Auma v Ondege & 2 others (Environment and Land Case E030 of 2025) [2026] KEELC 3768 (KLR) (12 June 2026) (Judgment)

Auma v Ondege & 2 others (Environment and Land Case E030 of 2025) [2026] KEELC 3768 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEELC 3768 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Case E030 of 2025 JW Wanyonyi, J June 12, 2026 Between Yunia Akongo Auma Plaintiff and Duncan Odhiambo Ondege 1st Plaintiff Land Registrar - Rachuonyo 2nd Plaintiff and Hon Attorney General Defendant Judgment 1.​The plaintiff herein instituted suit by way of Plaint dated 13th October, 2025. 2.​She has sued Duncan Odhiambo Ondede, Land Registrar Rachuonyo and the Attorney General. 3.In the Plaint she seeks for:(A)A declaration that the registration of the 1st Defendant as owner of L.R East Kasipul / Kojwach Kawere / 671 was unlawful having been the property succeeded by heirs of the late Ondede Owiti.(B)An order directing the 2nd Defendant to cancel title of the suit parcel of L.R East Kasipul / Kojwach Kawere / 671 from the 1st Defendant and revert the title to the original deceased owner Ondede Owiti pending Succession proceedings. 4.​Summons to enter appearance were taken out and subsequently served upon the Defendants. 5.​On 3/11/2025, the State Law Office filed a memo of appearance and a statement of defence on 20/1/2026 in respect of the 2nd & 3rd Defendants. 6.However, on 19/1/2026 the case against the 1st and 2nd Defendants was withdrawn and the Court having established that though served the 1st Defendant had not responded in any way, ordered that the case proceeds to formal proof subject to service of a Hearing Notice. 7.​The matter then came up for hearing Counsel for the Plaintiff indicated he was ready to proceed. He confirmed again effecting service upon the Defendant to no avail. ​summary Of Evidence 8.The plaintiff was the only witness who testified. 9.​She relied on her witness statement and the list of documents filed in Court. 10.The plaintiff indicates that she is instituting the suit in her capacity as personal legal representative of the Estate of ​Oyugi Awiti alias Rosebella Oyugi who purchased the whole of L.R East Kasipul / Kojwach Kawere / 671 from Ondede Onditi (Deceased). 11.She states that the deceased died before she could transfer the title in favor of the buyer - Rosebella Oyugi. 12.To confirm purchase, the buyer took a further step of building a home and settling thereon. 13.She stayed there until her death and was buried therein. 14.​However, the Defendant who is a grandson to the deceased (seller) fraudulently caused the title to be transferred to his name on 27-11-2015. 15.No succession was done prior to transfer the Estate in any manner whatsoever 16.It is the plaintiff's case that the title was acquired fraudulently since the Defendant had no legal capacity to transact. 17.​The Plaintiff also pleads that the act of the Defendants amounts to intermeddling. 18.The plaintiff relied on the following documents: ​Green Card for East Kasipul Kojwach Kawere / 671 - + Copy of limited grant issued in Succession Cause No. E046 of 2025 at Oyugis in respect of the Estate of Oyugi Awiti alias Rosebella Oyugi. Green card (duly certified) 19.The plaintiff prays for the title to be cancelled and the land reverts to the Estate. 20.She also seeks for costs. ​defence Evidence. 21.​The Defendant was duly never entered appearance or filed defence. 22.The Plaintiffs evidence was therefore uncontroverted. 23.At the close of Plaintiffs case Counsel opted to rely on the evidence on record. Issues For Determination. 24.a)Whether the plaintiff validly purchased the land.b)Whether she is entitled to the Orders sought. 25.The plaintiff in her pleadings and evidence states that the deceased Oyugi Owiti prior to his demise purchased the whole of L.R East Kasipul / Kojwach Kawere / 671 from Ondede Onditi. 26.​Though no agreement was availed, she relied on the Chief's letter dated 30/12/2019. 27.The Chief states that sometimes in 1969 during Land Consolidation an agreement was reached to transfer the whole portion of the suit land to Rosebelle Oyugi. 28.After her death it was resolved by the family that the land be transferred to her children. 29.However, the process never matured due to loss of the relevant map as per surveyor's request letter to the Director of Survey (Ref D/S LA/ VOL 1/27 of 10/8/2016). 30.​The chief further states that the land was succeeded by Dan Ondede a grandson to the late proprietor. 31.In Civil Appeal number 22 of 2023, Peter Mbiriri Michuki versus Samuel Mugo Michuki (2014) eKLR the Court held:“ 24.Section 3(3) of the Law of Contract Act provides that no suit based on a contract of disposition of interest in land can be entertained unless the contract is writing, executed by the parties and attested. Section 3(7) of the Law of Contract Act excludes the application of Section 3(3) of the said Act to contracts made before the commencement of the subsection. Section 3(3) of the Law of Contract Act, came into effect on 1st June, 2003. The trial court found that the sale agreement between the parties was an oral agreement made in 1964 between the appellant and the plaintiff. Prior to the amendment of Section 3(3) of the Law of Contract Act in 2003, the subsection read as follows:(3)No suit shall be brought upon a contract for disposition of an interest in land unless the agreement upon which, the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorized by him to sign it;Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract-(1)Has in part performance of the contract taken possession of the property or any part thereof; or(11)Being already in possession, continues in possession in part performance of the contract and has done some other act in furtherance of the contract. 