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Ongera & 14 others v Makwae (Civil Appeal (Application) E246 of 2022) [2025] KECA 2213 (KLR) (28 November 2025) (Ruling)

Ongera & 14 others v Makwae (Civil Appeal (Application) E246 of 2022) [2025] KECA 2213 (KLR) (28 November 2025) (Ruling)
Citation
Ongera & 14 others v Makwae [2025] KECA 2213 (KLR)
Media Neutral Citation
[2025] KECA 2213 (KLR)
Court
Court of Appeal
Court station
Court of Appeal at Kisumu
Outcome
Dismissed
Case number
Civil Appeal (Application) E246 of 2022
Judges
MS Asike-Makhandia, HA Omondi, AO Muchelule
Judgment date
28 November 2025
Language
English
Type
Judgment
Original source file
Download DOCX (30.3 KB)
Collections
Date published
28 December 2025
Case action
Ruling
Filing county
Kisumu
Order
The notice of motion dated 29th April 2025 is dismissed with costs to the respondent.
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1.In the Environment and Land Court, ELC No. 92 of 2021, at Nyamira, the respondent, Shadrack Nyaberi Makwae, as the administrator of the estates of Ongubo Obare alias Makori Ongubo Obare (“Ongubo”) and Nyakundi Obare (“Obare”), respectively, sued the applicants (David M. Omoganda Ongera, Benedicto Charana Ongaro, Beresi Ouro, Omanwa Atera, Siro Nyambori, Ogechi Isoe, Ouro Moitai,Naumi Gesare Okinyi, Henry Nyakundi Mose, Grace Gilbert, Benedict Gichana Ooko, Kenyatta Ooko, Maisiba Ooko, Rosana Ooko and Sio Ombori) in respect of land parcels West Mugirango/Bosamaro West/1468 and West Mugirango/Bosamaro West/1469. The respondent alleged that parcel No. 1468 belonged to the late Ongubo and 1469 belonged to the late Obare. His case was that the 1st and 2nd applicants had purportedly bought the parcels from the deceased persons using falsified and forged documents. The parcels had subsequently been transferred to the 8th applicant and 9th applicants, respectively, by the 7th applicant. The respondent was able to show that he was the legitimate administrator of the estates of Ongubo and Obare, by producing a grant of letters of administration in each case. The court found that, the claim by the 1st and 2nd applicants that they had bought the respective parcel from the deceased was not true, and was, infact fraudulent. Orders were given cancelling the titles that had ensued from the transactions. The parcels were ordered to each revert into the name of the deceased; and applicants ordered to be evicted and to be permanently restrained.
2.The applicants were aggrieved and appealed to this Court in Civil Appeal No. E246 of 2022 at Kisumu. The appeal was heard by Asike-Makhandia, Nyamweya and Kimaru,JJA who re-evaluated the record, and upon being addressed on the grounds of appeal; determined that the trial court had properly appreciated the evidence of the parties and correctly applied its mind on the law. The trial court’s determination was upheld.
3.What is before us is the applicants’ notice of motion dated 29th April 2025, that asks this Court to certify their intended appeal to Supreme Court as one that raises matters of general public importance warranting leave to have them go before that Court. In the application, it was stated that the intended appeal is grounded on –“matters of general public importance as it involves substantial questions of law that will guide future cases”and that the decision of this Court –“has far reaching consequences beyond parties involved. ”Lastly that, the conflicting decision on issues raised requires clarity from the Supreme Court to ensure consistency in jurisprudence.
4.On the specific questions that are sought to be addressed by the Supreme Court, if leave is granted to appeal, the applicants through the supporting affidavit by the 1st applicant, deponed as follows in paragraph 5:-“5.That I have had discussion with my advocates on record and established that the intended Appeal raises weighty question of law including:-a.Whether the said proceedings/Judgement met the threshold set out in the Constitution of Kenya 2010 under Article 50, as to the right to fair trial.b.Whether the respondent had capacity to sue the appellants with two death certificates touching on two different estates and only one grant of ad litem.c.Whether the 11th,12th, 13th, & 14th applicants could be sued on behalf of the estate of their late father who is the registered owner of land parcel number west Mugirango/Bosamaro/1468 or /1469.d.The consequence of the dismissal of the Court of Appeal case will have far reaching consequences it will affect more than 15 families some of whom have lived on the purchased parcels from 1990 to date and have even had their kins buried on the parcels they occupy.e.The respondent who was born in 1974 and was 33 years at the time of the death of his alleged father did not bury the deceased as a father and has never lived on any of the parcels during and after the death of the deceased alleged father.f.Whether the cardinal principle touching on specific performance vis a vis law on adverse performance are intertwined and or at variance.g.Whether the Judgment goes against the principle set out in the cardinal rules, while claiming adverse possession were overlooked.”
