Collins Najuma (Suing as the Personal Representative of the Estate of Cephas Owuoth Najuma – Deceased) v Charles Magak Gaya & Edward Onjaro Jakolal

property to the deceased's estate. 3. The Respondents resisted the suit and filed an Amended Defence and Counterclaim alleging that the deceased fraudulently registered the property in his sole name despite it being acquired jointly by four colleagues under a joint venture in 1999. 4. The trial court found in favor of the Respondents, ordering that the land be shared equally among four individuals and directing transmission accordingly. Aggrieved by that decision, the Appellant appealed to this Court via a Memorandum of Appeal dated 9th November 2025. II. SUMMARY OF PLEADINGS 1. The Plaint. The Appellant pleaded that the late Cephas Owuoth Najuma died on 13th July 2019. The Appellant obtained Letters of Administration Intestate in Succession Cause No. 669 of 2021 at Oyugis Law Courts, confirmed on December 2022, distributing land KAMIORO/1780 among beneficiaries. parcel EAST 8 th KASIPUL/KOJWACH The 1st Respondent placed a caution against the title register, blocking transmission. The Appellant sought: a) An order directing the Land Registrar, Rachuonyo, to remove the caution registered against Title No. EAST KASIPUL/KOJWACH KAMIORO/1780. b) An order for transmission of the suit parcel to the Appellant. c) Costs of the suit. 2. Amended Defence and Counterclaim a) The Respondents asserted that in May 1999, four teaching colleagues—Cephas Owuoth Najuma (Deceased), Charles Magak Gaya (1st 2 | Page HOMA BAY ELC CIVIL APPEAL NO. 40 OF 2025 – JUDGMENT

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Respondent), Edward Onjaro Jakolal (2nd Respondent), and Elias Ochola Gaya— pooled funds totalling KSh 35,000 to purchase a plot measuring 50ft by 100ft out of parcel EAST KASIPUL/KOJWACH KAMIORO/339 from Mikael Okelo Obiero. b) The Respondents contended that on 5th April 2016, the deceased fraudulently procured sole registration of the resulting plot as EAST KASIPUL/KOJWACH KAMIORO/1780. c) By way of Counterclaim, the Respondents prayed for: i) Cancellation of the registration of land parcel EAST KASIPUL/KOJWACH KAMIORO/1780 to revert to the original owner or be re-registered appropriately. ii) A permanent injunction. iii)Costs and interest. III. SUMMARY OF EVIDENCE BEFORE THE TRIAL COURT i) Appellant's Case (PW1 - Collins Najuma): Testified that he obtained confirmed Letters of Administration for his late father's estate. Stated that title was registered in his father's name on 5 th April 2016 after fulfilling requirements before the Land Control Board. Acknowledged under cross-examination two sale agreements dated 6th May 1999 and 2nd December 1999 bearing multiple purchasers' names, but maintained the vendor transferred the title solely to his father and that no legal action was taken by the Respondents during the 20-year period preceding his father's demise in 2019. Relied on witness statements from the vendor, Mikael Okelo Obiero, who affirmed transferring the property solely to the deceased after receiving full payment from him. ii) Respondents' Case (DW1 - Charles Magak Gaya & DW2 - Edward Onjaro Jakolal): 3 | Page HOMA BAY ELC CIVIL APPEAL NO. 40 OF 2025 – JUDGMENT

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DW1 testified that four teachers formed an informal self-help group in 1999, pooled funds to buy the land for KSh 35,000, and produced sale agreements dated 6th May 1999 and 2nd December 1999. DW1 stated they discovered the sole registration in 2019 and registered a caution, admitting under crossexamination that no formal fraud complaint was reported to the police or court prior to the succession cause. DW2 corroborated DW1's testimony as one of the four joint purchasers under the 1999 agreements. IV. THE ORIGINAL JUDGMENT In a judgment delivered on 28th October 2025, the learned Senior Principal Magistrate (Hon. S.O. Ongeri) held and ordered as follows: Found that written documentary evidence demonstrated a joint contribution towards the purchase of the land. Held that the deceased committed "mischief" in registering the land solely in his name on 5th April 2016. Decreed that title EAST KASIPUL/KOJWACH KAMIORO/1780 be shared equally among four individuals: Cephas Owuoth Najuma (Deceased), Charles Magak Gaya, Edward Onjaro Jakolal, and Elias Ochola Gaya. Directed the Land Registrar to remove the caution and execute transmission to the four listed individuals. Ordered each party to bear their own costs. V. GROUNDS OF APPEAL The Appellant challenged the trial court's judgment on the grounds that: 1. The trial magistrate erred in law and fact by upholding a transaction barred by the Limitation of Actions Act (Cap 22) under Sections 4(1)(a) and 7. 2. The trial court erred in failing to accord due weight to Section 26 of the Land Registration Act, No. 3 of 2012 regarding absolute indefeasibility of title. 3. The trial magistrate erred in granting relief for equal quarter shares without statutory proof or a proper schedule of sharing. 4. The trial court failed to properly evaluate the Appellant's evidence and submissions. Appellant's Submissions (Collins Najuma, suing as the personal representative of the estate of Charles Magak Gaya / Cephas Owuoth Najuma) 4 | Page HOMA BAY ELC CIVIL APPEAL NO. 40 OF 2025 – JUDGMENT

