[2023] KEELC 695 (KLR)

Wekesa ((Suing as a legal representative & administrator of the Estate of Benedict Wanyonyi Biketi – Deceased)) v Werunga & another (Environment and Land Appeal 1 of 2021) [2023] KEELC 695 (KLR) (7 February 2023) (Judgment)

Neutral citation: [2023] KEELC 695 (KLR)

Republic of Kenya

In the Environment and Land Court at Bungoma

Environment and Land Appeal 1 of 2021

BN Olao, J

February 7, 2023

FORMERLY BUNGOMA ELC NO. 103 OF 2018

Between

Gladys Nasipwoni Wekesa

Appellant

(Suing as a legal representative & administrator of the Estate of Benedict Wanyonyi Biketi – Deceased)

and

Elizabeth Wanjala Werunga

1st Respondent

Blasio Simiyu

2nd Respondent

(Being an appeal from the judgement of Hon. S. Mogute Principal Magistrate in Bungoma Chief Magistrate’s Court ELC Case No 103 of 2018 delivered on 16th December 2020)

Judgment

1. Gladys Nasipwondi Wekesa (the Appellant herein and suing as the Legal Representative and Administratrix to the Estate of Benedict Wanyonyi Buketi – the deceased) initially filed this suit in this Court on 18th May 2015 before it was transferred to the subordinate Court. She sought judgment against Elizabeth Wanjala Werunga And Blasio Simiyu (the 1st and 2nd Respondents respectively) in the following terms with respect to the land parcel No East Bukusu/North Kanduyi/684 (the suit land):1. An order cancelling the title of the suit land in the names of the 1st Respondent and the same to revert to the names of the Appellant and a further order for evicting the 1st Respondent, her servants, agents or anybody else acting in her name from the said land.2. Costs of the suit.3. Interests

2. The basis of her claim was that on or about the 18th January 1980 the deceased who was her husband purchased the suit land from the 2nd Respondent at a consideration of Kshs24,000 which was paid and the title thereto was transferred to the deceased on 1st November 1993 before he died on 4th July 1996.

3. However, upon obtaining the Grant of Letters of Administration in respect to the deceased Estate in 2009 the Appellant discovered that the 1st Respondent had fraudulently obtained the tile to the suit land. Particulars of the fraudulent conduct were pleaded in paragraph 7(a) to 7(e) of the plaint.

4. The 1st Respondent resisted the claim and filed the defence on 4th June 2015 in which she pleaded, inter alia, that her late husband Emmanuel Werunga Wakabata Kituyi (hereafter Kituyi ) had purchased the suit land from the 2nd Respondent in 1975, took possession thereof and her family has continued to occupy and live thereon to-date and the Appellant has never taken possession or occupation of the same. The 1st Respondent denied the allegations of fraud levelled against her and added that:1. There was a valid sale agreement between Kituyi and the 2nd Respondent with respect to the suit land.2. There was a case between Kituyi and the 2nd Respondent over the suit land being Bungoma Cm’s Court Ldt Case No 18 of 2004 where an order was issued on 13th September 2005 cancelling the registration of the suit land in the name of the deceased.3. That the registration of the suit land in the name of Kituyi was done above board and without fraud.The 1st Respondent further pleaded that the orders sought by the Appellant were not available because:1. Kituyi was a bona fide purchase for value.2. The 1st Respondent family have been in possession and occupation of the suit land openly, continuously and without interruption since 1975 to-date.3. The Appellant has never been in occupation and/or possession of the suit land.4. The 1st Respondent obtained a valid title to the suit land.5. The Appellant’s claim is an abuse of the process of this Court and should be dismissed.

5. The 2nd Respondent acting in person filed a defence on 8th February 2016 in which he stated that he had sold the suit land to the deceased in 1986 for Kshs.24,000. He denied having sold the land to Kituyi or having been a party in Bungoma Cm’s Court Ldt Case No 18 of 2004 adding that it was conducted without his knowledge.

