Henry Opiyo Akama & another v John Oloo Ohando

agreement that was executed to confirm the sale of the land. (c) THAT the learned magistrate erred in law and fact when it came to the finding that there is no material before it to confirm that the suit land was transferred from the Respondent's name to the Appellant's father's name lawfully when there were documents filed to support the transfer. (d) THAT the trial court erred in law and fact by relying on a wrong authority to form basis for the judgement. (e) THAT trial court erred in law and fact by ignoring the evidence of the Appellants in arriving at the judgement. (f) THAT the trial court erred in fact and law by failing to consider all the circumstances of the case when arriving at the judgment. 2 On the basis of the above grounds the Appellants seek the following reliefs; 1) The appeal be allowed. 2) The orders of the trial court issued on 1 st August 2025 be set aside or varied. 3) The cost of the appeal be borne by the Respondent. 4) Such other reliefs as may appear just to the Honourable court. SUBMISSIONS 3 The appeal was canvassed by way of written submissions. The Appellants filed submissions dated 19 th November, JUDGMENT ELC APPEAL NO. E041 OF 2025 2

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2025 through Ooro Awana & Company Advocates, while the Respondent filed submissions dated 3 rd January, 2026 through Odhiambo & Odhiambo Advocates. The Appellants' Submissions 4 The Appellants framed three issues for determination: 1)whether the trial court erred in finding that there was no sale agreement between their father and the Respondent while there was a valid sale agreement; 2)whether the trial court erred in law and fact when it arrived at the finding that there were no documents to confirm that the suit land was transferred from the Respondent to the Appellants father’s name lawfully and 3)whether the trial court erred in law and fact by ignoring the evidence of the Appellant in arriving at its judgment. 5 On the first issue, Counsel submitted that the sale agreement was produced as D-Exhibit 5 (at page 181 of the record) with its translation as D-Exhibit 9 (at page 186); that it shows the Respondent sold the land to their father for Kshs. 50,000/= and executed it before witnesses; that it is a valid contract under section 3 of the Law of Contract Act and that, having produced it, they did not need to call any witness to prove the sale. 6 On the second issue, it is urged that the trial court's finding that the land was transferred to "the 3rd defendant," was simply a typographical error, since it JUDGMENT ELC APPEAL NO. E041 OF 2025 3

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should have referred to the 1st and 2nd defendants. Counsel set out the conveyancing steps under the Land Registration Act and submitted that Appellants father followed the process, pointing to the agreement, the application to the Land Control Board, the letter of consent and the title. it is howver conceded that the only document the appellant did not produce are the transfer documents and receipt for payment of stamp duty and registration fees but argued that it was for the Respondent to serve a notice to produce on the Land Registrar because under sections 107 and 108 of the Evidence Act, the burden of proof lay on him. 7 Counsel added that the Respondent had not proved fraud, that a slight error on the map could not justify the cancellation of a title under section 26 of the Land Registration Act, and further relied on their submissions before the trial court. 8 On the third issue, counsel submitted that the trial court ignored three matters: that the Respondent sought to cancel a title held in the name of a deceased person without suing the administrator of the estate of Eliud Akama Odongo, thereby condemning the estate unheard; that their father built rental houses on the land in 1992 and collected rent without complaint from the Respondent until after his death and that the suit was time-barred under section 7 of the Limitation of Actions Act, having been filed in 2019, some 29 years after the transfer JUDGMENT ELC APPEAL NO. E041 OF 2025 4