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i) Core Dispute: The Appellant wants to set aside the trial magistrate's judgment, remove a caution placed on land parcel EAST KASIPUL/KOJWACH KAMIORO/1780, and proceed with land transmission under his father's name. ii) Evidentiary and Procedural Grounds: The trial magistrate allegedly ignored evidence and written submissions presented by the Appellant. The Respondent's claims rely on a defective, 21-year-old sale agreement from December 2, 1999, which is statute-barred under sections 4(2) and 7 of the Limitation of Actions Act. The Respondent never raised any challenges or sought legal redress during the lifetime of the vendor (Michael Okello Obiero) or the Appellant’s father. iii)Legal Arguments on Title and Fraud: i) Under Section 26 of the Land Registration Act, a title deed serves as prima facie evidence of absolute ownership and cannot be challenged except on grounds of proven fraud, misrepresentation, or illegal acquisition. ii) Fraud is a serious common law tort that must be strictly pleaded and proved beyond a simple balance of probabilities, which the Respondent failed to do. iii)The trial court arbitrarily ordered the land to be shared equally among four parties without any supporting schedule, proof of registration of the alleged group, or financial records. 2. Respondent's Submissions (Charles Magak Gaya) i) Core Defense: The Respondent urges the court to dismiss the appeal with costs, maintaining that the trial magistrate properly evaluated the evidence and delivered a sound judgment. ii) Response to Legal and Factual Grounds: The Appellant never filed a response, counter-claim, or preliminary objection in the lower court to contest the Limitation of Actions Act, raising it 5 | Page HOMA BAY ELC CIVIL APPEAL NO. 40 OF 2025 – JUDGMENT

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improperly for the first time during submissions. The trial magistrate correctly established that the suit property was purchased jointly in 1999 by four partners/teachers (including Cephas Owuoth Najuma and Charles Magak Gaya) via a valid court-executed sale agreement. iii) Arguments on Registration and Intention: The Appellant secretly and fraudulently registered the entire parcel solely in his individual name after obtaining land board consent, bypassing the joint ownership structure intended by all purchasers. The lack of formal registration for the teachers' group is irrelevant because the common intention and joint purchase of the land are undisputed. The trial court acted correctly by interpreting the original intent of the parties to ensure each joint purchaser receives their rightful share. VI. ISSUES FOR DETERMINATION ON APPEAL As a first appellate court, this Court has re-evaluated the entire evidence on record to arrive at its own independent findings of fact and law (Selle & Another v. Associated Motor Boat Co. Ltd [1968] EA 123). The core issues for determination are: 1. Whether the Respondents' claim to defeat a registered title was statute-barred under the Limitation of Actions Act. 2. Whether the charge of fraud was strictly proved to impeach the title under Section 26 of the Land Registration Act. 3. Whether the trial magistrate had jurisdiction or justification to order the partition and transfer of registered land to non-parties/unrepresented individuals. VII. FINDINGS & LEGAL ANALYSIS 1. On Limitation of Actions and Unreasonable Delay i) The record confirms that the sale agreements relied upon by the Respondents were executed in May and December 1999, while title was formally registered in the sole name of the deceased on 5th April 2016. 6 | Page HOMA BAY ELC CIVIL APPEAL NO. 40 OF 2025 – JUDGMENT

