Nageri v Obare (Sued as Personal Representative of Charles Nageri Obare Wanyama (Deceased)) & 2 others (Environment and Land Case E038 of 2021) [2026] KEELC 4509 (KLR)

NAGERI OBARE NDIACHI (the WANYAMA), 2nd Defendant OCHIENG herein) and MUSUMBA NANGUBA HEALTH CARE LTD (the 3rd Defendant herein). He sought judgment against the Defendants jointly and severally with regard to the land parcel NO SAMIA/BUJWANGA/620 (the suit land) in the following terms: 1) An order be and is hereby issued declaring the sub-division of the land parcels NO SAMIA/BUJWANGA/1483 and 1484 and/or any other parcel numbers including parcels NO SAMIA/BUJWANGA/2688 and 2689 as null and void. 2) An order be and is hereby issued for the cancellation of the registration and title of CHARLES NAGERI OBARE (deceased) on land parcel NO Defendant SAMIA/BUJWANGA/620, on land SAMIA/BUJWANGA/1484 Defendant on SAMIA/BUJWANGA/2688 and BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT 2nd parcel NO the 3rd parcels NO 2689 to and land the and Page 2 of 35

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restore / revert land parcel NO SAMIA/BUJWANGA/620 in the joint names of OBARE OSUMBA and CHARLES NAGERI OBARE with ½ share each. 3) That an order of permanent injunction be and is hereby Defendant’s servants, against authorized agents, directors, employees, family, personal representatives and/or any the 2 nd issued other person with the authority to transact and/or deal on behalf of the 2nd and 3rd Defendants from using, transacting and/or interfering in any manner with the land parcel NO SAMIA/BUJWANGA/620. 2. The Plaintiff’s case is that his late father GABRIEL OBARE SUMBA (hereinafter SUMBA) and the 1st Defendant’s late father CHARLES NAGERI OBARE aka WANYAMA OBARE (hereinafter OBARE) were jointly registered as proprietors of the suit land each owning ½ a share. BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 3 of 35 the

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3. However, the late OBARE applied for a correction of names and thereafter proceeded to fraudulently and secretly subdivide the suit land to create the land parcels NO SAMIA/BUJWANGA/1483 and 1484 which were not equal. The said OBARE then registered the land parcels NO SAMIA/BUJWANGA/1483 and 1484 in his name and that of SUMBA. The registration of OBARE, the 2nd and 3rd Defendants as proprietors of the land parcels NO SAMIA/BUJWANGA/620, 1483, 1484, 2688 and 2689 and any other was un-procedural and illegal. 4. The particulars of fraud and illegality are pleaded in paragraph 9(a) to (k) as follows: a) OBARE de-registered SUMBA on land parcel NO SAMIA/BUJWANGA/620 yet the said land had been registered in their joint names with each owing ½ share. b) The land certificate that was issued in respect of the land parcel NO SAMIA/BUJWANGA/620 was bearing the name of OBARE only instead of the joint names of the deceased registered persons. BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 4 of 35

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c) The late SUMBA did not execute/sign any instrument/documents including the mutation subdividing of the land parcel NO SAMIA/BUJWANGA/620 for purposes of it’s subdivision or transfer as he had been de-registered. d) The entries in the Land Control Board application for consent for sub-division and transfer do not conform to the entries in the Land Control Board letters of consent and the mutation. e) Land parcel NO SAMIA/BUJWANGA/620 was subdivided into two unequal portions contrary to entry NO 1 of the register. f) SUMBA nor his family members have never disposed of any part of his ½ share portion of the land parcel NO SAMIA/BUJWANGA/620. g) The restriction placed on the land parcels NO SAMIA/BUJWANGA/1484 on 4.11.2019 was illegally and unprocedurally removed on 8.9.2020. h) The requisite stamp duty charges in respect of the transaction stemming from the land parcel NO BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 5 of 35

