Obadia Shiboche Isalia & Another v James Atema

property unknown to him and caused to be transferred to the 2nd Appellant the portion he had purchased and fully paid for. In the KakamegaCivilAppealNo.E045of2026 2

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alternative, the Respondent contended that he had become entitled to 3 acres of the suit property through the doctrine of adverse possession. 3. The Appellants, in response, denied being privy to any sale agreement with the Respondent and contended that if any agreement was reached, it was illegal and unenforceable as the parties who executed the agreements had no capacity to enter into such an agreement. The Appellants further denied that the Respondent had acquired any prescriptive rights over the suit property through adverse possession. 4. In a judgment delivered on 23rd October 2018, the superior court (Matheka J) found for the Respondent and granted two substantive orders: a declaration that the Appellants had procured registration over the suit property through fraud, and an order that the suit property be subdivided and 3 acres thereof be transferred and registered in the name of the Respondent. 5. The Appellants were aggrieved with the judgment, and they preferred an appeal to this Court, contending that: (i) The learned Judge erred in law and fact by finding that the Appellants were registered as owners of land parcel number Kakamega/Shikulu/657 through fraud, whereas the aspect of fraud was never proved. (ii) The Learned Judge erred in law and fact in finding that the Respondent had purchased three (3) acres out of LR No. Kakamega/Shikulu/657, whereas the evidence adduced was not sufficient to prove KakamegaCivilAppealNo.E045of2026 3

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purchase. KakamegaCivilAppealNo.E045of2026 4

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(iii) The Learned Judge erred in law and fact in finding that the Respondent had purchased three (3) acres of land out of L.R. No. Kakamega/Shikulu/657, whereas the alleged seller did not have the capacity to sell. (iv) The Learned Judge erred in law and in fact in finding that L.R. No. Kakamega/Shikulu/657 should be subdivided, and 3 acres portion thereof be transferred and registered in the names of the Respondent, whereas L.R. No. Kakamega/Shikulu/657 did not exist. (v) The Learned Judge erred in law and fact by failing to consider and take into account the evidence of the Appellants, thus arriving at a wrong decision. (vi) The Learned Judge erred in fact by admitting the Plaintiff's evidence, yet it was marred with contradictions. 6. The Appellants prayed that the Appeal be allowed and the judgment be set aside with costs before this Court and the superior court. 7. The Respondent, in turn, filed a Notice of Affirmation of the judgment of the superior court and a Cross-Appeal dated 20 June 2025, in which he asserted that: The learned Judge erred and was wrong in failing to find and determine that the Respondent had become the owner of the piece of land formerly known as Kakamega/Shikulu/657 by virtue of the doctrine of adverse possession. KakamegaCivilAppealNo.E045of2026 5

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8. The Respondent prayed for this Court to issue an order that he be registered as the owner of 3 acres of the suit property, and a title be issued in his name. 9. The appeal was heard on 27 April 2026. Learned counsel Ms Rauto appeared for the Appellants while learned counsel Mr S.M. Keyonzo appeared for the Respondent. 10. Ms Rauto began her submissions by urging that the particulars of fraud set out by the Respondent were not proved, and that the superior court had no jurisdiction to question the root or legitimacy of the grant of the Letters of Administration or any processes undertaken thereunder, because the particulars of fraud related to the grant of Letters of Administration by the High Court pursuant to section 51 of the Law of Succession Act in Kakamega High Court Succession Cause No. 218 of 1985, and therefore the jurisdiction lay with the High Court. 11. Counsel cited Judith Gathoni Willie v George Kihara Muchuku & 2 Ors (2010) KECA (KLR) to assert that the option of a party dissatisfied with the administration of an estate was to apply for the revocation or annulment of the grant issued to the administrators. 12. On the question of whether the Respondent had provided evidence of the purchase of a portion of the suit property, the Appellants contended that the Respondent relied on 2 agreements dated 4 May 2001 and 27 December 2005, but had not produced into evidence a copy of the agreement dated 4 May 2001, and that they had not signed the said agreement. The Appellants also impeached the agreement of 27 December 2005 on the ground KakamegaCivilAppealNo.E045of2026 6