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entered on 29th April, 1992. Reliance was placed in Mehta v Shah [1965] EA 321, Gathoni v Kenya Co- operative Creameries Ltd [1982] KLR 104 and Iga v Makerere University [1972] EA 65 where counsel argued that the Respondent had not stated when he discovered the alleged fraud, that he had consented to their father's developments in 1992 and that he had conducted a search in 2017 meaning he was aware of the registered owner of the land as at that date. They urged the court to allow the appeal. The Respondent's Submissions 9 The Respondent submitted, first, that the appeal is incompetent because the Land Registrar, the County Surveyor and the Attorney General who were parties at the trial and against whom the decree was directed were not joined to the appeal. He relied on Departed Asians Property Custodian Board v Jaffer Brothers Ltd (Civil Appeal No. 9 of 1998), Pashito Holdings Ltd V Ndung’u & 2 others (1997) eKLR and JMK V MWM & Another (2015) eKLR. 10 Secondly, Counsel contended that the appeal has been overtaken by events because no stay having been sought, the decree was executed on or about 22 nd August, 2025 by the cancellation of parcels North Gem/Malanga/ 1197 and 1198 and annexed to the submission’s documents said to be evidence of the said execution. The court is referred to Kenya Shell Ltd v Benjamin Karuga Kibiru JUDGMENT ELC APPEAL NO. E041 OF 2025 5

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& another [1986] KLR 410 and Mukuma v Abuoga (1988) eKLR 645. 11 On the merits, it is urged that the trial court correctly found that the alleged agreement failed to identify the land with certainty, lacked essential particulars and was unstamped and therefore inadmissible; that the land is agricultural land and any disposition without the consent of the Land Control Board is void; that the Appellants admitted not producing registrable transfer instruments or evidence of payment of stamp duty, which the Land Registration Act requires for a lawful transfer; that the subdivision yielded 0.55 hectares out of a parent parcel of 0.5 hectares, a mathematical and cadastral impossibility; that the death of the alleged witnesses does not relieve the Appellants of their burden under section 107 of the Evidence Act, especially as no death certificates were produced and that the trial court's findings of fact deserve deference. 12 Relying on Munyu Maina v Hiram Gathiha Maina [2013] eKLR. Counsel pointed that where a title is challenged the proprietor must demonstrate the root and legality of the acquisition 13 It was further submitted that the Appellants filed no counterclaim and that limitation does not protect fraud because time runs from discovery of fraud and that section 26(1)(b) of the Land Registration Act does not protect titles obtained illegally or unprocedurally citing JUDGMENT ELC APPEAL NO. E041 OF 2025 6

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Arthi Highway Developers Ltd v West End Butchery Ltd & 6 others [2015] eKLR. He urged the court to dismiss the appeal. ANALYSIS AND DETERMINATION 14 I have carefully considered the grounds of appeal and the parties’ respective rival submissions and considered applicable provisions of law, case law and common law principles as enunciated by courts. The court frames the following as issues for determination; 1) Whether the appeal is incompetent for failure to join the 3rd, 4th and 5th defendants or has been overtaken by the execution of the decree. 2) Whether the Respondent's suit was time-barred. 3) Whether the trial court erred in finding that the Appellants had not demonstrated that the suit land passed to them lawfully. 4) Whether the sale agreement between the Appellants' father and the Respondent was proved. 5) Whether the suit land was lawfully transferred. 6) Whether the trial court relied on a wrong authority or failed to consider the evidence and the circumstances of the case; 7) 15 Who bears the costs of this appeal? This is a first appeal. The duty of this Court, in addition to considering submissions by the appellants and the respondents, is to analyze and re-assess the evidence on record and reach JUDGMENT ELC APPEAL NO. E041 OF 2025 an independent conclusion. This 7

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approach was adopted in Arthi Highway Developers Limited vs. West End Butchery Limited & 6 Others [2015] eKLR, where the court cited the case of Selle vs. Associated Motor Boat Co. [1968] EA 123 and held as follows; “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 allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to circumstances or take account probabilities of particular materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 16 The powers of an appellate court are further codified under Section 78 of the Civil Procedure Act which reads; "(1) Subject to such conditions and limitations as may be prescribed, an appellate court shall have power— (a) to determine a case finally; JUDGMENT ELC APPEAL NO. E041 OF 2025 8

