Mary Anyango Odhiambo (Suing as the legal representative of the estate of Joseph Jabilo, Deceased) v Godfrey Waweru Okuto (Consolidated with ELC Appeal No. E043 of 2024: Godfrey Waweru Okuto v Joseph Semo Jabilo)

in Appeal No. E041 of 2024 and the Respondent in Appeal No. E043 of 2024, as the Appellant, and to GODFREY WAWERU OKUTO, the Appellant in Appeal No. E043 of 2024 and the Respondent in Appeal No. E041 of 2024, as the Respondent, where the context so permits. 2. The appeals challenge the judgment and decree of the Hon. E.A.Obina, SPM, delivered on 28th May 2024 in Kisumu CMCELC No. 57 of 2020 (the trial court). The Respondent is the legal representative of the deceased, Nelson Okuto Ouya (Ouya). The Respondent filed the trial court’s suit against Joseph Semo Jabilo, deceased (Semo), through a plaint dated 17th July 2020, filed on 20th July 2020. The Respondent amended his plaint on 9th September 2020. Semo was the son of Joanes Jabilo Abele (Abele), deceased. Semo obtained a Grant of Letters of Administration in respect of the estate of Abele on 28th July 2020. He filed a statement of defence at the trial court on 23rd February 2021 and died on 21st February 2022. 3. The Appellant, MARY ANYANGO ODHIAMBO, the widow of Semo, obtained a Grant of Letters of Administration Ad Litem in respect of his estate on 20th February 2023. On 21st March 2023, she was substituted as the defendant in the trial court’s suit in place of Semo, ELCLA E41 & E43 OF 2024 JUDGMENT Page 2

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through an amended defence and counterclaim dated 20 th March 2023. 4. The dispute before the trial court concerned all that parcel of land known as Title No. Kisumu/Chiga/1903 (suit property). The suit property was registered in the name of Jabilo Abele on 14 th December 1983. On 8th December 1987, Jabilo Abele's name was changed in the register to Joanes Jabilo Abele (Abele). On the same date, the suit property was registered in the name of Nelson Okuto Ouya (Ouya), who was issued with a title deed for the property thereafter on 9 th December 1987. On 2nd February 2010, one Nicholas Owuor Jabilo registered a caution against the title of the suit property, claiming beneficiary’s interest. 5. In his claim against Semo in the trial court, the Respondent averred that his deceased father, Ouya, was the registered proprietor of the suit property; that in December 2009, Semo entered the suit property and proceeded to cultivate the same without the consent of his family; and that in 2010, Semo registered a caution against the title of the property and thereafter moved in and constructed a structure thereon. ELCLA E41 & E43 OF 2024 JUDGMENT Page 3

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6. The Respondent sought judgment against Semo for a permanent injunction restraining him from further trespassing on the suit property; the removal of the structures erected on the suit property; possession of the property; general and exemplary damages, together with interest; and the costs of the suit. 7. In her amended statement of defence, the Appellant denied all the averments in the Respondent’s amended plaint. The Appellant averred that the suit property belonged to Semo’s family, which had occupied it for over 80 years, and that Ouya had fraudulently caused the property to be registered in his name. The Appellant further averred, in the alternative, that the deceased’s family was entitled to the suit property through customary trust. 8. In her counterclaim, the Appellant averred that she was the administrator of the estate of Semo; that Semo’s father, Jabilo Abele (Abele), was the owner of the suit property on which he had established his home and was buried; that Semo inherited the suit property from Abele and had occupied the same for over 60 years without any interruption; that Abele leased a portion of the suit property for 5 years to the Respondent’s father, Ouya, to cultivate sugar cane; and that they occupied the suit property peacefully until ELCLA E41 & E43 OF 2024 JUDGMENT Page 4

