Watembeko & 3 others v Wabomba

3. In a judgment delivered on 24th September 2020, the Environment and Land Court (Olao J.) dismissed the suit by the Appellants and allowed the Counterclaim by the Respondent. The Appellants were aggrieved, and they led a Notice of Appeal dated 25th September 2020, and a Petition (sic) of Appeal dated 16th October 2020, contending: i. That the learned trial Judge erred in law and in fact when he delivered a judgment in a contested suit devoid of points for determination, the decision thereon and the reasons for the decision, which omission prejudiced the Appellants. ii. That the learned trial Judge erred in law and in fact when he wrongly assessed and evaluated the evidence on record and thereby arrived at an erroneous decision. iii. That the learned trial Judge erred when he ignored and/or failed to consider the contents of the statements of the Appellants and their witnesses, which had been adopted as their evidence, as a consequence of which he failed to make any nding or decision on crucial evidence that had been adduced by the Appellants. iv. That the learned trial Judge erred in law and in fact in assuming the role of a probate and administration court and in awarding the Respondent 3 acres out of the suit land that the Appellants had been given through letters of administration intestate. v. That the learned trial Judge erred in law and in fact in holding that the Appellants' registration as proprietors of the suit lands was fraudulent, null and void and then proceeding to award the Respondent the very land and directing that the Appellants transfer the fraudulently acquired land to the Respondent. vi. That the learned trial Judge erred in law and in fact in not holding that once he found that the Appellants father illegally acquired transfer of the title to land parcel East Bukusu/West Sangalo/774 to himself in the year 2000, then the transfer and subsequent subdivisions and registrations ought to be cancelled in order for the estate to Kabwoya (sic) to undergo probate and administration proceedings to determine the real beneciaries of his estate. vii. That the learned trial Judge erred in law and in fact in admitting and relying on the Respondent’s exhibit, which was a purported plan showing how Kabwoya (sic) subdivided the land amongst his sons, yet the said document was neither signed by any person nor showed the acreages the recipients were to get. viii. That the learned trial Judge erred in law and in fact in failing to nd that the Appellants exhibit … a letter written by the registered owner of land parcel number East Bukusu/West Sangalo/774 showed an unequivocal intention to transfer the land to the Appellants’ father and therefore the said transfer could not have been fraudulent. ix. That the learned trial Judge erred in law and in fact in failing to nd that the original owner of land parcel number East Bukusu/West Sangalo/774 moved his entire family from the said land and resettled them on another parcel of land in Transnzoia and had entered into an agreement to transfer ownership of the East Bukusu/West Sangalo/774 to the Appellants’ father. x. That the learned trial Judge erred in law and in fact in nding that the transfer of land from Wabwoya to Mutoka of land East Bukusu/West Sangalo/774 was a fraud perpetrated with the sole purpose of defrauding not only the original owner but also other persons interested therein. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2016/eng@2026-05-22 2

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xi. That the learned trial Judge erred in law and in fact in holding that the Respondent's father was in possession of the land until the year 2011 when he begun ailing without any evidence in support of this. xii. That the learned trial Judge erred in law and in fact when he introduced and misapplied the remedy of constructive trust suo moto, yet the same had neither been pleaded by the Respondent nor was it applicable to the case. xiii. That the learned trial Judge erred in law and in fact in believing and relying on the evidence of the Respondent and his witnesses, even when it was clear that they were not telling the truth. xiv. That the learned trial judge erred in law and in fact in nding that the Respondent’s witnesses were credible and their evidence cogent, yet the said evidence of the Respondent’s witnesses contained material discrepancies and contradictions. xv. That the learned trial Judge erred in not nding that the Respondent’s father owned anotherparcel of land which was separate and distinct from but adjacent to the suit land, which he was utilising and that the documents the Respondent produced as exhibits related to this separate land and not East Bukusu/West Sangalo/774. 4. When the Appeal came up for hearing on this Court’s virtual platform on 20th April 2026, learned counsel Mr. Were appeared for the Appellants, while learned counsel Ms. Masengeli appeared for the Respondent. 5. The counsel relied on and gave brief highlights of their respective submissions. The Appellants submitted on Grounds 2,3,5,6,8,10,13 and 14 together and Grounds 1, 4,7,9,11 and 12 separately. The Respondent did not specically address the Issues set out in the Appellants submissions. He opted to urge the Court to uphold the judgment. 6. The Court has considered the record and submissions. 7. This is a rst appeal. The role of the Court on a rst appeal was well set out in Selle & Ar v Associated Motor Boat Co. Ltd & Ors (1968) EA 123: This court must reconsider the evidence, evaluate it itself, and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s ndings of fact if it appears, either, that, he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally. 8. It is incumbent upon this Court to look at the pleadings and evidence tendered before the Environment and Land Court. 9. The uncontested evidence before the superior court was that the East Bukusu/West Sangalo/774 was registered in the name of Mutoka Waboya in 1969 (grandfather of the parties herein). Mutoka Waboya apportioned East Bukusu/West Sangalo/774 amongst his 7 sons on or around 4th May 1984 (without formal subdivision or registration). On or around 15th May 2000, John Watembeko Mutoka (father of the Appellants) was registered as the owner of East Bukusu/West Sangalo/774. The registration was made pursuant to an application by the said John Watembeko Mutoka to the Lands Registrar for the correction of name(s). The registered owner of the property, Mutoka Waboya was still alive (he died in 2005). John Watembeko Mutoka subsequently died in 2009. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2016/eng@2026-05-22 3

