https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4458

Okello (Suing as Personal Representative of Alfonce Odhiambo Apoda - Deceased) v Barasa (Sued as Personal Representatives of Herenia Atsieno Odhiambo - Deceased) & 5 others (Environment and Land Case E005 of 2022) [2026] KEELC 4458 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELC 4458 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Case E005 of 2022 BN Olao, J July 16, 2026 Between Sylvanus Wanzala Okello (Suing as Personal Representative of Alfonce Odhiambo Apoda - Deceased) Plaintiff and Gaudencia Aluochi Barasa (Sued as Personal Representatives of Herenia Atsieno Odhiambo - Deceased) 1st Defendant Godfrey Wesonga Nyakwala (Sued in Personal Capacity and as the Personal Representative of Selefesta Nyakwala alias Silvester Nyakwala - Deceased) 2nd Defendant John Oduori Nyakwala 3rd Defendant David Odhiambo Odongo 4th Defendant Snaider Mulongo Nyakwala 5th Defendant Lorna Mukwan Nyakwala 6th Defendant Judgment 1.This judgment was due on 3rd March 2026. However, following my transfer to Iten Court w.e.f 15th January 2026, I had to prioritize my part heard cases. That has contributed to the delay in delivering this judgment. The same is regretted. 2.Sylvanus Wanzala Okello (the Plaintiff Herein And Suing As The Legal Representative Of The Estate Of Alfonce Odhiambo Apoda) Approached This Court Vide His Plaint Dated 4Th February 2022 And Filed On 9Th March 2022. He Sued Gaudensia Aluoch Barasa, (sued As The Legal Representative Of The Estate Of Herenia Atsieno Odhiambo), Godfrey Wesonga Nyakwala (sued As The Legal Representative Of The Estate Of Selefesta Nyakwala Alias Sylvester Nyakwala), John Oduori Nyakwala, David Odhiambo Odongo, Snaider Mulongo Nyakwala, And Lorna Mukwan Nyakwala (the 1St To 5Th Defendants Respectively). The Plaintiff Sought Judgment Against The Defendants Jointly And Severally In The Following Terms With Respect To The Land Parcel No Marachi/Bukhalalire/882 (the suit land):1.An order of cancellation of the land parcels NO Marachi/Bukhalalire/1321, 1322, 1694, 1695, And 1696 And Cancellation Of The Titles And Registration Of Herenia Atsieno Odhiambo Alias Lierrenia Atsieno Odhiambo, Selefesta Nyakwala Alias Sylvester Nyakwala And The 2Nd, 3Rd, 4Th, 5Th, And 6Th Defendants On The Land Parcels No Marachi/Bukhalalire/ 882, 1321, 1322, 1694, 1695, And 1696 To Restore The Land Parcel No Marachi/Bukhalalire/ 882 In The Name Of Alphonce Odhiambo Apoda (deceased).2.In the alternative to prayer (1) above, the Defendants be ordered to transfer the land parcels No Marachi/Bukhalalire/1322, 1694, 1695, And 1696 To The Plaintiff As The Personal Representative Of The Estate Of Alphonce Odhiambo Apoda and in default the Deputy Registrar be authorized to execute all the transfer documents/instruments to effect the transfer.3.An order of permanent injunction against the Defendants jointly and severally, their agents, family members, employees, servants, and any other persons claiming under them from interfering with, selling, disposing off, cutting trees, cultivating and in any manner dealing with the land parcel NO Marachi/Bukhalalire/882.4.Costs to the plaintiff. 3.The basis of the plaintiff’s case is that he is the legal representative of the Estate of Alphonce Odhiambo Apoda Having Been So Appointed Vide Busia Cmc Succession Misc. Application No E5 Of 2022 And The 1St Defendant Is The Legal Representative Of The Estate Of Herenia Atsieno Odhiambo Alias Lierrenia Atsieno Having Been So Appointed Vide Busia Cmc Misc. Succession Application No. E4 Of 2022 While The 2Nd Defendant Is Sued In His Personal Capacity And Also As The Legal Representative Of The Estate Of Selefesta Nyakwala Alias Sylvester Nyakwala, Having Been So Appointed Vide Busia Cmc Succession Cause No. 267 Of 2017 And Is Also The Trustee To The 3Rd, 4Th, 5Th, And 6Th Defendants In Respect To The Land Parcels No Marachi/Bukhalalire/1695 And 1322. That The Deceased Alfonce (alphonce) Odhiambo Apoda (herein After Apoda) Was The Registered Proprietor Of The Suit Land Measuring 3.4 Hectares As Designated On Map Sheet 11. That Herenia Atsieno Odhiambo (hereinafter Herenia) Illegally And Fraudulently Registered The Suit Land In Her Name, Which She Then Illegally, Unprocedurally And Fraudulently Sub-divided To Create The Land Parcels No Marachi/Bukhalalire/1321 And 1322. The Land Parcel No Marachi/Bukhalalire/1321 Was Further Sub-divided To Create The Land Parcels No Marachi/Bukhalalire/1694, 1695, And 1696. 