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(b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require the evidence to be taken; (e) to order a new trial. (2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein." 17 Before turning to the issues for determination, I will firstly identify and review the grounds of appeal with a view to eliminating the grounds that may not be properly before this court on appeal. In other words, issues that are being pleaded, for the first time on appeal without leave. Why do I say so? 18 The issues for determination in a suit flow from the pleadings and a trial court may only pronounce judgment on the issues arising from the pleadings or on such issues as the parties had framed for its determination see Galaxy Paints Co. Ltd V Falcon Guards Ltd [2000] 2 EA 385. An unpleaded issue may be decided only where it appears from the course of the trial that the issue was left to the court for decision see Odd Jobs v Mubia [1970] EA 476 and further where it raises a jurisdictional issue. JUDGMENT ELC APPEAL NO. E041 OF 2025 9

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19 The same discipline applies on appeal. Under Order 42 Rule 4 of the Civil Procedure Rules, an appellant may not, except with leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. The Court of Appeal in Kenya Hotels Limited v Oriental Commercial Bank Limited (Civil Appeal No. 252 of 2009) [2019] eKLR reiterated that an appellate court will not deal with issues that were not pleaded, canvassed or raised in the lower court, citing Openda v Ahn [1983] KLR 165 and Kenya Commercial Bank Ltd v Osebe [1982] KLR 292, where it was pointed that for a matter to be a ground of appeal it has to have been sufficiently raised and succinctly made an issue during the trial proceedings. 20 With the above principles in mind, I have compared the grounds of appeal, the submission against the Plaint, the Defence, the evidence and the trial court's judgment. My findings are as follows; i. Grounds (a) and (c) on the alleged sale and the lawfulness of the transfer, were pleaded as per paragraph 18. The Defence denied those particulars in paragraph 12. The trial court decided the question. These grounds are properly before this court. ii. Ground (b) asserts that all the witnesses who were present during the sale of the land to the Appellants father died. No witness alluded to this at the trial, DW1 did not mention it and no death certificate was JUDGMENT ELC APPEAL NO. E041 OF 2025 10

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produced. The assertion appears for the first time in the Memorandum of Appeal and being unsupported by the trial record, cannot be treated as a proven fact on appeal. The only material touching on it is an unexplained annotation on D-Exhibit 5. iii. Grounds (d), (e) and (f) are general grounds that challenge the reasoning of the trial court. They are properly before the court but they do not open up issues that were never pleaded. iv. Limitation was pleaded at paragraph 17 of the Defence and repeated in DW1's witness statement. It was not argued in the Appellants' final submissions at the trial and the trial court did not decide it and it is not a distinct ground of appeal. It is now established that a jurisdictional issue can be raised at any stage even for the first time on appeal. The court draws guidance from Kenya Revenue Authority Vs Hemed & Another (civil Appeal (Application 34 of 2008 (2023) KECA 453 (KLR)) v. The contention that the suit should fail because the estate of Eliud Akama Odongo was not pleaded in the Defence. It was raised only in submissions first in the Appellants' final submissions at the trial and again in their submissions on appeal but was never pleaded, never decided by the trial court and is not a ground in the Memorandum of Appeal. JUDGMENT ELC APPEAL NO. E041 OF 2025 11

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vi. The Respondent's non-joinder and execution objections are raised for the first time on appeal and have been dealt with below. vii. The absence of a transfer instrument and of proof of payment of stamp duty is not a new point. It is the core of ground (c). It falls within the pleaded particulars that the Appellants had produced no documents showing how they acquired the land and that the title was issued without due process, it underlies the trial court's finding that the transfer was not supported by the necessary documents. viii. The mathematical and cadastral impossibility argument is not new either. It was pleaded at paragraph 17 of the Plaint, specifically traversed at paragraph 11 of the Defence, contained in PW1's witness statement adopted as his evidence in chief, and argued at paragraph 10 of the Respondent's final submissions at the trial. The trial court did not make a specific finding on it but it was before that court and this court will consider it on re-evaluating the evidence. Whether the appeal is incompetent for failure to join the 3rd, 4th and 5th defendants or has been overtaken by the execution of the decree 21 The objection that the appeal is incompetent for failure to join the 3rd, 4th and 5th defendants was raised for the first time in the Respondent's written submissions. It was not JUDGMENT ELC APPEAL NO. E041 OF 2025 12