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10. Despite Jon Watembeko Mutoka having died in 2009, on 3rd May 2010, the register over East Bukusu/ West Sangalo/774 was closed upon subdivision upon his application. New titles (and registers) being East Bukusu/West Sangalo/3839, East Bukusu/West Sangalo/3840 and East Bukusu/3941 were created/opened. The titles were issued in the name of John Watembeko Mutoka. 11. In 2011, the Appellants led Bungoma High Court Succession Cause No. 199 of 2011 in respect to the estate of John Watembeko Mutoka. A Grant was issued to the Appellants and conrmed on 19 June 2014. The suit properties were then distributed to the Appellants as a result of the conrmation. Consequently, on 6th November 2014, the Appellants were entered into the register and issued with titles as joint tenants of the suit properties. 12. In 2017, the Appellants sued the Respondent seeking the reliefs already adverted to hereinabove. The Respondent counterclaimed on the ground of trust. 13. The superior court made several ndings including that the Appellants held the suit properties in customary trust for the Respondent and his family after considering the evidence on record that the suit properties were subdivisions from ancestral land, the evidence that the Respondent’s father had leased part of the property in 2002, and the evidence from the uncles of the Appellants and Respondent that the parties’ grandfather had apportioned the Respondent’s father 3 acres of the property in 1963. 14. The superior court also made a nding that Waboya Mutoka could not have validly transferred East Bukusu/West Sangalo/774 to John Watembeko Mutoka because the transfer form was undated and was not registered at the Lands oce. 15. The superior court further found for the Respondent on the basis of constructive trust. This was on account that the Appellant’s father had misled the Land Registrar and perpetrated a fraud in 2000 by causing the correction of the name in the title, thus causing a transfer of the property to himself while the registered owner was still alive (the owner died in 2005). 16. The Appellants set out 15 Grounds of Appeal, primarily contending that the superior court fell into error of both law and fact by not identifying the issues for determination and giving the reasons on each of the issues; by ignoring or failing to consider the Appellants’ evidence; usurping the jurisdiction of the High Court; not cancelling the original title after making a nding of fraud; admitting inadmissible evidence; misapplying the doctrine of constructive trust and failing to correctly appreciate the evidence tendered. 17. Order 21 Rule 4 of the Civil Procedure Rules require a judgment to contain a statement of the case, points for determination, the decision thereon and the reasons for the decision. 18. We have relooked at the judgment. It clearly set out the parties respective cases and although it did not set out in titles or subtitles the points for determination, the Court distinctly considered the questions, whether the Appellants titles enjoyed absolute protection by virtue of sections 24, 25, 26 of Land Registration Act (as well as sections 27 and 28 of the Registered Land Act (repealed); whether there was fraud in the transfer and registration over the suit properties; whether statutory time limit applied; the question of res judicata; the question of the jurisdiction of the High Court vis a vis the Environment and Land Court; and Respondent’s locus standi and applicability of the doctrine of trust. 19. The Record show that the superior court stated its decision and reasons for determination on each issue. 20. In respect to Grounds 2, 3 and 15, the Appellants accused the superior court of failing to properly evaluate their evidence including the 1st Appellant’s further witness statement and that the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2016/eng@2026-05-22 4