4.The particulars of fraud, illegality, unprocedural and unlawful subdivision of the suit land to create the land parcels NO Marachi/Bukhalalire 1321, 1322, 1694, 1695, and 1696 which parcels were then registered in the Defendants’ names have been pleaded in paragraphs 10(a) to 10(j) as follows:a.The transfer of the suit land to Herenia was done on 27th February 1991 long after the death of Apoda, the registered owner.b.No succession proceedings in respect of the Estate of Apoda have been lodged to-date.c.The late Apoda did not execute transfer documents, mutation forms, application for Land Control Board consent or any other instrument to relinquish or transfer his property rights.d.There is no mutation, Land Control Board application for consent and consent to sub-divide the suit land and the land parcel No Marachi/Bukhalalire/1321.e.There are no succession proceedings in respect of the Estate of Selefesta Nyakwala Alias Sylvester Nyakwala and/or the said proceedings if any are unprocedural, illegal, and fraudulently procured.f.The late Herenia herself has never sold or transferred any portions of the original suit land.g.There is no agreement or land sale agreement.h.The Defendants are interfering with and denying the plaintiff/beneficiaries of the Estate of Apodo their rightful shares.i.The transfer and sub-division of the land parcel NO Marachi/Bukhalalire/882 did not follow the right procedure.j.No stamp duty was paid.The plaintiff pleaded further that the Defendants have trespassed and are interfering with the suit parcels before constructing a structure, cutting trees and destroying crops. The Defendants’ acts are illegal and unlawful as they have no right on the said parcels of land and despite intention to sue, the Defendants have refused and/or ignored to make good the claims hence this suit. 5.The plaintiff filed his statement dated 4th February 2022 together with those of his witness Ephrahim Murambo Obiero (PW2) and others who however did not testify. He also called as his witness the Land Registrar Busia Violet Lamu (PW3) who, as an expert witness, did not record any statement. 6.In his statement dated 4th February 2022, the plaintiff states that he is the legal representative of the Estate of Apoda having been so appointed vide BUSIA CMC SUccession Misc Application No E5 Of 2022 And Who, At The Time Of His Demise On 3Rd August 1983, Was The Husband To Herenia Who Died On 19Th October 2012. That Apodo Was The First Registered Proprietor Of The Suit Land On 18Th September 1967. That On 27Th February 1991, Herenia Registered Herself As The Proprietor Of The Suit Land In A Process Which Was Illegal, Unprocedural And Fraudulent As Apoda Was Already Deceased And Could Not Have Authorized The Transfer As No Succession Proceedings Had Been Lodged In Respect Of The Estate Of Apoda. Upon The Illegal, Fraudulent And Unprocedural Transfer Of The Suit Land, It Was Also Illegally, Fraudulently And Unprocedurally Sub-divided To Create The Land Parcels No Marachi/bukhalalire/1321 And 1322. The Land Parcel No Marachi/bukhalalire/1321 Was Registered In The Name Of Herenia On 22Nd October 1991 And Later It Was Fraudulently And Illegally Sub-divided To Create The Land Parcels No Marachi/bukhalalire/1694, 1695 And 1696. The Land Parcels No Marachi/bukhalalire/1694 And 1696 Are In The Name Of Herenia While The Land Parcels No Marachi/bukhalalire/1322 And 1695 Were Transferred To Selefesta Nyakwala Alias Sylvester Nyakwala Whose Estate Is Represented By The 2Nd Defendant And Who Holds Them In Trust For The 3Rd, 4Th, 5Th And 6Th Purportedly Following Succession Proceedings In Busia Cmc Succession Case No 267 Of 2017. That Infact Those Succession Proceedings Are In Respect To The Estate Of One Ojuangi Andanje And Not In Respect Of The Estate Of The Said Selefesta Nyakwala. The transfer of the suit land to Herenia and the subsequent sub-divisions and transfer were illegal, fraudulent and unprocedural and the beneficiaries, children, heirs and dependents of Apoda have been disinherited. 7.In his statement also dated 4th February 2012 Ephrahim Muramba Obiero (PW2) states that the suit land belongs to Apoda who never sold it to any person including the Defendants. That the Defendants illegally and fraudulently sub-divided it and transferred the bogus titles before the Succession process for the Estate of Apoda had been done. That the 2nd Defendant fabricated a Succession Cause in respect of the Estate of Selefesta Nyakwala which does not exist thus disinheriting the plaintiff and the 1st Defendant being the heirs of the plaintiff. Save for the 1st Defendant, the other Defendants have no right or interest in the suit land. 8.Violet Lamu (PW3) is the Land Registrar Busia. She did not record any statement being an expert witness. I shall summarize her oral testimony later in this judgment. 