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when they learnt that the property had been transferred to Ouya irregularly, illegally and fraudulently. 9. The Appellant sought judgment against the Respondent for a declaration that she was entitled to the suit property; an order for the rectification of the register of the property; a permanent injunction restraining the Respondent from further trespassing on the suit property or dealing with the same in any way whatsoever; and costs of the suit together with interest. 10. At the hearing, the Respondent adopted his witness statement in which he reiterated the contents of his amended plaint as his evidence in chief and produced the documents attached to his list of documents as exhibits 1 to 5. The Respondent’s sister, Peres Adhiambo Okuto (PW2), gave evidence in support of the Respondent’s claim. She testified that the suit property was purchased by her father, Ouya who gave it to her; and that she was supposed to construct a house on the suit property but was prevented from doing so. PW2 also adopted her witness statement as part of her evidence in chief. 11. The Appellant called the land registrar, Juma Boaz Oketch (DW1) as her first witness. DW1 testified that the suit property was ELCLA E41 & E43 OF 2024 JUDGMENT Page 5

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registered in the name of Abele as the first registered owner on 14 th December 1983; that on 8th December 1987, Abele’s name was corrected to read Joanes Jabilo Abele; on the same date, the suit property was registered in the name of Ouya; and that there was a copy of the instrument of transfer in the parcel file but the letter of consent of the Land Control Board was not found in the file. DW1 produced a copy of the extract of the register as D.EXH.1. 12. The defence’s second witness was Jenifer Atieno Kosome (DW2). DW2 was the Assistant County Commissioner at Nyakach. She testified that she was the Chief of East Kolwa Location before her promotion to Assistant County Commissioner; that she attempted to reconcile the parties to the dispute before the court, but the Respondent did not cooperate; and that she wrote the letter dated 5 th June 2019 in the Appellant’s bundle of documents, referring the dispute to whom it may concern. 13. DW3, George Obaro Owuor testified that the suit property belonged to his grandfather and that the family had occupied it for over 47 years. He also adopted his witness statement as part of his evidence in chief. The Appellant gave evidence as DW4. She adopted her witness statement as part of her evidence in chief and produced ELCLA E41 & E43 OF 2024 JUDGMENT Page 6

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the documents attached to her list of documents as exhibits. She stated that she wanted the suit property to revert to Abele's name. 14. After the close of evidence, the parties made written closing submissions. In a judgment dated 28 th May 2024, the trial court framed seven issues for determination namely: whether the Respondent’s father, Ouya acquired the suit property lawfully and was lawfully registered as the proprietor thereof; whether the Semo’s father, Joanes Jabilo Abele(Abele) was lawfully registered as the owner of the suit property; whether there were irregularities at the land office; whether it was the whole or only a portion of the suit property in dispute; the appropriate orders to make in the matter; and who should bear the costs of the suit. 15. The trial court found that Jabilo Abele and Joanes Jabilo Abele were two different people; that the transfer of the suit property from Jabilo Abele to Joanes Jabilo Abele was irregular; that the transfer of the suit property from Jabilo Abele to Joanes Jabilo Abele could not be done through a change of name; and that the transfer of the suit property from Jabilo Abele to Joanes Jabilo Abele, having been irregular, Joanes Jabilo Abele (Abele) did not have a good title to transfer to Ouya. The trial court held that the titles that were held by ELCLA E41 & E43 OF 2024 JUDGMENT Page 7

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Joanes Jabilo Abele (Abele) and Ouya were null and void and should be cancelled. 16. The trial court ordered that the title for the suit property in the name of Ouya and Joanes Jabilo Abele be cancelled and the suit property restored to the name of Jabilo Abele; that the family of Jabilo Abele does consider transferring a portion of the suit property measuring one (1) acre to the Respondent and, if that was not possible, the Respondent be compensated at the current market value for the one-acre portion of the suit property. On costs, the court ordered each party to bear its own costs. 17. The Appellant and the Respondent were dissatisfied with the judgment and filed the consolidated appeals. In her memorandum of appeal dated 27th June 2024, the Appellant contended that the trial court erred in law and fact in ordering that the Respondent be considered for the transfer to him of a portion of the suit property measuring 1 acre failure to which he be compensated for the same at market value while such orders were not sought in the plaint; that the trial court misdirected itself in the evaluation of evidence thereby arriving at a wrong decision which occasioned a miscarriage of justice; that the trial court erred in raising and determining issues that ELCLA E41 & E43 OF 2024 JUDGMENT Page 8

