https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4036

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYANDARUA** **ELCA NO E018 OF 2025** **BENSON NGANGA KAMAU..............................................APPELLANT** **VERSUS** **SAMUEL KAMUHU KAMAU & 4 OTHERS.....................RESPONDENTS** **JUDGMENT** The Appellant in this Appeal filed a case against the Respondents in the Magistrate’s Court at Ol-kalou. The Plaint is dated 15/3/2025 where he sought. 1. A permanent injunction restraining the Defendants (Respondents), their agents, servants, employees, proxies or any other persons claiming through or under them from entering, possessing, occupying, using or in any manner whatsoever from interfering with the Plaintiff’s (Appellant’s) parcel of land known and described as L.R NYANDARUA/MAWINGO SALIENT/7839. 2. Costs of the suit. 3. Any other or further relief that the Court may deem fit and just to grant. In the body of the Plaint, the Appellant pleaded that the interest to the suit land was transferred to him on 22/12/2022 by one Shadrack Kamau Muriba when he was issued with a Title Deed. He averred that he took immediate physical possession of the land and constructed dwelling houses and structures and has since had exclusive possession of the land and used it for his benefit and that of his family. But on 11/3/2025 the Respondents in the company of the Tumaini A.C.C entered and trespassed onto the suit land without the Appellant’s consent and/or authority. In the company also was a surveyor who purported to demarcate and excise a portion of the land which amounted to forcefully, unlawfully and illegally deny the Appellant exclusive proprietorship interests over the land, thus necessitating the institution of the suit where there is no other suit between the parties and over the subject matter and that the lower Court had jurisdiction to try the suit. In the joint Defence all the 5 Defendants (Respondents) denied the Appellant’s claim in response. The Respondents averred that the Appellant entered into a sale agreement with the late Shadrack Kamau Muriba on 17/5/2022 for Kshs 1,000,000/- where he paid Kshs 700,000/- deposit and was left with a balance of Kshs. 200,000/- to pay at a later date. But the Appellant defaulted in the payment of the balance of Kshs 300,000/- and was consequently refunded the deposit he had made, of Kshs. 700,000/- and which he willingly and unconditionally accepted thereby extinguishing all and any proprietary interests on the suit land. But the Appellant still retained the possession of the suit land and dispossessed other beneficiaries of the land and even took an additional 0.322 Hectares rightfully belonging to their mother Hannah Njoki Ndung’u on her share of the matrimonial property and that their entry of the suit property on 11/3/2025 does not in any way amount to trespass as the better part of the land belongs to their mother and to them in common since the land belonged to their late father NYANDARUA/ MAWINGO SALIENT/594. The Respondents also contemporaneously filed a Counter-claim in which they repeated the averments of their Defence and further added that the parcel of land known as L.R No. NYANDARUA /MAWINGO SALIENT/7839. (1 Acre) is a combination of the Respondent’s inheritance, their mother’s portion of 0.322 Hectares and the refunded portion, measuring 0.202 Hectares. They therefore prayed for: - 1. A declaration that Appellant is unlawfully occupying portions of land that were not lawfully transferred to the Appellant. 2. An order that a portion of land measuring 0.22Ha be hived off from land parcel No. NYANDARUA/MAWINGO SALIENT/7839 and be registered in the name of Shadrack Kamau Muriba as the Appellant already received a refund of the purchase price. 3. An order that a portion of land measuring 0.322 Ha be hived from land parcel No. NYANDARUA/MAWINGO SALIENT/7839. And the same be registered in the name of Hannah Njoki Kamau. 4. The remaining portion of land be registered in the names of the Respondents. 5. In case the Appellant declines to sign the mutation and transfer documents, the Court Administrator be authorized and allowed to sign. 6. Costs and interest of the suit as the Court may deem fit to grant. 7. Any further reliefs that the Court may deem just, expeditious and appropriate to grant. In the Reply to Defence and Defence to Counter-claim dated 20/6/2025, the Appellant repeated that the purchase price for the suit land L.R No. NYANDARUA/MAWINGO SALIENT/7839 was Kshs. 1,000,000/- which was paid in full on execution of the sale agreement dated 17/5/2022 and denies having ever received Kshs. 700,000/- or any as refund of the purchase price and that he has retained the suit property as a matter of right and in his capacity and as its registered proprietor and that at the time of the transfer of the land to himself the same was vacant and unoccupied. He also denied failing to pay the balance of Kshs 300,000/-. The hearing of the case commenced on 4/7/2025 when the Appellant opened his evidence by first adopting his witness statement dated 15/3/2025 and repeated his averments in the Plaint and reply to Defence and his Defence to the Counter-claim. He revealed that the Respondents were all his brothers with the late Shadrack Kamau Muriba having been their joint father. Their father was the