9.The plaintiff filed a list of documentary evidence dated 4th February 2022. It contains the following documents:1.Limited Grants issued in Busia Cmc Misc Application No 4 of 2022 and NO 5 of 2022.2.Adjudication Register for BUSIA/EBukhalalire Section parcel NO 882.3.Certified copies of the Register / Green Cards for the land parcels No Marachi/Bukhalalire/882, 1321, 1322, 1694, 1695 and 1696.4.Certificates of search for the land parcels No Marachi/Bukhalalire/1322, 1694 and 1695.5.File for BUSIA CMC Succession Cause No 267 Of 2017 In Respect Of The Estate Of Ojuangi Andanje.6.Death certificate for Alfonce Odhiambo Apoda showing date of death as 3rd August 1983.7.Kenya Gazette Notice NO 9681 of 2017.8.Copy of Confirmation of Grant issued in Busia CMC SUccession Cause No 267 Of 2017 Estate Of Ojuangi Andanje.9.Ob No 13/20/1/2021 Issued At Murumba Police Post.10.Bundles of photographs.11.Map sheet NO 11.By a further list of documents dated 20th June 2023, the plaintiff filed the following documents:1.Mutation Form for LR Marachi/Bukhalalire/882.2.Application for consent to transfer land parcel NO Marachi/Bukhalalire/882.3.Consent to transfer land parcel No Marachi/Bukhalalire/882.4.Transfer Form for the land parcel NO Marachi/Bukhalalire/882. 10.The 1st Defendant did not file any defence. Instead, she filed a Notice of Admission of case dated 3rd June 2022 and filed on 22nd June 2022 stating that she “admits to the truth of the whole case by the plaintiff”. 11.The 2nd to 6th Defendants filed a joint defence and counter-claim dated 9th December 2022. 12.They pleaded that the 1st Defendant is the sole surviving daughter of Herenia And Apoda and is indirectly pausing as the plaintiff by suing through her uncle Sylvanus Wanzala Okello who is the plaintiff herein. That therefore, the 1st Defendant is suing herself and this suit is founded on feigned and frivolous reasons including the particulars of fraud. That all along, the plaintiff and the 1st Defendant were aware about the 2nd to 6th Defendants’ occupation of the suit land and subsequent sub-divisions as innocent purchasers. 13.They denied all the allegations of fraud and illegalities levelled against them or that they are trespassers on the land in dispute. They denied further that their titles are amenable to cancellation or that the plaintiff and the 1st Defendant are entitled to the orders sought. 14.In their counter-claim, the 2nd to 6th Defendants pleaded that they had purchased the suit land which then underwent subdivisions to create the land parcels NO Marachi/EBukhalalire/1322 and 1695 from Herenia. That they purchased the said parcels of land without any notice of defect in the registered proprietor’s title. That the 2nd to 6th Defendants’ father Selefesta Nyakwala Alias Sylvester Nyakwala then settled his family which comprised of the 2nd to 6th Defendants on the said parcels of land in 1992 to date and they are therefore entitled to be registered as the owners thereof even if the titles of those sub-divisions are to be cancelled as sought by the plaintiff and the 1st Defendant. 15.That the plaintiff and the 1st Defendant were well aware of their occupation of the land in dispute but went to sleep for over 30 years and this suit is time barred as the 2nd to 6th Defendants have now acquired the land by adverse possession and counter claim the same. 16.Alternatively, the 2nd to 6th Defendants seek an order that the parcels of land comprised in the original suit land be registered in their names. The plaintiff and the 1st Defendant be directed to sign the relevant documents and in default, the Deputy Registrar be empowered to do so. 17.The 2nd to 6th Defendants therefore seek judgment as follows:1.The plaintiff’s suit be dismissed.2.Their counter-claim be allowed with costs. 18.The 2nd Defendant Godfrey Wesonga Nyakwala filed an undated statement in support of the 2nd to 6th Defendants’ defence. Their case is that the land parcels NO Marachi/Bukhalalire/1322 and 1695 were registered in the name of his father Selefesta Nyakwala Alias Sylvester Nyakwala (hereinafter Nyakwala). That the said Nyakwala purchased the land parcels NO Marachi/Bukhalalire/1322 and 1695 from Herenia in 1992 and obtained the title deeds. That his family which was originally living in Murumba area moved to the said land where they have lived to-date. That in 2003, his father purchased an additional portion measuring 0.915 hectares from Herenia out of the parcel NO Marachi/Bukhalalire/1695. The family has extensively cultivated the said parcels of land where they have put up their homes. That Herenia had only one daughter who is the 1st Defendant. That Herenia transferred the said parcel NO Marachi/Bukhalalire/1695 to the 2nd Defendant’s father because it was him who used to take care of her. 19.However, recently the 1st Defendant started cultivating a portion of the land parcel NO Marachi/Bukhalalire/1695 and also leased a portion thereof to one Imelda Maindi. So the 2nd Defendant complained to the area chief who called the County Surveyor but both the 1st Defendant and Imelda Maindi did not attend although they had been summoned. However, the County Surveyor pointed out the position of the land parcels NO Marachi/Bukhalalire/1694 and 1696. The 2nd Defendant wrote a demand notice to the 1st Defendant but instead, the plaintiff filed this suit. 20.That his