https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4882

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT SIAYA** **ELC APPEAL NO. E025 OF 2024** **STEPHEN OCHIENG ONYANGO………………………………. APPELANT** **VERSUS** **FRANKLIN SWAGA OLOO………………………………...1ST RESPONDENT** **COLLINS OTIENO OMONDI …………………………...2ND RESPONDENT** **CHARITY AOR ODHIAMBO…………………………….3RD RESPONDENT** **THE DISTRICT LANDS REGISTRAR UKWALA …………4TH RESPONDENT** **JUDGEMENT** **BACKGROUND** 1 In its plaint dated 9th May 2017 filed as Ukwala MCELC No. 421 of 2017 the Plaintiff filed the suit the subject of this appeal averring that he is the only son and beneficiary of the estate of Gabriel Onyango Okinyo who was the first registered proprietor of parcel Uholo/Ugunja 1268 (sic). I think this was a typo since from the entire proceedings and documents tendered it is clear that the same is parcel Uholo/Ugunja 268 (herein suit property). That his father Gabriel Onyango had been in possession of the suit land until his death in January 1989 and thereafter the plaintiff has been in possession and use of the same. 2 The Plaintiff averred that sometime in the -year 2015 the 1st and 2nd defendant fraudulently conspired with the 4th defendant and transferred the suit land from his father Gabriel Onyango Okinyo into their names. That they also crossed out the plaintiffs’ fathers name and inserted their fathers name next to the plaintiffs’ fathers name in the parcel register. They then subdivided the suit land into parcels Uholo/Ugunja 3694,3695 and 3696 which was transferred to the 3rd defendant for a consideration paid to the 1st Defendant. The former two parcels were registered into the names of the 1st and 2nd Defendant respectively. 3 The Plaintiff averred that the actions of the Defendants were irregular and fraudulent meant at grabbing the suit property. The particulars of fraud were listed at paragraph 21 of the plaint and which I will revisit later in this judgement. The 1st and 2nd Defendants are also termed as trespassers into the suit land. 4 The Plaintiff therefore sought for judgement against the Defendants jointly and severally as follows; - * 1. General damages for trespass. 2. Nullification and cancellation of titles numbers 3694, 3695 and 3696, consolidation and restitution of the lands to the Plaintiff as a beneficial owner, at the Defendants' expense. 3. Rectification of the register to expunge from it the names and interest to one ELISHA OLOO (deceased) and instead enter that of GABRIEL ONYANGO (deceased) and a declaration that the Plaintiff is the sole beneficial owner of the suit land initially described as UHOLO/UGUNJA/268 at the Defendants' expense. 4. Costs of the suit and interest 5. Any other relief that the honourable court may deem fit and just to grant. 5 The 1st 2nd and 3rd Defendants filed a joint statement of defence dated 23/5/2015. They pleaded that the suit property was originally registered in the name of Gabriel Onyango but with the name of Elisha Oloo put in brackets on the date of first registration. It is pleaded that UHOLO/UGUNJA/268 is an ancestral land which was originally owned by one Ywaya Abanja (deceased,) and who was the 1st Defendant's grandfather but the Plaintiff and 2nd Defendant's great grandfather. That during land adjudication in 1970, the late Ywaya Abanja's land was subdivided into two parcels, UHOLO/UGUNJA/267 and UHOLO/UGUNJA/268, which parcels were supposed to be registered in the names of Jeremiah Okinyo and Elisha Oloo Ywaya respectively being his sons. 6 It is alleged that during land adjudication, Jeremiah Ywaya had since died and his share, UHOLO/UGUNJA/267, was registered in the name of Martin Ywaya who held it as a beneficiary as well as a trustee for his siblings, being the late Gabriel Onyango and John Otieno. Further that Elisha Oloo Ywaya was not in the village during adjudication, the family of the late Ywaya Abanja thought it wise to have UHOLO/UGUNJA/268, registered in the name of Gabriel Onyango who was to hold it in trust of Elisha Oloo. 7 It is averred that the 1st and 2nd Defendants have been residing in UHOLO/UGUNJA/268 since they were born and it is the only known place to them as ancestral home, which land was bequeathed to their father and grandfather respectively as a son to Ywaya Abanja. 8 They denied that the Plaintiff has at any time material to this suit taken possession and/or utilized parcel UHOLO/UGUNJA/268 but that the plaintiff has been a permanent resident of UHOLO/UGUNJA/267 wherein he has a home to date. The allegations of fraud and trespass are also denied. They prayed that the suit be dismissed with costs. 9 The record of appeal does not bear the 4th defendants pleadings however the trial court file bears a Memorandum of Appearance dated 24/07/2017 by the Principal Litigation Counsel Janet Lang’at and a Statement of Defence of even date. The defence generally denied all the allegations in the plaint. 10 The matter was heard by Hon. E Tsimonjero Senior Resident Magistrate. The trial court upon hearing the parties including a visit to the site in its judgement dated 26/7/2024 made a finding that the plaintiffs father held the suit property in trust for Elisha Oloo, that the plaintiff could not hold more than what his father held. The trial court made the following final orders; - ‘ 1. ***A declaration that Gabriel Onyango, held the suit property Uholo/Ugunja/268 in trust for Elisha Oloo by way of a customary trust.*** 2. ***A declaration that the Plaintiff has no interest in the suit property Uholo/Ugunja/268 as his father Gabriel Onyango was only but a trustee*** 3. ***The register for parcel number Uholo/Ugunja/268 shall be rectified to expunge the name of Elisha Oloo, the beneficiary thereof*** 4. ***The new title numbers Uholo/Ugunja/3694;3695 and 3696 be and are hereby cancelled and the original title number Uholo/Ugunja/268 reinstated in the name of Elisha Oloo pending proper succession proceedings*** 5. ***Each party shall bear their own costs.*** 11 Aggrieved with the entire judgement of the trial court the Plaintiff proffered the present appeal vide a Memorandum of Appeal dated 5/8/2024 on the following grounds; - 1. The Honourable Magistrate erred in law and in fact in holding that the issue of whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel UHOLO/UGUNJA/268 was properly before Court for determination. 2. The Learned Magistrate erred in law and in fact in failing to consider and or render an express finding on the issue of whether the transmission of the proprietorship of suit parcel UHOLO/UGUNJA/268 from the name of Gabriel Onyango Okinyo was fraudulent and illegal. 3. The Honourable Magistrate erred in Law and in fact by failing to uphold express provisions of statute. 4. The Learned Magistrate erred in law and in fact by failing to consider the Appellant's Submissions. 5. The Learned Magistrate erred in law and in fact in holding that he used "common sense" in usurping the role of determining boundaries of land from the Registrar of Land in whom that duty is exclusively bestowed by Statute. 