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were not raised by the parties; that the judgment of the trial court was contrary to the provisions of Order 21 of the Civil Procedure Rules; and that the decision was against the weight of evidence. 18. The Appellant prayed that part of the trial court’s judgment directing the Appellant to consider transferring a portion of the suit property measuring 1 acre to the Respondent or compensating him for the same at market rate, and that each party bear its own costs of the suit, be set aside; that the Respondent’s suit be dismissed in its entirety; that the Appellant’s counterclaim be allowed; that the Appellant be awarded the costs of the trial court’s suit and counterclaim, and the costs of the appeal. 19. The Respondent filed a memorandum of appeal dated 26 th June 2024 in which he contended that the trial court erred in finding that the Respondent’s deceased father’s title to the suit property was acquired irregularly; that the trial court erred in its finding that the first registered owner of the suit property Jabilo Abele and Joanes Jabilo Abele were different people; that the trial court erred in its finding that the registration of the suit property in the name of Joanes Jabilo Abele was irregular and illegal, and that the transfer of the property by Joanes Jabilo Abele to the Respondent’s deceased father ELCLA E41 & E43 OF 2024 JUDGMENT Page 9

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was similarly irregular; that the trial court erred in failing to find that the Respondent had proved a case of trespass against the Appellant; that the trial court erred in finding that the Appellant who was sued as a legal representative of Joseph Semo Jabilo, deceased (Semo), and brought the counterclaim in that capacity had no locus standi to claim the suit property on behalf of the estate of Jabilo Abele in the absence of a Grant of Letters of Administration; that the trial court erred in law and fact in finding that the Appellant’s counterclaim was properly before the court while the same was time barred under sections 7 and 26 of the Limitation of Actions Act; and that the trial court erred in law in failing to assess the damages due to the Respondent had it found that Appellant liable to the Respondent for trespass. 20. The Respondent prayed that the judgment of the trial court be set aside in its entirety and substituted with a judgment in favour of the Respondent as prayed in the plaint. 21. The appeal was heard through written submissions. The Appellant filed her written submissions dated 14 th October 2025, while the Respondent filed submissions dated 21st October 2025. 22. I have reviewed the pleadings and the evidence adduced before the trial court, the judgment of the court, and the grounds of appeal ELCLA E41 & E43 OF 2024 JUDGMENT Page 10

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by the Appellant and the Respondent, and the submissions of counsel. In Gitobu Imanyara & 2 Others v. Attorney General [2016] KECA 557 (KLR), the Court of Appeal stated as follows on the mandate of the court on a first appeal: “...this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that 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 allowances in this respect. See Selle and Another v. Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. v. Brown [1970] E.A.L. As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters –vs- Sunday Post Ltd [1958] EA 424. In its own words: “Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the ELCLA E41 & E43 OF 2024 JUDGMENT Page 11

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weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.”” 23. In Kenya Ports Authority v. Kuston (Kenya) Limited [2009] 2EA 212, the Court of Appeal stated that: “On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” 24. In my view, the issues arising for determination in the consolidated appeals are the following: whether the Respondent proved his trespass claim against the Appellant; whether the Appellant proved that the Respondent’s deceased father acquired the suit property fraudulently; whether the trial court determined issues not pleaded and granted orders not sought; and whether the trial court’s judgment should be set aside and if so on what terms. 25. The burden of proof of the Respondent’s trespass claim against the Appellant was on the Respondent. In Halsbury’s Laws of England, ELCLA E41 & E43 OF 2024 JUDGMENT Page 12

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4th Edition, Volume 17, at paras. 13 and 14 , the authors have stated as follows: “13. The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. 14. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.” 26. In Halsbury’s Laws of England 3 rd edition, Volume 38 at page 739 paragraph 1205, trespass is defined as follows: “A person trespasses upon land if he wrongfully sets foot on, or rides or drives over it, or takes possession of it, or expels the person in possession of pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it, or it seems if he erects or suffers to continue on his own land anything which invades the air space of another, or if he discharges water upon ELCLA E41 & E43 OF 2024 JUDGMENT Page 13