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SAMIA/BUJWANGA/620 were not paid/ fully complied with. i) There was no sale agreement between the 2 nd Defendant and the late OBARE and the 2 nd and 3rd Defendant. j) The transactions herein were contrary to the law relating to succession. k) There was no spousal consent. The Plaintiff has therefore been deprived of his rightful shares in the Estate of the late SUMBA by the Defendants hence this suit. 5. In support of his case, the Plaintiff filed his statement and that of his witness SYLVESTER OYWOLO WANDERA. 6. In his statement dated 24th June 2021, the Plaintiff states that he is the son of the late SUMBA and also the Administrator to his Estate having been so appointed vide BUSIA CMC SUCCESSION CAUSE NO. 246 of 2020. That his late father SUMBA and OBARE who is the father to the 1st Defendant were joint owners of the suit land each owning ½ acre. However, OBARE was initially registered as BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 6 of 35

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WANYAMA OBARE not as CHARLES NAGERI OBARE WANYAMA. Later, through a correction of name, OBARE de-registered SUMBA as the owner of the suit land and was issued with a certificate bearing only his name. He then subdivided the land parcels NO SAMIA/BUJWANGA/1483 and 1484 measuring 4.7 Hectares and 4.8 Hectares which were registered in the names of SUMBA and OBARE. And without the consent of SUMBA or his family, OBARE transferred the land parcel NO SAMIA/BUJWANGA/1484 to the 2nd Defendant who then sub-divided it to create the land parcels NO SAMIA/BUJWANGA/2688 and 2689 which were then registered in the name of the 3rd Defendant. That process was illegal, unprocedural and fraudulent and should be cancelled and the suit land be restored in the names of SUMBA and OBARE with each owning ½ share. 7. The Plaintiff’s witness SYLVESTER OYWOLO WANDERA also recorded a statement dated 24th June 2021 in which he confirmed that he is a neighbour to the Plaintiff and the 1 st Defendant and is familiar with the suit land. He confirmed further that SUMBA and OBARE were the joint owners of BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 7 of 35

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the suit land each owning ½ share. That on the ground, the suit land is still one block with an access road from the time he was born. However, the records in the Land Registry show that the suit land has been sub-divided and the portions transferred to third parties. That although there was a restriction placed on the title NO SAMIA/BUJWANGA/1484, the same was illegally removed and save for the entry NO 1 on the title to the suit land, the same has never been subdivided. All the titles should be cancelled and the suit land revert in the joint names of SUMBA and OBARE. 8. The Plaintiff filed the following documents in support of his case as per the list dated 25th June 2021: 1) Copy of Grant of Letters of Administration issued to the 1st Defendant in respect to the Estate of OBARE vide BUSIA CMC SUCCESSION CASE NO 389 of 2019 on 14th October 2019. 2) Copy of Adjudication Record for the land BUJWANGA SOUTH LOCATION. 3) Copy of Registers for parcels SAMIA/BUJWANGA/620, 1483 and 1484. BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 8 of 35 NO

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4) Copy of application dated 2nd July 1981 for correction of names by OBARE in respect of SAMIA/BUJWANGA/620 from CHARLES NAGERI OBARE to WANYAMA OBARE. 5) Copy of land certificate SAMIA/BUJWANGA/620 issued to for CHARLES NAGERI OBARE on 19th August 1981. 6) Mutation Form for the land parcel NO SAMIA/BUJWANGA/620 in the names of SUMBA and OBARE dated 21st April 1983. 7) Copy of Application dated 2 nd April 1982 for the subdivision of the land parcel NO SAMIA/BUJWANGA/620 into three portions. 8) Copy of the transfer of land parcel NO SAMIA/BUJWANGA/1484 by SUMBA and OBARE to the 2nd Defendant. 9) Copies of certificates of search for the land parcels NO SAMIA/BUJWANGA/2688 and 2689. 9. Leave having been granted, the Plaintiff filed a supplementary list of documents dated 26th April 2023 BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 9 of 35

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annexing a copy of Grant of Letters of Administration dated 14th December 2020 and issued to the Plaintiff in respect to the Estate of SUMBA vide BUSIA CMC SUCCESSION CAUSE NO 246 of 2020. 10. The 1st Defendant filed his defence dated 14th February 2022 in which he not only admitted all the allegations of fraud as pleaded in paragraph 9(a) to (k) of the plaint but went on to add that the 2nd and 3rd Defendants had acquired the land parcels NO SAMIA/BUJWANGA/1483, 1484, 2688 and 2689 illegally, fraudulently and unprocedurally. He pleaded further that by reason of mistake and/or misrepresentation, the late OBARE had disinherited the Estate of SUMBA through a correction of name instrument and the 2 nd and 3rd Defendants had never taken possession of the land until recently when the 3rd Defendant trespassed thereon. That the late OBARE had never sold the suit land or any portion and the 2nd and 3rd Defendants therefore have no right or legal interest on the parcels of land. The 1 st Defendant prayed that judgment be entered on admission as sought in the plaint but with no orders as to costs. BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 10 of 35