6. On 8th February 2016, he filed a statement of admission confirming that he sold the suit land to the deceased.

7. The matter came up for hearing before Hon. S. O. Mugute on 8th July 2020 by which time the Court was informed that the 2nd Respondent was deceased and MR Kituyi counsel for the Appellant withdrew the claim before him.

8. After hearing the parties and their witnesses, the trial magistrate delivered his judgment on 16th December 2020 dismissing the Appellants case with costs.

9. That dismissal gave rise to this appeal in which the Appellant seeks that the said judgment be set aside and be substituted with an order allowing the Appellant’s claim.

10. The following nine (9) grounds of appeal have been proffered:1. The trial magistrate erred in law and in fact by dismissing the suit that it was time barred by statue yet it is clear that the title in dispute was issued to the 1st Respondent’s husband through fraudulent means and illegal proceedings which time did not bar the Appellant from filing the claim.2. The trial magistrate erred in law and in fact by dismissing the Appellant’s suit on the ground that the dispute in the Tribunal was properly held against the 2nd Respondent in favour of the husband of the 1st Respondent on the title No East Bukusu/North Kanduyi/684 which was registered in the name of the Appellant’s husband who was deceased as at the time the proceedings were running before the Tribunal.3. The trial magistrate erred in law and in fact by failing to appreciate that the proceedings before the Kanduyi Land Disputes Tribunal, the award adopted vide Bungoma Spmcc No 18 of 2004 were illegal, null and void ab initio as the land parcel No East Bukusu/North Kanduyi/684 was registered in the name of Benedict Wangongi Biketi who was deceased as at that time.4. The trial magistrate erred in law and infact by failing to appreciate the evidence and submissions tendered by the Appellant which was overwhelmingly corroborated against the Respondent herein.5. The trial magistrate erred in law an din fact by reaching a conclusion that the Appellant’s remedy lay with the 2nd Respondent herein which was misleading as the 2nd Respondent had filed a statement of admission before his demise denying any sale of land to the husband of the 1st Respondent and hence the sanctity of tittle No East Bukusu/North Kanduyi/684 to the husband of the 1st Respondent was un-proved.6. The trial magistrate erred in law and in fact by framing issues and facts which issues fell outside the framework of issues before the Court and hence completely misleading.7. The trial magistrate was biased in his judgment against the Appellant as the 1st Respondent never tendered evidence to controvert or overturn the evidence of the Appellant and her witnesses which were consistent and corroborated.8. The trial magistrate erred in law and in fact to have reached a conclusion that the Appellant failed to prove the case on a balance of probability when the evidence submitted before the Court by the Appellant and witnesses was not analyzed and factored in judgment at all.9. The trial magistrate in his judgment erred in law and in fact by re-opening evidence in the Tribunal and sanctifying illegality and fraud on the part of the 1st Respondent which analysis of the 1st Respondent proprietorship of the title and proceedings were illegal and fraudulent ab initio.

11. This Court directed that the appeal be canvassed by way of written submissions. However, only Mr A. Kituyi instructed by the firm of A. W. Kituyi & Company Advocates for the Appellant filed submissions. And notwithstanding a time extension, none were filed by 1st Respondent represented by J. O. Makali & Company Advocates.

12. I have considered the record of what transpired in the trial Court, the memorandum of appeal and the submissions by counsel.

13. This being a first appeal, my duty is to reconsider and re-evaluate the evidence on record and draw my own conclusions. In doing so, I must remember that un-like the trial court, I neither saw nor heard the witnesses. I should therefore give due allowance in that respect and give reasons for the decision I arrive at. In Peters -v- Sunday Post Ltd 1958 E.A. 424, the Court stated the following with regard to the duty of a first appellate Court.“Whilst an appellate Court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is No evidence to support a particular conclusion; or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate Court will not hesitate so to decide.”See Selle & Another -v- Associates Motor Boat Company Ltd 1968 E.A 123 and also Mwanasokoni -v- Kenya Bus Services 1985 KLR 931 among other cases.

