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)
The bottom line
#Kenya's Environment and Land Court cancelled land titles traced to a transfer signed by a dead man, confirming fraudulent titles cannot pass to later buyers.
What this practically means
#Executive summary
#Key legal issues
#Fraudulent transfer of the suit land to Herenia
The transfer was fraudulent and illegal because the registered owner Apoda had died in 1983, eight years before the 1991 transfer; the 1st Defendant, Herenia's legal representative, conceded this.
The register showed transfer to Herenia on 27th February 1991 for Kshs.9,000, yet the death certificate showed Apoda died on 3rd August 1983. A dead man could not execute transfer documents, and no succession proceedings existed. Fraud was proved to the threshold in Vijay Morjaria. Herenia's title therefore could not be protected under Article 40(1) of the Constitution or Section 24(1) of the Land Registration Act.
Validity of the defendants' derivative titles
The 2nd to 6th Defendants did not obtain good titles since Herenia's fraudulent title could not pass good title; all titles are liable to cancellation.
Following Dina Management and Mistry Amar Singh, the court held that illegality cannot beget a valid title. A title is an end product of a process; where the process was unlawful, indefeasibility does not protect it. Herenia could not transfer what she did not lawfully hold, so the subdivisions created from the suit land must be cancelled and restored to Apoda.
Adverse possession claim
The claim fails: the 2nd Defendant is himself registered owner of parcels 1322 and 1695 and cannot claim against himself; for parcels 1321, 1694 and 1696, the alleged purchase transactions were tainted with stealth, destroying the equitable remedy.
Section 38(1) of the Limitation of Actions Act requires the claim to be against the registered owner. Further, following Bell v Moi and Mtana Lewa, possession must be nec vi, nec clam, nec precario. The court found the transactions were fraudulent and thus stealthy, defeating the claim. The suit itself was also not statute-barred, the parcels having been registered in the 2nd Defendant's name only in November 2017 and the suit filed in 2022.
Trust claim
No trust was established; there was no evidence of any relationship between Apoda and the defendants capable of founding a trust, and trust cannot perpetuate illegality.
Section 109 of the Evidence Act placed the burden on the defendants. Citing Mwangi Mbotho and Twalib Hatayan, the court held a court will not imply a trust except to give effect to the parties' intention, and a constructive trust is an equitable remedy against one who acquires property by wrongdoing. Apoda never sold to the defendants; the intermeddling with his estate was criminal.
Bona fide purchaser claim
The defendants were not bona fide purchasers as they produced no sale agreements and failed the Katende thresholds.
Applying Katende v Haridar and Samuel Kamere, a bona fide purchaser must prove title, good faith, valuable consideration and absence of notice of fraud. The 2nd Defendant admitted in cross-examination that he produced no sale agreements and did not know the purchase price. The absence of any documentary proof of purchase defeated the defence and counter-claim.
Legal principles established
#- A title obtained through an illegal or irregular process is not indefeasible
- Once illegality is proved, the court will not allow anybody to benefit from such illegality
- An adverse possession claim founded on transactions tainted by stealth fails because possession must not be by stealth
- Elements of a bona fide purchaser without notice
- A registered owner cannot claim adverse possession against himself; such claims lie against the registered owner
Court orders
#- 1.The counterclaim by the 2nd to 6th Defendants is dismissed
- 2.Judgment entered for the plaintiff against all the Defendants jointly and severally
- 3.The Land Registrar Busia directed to cancel the titles for the land parcels No Marachi/Bukhalalire/1321, 1322, 1694, 1695 and 1696 and restore the same to the name of Alfonce Odhiambo Apoda (deceased)
- 4.A permanent injunction issued against the 2nd to 6th Defendants, their agents, family members, employees, servants and persons claiming under them from interfering with, selling, disposing of, cutting trees, cultivating or dealing with land parcel No Marachi/Bukhalalire/882
- 5.Costs to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to title to land (Article 162(2)(b) of the Constitution implied; not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "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)", Case Analysis (2026). Not stated in judgment (Plaint dated 4th February 2022, filed 9th March 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4458/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.