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Respondent’s father had a separate and distinct land but adjacent to East Bukusu/West Sangalo/774. When addressing the question of separate and distinct parcels of land, the court cited a lease agreement dated 11th September 2002 between William Wabomba Mutoka and one Sikuku Miyanga to discount the theory of another parcel of land. 21. Upon re-evaluating the 1st Appellant’s further witness statement, the court notes that the Appellants asserted that the Respondent had leased a dierent and neighbouring land. He however did not provide any particulars of the land alleged to be adjacent to East Bukusu/West Sangalo/774. 22. The 1st Appellant also alleged that the superior court wrongly assessed the evidence including that the Respondent’s father had gone up to standard 8, and was therefore literate and capable of signing rather than appending his thumbprint to the agreement. No cogent evidence to this eect was placed before the superior court. 23. Without any evidence from the Appellants to support these contentions, these assertions could not have been determinative of the suit before the superior court. 24. The Appellants also complained that the superior court assumed the jurisdiction of the High Court as a probate Court. 25. The claim before the superior court revolved around the ownership of the suit properties and whether a customary trust had arisen, and that is the determination the Court made a return on as an Environment and Land Court after making a nding that the suit properties comprised ancestral land rst registered in the name of the Appellants grandfather and the parties were a family utilising portions of the land. 26. The Supreme Court addressed the jurisprudence on customary trust in Kiebia v M’Lintari & Ar (2018) KESC 22 (KLR) wherein it held: we now declare that a customary trust, as long as the same can be proved to subsist, upon rst registration, is one of the trusts to which a registered proprietor, is subject to under the proviso to section 28 of the Registered Land Act. Under this legal regime (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specic group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of customary trust are therefore not closed… 27. Did the superior court fall into error in reaching that conclusion on trust? The obvious answer is no, for there was credible evidence that the original land was ancestral land registered in the name of the parties grandfather, the parties had been utilising the land before John Watembeko Mutoka misled the lands oce to transfer the title of the original land to himself purportedly on account of correction of name while the owner was still alive and that the application for the subdivision and the closing of the register made was in 2010 after the death of the said John Watembeko Mutoka. 28. The Appellants further contended that the superior court suo moto introduced the doctrine of constructive trust. The Respondent’s pleaded case was anchored on trust, and it is not correct that the superior court suo moto introduced the doctrine on its own motion. It was up to the Appellants to interrogate this aspect of the action during the hearing. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2016/eng@2026-05-22 5

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29. In making a nding that there was direct evidence to nd constructive trust, the superior court relied on a passage from Twalib Hatayan Twalib Hayatan & Ar v Said Saggar Ahmed Al Heidy & Ors (2015) eKLR that: A constructive trust is an equitable remedy imposed by the Court against one who had 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… imposition of a constructive trust is thus meant to guard against unjust enrichment. 30. The evidence on record cogently established that John Watembeko Mutoka got registered as owner of the suit properties through wrong doing or fraud. The Appellants thus secured tainted titles as well. 31. The Appellants further faulted the decision of the superior court for not reverting the title to the original owner after nding that a fraud was committed in the cause of transfer. 32. The superior court did not directly address its mind to the question of whether the title to the suit properties should revert to the original owner but it made an express nding that since the transfer of the original title was obtained through fraud, it was nullity and void ab initio. 33. Bearing in mind that the Appellants were advancing an action to be recognised as absolute owners of the suit properties and the Respondent was asserting a trust, the court did not err in holding that the Respondent had proved his case, and ordering a transfer of the portion of the suit properties to him. 34. Further, the Appellants urged that the superior court erred in nding fraud by not considering that the original owner of the suit property had evinced an intention to transfer the property through a letter; written a letter dated 29th May 1998 to the Lands Registrar and had moved the family to Transnzoia. 35. The superior court rejected the contentions by the Appellants because the documents relied on did not meet the legal test for a valid transfer of land and in particular that the transfer was eected through a correction of name, to imply that this was only a change of name and not transfer of title. 36. We have gone through the record. There is unassailable evidence that the registration was procured through a registration of change of name. There was no evidence that Mutoka Waboya caused the property to be transferred to John Watembeko Mutoka or that the relevant forms and consents were lodged with the Lands Oce. 37. This Court further notes that John Watembeko Mutoka died in 2009. It is therefore open to inference that he could not have applied to the Lands Registrar on 3rd May 2010 for the closing of the register and creation through subdivision of the titles forming the suit properties. 38. It is equally instructive that the Appellants only moved the High Court in its probate jurisdiction for succession of the estate of John Watembeko in 2011. 39. In this Court’s view and it so nds, the Appellants caused their registration over the suit properties through fraud. 40. The Appellants also challenged the credibility of the witnesses presented by the Respondent. To buttress the submissions, the Appellants referred to the testimony on record that the Respondent’s father was allocated 3 acres of the land in 1963, the further testimony that title to the land was only registered in 1969 and that distribution was made in 1984. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2016/eng@2026-05-22 6

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41. The gravamen of the Respondent’s action was anchored on the doctrine of trust and any discrepancies or contradictions in the oral testimonies of the witnesses as suggested by the Appellants did not aect the soundness of the decision by the superior court. 42. The Court has re-evaluated and re-analysed the cases presented by the parties before the superior court and has not been able to discern any error of law or fact in the impugned judgment to warrant interfering with it. 43. With the said conclusion, the Court nds no merit in the Appeal and it is dismissed with costs to the Respondent. DATED AND DELIVERED AT KAKAMEGA ON THIS 22ND DAY OF MAY, 2026. P. NYAMWEYA ………………… JUDGE OF APPEAL R. NGETICH ………………… JUDGE OF APPEAL RADIDO S. OKIYO …………………* JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2016/eng@2026-05-22 7

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