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that the sale price for the 2 acres said to have been purchased had remained the same as in the agreement dated 4 May 2001. 13. Further impeaching the validity of the sale agreements dated 4 May 2001 and 27 December 2005, the Appellants contended that they lacked the legal capacity to enter into an agreement over the suit property because, at all times, it was registered in the name of Zakaria Isalia Shikami, who died in 1983, and confirmation of grant to his estate was only given on 5 December 2012. 14. According to the Appellants, the purported sellers of the suit property were not administrators of the estate of the registered owner and, by virtue of the holding in Kamau v Kiarie & Ar (legal representative of the estate of Naomi Wambui Kiarie (deceased) (2024) KEELC 222 (KLR), they could not sell or distribute the suit property before confirmation of the grant. 15. The Appellants submitted that any transaction with the estate of a deceased before the confirmation of a grant was not only unlawful, but amounted to an interference with the estate, contrary to sections 45 and 82 of the Law of Succession Act (see Morris Mwiti Mburugu v Dennis Kimanthi M’mburugu (2016) eKLR. 16. Further, the Appellants contended that the superior court did not consider their evidence that they had obtained the title to the suit property after due process in the succession proceedings without any fraud; the suit property no longer existed, and that they lacked the capacity to deal with the KakamegaCivilAppealNo.E045of2026 7

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estate, but the court ignored the said evidence. 17. Lastly, on the orders made by the superior court, the Appellants argued that the suit property had ceased to exist by the time the Respondent moved the Court on 20 February 2013. In this KakamegaCivilAppealNo.E045of2026 8

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regard, the Appellants submitted that the suit property had been partitioned into Idakho/Shikulu/4087 and Idakho/Shikulu/4088 and transmitted to the beneficiaries of the estate of Zakaria Isalia Shikami (deceased). The Appellants drew the Court's attention to Stephen Mwadoro & 56 Ors v Alhad Mohanned Hatimy (2020) eKLR, where the Court held that a suit could not proceed based on a title that did not exist. 18. The Respondent filed brief submissions in which he reiterated the evidence he placed before the superior court that Dorica Shikami, a daughter-in-law of Zakaria Isalia Shikami (deceased) and a beneficiary of the estate through her husband Peter Shikami Isalia, sold to him a portion of the suit property in anticipation of succession proceedings and allowed him to take possession, but the Appellants later changed tune and transferred the portion in 2013 to the 2nd Appellant who was not a beneficiary of the estate. 19. With respect to the Notice of Affirmation of judgment, the Respondent asked this Court to affirm the judgment on the further ground that the 2nd Appellant, a stranger, was only introduced into the succession proceedings during confirmation as a co-administrator and beneficiary of a portion of the suit property. 20. The Respondent asserted that there was fraud in the introduction of the 2nd Appellant to the estate because, in an application dated 16 September 2012, the 2 nd Appellant had applied to be substituted as a co-administrator of the estate of Zakaria Isalia KakamegaCivilAppealNo.E045of2026 9

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Shikami (deceased) in place of one Peter Shikami Isalia (deceased) and, in an affidavit in support of the application, had described himself as a brother of the deceased, but after confirmation of the KakamegaCivilAppealNo.E045of2026 10