father lawfully acquired the land parcels Marachi/Bukhalalire/1322 and 1695 from Herenia who was the only widow of Apoda. His father was an innocent purchaser and his family has also continued to occupy the land parcels NO Marachi/Bukhalalire/1322 and 1695 from 1992 peacefully and exclusively and is entitled to the said parcels of land by virtue of a trust and adverse possession. That the filing of this suit by the plaintiff who is a stranger to this suit and instead of the 1st Defendant is an illegal and deceptive design to nullify the titles of the 2nd to 6th Defendants. That substantially, the 1st Defendant is both the plaintiff and a Defendant in this case. Further that this suit is time barred having been filed 36 years later after the demise of both Nyakwala and Herenia. 21.The Defendants also filed statements of their witnesses Arnold Odwar Oyubo (DW2) and Simon Wedende Oyubo (DW4) both undated but filed on 15th March 2023. They also called during the trial Brian Mumero (DW3) an officer of this court who produced court records. 22.In his statement Arnold Oduor Oyubo (DW2) states that Nyakwala was his cousin and their father had purchased the parcels of land from Herenia in whose name the suit land was registered and who was selling the same. That when she was selling the suit land, Herenia involved her daughter who is the 1st Defendant. That during the purchase of the suit land, the plaintiff never raised any objections. That after selling the suit land, Herenia moved and built her house on her husband’s land. 23.In his statement, Simon Wedende Oyubo (DW4) confirms that he too is a cousin to Nyakwala who purchased the land parcels NO Marachi/Bukhalalire/1322 and 1695 from Herenia. That he then erected a home thereon where he settled. 24.The 2nd to 6th Defendant filed the following documents in support of their case as per the list of documents dated 28th February 2023:1.Certificate of Official Search for the land parcel NO Marachi/Bukhalalire/1322.2.Certificate of official search for land parcel NO Marachi/Bukhalalire/1695.3.Letter from the Assistant Chief Bukhalalire sub-location.4.Petition for Grant of Letters of Administration filed on 30th May 2016 by the 2nd Defendants in respect of the Estate of Nyakwala In Busia Cmc, Succession Cause No 267 of 2016.5.Title deed for land parcel NO Marachi/Bukhalalire/1322.6.Title deed for the land parcel NO Marachi/Bukhalalire/1695. 25.The hearing commenced on 11th October 2023 and ended on 13th October 2025 when the Defendants closed their case. The plaintiff testified and called his witnesses. They all adopted as their testimony the contents of their statement which I have already summarized. 26.The plaintiff also called as his witness Violet Lamu (PW3) the Land Registrar Busia. She told the court that although the Green Card to the suit land showed that it was transferred to Herenia on 27th February 1991, she could not tell if Apoda the transferor was already deceased. She added that the suit land was then sub-divided to create the land parcels NO Marachi/Bukhalalire/1322 and 1321. That the land parcel of NO Marachi/Bukhalalire/1321 was then further sub-divided to create the land parcels NO Marachi/Bukhalalire/1694, 1695 and 1696 on the basis of a Confirmed Grant issued in Succession Cause NO 267 of 2017 but which had been altered from NO 367 of 2017. She added however that the application to transfer and Letter of Consent in respect to the suit land were not dated. 27.The Defendants’ case commenced on 23rd April 2025. Before that happened, and at the request of the plaintiff’s counsel MR. WERE, the separate defences filed by the 2nd to 6th Defendants were struck out from the record because they had also filed a joint statement of defence dated 9th December 2022. 28.The 2nd Defendant testified on behalf of the 2nd to 6th Defendants and called their witnesses who testimony I have already summarized above. 29.They also called as their witness Brian Mumero (DW3) the Officer in charge of this Court’s Succession Registry. He produced as their documentary evidence the following files:1.Busia Cmc Succession File No 267 Of 2017 Estate Of Ojwangi Adanje.2.Busia Cmc Succession File No 377 of 2017 (previously HC Succession Cause No 454 Of 2011) Estate Of Ejakait Okedi.3.Busia Cmc Succession Cause File No 267 Of 2016 Estate Of Selefesta Nyakwala Alias Sylvester Nyakwala. 30.Submissions Were Thereafter Filed Both By Mr. Fwaya Instructed By The Firm Of Fwaya Masakhwe Were & Advocates For The Plaintiff And By Mr. Wanyama instructed by the firm of Wanyama & Company Advocates for 2nd to 6th Defendants. 