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11. The 1st Defendant filed his statement and that of his witness SILVANUS ONYANGO OJIAMBO both dated 14th February 2022 although only he (1st Defendant) testified in support of his case. 12. In his statement, the 1st Defendant confirms that he knows the Plaintiff as a son to SUMBA while he is the son of OBARE and Administrator to his Estate. That both SUMBA and OBARE were the joint registered proprietors of the suit land with each owning ½ share. That his late father OBARE, through a purported correction of name, deregistered the Plaintiff’s father SUMBA and was issued with a land certificate bearing only his name as the proprietor of the suit land. He then proceeded to illegally sub-divide the suit land to create the land parcels NO SAMIA/BUJWANGA/1483 and 1484 which were further illegally sub-divided to create the land parcels NO SAMIA/BUJWANGA/2688 and 2689. Todate, neither the Estate of OBARE or SUMBA has acquired ½ share of the original suit land as OBARE purportedly transferred the parcel NO SAMIA/BUJWANGA/1484 to the 2nd Defendant who further BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 11 of 35

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sub-divided it and transferred the portions NO SAMIA/BUJWANGA/2688 and 2689 to the 3rd Defendant yet his father OBARE had never sold any portion of the suit land. The beneficiaries of the Estates of OBARE and SUMBA have therefore been disinherited and the 2 nd and 3rd Defendants have never taken possession of the parcels of land sold to them until recently when the 3 rd Defendant trespassed thereon. Those titles should be cancelled. He therefore agrees with the Plaintiff’s claim as the 3 rd Defendant had even filed an application in BUSIA CHIEF MAGISTRATE’S COURT MISC APPLICATION NO 8 of 2021 seeking to evict him from the land parcel NO SAMIA/BUJWANGA/2688 and 2689 but the said application was dismissed on 3rd November 2021. 13. The 1st Defendant filed the following documents in support of his case vide the list of documents dated 14 th February 2022: 1) Copy of Notice of Motion dated 19 th July 2021 and filed in BUSIA CM ELC MISC APPLICATION NO 8 of 2021 by the 3rd Defendant seeking the eviction BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 12 of 35

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of the 1st Defendant from the land parcels NO SAMIA/BUJWANGA/2688 and 2689. 2) Bundles of photographs. 3) Copies of certificates of official search for the land parcels NO SAMIA/BUJWANGA/1483 and 1484. 4) Documents 1 to 9 listed in the Plaintiff’s list of documents dated 25th June 2021. 14. The 2nd and 3rd Defendants filed a joint statement of defence dated 14th December 2021. They denied the allegations of fraud and illegality levelled against them and put the Plaintiff to strict proof thereof. They pleaded that SUMBA and OBARE sold them the SAMIA/BUJWANGA/1484 land after parcels payment NO of due consideration and urged the Court to dismiss the Plaintiff’s suit with costs and interest. 15. The 2nd and 3rd Defendants filed their documentary evidence vide their list of documents dated 14 th December 2021. The following documents are annexed thereto: 1) Copy of CR 12 for the 3rd Defendant together with a letter of instructions BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT to their counsel Page 13 of 35

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HAMMERTON MALOBA & COMPANY ADVOCATES and Power of Attorney donated to STEPHEN HALONYERE respect to the HABERT land MALO parcels in NO SAMIA/BUJWANGA/2688 and 2689. 2) Copy of Green Card for the land NO SAMIA/BUJWANGA/620. 3) Copy of Green Cards for the land parcels NO SAMIA/BUJWANGA/1483 and 1484. 4) Copies of Official Certificate of Search for the land parcels NO SAMIA/BUJWANGA/2688 and 2689. 5) Copy of Mutation Form in respect of the land parcel NO SAMIA/BUJWANGA/620. 6) Copy of Application for consent to sub-divide the land parcel NO SAMIA/BUJWANGA/620. 7) Copy of Transfer of Land Form in respect of land parcel NO SAMIA/BUJWANGA/1484. 8) Copy of Official Search for the land parcel NO SAMIA/BUJWANGA/1484 dated 5th December 2019. BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 14 of 35