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ii) Under Sections 7 and 4(1)(a) of the Limitation of Actions Act (Cap 22), actions to recover land or actions founded on contract are barred after 12 years and 6 years respectively. iii)The Respondents took no legal action to enforce a transfer or seek specific performance between 1999 and 2019 (a span of 20 years), nor did they file a suit within the statutory period after title issued in 2016. iv)Equity aids the vigilant, not those who slumber on their rights (vigilantibus non dormientibus jura subveniunt); hence, the Respondents' contractual claims were completely statute-barred. 2. On Indefeasibility of Title under Section 26 of the Land Registration Act i) Section 26(1) of the Land Registration Act, No. 3 of 2012 provides that a certificate of title is prima facie evidence of absolute and indefeasible ownership, impeachable only upon proof of fraud or misrepresentation. ii) Fraud must be specifically pleaded and proved to a standard higher than a mere balance of probabilities (Arthi Highway Developers Limited v. West End Butchery Limited & several others [2015] eKLR). iii)While the Respondents pleaded particulars of fraud, they failed to tender cogent proof. The vendor, Mikael Okelo Obiero, affirmed transferring the property directly to the deceased after receiving consideration from him alone. iv)The trial magistrate's characterization of the deceased's actions as mere "mischief" does not constitute a legal ground under Section 26(1) to impeach a title. 3. On Granting Relief to Non-Parties and Jurisdictional Overreach i. A court can only grant remedies sought by parties in their pleadings (Oddjobs v. Fiebie). Neither the Plaint nor the Counterclaim prayed for subdivision, partition, or sharing among four specific individuals. ii. The trial court directed that the property be split among four people, 7 | Page HOMA BAY ELC CIVIL APPEAL NO. 40 OF 2025 – JUDGMENT

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including Elias Ochola Gaya—who was neither a party to the suit nor represented by an administrator (Damaris Waithera v. Catherine Njeri [2018] eKLR). Courts have no jurisdiction to issue binding orders in favour of nonparties. iii. Furthermore, ordering transmission to private individuals without compliance with the Land Control Act (Cap 302) regarding subdivision consents rendered the trial court's order bad in law. 4. On the Absence of a Formal Sharing Agreement i) While preliminary 1999 agreements showed joint participation in purchasing the parent parcel, no registered trust, partnership deed, or formal sharing agreement was ever executed or registered against the title under the Land Registration Act. ii) In the absence of a legally binding agreement overriding a clean title issued under Section 26, a 1999 contractual expectation cannot legally convert into an order for land subdivision in 2025. VIII. FINAL ORDERS For the reasons set out above, this Court finds that the appeal has merit and succeeds. The Judgment of the learned Senior Principal Magistrate dated 28th October 2025 is hereby set aside. IT IS HEREBY ORDERED THAT: 1. The Appeal is hereby allowed in its entirety. 2. The Judgment and Decree of the Senior Principal Magistrate’s Court at Oyugis in MCELC Misc. Case No. E011 of 2023 delivered on 28th October 2025 is hereby set aside and substituted with an Order allowing the Appellant's claim as prayed and dismissing the Respondents' Counterclaim. 3. (17) An order of mandatory injunction is hereby issued directing the Land Registrar, Homabay, to forthwith remove, cancel, and discharge the caution lodged by the Respondents against Title Parcel No. EAST KASIPUL/KOJWACH 8 | Page HOMA BAY ELC CIVIL APPEAL NO. 40 OF 2025 – JUDGMENT

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KAMIORO/1780. 4. (18) An order is hereby issued directing the registration and transmission of Title Parcel No. EAST KASIPUL/KOJWACH KAMIORO/1780 into the name of Collins Najuma in his capacity as the sole registered Personal Representative/Administrator of the Estate of Cephas Owuoth Najuma (Deceased). 5. (19) The Appellant shall have the costs of both this Appeal and the suit in the court below, to be borne jointly and severally by the Respondents. 6. It is so ordered. DATED, SIGNED, AND DELIVERED AT HOMABAY THIS 22TH DAY OF SEPTEMBER 2026. HON. JUSTICE J.W. WANYONYI JUDGE, ENVIRONMENT AND LAND COURT Orders accordingly. In the presence of; 1. Kisaka for the Appellant- Present 2. Mimba for the Respondent – Absent 3. Court Assistant, Ms. Awino. 9 | Page HOMA BAY ELC CIVIL APPEAL NO. 40 OF 2025 – JUDGMENT

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