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taken by way of a notice of preliminary objection or an application to strike out the appeal, so the Appellants had no formal opportunity to answer it. I must observe that since by its very nature it concerns the constitution of the appeal and could not have been raised before the trial court, and to me the real question is whether the absence of the 3rd, 4th and 5th defendants makes the appeal a nullity. My answer is an emphatic no as I will demonstrate shortly. 22 The 3rd, 4th and 5th defendants filed no defence and nonetheless took no part in the proceedings in the trial court. The real contest, at the trial and on appeal is between the Appellants and the Respondent. Order 1 Rule 9 of the Civil Procedure Rules provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and that the court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. 23 Guided by Section 78(2) of the Civil Procedure Act, this court exercises the same powers on appeal. The concern behind the objection is that orders should not issue against a person who has not been heard. I have considered the authorities cited by the Respondent and none of them persuades me that an appeal between the real contestants is a nullity because formal parties who took no part in the trial were not named as respondents. Consequently, the objection cannot be sustained. JUDGMENT ELC APPEAL NO. E041 OF 2025 13

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24 The contention that the appeal has been overtaken by execution is also raised for the first time on appeal but which is logical. I think Execution of a decree does not by itself render an appeal nugatory where the law provides for restitution if the decree is reversed as per Section 91 of the Civil Procedure Act. Further the objection also fails on its merits. The objection is premised entirely on documents annexed to the Respondent's written submissions, namely a letter from the Land Registrar dated 20th August, 2025, payment receipts and a certificate of title. Those documents are not part of the record of appeal and no application was made under Section 78(1)(d) of the Civil Procedure Act or Order 42 Rule 27 of the Civil Procedure Rules to admit them as additional evidence. Submissions are not evidence and documents cannot be introduced through them. 25 Having resolved all the foregoing objections, I will now venture into the substance of this appeal. Whether the Respondent's suit was time-barred 26 Section 7 of the Limitation of Actions Act provides that: “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, to that person.” 27 Section 26(a)-(c)of the same Act provides as follows; - JUDGMENT ELC APPEAL NO. E041 OF 2025 14

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"Where, in the case of an action for which a period of limitation is prescribed, either (a) the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it…" 28 The court is agreement on the purpose of limitation as explained in Mehta v Shah [1965] EA 321 and Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104 cited by the Appellants being to protect defendants from stale claims and to require claimants to act with reasonable diligence. However, the fundamental question is when time began to run on the claim that the Respondent actually brought before the trial court. 29 The Appellants place the date at 29th April, 1992 when the register of parcel 499 was closed and the transfer to their father was entered. I must respectfully note that this is not the claim the Respondent pleaded. The respondent’s complaint was directed at the Appellants' own acquisition of parcel 1198. The register of parcel 1198 (D-Exhibit 3) shows the Appellants were registered as proprietors on JUDGMENT ELC APPEAL NO. E041 OF 2025 15