6. The Honourable Magistrate erred in law and in fact in allowing persons other than the Court appointed Administrators of the Estate of a deceased to prosecute and or defend an action on behalf of the said Estate. 7. The Learned Magistrate erred in law and in fact by granting prayers that none of the parties had sought in contradiction of the cardinal principal of law that parties are bound by their pleadings. 12 On the basis of the above grounds the Appellant seeks the following reliefs; - 1. The Judgement of the Learned Magistrate of the Subordinate Court delivered on the 26th July, 2024 in the Chief Magistrate's Court at Ukwala Environment and Land Case No. 39 of 2018 and the ensuing Decree be and are hereby set aside. 2. An Order be and is hereby issued that all the Appellant's prayers as outlined in the Plaint dated 9th May, 2017, be and are hereby allowed. 3. Costs of the Appeal be and hereby awarded to the Appellant. **SUBMISSIONS** 13 Directions were issued by the court that the appeal proceeds by way of written submissions which parties complied. **Appellants Submissions** 14 The Appellant filed submissions through the firm of Edwin Omulama & Associates Advocate dated 6/01/2025 and Supplementary submissions dated on issues of law with leave of the court. 15 The Appellant dropped the 2nd ground of the Memorandum of Appeal herein and proceeded to submit on the remaining grounds as follows; - 16 On grounds of 1, 3, 4, 5 and 6 which relate to Failure by the Learned Trial Magistrate to uphold express provisions of statute. It is submitted that the trial court overlooked Sections 45, 80 (2) and 82 of the Law of Succession Act (Cap 160) and Sections 18(2), 19(2) and 26(1) of the Land Registration Act No. 3 of 2012. 17 Outlining each of the above provisions Counsel urged that the 1st and 2nd Respondents expressly admitted in their pleadings to having sold a portion of property title number UHOLO/UGUNJA/268 to the 3rd Respondent while fully aware that succession proceedings pertaining to the said property had not been undertaken (pages 39 and 40 ROA). That DW1 and DW2 open admitted during cross examination to intermeddling with a deceased person property and which the trial court failed to hold the defendants accountable. 18 The Appellant contends that, safe in the knowledge that under the law the only person who could sue or defend on behalf of the estate of a deceased person is a duly appointed administrator, pointed out to the trial court that the question of the existence or otherwise of a constructive trust in favor of the estate of a deceased person was one for a court of law properly moved to decide. Reliance was placed in the case of ***Isaya Masira Momanyi (suing on behalf of the late Masira Onsase) Vs. Daniel Omwoyo & Kebungo Orina ELC Case No. 167 of 2016.*** Counsel faulted the trial court for noting that he had not addressed the court on the issue of constructive trust and handled it casually or rubbished it when it had been expressly pleaded by the 1st 2nd and 3rd defendants. Counsel urged that the trial court was operating per incuriam. 19 It is submitted that the 1st, 2nd and 3rd Respondents did not have legal authority to jointly or severally represent the Estate of the late ELISHA OLOO in the instant proceedings. Accordingly, every single act or averment they purported to canvass before the Trial Court allegedly to establish the presence of a constructive trust in favour of the subject Estate was "... null and void ab initio and cannot be cured by a party subsequently obtaining the letters of administration." 20 That the Learned Trial Magistrate despite being cautioned of lack of jurisdiction proceeded to use "common sense" to override and or contradict Sections 18 (2) and 19 (2) of the Land Registration Act and usurped the role of land-boundary fixer which is exclusively reserved for the Registrar of Lands. 21 On ground of number 7 of the appeal, referring to the prayers sought in the plaint it is submitted that 1st, 2nd and 3rd Respondents' sole prayer was for the suit to be dismissed with costs. That however the final orders have no link to the prayers that the respective parties to the suit themselves made against the established law that parties are bound by their pleadings. Reliance is placed in ***South Nyanza Sugar Company Limited versus John Gituki Gomba (2022) e KLR,*** 22 Counsel added that the only way that the final orders herein could possibly have issued was if there was a legally appointed representative of the Estate of the late ELISHA OLOO on record and who had in turn filed a counter-claim against the Appellant seeking express prayers that the Honourable Court would then have granted if satisfied with the evidence tendered. **Supplementary Submissions** 23 In response to the respondent’s submission dated 23/01/2026 counsel on record for the Appellant raised the following issues 1. Could the Respondents defend (or sue) the instant suit on behalf of the Estate of Elisha Oloo without being appointed Administrator(s) thereof? 2. Did the Honourable Trial Court have jurisdiction to determination the issue that arose during the proceedings as to the location of the boundary between parcels UHOLO/UGUNJA/267 and UHOLO/UGUNJA/268? 3. Whether it was open to the Honourable Trial Court to make final orders that clearly were not the prayers that the respective parties to the suit themselves made. 4. Could the Respondents defend (or sue) the instant suit on behalf of the Estate of Elisha Oloo without being appointed Administrator(s) thereof? **The 1st, 2nd & 3rd Respondents Submissions** 24 The 1st, 2nd & 3rd Respondents filed submissions dated 23/01/2026 through the firm of Ngaywa & Kibet Partners LLP submit on the issues arising as hereunder. 25 It is submitted that the Respondents in their joint statement of Defence pleaded that the suit land was originally registered in the name of the Gabriel Onyango but with the name of Elisha Oloo put in brackets on the date of first registration. That evidence was led explaining the inclusion of the name in brackets connoting Gabriel Onyango was only holding the land in trust. 26 The Respondents assert that the trial court correctly held that the issue of customary trust was properly before it. That it was incumbent upon the court to make its determination on it. Further, the Appellant through his advocates had the opportunity to dislodge and discredit the Respondents claim through cross examination. He also had the opportunity to make his submissions on the said issue but he declined to do so. 27 The Respondents contended that it was evident from the site visit herein that the 1st and 2nd Respondent have since their birth lived and have been in occupation and use of land known as Uholo/Ugunja/268. No evidence of occupation and use of any alternate land by the said Respondents was tabled by the Appellant. 