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9) Copy of letters dated 16th June 2020 and 5th December 2019. 10) Copy of Official Search for the land parcel NO SAMIA/BUJWANGA/1484 dated 11th August 2020. 11) Copy of Police Abstract NO OB 5/19/11/2020. 12) Copies of letters dated 11th August 2020 and 7th August April 2021. 16. The 2nd and 3rd Defendants also filed statements of their witnesses OCHIENG MUSUMBA NDIACHA (DW2), STEPHEN HALONYERE HABERT MALO (DW3) CLAY YUSUF OCHIENG (DW4) and HUMPHREY MUSUMBA OKELLO (DW5). 17. In his statement dated 14th December 2021, the 2nd Defendant OCHIENG MUSUMBA NDIACHA (DW2) states that sometime in April 1982, he was approached by SUMBA and his son CHARLES NAGERI OBARE WANYAMA both of whom are now deceased and who offered to sell him a portion of land measuring 4.82 hectares out of the suit land which they jointly owned. The suit land was sub-divided and BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 15 of 35

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he purchased the land parcel NO SAMIA/BUJWANGA/1484 while SUMBA and his son retained the land parcel NO SAMIA/BUJWANGA/1483. The 2nd Defendant obtained the title deed to the land parcel NO SAMIA/BUJWANGA/1484 on 3rd May 1983. That the said GABRIEL OBARE SUMBA and his son CHARLES NAGERI OBARE died on 20th August 2000 and 6th January 2004 respectively and by that time, they had not made any claim over the land parcel NO SAMIA/BUJWANGA/1484. That he enjoyed peaceful and quiet possession of the said land until 2018 when he offered it for sale and when the Plaintiff and 1 st Defendant heard about the intention to sell it, they started causing him problems claiming that he had acquired it fraudulently. They then entered the land and erected a house on the lower part. They also placed a restriction thereon and on 11 th December 2019, he was invited by the Land Registrar for a hearing as to why the restriction should not be removed. However, no representative of the family of SUMBA attended the hearing prompting the Land Registrar to remove the restriction on 8 th September 2020 after which the 2 nd Defendant sub-divided BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 16 of 35

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the said land to create the land parcels NO SAMIA/BUJWANGA/2688 and 2689 which he then sold to the 3rd Defendant. The 3rd Defendant then issued and eviction notice to the 1st Defendant having obtained orders in BUSIA CHIEF MAGISTRATE’S COURT ELC MISC APPLICATION NO 8 of 2021. Therefore, the allegations of fraud levelled against him and the 3 rd Defendant are unfounded and anchored on falsehoods and innuendos. That he acquired his land from the deceased parents of the Plaintiff and 1st Defendant and this suit should be dismissed with costs to himself and the 3rd Defendant. 18. STEPHEN HALONYERE HABERT MALO (DW3) represents the 3rd Defendant. In his statement dated 14th December 2021, he confirms that one ANTONY ADABU MALO is the sole director of the 3rd Defendant and has donated to him the Power of Attorney to defend this suit as he lives in the United States of America That on 10th September 2020, the 3rd Defendant entered into a land sale agreement with the 2 nd Defendant for the purchase of the land parcels NO SAMIA/BUJWANGA/2688 and 2689 having conducted due BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 17 of 35

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diligence at the Lands Registry in Busia. That he visited the said parcels of land and found that the 1 st Defendant had moved into the lower portion thereof and had put up a temporary structure claiming that the 2 nd Defendant had fraudulently acquired the land parcel NO SAMIA/BUJWANGA/1484 which gave rise to the land parcels NO SAMIA/BUJWANGA/2688 and 2689. However, the witness carried out investigations and found that the 2 nd Defendant had lawfully acquired the land parcels NO SAMIA/BUJWANGA/1484 from SUMBA and OBARE who jointly held the title. 19. He is also aware that the Land Registrar summoned the family of SUMBA and the 2nd Defendant to his office after a restriction had bene placed on the land. However, the family of SUMBA refused to attend the meeting and the Land Registrar removed the restriction on the land parcel NO SAMIA/BUJWANGA/1484 on 8th September 2020 thus freeing it for sale. BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 18 of 35