registered owner of L.R No. NYANDARUA/MAWINGO SALIENT/594 which he sub-divided into NYANDARUA/MAWINGO SALIENT/7839 and 7840 in order to gift his children, all the parties herein included. The Deceased then retained a portion of land. The Deceased then decided to sell a portion of 1 Acre. He then purchased an Acre which he merged with his gift to form L.R NYANDARUA/MAWINGO SALIENT/7839 and was registered as its own proprietor on 22/12/2022 and all the interest in the same was passed over by his late father to him voluntarily and freely. His father later died on 28/3/2023. The Respondents were also gifted with their portions. He immediately took physical possession of the land exclusively and developed it until the 11/3/2025 when the Respondents, the Tumaini A.C.C and a surveyor came to the suit land and purported to forcefully excise a portion therefrom which according to the Appellant was illegal and unlawful denying him the exclusive proprietorship. He then produced a mutation form dated 12/2/2022 for 7764 which was his father’s and a sub-division of NYANDARUA/MAWINGO SALIENT/7839. He then produced the Title Deed in respect to NYANDARUA/MAWINGO SALIENT/7839 that was issued to him on 22/12/2022. In cross-examination by Mr. Gathumbi for the Respondents, the Appellant said that NYANDARUA/MAWINGO SALIENT/594 gave birth to NYANDARUA/MAWINGO SALIENT/7839 which he bought and paid the full sum of Kshs. 1,000,000 in cash. He said they are 8 sons and 3 daughters and that their father’s land was given to the 8 sons. He also said that he could not understand why his brothers were given larger portions than his 1.1Acres. On re-examination, Mr. Benson Ng’ang’a Kamau said that NYANDARUA/MAWINGO SALIENT/7839 is 2.1 Acres. The close of the Appellant’s case paved way for the Respondents’ case with Dw1, Samwel Kamuhu Kamau adopting his witness statement dated 4/6/2025. He said the Appellant never paid for the suit property. His father was by then unwell. But that although the land was indicated as 1 Acre this was not the case. The Appellant then paid Kshs. 700,000/- in 2 installments of Kshs. 200,000/- and later Kshs. 500,000/- but did not pay the balance and was later refunded the money he had paid and was to vacate the suit land. He said that his mother was equally given a share of 0.322 Hectares and that he evicted their mother for the land she had been living on since 1982. He then produced the following documents to support their case: - 1. A copy of the Title Deed for NYANDARUA MAWINGO SALIENT/594. 2. A copy of Title Deed for NYANDARUA MAWINGO /7839. 3. A copy of land sale agreement dated 17th May, 2022. 4. Summons to appear before the deputy commissioner dated 19/3/2025. 5. Mutation form dated 28/10/2021. 6. **A photograph showing Hannah Njoki Kamau holding the Kshs. 700,000 to be refunded to the Plaintiff.** 7. Copies of photographs generated from a video taken on the day of the refund. 8. A letter from the County commissioner dated 25/2/2025. 9. A sketch for the subdivision of NYANDARUA/MAWINGO SALIENT/594 amongst the beneficiaries. 10. Mutation from dated 8/4/2022. In cross-examination, Kamuhu said that it was true indeed that the Appellant was his brother but that he was not there when the agreement was executed and he didn’t know when his father transferred the land to the Appellant. His father died in 2023. He also said he did not have a Title Deed for his 0.033 Acres and that he did not know the L.R. number of the portion his mother uses and that his father was illiterate. He confirmed that the date on the Title Deed issued to the Appellant was before his father died and that it comprised the portion their father was buried on. On re-examination the witness said that the land had 3 portions for his father. DW2 – Hannah Njoki Kamau, the Respondent’s mother also adopted her Statement of 4/6/2025 as her evidence in chief and said that her late husband gave his sons equal portions as hers. She has lived there since 1982. She said NYANDARUA/MAWINGO SALIENT/594 was approximately 5 Acres. She says that she was evicted in the suit land by the Appellant because the latter intended to sell the land which had the graveyard. He then moved to David Maina’s place. She also re-iterated that the Appellant was refunded the money he had paid in the presence of the ACC. She claimed that the Appellant had informed her sick husband to sign a mutation form and colluded with the Surveyor to process the transfer of NYANDARUA/MAWINGO SALIENT/7764. On cross-examination by Mr. Kamau for the Appellant, Hannah said she did not get a Title Deed for her portion and that David, who is literate was present when the agreement was being executed and that her late husband signed transfer forms in favour of Benson for the latter to get his portion but not hers and that it was at the D.O’s Office they realized Benson had combined their 3 portions and got the land in his name. On re-examination she said that her husband was in the car and not in the Advocates’ office when the agreement was done and that her portion is 1 Acre just like her sons’. DW3 Daniel Maina Kamau who said he was present and witnessed the sale agreement being executed at Gilgil before an Advocate and that the consideration was not paid that day although the agreement said it was and that the size of the land was wrongly indicated