31.I have considered the evidence by the parties and the submissions by counsel. I have identified the following as the four issues for my determination in this case. These are:1.Whether the transfer of the suit land from Apoda to Herenia was procured fraudulently and illegally and therefore all the subsequent titles should be cancelled.2.Whether the Defendants obtained good titles to the land parcels NO Marachi/Bukhalalire/1321, 1322, 1694, 1695 and 1696.3.Whether the Defendants are entitled to the orders that they have acquired the said titles by way of trust and adverse possession.4.Who meets the costs of the suit and counter-claim. 32.The Register for the suit land shows that it was first registered in the name of Apoda on 18th September 1967. He was the first registered owner and on 27th February 1991, it was transferred to Herenia at a consideration of Kshs.9,000. However, the death certificate for Apoda shows that he died on 3rd August 1983. Apoda could not have resurrected in 1991 to execute any transfer documents in respect to the suit land in favor of Herenia. It is not therefore surprising that the 1st Defendant who was sued as Herenia’s legal representative readily conceded to the plaintiff’s claim that the said transfer was procured fraudulently and illegally. The Defendants have relentlessly pursued the narrative that the plaintiff and the 1st Defendant are in fact one and the same person prosecuting the same claim. Indeed, in paragraph 3 of their defence, the 2nd to 6th Defendants have pleaded inter alia, that:“The 2nd to 6th Defendants add that the 1st Defendant, Gaudencia Alowech Barasa, is indirectly pausing (sic) as the plaintiff by suing through his uncle one Sylvanus Wanzala Okello and the said 1st Defendant being the daughter of Alphonce Odhiambo Apoda And Herenia Otsieno Odhiambo has practically and substantially sued herself as a Defendant in (sic) consequently, the suit as conceived by the 1st Defendant is founded on feigned and frivolous reasons and the alleged particulars of fraud for which both the plaintiff and the 1st Defendant are answerable and were all along aware of the 2nd to 6th Defendants occupation of the suit parcels of land as innocent purchasers for value and in possession exclusively and continuously for several decades.”Nothing really turns on that. Indeed, the 1st Defendant herself, if she had obtained the Limited Grant, would have been clothed with the jurisdiction to file this suit on behalf of the late father Apoda’s Estate. It does not need rocket science to prove that Herenia Did not obtain a good title to the suit land and which can be protected by Article 40(1) of the Constitution or Section 24 (1) of the Land Registration Act. The plaintiff has been able to establish fraud in accordance with the threshold set out in the case of Vijay Morjaria -v- Nansingh Madhusingh Dabbar & Another 2000 KECA 223 KLR among other cases on the subject. 33.As to whether the 2nd to 6th Defendants obtained good titles to the land parcels NO Marachi/Bukhalalire/1321, 1322, 1694, 1695 and 1696, those Defendants claim to have purchased the said parcels of land from Herenia. The 1st Defendant who is Herenia’s daughter and legal representative has herself conceded to the plaintiff’s claim that Herenia could not have acquired the suit land through lawful means. And even in the absence of that concession, it was always going to be impossible and a herculean task for the 2nd to 6th Defendants, given the cogent documentary evidence herein, to justify their counter-claim that they obtained good titles to the land parcels NO Marachi/Bukhalalire/1321, 1322, 1694, 1695 and 1696. Herenia’s title to the suit land having been illegally and fraudulently obtained, she could not transfer it or any portions thereof to the 2nd to 6th Defendants or to any other person for that matter. It is well settled that an illegality can only beget another illegality. In the case of Mistry Amar Singh -v- Serwano Wofunira Kulobya 1963 EA 408 and which has been affirmed by other courts in this Country including in Standard Chartered Bank Kenya Ltd -v-intercom Services Ltd & 4 Others 2004 eKLR, it was stated that once illegality is proved, the court will not allow anybody to benefit from such illegality. The Supreme Court Also Addressed This Issue In The Case Of Dina Management Ltd -v- County Government Of Mombasa & 5 Others Petition N0 8 of 2021 [2023 KESC 30 KLR] at page paragraph 108 that:108“… it is not enough for a party to state that they have a lease or title to the property. In the case of Funzi Development Ltd & Others -v- County Council Of Kwale Mombasa Civil Appeal No 252 OF 2005 [2014 eKLR], the court of Appeal, which decision this Court affirmed, stated that “… a registered proprietor acquires an absolute and indefeasible title if, and only if, the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of title, sanction an illegality or give its seal of approval to an illegal or irregularly obtained title.”The court went on to observe that a title or lease is an end product of a process. If the process that was followed prior to issuance of title did not comply with the law, then such a title cannot be held as indefeasible. 