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28th February, 2019 and a title deed issued to them on 14 th March, 2019. 30 The Respondent's evidence, which DW1 did not contradict, is that the Registry Index Map showed parcel 499 intact as late as 20th April, 2018 and showed the subdivision only on a map obtained on 26th April, 2019. DW1 himself stated that the Land Registrar and the Surveyor did not amend the Registry Index Map at the time of the subdivision and only did so subsequently. The Respondent's prayers target the titles that had been registered in the Appellants' names barely two months before he came to court. A cause of action founded on a registration made on 28 th February, 2019 could not accrue before that date and the suit filed in 6th May 2019, was brought shortly afterward. 31 In so far as the Respondent's claim stretches back to the entries made in 1992, it is founded on fraud and illegality pleaded with particulars, including that the Appellants' father tricked him, an illiterate man, into surrendering his title. Section 26 of the Limitation of Actions Act therefore postpones the running of time until the Respondent discovered the fraud or could with reasonable diligence have discovered it. See Justus Tuketi Obara v Peter Koipeitai (2014) eKLR 32 The Appellants submit that the Respondent never stated when he made the discovery. I respectfully disagree with this proposition. My review of paragraphs 8 to 16 of the Plaint and PW1's witness statement set out the events of JUDGMENT ELC APPEAL NO. E041 OF 2025 16

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25th April, 2019 and the documents obtained on 26 th April, 2019 from which he learnt of the subdivision and of the Appellants' registration. Documents speak for themselves. 33 The Appellants point out that the Respondent's own exhibits include a search dated 2 nd May, 2017 (P-Exhibit 1), which disclosed that the title to parcel 499 had been closed on subdivision and a copy of the mutation form issued by the Land Registrar on 3rd May, 2017 (P-Exhibit 2). That is the earliest date on which the record shows the Respondents knowledge that anything was amiss with the register. For me even taking May 2017 as the date of discovery, the suit filed in May 2019 was brought well within any applicable period, whether the three years prescribed by Section 4(2) for actions founded on tort or the twelve years prescribed by Section 7 for actions to recover land. 34 It is this courts finding that the Respondent's suit was not time-barred. Where the burden of proof lay 35 Sections 107 and 108 of the Evidence Act provide as follows; "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. JUDGMENT ELC APPEAL NO. E041 OF 2025 17

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When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 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." 36 Section 109 of the Evidence Act provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless any law provides that the proof of that fact shall lie on a particular person. 37 Section 112 provides that in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon that party. 38 The Respondent alleged fraud, and it is established that fraud must be specifically pleaded and strictly proved as stated in Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR. The Respondents claim I note however, did not rest on fraud alone. He also pleaded that the subdivision and the registrations were illegal and made without due process. 39 Section 26(1) of the Land Registration Act provides; “The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer JUDGMENT ELC APPEAL NO. E041 OF 2025 or transmission by the 18

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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, encumbrances, easements, conditions contained subject or to restrictions endorsed in the and 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.” 40 Once the root of a title is challenged or put in issue, the Court of Appeal held in Munyu Maina v Hiram Gathiha Maina [2013] eKLR that; "…when 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 of title that is in challenge and the registered proprietor must instrument and the prove go legality beyond the of he how acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register." JUDGMENT ELC APPEAL NO. E041 OF 2025 19

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41 Applying the above principles, I think the Respondent discharged the initial burden that lay on him. He proved that he was registered as proprietor of parcel 499 on 4 th November, 1991 (P-Exhibit 1). His case, as pleaded and as recorded by the trial court was that he never sold or transferred the land and that the subdivision and transfer were done without his knowledge or consent. On oath, he disclaimed any knowledge of the agreement, of the subdivision documents and of any transfer. His evidence that he cannot read was not challenged. He further produced the mutation form, the 2018 and 2019 maps and the 2019 search. On the face of that case, the Appellants' defence depended on a positive fact, that the Respondent sold the land to their father and transferred it to him. That is a fact the Appellants wished the court to believe and under the provisions of section 109 the burden of proving it lay on the Appellants. The particulars of how their father acquired the land and of how they came to be registered in 2019, were also matters especially within their knowledge. The evidential burden had therefore shifted to the Appellants and which they did not discharge. 42 I’m further emboldened by the case of Mbuthia Macharia v Annah Mutua Ndwiga & Commissioner of Lands [2017] KECA 290 (KLR) where the Court of Appeal unpacked the concept of the legal burden of proof as follows; JUDGMENT ELC APPEAL NO. E041 OF 2025 20

