https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4794

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC LAND APPEAL NO. E016 OF 2023** **SAID JUMA OMAR………….…...………….….….. APPELLANT** **VERSUS** **ANNE NANZALA SHITABULE.…………….….1ST RESPONDENT** **JACKSON WANGA SHITABULE .……………2ND RESPONDENT** **BENSON KWEYU .………………………….…..…3RD RESPONDENT** **ANDREW MUSUNGU BARASA .………….……4TH RESPONDENT** ***(Being an appeal against the judgment and orders made by Hon. T.A Obutu, SPM on 20th July 2023 in Mumias CMC ELC Case No. 128 of 2015)*** **JUDGMENT** **Introduction** 1. This appeal arises from the judgment of Hon. T.A. Obutu (Senior Principal Magistrate) delivered on 20th July 2023 in Mumias ELC Case No. 128 of 2015. In the impugned judgment, the learned trial Magistrate found that the plaintiff (1st respondent herein) had proved that the suit property, being a portion measuring approximately 25 x 100 feet excised from Land Parcel No. East Wanga/Lubinu/3976, (suit property) constituted matrimonial property acquired and developed jointly by herself and the 2nd respondent herein during their marriage. The court further held that although the property was registered in the name of the 2nd respondent, he could not lawfully dispose of it without the involvement and consent of the 1st respondent. 2. Consequently, the trial court entered judgment in favor of the plaintiff, ordered the cancellation of the subdivision resulting in parcels known as East Wanga/Lubinu/4417 and East Wanga/Lubinu/4418 and directed the relevant parties to process and transfer the suit portion to the plaintiff. An eviction order was issued against the 3rd defendant and an order of permanent injunction was granted restraining the defendants from interfering with the 1st respondent’s occupation and enjoyment of the property, and costs of the suit awarded against the 2nd, 3rd and 4th defendants jointly and severally. 3. The 3rd defendant, being dissatisfied with both the judgment and the consequential orders of the trial court, lodged the present appeal. **Background** 1. By a plaint dated 27th August 2015 and subsequently amended on 1st March 2021, the plaintiff, Anne Nanzala Shitabule, instituted the suit against the defendants in the trial court. She pleaded that the 1st defendant was her husband with whom she had purchased Land Parcel No. E. WANGA/LUBINU/3976, measuring 1/8 of an acre. That the 4th defendant was the registered owner of the suit parcel, a portion of it which he had held in trust for the 2nd defendant, Benson Kweyu, his brother, who subsequently sold his portion to the plaintiff. 2. Further that despite her occupation and development of the portion purchased by her, Jackson Wanga Shitabule and Andrew Musungu Barasa failed to facilitate the processing of title documents in her favor. That instead, the original parcel was subdivided into East Wanga/Lubinu/4417 and East Wanga/Lubinu/4418, and East Wanga/Lubinu/4418 was transferred to Said Juma Omar, the 3rd defendant. She contended that the subdivision and transfer were undertaken without her knowledge or consent, and in disregard of her proprietary interest in the suit property. 3. The plaintiff also averred that Said Juma Omar issued notices to her tenants requiring them to vacate the suit property and laid claim to the portion that she occupied and had developed. She particularized fraud against the defendants as including the secret subdivision of Land Parcel No. East Wanga/Lubinu/3976 into East Wanga/Lubinu/4417 and East Wanga/Lubinu/4418 without her knowledge or consent; purporting to dispose of her portion without authority; falsely claiming ownership from purchasing the plaintiff’s portion thereof from the 1st defendant; and procuring registration and transfer of the property through unlawful means. 4. The 1st defendant filed an amended statement of defence dated 10th August 2022, where he admitted that the plaintiff was his wife and that she had purchased, occupied and developed the suit property. He stated that he had not hindered the transfer of title to the plaintiff and further that he had not sold the suit property to any person. That he was a psychiatric patient suffering from dementia and mental infirmity and was therefore incapable of carrying out legal transactions or protecting his interests. 5. He denied any involvement in the subdivision of Land Parcel No. East Wanga/Lubinu/3976 into East Wanga/Lubinu/4417 and East Wanga/Lubinu/4418 or in the creation of the resultant titles. He maintained that he was not party to any of the alleged fraudulent dealings pleaded against his co-defendants and expressly conceded to the plaintiff's claim seeking nullification of the subdivision, registration and transfer of the resultant parcels and cancellation of the titles issued thereunder. 