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grant, purportedly entered into a sale agreement with one Nelson Alusiola Moga over Idakho/Shikulu/4088 on 2 January 2013, when the said parcel number was non-existent (the title was issued on 13 January 2013). 21. The actions of the Appellants, the Respondent contended, amounted to making of untrue allegations of a fact essential in point of law to justify the making of a grant contrary to section 76(c) of the Law of Succession Act. These actions, the Respondent stated, were fraudulent and implicated the provisions of section 26(1)(a) & (b) of the Land Registration Act on revocation of a title. 22. On the Cross-Appeal, the Respondent impugned the trial court for not pronouncing itself on the claim for adverse possession for 3 acres of the suit property. In support of the Cross-Appeal, the Respondent asserted that he was approached by Dorica Shikami, wife of Peter Shikami (deceased), a beneficiary of the estate of Zakaria Isalia Shikami (deceased) and that he entered into an agreement with the said Dorica for the purchase of 1 acre and took possession in 1998 and cleared the purchase price on 4 May 2001. He stated that the 1st Appellant and Peter Shikami had been made administrators of the estate of Zakaria Isalia Shikami (deceased) in 1986. Lastly, the Respondent contended that he had been in continuous and uninterrupted possession from 1998 until he moved the superior court on 20 February 2013. 23. We have considered the Appeal, Notice of Affirmation, CrossAppeal and submissions. The issues that present themselves for determination are five, namely whether the superior Court KakamegaCivilAppealNo.E045of2026 11

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had jurisdiction; whether there was a valid sale agreement(s) in respect of the suit property; whether the Respondent proved fraud KakamegaCivilAppealNo.E045of2026 12

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on the part of the Appellants; whether the orders granted by the trial were merited; and whether the Respondent proved adverse possession. 24. This is a first appeal, and our role is well demarcated by Rule 31 of the Court of Appeal Rules, 2022 and case law (see Selle v Associated Motor Boat Co Ltd & Ors (1968) E.A. 123. We are expected to re-evaluate and reassess the evidence afresh, make our own inferences of the facts, and arrive at independent conclusions, with the caution that we did not observe the witnesses who testified before the superior court, and make due allowances for that fact. Jurisdiction 25. We will first address a preliminary jurisdictional question posed by the Appellants. The Appellants submitted that the superior court did not have the jurisdiction under section 51 of the Law of Succession Act to inquire into the legitimacy of the succession proceedings and that such challenge could only be placed before the High Court. 26. It is correct that the Respondent did not challenge the fraud allegations within the succession proceedings before the High Court. He only brought the allegations in parallel proceedings before the superior court when challenging the registration of the Appellants as owners of the suit property. The Appellants equally did not raise the challenge to jurisdiction in the Memorandum of Appeal. The record indicates that they raised preliminary objections on the grounds of limitation, privity of contract and competence of the suit for adverse possession. KakamegaCivilAppealNo.E045of2026 13

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27. Nevertheless, questions of jurisdiction can be raised at any time of legal proceedings, including on appeal (see Governor, County Government of Kakamega & 4 Ors v Omweno & 12 Ors (2025) KECA 190 (KLR). In this respect, the gravamen of the Respondent’s action was the fraudulent registration of the Appellants as owners of the suit property. One of the titles arising from the process was said to be by purchase and thus fell outside the jurisdiction of the succession proceedings in the High Court. The other was through distribution after succession proceedings. Lastly, the Respondent was also seeking ownership of the suit property by way of adverse possession, which could only be determined by the superior Court. In this context, we do find that the superior court had jurisdiction, since the predominant issues raised by the Respondent’s suit related to title to land. Fraud 28. The fulcrum of the trial court’s judgment was on the registration of the Appellants as owners of the suit property through fraud and whether the Respondent met the burden expected of him to prove fraud to the required standard. The particulars of fraud set out by the Respondent in his pleadings revolved around the application by the Appellants for the grant of letters of administration to the estate of Zakaria Isalia Shikami (deceased) and the distribution of the estate, and these were briefly that the Appellants applied for the letters of administration secretly without his knowledge, consent or acknowledgment as a creditor of the estate; introducing the 2nd Appellant as an administrator when he was not a KakamegaCivilAppealNo.E045of2026 14

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beneficiary and transferring part of the suit property to the 2 nd Appellant. KakamegaCivilAppealNo.E045of2026 15