28 On failure to uphold express statutory provisions including failure by the trial court to hold the 1st, 2nd and 3rd Respondents accountable for the express breach of section 45 of the Law of Succession Act, it was submitted that there was no other form of save for the court cancelling the titles that had been registered prior to issuance of letters of administration being issued. 29 With regard to usurping the jurisdiction of the land registrar conferred under section 18(2) and 19(2) of the Land Registration Act, the Respondents urge that the trial court did not usurp the role of determining boundaries. alleged. The trial magistrate noted it conducted a site visit for the sole purpose to determine the occupation and user of the two parcels of land, the nature of the developments therein and the existence of any boundaries. 30 It is emphasised that the issue before court was not an issue of boundaries but an issue of ownership and possession of the suit property. The evidence presented pointed that the Appellant occupied L.R NO. UHOLO/UGUNJA/267 while the 1st and the 2nd Respondent occupied and used L.R NO. UHOLO/UGUNJA/268. It was necessary for the court to be shown where the said parcels of land were and the boundaries between to determine whoever was in possession of the parcels of land. In so doing, the magistrate did not in any whatsoever determine boundaries of the said parcels of land. 31 Rehashing the provisions of section 26(1) of the Land Registration Act it was contended that the court properly found that the Certificate of Title was registered in the name of Gabriel Onyango with the names of Elisha Oloo. Having established from the history of the parcel of land, the adjudication and registration process that the property that there existed a customary trust, it was incumbent upon the court to protect the interests of Elisha Oloo(deceased) in whose favour the trust was created. 32 Citing **Ongalo v Ang'iyo [2025] KEELC 4354 (KLR)** it is submittedthattrusts including customary trusts are overriding interests on registered land, which, although not noted in the register, all registered land is subject to. Allegations of a trust including customary trust must be proved by the person asserting existence thereof. The court is also referred to **Kanyi v Muthiora (1984) KLR 712 CA** the Court of Appeal **Kamau v Thiga (Environment and Land Appeal 5 of 2021) [2022] KEELC 2839 (KLR) (21 July 2022**) (Judgment) and **Isack Kieba Minanga v Isaaya Theuri M'Lintari & Another [2018] Eklr**. 33 On the issue of whether trial magistrate erred in law and in fact in allowing persons other than the Court appointed Administrators of the estate of a deceased person to prosecute and /or defend an action on behalf of the said estate it was posited that the 1st, 2nd and 3rd Respondents were sued in their personal capacity and not as administrators of the said estate for allegedly intermeddling and trespassing on the suit property. It was incumbent upon them to adduce evidence on how they come into possession and use of the suit property. 34 The court was invited to dismiss the appeal with costs for lacking merit. **ANALYSIS AND DETERMINATION** 35 I have considered the appeal, the grounds of appeal listed in the Memorandum of Appeal, the lower court record, and the rival arguments proffered by both sides in their submissions. 36 The duty of an appellate court is stipulated under Section 78 of the Civil Procedure Act which reads; - ***“Subject to such conditions and limitations as may be prescribed, an appellate court shall have power;*** ***(a)to determine a case finally;*** ***(b)to remand a case;*** 1. ***to frame issues and refer them for trial;*** 2. ***to take additional evidence or to require the evidence to be taken;*** ***(e) to order a new trial.*** ***(2,) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein****.”* 37 The court of appeal in **Peterson Ndung’u, Stephen Gichanga Gituro. N. Ojwang, Peter Kariuki; Joseph M. Kyavi & James Kimani V Kenya Power & Lighting Company Ltd [ 2018] Eklr** stated as follows regarding the duty of the first appellate court: - ***“ ………………..This being a first appeal , we are reminded of our primary role as a first appellate court namely to re-evaluate , re-assess and reanalyze the extracts on record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons why...............On a first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate itself and draw its own conclusions though it should always beware in mind it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence……....”*** 38 In **Mbogo and Another v Shah [1968] EA 93,** the court stated: ***“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”*** 39 The locus classicus on the above remains the case of ***Selle Vs. Associated Motor Boat Co. (EA.123*)** where it was stated that the court must reconsider the evidence, evaluate it itself and draw its own conclusions but bearing in mind that it did not have the benefit of seeing the witnesses who testified before the trial court. 40 The court has noted that ground No. 2 of the appeal was dropped by counsel for the Appellant in its submissions. The main issues for determination in my view is whether this appeal has merit. In determining this I will seek to answer the following questions; - 1. ***Whether the trial court erred in entertaining the claim for customary trust*** 2. ***If the answer to the above is no, whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel Uholo/Ugunja/268’*** 3. ***Whether the transfer of the suit property to the 1st and 2nd defendants was lawful?*** 4. ***Whether the plaintiff was entitled to the orders sought in the plaint dated 9th May 2017.*** 5. ***Whether the trial Magistrate erred in issuing the final orders herein*** 6. ***What reliefs ought to issue in the circumstances of this appeal*** 7. ***Who bears the costs of this appeal?*** **ANALYSIS AND DETERMINATION** **Whether the trial court erred in entertaining the claim for customary trust** 41 In the judgement the subject of this appeal, the trial court identified the first issue for determination as ***‘Whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel Uholo/Ugunja/268’*** and which the court found in the affirmative that the Plaintiffs father held the suit land in trust for Elisha Oloo by way of customary trust. 42 The Appellants contend the issue whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel UHOLO/UGUNJA/268 was not properly before the trial court. This arises partly from the Appellants assertion that the 1st and 2nd defendants were not legal representatives of the estate of Elisha Oloo and could therefore not represent his interests in the suit property. According to counsel every single act or averment the defendants purported to canvass to establish a constructive trust in favor of Elishas estate was null and void. 43 I will extract verbatim what the plaintiff’s submission in the trial court was. It was submitted that ‘*the* ***subject of contention is whether Gabriel Onyango Okinyo was registered as proprietor in trust for one Elisha Oloo, or not. That question would have been one for a Court of Law properly moved to determine. It was not open, as DW1 (Franklin Swaga Oloo) claimed during cross examination on 10/06/2024, for the chief, Assistant chief, Land Registrar or Surveyor to resolve.