Obonyo v Okeyo (Suing as the Legal Representative of the Estate of Charles Okeyo Pundo (Deceased)) & another

Summary of Pleadings The Plaint (Ndhiwa ELC Case No. E014 of 2025) 2. The Plaintis (now Respondents), Deborah Lois Atieno Okeyo and Monica Atieno Okeyo, suing as the widows and legal administrators of the Estate of Charles Okeyo Pundo (Deceased), approached the trial court seeking declarations, cancellation of title, eviction orders, and general damages for trespass and fraud. They asserted that: a. The deceased husband was the rightful owner of Land Parcel No. Ndhiwa/Kamdar/226 by virtue of land adjudication objection proceedings under the Land Adjudication Act (Cap 284, Laws of Kenya). b. On 29th June 2018, the Defendant (now Appellant), Abuor Ongesa Obonyo, fraudulently procured registration and title to the suit land without lodging any mandatory appeal to the Minister within the statutory 60-day window prescribed under Section 29 of the Land Adjudication Act. c. The Defendant's occupation amounts to illegal intermeddling, trespass, and deceit contrary to the Trespass Act (Cap 292). The Statement of Defence 3. The Defendant traversed the Plaint, denying all allegations of fraud, illegality, or irregularity. He contended that: a. He never participated in or was bound by objection proceedings involving a dead person. b. He acquired the land from his father (Obonyo Abuor) way back in the 1970s and was issued an absolute title deed on 5th July 2018 pursuant to the Land Registration Act, No. 3 of 2012. c. By the time the dispute was led, the land was already legally registered in his name, invoking the protection of Section 24 of the Land Registration Act. The Memorandum of Appeal 4. Aggrieved by Hon. Everlyne Onzere's (SPM) Judgment delivered on 13th January 2026, the Appellant lodged an appeal on ten grounds, centralizing on claims that the trial magistrate: a. Erred in nding the Plaintis' case proved without sucient evidence or the testimony of the Lands Registrar contrary to Sections 107, 109, and 112 of the Evidence Act (Cap 80). b. Lowered the standard of proof for fraud from strict proof required under civil jurisprudence to a mere balance of probabilities. c. Acted beyond her capacity as a neutral arbiter and assumed the role of an adjudication ocer and land surveyor under the Survey Act (Cap 299). d. Ignored that the adjudication oce was functus ocio. Summary of the Memorandum of Motion (Stay of Execution) 5. Following the trial court's adverse judgment ordering eviction within 60 days, the Appellant led a Notice of Motion and Certicate of Urgency on 11th March 2026 under Order 42 Rule 6 of the Civil Procedure Rules (2010). Supported by adavit evidence, the Appellant sought a temporary stay of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6311/eng@2026-10-05 2