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‘The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? The Appellants' argument that the Respondent should have served a notice to produce on the Land Registrar is a new issue raised for the first time on appeal…’ Whether the sale agreement between the Appellants' father and the Respondent was proved 43 The trial court pointed that the 1 st Appellant submitted no sale agreement. The record shows that D-Exhibit 5 and its translation, D-Exhibit 9 were produced. To that extent the learned magistrate misapprehended the record. That misstatement is not, however, decisive. The fundamental question is whether on a proper evaluation, the document proves that the Respondent sold and lawfully transferred the land to the Appellants' father. I will therefore evaluate this issue afresh. 44 D-Exhibit 5 is a handwritten page from a book headed "May Expense Account" and "June Expense Account" JUDGMENT ELC APPEAL NO. E041 OF 2025 21

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written in Dholuo. The translation (D-Exhibit 9) is certified by one Ida Raburu of P.O. Box 7860, which is the postal address of the Appellants' advocates at the trial. I further note that an advocate named Raburu appeared for the Appellants at several sittings of the trial court. There is no indication that the translator is a court interpreter or an independent translator at least to dispel any fear of any conflict. The Respondent never accepted the document. According to the translation on 19 th December, 1991 Eliud Akama agreed with the Respondent to buy Land Parcel No. 499 for Kshs. 50,000/= and paid Kshs. 20,000/=; Kshs. 5,000/= was paid on 12th December, 1991; a further Kshs. 5,000/= was paid on 8th January,1992 and on 3rd June, 1992 an entry records that the whole purchase price had been paid. 45 Several features of the document weaken the Appellants' case considerably; (i) The translation of the sale agreement does not accurately reflect the dates on the face of the original. The second payment is dated 26 th December, 1991 not 12th December, 1991. (ii) The purchase price is recorded as fully paid only on 3rd June, 1992. Yet the register of parcel 1198 shows the land transferred to Eliud Akama Odongo on 29 th April, 1992, five weeks earlier. On the Appellants' own document, the land was registered in the purchaser's name before the price was paid. JUDGMENT ELC APPEAL NO. E041 OF 2025 22

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(iii) The Appellants' own accounts of the date of sale are inconsistent. The 1st Appellant's replying affidavit of 16th May, 2019 gives a date shown as 19 th December,1919; his witness statement adopted at the trial gives 19th December, 1992, eight months after the registration and the Appellants' final submissions at the trial refer to an agreement dated 19th December, 1999. (iv) No witness to the document was called and DW1 did not claim to have been present when it was made. The Respondent disclaimed any knowledge of it. Section 70 of the Evidence Act requires that where a document is alleged to have been signed by a person, the signature must be proved to be his. No attempt was made to prove that the marks attributed to the Respondent, an illiterate man, are his. 46 Ground (b) does not assist the Appellants. No witness testified that the witnesses to the agreement had died and no death certificate was produced. I have noted that the word "DEAD" is written beside the name of one David Otieno in the entries in D-Exhibit 5, together with other annotations. Nobody stated who wrote those words or when and an unexplained annotation on a disputed document does not prove a death. I also note that the Respondent's list of witnesses filed in 2019 named a "David Otieno Ohando", although the record does not show whether he is the same person. Even if they had, the death of witnesses does not relieve a party of the burden JUDGMENT ELC APPEAL NO. E041 OF 2025 23