*** 44 The its judgement the trial court had this to state with regard to the above; - **‘I *note that the plaintiffs’ counsel did not attempt (to sic) address the issue of trust in their submissions. He merely stated* *that the issue could have been determined by a court properly moved. What that meant is not clear to this court. This was a pertinent issue which had been expressly pleaded in the 1st, 2nd and 3rd Defendants' Statement of Defence.* *It could not be rubbished off with such casualty. It does not require a tooth pick comb to decipher the same from the pleadings and the evidence. The issue is thus properly before court for determination."*** 45 This court notes that it did not help his client or even the court for Counsel for the Plaintiff to state that there was absolutely no reason for the Appellant to address issues which he was certain were null and void abinitio in the eyes of the law. This is exactly what he should have posited in his submissions before the trial court. Be that as it may I must resolve the controversy. 46 I will briefly look at the subject of framing issues. The importance of the need to frame issues for determination was emphasised in **Rukidi vs. Iguru and Another [1995-1998] 2 EA 318** where the court stated thus;- ***“Framing of the issues is an important step in the determination of a case as it defines the areas of controversy and narrows down the scope of inquiry. It makes the hearing of the case more focus-oriented and saves the time of the Court and there is nothing wrong with the parties or their counsel agreeing on the issues or otherwise participating in their framing. The fact that issues were framed at the commencement of the hearing does not mean that they cannot be amended by addition or deletion since rule 5 Order 13 allows the Court, any time before passing the judgement, to amend the matters in controversy between the parties, or to strike out any issues that appear to have been wrongly framed. A trial Judge therefore always has a discretion to amend the issues framed any time before passing judgement but the point to be emphasised is the need to frame the issues at the commencement of the hearing of any suit to guide the parties and the Court in addressing the basic issues in controversy.”*** 47 While the subject in the above case law was the failure by the court to frame issues, I still found some guidance from the dictum on how issues are distilled. Arising from the above holding in framing the issues the court must look at the main pleadings which in the present case is the plaint and defence to identify the specific claims being made or affirmed and the allegations being denied. The plaintiff alluded at paragraph 18 of the plaint that the green card of the suit land appeared fishy as his father’s name Gabriel was clearly indicated on the land at the first registration upon adjudication however there was a name; Elisha Oloo fixed immediately after the plaintiff’s fathers name and placed in brackets. That this was a ploy to grab the land. The plaint also gives a history of the property and alleging that Elisha Oloo customary land was in Nyamasare. 48 The defendants refuted the above allegations and averred at paragraph 5 of their Statement of Defence that the land was ancestral land which was originally owned by one Yawya Abanja the 1st defendant grandfather but was also the plaintiffs and 2nd defendants’ great grandfather. To explain why the name of Elisha Oloo was allegedly inserted in brackets next to the plaintiff’s father the defendants pleaded at paragraph 12 of their statement of defence that Elisha Oloo was not in the village at the time of adjudication the family of the late Ywaya Abanja thought it wise to have the parcel registered in the name of Gabriel Onyango who was to hold it in trust of Elisha Oloo. They add at paragraph 14 that was the only place known to them as their ancestral home and not Nyamasare. 49 From the foregoing the issue of customary trust was very clear in the defendants’ pleadings and no court reviewing the defence would have missed it and failed to delineate it as a matter that behoved consideration by the court. It is was actually the substantive plea on the part of the 1st and 2nd defendants and I would not find any error on the part of the trial court in distilling it as an issue for determination. I agree with the respondent’s submission that this was a relevant issue arising from the set of facts and evidence before the trial court. 50 Moreover in the case of **odd jobs vs Mubia (1970) E.A 476** it was held that; - ***"A court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision; on the facts the issue had been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it". The above decision was subsequently followed by the Court of Appeal for Eastern Africa in the cases of******Nkalubo vs. Kibirige [1973] E.A. 102*** *and* ***Railways Corporation vs. East African Road Services Ltd. (1975) E.A. 128.*** 51 However the Appellants contention is that the defendants’ responses hereinabove cannot suffice to the extent that they appeared to defend the estate of Elisha Oloo who was noted on the title when they were not administrators of his estate. This court will respectfully disagree with this position and I will shortly show why. 52 Firstly it is the Plaintiff who sued the 1st and 2nd Defendants in their own individual capacities and not as administrators of the estate of Elisha Oloo (deceased) when he had actually pleaded and alleged that the name of Elisha was ‘fixed’ in the parcel register next to Gabriel Onyangos (deceased) name. The plaintiff was aware that Elisha was deceased and therefore the joinder of his estate was key. The defendants simply responded to the suit which they were obliged to by stating their case which they did. The Plaintiff cannot be heard to turn round and state they had no locus. Nothing hindered them from raising their defence of customary trust. 53 But having noted the above, there is need to draw a distinction between the plea of a customary trust and the requirement for locus standi vis a vis the application of the Law of Succession. In my view there is no requirement for locus standi as envisaged under the Law of Succession Act for purposes of dealing with the property of a deceased person or property forming part of the estate in a plea of customary trust. In any event a customary trust is an overriding interest and supersedes the law of succession. All that the defendants were required to demonstrate was the ingredients of a customary trust as laid out in the case of ***Isack Kieba Minanga v Isaaya Theuri M'Lintari & Another [2018] Eklr*** and more specific that they are not too remote in the lineage and are entitled to the land under customary trust. 