6. The 2nd defendant, Benson Kweyu, opposed the plaint by filing an amended defence dated 25th October 2022 where he stated that the 4th defendant was his brother, and that they owned ancestral land known as East Wanga/Lubinu/3976, measuring approximately 50 by 100 feet. That due to financial constraints, he sold his portion measuring 25 by 100 feet to the 1st defendant, Jackson Wanga Shitabule at a consideration of Kshs. 20,000/- pursuant to a sale agreement dated 22nd January 1998. That he only transacted with the 1st defendant and not with the plaintiff and denied having sold the suit parcel directly to the plaintiff. He further denied knowledge of any dealings between the 1st defendant and the 3rd defendant, and prayed that the suit be dismissed with costs. 7. The 3rd defendant also filed an amended defence filed in court on 26th October 2022 and stated that he was working as a manager or employee of the person who had been commissioned ownership of the parcel known as East Wanga/Lubinu/3976 by the 1st defendant. That if he issued notices to tenants, he did so in his capacity as an employee of the 1st defendant and not as a proprietor in his own right. That the land ancestrally belonged to the 2nd and 4th defendants, who later subdivided it, whereafter the 2nd defendant sold his portion to the 1st defendant for Kshs. 20,000/= vide a sale agreement dated 22nd January 1998. He further stated that the 1st defendant subsequently sold his parcel to the 3rd defendant’s father, Omar Makokha Juma, for Kshs. 1,000,000/= under a sale agreement dated 17th May 2015. 8. The 4th defendant, Andrew Musungu Barasa, also opposed the plaint by filing an amended statement of defence dated 25th October 2022 and admitted that he was the registered proprietor of Land Parcel No. East Wanga/Lubinu/3976 and that he held the same in trust for the 2nd defendant, Benson Kweyu. That the parcel had been subdivided equally between himself and the 2nd defendant, each obtaining a portion measuring 25 by 100 feet. 9. He stated that due to financial constraints, the 2nd defendant sold his portion to the 1st defendant for Kshs. 20,000/-pursuant to a sale agreement dated 22nd January 1998. He denied having any dealings with the plaintiff and described her as a stranger to him and contended that the dispute was essentially a family matter between the plaintiff and the 1st defendant, who was the plaintiff’s husband, and that he had been wrongly joined to the trial proceedings. 10. The plaintiff filed a reply dated 14th November 2022, in response to the 2nd, 3rd and 4th defendants’ defences. She reaffirmed the contents of her amended plaint and affirmed contents of the 1st defendant’s amended defence. She disputed the 2nd defendant’s contention that the suit property was ancestral land and maintained that he had participated in the transactions concerning the suit property together with the other defendants. She denied the 3rd defendant’s claim that the 1st defendant had sold the suit property to Omar Makokha Juma, contending that the 1st defendant lacked the capacity to undertake such a transaction. 11. The plaintiff asserted that the 3rd defendant was well known to her and to the other defendants and was aware of her occupation and interest in the suit property. She further denied the 4th defendant’s defence that he was a stranger to the dispute, maintaining that he had actively participated in the impugned transactions. 12. Similarly, the 1st defendant filed a reply dated 7th November 2022 in response to the defence filed by the 2nd, 3rd, and 4th defendants. He maintained that the plaintiff had purchased, occupied and developed the suit property. He denied the assertions by the 3rd defendant that the suit property or any portion thereof had been sold to Omar Makokha Juma pursuant to an agreement dated 17th May 2015 for Kshs. 1,000,000/=. 13. The suit proceeded to hearing through *viva voce* evidence. The plaintiff called two witnesses in support of her case. Each of the defendants called one witness in support of their cases. **Plaintiffs’ evidence.** 1. PW1, Joseph Opwora Muhaine, testified that he was a neighbor to the parties. He adopted his witness statement dated 15th March 2021 as his evidence in chief and stated that the plaintiff purchased the suit property from the 2nd defendant, Benson Kweyu, and developed it. He stated that the plaintiff and her husband, the 1st defendant, lived on and developed the property, and that the plaintiff carried out her businesses thereon. 2. On cross-examination, PW1 stated the that he knew the plaintiff’s husband and that he was unwell. He maintained that it was the plaintiff who purchased the parcel from Benson Kweyu and that Jackson Wanga had no capacity to buy or sell land. He further stated that the plaintiff had taken care of Jackson since he suffered from mental health problems. He conceded that he did not witness the sale agreement and did not know the parcel number, but reiterated in re-examination that the plaintiff purchased the land, built a house on it, lived thereon and carried on business there. 