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29. The trial court found that the registration of the Appellants as the absolute owners of the suit property in 2013 was fraudulent because, despite knowing of the sale agreement between the Respondent and the administrator of the estate of Zakaria Isalia Shikami (deceased), which agreement was witnessed by the Appellants' second witness and the then Chief of the area, and that the Respondent had taken possession, the Appellants went ahead and transferred the suit property to themselves. 30. The standard of proof in cases alleging fraud has been well spelt out in various decisions of the courts. This Court in Vijay Morjaria v Nansingh Madhusingh Darbar & Ar (2000) eKLR held: “It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts. See Davy v Garrett (1878) 7 Ch. D 473 at 489.” 31. This is the threshold the Respondent was required to meet. The question is, what evidence did the Respondent place before the superior court, and did the evidence satisfy the burden? KakamegaCivilAppealNo.E045of2026 16

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32. First, the Respondent relied on three agreements: one dated 4 May 2001, an undated second agreement, and a third dated 27 December 2005. The first agreement was for 1 acre of the suit property and was between the Respondent and Dorica Shikami KakamegaCivilAppealNo.E045of2026 17

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and her son Joseph Isalia Shikami. The agreement did not identify the subject property with clarity. 33. The second agreement was entered into between the Respondent and Dorica Shikami. It stated that it was part of the first agreement, and the subject was the sale of another 1acre. The agreement identified the subject property and stated that Dorica was entering into it in respect of the portion Peter Shikami Isalia was expected to inherit from the estate of Zakaria Isalia Shikami. The third agreement was dated 27 December 2005, as already stated and was executed by the Respondent and Dorica Shikami. It was witnessed by Joseph Isalia, Theresa Atema and the area Chief and was in respect of 2 acres and it mentioned the suit property. 34. Apart from the agreements, the Respondent testified before the superior court that it was the 1 st Appellant and Dorica Shikami who first approached him to purchase part of the suit property to enable Dorica Shikami to pay school fees for her children. 35. To support the fraud allegations, the Respondent also relied on extracts of proceedings from High Court Succession Cause No. 218 of 1985. These included an averment in a supplementary affidavit sworn on 26 October 2013 noting the contradictory narrative on how the 2nd Appellant got registered: through transmission from the estate of Zakaria Isalia Shikami and at the same time that he entered into a purchase agreement on 2 January 2013 with one Nelson Alusiola Moga when the said Nelson was not a registered owner of the subject land. The KakamegaCivilAppealNo.E045of2026 18

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Respondent further relied on an application dated 16 September 2012 made by the Appellants for the appointment of the 2nd KakamegaCivilAppealNo.E045of2026 19

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Appellant as a substitute administrator in place of Peter Shikami Isalia (deceased) to the estate of Zakaria Isalia, wherein it was deponed that the 2nd Appellant was a brother to the said Peter Shikami Isalia, and the proceedings of 5 December 2012, when the Appellants informed the superior court that the 2nd Appellant was the only son of Peter Shikami Isalia. 36. To put the history of the dispute into context, it is germane to trace the history of succession to the estate of Zakaria Isalia Shikami (deceased) as set out in the pleadings filed by the parties in the superior court. Zakaria Isalia Shikami (deceased) died on 15 December 1983. The grant of letters of administration to his estate was made to his sons Peter Shikami Isalia and Obadia Shiboche Isalia on 8 May 1986 in Kakamega High Court Succession Cause No. 218 of 1985. Peter Shikami Isalia died before the grant could be confirmed. 37. Through a Motion dated 16 September 2012 and filed in Court on 28 November 2012, the 2nd Appellant applied to substitute and replace Peter Shikami Isalia (deceased) as an administrator to the estate of Zakaria Isalia Shikami. In the supporting affidavit to the application, the 2nd Appellant deponed that he was a brother to Peter Shikami Isalia, who had died on 9 October 1987 before a grant could be issued to the estate of Zakaria Isalia Shikami. 38. On the same day, 28 November 2012, through an application dated 19 November 2012, the Appellants jointly applied for confirmation of the grant that had been (purportedly) issued KakamegaCivilAppealNo.E045of2026 20