34.It follows therefore that the 2nd to 6th Defendants do not hold good titles to the land parcels created out of the original suit land. I notice from the Certificate of Official Search that the land parcels NO Marachi Bukhalalire 1321, 1694 and 1696 are still registered in the name of Herenia. The land parcels NO Marachi Bukhalalire/1322 and 1695 have since 3rd November 2017 and 30th November 2017 respectively been registered in the name of the 2nd Defendant. I did not see any Certificate of Search for the land parcels NO Marachi/Bukhalalire/1321, 1322, 1694, 1695 and 1696 in the names of the 3rd, 4th and 5th, 6th Defendants. The cases against them are for dismissal. They were improperly impleaded. All those titles including the ones in the name of Herenia are for cancellation and to be restored in the name of Apoda, the original owner of the land parcel NO Marachi/Bukhalalire/882. 35.The 2nd to 6th Defendants have in their counter-claim sought orders that they have obtained the land parcels NO Marachi/Bukhalalire/1321, 1322, 1694, 1695 and 1696 by way of trust and adverse possession. The said parcels of land are registered in the names of the 1st and 2nd Defendants who are their Co-Defendants. They are no longer registered in the name of OPODA whose Estate is represented by the plaintiff. It is instructive to note that in paragraph 9 of their defence and counter-claim, the 2nd to 6th Defendants have pleaded thus:9:“The 2nd to 6th Defendants counter-claim against the plaintiff and the 1st Defendants for a declaration that the plaintiff and the 1st Defendant and their predecessors held and hold title to the suit parcels of land by virtue of equitable and constructive trust and by virtue of the doctrine of adverse possession.”Mr. Wanyama, counsel for the 2nd to 6th Defendants citing Order 7, Rules 3 and 8 of the Civil Procedure Rules, has submitted that “in the ordinary way, the Defendant makes a counter-claim against the plaintiff, but he may in special circumstances make his counter-claim against the plaintiff and some other persons, whether already a party to the action, (e.g., a co-Defendant) or not.” I do not see, in the evidence before me, any “special circumstance” to warrant orders being made against the 1st Defendant as sought in the counter-claim by the 2nd and 3rd Defendants. 36.With regard to the claim in adverse possession, the 2nd Defendant is himself the registered proprietor of the land parcels NO Marachi/Bukhalalire/1322 and 1695 holding the same in trust on behalf of the 3rd, 4th, 5th, and 6th Defendants. Neither he nor those other Defendants can claim the said parcels of land in adverse possession when they are the owners of the same as per the Register. A claim for land in adverse possession is ordinarily made against the registered owner thereof as is clear from Section 38(1) of the Limitation of Actions Act. So the 2nd, 3rd, 4th, 5th, and 6th Defendants cannot claim those parcels of land in adverse possession against themselves. 37.With regard to the land parcels NO Marachi/Bukhalalire/1321, 1694, and 1696, which are registered in the names of Herenia, it is well settled that a purchaser in occupation and possession of land is one in whose favour a claim of adverse possession can be made - Sisto Wambugu -v- Kamau Njuguna C.a Civil Appeal No 10 of 1982 1983 KECA 69 KLR. In this case, however no such land sale agreements have been availed. Counsel for the 2nd to 6th Defendants appreciated as much and in paragraph 4 of his submissions, he states:“There is a contention that the 2nd to 6th Defendants did not produce a sale agreement hence their claim should fail. The transactions in issue were done between Herenia And Sylvester Nyakwala starting in the year 1991 and both parties are deceased. Owing to the lapse of 23 years before the filing of this suit, the real parties to the sale transactions had died, the key players were absent, memories and key documents were bound to get lost and the 2nd to 6th Defendants should not be faulted for such state of affairs and for lack of a timely land recovery action by the plaintiff. There is no evidence to contest the fact that they had been in physical possession since the year 1992. The plaintiff’s belated option of seeking to bring an action after the key players have died may be calculated to unfairly benefit the plaintiff who sat on his rights for too long. Since the late Sylvester Nyakwala and his family were staying on the two titles, there was no hindrance for the plaintiff to file suit to remove them. On the plaintiff’s failure to file suit against Sylvester Nyakwala, it has now been proved that the 2nd to 6th Defendants and their father had been in lawful occupation of the suit titles which they currently own hence they should not be disturbed.”Earlier on at page 6 of his submissions, counsel had stated that:“The plaintiff is seeking to recover land but he is barred by Section 