land Transfer Form dated 1904 which the Respondents purported to rely on.** 23. **The trial magistrate erred in law when he failed to make any finding on the import of the caution lodged on land parcel No. KAKAMEGA/SIRUNGAI/112 when that was a clear indicator of the existence of a dispute on the land.** 24. **The trial magistrate erred in law and in fact violated the constitution by discriminating against the appellants for having acquired registration of title from her father when she was a married woman.** 25. **The trial magistrate properly found that the appellant's father did not receive any consideration for the sale of his land by his brother but contradicted himself by purporting to sanitize a contract without consideration which is not enforceable in law.** 26. **The trial magistrate further contradicted himself in the same paragraph by stating it was impossible to cancel the defendants title to revert to the deceased father's name on the one hand and then proceeding to do exactly that impossibility.** 27. **The trial magistrates erred in law when he ignored the wishes of the deceased and purported to cancel the deceased's transaction of registering his land in the name of daughter, the appellant.** 28. **The trial magistrate erred in law and fact when he found that the appellant's father had fraudulently transferred land to her when no evidence in that regard was adduced to the required standard or at all.** 29. **The learned trial magistrate erred in law and fact when he completely misapplied the doctrines of equity and adverse possession.** 30. **The trial magistrate's decision was arrived at in a cursory and perfunctory manner and has occasioned a miscarriage of justice.** 31. **The trial magistrate's decision was clearly predetermined and thus indefensible.** 32. Consequently, the plaintiff sought the following orders; 33. **That this appeal be allowed.** 34. **That the trial Magistrates decision be set aside and or varied.** 35. **The appellant’s claim be allowed as prayed** 36. **The respondents to bear the costs of this appeal and those in the lower court.** 37. The appeal was disposed by way of written submissions. On record are undated submissions and supplementary submissions dated 22nd August 2025 filed by the appellant and those of the respondent dated 20th May 2025. **Appellant’s submissions** 1. Counsel for the appellant submitted that the trial court failed to consider the appellant’s claim as the court ignored her claim counsel argued that the trial court erred in dismissing the appellant’s claim for injunction, eviction and vacant possession, and in cancelling her title to Kakamega/Surungai/111. They contended that the suit property was initially registered in the name of the appellant’s father, Webo Kisaka, who acquired it through adjudication and remained the registered proprietor until 2019, when he voluntarily transferred it to her due to his advanced age and ill health. 2. It was contended for the appellant that the respondents’ claim was founded on a sale agreement allegedly dated 8th June 2004, but that the said agreement was fraudulent and incapable of conferring any interest in the suit property. That the person who purported to sell the land was Reuben Imbiakha Kisaka, the brother of Webo Kisaka, who was not the registered owner and had no proprietary interest capable of transfer. Counsel maintained that Webo Kisaka never sold the suit property to the respondents, and that the respondents’ own witnesses, including Shem Imbiakha, confirmed that it was Reuben Imbiakha who sold the land. 3. Counsel further submitted that the trial court failed to properly consider the evidence showing that Webo Kisaka refused to transfer the land to the respondents and also declined to testify in their favor. They argued that the respondents did not sue Reuben Imbiakha or his estate, despite their own evidence showing that he was the person who received the purchase price and purported to sell the land. 4. On the allegation of fraud, counsel submitted that no fraud was proved against the appellant or her late father. They contended that fraud is a serious allegation which must be specifically pleaded and strictly proved, and that the respondents did not tender cogent evidence capable of impeaching the appellant’s title. 5. Counsel maintained that the appellant produced a search certificate, Land Control Board consent, transfer documents, title deed and certified copy of the register showing that the transfer to the appellant was lawfully affected. 6. They argued that the court appeared to infer fraud merely from the fact that Webo Kisaka transferred the land to his daughter while he had a son, a finding which the appellant described as discriminatory and unconstitutional. They also submitted that Webo Kisaka signed documents by thumbprint, whereas the impugned sale agreement relied upon by the respondents bore a signature, thereby casting doubt on its authenticity. 7. Contention was further made for the appellant that the trial court failed to determine the appellant’s claim as pleaded, namely injunction, eviction, vacant possession and demolition of structures. Counsel argued that the trial Magistrate instead relied on extraneous matters, including proceedings and findings from a different file, and introduced issues of constructive trust and succession which were not pleaded or properly before the court. 8. Counsel also submitted that the order cancelling her title and reverting the land to the name of Webo Kisaka, deceased, did not resolve the dispute. In her view, the trial court merely transferred the matter to a Succession court, yet the respondents were neither beneficiaries nor creditors of the estate of Webo Kisaka and would have no proper standing in such proceedings. **Respondents’ submissions.