https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5122

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC CIVIL APPEAL NO. E012 OF 2023** **MARY KHAVETSA SHISUMU** *(Suing as the personal representative of the Estate of Fabian Shisumu Injehu)* **………………………………………………APPELLANT** **VERSUS** **FELIX AFWAYI ISOHE** *(Sued as the personal representative of the Estate of Laurent Injehu Chimwani)* ………………………….……………………………. **RESPONDENT** *(Being an appeal from the judgment and decree of Hon. J. R. Ndururi, Principal Magistrate, delivered on 23 June 2023 in Kakamega CMELC No. E213 of 2022 as consolidated with Kakamega CMELC No. 140 of 2019)* **JUDGMENT** 1. This appeal arises from a long-running family dispute concerning two parcels of land formerly registered as Kakamega/Shitochi/214 and Isukha/Shitochi/656. The dispute acquired particular urgency when Fabian Shisumu Injehu died in December 2022 and disagreement arose over whether his remains should be interred on the portion known as Isukha/Shitochi/3097, where he had established his homestead, or on land derived from Kakamega/Shitochi/214. 2. The respondent, Felix Afwayi Isohe, is a grandson of Laurent Injehu Chimwani and a son of the late Ernest Isohe Injehu. The appellant is the widow and personal representative of Fabian Shisumu Injehu. Laurent was the registered proprietor of Kakamega/Shitochi/214 and Isukha/Shitochi/656. He died on 5 November 1995. The family evidence was that he had four sons: Paul Shilibwa Injehu, Ernest Isohe Injehu, Maurice Inziani Injehu and Fabian Shisumu Injehu. All four sons are now deceased. 3. The registers produced before the trial court showed that on 15 October 1997, nearly two years after Laurent's death, Fabian was registered as proprietor of both original parcels by way of gift. Parcel 214 was thereafter subdivided into parcels 3094 and 3095, while parcel 656 was subdivided into parcels 3096 and 3097. Some of those parcels were subsequently transferred, further subdivided or charged. 4. In CMELC No. 140 of 2019, the respondent challenged the registration of Fabian and the subsequent dealings. His case was that property belonging to Laurent's estate could not lawfully have been transferred as a gift after Laurent's death and without succession proceedings. He sought cancellation of the impugned entries and derivative titles, restoration of the original parcels to Laurent's name and preservation of the estate pending succession. 5. Following Fabian's death, the respondent filed CMELC No. E213 of 2022 to restrain the appellant from burying Fabian on parcels 3096 or 3097. The two suits were consolidated. The learned magistrate heard the land claim together with the burial dispute and delivered a single judgment. **The case before the trial court** 1. The respondent testified as PW1. He relied upon Laurent's death certificate, the registers for the original parcels, official searches and his limited grant. He maintained that no succession cause had preceded Fabian's registration. He accepted in cross-examination that Fabian had established a homestead on parcel 3097, that the respondent's own father was buried on parcel 3096, and that the respondent occupied parcel 3096, on which he had built a home and rental houses. He further accepted that Fabian's children and other persons occupied portions derived from parcel 214 and that they had not been joined to the suit. 2. PW2, Nicholas Amwayi, was a relative of the family. His evidence was that Laurent remained the registered owner of the two parcels at death and that he did not know how Fabian became registered thereafter. He considered that Fabian ought to be buried on parcel 214 because some of Fabian's children occupied land derived from that parcel. 3. The appellant testified as DW1. She adopted her two statements and produced the decisions of the Shinyalu Land Disputes Tribunal and the Western Provincial Appeals Committee together with documents relating to earlier litigation. Her evidence was that Laurent had allocated the land among his sons during his lifetime; that Fabian established his homestead on the portion later numbered 3097 while Laurent was alive; and that the respondent occupied the neighbouring portion numbered 3096. She asked that Fabian be buried at his established homestead. 4. Vincent Afwayi Shisumu testified as DW2. He said that he and his brother occupied parcel 3095 and that Fabian's homestead was on parcel 3097. He accepted that the registers recorded the gifts to Fabian in 1997, after Laurent's death, and that he had not seen succession proceedings authorising those transfers. He also confirmed that Alice Khavai Paul, a co-administrator of Laurent's estate, was alive but had not been joined to the consolidated proceedings. 5. DW3, Electine Mmbone, a daughter of Laurent, stated that Laurent had shown his sons where to settle; that Ernest and Fabian were allocated portions of the Sigalagala land; and that Fabian ought to be buried there. The defence intended to call one further witness, but when counsel failed to attend on the adjourned date the learned magistrate closed the defence case and directed the filing of submissions. 6. The record also contained the limited grant ad litem issued in 2019 in respect of Laurent's estate. It was issued jointly to Alice Khavai Paul and the respondent, and was limited to filing and defending suit. The suit, however, was prosecuted by the respondent alone. No authority from Alice in respect of the consolidated suit was placed before the trial court. **The judgment of the trial court** 1. The learned magistrate found that Laurent's estate could only have been dealt with under the Law of Succession Act after his death. He therefore held that Fabian's registration in 1997 and the transactions founded upon it were unlawful and void. He ordered cancellation of entries 4 and 5 in the registers of the original parcels and reinstatement of Laurent as proprietor. 