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of proving the execution of a disputed document, whether by other evidence of the handwriting or otherwise. None was offered. 47 I therefore find that, although the trial court erred in stating that no agreement was produced, the Appellants did not prove on a balance of probabilities that the Respondent sold parcel 499 or any part of it, to their father. Consequently grounds (a) and (b) fail. Whether the suit land was lawfully transferred 48 Title passes only upon the registration of a duly executed instrument of transfer. The transfer entered on 29 th April, 1992 was affected under the Registered Land Act (Cap. 300, now repealed), section 85 of which permitted a proprietor to transfer land by an instrument in the prescribed form and provided that the transfer was completed by the registration of the transferee as proprietor and the filing of the instrument. The Land Registration Act, 2012, which governed the Appellants' registration in 2019 is to the same effect. 49 Section 37 of The Land Registration Act provides; “A proprietor may transfer land, a lease or a charge to any person with or without consideration, by an instrument in the prescribed form or in such other form as the Registrar may in any particular case approve. JUDGMENT ELC APPEAL NO. E041 OF 2025 24

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A transfer shall be completed by (a) filing the instrument; and (b) registration of the transferee as proprietor of the land, lease or charge." 50 Sections 44 and 45 of the Land Registration Act require every instrument effecting a disposition to be executed by the parties to it and the execution to be verified and section 46 provides that an instrument required by law to be stamped shall not be accepted for registration unless it is stamped in accordance with the Stamp Duty Act. Section 19 of the Stamp Duty Act in turn provides that an instrument chargeable with stamp duty which is not duly stamped shall not be received in evidence and shall not be filed, registered or acted upon. It follows that, under both the repealed and the current regimes, the registration of a transferee is the last step in a process that begins with a transfer instrument executed by the registered proprietor, verified, duly stamped and lodged for registration, together with the consent of the Land Control Board where the land is subject to the Land Control Act. 51 The Appellants' own submissions set out that very process and then concede that the only document the appellant did not produce are the transfer documents and receipt for payment of stamp duty and registration fees. Those are precisely the documents that would show that the Respondent, the registered proprietor executed a transfer in favour of Eliud Akama Odongo. Without them, there is no evidence of the disposition on which the Appellants' JUDGMENT ELC APPEAL NO. E041 OF 2025 25

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title depends. The registration of the transferee is only the last step of that process and it cannot prove that the earlier steps took place. 52 The documents the Appellants did produce concern the subdivision and not any transfer. The application to the Yala Land Control Board (D-Exhibit 7) was made by the Appellant for the sub-division into two equal portions of parcel 499, stated to measure 0.5 hectares and names no purchaser or transferee. The letter of consent (D-Exhibit 8) records the Board's consent given at its meeting of 29 th November, 1991 to a subdivision from the Appellant, with the spaces for the transferee and the consideration left blank. 53 Additionally, the mutation form (D-Exhibit 6) lists the Respondent alone as the person interested. No consent of the Land Control Board to a sale or transfer of any part of parcel 499 to Eliud Akama Odongo was produced. Section 6(1) of the Land Control Act makes a sale, transfer or other disposal of agricultural land within a land control area void for all purposes unless the Board has given its consent to that transaction. No such consent was adduced. 54 The subdivision itself does not match the consent on which it was supposedly based. The Board consented to a division of a 0.5-hectare parcel into two equal portions. The mutation created two unequal parcels of 0.26 and 0.29 hectares, which together come to 0.55 hectares more JUDGMENT ELC APPEAL NO. E041 OF 2025 26

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than the parcel from which they were carved. This discrepancy was pleaded, traversed and placed in evidence yet the Appellants offered no explanation for it, no surveyor was called and no survey records were produced. Together with DW1's statement that the Registry Index Map was not amended at the time of the subdivision and the Respondent's evidence that it showed the subdivision only in 2019, the discrepancy called for an explanation which only the holders of the resultant title could give. I make no finding of fraud and need not do so. It is enough that these unexplained irregularities go to the root of the title and that the Appellants, on whom the evidential burden was placed did not show that the subdivision and transfer were regular. 55 The Appellants' own registration is open to the same objection. The register of parcel 1198 shows the Appellants registered on 28th February, 2019 with the remark "R.L.7". DW1 testified that succession was done and later the transfer was done by land office. No grant of letters of administration, confirmed grant or death certificate was produced. Section 61(1) of the Land Registration Act provides; "If a sole proprietor or a proprietor in common dies, the proprietor's personal representative shall, on application to the Registrar in the prescribed form and on the production to the Registrar of the grant, JUDGMENT ELC APPEAL NO. E041 OF 2025 27