** 1. Counsel for the respondents submitted that the dispute arose from a sale agreement dated 8th June 2004, under which the 3rd respondent purchased two acres out of Kakamega/Surungai/111 from Webo Kisaka for a consideration of Kshs. 240,000. That the purchase price was fully paid, that possession was taken in 2004, and that Webo Kisaka later failed or refused to transfer the purchased portion despite attending the Land Control Board and obtaining consent. 2. It was the respondents’ submission that the appellant’s title was obtained in 2019, long after the respondents had taken possession and developed or occupied the land, and thus the appellant could not credibly claim ignorance of the respondents’ occupation, since they had been on the land from 2004. Counsel therefore submitted that the appellant’s suit for eviction was an attempt to defeat the respondents’ purchaser’s interest after many years of occupation. 3. The respondents further submitted that the trial magistrate properly considered the circumstances surrounding the transfer of the suit property to the appellant. They supported the finding that it was suspicious for the land to have been transferred to the appellant in 2019 while the respondents were already in possession. They argued that the appellant failed to explain why strangers without any blood relationship to the family would have occupied the land since 2004 without objection. 4. The respondents differed with the appellant’s argument that fraud was not proved and argued that the trial court’s decision was consistent with the evidence and the applicable law. Consequently, they prayed that the appeal be dismissed with costs and the judgment by the trial court upheld. **Analysis and determination** 1. The court has carefully considered the appeal, the entire record and rival submissions. The duty of this court as a first appellate court is to reconsider the evidence presented before the trial court and make its own independent conclusions bearing in mind that it had no opportunity to see or hear witnesses and make due allowance for that. 2. In the case of **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR**, the court reiterated the duty of the first appellate court thus; **“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way…’’** 1. However, it is trite that an appellate court should not unnecessarily deviate from the finding of the lower court unless there are compelling reasons to do so. In ***Peters v Sunday Post Ltd*** [1958] EA 424, the Court held that; **“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide”** 1. In the instant case, the appellant’s complaints are that; the trial court failed to address the issues raise; addressed non issues; was biased against the appellant; raised the issue of constructive trust when it never arose; that the judgment was contradictory on whether cancellation of appellant’s title was an available relief and that the court was wrong in transferring the dispute to a succession court when it had no jurisdiction to do so. Further that the respondent’s agreement of 2004 was time barred and could not be enforced. 2. It is important to note that the appellant sued and sought reliefs against Elizabeth Humber and Maureen Nzaka. On the other hand, the 3rd respondent sued and sought reliefs against Webo Kisaka and Sabeti Naliaka Webo. The relief sought by the 3rd respondent in regard to Webo Kisaka was specific performance. Webo Kisaka died before the dispute in the lower court was heard. There was no substitution in regard to the estate of Webo Kisaka and no amendment to the 3rd defendant’s pleadings were made. The parties simply proceeded with the matter. 3. In essence therefore, the 3rd respondent’s claim as against Webo Kisaka abated leaving the prayer for cancellation of the appellant’s title and reversion of the same to the estate of Webo Kisaka. While the appellant complained that the dispute remained unresolved, a fact which this court agrees with, it cannot be denied that at the core of the dispute was Webo Kisaka’s conduct, yet none of the parties was willing to cause the substitution of his estate in the matter. 4. From the pleadings filed, it is clear that the appellant’s accused the respondents of unauthorized encroachment and attempted fraud on the part of the 3rd responded regarding the sale agreement, transfer instrument and application for consent, insisting that Webo Kisaka did not sign the said documents. 5. On the other hand, the respondent argued that the 3rd respondent purchased the suit property from Webo Kisaka in 2004, entered the said property the same year and has been on the property to date, only being threatened with eviction in 2019 after the appellant obtained title. The fact that the 3rd respondent and his family had been on the suit property openly, as of right and adversely without interruption since 2004, was confirmed by the evidence of PW2. Hence the appellant’s position that entry was in 2014 is not correct. 6. However, the 3rd respondent’s claim whether on the basis of long occupation (under the doctrine of adverse possession) and or specific performance could only be made as against Webo Kisaka, or his estate, but that claim abated. 7. The appellant’s claim for eviction against the respondents before the lower court, was predicated on her registration as proprietor of the suit property. 8. Section 26 of the Land Registration Act provide for conclusiveness of title as follows; **“Certificate of title to be held as conclusive evidence of proprietorship** **(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 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—** **(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.”