14. A first appellate Court has the jurisdiction to re-consider the case afresh both on the facts and the law and arrive at it’s own conclusions either affirming or reversing the decision of the trial Court.

15. I shall first consider ground No 1 in which trial magistrate is faulted for dismissing the Appellant’s suit for being stature barred. On this issue which the trial magistrate identified as among those to be determined, he started by citing Section 7 of the Limitation of Actions Act which reads:7:“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”The trial magistrate then held that since Kituyi purchased the suit land in 1975 while the deceased’s agreement was executed in 1986, the agreement of Kituyi took precedence and the Appellants suit was statute barred. This is how the trial magistrate addressed that issue in page 7 of the typed judgment:“The 1st defendant’s agreement was executed in the year 1975 while the plaintiff’s agreement was executed in the year 1986. Clearly the defendant’s husband was the first buyer of the suit land in question. Whatever the plaintiff’s husband did thereafter in the year 1986 was null and void since then he was purportedly purchasing from the 2nd defendant land already been sold to the 1st defendant’s husband. If the time of limitation was to run from the year the contracts herein were executed by the respective buyers then the suit is time barred under the Limitation of Actions Act Cap 22 Laws of Kenya.”

16. It is clear from the above passage that the trial magistrate took the erroneous view that time, for purposes of Section 7 of the Limitation of Actions Act, started to run from 1986 when the deceased purchased the suit land from the 2nd Respondent. In paragraph 7 of her plaint, the Appellant pleaded that following the demise of the deceased, she applied for Letters of Administration in respect of his Estate in 2009 and it was then that she did a search at the Lands Office and discovered that the 1st Respondent had obtained a title to the suit land. The register to the suit land shows that Kituyi actually obtained title to the suit land on 31st January 2007 before it was registered in the name of the 1st Respondent who obtained the title on 3rd October 2014. The Appellant has itemized the particulars of fraud in paragraph 7(a) to 7(e) of her plaint. It is clear from paragraph 7 of her plaint that the Appellant discovered the fraud in 2009. In paragraph 7 of her un-dated statement which she adopted as her evidence during the trial, she has stated the following:7. “That after having been issued with letters of administration and upon presentation of the grant at the Land’s office, I realized that the same had been fraudulently transferred to the 1st defendant herein.”The Grant of Letters of Administration was issued by F. MUCHEMI J on 15th October 2009 as per the confirmed Grant filed in these proceedings. Section 26(a) of the Limitation of Actions Act provides:26. “Where, in the case of an action for which a period of limitation is prescribed, either -(a)the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or(b)-(c)-The period of limitation does not begin to run unless the plaintiff has discovered the fraud or mistake or could with reasonable diligence have discovered it.”Since the Appellant discovered the fraud in 2009 and first filed this suit in the Superior Court on 18th May 2015 before it was transferred to the Subordinate Court on 15th November 2018, the trial magistrate erred in law and fact when he held that the claim was statue barred. Time could not start running in 1986 when the deceased purchased the suit land from the 2nd Respondent as held by the magistrate. And the fraud was discovered in 2009 and so the suit was filed before the expiry of 12 years provided for under Section 7 of the Limitation of Action Act. And even if the time is computed from 31st October 2007 when, as per the register, Kituyi first obtained the title to the suit land, the limitation period had not expired by 2015 when the Appellant first moved to Court.

17. Grounds No 2 and 3 can be considered together. They fault the trial magistrate for relying on the proceedings of the Kanduyi Land Disputes Tribunal’s award over the dispute regarding the suit land and which award was adopted as an order of the Court in Bungoma Cm’s Court Ldt Case No 18 of 2004.