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be entitled to be registered by transmission as proprietor in the place of the deceased…" 56 The Land Registrar has no power to administer or distribute the estate of a deceased person. Section 45 of the Law of Succession Act provides that no person shall take possession of, dispose of or otherwise intermeddle with any free property of a deceased person unless authorised by law and section 82(b)(ii) of that Act provides that no immovable property shall be sold before confirmation of the grant. The Appellants' registration without the production of any grant, was on the evidence acquired unprocedurally within the meaning of section 26(1)(b) of the Land Registration Act. 57 In any event, the Appellants could take no better title than their father had. Their title depends on the father's registration, which has not been shown to rest on a lawful transfer and in the words of Lord Denning in Macfoy v United Africa Co. Ltd [1961] 3 All ER 1169,"if you put something on nothing it will fail.” 58 The trial court's reference to the land having been transferred to "the 3rd defendant" is an obvious slip as the Appellants themselves acknowledge and it does not affect the substance of the finding. Having re-evaluated the evidence, I agree with the learned magistrate that there was no material before the court to show that the land was lawfully transferred from the Respondent to Eliud JUDGMENT ELC APPEAL NO. E041 OF 2025 28

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Akama Odongo or lawfully registered in the names of the Appellants thereafter. Ground (c) must fail. Whether the trial court relied on a wrong authority or failed to consider the evidence and the circumstances 59 The Appellants did not explain in their submissions why Daudi Kiptugen v Commissioner of Lands & 4 others [2015] eKLR was the wrong authority. The passage relied upon by the trial court states that where a title is said to have been improperly acquired, its holder must demonstrate through evidence that it was properly acquired, because a title is the end product of a process and that the process of acquisition is material. That is the same principle as the Court of Appeal stated in Munyu Maina v Hiram Gathiha Maina (supra) and as the Supreme Court endorsed in Dina Management Limited v County Government of Mombasa & 5 others [2023] KESC 30 (KLR). It was the correct principle to apply to a pleaded challenge to the root of the Appellants' title. Ground (d) fails. 60 I acknowledge that the trial court's judgment is brief. It did not address the pleaded defence of limitation and it misstated the position on the sale agreement. A trial court should deal with every issue properly placed before it. On this first appeal, however, this court has re-evaluated the whole of the evidence and considered the limitation defence reaching the conclusions set out above. The trial JUDGMENT ELC APPEAL NO. E041 OF 2025 29

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court's omission has therefore occasioned no failure of justice. Grounds (e) and (f) must fail. Who bears the costs of this appeal? 61 Section 27 of the Civil Procedure Act provides: “……Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 62 I see no reason to depart from the provisions of section 27 above. 63 The upshot is that the appeal has no merit and it is disposed of by making the following orders; 1) The appeal be and is hereby dismissed. 2) The judgment and decree of the trial court delivered on 1st August, 2025 in Siaya Magistrate's Court ELC Case No. 76 of 2019 are hereby upheld. 3) The Respondent shall have the costs of this appeal. JUDGMENT ELC APPEAL NO. E041 OF 2025 30

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Delivered and Dated This 28th Day of September 2026 HON. LADY JUSTICE A.E. DENA JUDGE 28/09/2026 Judgment delivered virtually through the Microsoft Teams Video Conferencing Platform in the presence of: Mr. Ooro F for the Appellants Mr. Okumu for Respondent Court Assistant; Victor Bwire JUDGMENT ELC APPEAL NO. E041 OF 2025 31

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