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another’s land, or sends filth or any injurious substance which has been collected by him on his own land to another’s land.” 27. The Court of Appeal, Fourth District, Division 1, California, stated as follows in Ralphs Grocery Co. v. Victory Consultants Inc. (2017) 17Cal. App.5th 245, 261; CACI No. 2000: “In the instant action, Appellants have sued Respondents for trespass. “Trespass is unlawful interference with possession of property.” (Staples v. Hoefke (1987)189 Cal.App. 3d 1397,1406). The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was substantial factor in causing the harm. (See CACI No. 2000).” 28. The Respondent brought the lower court suit on behalf of the estate of his deceased father, Nelson Okuto Ouya (Ouya). Ouya was the registered owner of the suit property. The Respondent’s suit was against Joseph Semo Jabilo (Semo) in his personal capacity. The Appellant is the administrator of the estate of Semo. It is common ground that Semo had never been registered as the owner of the suit property. The Respondent’s claim was straightforward. He claimed that sometime in December 2009, he noted that Semo had ELCLA E41 & E43 OF 2024 JUDGMENT Page 14

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encroached on the suit property and begun cultivating sugarcane thereon without the consent of the family of Ouya. He further claimed that, at the time of filing suit, Semo had erected a structure on the suit property and leased a portion thereof to third parties who were carrying out various economic activities thereon. He sought an injunction restraining Semo from continuing acts of trespass on the suit property and from evicting him therefrom. 29. I am satisfied from the evidence on record that the Respondent proved that Ouya was the registered owner of the suit property and that Semo entered and occupied the suit property without the permission of Ouya’s estate. The Respondent produced in evidence a copy of the title deed for the suit property in the name of Ouya and a copy of a certificate of official search showing that at the time he brought the lower court suit, Ouya was the registered owner of the suit property, having been so registered on 8 th December 1987. Since Ouya was the registered owner of the suit property, his estate was entitled to the possession and the use thereof. The Respondent having proved Ouya’s ownership of the suit property, his estate’s right to possession thereof, and Semo’s entry and occupation of the same, the burden shifted to the Appellant (the administrator of ELCLA E41 & E43 OF 2024 JUDGMENT Page 15

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Semo's estate) to establish that Semo had a reasonable excuse for his entry into and occupation of the suit property. 30. The majority of the Supreme Court in Presidential Election Petition No. 1 of 2017, Raila Amolo Odinga & Another v. IEBC & 2 Others [2017] eKLR stated as follows in paragraphs 132 and 133 of the judgment on the evidential burden of proof: “[132] Though the legal and evidential burden of establishing the facts and contentions which will support a party’s case is static and remains constant through a trial with the plaintiff, however, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting and its position at any time is determined by answering the question as to who would lose if no further evidence were introduced. [133] It follows therefore that once the Court is satisfied that the petitioner has adduced sufficient evidence to warrant impugning an election, if not controverted, then the evidentiary burden shifts to the respondent, in most cases the electoral body, to adduce evidence rebutting that assertion and demonstrating that there was compliance with the law or, if the ground is one of irregularities, that they did not affect the results of the election. In other words, while the petitioner bears an evidentiary burden to adduce ‘factual’ evidence to prove his/her allegations of breach, then the ELCLA E41 & E43 OF 2024 JUDGMENT Page 16

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burden shifts and it behoves the respondent to adduce evidence to prove compliance with the law…” 31. The suit property was registered under the Registered Land Act, Chapter 300 of the Laws of Kenya (repealed). The Registered Land Act was repealed by the Land Registration Act 2012. Sections 27, 28 and 143 of the Registered Land Act provide as follows: 27. Subject to this Act- (a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; (b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease. 28. The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances ELCLA E41 & E43 OF 2024 JUDGMENT Page 17