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20. On 7th April 2021, the 3rd Defendant issued an eviction notice to the 1st Defendant pursuant to Section 152(e) of the Land Act and an eviction order was issued. 21. Therefore, the allegations against the 2 nd and 3rd Defendants are unfounded and the Plaintiff’s suit should be dismissed with costs to the 3rd Defendant. 22. In his statement dated 3rd March 2023, CLAY YUSUF OCHIENG (DW4) states that he is the son to the 2 nd Defendant. That he knows as a fact that his father purchased from SUMBA and OBARE the land parcel NO SAMIA/BUJWANGA/1484 which had been hived from the suit land. The said land was registered in the name of the 2 nd Defendant and they enjoyed peaceful and quiet possession of the same. 23. In 2018 the 2nd Defendant made a decision to sell the land in order to meet the costs of specialized medical treatment. He therefore sub-divided it to create the land parcels NO SAMIA/BUJWANGA/2688 and 2689 which he then sold to the 3rd Defendant. And neither SUMBA nor OBARE made BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 19 of 35

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any claim against the 2nd Defendant over the said parcels of land. 24. In his statement dated 3rd March 2023, HUMPHREY MUSUMBA OKELLO (DW5) states that the 2nd Defendant is his maternal uncle. That in 1983, the 2 nd Defendant contracted him to work as a gardener on a parcel of land which he had purchased from SUMBA and OBARE. That he worked on the land during the life time of SUMBA and OBARE who would see him on the land and raised no objection. The Plaintiff was then an adult and also raised no objections. That the suit land had been sub-divided to create the land parcels NO SAMIA/BUJWANGA/1483 and 1484. That the parcel NO SAMIA/BUJWANGA/1484 was registered in the name of the 2 nd Defendant while the parcel NO SAMIA/BUJWANGA/1483 was registered in the names of SUMBA and OBARE where they resided with their respective families i.e. the Plaintiff and OBARE. That it was only in 2019 that the Plaintiff raised claims that the 2 nd Defendant had never bought the land legally. BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 20 of 35

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25. The plenary trial commenced on 26 th April 2023 and ended on 21st July 2025. The parties and their witnesses testified and adopted as their evidence the contents of their statements which I have summarized above. They also produced as their documentary evidence the documents listed above. 26. Submissions were thereafter filed by MR WERE instructed by the firm of GABRIEL FWAYA ADVOCATES for the Plaintiff, MR MAKOKHA instructed by the firm of J. P. MAKOKHA & COMPANY ADVOCATES for the 2nd and 3rd Defendants and by the 1st Defendant who is acting in person. 27. I have considered the evidence by the parties as well as the submissions filed at the end of the plenary hearing. 28. I have identified the following issues for my determination. These are firstly whether the Plaintiff has proved fraud as against the Defendants and secondly, whether the land parcel NO SAMIA/BUJWANGA/620 should revert to SUMBA and OBARE. BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 21 of 35

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1. PROOF OF FRAUD 29. The term fraud is defined in BLACK’S LAW DICTIONARY as: “A knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment. A reckless misrepresentation made without justified belief in it’s truth to induce another person to act.” In the case of VIJAY MORJARIA -V- NANSINGH MADHUSING DARBAR & ANOTHER 2000 eKLR, TUNOI JA stated that: “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 it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 22 of 35

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is not allowable to leave fraud to be inferred from the facts.” In the case of ARTHI HIGHWAY DEVELOPERS LTD -VWEST END BUTCHERY LTD & OTHERS 2015 eKLR, the Court observed that: “It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt.” That standard of proof was also considered by the then Court of Appeal for East Africa in the case of R.G. PATEL -V- LALJI MAKANJI 1957 E.A 314 where it held: “Allegations of fraud must be strictly proved although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.” Finally, in CENTRAL BANK OF KENYA LTD -V- TRUST BANK LTD & FOUR OTHERS 1996 eKLR (C.A. CIVIL BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 23 of 35

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APPEAL NO 215 of 1996) the Court of Appeal rendered itself as follows: “The appellant made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case.” And of course, having pleaded fraud on the part of the Defendants, the Plaintiff had a duty to prove those allegations. Sections 107 to 109 of the Evidence Act makes that clear. They provide as follows: 107:(1) “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” (2) “When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 24 of 35