7 of the Limitation of Actions Act.As to whether the plaintiff’s suit is statute barred, the land parcels were registered in the names of the 2nd Defendant in November 2017. This suit was filed in 2022. It cannot be statute barred. And with regard to the 2nd to 6th Defendant’s claim in adverse possession, in the absence of the sale agreements and bearing in mind the fact that the 2nd to 6th Defendants are basing their claim on the same, it is difficult for this court to conclude with any certainty whether infact the 2nd to 6th Defendants fully met the threshold set out in the case of Sisto Wambugu -v- Kamau Njuguna (supra) as to how a purchaser in possession and occupation can be entitled to the land which he claims by adverse possession. It must also be remembered that the plaintiff has already pleaded and satisfactorily proved that the original suit land and the subsequent sub-divisions which the 2nd to 6th Defendants claim were obtained through a fraudulent and illegal process. The Supreme Court in the case of BELL -V- Moi & Another Application No 1 of 2013 [2013 KESC 23 KLR] affirmed the Court of Appeal’s holding that:“… in order to found an adverse possessory right must be longus usus nec per vim, nec clam, nec precario - meaning long use not by violence, stealth or permission.” Emphasis mine.In Mtana Lewa -v- Kahindi Ngala Mwagandi 2015 eKLR, the Court Of Appeal stated thus on the essentials of a claim by adverse possession:“The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth nor under the license of the owner.” Emphasis mine.Stealth is defined in Black’s Law Dictionary 10Th Edition as follows:“Theft; an act or instance of stealing.”Guided by the above precedents therefore, and this court having found that the suit land was illegally and fraudulently transferred to Herenia and subsequently sub-divided to create the land parcels NO Marachi/Bukhalalire/1321, 1322, 1694, 1695 and 1696 which were transferred to the Defendants, this is clear that there was stealth in those transactions. Therefore, the claim hinged on adverse possession cannot be justified. The stealth destroys such a claim which is ideally an equitable remedy. 38.With regard to the claim hinged on trust, the 2nd Defendant has also stated in paragraph 12(iv) of his statement that:“I am entitled to claim the portion of land occupied by my family by virtue of adverse possession and equitable trust hence the suit that has been conceived herein is purely an academic exercise and should be refused.” 39.Earlier in paragraph 9 of their counter-claim, the 2nd to 6th Defendants pleaded that their entitlement to the portions of land which they claim is hinged on “constructive trusts”. Section 109 of the Evidence Act places the burden of proof on the 2nd to 6th Defendants to prove that the plaintiff and the 1st Defendant hold the titles to the suit land and the subsequent sub-divisions in trust for them. That means that this court has to go back to 18th September 1967 when the suit land was registered in the name of Apoda. It is well settled that a court will not imply a trust except to give effect to the intentions of the parties - Mwangi Mbotho -v- Gachira Waitimu 1986 Klr 171. A Constructive Trust, As Was Stated In The Case Of Twalib Hatayan Twalib & Another -v- Said Saggar Ahmed Al-heidy & Others 2015 eKLR.“… is an equitable remedy imposed by the court against one who has acquired property by wrong – doing … it arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit.” 40.As already stated earlier, the suit land, which gave rise to the land parcels which the 2nd to 6th Defendants now claim was held in trust for them, was first registered in the name of Apoda. There is no evidence to show that the said Apoda had any relationship, family or contractual, with the 2nd to 6th Defendants to warrant the imposition of any form of trust with respect to the suit land and the subsequent subdivisions. And this court having already found that the transfer of the suit land to the 1st Defendant and subsequently the transfer of the sub-divisions to the 2nd to 6th Defendants was fraudulent, it would be far-fetched to suggest that the said Defendants are entitled to any portion of land by way of trust. A trust is an equitable remedy. It cannot be invoked to perpetuate any legality. Counsel for the 2nd to 6th Defendants has submitted as follows in paragraph 3:“The plaintiff, Herenia, in her life time, and her daughter Gaudencia Aluoch Barasa were clearly dispossessed of the suit titles Marachi/Bukhalalire/1332 & 1695 since the year 1992 to-date. Even if the old title Marachi/Bukhalalire/882 is to be reverted to the 2nd to 6th Defendants and their father had dispossessed the plaintiff and the Estate of Alphonce of the demarcated ground portions of land which represent the current titles Marachi/ Bukhalalire/1332 and 1695 and the 2nd Defendant should be permitted to continue owning the