18. The record shows that the suit land was the subject of proceedings between Kituyi as claimant and the 2nd Respondent as Objector at the Kanduyi Land Disputes Tribunal on 9th September 2004. The 2nd Respondent refused to attend those proceedings in which Kituyi was claiming the suit land by virtue of an agreement of sale executed between him and the 2nd Respondent. Having heard Kituyi and his witnesses, the Tribunal made the following award:“From the above evidence the panel is satisfied that the complainant Mr Emmanuel Werunga Wakabata Kituyi be given the land title deed for parcel land No EB/North KanduyI 684 measuring 5 acres less 0. 644 acquired by the road.The objector meets costs of this suit.”That award was adopted as a judgment of the court in Bungoma Chief Magistrate’s Court Ldt Case No 18 of 2004. A decree and vesting order followed in favour of Kituyi . Thereafter, the Executive Officer of that Court was directed to execute all the relevant documents to transfer the suit land in the name of Kituyi .

19. The trial magistrate did refer to those proceedings. This is what he said at page 6 of the judgment:“The evidence before the Court shows that the 1st defendant’s husband was given the suit land measuring 5 acres less 0. 64 Ha which was acquired by the road. The award was made by the Kanduyi Land Disputes Tribunal. This award was adopted by the Court as the judgement of the Court and arresting (sic) order to that effect was issued on 24/1/2007. Subsequently, the land parcel No E. Bukusu/N. Kanduyi/684 was transferred to the names of Emmanuel Werunga Kituyi (the 1st defendant’s husband and a title was issued to him on 31/1/2007. ”The trial magistrate goes on to add at page 8 of his judgment that:“The 1st defendant was registered as the owner of the suit land by way of transmission after the succession case No 534 of 2012 was finalized – see DEX 2. Prior (sic) that, her husband was the registered owner of the suit land through a Court order issued in Land Disputes Tribunal Case No 18 of 2004. I do not find any fraud on the part of the 1st defendant in view of the aforesaid. Allegation of fraud must be proved to the required standards.”By the time Kituyi and the 2nd Respondent were litigating before the Kanduyi Land Disptues Tribunal in 2004 over the suit land, the same was still registered in the names of the deceased since 1st November 1993 as per entry No 8 of the register although Kituyi had placed a caution on the title on 22nd April 1994 as per the register. Further, by the time those proceedings were being conducted at the said Tribunal, the deceased had died in 1996. He was therefore not a party to those proceedings and yet the title to his property was subsequently cancelled after the award was adopted as a judgment of the court as is clear from entry No 12 on the register. In paragraph 7(b) of the particulars of fraud, the Appellant pleaded as follows:“Purporting to have obtained title vide Bungoma Spmcc Ltd No 18 between Emmanuel Werunga Kituyi versus Benedict Biketi when the same had died in 1996. ”On his part and in response to the above, the 1st Respondent pleaded in paragraph 7(4) of her defence that:“The 1st defendant’s family obtained title to the suit land vide a valid order of the Court.”The validity of the proceedings before the Kanduyi Land Disputes Tribunal and subsequently the adoption of the award by the court in Bungoma Cmcc Ltd Case No 18 of 2004 could obviously not have been challenged before the trial magistrate in the case subject of this appeal. To do so would have amounted to the trial magistrate sitting on appeal over the decision of another magistrate.

20. However, the proceedings before the Tribunal that led to the cancellation of the deceased’s title goes to the jurisdiction of that Tribunal and subsequently to the legality and validity of the 1st Respondent’s title to the suit land. Although the 1st Respondent’s counsel did not file submissions in this appeal, they did file submissions dated 16th November 2020 in the trial court. Counsel addressed the issue regarding the decree in Bungoma CMCC LDT No 18 of 2004 as follows at page 7 of his submissions:“The certified copy of the register for the land parcel No E. Bukusu/N. Kanduyi/684 produced in court by the plaintiff shows that the 1st defendant’s husband Emmanuel Werunga Kituyi was registered as the owner of the land parcel No E. Bukusu/N. Kanduyi/684 on 26/1/2007 in Bungoma Ldt No 18 of 2004. It is therefore clear that the registration of the 1st defendant’s husband and subsequently the 1st defendant was above board without any fraud.”On the other hand, counsel for the Appellate made the following submissions on the same issue at page 3:“It is evident from the evidence above that the said Emmanuel Werunga Kituyi the husband of the 1st Respondent herein took the case to the Tribunal and litigated over with a party who was not the proprietor and without the knowledge of the owner or the family hence the acquisition of such title was fraudulent and illegal and hence title cannot pass to the 1st Respondent.”