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108: “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 109: “The burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” It is common ground that during the Land Adjudication exercise on 29th April 1971, the suit land was recorded in the names of SUMBA and OBARE as the owners. The Register shows that on 19th July 1974, it was registered in both their names although on 10th August 1981 there was a change of name from OBARE to CHARLES NAGERI OBARE in whose name the Land Certificate for the suit land was issued on 19th August 1981. Even if there was no mischief in the change of names, it is strange that a few days after the said change of names, a land certificate for the suit and was issued in the sole name of only one proprietor without any explanation. Basically therefore, SUMBA was deregistered BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 25 of 35

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as a joint proprietor of the suit land which was instead registered in the sole name of OBARE and a Land certificate was issued in his name on 19 th August 1981 who then proceeded to sub-divide it to create the land parcels NO SAMIA/BUJWANGA/1483 and 1484. It is the Plaintiff’s case that the said process was done fraudulently and illegally as SUMBA did not execute any documents to facilitate the process. Particulars thereof have been pleaded in paragraph 9 of the plaint. The 1 st Defendant who has been sued as the legal representative of the Estate of OBARE has in paragraph 4 of his defence admitted the Plaintiff’s allegations of fraud and illegality. He proceeded to admit the same during the hearing. The Mutation Form for the subdivision of the suit land to create land parcels NO SAMIA/BUJWANGA/1483 and 1484 is dated 21st April 1981 and bears the names of GABRIEL OBARE SUMBA, CHARLES MAGERI OBARE and OCHIENG MUSUMBA as the registered proprietors yet as at 19 th April 1981, the Land Certificate to the suit land was in the name of CHARLES NAGERI OBARE as the sold proprietor. At page 1 of the said BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 26 of 35

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Mutation Form, the only names appearing are those of GABRIEL OBARE SUMBA and CHARLES NAGERI OBARE. 30. Counsel for the Plaintiff has made the following submissions at page 4: “Originally, L.R NO SAMIA/BUJWANGA/620 was registered in the joint names of OBARE SUMBA and WANYAMA OBARE. Upon issuance of a certificate of title following the application for correction of name by WANYAMA OBARE to CHARLES NAGERI OBARE, the name of OBARE SUMBA was omitted. Why was the name OBARE SUMBA omitted if indeed the intention was just to correct a name? And if the name of OBARE SUMBA was omitted from the title, it then means that pursuant to Section 26 above, WNYAMA OBARE was not on owner (sic) jointly with OBARE SUMBA as was intended originally at entry NO 1 of the register of parcel no 620. BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 27 of 35

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The certificate of title ought to have been issued in their joint names. In the circumstances, it was erroneous and fraudulent for WANYAMA OBARE alias CHARLES NAGERI OBARE to proceed to process a title in his single name and proceed to sub-divide the said land.” The 1st Defendant did not make any submission on that issue having admitted the allegation of fraud. He admitted that 2nd Defendant had no title to transfer to 3rd Defendant. 31. Counsel for the 2nd and 3rd Defendant made the following submissions at pages 1 and 2. “In essence, the Plaintiff and the 1 st Defendant, if what they have set out in the plaint is true, they both should be claiming against the 2 nd and 3rd Defendants. But instead and so as to rock the defence from within they decided otherwise. The claim is one of fraudulent dealing and illegality. What is pleaded is that the son i.e. CHARLES NAGERI MUSUMBA while entitled to ½ share in BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 28 of 35

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land parcel NO SAMIA/BUJWANGA/620 by fraudulent dealing in the manner of correction of name robbed his father GABRIEL OBARE of his ½ share in the said land.” Counsel then proceeds to list the allegations of robbery and adds thus: “From the foregoing, it is noticeable that correction of name by CHARLES NAGERI OBARA (sic) to read alias WANYAMA OBARE did not in anyway affect the interest of his father OBARE SUMBA. His interest remained intact such that when 620 was sub-divide (sic) in 1983, the resultant numbers i.e. 1483 and 1483 (sic) still had OBARE SUMBA and CHARLES NAGERI OBARE and (sic) joint registered owners thereof. Further, that parcel NO 1483 measuring 4.78 Ha and parcel NO 1484 measures 4.82 Ha a more or less equal sharing with a marginal deviation of 0.04 Ha on acreage difference that could have BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 29 of 35