54 The objection raised by the Appellant therefore is misplaced. It is the finding of this court therefore that the trial court did not err in entertaining the issue of customary trust. The issue was in my view properly before the court. The 1st and 2nd defendants did not require to be legal representatives of the estate of Elisha Oloo (deceased) to raise a plea of customary trust. The law of Succession Act does not apply. Ground No. 1 of the appeal must fail. 55 Having resolved the above issue by finding that the issue was properly before the trial court the next question would be whether the trial court erred in finding that the title was held by Gabriel in trust for Elisha Oloo. **Whether there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel Uholo/Ugunja/268’** 56 Having filed this appeal the Plaintiff Appellant has invited this court to issue orders allowing the Appellant’s prayers as outlined in the Plaint dated 9th May, 2017. Essentially the Appellant wants his suit as filed in the trial court to be allowed and the finding in favor of customary trust overturned. 57 The Plaintiff case is that he is the only son and beneficiary of Gabriel Onyango Okinyo the original registered absolute owner of Uholo/Ugunja/268 who died in 1989 but whose title was fraudulently subdivided and registered in the names of the 1st 2nd and 3rd defendants whom he also terms intermeddlers of his father’s estate specifically comprising the suit property Uholo/Ugunja/268. The defendants on the hand have denied these claims asserting that Gabriel was holding the land in trust for Elisha. 58 I will briefly highlight the law on the burden of proof in civil cases. Section 107 (1) and (2) of the Evidence Act Cap 80, Laws of Kenya provides;- ***107 (1) Whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which the assets must prove that those facts exist.*** ***107(2) when a Person is bound to prove the existence of any fact, it is*** ***said that the burden of proof lies on that Person.*** 59 The above legal burden is discharged by way of evidence with the opposing Party having a corresponding duty of adducing evidence in rebuttal. 60 The Plaintiff testified as PW1 and called 4 witness to support his case. He sued as the Legal administrator of the estate of his father and produced a copy of Grant of Letters of Administration *ad litem* dated 6/3/2017 issued in Senior Resident Magistrates Court at Ukwala Succession Cause No. 8 of 2017 for the estate of Gabriel Onyango Okinyo for purposes of filing suit. This is not disputed. 61 The next hurdle for the plaintiff was to prove that indeed the parcel Uholo/Ugunja/268 was initially registered in his father’s name as the only registered proprietor. He produced in evidence a Certified Copy of green card for parcel number Uholo/Ugunja/268. From the card the first edition of the register was opened on 10/9/70 in the name of ‘**Gabriel Onyango (Elisha Oloo)**.’ The green card shows the title was issued on 5/3/014. 62 I have already noted that the first hurdle for the Plaintiff to surmount was to prove that Gabriel was the sole registered proprietor to the exclusion of Elisha. Based on the above documentation presented it was clear that the plaintiff father Gabriel Onyango was the first registered owner of the property. This is where the plaintiff’s interest in the suit would derive from. 63 However the problem that arose was the second name of Elisha Oloo as a registered proprietor but who it is pleaded by the plaintiff is a licencee. I must state there was no such endorsement on the green card that Elisha was a licencee. There was no other record produced by PW1 to show that abinitio the only single registered proprietor was his father, Gabriel Onyango. The trial court observed and correctly so (see page 112 of the ROA) that it was incumbent upon the plaintiff to adduce a Green Card with only the name of Gabriel Onyango as the Registered proprietor of the suit property. This would be the only evidence to support the plaintiff’s allegation that Elisha Oloo’s name was ‘fixed’ as alleged and never featured from the date of adjudication. Moreover, PW1 conceded in cross examination that he had only the green card that had two names and that he had no other document showing Gabriel as the only proprietor (see page 101 ROA). 64 There was no evidence led before the trial court to prove that Elishas name was wrongly or even fraudulently inserted. There was no title produced bearing the name of Gabriel Onyango alone. While PW1 evidence was that the name of Gabriel Onyango was removed by crossing it with red ink no such register was produced to proof this allegation. The green card produced did not present such deletion. 65 Arising from the foregoing therefore it is the finding of this court that the plaintiff failed to discharge the burden of proof that at adjudication only Gabriel was recorded and registered as the owner of the parcel 268 herein. 66 Having made the above finding, it then paves way to interrogate the plea of customary trust. This calls firstly for a discussion of the concept of customary trust and the established jurisprudence around it. This was addressed by the trial court (see page 112-113)-113) and who cited the case of ***Isack Kieba Minanga v Isaaya Theuri M'Lintari (supra).*** 67 The Supreme Court in the case of ***Isack M’Inanga Keibia Vs. Isaaya Theuri M’Lintari & Another (2018) eKLR*** rendered itself on recognition of customary land rights thus; - ***‘Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:*** 1. ***The land in question was before registration, family, clan or group land*** 2. ***The claimant belongs to such family, clan, or group*** 3. ***The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.*** 4. ***The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.*** 5. ***The claim is directed against the registered proprietor who is a member of the family, clan or group.*** 68 Arising from the above dictum the family relationship between the parties is a key consideration in determining the existence of customary trust. The trial court in its judgement proceeded to lay out the family tree (page 111 of the ROA). This court found no issues with the same as outlined by the trial court. 69 The burden of proof on this plea shifted to the 1st and 2nd Defendants to proof the above elements. 70 The defendants pleaded that the parcels comprising Uholo/Ugunja/267 and 268 was initially one parcel originally owned by one Ywaya Abanja (deceased) and whom I will refer to as the patriarch. The patriarch was the plaintiffs and 1st defendant’s grandfather. He was the 2nd defendant’s great grandfather. That the patriarch had two sons Jeremiah Okinyo and Elisha Oloo Ywaya both deceased. That Jeremiah begot three sons one being Gabriel Onyango the plaintiff’s father. 71 Further that Elisha on the other hand had two sons one of whom was survived by the 2nd defendant and 1st defendant herein. That during adjudication the patriarchs land was divided into the above two parcels which were supposed to be registered in the names of his two sons Jeremiah Okinyo and Elisha Oloo Ywaya respectively. However, at the time of adjudication Jeremiah having been since deceased his share of 267 was registered in the name of Martin who held it as a beneficiary as well as a trustee for his siblings one being Gabriel Onyango (the plaintiff’s father). At the same time Elisha was away in Nairobi the patriarch’s family saw it fit that the parcel 268 be registered still in the name of Gabriel to hold in trust for Elisha Oloo and who is survived by the 2nd defendant and 1st defendant herein. 72 According to the 1st and 2nd defendant they have since resided on this parcel as their only ancestral land by dint of it having been bequeathed to their father and grandfather respectively as a son of the patriarch. Their case is that at no time had the plaintiff taken possession of parcel 268. 73 PW1 admitted in cross examination that Abanja was his great grandfather. He confirmed Abanja had two children Jeremiah Okinyo and Elisha Oloo. He confirmed that the 1st and 2nd defendant were grandchildren of Abanja. He confirmed that the 1st defendant was a brother to his father as they were from the same clan. I note that his entire cross examination PW1 confirmed the above kinship as pleaded by the 1st and 2nd defendants. PW2 confirmed in cross examination that he was related to both the plaintiff and the 1st and 2nd defendants and their grandfather was Ywaya Abanja. PW2 confirmed that the parents of the 1st defendant were staying on the suit land todate. PW5 confirmed that the land was ancestral and Elisha was staying there. 74 All the foregoing confirm element 2 and 3 as outlined by the SCOK above. From the evidence it also clear that the land was family land before adjudication the same being traced to mzee Yawya Abanja. Yawya had two sons from who the plaintiffs and the defendants draw lineage . It was very clear from the site visit report the occupation in the land was by relatives all drawing their roots from mzee Yawya. While the Plaintiff had refuted that the 1st and 2nd defendants ancestral land was in Nyamasare no evidence was adduced to corroborate this allegation. One of the witnesses confirmed that Elisha was away in Nairobi. 75 My own review of the evidence reveals that PW1 conceded in cross examination that he could not tell the exact date when Jeremiah called Elisha Oloo and gave him land on humanitarian basis as he PW1 was still young. Further the plaintiff did not adduce any evidence as to when this licence was terminated by Jeremiah if at all before his demise. Arising from these admissions the question that lingered in my mind is if both the plaintiff and PW2 were young how could they tell what happened at adjudication. PW2 told the trial court he was only 9 years during adjudication. 76 The only person who could tell was PW3 born in 1946 but he conceded in cross examination that he could not even remember when adjudication was done and he was not even there during the exercise. The defendant did not dislodge the defendants’ allegations that Elisha could have been registered except that he was away in Nairobi. A key ingredient of a customary trust. 77 Arising from the above analysis I would agree with the trial court that all the elements of a customary trust exist in the present case. It is therefore the finding of this court that the trial court rightly held there was a trust in the registration of Gabriel Onyango Okinyo as proprietor of the suit parcel Uholo/Ugunja/268’. 78 Having arrived at the above finding then the 1st and 2nd defendants would perfectly be entitled under Elishas estate going by the family tree. The Plaintiff also alleges that the 1st and 2nd Defendant were trespassers in the parcel 268. Having made the finding of customary trust in favor of Elisha then the Plaintiff has no locus to brand the defendants trespassers. 79 The court has also noted the dispute with regard to the 1st and 2nd defendants’ occupation but I will not delve much into the issue. It is trite that in a claim for customary trust one need not prove actual occupation – see ***Isack Kieba Minanga v Isaaya Theuri M'Lintari (supra*).** But I must quickly add that any emerging issues on boundaries would have to be resolved under a different forum as stipulated by law. 80 Having resolved the question of customary trust it behoves this court to interrogate how the suit property was registered to the 1st and 2nd defendant and subsequently to the 3rd Defendant considering that the finding of a trust was only made in the determination of the trial court in July 2024. **Whether the transfer of the suit property to the 1st and 2nd defendants was lawful?** 81 The Plaintiff produced in evidence a Certified Copy of green card for parcel number Uholo/Ugunja/268. From the card the first edition of the register was opened on 10/9/70 in the name of Gabriel Onyango (Elisha Oloo). The green card shows the title was issued on 5/3/014. The same green card also reveals that indeed on 2/11/15 Franklin Swaga Oloo & Collins Otieno Omondi were registered as proprietors and thereafter on 23/11/015 the title was closed on partition and new Nos 3694,3695 & 3696 created. Copies of certificates of Official Searches dated 1/8/2016 for the three subdivisions - 3695 in the name of Franklin Swaga Oloo, 3696 Charity Aor Odhiambo and 3694 to Collins Otieno Omondi the 1st 3rd and 2nd defendants respectively all entered on 23/11/15 were produced in evidence. 82 It is noteworthy that DW1 produced the same green card above, Certificate of official search for parcel 268 herein showing Franklin Swaga Oloo and Collins as proprietors as at 2/11/15 and the mutation forms for the three subdivisions. The documents are annexed to the replying affidavit dated 22/5/2018 sworn by DW1 which he adopted at the hearing together with its annextures. 83 The legal implications of registration of a person as proprietor of land were aptly discussed in the case of ***Rosemary Wanjiru Njiraini v Officer in Charge of Station, Molo Police Station & another [2017] eKLR*.** The following excepts are relevant; - ‘17. It has been the law, and it still is the law, that the Certificate of Title issued to a person is prima facie evidence, that the said person holds title to the land noted therein. In the pre-2012 land regime, this was provided for in Section 28 of the Registered Land Act and Section 23 of the Registration of Titles Act which were drawn as follows :- ***RLA S.27.*** *Subject to this Act -* *(a)* ***the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;*** ***(b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease.*** ***RTA S.23 (1) The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.*** ***(2) A certified copy of any registered instrument, signed by the registrar and sealed with his seal of office, shall be received in evidence in the same manner as the original.*** 18. The current law is in Section 26 of the Land Registration Act, 2012, which provides as follows :- ***26. (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of 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.*** ***(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.*** **19. It follows that when a person has been issued with a Certificate of Title, that title, prima facie, demonstrates that the individual named therein is the proper owner of the freehold or leasehold title noted in the said certificate. The law already presumes that the said title is a good title, and therefore if another person claims that the said title is not genuine, then the burden of proof is upon the person claiming as much. Such person must tender evidence, that despite what is noted in the Certificate of Title or register, the said title is not a good title and can seek to have it revoked…’** 84 The Plaintiffs pleaded at paragraph 21 of the plaint dated 9/5/2017 that the transactions undertaken by the 1st 2nd 3rd and 4th defendants were irregular and fraudulent actuated by malice with the sole intent to grab the suit property. The particulars were given as follows; - 1. Colluding to make irregular entries into the lands register. 2. Irregularly, illegally, altering the lands register for own benefits and ends. 3. Acquiring land without any consideration. 4. Disregarding the true beneficial owner's interest of the suit land to defeat his rights and interest. 5. Altering a first registration without authorization. 6. Entering the names of a deceased person into the land register to claim beneficial interest that never was. 7. Transferring property belonging to a deceased person, without obtaining grant of letters of administration and therefore meddling. 8. Fraudulently acquiring land. 9. Grabbing land. 10. Making non-existent and fictitious entries into the lands register. 11. Unilaterally withdrawing a caution on the suit, land without notice to the lodger, well knowing it will severely affect the lodger's interest. 12. Unilaterally withdrawing a caution on suit land with the sole intention to effect a transaction in the land and in the interest of a 3rd party without notifying the Plaintiff. 13. Abusing the license that he was granted wanting to fraudulently become an absolute owner. 85 I will again emphasise that the burden of proof lies in who alleges to proof and this is the plaintiff. I will start by considering the allegations of intermeddling. The plaintiff’s case is that the property belonging to a deceased person was transferred without obtaining grant of letters of administration. As already noted earlier the 1st edition of the green card bears two proprietors. 86 According to PW1 his father Gabriel Onyango died on 1/1/1989. He pleaded that no succession proceedings were carried for his estate. It was his evidence that the only proceedings were undertaken by him and he produced the Limited Grant of Letters of Administration Ad Litem dated 9/05/2017. The question that arises is why succession? 87 The answer lies in Section 45 of the Law of Succession Act Cap 160 of the Laws of Kenya also cited by the Appellant which reads: ***"Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person."*** 88 In other words no person shall take possession of, dispose of, or otherwise intermeddle with any free property of a deceased person, unless authorised by law. Did the defendants produce any grant with respect to the estates of Gabriel Onyango or even better still the estate of Elisha either by dint of the alleged trust or by dint of being one of the registered proprietors as seen in the green card? 89 The 1st and 2nd defendants’ case is that the parcel was being held in trust. To plead customary trust or trust cannot serve as an answer to this question and as rightly submitted by counsel for the appellant this is a question of law and cannot have been decided by the local administration to warrant the transfer of the land to the 1st and 2nd defendant. To plead trust does not answer to the process that led to the transfer of the land into the names of the 1st and 2nd defendants. 90 It is clear that at the time of transfer there was no court determination in this regard. I have gone through the documents produced by DW1 as attached to the replying affidavit of Frankline Swaga and which he also adopted as his evidence in chief, there was no confirmed grant. However, at paragraph 22 he depones that *‘****Since the land was registered in the name of my father, Elisha Oloo, I commenced process of obtaining letters of administration with the 2nd defendant as a co-administrator so as to transfer the land to ourselves as the only beneficiaries.’*** 91 The above deposition is not accompanied with the outcome of the process that was commenced. It is not clear if the process was completed and whether it was undertaken before the 1st and 2nd defendants transferred the land to themselves. The RL 7 mentioned was not availed. A confirmed grant of letters of administration would still be required. This position is supported by the following provisions 1. Section 50 of the Land Act provides that: - ***“50. Transmission on death of a sole proprietor or proprietor in common*** ***(1) If a sole proprietor or a proprietor in common dies, the proprietor’s personal representative shall, on application to the Registrar in the prescribed form and on production to the Registrar of the grant, be entitled to be registered by transmission as proprietor in the place of the deceased with the addition after the representative’s name of the words “as executor of the will of (..............) [deceased]” or “as administrator of the estate of (................)[deceased]”, as the case may be.*** ***(2) Upon production of a grant, the Registrar may, without requiring the personal representative to be registered, register by transmission—*** ***(a) any transfer by the personal representative; and*** ***(b) any surrender of a lease or discharge of a charge by the personal representative.*** ***(3) In this section, “grant” means the grant of probate of the will, the grant of letters of administration of the estate or the grant of summary administration of the estate in favour of or issued by the Public Trustee, as the case may be, of the deceased proprietor.*** 92 Regulation 55 of the Land Registration (General) Regulations 2014 provides as follows: - ***“******Unless otherwise provided by any written law******no transfer of an interest in land of a deceased proprietor shall be registered until after the confirmation of the grant of letters of administration or the grant of probate as the case may be.”*** 93 Counsel on record for the appellant argues that the trial court ignored the express provisions of statute in this regard. I have keenly read the judgement and have noted that the trial court did impeach the titles for failure to comply with due process relating to succession. This will become clearer later in this judgement. 94 What then would be the implication of the absence of such grant. Consequently, it will be the finding of this court that the transfer of the suit property into the names of the 1st and 2nd defendant and even the subsequent transfers were unlawful and irregular. 95 What then would be the import of the above finding? The simple answer is that the 1st and 2nd defendants intermeddled with the estate of both the deceased. The transfer that led to their registration would then be rendered null and void abnitio for nothing comes out of an illegality. 96 A title that is obtained irregular or illegally must be impeached under the provisions of section 26(1)(b) of the Land Registration Act. In ***Root Capital Inc. -vs- Tekangu Farmers Co-operative Society Ltd & Another [2016] eKLR***, the court cited Lord Mansfield, that no court will lend its aid to a man who found his cause of action upon an immoral or illegal act. 97 In the **Re Estate M’Etirikia Nkatha (deceased) [2021] eKLR,** the court held that any party seeking to transfer a deceased property before confirmation of a grant has to make an application for partial confirmation of the grant to allow them to sell a portion thereof. 98 In the case of **Alice Chemutai Too versus Nickson Kipkurui Korir & 2 Others (2015) e KLR** expressed itself thus: ***"The deceased herein died in the year 1987. It has not been shown how the 1st respondent had himself registered as proprietor of the suit property 25 years after the death of the previous registered owner. No succession proceedings have ever been filed in respect of the estate of the deceased and it follows that the estate of the deceased has not been distributed. I do not think it necessary to be labour the point that the title of the 1st respondent was improperly acquired. It does not need space science to bring one to the conclusion that the 1st respondent must have acquired registration of the suit property by way of fraud. He obviously could not have perpetrated the fraud on his own and he must have colluded with corrupt and morally deficient fellows in the land registry."*** 99 The fate of titles acquired irregularly was sealed in the case of ***Dina Management Limited vs. County Government of Mombasa & 5 others [2023] KESC 30 (KLR****)* where the Supreme Court of Kenya stated thus; - ***Article 40 of the*** [***Constitution***](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution) ***entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired.”*** 100 The upshot of the foregoing is that there was no valid transfer to the 1st and 2nd Defendants and thus no valid transfer to the 3rd respondent and the titles were ripe for impeachment. The transfers were not lawful. 101 The above then takes me to the question of the final orders that were issued in the judgement by the trial court. Also whether the plaintiff was entitled to the orders. These have already been mentioned earlier on in this judgement. **Whether the trial Magistrate erred in issuing the final orders herein Whether the plaintiff was entitled to the orders sought in the plaint dated 9th May 2017.** 102 The plaintiff invited the trial court to nullify and cancel the titles numbers 3694, 3695 and 3696, consolidation and restitution of the lands to the Plaintiff as a beneficial owner, at the Defendants' expense. In view of the finding on customary trust the orders as sought essentially would not issue. 103 Arising from this courts analysis and findings herein it goes without say that the above titles would have to be cancelled and indeed the court is clothed with powers to cancel titles and rectify the register. The trial court in its judgement before pronouncing the final orders (page 113 of the ROA) stated thus; - *‘The* ***cancellation and nullification of the new title numbers UHOLO/UGUNJA/3694/369/UGUNJA/3694/3695 and 3696 is allowable for the reason that the 1st and 2nd defendant did not follow due process by instituting proper Succession proceedings before changing the registration of the suit property and subsequently sub-dividing it’****.* This court agrees with the trial court in this regard. 104 The plaintiff produced a Limited Grant of Letters of Administration for the estate of his father being one of the registered owners of the suit property. The purpose of the grant was only for purposes of litigating and collecting the estate. The plaintiff vehemently stated that the Defendants could not claim under customary trust they being not the legal administrators of the deceased and which issue I have already made a finding. In this case the plaintiff did not sue the Legal representative of Elisha Oloo even if he did not recognise the name in the parcel register. 105 For me once the title is cancelled the only logical result would be to revert the register to the position that it was in before the illegalities were committed to the true owner. This court having affirmed the finding of the trust then the orders of the trial court to nullify and cancel the titles numbers 3694, 3695 and 3696 and reverting the original title Number UHOLO/UGUNJA/268 to Elisha Oloo were in order being the true owner of the land. 106 Armed with the present order in favor of customary trust for Elisha Oloo then the 1st and 2nd Defendants are required to move the succession court appropriately in accordance to the law for distribution of the estate of Elisha. 107 The Plaintiff also sought general damages for trespass. This prayer could only rest on a finding that the Defendants were trespassers into the suit property which was not proved. **What reliefs ought to issue in this appeal** 108 It is trite that under the provisions of section 13 of the Environment and Land Court Act this court has jurisdiction to make any orders for the ends of justice. It is also my position that a counterclaim is not required to make a declaration of trust. 109 On costs I would still find that each party bear their own costs of the trial court proceedings as well as this appeal in view of the fact they are relatives. 110 What reliefs ought to issue in view of the circumstances of this case and the findings of this court. I will sustain the orders as issued by the trial Court. 111 The following orders shall issue to dispose of this appeal; - 1. A declaration that Gabriel Onyango, held the suit property UHOLO/UGUNJA/268 in trust for Elisha Oloo by way of a customary trust 2. A declaration that the Plaintiff has no interest in the suit property UHOLO/UGUNJA/268 as his father Gabriel Onyango was only a trustee for Elisha Oloo. 3. The register for parcel UHOLO/UGUNJA/268 shall be rectified to expunge the name of Gabriel Onyango, the trustee now deceased and retain the name of Elisha Oloo. 4. The titles UHOLO/UGUNJA/3694,3695 and 3696 be and are hereby cancelled and the original title UHOLO/UGUNJA/268 reinstated in the name of Elisha Oloo pending proper succession proceedings. 5. The parties to bear their own costs of the trial proceedings and this appeal. Orders accordingly **Delivered** and **Dated** This 28th **Day** of **July 2026** **HON. LADY JUSTICE A.E. DENA** **JUDGE** **28/07/2026** **Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:** Mr. Omulama for Appellant Mr. Ngaywa for the 1st, 2nd & 3rd Respondents No appearance for 4th Respondent. Court Assistant – Abiud Wekesa .