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execution to prevent the appeal from being rendered nugatory, which was duly certied and granted by Hon. P.L. Shinyada (PM) on 19th March 2026 pending further directions. Summary of Evidence The Respondents' Evidence 6. PW1 (Deborah Lois Atieno Okeyo) adopted her witness statement and produced ocial searches, letters, and the historical records of the 2006/2007 land adjudication objection proceedings conducted under Section 26 of the Land Adjudication Act. The evidence established that the late Charles Okeyo Pundo successfully instituted objection proceedings against Obonyo Abuor (the Appellant's late father) before the Land Adjudication Ocer, culminating in a determination awarding Land Parcels 226 and 227 to the objector. Records conrmed that while an appeal was lodged regarding Parcel 227, no appeal was ever preferred or lodged regarding Land Parcel No. Ndhiwa/Kamdar/226 within the timelines stipulated under Section 29 of the Land Adjudication Act. 2. The Appellant's Evidence 7. DW1 (Abuor Ongesa Obonyo) testied that he is a farmer from Ratanga who inherited the land from his father, cultivating it since 1972 before obtaining a title deed in 2018 under the Land Registration Act. He produced two payment receipts (No. 818904 of 1996 and No. 368469 of 2001) to argue that he had raised prior complaints at the committee level. Under cross-examination, he conceded that the adjudication records showed Charles Okeyo Pundo as the successful objector, and that no ministerial appeal existed for Parcel 226 pursuant to Section 29 of the Land Adjudication Act. Summary of the Trial Court Judgment 8. Delivered on 13th January 2026 by Hon. Everlyne Onzere (SPM), the trial court found in favor of the Plaintis. The learned magistrate held that although Sections 24 and 25 of the Land Registration Act grant protection to registered owners, Section 26 permits challenge upon proof of fraud, illegality, or unprocedural acquisition. Relying on the locus classicus Munyu Maina v. Hiram Gathiha Maina [2013] eKLR, a registered proprietor whose root of title is challenged cannot merely dangle an instrument of title; they must prove the legality of the acquisition process under Section 26(1) of the Land Registration Act. The receipts produced by the Defendant did not disclose the outcome of any committee hearings, and no valid appeal overturned the clear adjudication decision awarding Parcel 226 to the deceased under the Land Adjudication Act. Consequently, the Plaintis proved their case on the required standard under Section 107 of the Evidence Act, leading to judgment in their favor. Consideration of Submissions 9. The Appellant's Submissions (M/S Tom Mboya & Co. Advocates): Argued that fraud was neither particularized nor proved to the high threshold required under Section 107 of the Evidence Act and established in cases like Kuria Kiarie & 2 Others v. Sammy Mwangi Kimani [2016] eKLR; contended that the trial court breached the Best Evidence Rule under Sections 64 and 65 of the Evidence Act and erred by failing to summon the Lands Registrar or the Green Card; and maintained that the adjudication process was concluded long before, rendering subsequent actions functus ocio pursuant to the Land Adjudication Act. 10. The Respondents' Submissions (Robert Ochieng Advocates): Emphasized that as a rst appellate court under Rule 29 of the Court of Appeal Rules (applied mutatis mutandis), this Court must reevaluate the evidence; asserted that the Appellant failed the legal test in Munyu Maina v. Hiram Gathiha Maina by resting solely on a dangled title deed without proving a clean, uninterrupted root of title https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6311/eng@2026-10-05 3

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under Section 26 of the Land Registration Act; and argued that fraud and misrepresentation under Sections 26 and 80 of the Land Registration Act can be reasonably inferred where a party registers land already awarded to another via statutory adjudication without an appeal. Framing of Issues 1. Root of Title & Adjudication Process: Whether the Appellant acquired Land Parcel No. Ndhiwa/ Kamdar/226 through a valid, lawful, and procedurally regular land adjudication process under the Land Adjudication Act. 2. Fraud, Illegality, and Burden of Proof: Whether the Respondents established sucient grounds under Sections 26 and 80 of the Land Registration Act and Sections 107–112 of the Evidence Act to impeach the Appellant's title. 3. Reliefs: Whether the trial court's judgment was sound, warranting the orders granted or requiring appellate intervention. Analysis & Findings 11. This Court, sitting as an appellate court, has meticulously re-evaluated and reconsidered the entire record of appeal, the memorandum, the proceedings from the lower court, and the rival written submissions. 1. The Integrity of the Land Adjudication Process 12. Land adjudication is the formal, statutory process through which existing rights, boundaries, and interests in land are ocially ascertained, recorded, and translated into secure titles under the Land Adjudication Act (Cap 284). 13. In Kenyan jurisprudence, the nality and conclusiveness of land adjudication determinations have been rmly cemented by superior courts. As articulated by the Court of Appeal in Republic v. District Land Adjudication Ocer, Ndaragwa & Another Ex parte Gathigi [2015] eKLR, once an objection is determined and the statutory window for appeals under Section 29 of the Land Adjudication Act lapses, the adjudication process becomes functus ocio, and the resulting records crystallize indefeasible rights that cannot be altered or re-adjudicated through administrative backdoors. 14. Examining this mechanism through comparative regional jurisprudence further claries its legal nality: a. Uganda: Ugandan courts have consistently armed under the Land Act (Cap 227) that once an adjudication process is nalized and all statutory windows for objection or appeal are exhausted, determinations crystallize rights that cannot be arbitrarily overturned by subsequent administrative shortcuts or clandestine reallocations (Kampala District Land Board v. National Housing & Construction Corporation [2005] UGSC 3). A title subsequently issued must strictly mirror the adjudication record. b. South Africa: Operating under a negative system of land registration governed by the Deeds Registries Act 47 of 1937, South African jurisprudence dictates that administrative decisions made during land rights inquiries must strictly comply with the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and constitutional principles of administrative fairness, ensuring that established occupiers or legal heirs are not unlawfully bypassed (Bengwenyama Minerals (Pty) Ltd v. Genorah Resources (Pty) Ltd [2010] ZACC 26). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6311/eng@2026-10-05 4