3. PW2 was the plaintiff, Anne Nanzala Shitabule. She adopted her statement dated 15th March 2021 and produced her documents as exhibits. She testified that she purchased the plot from Benson Kweyu many years earlier for Kshs. 25,000/= and developed it by constructing a shop with two shop spaces and rental houses at the back. She stated that the property was registered in her husband’s name because she had given him the purchase money, he being her husband and the head of the family. 4. On cross-examination, PW2 stated that it was the appellant, Said Juma Omar, who chased her from the property claiming to have purchased it. She maintained that Jackson Wanga did not sell the land because he was unwell and lacked capacity to sell. She admitted that she did not have the original sale agreement, explaining that her husband had the documents but they were lost after he fell ill. That by the time of the alleged sale to Omar in 2015, her husband was already mentally unwell. That marked the close of the plaintiff’s case. **1st defendant’s evidence** 1. DW1 was Samuel Nanjira Echipuni, the guardian ad litem of the 1st defendant, Jackson Wanga Shitabule. He adopted his witness statement dated 30th August 2022 as his evidence in chief and testified that the plaintiff purchased a portion of Land Parcel No. East Wanga/Lubinu/3976 from the 2nd defendant, while the land was still registered in the name of the 4th defendant, who held it in trust for the 2nd defendant. That the plaintiff took possession of the land, developed it and commenced business thereon. That the 2nd and 4th defendants failed to facilitate transfer of title to the plaintiff and instead subdivided the land into East Wanga/Lubinu/4417 and East Wanga/Lubinu/4418, transferring the portion occupied by the plaintiff to the 3rd defendant. He maintained that Jackson Wanga Shitabule suffered from dementia and mental infirmity, lacked capacity to transact in land, and was not involved in the subdivision or transfer of the suit property. 2. On cross-examination, DW1 stated that Jackson Wanga was his brother and neighbor and that the plaintiff was Jackson's wife. That the plaintiff purchased the land from Benson Kweyu and that she and Jackson took possession and developed it. That Jackson had been suffering from mental illness since 2014 and had never sold the land to anyone. **2nd defendant’s evidence** 1. DW1 was Benson Kweyu, the 2nd defendant. He testified that he was a farmer from Lubinu Lushea and that he sold a parcel of land measuring 25 by 100 feet to Jackson Wanga Shitabule on 22nd January 1998 for Kshs. 20,000/=. On cross-examination, he confirmed that he knew the plaintiff as Jackson’s wife, but maintained that he sold the land to Jackson and not to the plaintiff. He stated that Jackson developed the parcel and carried on business thereon until he later sold it. He further stated that he had authorized Jackson to process his title number, but had not filed transfer documents and did not know whether Jackson later became unwell. **3rd defendant’s evidence** 1. DW1 was Said Juma Omar, the 3rd defendant. He adopted his witness statement dated 21st October 2022 as his evidence in chief and stated that he did not know the plaintiff and had no relationship with her. That Jackson Wanga Shitabule sold the suit property to his father, Omar Juma Makokha, and that he was only acting on his father's instructions when he served notices upon the tenants occupying the property. He produced a copy of the title for East Wanga/Lubinu/4418 in the name of Omar Makokha Juma and a letter dated 22nd January 1998 in support of his case. On cross-examination, he stated that he knew Jackson Wanga Shitabule but did not know the plaintiff. **4th defendant’s evidence** 1. DW1 was Andrew Musungu Barasa, the 4th defendant. He testified that his brother, the 2nd defendant, sold a portion of land to Jackson Wanga Shitabule and that he merely provided the title to facilitate the transaction. On cross-examination, he stated that following the subdivision, they sold the land to Jackson Wanga Shitabule, who thereafter developed it. That they were supposed to process title documents in respect of the land and confirmed that he had known Jackson Wanga Shitabule from the time he purchased the property. He however stated that he was unaware of any subsequent sale of the land by Jackson Wanga Shitabule to other persons. In further cross-examination, he stated that Said Juma Omar was his neighbor and that he purchased land from Jackson Wanga Shitabule. 2. Upon considering the pleadings, evidence and submissions, the learned trial magistrate held that the plaintiff had purchased the disputed portion from the 2nd defendant, taken possession and developed it. The court further found that the subsequent subdivision of East Wanga/Lubinu/3976 into East Wanga/Lubinu/4417 and 4418, and the transfer of East Wanga/Lubinu/4418 to the appellant, defeated the plaintiff’s interest. The court therefore cancelled the subdivision and resultant titles, ordered processing of the plaintiff’s portion, issued a permanent injunction, and awarded costs against the 2nd , 3rd and 4th defendants. 3. Aggrieved by the trial court’s decision, the appellant lodged the present appeal vide an amended memorandum of appeal dated 6th February 2024, citing the following grounds of appeal: 4. **THAT the learned trial magistrate erred in law and fact by wrongfully evaluating the evidence on record hence coming to a wrong conclusion.** 5. **THAT the learned trial magistrate erred in law and fact by not considering the evidence on record, and specifically the fact that the appellant had wrongfully been sued.** 6. **THAT the learned trial magistrate erred in law and fact by ordering the eviction of the appellant yet he was not in occupation of the suit land.** 7. **THAT the learned trial magistrate erred in law and fact by ordering that the 2nd and 3rd defendants process the suit property to give the plaintiff her portion, when the 3rd defendant is not the proprietor of the said parcel of land.** 8. **THAT the learned magistrate erred in law and fact by ordering that the costs of the suit be borne by the 2nd, 3rd and 4th defendants.** 9. Consequently, the appellant prayed that: 10. **The appeal be allowed** 11. **The judgment and the consequential decree made on 20th July, 2023 be set aside and 3rd defendant be struck off from the suit herein.** 12. **The respondents do bear the costs of this appeal and of the trial court.** 13. The appeal was canvassed by way of written submissions. On record are submissions dated 13th September 2024 filed by the appellant, submissions dated 14th October 2024 filed by the 1st respondent, and submissions dated 18th September 2025 filed by the 2nd respondent; all of which this court has duly considered. At the time of writing this judgment, no submissions have been filed by the 3rd and 4th respondents in the court file, nor on the CTS. **Appellant’s submissions.** 1. Counsel for the appellant submitted that the evidence tendered before the trial court clearly demonstrated that the appellant was not the proprietor of Land Parcel No. East Wanga/Lubinu/3976 and therefore ought not to have been held liable in respect of the suit property. That the evidence on record showed that the appellant’s late father, Omar Makokha Juma, was the purchaser and registered proprietor of the land resulting from the subdivision of East Wanga/Lubinu/3976 into East Wanga/Lubinu/4417 and East Wanga/Lubinu/4418. It was contended that the title produced before the trial court established that the suit property was registered in the name of Omar Makokha Juma and not in the name of the appellant. 2. It was contended for the appellant that pursuant to **section 26 of the Land Registration Act**, a certificate of title constitutes *prima* *facie* evidence that the person named therein is the absolute and indefeasible owner of the land, subject only to the exceptions provided by law. That since the title document produced in evidence reflected Omar Makokha Juma as the registered proprietor, the trial court erred in imposing liability upon the appellant who was neither the registered owner nor a party to the alleged transactions concerning the suit property. 3. Counsel further relied on **Order 1 Rule 10 of the Civil Procedure Rules** and submitted that the appellant had been improperly joined to the proceedings. It was argued that where a wrong party has been sued, the court is empowered to strike out such party and substitute the proper party where necessary for the effectual and complete adjudication of the dispute. Counsel argued that the 1st respondent had an opportunity to substitute the appellant with the proper party but failed to do so, thereby rendering the proceedings against the appellant unsustainable. In support of the foregoing submissions, counsel relied on the decisions **in Zephic Holdings Limited v Mimosa Plantations Limited**, **Jeremiah Matagaro & Ezekiel Misango Mutisya [2014] eKLR** **and J.N. & 5 Others v Board of Management, St. G School Nairobi & Another [2017] eKLR**, for the proposition that misjoinder or non-joinder of parties may go to the root of a suit and that proceedings against a party improperly before the court ought not to be sustained. 4. On the issue of costs, counsel invoked **section 27 of the Civil Procedure** **Act** and submitted that costs follow the event unless the court, for good reason, orders otherwise. Consequently, counsel urged the court to allow the appeal, set aside the judgment of the trial court, strike out the appellant from the suit, and award the costs of both the appeal and the proceedings before the trial court to the appellant. **1st respondent’s submissions.** 1. Counsel for the 1st respondent opposed the appeal and submitted that the appellant had actively participated in the proceedings before the trial court as a properly sued party and had never raised the issue of being wrongly joined in the suit. Counsel argued that throughout the trial, the appellant defended the claim on the basis that he acted as a manager or employee of another person alleged to own the suit property, yet he failed to identify that person with certainty. It was further submitted that the appellant was the person who issued notices to the 1st respondent’s tenants, participated in the impugned transactions, and remained in occupation of the disputed property. Counsel therefore maintained that the appellant was properly joined in the proceedings and could not evade responsibility by alleging that the property belonged to his father. 2. They argued that during the hearing before the trial court, the appellant testified both in his own defence and in support of the alleged interests of his father, Omar Makokha Juma. It was contended that the appellant admitted that the 2nd respondent had sold the suit property to him and that he had issued notices requiring the 1st respondent and her tenants to vacate the premises. According to counsel, these admissions demonstrated the appellant’s direct involvement in the dispute and justified his inclusion as a defendant in the suit. 3. In the alternative, counsel submitted that even if this court were to find that the appellant had been wrongly sued, the interests of justice would not be served by setting aside the judgment and striking him out of the proceedings. Counsel urged the Court instead to order a retrial or the joinder of any other party deemed necessary for the effectual determination of the dispute, relying on **Article 159(2)(d) and (e) of the Constitution** and **Order 1 Rule 3 of the Civil Procedure Rules**. That the dispute should be determined on its merits rather than defeated on procedural grounds. 4. Reliance was placed on **Order 1 Rules 7 and 9 of the Civil Procedure Rules** and submitted that a plaintiff is entitled to join all persons from whom relief may be sought and that no suit should be defeated merely on account of misjoinder or non-joinder of parties. That the appellant, together with the 2nd and 4th respondents, played a central role in depriving the 1st respondent of her developed portion of land and her source of livelihood. Consequently, counsel prayed for the court to dismiss the appeal and uphold the judgment of the trial court. In the alternative, counsel contended that should the court find merit in the appeal, counsel prayed that the matter be remitted for retrial or that any necessary party be joined. **2nd respondent’s submissions** 1. Counsel for the 2nd respondent submitted that the appeal was incurably defective for failure to include a certified copy of the decree appealed from in the record of appeal in accordance **with section 65(1)(b) of the Civil Procedure Act** andthe decision in ***Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2015] eKLR***, counsel argued that omission of a mandatory document from the record renders an appeal incompetent and deprives the appellate court of jurisdiction to determine it. 2. On the merits, counsel submitted that the evidence before the trial court established that the 1st respondent purchased the suit property from the 3rd respondent and had the same registered in the name of her husband, the 2nd respondent. That both the 1st respondent and PW1 testified that they developed the property and carried on business thereon until the appellant issued notices to the tenants and sought to take possession of the land. It was submitted that the appellant’s claim of ownership was unsupported and was contradicted by the evidence of the respondents. 3. Counsel further submitted that the evidence on record showed that the 2nd respondent suffered from a mental condition diagnosed as dementia/Alzheimer’s disease and had been mentally incapacitated since 2014 and that any purported agreements or transactions allegedly entered into by the 2nd respondent in 2015 in favor of Omar Makokha Juma or the appellant were null, void and incapable of conferring any proprietary rights, as the 2nd respondent lacked the legal capacity to transact. 4. It was maintained for the 2nd respondent that the suit property constituted matrimonial property of the 1st and 2nd respondents and that no valid disposition thereof could occur without the consent of the 1st respondent. It was argued that no such consent was ever sought or obtained and that the evidence before the trial court demonstrated that the appellant was the person who had issued notices to the tenants and was in occupation of the suit property. Counsel maintained that the appellant was therefore properly joined in the proceedings and that the trial magistrate correctly found in favor of the respondents. 