21. I have No doubt in my mind that if counsel for the 1st Respondent had filed submissions in this appeal, which for some unknown reasons were not filed, he would have taken the same stand which he took in the trial court about the validity of the 1st Respondent’s title to the suit land.

22. As stated above, the trial magistrate could not purport to question the decree issued by another magistrate in Bungoma CMCC LDT Case No 18 of 2004 by which Kituyi was awarded the title to the suit land and which subsequently passed to the 1st Respondent through transmission in Succession Cause No 534 of 2012. Further, this court is not sitting on appeal against the above decree. However, Section 78(1) (a) of the Civil Procedure Act provides that among the powers at an appellate court include;“To determine a case finally.”It must also be remembered that a first appeal such as this one is in the nature of a re-trial and this court has the duty to re-examine all the evidence and arrive at it’s own conclusions.

23. As I have already found above, and which is not controverted, the deceased was in the Tribunal proceedings where the award that led to the cancellation of his title to the suit land was made. The validity of Kituyi ’s title and, subsequent to that, the title held by the 1st Respondent, are matters left to this Court to decide. It is well settled that the Tribunal had No jurisdiction to determine a dispute involving title to registered land and even proceed to cancel the deceased’s title. Secondly, the proceedings in the Tribunal were illegal in that they resulted in the cancellations of the title to the deceased who was not even a party. Therefore, the decree that was issued in Bungoma CMCC LDT Case No 18 of 2004 was a nullity and of No legal effect. In Macfoy -v- United Africa Co Ltd 1961 2 ALL ER 1169 and which was approved in Kawaljeet Singh Rekhi -v- Peter Wainana Kamau & 2 Others 2016 eKLR and also Chemey Investment Ltd -V- A-G 2018 eKLR, what runs through those cases is that every subsequent act premised on a nullity cannot accrue legitimacy or legality. A Court of law cannot protect title to land which has been obtained illegally or fraudulently even if the person has been entered in the register. Therefore, while it is true that Kituyi obtained the title to the suit land through a Court decree, that decree was as a result of an illegal and un-procedural process. Whereas Section 26(1) of the Land Registration Act recognizes a title to land as evidence of ownership, it can nonetheless be challenged if, as provided under Section 26(1) (b) of the same Act;“Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”Similarly, it is clear from Article of the Constitution 40(6) that whereas there is a right to own property, such right does not extend to any property that has not been lawfully acquired.

24. My finding on grounds No 2 and 3 therefore is that whereas the trial magistrate was bound by the decree made by a court of concurrent jurisdiction, that decree emanated from a flawed process and this Court exercising it’s appellate jurisdiction is not hamstrung to protect the 1st Respondent’s title to the suit land. I must therefore find that it is illegal, null and void whose only fate is cancellation as prayed by the Appellant. I allow those grounds.

25. In grounds No 4, 5, and 8, the appellant takes issue with the trial magistrate for failing to appreciate that the Appellant had tendered overwhelming evidence which was not controverted and instead making a finding that the Appellant’s remedy was with the 2nd Respondent. It is common knowledge that the Appellant sought remedies as against both the 1st and 2nd Respondents. However, in paragraph 9 of her plaint she was specific that she was seeking “for an order of cancellation of the title in the names of the 1st defendant and the same to revert to the names of the plaintiff and further an order be made evicting the 1st defendant, servant, agent or anybody else acting in her name from the suit land No East Bukusu/N. Kanduyi/684. ” None of those remedies were directed against the 2nd Respondent and indeed, No execution could issue against him even if the trial court had found in favour of the appellant because the 2nd Respondent was neither the registered proprietor of the suit land nor the party occupying it. The 2nd Respondent also filed a statement of admission conceding that he had sold the suit land to Kituyi . Clearly therefore, the 2nd Respondent was wrongly impleaded in these proceedings and it is No wonder that following his demise, the claim against him was abandoned on 17th April 2019. It cannot therefore be true, as stated by the trial magistrate, that the Appellant’s remedy lay with the 2nd Respondent. If anything, it was Kituyi who should have sought the refund of any purchase price paid to the 2nd Respondent.