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belonging thereto, free from all other interests and claims whatsoever, but subject – (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require noting on the register: Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee. 143. (1) Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than a first registration) has been obtained, made or omitted by fraud or mistake. (2) The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default. ELCLA E41 & E43 OF 2024 JUDGMENT Page 18

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32. Sections 27 and 28 of the Registered Land Act have been reproduced in sections 24 and 25 of the Land Registration Act 2012 as follows: 24. Subject to this Act— (a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and (b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. 25. (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and ELCLA E41 & E43 OF 2024 JUDGMENT Page 19

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(b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. 33. Section 26(1) of the Land Registration Act 2012 provides that: 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 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. 33. Ouya’s title to the suit property could only be challenged on the grounds of fraud, mistake, misrepresentation, illegality, procedural impropriety or corruption. As stated earlier in the judgment, Semo, in his defence, denied the Respondent’s claim in its entirety. In the ELCLA E41 & E43 OF 2024 JUDGMENT Page 20

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alternative, he averred that the suit property belonged to his family and that it was fraudulently registered in the name of the Respondent’s father. Further, in the alternative, Semo averred that he was entitled to the suit property through a customary trust. In his counterclaim, Semo averred that the suit property belonged to his deceased father, Jabilo Abele (Abele), who leased a portion thereof to the Respondent’s father, Ouya, for a term of 5 years for the purposes of sugarcane cultivation and that Ouya surrendered the suit property to Abele after the expiry of his lease. Semo sought a declaration that he was entitled to the suit property and an order rectifying the register to effect the same. 34. Semo contended that the defences pleaded in his defence provided a reasonable excuse for his entry and occupation of the suit property. In Black’s Law Dictionary 9th Edition, at page 731, fraud is defined as: “a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” In Railal Gordhanbhai Patel v. Lalji Makanji [1957] E.A 314 , the court stated as follows at page 317: ELCLA E41 & E43 OF 2024 JUDGMENT Page 21

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“Allegation 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.” 35. In Virani t/a Kisumu Beach Resort v. Phoenix of East Africa Assurance Co. Ltd [2004] 2 E.A KLR 269, it was held that: “Fraud is a serious quasi-criminal imputation and it requires more than proof on a balance of probability though not beyond reasonable doubt”. 36. In Kampala Bottlers Ltd. v. Damanico (UG) Ltd. [1990-1994] E.A141(SCU), the Supreme Court of Uganda held that: “To impeach the title of a registered proprietor of land, fraud must be attributable to the transferee either directly or by necessary implication. The transferee must be guilty of some fraudulent act or must have known of some act by somebody else and taken advantage of such act. The burden of proof must be heavier than a balance of probabilities generally applied in civil matters.” 35. I agree with the Respondent that although the Appellant pleaded fraud in her defence and counterclaim, the Appellant failed to prove her allegations. The Appellant’s first witness, DW1, who was the land registrar, confirmed that the suit property was registered in the ELCLA E41 & E43 OF 2024 JUDGMENT Page 22

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name of Ouya following a transfer from Abele. He stated that Abele properly executed the transfer. Regarding the consent of the Land Control Board, which was missing from his parcel file, he told the court in cross-examination that the land registry normally does not register incomplete documents and that the letter of consent from the Land Control Board may not have been placed in the parcel file. I have noted that the transaction was not challenged for want of the Land Control Board's consent. The Appellant also raised the issue of the absence of a written agreement of sale between the parties. The issue was not pleaded, and in any event, both parties signed an instrument of transfer in the presence of witnesses. The Appellant had also contended that Abele leased a portion of the suit property to Ouya for 5 years and did not sell the entire property to him. The Appellant did not produce any evidence of the alleged lease. 36. Regarding the issue of customary trust, I agree with the Respondent that this was also not proved. In John Gitiba Buruna & Another v. Jackson Rioba Buruna, Court of Appeal at Kisumu, Civil Appeal No. 89 of 2003, the court stated as follows: “Although the rights of a registered proprietor of land are indefeasible under section 28 of the Registered Land act, ELCLA E41 & E43 OF 2024 JUDGMENT Page 23