same on behalf of himself and his father’s Estate. They hold overriding interest over the 2 titles including the present title NO Marachi/Bukhalalire/ 882 were it to be restored as sought by the plaintiff.”As attractive as that submission may sound, the bottom line really is that Apoda did not sell the suit land to the Defendants or to any other persons during his life time. It would be a different proposition if prior to his death Apoda had sold the suit land or portions thereof to the Defendants, received the purchase price, put the Defendants into occupation and possession but died before the process was finally completed. In this case however, the transfer of the suit land and its sub-divisions were all done illegally and fraudulently. His Estate was deprived of the suit land in a process which was criminal because intermeddling is an offense punishable under the law. I do not see how the 2nd to 6th Defendants can find refuge in any trust or any other overriding interest to justify the orders they seek in their counter-claim. 41.The 2nd to 6th Defendants also pleaded in paragraph 8 of their defence and counterclaim that they also have overriding interests as “lawful purchasers”. They must have meant “bona fide purchasers”, which term is defined in Black’s Law Dictionary as:“One who buys something for a value without notice of another’s claim to the property and without actual or constructive notice of any defect in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”In the Uganda case of Katende -v- Haridar & Company Ltd 2008 2 EA 173 and which has been followed in this Country, it was held that for one to be described as a bona fide purchaser, he must prove that:1.“He holds a certificate of title.2.he purchased the property in good faith.3.he had no knowledge of the fraud.4.he purchased for valuable consideration.5.the vendors had apparent valid title.6.he purchased without notice of any fraud, 7.he was not a party to any fraud.”The court went on to add that:“A bona fide purchaser of a legal Estate without notice has absolute unqualified and answerable defence against claim of any prior equitable owner.”On the same issue, the Court of Appeal stated as follows in Samuel Kamere -v- Land Registrar Kajiado C.a Civil Appeal No 28 of 2005 [2015 KECA 644 KLR] having found that the buyer had not even produced a sale agreement nor done due diligence:“Accordingly, having failed to conduct a proper due diligence on the ownership of the suit property, or prove how he acquired his title, we find that the appellant has not demonstrated that he was a bona fide purchaser, and further having failed to prove that he paid any consideration for the suit property, we find that he was not a bona fide purchaser for value.”Those findings apply with equal force in this case. The 2nd to 6th Defendants had no sale agreement with Herinia. This is what the 2nd Defendant said when cross-examined by Mr. Were on 23rd April 2025:“My father is called Sylvester Nyakwala. He purchased land parcel NO Marachi/Bukhalalire/1322 and 1695. He bought the first parcel in 1991, but we started using it in 1992. He bought it from the late Herenia Atsieno Odhiambo. I do not know the purchase price because I was young. I have not produced any sale agreement. The parcel NO 1695 was purchased in 2004 from the same Herenia Atsieno Odhiambo. I have not produced any sale agreement. It is my father who purchased it.” 42.Again, guided by the precedents above, the 2nd to 6th Defendants cannot be described as “bona fide purchasers” in the absence of any sale agreement with Herenia. It must be obvious therefore that the Defendants cannot sustain a claim for ownership of the land by way of being bona fide purchasers. Taking all that into account, the 2nd to 6th Defendants’ counterclaim must collapse. 43.Ultimately, therefore, and having considered all the evidence herein, this court makes the following dispositive orders:1.The counterclaim by the 2nd to 6th Defendants is dismissed.2.Judgment is entered for the plaintiff against all the Defendants jointly and severally in the following terms: -a.An order is hereby issued directing the Land Registrar Busia to cancel the titles for the land parcels NO Marachi/Bukhalalire/1321, 1322, 1694, 1695, and 1696 registered in the name of the Defendants and restore the same to the name of Alfonce Odhiambo Apoda (deceased).b.An order is also hereby issued permanently injecting the 2nd, 3rd, 4th, 5th, and 6th Defendants by themselves, their agents, family members, employees, servants, and any other persons claiming under them from interfering with, selling, disposing off, cutting trees, cultivating, and in any manner dealing with the land parcel NO Marachi/Bukhalalire/882.c.Costs to the plaintiff. JUDGMENT DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 16TH DAY OF JULY 2026 WITH NOTICE TO THE PARTIES.Right of AppealBOAZ N. OLAOJUDGE16TH JULY 2026