26. With regard to the congency of the evidence adduced by the parties in support of their respective cases, the thrust of the 1st Respondent’s case was that Kituyi purchased the suit land from the 2nd Respondent in 1975. It was her case that Kituyi was a bona fide purchaser for value without notice. A copy of a sale agreement dated 25th November 1975 between Kituyi and the 2nd Respondent was indeed produced as part of the 1st Respondent evidence. However, as is clear from the register, the first proprietor of the suit land on 22nd May 1973 was one Wafula Sindani. The 2nd Respondent became the registered proprietor on 16th February 1979 pursuant to orders issued in Kitale Resident Magistrate’s Court Civil Case No 11 of 1975. And although a caution was lodged thereon by Kituyi on 29th January 1980, the same was removed on 1st November 1993 and on the same day, the suit land was transferred to the deceased. Therefore, as is clear from the register, the 2nd Respondent had No interest in the suit land on 25th November 1975 when he purported to sell it to Kituyi . The suit land was registered in the name of one Wafula Sindani, the first owner, from 22nd May 1973 upto 16th February 1979 when the proprietorship was vested in the 2nd Respondent. The sale agreement executed between Kituyi and the 2nd Respondent on 25th November 1975 was an illegal contract as the 2nd Respondent had No interest in the suit land, equitable or otherwise, which he could transfer to Kituyi . The 2nd Respondent was basically a thief when he executed the sale agreement. However, he did not transfer anything to Kituyi . Perhaps he only transferred a ghost. But as was held in Jane Gachoki Gathecha -v- Priscilla Nyawira Gitungu & Another C.a Civil Appear No 343 and 345 of 2002 [2008 KLR]:“A thief acquires No right or interest which is transferrable in stolen property. The transaction would be void ab initio and the property traceable.”The 2nd Respondent was therefore a busy body, a fraudster when he purported to transfer to Kituyi a property which he did not own. The agreement dated 25th November 1975 was an illegality which this Court cannot recognize. In the case of Mistry Amar Singh -v- Kulubya 1963 E.A 408, the Court cited with approval the following passage from Scot -v- Brown Doering Mc Nab & CO(3) 1892 2 QB 724:“Ex turpi causa non oritur actio …. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the Court is himself implicated in the illegality. It matters not whether the defendant has pleaded this illegality or whether he has not. If the evidence adduced by the plaintiff proves illegality, the Court ought not to assist him.”It is clear therefore that Kituyi did not acquire any interest in the suit land which could be passed to the 1st Respondent through transmission.

27. The 1st Respondent also pleaded in paragraph 7(1) of her defence that Kituyi was a bona fide purchaser for value. The term bona fide purchaser was consider by the Court of Appeal in Uganda in the case of Katende -v- Haridar & Company Ltd 2008 2 E.A 173 where it said:“For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine .... (he) must prove that:a.He holds a certificate of title;b.He purchased the property in good faith;c.He had No knowledge of the fraud;d.He purchased for value consideration;e.The vendors had apparent valid title;f.He purchased without notice of any fraud;g.He was not a party to any fraud.”There is No doubt that Kituyi was registered as the proprietor of the suit land on 31st January 2007 and that the 1st Respondent currently holds that title. There is also No doubt that Kituyi first paid value consideration for the suit land on 25th November 1975 and even continued paying the balance upto 1st March 1979. However, all those payments were based on an illegal contract. And if Kituyi had carried out a search at the Land Registry in Bungoma before executing the sale agreement, he would have discovered that the 2nd Respondent did not own the suit land. The 2nd Respondent had No apparent valid title to the suit land. Infact he had No title at all. On this issue, the trial magistrate held that:“The 1st Defendant’s agreement was executed in the year 1975 while the plaintiff’s agreement was executed in the year 1986. Clearly the defendants husband was the first buyer of the suit land in question.”However, as is now clear, the 2nd Respondent did not sell anything to Kituyi leave alone the suit land. If the trial magistrate had closely examined the title to the suit land and in particular entries NOs 1 to 5, he would have noticed that the 2nd Respondent did not own the suit land in 1975 and so he could not have sold it to Kituyi and it could not therefore become part of his Estate to be passed on to the 1st Respondent.