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such registration does not as the proviso to section 28 states relieve a proprietor from any duty or obligation to which he is subject as a trustee.” 37. In Isack M’inanga Kiebia v. Isaaya Theuri M’lintari & another [2018] eKLR, the Supreme Court stated as follows on customary trusts: “[52] Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject 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 specific 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 a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor. Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are: 1. The land in question was before registration, family, clan or group land. ELCLA E41 & E43 OF 2024 JUDGMENT Page 24

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2. The claimant belongs to such family, clan, or group. 3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous. 4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances. 5. The claim is directed against the registered proprietor who is a member of the family, clan or group.” 38. In Mwangi Mbothu & 9 others v. Gachira Waitimu & 9 others [1986] eKLR, the court stated that: “The law never implies, the court never presumes a trust but in case of absolute necessity. The court will not imply a trust save in order to give effect to the intention of the parties. The intention of the parties to create trust must be clearly determined before a trust will be implied.” 39. I am not satisfied from the evidence on record that the Appellant proved customary trust. In fact, the Appellant made no attempt to prove the same. From the totality of the foregoing, it is my finding that the Appellant failed to prove that Ouya acquired the suit property irregularly, fraudulently and illegally; and that either she or Semo had any interest in the suit property. 40. I wish to add that I also agree with the Respondent that the Appellant had no locus standi to claim the suit property on behalf of ELCLA E41 & E43 OF 2024 JUDGMENT Page 25

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Abele. The deceased, Joseph Semo Jabilo (Semo), had obtained a Grant of Letters of Administration in respect of the estate of Joanes Jabilo Abele and could act on behalf of his estate. He was, however, sued in his personal capacity as a trespasser on the suit property, not as an administrator of Abele's estate. Even if he had been sued as such administrator, upon his death only another administrator of Abele could substitute him in the suit. The Appellant was the administrator of the estate of Semo and was properly joined to defend the suit on behalf of his estate, as he had been sued in his personal capacity. The Appellant could not, however, purport to use the Grant of Letters of Administration Ad Litem that was granted to her in respect of the estate of Semo to prosecute a counterclaim on behalf of the estate of Joanes Jabilo Abele (Abele). She had no locus standi to bring such a claim. There was also the issue of the counterclaim having been time-barred. The issue was not pleaded, and as such, the trial court did not determine it. I do not wish to comment any further on it, save only to say that if I were to determine it, I would have held that the counterclaim was time-barred. The Appellant was said to have learned of the alleged fraudulent transfer of the suit property to Ouya in 1990, according to the letter from the Chief East Kolwa ELCLA E41 & E43 OF 2024 JUDGMENT Page 26

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Location dated 5th June 2019, which the Appellant produced in evidence. The Appellant brought the counterclaim on 21 st March 2023, after 33 years, to challenge the alleged fraud. I disagree with the Appellant’s advocates’ argument that the death of Abele in 1997 stopped the limitation period from running. I do not accept their interpretation of section 16 of the Limitation of Actions Act. 41. From the foregoing, it is my finding that the Appellant failed to establish that Semo had a reasonable excuse for entering and occupying the suit property. The Respondent established that Semo was a trespasser on the suit property, while the Appellant failed to prove Semo’s claim over the property. The Respondent, having proved his case against Semo, was entitled to the orders he sought in the plaint, while Semo’s counterclaim was for dismissal. 42. I agree with both parties that the findings and orders made by the trial court were not based on the pleadings. In Independent Electoral and Boundaries Commission & Another v. Stephen Mutinda Mule & 3 others [2014]eKLR the Court of Appeal cited with approval the Malawi Supreme Court of Appeal case of Malawi Railways Ltd v. Nyasulu [1998]MWSC 3 where the judges quoted an article by Sir Jack Jacob entitled “The present Importance of Pleadings” published in ELCLA E41 & E43 OF 2024 JUDGMENT Page 27

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[1960] Current Legal problems, at P. 174 where the author stated as follows: “As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings … for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice…” 43. The issues of whether Jabilo Abele and Joanes Jabilo Abele were one person or two different people; whether the change of name of ELCLA E41 & E43 OF 2024 JUDGMENT Page 28