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15. c. Malawi: Malawian jurisprudence under the Land Act (Cap 57:01) guards against the historical trend where irregular administrative processes are utilized to displace rightful families, maintaining that a rightful adjudication determination creates a protected interest that cannot be divested by unilateral re-registration (Mhango v. Attorney General [2005] MLSC 2). d. Zambia: Zambian land law principles under the Lands Act (Cap 184) similarly dictate that administrative authorities cannot alienate or issue title over land whose proprietary matrix has already been conclusively settled through prior statutory inquiry or adjudication (Ondimu v. Attorney General). In the present appeal, the 2006/2007 land adjudication objection proceedings followed a structured statutory trajectory under Sections 26 and 29 of the Land Adjudication Act, culminating in an award of Land Parcel No. Ndhiwa/Kamdar/226 to the Respondents' deceased husband after a contested hearing. The record reveals that while objections were raised, no appeal was ever lodged or sustained against that specic award pursuant to Section 29 of the Land Adjudication Act. The Appellant’s reliance on ancient payment receipts from 1996 and 2001 is a red herring; receipts for ling a complaint do not equate to a successful determination or a legal setting aside of a concluded adjudication decree under the Land Adjudication Act. 2. The Doctrine of Root of Title: Classical and Comparative Standards 16. The doctrine of "root of title" is a universally recognized pillar of property law designed to protect genuine ownership from the arbitrary manufacture of titles. 17. In Kenyan property jurisprudence, the Supreme Court in Dina Management Limited v. County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) emphatically held that where the root of a title is tainted by illegality or unprocedural allocation, the holder cannot claim the protection of indefeasibility under Section 24 or 26 of the Land Registration Act. Similarly, the Court of Appeal in the locus classicus Munyu Maina v. Hiram Gathiha Maina [2013] eKLR established that a registered proprietor whose root of title is challenged cannot merely dangle an instrument of title; they must lay bare and prove the lawful and regular genesis of their acquisition. 18. This is reinforced by comparative international standards: a. Halsbury’s Laws of England (Vol. 88, 5th Ed.): A good and marketable root of title must be a document or transaction forming the foundation of a vendor’s right to transfer property, transferring both the legal and benecial interest free from latent defects or procedural infractions. If the genesis is awed, every subsequent devolution remains infected. b. Uganda & Tanzania: Courts hold under the Registration of Titles Act (Uganda Cap 230) and Land Registration Act (Tanzania, Cap 334) that where an underlying allocation or adjudication process bypasses mandatory statutory provisions, the root is void ab initio, and registration cannot extinguish prior lawful interests achieved through due process (Katimbo v. Seezi Kityo [2007] HCB 78). c. South Africa & Malawi: Jurisprudence maintains under common law and statutory land registries that a titleholder cannot claim indefeasibility under provisions akin to Section 26 of Kenya's Land Registration Act if the foundational link or administrative act underpinning a transfer is tainted by lack of authority or statutory circumvention (Legator McKenna Inc v. Shea [2008] ZASCA 144). https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6311/eng@2026-10-05 5