2. The court further ordered cancellation of the resulting subdivisions and a charge registered over one of them. It directed the beneficiaries to pursue distribution through succession proceedings. On burial, it restrained the appellant from interring Fabian on land formerly comprised in parcel 656 and stated that she was at liberty to inter him on a portion derived from parcel 214. The estate of Fabian was ordered to bear the costs of both suits. **The appeal and the parties’ submissions** 1. The memorandum of appeal contains twelve grounds. In substance, the appellant complains that the trial court failed to give effect to the earlier Tribunal decisions; wrongly shifted the burden of proving fraud; cancelled registered interests without sufficient proof; exceeded its proper role in directing the place of burial; disregarded the evidence concerning Fabian's established homestead and Luhya custom; and wrongly awarded costs against Fabian's estate. 2. Counsel for the appellant submitted that the Western Provincial Appeals Committee upheld the Tribunal's decision and that, no appeal having been lodged in the High Court within the time prescribed by section 8(9) of the repealed Land Disputes Tribunals Act, that decision remained binding. Counsel further submitted that fraud had neither been strictly proved nor supported by the instruments allegedly used to procure registration. On burial, counsel urged the Court to respect Fabian's long-established homestead on parcel 3097 and the proximity of his widow and immediate family. 3. Counsel for the respondent supported the judgment. It was submitted that the registers and Laurent's death certificate demonstrated that the alleged gifts were registered two years after the donor's death and without succession. Reliance was placed on sections 24 and 26 of the Land Registration Act, Article 40(6) of the Constitution and the decisions on proof of root of title. Counsel argued that the evidential burden shifted to the appellant to explain the lawful process by which Fabian obtained registration. **Duty of the first appellate court** 1. This is a first appeal. The Court must reconsider and re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. It will ordinarily respect findings resting on credibility, but is entitled to interfere where the trial court misapprehended the evidence, applied a wrong principle, failed to consider a material matter or reached a conclusion unsupported by the record. See ***Selle v Associated Motor Boat Co Ltd [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424.*** 2. The grounds of appeal overlap. In my view, they present four questions: 3. whether the former Tribunal decisions barred or conclusively determined the present claim; 4. whether the trial court could cancel the impugned registrations and derivative interests in the absence of all affected persons; 5. whether the burial order was justified by the pleadings and evidence; and 6. what relief is appropriate in the circumstances. **The former Land Disputes Tribunal proceedings** 1. The appellant's argument treats the dismissal of the respondent's claim by the Shinyalu Land Disputes Tribunal and the Western Provincial Appeals Committee as a conclusive adjudication of the validity of Fabian's titles. The record does not sustain that characterization. The Tribunal proceedings concerned the respondent's demand for a share of land and the Tribunal expressly recognized the limits of its power concerning registered title. The Appeals Committee dismissed the respondent's prayers and allowed the Tribunal ruling to stand. 2. Under section 3(1) of the repealed Land Disputes Tribunals Act, a tribunal's jurisdiction was confined to the division or determination of boundaries, claims to occupy or work on land, and trespass. It did not extend to determining title to registered land, cancelling registration or adjudicating the validity of a transfer from a deceased proprietor. In ***Jotham Amunavi v Chairman, Sabatia Division Land Disputes Tribunal & another, Civil Appeal No. 256 of 2002***, the Court of Appeal held that disputes concerning title and beneficial interest in registered land fell outside that jurisdiction. 3. It follows that the Tribunal's refusal or inability to cancel Fabian's title could not validate that title or bar a competent court from investigating its root. A decision cannot acquire a jurisdictional reach which the statute denied the body that made it. Equally, the respondent's failure to appeal the dismissal did not convert it into a judgment that the 1997 registrations were lawful. The learned magistrate was therefore entitled to examine the legality of those registrations. Grounds 2 to 5 fail to that extent. **Capacity and the joint limited grant** 1. There is a further procedural concern. The grant ad litem in respect of Laurent's estate was made jointly to Alice Khavai Paul and the respondent. Alice was neither a party to the consolidated proceedings nor shown to have authorised the respondent to act alone. The point was not, however, one upon which the parties were fully heard in the appeal. It would therefore be inappropriate for this Court to make a final determination of the respondent's capacity without affording them that opportunity. 