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to them. The application indicated that the 2 were the surviving heirs of Zakaria Isalia Ahinda, and there were no dependents. KakamegaCivilAppealNo.E045of2026 21

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39. The application for confirmation of the grant was fixed for hearing before the judge on 5 December 2012. The Appellants appeared before the judge as scheduled. The parties further informed the Court that they had agreed on the mode of distribution. The Court proceeded to confirm the grant and ordered distribution as proposed. 40. On or around 19 February 2013, the Respondent moved the superior court seeking orders restricting the Appellants from dealing with the suit property. In an affidavit sworn by the 2nd Appellant on 15 April 2013, he deponed that he acquired Idakho/Shikulu/4088, a subdivision of the suit property, through a purchase from the family of Peter Shikami Isalia (deceased), who were earmarked to own the parcel and were duly registered as the owner on 8 February 2013. A copy of the agreement shows it was entered into between the 2 nd Appellant and one Nelson Alusiola Moga on 2 January 2013 for a consideration of Kshs 1,400,000/-. The agreement was witnessed by the 1st Appellant, amongst others. By this time, Peter Shikami Isalia was dead, but the Appellants did not disclose whether a petition for grant to the estate of the said Peter Shikami Isalia had been issued. 41. The Appellants did not deny being aware of the agreements between the Respondent and Dorica, a sister-in-law of the 1 st Appellant. The thrust of their contention was that Dorica lacked the legal capacity to enter into the agreements. The Appellants also did not deny that the 2 nd Appellant deponed that he was a brother of Peter Shikami Isalia when an application was made for his substitution (Peter) as an KakamegaCivilAppealNo.E045of2026 22

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administrator of the estate of KakamegaCivilAppealNo.E045of2026 23

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Zakaria Isalia Shikami. The Appellants also did not deny informing the High Court that the 2nd Appellant was the only son of Peter Shikami Isalia. The Appellants were in a better position to clarify the relationship between them and the heirs to the estate of Zakaria Isalia Shikami. 42. From the evidence on record, it is was evident that the introduction of the 2nd Appellant into the succession proceedings, and his executing a sale agreement with one Nelson Alusiola Moga was a strategy to scuttle the agreements and promises made to the Respondent to transfer to him 3 acres out of the suit property once the succession proceedings were finalised. The evidence adduced by the Respondent of the (mis)representations and actions of the Appellants in this regard was in our view sufficient to prove that fraud was used to cause the registration of the Appellants as owners of the suit property. We therefore agree with the superior court that the Respondent proved fraud to the required standard. 43. Section 26(1) of the Land Registration Act affirms the sanctity of title to land and its indefeasibility absent fraud or other unlawful conduct in the acquisition of the title (section 23(1) of the repealed Registration of Titles Act had a similar provision). A fraudster cannot obtain a good title (see Funzi Development Ltd & Ors v County Council of Kwale (2014) eKLR and Arthi Highway Developers Ltd v West End Butchery Ltd & Ors (2015) eKLR). A title obtained through fraud is void ab initio. It is also notable that where fraud is proved, the remedies available include damages, restitution, cancellation of title and a permanent injunction. KakamegaCivilAppealNo.E045of2026 24

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Validity of the sale agreements 44. The transactional relationship between the Respondent, the Appellants and the suit property was anchored on sale agreements. We have re-evaluated and analysed the evidence before the superior court on the same. The Respondent entered into a verbal agreement in 1998 with Dorica Shikami and the 1st Appellant for the sale of 1 acre of the suit property. The agreement was reduced to writing at the Respondent's behest on 4 May 2001. Under the agreement, the Respondent was to conclude payment by the end of May 2001. 45. On a date which is not clear from a copy of the sale agreement, Dorica Shikami entered into another agreement with the Respondent for the purchase of another 1 acre. The agreement stipulated that it was an extension of the initial agreement. The agreement indicates that the son of Dorica Shikami received payment for the purchase on her behalf. Another agreement was entered into on 27 December 2005 between Dorica Shikami and the Respondent. On the same day, Dorica Shikami and the Respondent entered into a lease agreement over 3 acres of the property. 46. It is not disputed that Kakamega/Shikulu/657 was registered in the name of Zakaria Isalia Shikami alias Zakaria Osalia Ahinda (deceased). The said Zakaria Isalia Shikami died on 15 December 1983. Peter Shikami Isalia and Obadia Shiboche Isalia (1st Appellant), as sons of the deceased, petitioned the Kakamega High Court for the grant of letters of administration of the estate in Succession Cause No. 218 of 1985. Peter Shikami Isalia died in 1987 before the grant was confirmed. KakamegaCivilAppealNo.E045of2026 25