5. On the complaint regarding misjoinder, counsel relied on **Zephir Holdings Limited v Mimosa Plantations Limited, Jeremiah Matagaro & Ezekiel Misango Mutisya [2014] eKLR** and **Order 1 Rule 9 of the Civil Procedure Rules**, submitting that a suit cannot be defeated by reason of misjoinder or non-joinder of parties. Counsel further invoked **Articles 50(1) and 159(2)(d) of the Constitution** and urged the Court to determine the dispute on its substantive merits and prayed that the appeal be dismissed with costs. **Analysis and determination.** 1. The court has carefully considered the appeal, rival submissions and the entire record. The duty of this court as a first appellate court is to reconsider the evidence presented in 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-analyse 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. It is trite that the 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. Having considered the appeal, the issue raised is whether the trial court was wrong in allowing the 1st respondent’s claim and making orders against the appellant. 2. The 1st respondent’s claim before the lower court was that she purchased land measuring 25 feet by 100 feet from the 3rd respondent who owned part of the land registered in the name of the 4th respondent. That the agreement was written in the name of her husband the 2nd respondent by virtue of their marriage. The fact that the 1st respondent was the owner of the suit property was confirmed by the 2nd respondent. The suit before the lower court was provoked by a notice issued by the appellant on 1st June 2015, to the plaintiff’s tenants asking them to vacate the suit property. That notice stated that the new owner of the suit property was Prince Palace Resort. 3. When the 1st respondent filed the suit in the lower court on 28th August 2015, parcel No. E. Wanga/Lubinu/3976 was still registered in the name of the 4th respondent. In his defence dated 5th October 2015, the appellant was evasive on the alleged new owner only referring to him as “the other party” arguing that he was the employee of the other party. 4. Article 40 (6) of the Constitution of Kenya only protects the right to acquire and own property in respect of property that is lawfully acquired. 5. Section 26 of the Land Registration Act provide for indefeasibility 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. In view of the above provision, it means that registration of land vests in the proprietor thereof absolute and indefeasible rights unless there is proof that the acquisition of the said title was by fraud, misrepresentation, illegality, want of procedure or corruption. 2. In the case of **Dina Management Limited v County Government of Mombasa & 5 Others (Petition 8 (010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment),** the Supreme court of Kenya held that a title obtained unlawfully cannot confer lawful ownership. 3. The 1st respondent’s case in the amended plaint was that the 4th respondent held a portion of parcel No. E. Wanga/Lubinu/3976 in trust for the 1st respondent who had purchased and was in occupation and that the subdivision of the same into parcel Nos. 4417 and 4418 was fraudulent. 4. Proceedings herein show that the person said to be the registered proprietor of parcel E Wanga/Lubinu/ 4418 was one Omar Makokha Juma. That person was joined to the proceedings in the lower courtand summoned for violation of an injunction granted by the court. The firm of Namatsi and company advocates filed notice of appointment for Omar Makokha Juma who was joined as interested party. This party although joined to these proceedings never filed any pleadings nor sought to protect his alleged interests in respect to parcel No. 4418. Even at the hearing, the sale agreement in his name was not produced by the appellant. In short, Omar Makokha the interested party did not contest the 1st respondent’s assertions that the subdivision of parcel No. E.Wanga Lubinu/3976 and transfer of parcel No. E. Wanga/Lubinu/4418 into his name was fraudulent. 5. It is trite that where fraud is alleged, the same ought to be specifically pleaded and strictly proved. The standard of proof of fraud is slightly higher than the standard required in ordinary civil cases of the balance of probability, but slightly below the standard of proof in criminal cases of beyond reasonable doubt. In **Kinyanjui Kamau –vs****George Kamau [2015] e KLR,** the court held as follows; - **“…it is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo –vs- Ndolo [2008]1 KLR (G & F) 742 wherein the court stated that: “…we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the****Respondent was certainly not one beyond a reasonable doubt as****in Criminal Cases…”** 1. In the instant case, the subdivision of parcel No. 3976 and transfer of parcel No. 4418 into the name of the interested party was done on 6th October 2015. That means that it violated the doctrine of *lis pendens* as the 1st respondent’s suit was already pending and the appellant was already aware of the suit and had even responded to the same. In cross examination, the appellant conceded to have been the one who allegedly purchased the suit property from the 2nd respondent. The 3rd and 4th respondents confirmed transacting with the appellant and not any other person or his father as alleged. 