2. The effect of the joint grant, and whether the suit may proceed in its present form, are matters that should be addressed by the trial court at the case-management stage after hearing the parties. If the defect is capable of cure, the trial court may give such directions as the law permits. What matters for present purposes is that final orders affecting the whole estate should not have been made before the issue of its lawful representation was resolved. 3. I therefore refrain from determining the point conclusively or prescribing the manner in which it must be cured. It is sufficient to direct that it be considered before the rehearing proceeds. **Whether illegality of the original registrations was established** 1. The respondent pleaded fraud, forgery, intermeddling and failure to follow succession law. Fraud must be distinctly pleaded and strictly proved to a standard higher than a mere balance of probabilities, though not beyond reasonable doubt. See ***Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR and Kinyanjui Kamau v George Kamau [2015] eKLR.*** 2. The registers and Laurent's death certificate disclose an obvious question concerning entries recorded as gifts approximately two years after Laurent's death. That evidence called for an explanation of the instruments and legal process underlying Fabian's registration. It did not, however, by itself entitle the court to cancel every derivative title and charge without hearing their holders and examining the complete chains of registration. 3. Section 26(1)(b) of the Land Registration Act permits impeachment of a title acquired illegally, unprocedurally or through a corrupt scheme. ***Munyu Maina v Hiram Gathiha Maina [2013] eKLR*** and ***Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR)*** demonstrate the importance of examining the process by which a challenged title was acquired. Those principles do not dispense with proof of the pleaded case or the right of each affected proprietor to be heard. 4. The appellant's evidence that Laurent allocated portions and initiated transfers during his lifetime may be relevant to the eventual determination. Equally relevant are the registration instruments, the full parcel histories and any defences available to the current proprietors and chargees. Those matters cannot fairly be determined in the absence of the persons whose interests stand to be cancelled. 5. I therefore express no final conclusion on whether Fabian's registration or any derivative interest was unlawful. The material before the trial court raised a serious issue requiring adjudication, but the court's conclusion could not properly bind persons who were not parties to the proceedings. 6. The appeal succeeds on this aspect because the cancellation orders were made in proceedings that were not properly constituted for the grant of relief against all affected interests, and not because this Court has finally determined the validity or invalidity of those interests. **Cancellation and the right of unjoined parties to be heard** 1. That finding did not, however, answer whether all the cancellation orders could properly issue in the proceedings as constituted. The record disclosed that parcel 3095 was registered in the names of Vincent Afwayi Shisumu and Ignatius Mukohe Shisumu; parcel 3094 had undergone further subdivision; portions had allegedly been sold to third parties; and at least one parcel was charged to a financial institution. The respondent admitted that those proprietors, purchasers and chargees were not parties. 2. An order cancelling a title or charge directly deprives its holder of a registered proprietary interest. Article 50(1) of the Constitution and the rules of natural justice required that each affected holder be given notice and a fair opportunity to defend the interest. In ***Pashito Holdings Limited & another v Paul Nderitu Ndungu & 2 others [1997] eKLR***, the Court of Appeal emphasised that an order affecting the rights of persons who were not parties and had not been heard cannot stand. 3. The trial court cancelled derivative titles and a charge without identifying all their current holders, joining them, receiving the instruments in their chains of title, or hearing any defence they might have had. The fact that a derivative title may ultimately stand or fall with its root does not dispense with the hearing required before that conclusion is imposed upon its holder. The decision in *Dina Management* addresses the substantive protection available to an impugned title; it does not abolish procedural fairness. 4. The omission was particularly consequential because the appellant, as personal representative of Fabian, could represent only Fabian's estate. She could not represent adult registered proprietors, purchasers, a chargee or Laurent's co-administrator. The cancellation orders were therefore made against persons who were not before the court and cannot stand. 5. The appropriate course is to set aside the cancellation orders and remit the land claim for hearing afresh before a different magistrate. At the case-management stage, the trial court should hear the parties on capacity, amendment and joinder and make such orders as are necessary for a fair and effectual determination. The responsibility for identifying the relief sought, the persons against whom it is sought and the evidence relied upon remains with the parties. This Court should not reconstruct the pleadings or prescribe their evidence. **The burial dispute** 1. The burial question stands on a different footing and should not be remitted. Fabian's remains have already been kept from burial for an exceptionally long period. The evidence necessary to decide the immediate place of interment was before the trial court and is before this Court. A further trial on that question would prolong indignity and family distress without advancing the eventual determination of ownership. 