28. Grounds No 4, 5, 7 and 8 are well taken and are allowed. The Appellant clearly led sufficient evidence corroborated by the documents filed.

29. In ground No 6, the trial magistrate is faulted for framing issues which fell outside the framework of what was before the Court. I find No merit in that ground. As is clear from the impugned judgment, both parties framed their issues for determination. The trial magistrate referred to those issues but came up with the following issues which, in his view, fell for his determination;1. “Whether the plaintiff’s suit is statute barred.”2. “Whether the 1st defendant is the registered owner of land parcel No East Bukusu/North Kanduyi/684. ”3. “Whether the 1st defendant’s title is tainted with fraud.”4. “What is the appropriate remedy in this suit.”I do not see how the above issues “fell outside the framework of the issues before the court” as pleaded in paragraph 6 of the memorandum of appeal. Infact hose issues are not different from what counsel themselves raised in their submissions before the trial court. That ground is accordingly dismissed.

30. Finally, in ground No 9, the trial magistrate is said to have re-opened the evidence in the Kanduyi Land Disputes Tribunal thereby sanctifying an illegality and fraud on the part of the 1st Respondent. As I have already stated elsewhere in this judgment, the trial court was faced with a decree by another court of equal jurisdiction which had adopted the award of the same Tribunal as it’s judgment. It would have been improper for the trial magistrate to purport to set aside that award and the subsequent decree. But that issue has already been substantively addressed by the court in the preceding paragraphs of this judgment. The ground of appeal therefore fails and is dismissed.

31. There was evidence that the 1st Respondent has lived on the suit land from 1975 to date and that there are about 10 houses thereon. However, where a property has been obtained illegally, a party cannot rely on such a defective title to claim ownership of such property No matter how long he occupies the properly. The 1st Respondent and those on the suit land claiming under her cannot benefit from any of the overriding interests set out in Section 28 of the Land Registration Act. In any event, the 1st Respondent was not agitating for any of those interests. Rather, her case was that she holds a valid title to the suit land but as is now clear, his title and that of Kituyi was acquired un-procedurally and has No protection of the law.

32. Ultimately therefore, other than grounds 6 and 9 of the appeal which are dismissed, this court having re-evaluated the evidence finds that the appeal is merited and is allowed.

33. With regard to costs, they follow the event. I see No good reason why the Appellant should not be awarded costs.

34. This appeal is therefore allowed. The judgment of the trial court is set aside and this Court makes the following disposal orders:1. In 1st Respondent’s title issued on 3rd October 2014 in respect to the land parcel No East Bukusu/ North Kanduyi/684 is hereby cancelled. The same shall revert to the Appellant.2. The 1st Respondent, her agents, servants and anybody as on body claiming through her shall vacate the suit land within three (3) month of this judgment.3. In default of (2) above, the Appellant shall be at liberty to evict them.4. The Appellant shall have the costs both here and in the court below.

JUDGMENT DATED, SIGNED AND DELIVERED AT BUSIA ON THIS 7TH DAY OF JANUARY 2023 BY WAY OF ELECTRONIC MAIL WITH NOTICE TO THE PARTIES.BOAZ N. OLAOJUDGEExplanation Notes:This judgment was due 13th October 2022 a date which had been fixed prior to my transfer to Busia ELC. The delay which is regretted was therefore inevitable.BOAZ N. OLAOJUDGE7TH FEBRUARY 2023