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been informed by ground issues and such other consideration. Your Lordhip, upto that point, allegations of fraudulent dealings as advanced by the Plaintiff and the 1st Defendant cannot stand and neither is fraud established to the required standard of proof. If anything, all through that time upto the sub-division of parcel NO 620 to create 1483 and 1484, the transaction on the land involved father and son and these happened to be the father to the Plaintiff and his son who was father to the 1 st Defendant.” 32. I understand counsel for the 2 nd and 3rd Defendants to be suggesting that the sub-division of the suit land to create parcels NO SAMIA/BUJWANGA/1483 and 1484 had some differences which, though not equal in size, the variation is “marginal” and therefore fraud has not been proved as required in law. I do not think that is correct. As stated earlier in this judgement, fraud was proved the moment the suit land was registered in the sole name of CHARLES BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 30 of 35

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NAGERI OBARE on 19th August 1981. All the subsequent processes which followed thereafter being the creation of the land parcels NO SAMIA/BUJWANGA/1483 and 1484 as well as the sub-division SAMIA/BUJWANGA/1483 of into the land land parcel NO parcels NO SAMIA/BUJWANGA/2688 and 2689 which were then sold to the 3rd Defendant were equally fraudulent, void and illegal. As was stated in the case of MACFOY -V- UNITED AFRICA COMPANY LTD 1961 3 ALL E.R 1169: “If an act is void, it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it so. And every proceeding which is founded on it is incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” Therefore the 3rd Defendant did not obtain a good title to the land parcels NO SAMIA/BUJWANGA/2688 and 2689. BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 31 of 35 As

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was held in the case of MUNYU MAINA -V- HIRAM GATHIHA MAINA 2013 KECA 94 KLR [C.A. CIVIL APPEAL NO 239 of 2009]: “ … where a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument that is under challenge and the registered proprietor must go beyond the instrument and prove legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interest which need not be noted on the register.” The 3rd Defendant’s title SAMIA/BUJWANGA/2688 to the and NO land parcels NO SAMIA/BUJWANGA/ 2689 cannot therefore be protected by Section 26 of the Land Registration Act or Article 40 (1) of the Constitution. And although counsel for the 2 nd and 3rd Defendants referred to “marginal manner in which the deviation” in the land BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT parcels NO Page 32 of 35

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SAMIA/BUJWANGA/1483 and 1484 were created, it does not matter that the failure to abide by the law in the creation of a parcel of land is “marginal”. Only the land owner can elect whether or not to ignore any deviation in the manner in which his interest in the land in dispute has been violated. It does not fall to the offending party to seek refuge in the claim that the violation is “marginal” as the 2nd and 3rd Defendants would wish this Court to conclude. 33. Ultimately therefore and having considered all the evidence herein, I am satisfied that the Plaintiff has proved his case. I therefore issue the following disposal orders: 1) An order is hereby issued declaring he subdivision of the SAMIA/BUJWANGA/620 parcels NO land to parcel create NO the SAMIA/BUJWANGA/1483, land 1484, 2688 and 2689 as null and void. 2) An order is hereby issued for the cancellation of the titles NO SAMIA/BUJWANGA/1483, 1484, 2688 and 2689 and the same to revert to title NO SAMIA/BUJWANGA/620 BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT which shall Page 33 of 35 be

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registered SUMBA in and the joint names of OBARE WANYAMA OBARE with each owning ½ share. 3) An order of permanent injunction be and is hereby issued against the 2nd 3rd and Defendants from in any manner interfering with the land parcels NO SAMIA/BUJWANGA/620. 4) The 2nd and 3rd Defendants shall meet the Plaintiffs costs of this suit. BOAZ N. OLAO JUDGE 16TH JULY 2026 Judgment dated, signed and delivered by way of electronic mail on this 16th day of July 2026 with notice to the parties. Right of Appeal BOAZ N. OLAO JUDGE BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 34 of 35

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16TH JULY 2026 Explanatory notes: This Judgment was due for delivery on 26 th January 2026 but has been delayed following my transfer to Iten Court. The delay is regretted. BOAZ N. OLAO JUDGE 16TH JULY 2026 BUSIA ELC CASE NO. E038 OF 2021 (O.S) – JUDGMENT Page 35 of 35

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