2. The evidence was substantially consistent that Fabian established his homestead on the portion later numbered Isukha/Shitochi/3097 during Laurent's lifetime, in about 1985 or 1987. The respondent accepted that he found Fabian's homestead there when he was born. The appellant, Vincent and Electine testified that Laurent knew of and participated in the settlement. Ernest assisted in constructing Fabian's house, and the respondent, then a carpenter, is said to have made its doors. Fabian remained there for more than three decades. 3. The trial court nevertheless directed burial on a portion derived from parcel 214 principally because it considered that to be Fabian's likely share in Laurent's estate. That conclusion anticipated distribution of an unadministered estate, contradicted the court's own direction that the beneficiaries pursue succession, and was not supported by a completed succession process. A burial order should not operate as a provisional distribution of land. 4. Kenyan burial disputes are determined from the applicable personal law, the proved custom, the wishes and circumstances of the deceased, the rights and proximity of the immediate family, and the particular facts of each case. The deceased's wishes are not invariably binding, and burial does not confer ownership of the site. See ***Virginia Edith Wambui Otieno v Joash Ochieng Ougo & another [1987] KLR 407 and Apeli v Buluku [1980] eKLR.*** 5. In this case, the appellant is Fabian's widow and personal representative. The proved family practice was that a deceased person was ordinarily buried at the homestead he had established. Paul and Ernest were said to have been buried at their respective homesteads. Whatever the ultimate ownership of parcel 3097, Fabian's longstanding home was there. No evidence established that interment at that homestead would prejudice the respondent's possession of parcel 3096 or determine the beneficial shares in Laurent's estate. 6. The just order is therefore to permit Fabian's burial within the compound of his established homestead on parcel 3097. That permission is limited to interment. It creates no title, trust, proprietary right or advantage in the pending land and succession disputes. All parties and beneficiaries remain free to assert their lawful claims, and the court eventually determining ownership will not treat the burial as evidence of title. **Disposition** 1. The appeal accordingly succeeds in substantial part. The cancellation and related orders cannot stand because they affected registered interests of persons who were not parties and were made before the representation of Laurent's estate was resolved. The burial direction must also be interfered with because it selected a site by anticipating the distribution of Laurent's estate rather than by applying the evidence concerning Fabian's established homestead. 2. The parties are members of the same extended family. The appeal has succeeded substantially, but the land dispute remains unresolved and must be heard in properly constituted proceedings. In those circumstances, each party shall bear his or her own costs of the appeal. The costs of the remitted land claim shall be determined by the trial court upon its final disposal. I therefore make the following orders: 3. The appeal is allowed in part. 4. The judgment and decree delivered on 23 June 2023 in Kakamega CMELC No. E213 of 2022 as consolidated with Kakamega CMELC No. 140 of 2019 are set aside. 5. The land claim in Kakamega CMELC No. 140 of 2019 is remitted to the Chief Magistrate's Court at Kakamega for hearing afresh before a competent magistrate other than Hon. J. R. Ndururi. 6. Before the rehearing, the trial court shall hear the parties and give appropriate case-management directions concerning the lawful representation of the estate of Laurent Injehu Chimwani, amendment of the pleadings and joinder of any person whose presence is necessary for the effectual and complete determination of the pleaded dispute. 7. For avoidance of doubt, this Court has made no final finding on the validity or invalidity of Fabian's registration, any derivative title or any charge. Those questions shall be determined on the pleadings and evidence after all affected parties have been afforded an opportunity to be heard. 8. In substitution for the burial injunction issued in Kakamega CMELC No. E213 of 2022, the appellant and the family of the late Fabian Shisumu Injehu are permitted to inter his remains within the compound of his established homestead on Isukha/Shitochi/3097. 9. The burial authorised in the preceding order confers no legal or beneficial interest in Isukha/Shitochi/3097, shall not prejudice the determination of the remitted land claim or any succession proceedings, and shall not be treated as evidence of ownership or entitlement. 10. Each party shall bear his or her own costs of this appeal. The costs of the remitted proceedings shall abide their final determination. The Deputy Registrar shall transmit a certified copy of this judgment and the lower-court record to the Chief Magistrate's Court at Kakamega. It is so ordered. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT VIHIGA THIS 22ND DAY OF JULY 2026. **P. MUSYIMI** **JUDGE** **Judgment delivered in the presence of:** Mr. Kevin Injene: Court Assistant Counsel for the Respondent: Court Assistant: