https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4886

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT SIAYA** **ELC L C. EOO6 OF 2023** **STEVE OCHIENG ONYANGO……..........................................PLAINTIFF** **VERSUS** **CHRISPINE OCHIENG OKUMU…………………...........1ST DEFENDANT** **THE HON. ATTORNEY GENERAL (sued for and on behalf of the Principal Magistrate, Ukwala) ……………………….2ND DEFENDANT** **JUDGEMENT** 1 The Plaintiff commenced this suit by way of plaint dated 31/10/2023 amended on 1/4/2025 as the Administrator of the estate of the late Joseph Onyango Oduor the registered proprietor of parcel numbers LR. NO. UHOLO/MADUNGU/982 and 1002. It is averred that these parcels are subdivisions of parcel I.R. NO. UHOLO/MADUNGU/423(herein mother parcel), having been numerously sub divided. That the said mother parcel was registered in the names of HWAGA ONYISO and the late PETER ONYISO. 2 It is averred that the 1st Defendant sometime around 22/01/2020 instituted a suit UKWALA/PMC/ELC. NO. 6/2020 for nullification of sub-divisions of titles to land parcel numbers LR. NO. UHOLO/MADUNGU/1001, 1002, 981, 982 and 1322. 3 It is further averred that the late JOSEPH ONYANGO ODUOR was not involved in the said proceedings being the registered proprietor of LR. NO. UHOLO/MADUNGU/982 &1002 having purchased the same from EPHRAIM ONYANGO OMOLLO who had purchased the same from the late PETER ONYISO. 4 The plaintiff states that the Judgment in UKWALA/PMC/ELC. NO. 6/2020 was entered ex-parte in favour of the Plaintiff therein CHRISPINE OCHIENG OKUMU (Suing as the Administrator of the estate of the late MARTINUS OKUMU alias MARTIN OKUMU) and delivered on the 26th day of June 2022. 5 That Plaintiff herein approached the Court in UKWALA/PMC/ELC. NO. 6/2020 through a Notice of Motion dated 12th October 2022 and filed on the 13th October 2022 seeking to be enjoined as an interested party in the said suit and be granted leave to defend the suit but the same was dismissed on the 17/3/ 2023. 6 It is averred that as a result of the 2nd Defendant’s actions, the Plaintiff runs the risk of being permanently deprived of his rights over LR. NO. UHOLO/MADUNGU/982 &1002. The plaintiff prays for Judgment against the Defendants for; - 1. A declaration that the proceedings of UKWALA/PMC/ELC. NO. 6/2020 are null and void for having left out the estate of the deceased owner of LR. NO. UHOLO/MADUNGU/982 &1002 one JOSEPH ONYANGO ODUOR and the same be set aside. 2. The cancelled titles of LR. NO. UHOLO/MADUNGU/982 &1002 be reverted back to the name of the deceased JOSEPH ONYANGO ODUOR. 3. A permanent injunction does issue to the 1st Defendant restraining him either by himself, through his family, agents, servants and/or employees from interfering with said parcels that originally named LR. NO. UHOLO/MADUNGU/982 &1002 pending the hearing and determination of this suit. 4. This Honourable Court issue a prohibitory order inhibiting any registration, transactions, dealings with the property known as LR. NO. UHOLO/MADUNGU/982 &1002 pending the hearing and determination of this suit or until further orders of this court. 5. The costs of this suit be borne by the Defendants. 7 The 1st defendant responded to the suit by way of preliminary objection dated 12/3/2024. Only one ground met the threshold of a preliminary point of law while the rest of the grounds raised were dismissed for requiring that facts be ascertained. The suit against the 2nd defendant being a judicial officer was struck out for offending Article 160(5) on judicial officer immunity for acts done or omitted in good faith in line with the doctrine of separation of powers and judicial independence. 8 On 8/4/2025 the firm of Jesse David, Ochanyo & Kurgat Advocates vide a Chamber Summons dated 24/3/2024 sought leave to cease from acting for the Defendant for want of sufficient instructions. Leave was granted on 01/10/2025. 9 Thereafter the defendant was served to attend court on several dates but never appeared. The matter proceeded for hearing on 10/3/2026 in the absence of the defendant after the court was satisfied with service as evidence by the affidavit of service filed on 9/2/2026 and sworn by Julius Otieno Raminya on 16/2/2026. 10 The plaintiff Steve Ochieng Mac Onyango, testified on his behalf as PW1 told the court he is a resident of Uholo Mungao sublocation and a farmer. He adopted his witness statement dated 31/10/2023 as his evidence in chief and produced the documents list in the list of documents dated 31/10/2023 as his evidence PEx 1-5. 11 He testified that his father bought the land in 2014 and added an adjacent piece in 2016 as evidenced by the titles produced. That in 2022 he was called by an unknown person that they should never enter the land again and if they want their land back, they should go back to the person who sold it to them. Upon a search he discovered that the titles had been by nullified by the Ukwala court though they had never been informed nor served. The witness implored the court to nullify the proceedings at Ukwala and revert the titles to his father and costs of the litigation. 12 With the above both the plaintiff and the defendant’s case were marked as closed. Counsel for the Plaintiff filed submissions dated 20/4/2026 and which I will refer to in the cause of the judgement. **ANALYSIS AND DETERMINATION** 13 I have considered the plaintiffs pleadings, the evidence tendered and the submissions filed herein. The main issue for determination is Whether the Plaintiff is entitled to the reliefs sought in the amended plaint. The prayers are discussed as follows;- **Whether the proceedings Ukwala/PMC/ELC ELC No. 6 of 2020 should be declared null void** 14 The substratum of the plaintiff’s case is the proceedings in Ukwala/PMC/ELC ELC No. 6 of 2020. The plaintiff produced as part of his evidence before court the proceedings, Judgement, ruling on the Notice of Motion dated 12/10/2022 and 9/01/2023 in the lower court suit. The plaint in the said suit does not form part of the plaintiffs’ documents in the present suit. 15 However according to the witness statement adopted as PW1 evidence in chief the said proceedings were commenced in January 2020 by Chrispine Ochieng Okumu the 1st defendant herein suing as the administrator of the estate of the late Martinus Okumu Owuor alias Martin Okumu Owuor. From the exhibits presented, the court notes the suit was against John Hwaga Onyiso alias Hwaga Onyiso, Peter Onyiso and the Land Registrar Ukwala. PW1 evidence was that his father Joseph Onyango Oduor (herein Joseph) was not involved in the said proceedings yet he was the registered owner of parcel Uholo/Madungu/982 & 1002 which he had purchased from Ephraim Onyango Omolo. Ephraim had purchased the same from the late Peter Onyiso. 16 PW1 further evidence is that the matter was heard exparte and pursuant to the judgement the decree holder 1st defendant herein issued eviction notice to PW1. PW1 then filed an application before the trial court seeking to be enjoined as an interested party and be granted leave to defend the suit but the application was dismissed on the basis that the court was functus officio. PW1 told the court that the nullifications of the ensuing subdivisions registered to Joseph was done to his detriment and him included as a beneficiary. 17 The copy of the judgement was produced as evidence before this court. In the judgement the trial court issued orders that all the subdivisions of the mother title were nullified including 1002 and 982. Further that the land registrar upon cancellation of the titles, John Hwaga Onyiso, Peter Onyiso, Martinus Okumu Owuor and Paulus Obonyo be registered as co-owners of the mother title in ¼ share. 18 Counsel on record for the plaintiff urged that the proceedings in Ukwala PMC ELC No. 6 of 2020 are null and void for failure to enjoin a necessary party. It is urged that plaintiff’s father was still alive then but was never enjoined yet orders were made cancelling his title a fundamental procedural defect affecting proprietary rights as well as going against the cardinal principle of natural justice under article 50 of the Constitution of Kenya 2010. It is contended that the judgement having been obtained without involving a registered owner is legally unsustainable 19 It is not in dispute that at some point in time the plaintiff’s father was the registered owner of the parcels 982 and 1002 herein. PW1 has produced a title deed dated 14/01/2016 for parcel 1002 being a subdivision of parcel 981 and title deed for 982. I must note however no copies of the latest Certificate of Official searches have been adduced to authenticate the current status of the register considering the judgement of the trial court. 20 I have already rehashed the orders that were made pursuant to the judgement in the trial court. I have also keenly looked at the copies of proceedings and judgement. It can be deduced from the citation that Joseph the holder of these two titles was not a party to the proceedings. 20 But I think there is a procedural concern that arises. I pondered over two issues and which I could not wish away. Firstly, whether a party can seek to impugn a judgement of a trial court through a suit commenced by way of plaint. 21 Secondly considering that the trial court had already dismissed an application by the said party for joinder as an interested party to stay and set aside the judgement and to be allowed to defend the suit. 22 In its ruling dated 17/3/2023 the trial court noted that on a balance of probabilities there was a triable defence but the judgement having been executed it would be in vain or the court to set aside a judgement that has been fully executed. The court held it was functus officio. That there was also an application by John Hagwa Onyiso to set aside the judgement which was also was dismissed for failure to attach a draft defence and further on the same basis. The court also noted that the remedy was in a superior court. 23 PW1 evidence is that he lost the application for joinder and an opportunity to defend the suit. 24 For me I think the remedy before a superior court as hinted by the trial court would have been by way of appeal against the ruling of the trial court and not to file a fresh suit suing the plaintiff in the trial court. This court as constituted can only properly deal with the issue either as an appellate court sitting on the decision dismissing the application for joinder and setting aside. The other option would have been probably by way of judicial review. 25 The estate of Joseph for purposes of a new suit could only have a claim against Ephraim Onyango the vendor who sold the parcels to Joseph pursuant to the doctrine of privity of contract. Ephraim could then claim from Peter Onyiso whom he bought from and who as a matter of interest remains a co-owner holding ¼ share based on the judgement of the lower court. 26 Based on the foregoing this court is divested of jurisdiction to impugn the proceedings and judgement in the manner presented before it. **Whether the cancelled titles of LR. NO. UHOLO/MADUNGU/982 &1002 be reverted back to the name of the deceased JOSEPH ONYANGO ODUOR.** 27 This court has essentially from the foregoing discussions declined to grant the 1st order declaring the proceedings null and void. For the same reasons then the orders reverting the titles cannot issue. In any event the judgement of the trial court dated 26/5/2022 and execution undertaken pursuant thereto has never been set aside and still remains a valid judgement until it is set aside. 28 I think I have said enough why the present suit must be struck out. It is hereby struck out. There will be no orders as to costs. **Delivered** and **Dated This** **29th Day** of **July 2026** **HON. LADY JUSTICE A.E. DENA** **JUDGE** **29/7/2026** **Judgment delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:** Ms. Achieng holding brief for Mr. Nyanga for plaintiff No appearance for Defendant Court Assistant: Abiud Wekesa