5.The respondent filed a replying affidavit to oppose the application. According to him the application did not raise matters of general public importance that warrant the intervention by the Supreme Court.
6.When learned counsel Mr. Osoro appeared before us on the application, he stated that he had filed written submissions on behalf of the applicants. However, we found that none had been filed. A follow-up by the registry did not yield any copy from him. On record were brief written submissions by the respondent who did not attend the hearing, although was served through his counsel who also did not attend.
7.This Court while dealing with the appeal, framed the issues for determination as follows:- whether the respondent was the rightful heir of the deceased persons’ estates; whether the suit properties were fraudulently transferred and registered in the names of the 1st and 2nd applicants, respectively; and whether the judgment and decree were against the weight of the evidence.
8.The Court found that the respondent and the deceased persons were related. Ongubo was the registered owner of 1468 and Obare was the registered owner of 1469. Upon their death, the respondent obtained a grant of letters of administration intestate in each case. When the 1st applicant got registration for 1468 and the 2nd applicant got registration for 1469, in each case the deceased had passed on. The documents supporting each registration were fraudulent, and it was not the deceased who had transferred the respective parcels. The subsequent transfers by either applicant were also fraudulent. The occupation of the parcels by the applicants was illegal. This is why the Court agreed with the trial court that the transactions were null and void and were ordered to be canceled. The occupants were evicted and restrained from dealing with the parcels.
9.This is the decision that aggrieved the applicants who invoked Article 163(4) of the Constitution in seeking leave to appeal to the Supreme Court. They have invited us to determine whether the intended appeal raises issues of general public importance.
10.In the case of Herminus Phillipus Steyn -vs- Giovanni Gnecchi– Ruscone [2013] eKLR, the Supreme Court summarized the guidelines to be used in determining whether a case was fit to be certified as one involving a matter of general importance. It was held as follows:-“60.… In summary, we would state the governing principles as follows:i.for a case to be certified as one involving a matter of general public importance, the intending applicants must satisfy the Court that the issue to be canvassed on appeal is one the determination of which transcends the circumstances of the particular case, and has a significant bearing on the public interest;ii.where the matter in respect of which certification is sought raises a point of law, the intending applicants must demonstrate that such a point is a substantial one, the determination of which will have a significant bearing on the public interest;iii.such question or questions of law must have arisen in the Court or Courts below, and must have been the subject of judicial determination;iv.where the application for certification has been occasioned by a state of uncertainty in the law, arising from contradictory precedents, the Supreme Court may either resolve the uncertainty, as it may determine, or refer the matter to the Court of Appeal for its determination;v.mere apprehension of miscarriage of justice, a matter most apt for resolution in the lower superior courts, is not a proper basis for granting certification for an appeal to the Supreme Court; the matter to be certified for a final appeal in the Supreme Court, must still fall within the terms of Article 163 (4)(b) of the Constitution;vi.the intending applicant has an obligation to identify and concisely set out the specific elements of “general public importance” which he or she attributes to the matter for which certification is sought;vii.determinations of fact in contests between parties are not, by themselves, a basis for granting certification for an appeal before the Supreme Court.”
11.These principles have been reiterated in several other cases, including Malcolm Bell -vs- Hon. Daniel Toroitich Arap Moi & Another Supreme Court Application No. 1 of 2013.
12.In this case, the 1st and 2nd applicants were found by the Environment and Land Court, which finding this Court confirmed, to have defrauded the estates of Ongubo and Obare of these parcels of land, and transferred them to the other applicants. The respondent had complained to the court because he was the legal administrator of the estates. The dispute had no bearing on public interest, and the issues raised in the dispute did not raise any special jurisprudential moment that warrants the intervention by the Supreme Court.
13.Consequently, we decline to certify the matter. The notice of motion dated 29th April 2025 is dismissed with costs to the respondent.
DATED AND DELIVERED AT KISUMU THIS 28TH DAY OF NOVEMBER, 2025.ASIKE – MAKHANDIA........................................JUDGE OF APPEALH. A. OMONDI........................................JUDGE OF APPEALA.O. MUCHELULE........................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR
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