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19. The Appellant attempted to anchor his claim on a 2018 title under the Land Registration Act that bypassed this concluded adjudication decree under the Land Adjudication Act, merely dangling an instrument of title without a lawful root. 3. Interplay Between Fraud, Illegality, and Modern Property Law 20. Modern property law across common law jurisdictions has established that fraud and illegality under Sections 26 and 80 of the Land Registration Act are distinct, yet equally potent, instruments for dismantling defective titles. 21. Locally, the Kenyan Court of Appeal in Arthi Highway Developers Limited v. Westend Butchery Limited [2015] eKLR armed that when a title is issued in violation of statutory procedures or in the face of an existing valid proprietary right held by another, such title is illegal, null, and void ab initio, rendering it fully impeachable under Section 26(1)(a) and Section 80 of the Land Registration Act. 22. Cross-jurisdictional comparative standards reect this exact rationale: a. Uganda: Courts distinguish between narrow common-law fraud and broader statutory illegality under the Land Act. Where a title is created in direct contravention of mandatory statutory procedures, the transaction is void ab initio (Lule v. Kampala City Council [2005] EA 187). Furthermore, the doctrine of constructive notice prevents a party from hiding behind a title under Section 181 of the Registration of Titles Act if they ignored glaring irregularities. b. South Africa: Registration under the Deeds Registries Act cannot validate a void underlying transaction (causa). Any title achieved by bypassing procedural fairness or acting ultra vires is unconstitutional under the Constitution of the Republic of South Africa, 1996, and vulnerable to judicial review (Oudekraal Estates (Pty) Ltd v. City of Cape Town [2009] ZASCA 85). c. India: Under the Public Trust Doctrine and the rule that fraud unravels everything (fraus et jus nunquam cohabitant), entries in land registers under the Transfer of Property Act, 1882, do not confer absolute ownership if the foundational root is marred by illegality or collusion, and a subsequent transferee cannot acquire a better title than what resided in their vendor (S.P. Chengalvaraya Naidu v. Jagannath [1994] AIR 853). 23. The Appellant’s 2018 registration under the Land Registration Act—procured in deance of the nal 2006/2007 adjudication objection proceedings that vested the land in the deceased respondent under the Land Adjudication Act—constitutes a void root born of illegality. In modern property law, an illegal root cannot mature into a defensible title under Section 26 of the Land Registration Act. Furthermore, Section 80(1) of the Land Registration Act empowers the court to order rectication of the register by canceling a registration obtained by fraud, omission, or illegality, acting as the direct statutory mechanism to remedy the void 2018 title. 24. The trial magistrate acted impeccably within her mandate in unmasking this irregularity. The criticisms regarding the non-attendance of the Lands Registrar do not salvage the Appellant's case, because the primary burden to defend the legality of a challenged root of title rests squarely on the registered holder under Section 107 of the Evidence Act and Munyu Maina v. Hiram Gathiha Maina. Final Orders 25. Accordingly, nding no merit in the ten grounds of appeal, this Court orders as follows: a. ELC Appeal No. E006 of 2026 is hereby dismissed in its entirety. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6311/eng@2026-10-05 6

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26. b. The Judgment and Decree delivered by Hon. Everlyne Onzere (SPM) in Ndhiwa ELC Case No. E014 of 2025 on 13th January 2026 are hereby upheld and armed pursuant to Sections 1A, 1B, and 3A of the Civil Procedure Act (Cap 21). c. Pursuant to Section 80 of the Land Registration Act, the Land Registrar shall execute the rectication of the land register by cancelling the Appellant's title over Land Parcel No. Ndhiwa/Kamdar/226 and reinstating the same in favor of the Estate of Charles Okeyo Pundo within 30 days of this decree, and the consequential eviction orders under the Civil Procedure Rules and general damages for trespass under the Law of Torts Act (Cap 285) shall remain undisturbed. d. The interim stay of execution granted on 19th March 2026 under Order 42 Rule 6 of the Civil Procedure Rules is hereby vacated. e. Costs of this appeal shall be awarded to the Respondents pursuant to Section 27 of the Civil Procedure Act. f. The lower court le be returned. File closed. It is so ordered. DATED, SIGNED, AND DELIVERED AT HOMA BAY THIS 5TH DAY OF OCTOBER, 2026. JUSTICE J.W WANYONYI, JUDGE ENVIRONMENT AND LAND COURT AT HOMA BAY Judgment delivered in the presence of; 1. Mr. R. Ochieng for the Respondent 2. Mr. Ogutu for the Appellant. 3. Court Assistant; Ms. Awino. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6311/eng@2026-10-05 7

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