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47. An amended Grant of Letters of Administration to the estate of Zakaria Osalia Ahinda was granted to the Appellants, Joseph M. Makotsi and Obadia Shiboche Isalia on 5 December 2012. The grant was confirmed on the said day. Consequently, Dorica Shikami was not an administrator of the estate of Zakaria Osalia Ahinda either in 2001 or 2005, when she entered into the sale agreements with the Respondent. Her capacity to enter into the agreements is therefore called into question. 48. Sections 45 and 82(b)(ii) of the Law of Succession Act deal with any transactions involving immovable property of a deceased person. Section 45 provides: 45. No intermeddling with property of deceased person (1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person. (2) Any person who contravenes the provisions of this section shall — (a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and (b) be answerable to the rightful executor or KakamegaCivilAppealNo.E045of2026 26

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administrator, to the extent of the assets with which he has intermeddled after deducting any KakamegaCivilAppealNo.E045of2026 27

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payments made in the due course of administration. 49. On the other hand, section 82(b)(ii) is in the following terms: 82. Powers of personal representatives Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers — (a) … (b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that— (i) any purchase by them of any such assets shall be voidable at the instance of interested any in other the person asset so purchased; and (ii) no immovable property shall be sold before confirmation of the grant; 50. From the statutory outlay hereinbefore, we find that Dorica Shikami had no legal right or capacity to enter into a transaction over the suit property. She was not an administrator of the estate, even if she was a beneficiary through her husband, Peter Shikami Isalia, who was an administrator before his death. In any case, confirmation of the grant of the estate of the registered owner of the suit KakamegaCivilAppealNo.E045of2026 28

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property had not been confirmed. We accordingly find that the sale agreements were not valid and could not form the KakamegaCivilAppealNo.E045of2026 29

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basis of conferring any interests in the suit property to the Respondent. This conclusion disposes of grounds 2 and 3 of the Appeal. Orders made by the superior court 51. This finding brings us to the third issue of whether the orders made by the trial Court were merited. The Appellants challenged the order made by the superior court that the suit property be subdivided and 3 acres thereof be transferred and registered in the Respondent’s name. 52. The gravamen of the dispute before the superior court was the fraudulent registration of the Appellants as owners of the suit property and whether the Respondent had acquired title to a portion of the suit property through adverse possession. Section 26(1) of the Land Registration Act, which commenced on 2 May 2012, allows a Court to cancel the registration of a person as a proprietor of land if it is shown that the registration was registered through fraud or misrepresentation to which the person was a party. 53. The provision states: 26. Certificate of title to be held as conclusive evidence of proprietorship (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions KakamegaCivilAppealNo.E045of2026 30

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contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except — (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 54. Just as the superior court did, we have concluded that the registration of the Appellants as owners of the suit property was procured through fraud. The order by the superior court to cancel the title was, therefore, anchored in law. 55. As regards the last 2 grounds of appeal taken by the Appellants that the trial court did not consider their evidence on how they acquired the suit property and the contradictions in the Respondent’s case, it is not disputed that the Appellants became entitled to the suit property through the succession proceedings. The grant was confirmed on 5 December 2012. However, the analysis of the evidence which we have undertaken hereinabove left doubt as to whether their registration was on the basis of the confirmation of grant or the sale agreement between the 2nd Appellant and one Nelson Alusiola Moga. 56. Lastly, on the inconsistencies in the Respondent’s case, the Appellants did not isolate the contradictions in the Respondent’s evidence nor disclose how such contradictions could have been determinative of the suit before the superior court. KakamegaCivilAppealNo.E045of2026 31

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Adverse Possession and Cross Appeal 57. On the last issue, the Respondent Cross-Appealed on the ground that the superior court failed to determine his limb of the alternative action for adverse possession. The Appellants KakamegaCivilAppealNo.E045of2026 32

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contended that the action for adverse possession was incompetent because it was not commenced through an Originating Summons, and that the claim could only run against the purported seller and not the Appellants, as they acquired title in 2013. 58. It is correct that the Respondent pleaded a cause of action for adverse possession. It was an alternative cause of action. The superior court found for him on the action for fraud and did not address the question of adverse possession. That was an error of law on the part of the superior court. 59. As regards whether the Respondent’s claim was merited, the evidence on record, and which evidence was not rebutted in any meaningful way, was that the Respondent was approached in 1997 by the 1 st Appellant, who informed him that his sister-in- law, Dorica Shikami, had challenges paying school fees for her children, and she wanted to lease the suit property, which then was 6.5 acres. According to the Respondent, he paid the lease fees, and in 1998, the 1 st Appellant and the sister-in-law offered to sell him 1 acre from the suit property, and he paid Kshs 100,000/- and took possession, and this was followed by another purchase of 2 acres in 2005. 60. The Respondent also called a witness who testified that she was employed by the Respondent in 1997 to take care of part of the property that had been purchased and that the Respondent used to plough the land. Another witness, the Chief of the area, confirmed that he was aware that the Respondent had purchased part of the land. The Appellant’s KakamegaCivilAppealNo.E045of2026 33

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second witness admitted that the Respondent had leased the property. KakamegaCivilAppealNo.E045of2026 34

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61. In his submissions, the Respondent reiterated that he had a verbal agreement with Dorica Shikami and the 1 st Appellant and that, consequent to the agreement, he was let into occupation in 1998. According to the Respondent, upon taking possession, he had uninterrupted, continuous use of the 3acre portion of the suit property until he moved the Court on 20 February 2013. The Respondent maintained that he had acquired prescriptive rights under section 30(f) of the Registered Land Act (repealed). 62. The section provided: Unless the contrary is expressed in the register, all registered land shall be subject to such of the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register – (f) rights acquired or in the process of being acquired by virtue of any written law relating to the limitation of actions or by prescription. 63. The Appellants did not address the question of adverse possession/Cross-Appeal in their submissions. 64. To succeed in a claim for adverse possession, the party must prove actual and continuous possession, open and notorious occupation, exclusive use of the land and lack of permission from the owner. The action is anchored in sections 7, 13 and 38 of the Limitation of Actions Act. In Public Trustee v Wanduru Ndegwa (1984) KECA 72 (KLR), this Court held that the time for purposes of adverse possession begins running upon payment of the full purchase price. KakamegaCivilAppealNo.E045of2026 35

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65. The Respondent testified that he took possession of a portion of the suit property in 1998. The possession was with the permission of the administrators of the estate of Zakaria Isalia Shikami. The Appellants did not question the Respondent on the action for adverse possession during the hearing before the superior court. There was no evidence that they attempted to assert any possessive rights against the Respondent. 66. The Respondent's entry into the suit land in 1998 was permissive, and it was expected of him to demonstrate to the Court when his possession became adverse for purposes of the law. In Sisto Wambugu vs. Kamau Njuguna (1983) KECA 69 (KLR), this Court held: “There have been several cases, of which Livingstone Ndeete case is one, in which the of land puts his case in the alternative, that is to by pleading the agreement under which he is entered, and then asking for an order based on subsequent adverse possession. For instance in Hosea vs. Others (1974) EA 526, Simpson J, following Bridges Mees (1957) 2 All ER 577, held that once payment of the last instalment of the purchase price had effected, the purchaser’s possession became the vendor and that he thenceforth, by occupation for twelve years, was entitled to become registered as proprietor of it.” 67. Relying on the holding in the authority aforesaid, the Court is called upon to establish when the Respondent’s possession KakamegaCivilAppealNo.E045of2026 36

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became adverse to that of the registered owner of the suit KakamegaCivilAppealNo.E045of2026 37

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property. In the appeal at hand, the Respondent initially purchased 1 acre out of the suit property in 1998, and according to the agreement dated 4 May 2001, the balance of the purchase price was to be made by the end of May 2001. It is not clear from the record if the balance was paid as stipulated. 68. The Respondent got into an addendum contract to purchase a further 1 acre. The date of this agreement is not legible in the copy of the contract on the record, but it states that the total acreage sold was now 2 acres. The Court cannot tell from the addendum agreement when the payment was made. The Respondent did not give clarity during his testimony when payments in respect to the addendum contract were made. The parties entered into another contract on 27 December 2005. This agreement indicated that it was in respect of 2 acres, and it acknowledged receipt of payment of Kshs 200,000/- with nil balance. 69. The Court notes that in the Respondent's witness statement that was adopted as part of his testimony, he stated that he concluded payment of the purchase price for 3 acres in 2001, but did not disclose the exact date. On the assumption that the agreement of 27 December 2005 signified the payment and acknowledgement of the full purchase price, the Respondent’s possession thus became adverse to that of the registered owner from that date. The Respondent moved the superior court on 20 February 2013. This was 5 years shy of the 12 years prescribed by section 13 of the Limitation of Actions Act. If we were wrong on that assumption and take it KakamegaCivilAppealNo.E045of2026 38

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that the Respondent stuck to the promise in the 4 May 2001 agreement to conclude payment by the end of KakamegaCivilAppealNo.E045of2026 39

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May 2001, the 12 years prescribed in law would have actualised in May 2013. The Respondent therefore moved the Court before the end of the 12 years. 70. On the material on record, we conclude that the Respondent did not prove adverse possession as he moved the Court prematurely and, on that ground, we find that the adverse possession had not matured. Conclusion and Orders 71. Our conclusion in light of the above findings is that the appeal partially succeeds on the ground of that there was no legal capacity of the part of the sellers of the suit property to the Respondent and, thus the Respondent could not acquire a valid title. We have also found that fraud against the Appellants was proved. The logical outcome of that finding is that the titles acquired by the Appellants were void ab initio and cannot legally stand. 72. We, accordingly set aside the orders made by the Environment and Land Court (Matheka J.) in the judgment delivered on 23rd October 2018 in ELC Case No 60 of 2013, and substitute them with the following orders: (i) A declaration that the Appellants were registered as owners of land parcel number Kakamega/Shikulu/657 through fraud. (ii) The registration of the Appellants owners of Kakamega/Shikulu/657 or subdivisions arising therefrom Idakho/Shikulu/4087 and being the as Idakho/Shikulu/4088 be and is hereby cancelled. KakamegaCivilAppealNo.E045of2026 40

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(iii) The Kakamega Lands Registrar shall effect the cancellation of the registration of the Appellants as owners of Kakamega/Shikulu/657 or its subdivisions Idakho/Shikulu/4087 and Idakho/Shikulu/4088 forthwith on the register upon service of this judgment, and shall revert the title to Kakamega/Shikulu/657 back to the name of Zakaria Osalia Ahinda alias Zakaria Isharia. (iv) The Respondent’s Cross Appeal on adverse possession is found not to be merited and is hereby dismissed. (v) Considering that the Appeal has only partially succeeded and the Cross-Appeal has failed, we order that each party to bear own costs of the appeal and before the superior court. 73. Orders accordingly. Dated and delivered at Kakamega this 17th day of July, 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 KakamegaCivilAppealNo.E045of2026 41

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DEPUTY RREGISTRAR KakamegaCivilAppealNo.E045of2026 42

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