** 1. Therefore, registration of land vests in the owner indefeasible rights unless it is shown that the same was acquired through fraud, misrepresentation, want of proper procedure, illegality or corruption. 2. In the case of **Dina Management Limited v County Government of Mombasa & 5 Others [2023] e KLR**, the Supreme court of Kenya held that a defence of *bona fide* purchase for value without notice of defect in title, cannot legitimize a title obtained unlawfully. 3. Similarly, in the case of **Arthi Highway Developers Limited v West End Butchery Limited & 6 Others** **[2015] e KLR** the court held that where title is unlawfully obtained, the same is invalid. 4. In the instant case, the respondents pleaded that the appellant’s registration of the suit property was anchored on fraud. 5. It is trite that fraud ought to be specifically pleaded and strictly proved on a standard higher than the standard of proof required in ordinary civil cases although lower than the standard required in criminal cases of beyond reasonable doubt. (See **Kinyanjui Kamau v George Kamau [2015] e KLR**) 6. On whether the appellant acquired the suit property through fraud, the respondents pleaded particulars of fraud to include; causing the transfer of the suit property into the appellant’s name without the respondents’ knowledge or the knowledge of the registered proprietor; forging land control board consent and transfer documents; and transferring the suit property to herself in 2019 well aware that the respondents had been in possession since 2004. 7. The fact that the respondents have been in occupation of the suit property since 2004 was confirmed by PW2. The appellant did not deny, not informing the respondents who were in occupation of the suit property, that she intended to have the same transferred to herself. Between 2004 and 2019 when the suit property was transferred to the appellant, is a period of 15 years. 8. The appellant’s averment that the respondents’ entry on the suit property was in 2014 was not true and there was no explanation given why the registered proprietor then did not take action against the respondents in those 15 years. Therefore, at the time of transfer of the suit property to the appellant, the registered proprietor was transferring property that he was not in possession and whose vacant possession he was not able to grant to the transferee. A transfer that only transfers title, without vesting possession in the transferee cannot be said to be procedural and lawful as the same is incomplete. 9. While the appellant maintained that Webo Kisaka did not sell or intend to transfer the suit property to the 3rd respondent, Webo Kisaka, recorded a statement in favour of the 3rd respondent dated 11th June 2020 wherein he stated that he agreed to transfer the suit property to the 3rd respondent as he had been relocated to parcel No. 112. He also stated that the appellant transferred the suit property to her name without his consent. On the other hand, the said Webo Kisaka signed a witness statement in favour of the appellant denying selling the suit property to the 3rd respondent. 10. The said Webo Kisaka was a party to the suit in the lower court, and with his double speak on record, no further document or affidavit was filed by him denying the contents of his witness statement in favour of the 3rd respondent. While a witness statement without the owner’s testimony is not evidence, the double speak on the part of Webo Kisaka shows that the appellant failed to demonstrate that the transfer of the suit property to her name was done with the knowledge of the registered proprietor. 11. On whether the transfer was shown to be lawful, the respondents denied there being a transfer executed between Webo Kiska and the appellant. In her evidence, the appellant did not produce a duly executed transfer instrument registered at the lands office or application for consent. 12. The transfer document produced by the appellant was not dated, was partially executed and was incomplete in all material aspects. Nothing thereon showed that the same was ever presented at the lands office or registered. Therefore, no valid transfer instrument was presented in evidence by the appellant and the consent from the land control board had no supportive application for consent duly signed by Webo Kisaka. Thus, the appellant’s title does not have supportive documents. 13. For the above reasons therefore, the appellant did not demonstrate lawful and procedural acquisition of title from Webo Kisaka and hence the same was properly cancelled by the trail court. 14. As the suit against Webo Kisaka abated, no further relief could be granted to the respondents. 15. The trial court being a duly constituted Environment and Land court, had no jurisdiction to order that Succession proceedings be filed and who should be involved. 16. In the premises, I set aside the judgment of the trial court only to the extent that the order that the family of the deceased shall take out letters of administration and all the parties claiming from the estate be informed to participate in the estate is hereby set aside. For avoidance of doubt, the order of the trial court cancelling the appellant’s title and reverting it in the name of Webo Kisaka (deceased) is upheld and stands. 17. I order that each party shall bear its own costs of this appeal. 18. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 20TH DAY OF MAY, 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Mr. Shilisia holding brief for Mr. Munyendo for the appellant No appearance for the respondent Court Assistant- Delphine