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Jabilo Abele to Joanes Jabilo Abele in the register of the suit property was irregular; and whether the Respondent should be given a portion of the suit property measuring 1 acre or be compensated for the same at market value were not pleaded. As rightly pointed out by the Respondent, these were issues raised by the learned magistrate without prompting from any of the parties. The trial court's orders, which were not based on the pleadings and evidence, were erroneous. 44. In conclusion, I will allow the Appellant’s appeal only to the extent of setting aside the trial court’s order that she considers giving the Respondent a portion of the suit property measuring 1 acre or compensating him for the same. The rest of the appeal has no merit. For the Respondent, his appeal wholly succeeds. On the orders to grant to the Respondent, I find that he is entitled to an injunction to restrain the estate of Semo from trespassing on the suit property. He is also entitled to an order evicting the estate of Semo from the suit property and to general damages for trespass. I agree with the Respondent that the trial court erred in failing to assess damages it would have awarded were it to find the Respondent’s trespass claim proved. The Respondent had prayed for an award of Kshs. 9,000,000/ELCLA E41 & E43 OF 2024 JUDGMENT Page 29

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as general damages for trespass and loss of use. I note that the Respondent claimed only general damages for trespass. The Respondent did not claim loss of use of the suit property. The Respondent did not propose any award for exemplary and punitive damages. I am of the view that the Respondent is entitled to general damages for trespass. I will award only nominal damages under this head, since, in my view, the Respondent slept on his rights. He brought the suit 11 years after learning of Semo’s trespass on the property. Due to his indolence, I will award him Kshs. 50,000/- as general damages for trespass. I am not persuaded that a case has been made for exemplary and punitive damages. 45. For the foregoing reasons, I hereby make the following orders in the matter: (a) Save for the prayer for the setting aside of the orders of the trial court requiring the Appellant to consider giving the Respondent a portion of the suit property measuring 1 acre or compensating him for the same, ELCLA No. E041 of 2024 is dismissed; (b) I allow ELCLA No. E043 of 2024. I set aside the judgment of the trial court delivered on 28th May 2024, and substitute it with ELCLA E41 & E43 OF 2024 JUDGMENT Page 30

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an order dismissing the Respondent, MARY ANYANGO ODHIAMBO (Suing as the legal representative of the estate of Joseph Semo Jabilo), counterclaim and entering judgment for the Appellant, GODFREY WAWERU OKUTO, as follows: i. A permanent injunction restraining MARY ANYANGO ODHIAMBO (Suing as the legal representative of the estate of Joseph Semo Jabilo) by herself or through her servants, agents and/or any other person acting through her from trespassing on or re-entering all that property known as Title No. Kisumu/Chiga/1903. ii. The execution of the order granted in (i) above is stayed for 360 days from the date hereof. iii. MARY ANYANGO ODHIAMBO (Suing as the legal representative of the estate of Joseph Semo Jabilo) shall remove all the structures she has erected and shall vacate and hand over to GODFREY WAWERU OKUTO all that parcel of land known as Title No. Kisumu/Chiga/1903 within 360 days from the date hereof, failure to which GODFREY WAWERU OKUTO shall be at liberty to apply for warrants for her forcible eviction from the property. ELCLA E41 & E43 OF 2024 JUDGMENT Page 31

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iv. Kshs. 50,000/- as general damages for trespass. v. Each party shall bear its costs of the lower court suit. (c) GODFREY WAWERU OKUTO shall have the costs of the consolidated appeals. Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, countersigned and dated at Kisumu on this day of September 2026 28 th E.K.WABWOTO JUDGE Judgment delivered through Microsoft Teams Platform in the presence of: Ms. Odhong for the Appellant in E041 of 2024 and for the Respondent in E043 of 2024. Ms. Atieno for the Cross Appellant in E043 of 2024. Joanne Omondi; Court Assistant ELCLA E41 & E43 OF 2024 JUDGMENT Page 32

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