2. It is therefore clear to me that the registration of the suit property in the name of the interested party was through the fraudulent actions of the appellant. No sale agreement and or payment of consideration was demonstrated by the appellant whose position was that his employer had purchased the suit property. Besides, the appellant kept changing his position on who the purchaser was by stating that he was “the other party”, his employer, Prince Palace Resort, his father and finally himself. The appellant paints a picture of a man who is deliberately economical with the truth. 3. No sale agreement was produced to show that parcel No. 4418 was indeed purchased by the 3rd party and or the appellant and no payment of consideration was demonstrated. In addition, the fact that the 2nd respondent had been incapacitated due to illness was not disputed as the High court had issued a guardianship order. As the property belonged to the 1st respondent who was also in possession, the sale thereof could only be done by her or under her authority. No such authority was demonstrated. In the premises, I find and hold that the subdivision of parcel No. 3976 into parcel Nos. 4417 and 4418 was unlawful and fraudulent. 4. I have considered the impugned judgment. The trial court held that the suit property was matrimonial property and that it was also purchased by the 1st respondent. There is nowhere in the amended plaint pointing to the possibility that the 1st respondent’s claim as framed was a matrimonial property claim. The 1st respondent claimed the suit property as the owner thereof, on the basis of having purchased it from the 3rd respondent. On that basis, the trial court was wrong in concluding that the same constituted matrimonial property. 5. The trial court properly found that the 1st respondent purchased the suit property measuring 25 feet by 100 feet from the 3rd respondent who owned part of parcel No. 3976. That the 1st respondent being the wife of the 2nd respondent, which fact was not disputed had transactions in regard to the suit property done by the 2nd respondent. However, the 2nd respondent became unwell and is unable to comprehend himself. That she took possession, and later was chased away by the appellant who claimed to have purchased the same. 6. Therefore, the appellant’s argument that he was wrongly joined to the suit is misplaced because he is the one who issued notices and evicted the 1st respondent’s tenants. He is the one who stated that he was acting as employee of “the other party.” He never contested his joinder in the suit before the trial court and in view of the fact that he orchestrated the unlawful and fraudulent subdivision of the suit property, I find and hold that he was properly sued, being a necessary party for the effectual determination of all matters in dispute. 7. The fact that the appellant took possession and had taken control of the suit property was demonstrated in evidence and therefore the trial court was right in ordering his eviction from the suit property. The trial court rightly ordered cancellation of the subdivision of parcel No. 3976. Therefore, the appellant cannot argue that he had nothing to do with the suit property on one hand while he denies the 1st respondent access and use of the same. 8. Regarding the second order by the trial court, compelling the 2nd and 3rd defendants to process fresh subdivisions for purposes of giving the plaintiff her portion, the prayer made by the 1st respondent in the amended plaint was against the 2nd and 4th defendants. Once the new titles are cancelled, the 3rd defendant (appellant herein) will not have anything to do with the suit property. It is clear to me that the indication of 3rd defendant instead of 4th defendant in the judgment was a typographical error subject to correction by the trial court *suo moto* pursuant to the provisions of section 99 of the Civil Procedure Act, and not deserving an appeal. 9. In the premises, I find no justification to interfere with the orders made by the trial court, save that order no. (b) of the judgment shall be corrected so that the words “3rd defendant” is substituted with the words “4th defendant.” 10. The upshot is that I find no merit in this appeal, which I hereby dismiss with costs. 11. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 15TH DAY OF JULY 2026** **A. NYUKURI** **JUDGE** **In the presence of;** Mr. Mutoka for the 1st respondent Mr. Shiloya for the 2nd respondent No appearance for the appellant Court Assistant- Delphine