25.We find that notwithstanding the fact that the sale agreement made by the parties in 1964 was not in writing, the plaintiff/respondent had to satisfy the trial court that he either, took possession of the suit property in part performance of the said oral contract, or that being already in possession of the suit property, he continued in possession in part performance of the oral contract. Having re-evaluated the evidence we concur with the finding of the learned judge that the plaintiff/respondent proved that he had actual and or constructive possession of the suit property since 1964 and the possession was open, uninterrupted and continuous till the filing of the Originating Summons by the Plaintiff in 1991. It is our view that Section 3 (7) of the Law of Contract Act makes exception to oral contracts for sale of land coupled with part performance. We find that Section 3 (3) of the Law of Contract Act came into effect in 2003 and does not apply to oral contracts for sale of land concluded before Section 3 (3) of the Act came into force. The proviso to Section 3 (3) of the Law of Contract Act applies in this case and we hold that the sale agreement between the appellant and the plaintiff did not violate or offend the provisions of the Law of Contract Act. 32.In the case of Public Trustee vs. Wanduru Ndegwa [1984] eKLR where the Court of Appeal distinguished the position of a vendor and a purchaser as follows: -“The position of a vendor and a purchaser of registered land is this. The vendor as the registered owner retains the legal estate and becomes the trustee of it for the purchaser when the purchaser pays a deposit for it. The vendor retains a lien on the property for the balance of the purchase money which disappears when it is paid and the purchaser then becomes the sole beneficial owner and the vendor becomes a bare trustee for the purchaser. If the vendor trustee allows the purchaser cestui qui trust to remain in possession the latter is in adverse possession because the vendor as the absent registered owner always retains the legal estate and this prima facie entitles him to resume possession from the purchaser in possession.The limitation period will begin to run from the date of the payment of the purchase price in full or last instalment of it. See Harman J in Bridges v Mees, [1957] I Ch 475; and Simpson J (as he then was) in Hosea v Njiru Ors, [1974] EA 526 (K).” 33.In Munyu Maina -vs- Hiram Gathiha Maina [2013] eKLR the Court of Appeal spoke to the importance of a litigant travelling beyond the Title Deed. They observed;“…when a registered proprietor’s root of the title is under challenge, it is not sufficient to dangle the instruments of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register”. 34.In the instance case even if there was no agreement, the Plaintiff has the burden of satisfying Court that she has been in possession which she confirms in her evidence in court together with supporting documents. ​b. Whether She Is Entitled To The Prayers 35.​The plaintiff has pleaded that the title was obtained without Succession. 36.​This was done contrary to the provisions of the Succession and amounts to fraud and intermeddling. 37.​The Defendant is lucky as he has not been arrested and charged for fraud. 38.Since the title is under challenge the Defendant had a duty of coming to negate the allegations made against him 39.He has failed to comply despite notice being issued and personally served upon him. 40.I find that the evidence boils down to one irresistible conclusion, which is that the Defendant transferred unto himself the title with the full knowledge that the Deceased, who is his grandfather, had legally sold the same. 41.He deliberately concealed material facts at the time of transfer with a view of defeating any claim made against the Estate 42.This kind of conduct is despicable and calls for reprimanding with attendant sanctions. Conclusion 43.I find that the plaintiff's case is unchallenged, she has proved same on the required standards and I make a finding in her favour. 44.​I hereby enter judgment in favour of the plaintiff as against the 1st defendant in the following terms;a.A declaration that the registration of the 1st Defendant as owner of L.R East Kasipul / Kojwach Kawere / 671 was illegal and unlawful and the same was subject of succession proceedings in respect of the estate of the late Ondede Owiti.b.The County Land Registrar HomaBay is hereby directed to cancel the title of the suit parcel of L.R East Kasipul / Kojwach Kawere / 671 issued in the name of the 1st defendant and the said title do revert to the original owner Ondede Owiti pending Succession proceedings.c.I hereby give the Defendant thirty (30) days to surrender the original title deed to the County Land Registrar, Homa Bay for cancellation and in default, the said title now in the custody of the 1st defendant be deemed as cancelled upon lapse of the said period.d.Costs of the suit to the plaintiff.e.It is so ordered. JUDGEMENT DELIVERED ON THE ONLINE PLATFORM ON THIS 12TH DAY OF JUNE 2026.In the presence of;Mr. Owaka for the plaintiff, present.Court Assistant; Ms. Awino. JUSTICE JOHN WALTER WANYONYI, JUDGE