as 1 Acre. He said that the purpose of the drafting of the sale agreement was to avoid issues. But that no money was paid. The rest of his evidence resonates that of DW1 – Samwel Kamuhu Kamau. On re-examination he said that each of the 8 sons together with their mother got 1 Acre and that the 10 portions came from NYANDARUA /MAWINGO SALIENT/594 and insisted that no money was paid on execution of the sale agreement. On re-examination, Daniel said that his father said he would sell the portion next to the road and that the portions were all 1 Acre each. After the close of the Respondents’ case, the trial magistrate retired to write her Judgment. In her Judgment, the learned Trial Magistrate observed that the Appellant did not produce any sale agreement, consent of the Land Control Board and the transfer forms signed by the parties’ deceased father. But the said sale agreement was duly produced by the Respondent’s. She said that the Magistrate who witnessed the sale agreement was not called as a witness to testify whether the entire sum was paid or only 700,000/- was paid and that the Appellant did not present any documents to show how the 1 million shillings was paid from the bank or a deposit to the Bank Account of his father – a deposit slip or an RTGS form. She said this fact was the burden of the Appellant to prove. The learned Trial Magistrate also held that the suit land was matrimonial where DW2 lived with her husband since 1982 to 2025 and where both lived and the Appellant’s father is buried thereon. She further held that the wife of the deceased is now landless. The Trial Magistrate held that this was property acquired during the subsistence of a marriage which therefore because matrimonial and the wife’s consent to sell it was hence required. She further held that DW2 ought not to have been evicted from the suit land. The Court finally held that the sale agreement between the Appellant and his late father Shadrack Kamau was void for lack of spousal consent and that the registration of L.R No. NYANDARUA /MAWINGO SALIENT/7839 in the name of Benson Ng’ang’a Kamau, the Appellant is null and void. She dismissed the Appellant’s suit with costs and ordered that the Counter-claim partially succeeded. The Court further ordered the cancellation of the Title Deed and ordered the land to revert to the Estate of Shadrack Kamau. The costs of the entire suit was to be borne by the Appellant. The Appellant subsequently appealed and asked this Court to grant him prayers for: - 1. The Appeal be allowed and the Judgment delivered on 3/9/2025 in Ol-kalou PMCELC No. E006 of 2025 be set aside. 2. The Appellant’s claim in Ol-kalou PMCELC No. E006 of 2025 be allowed as prayed with costs and the Counter-claim be dismissed with costs. 3. The Respondents be ordered to pay the costs of the Appeal. He gave the Grounds of the Appeal as follows. 1. The trial Court erred in law and fact by making extraneous findings that were not pleaded and neither prayed for by the parties. 2. The trial Court erred in law and fact by making a finding that the sale agreement between the Appellant and Shadrack Kamau was void. 3. The trial Court erred in law and fact by failing to recognize the sanctity of the Appellant’s Title over L.R NYANDARUA /MAWINGO SALIENT/7839. 4. The trial Court erred in law and fact by ordering the cancellation of the Appellant’s Title over L.R NYANDARUA /MAWINGO SALIENT/7839 5. The trial Court erred in law and fact by dismissing the Appellant’s claim with costs. The Respondents were not present when the sale agreement was executed and therefore cannot tell what happened. But they admitted that the Kshs. 700,000 was duly paid by the Appellant. If it is indeed true as DW2 – mother to the parties herein said, that the Kshs. 700,000/- was refunded to the Appellant in the presence of the area ACC why was the ACC not invited to testify and confirm the same? DW2 also admitted that transfer forms in favour of the Appellant were signed by her late husband in order to transfer NYANDARUA /OL-KALOU SOUTH/7837 to the Appellant. She even added that the agreement was signed in the car. DW3 a son of the deceased said that he was present when the sale agreement was executed though according to him the Kshs. 700,000/- was paid by the Appellant to his father on a different day other than the date of the execution of the agreement. He therefore didn’t deny that the deposit was made. David Maina Kamau, DW3 further gives the reason of execution of the agreement as having been to avoid disputes in future. He contradicts DW2 by saying that no money was ever paid. He equally contradicts himself by saying that no money was paid forgetting that he had earlier in examination in chief said that the Kshs 700,000/- was not paid that day, meaning that it was paid on a different date. I do not also agree with the Trial magistrate who said that lamented that the Appellant did not produce the consent of the Land Control Board and signed transfer forms. DW2, mother to the parties herein said that she was aware the transfer forms had been signed. Secondly, the consent of the land control board would not have been expected to be in the hands of the Appellant because it was certainly presented to the Land Registry during the transfer. I accordingly allow the Appellant’s Appeal with costs for this Appeal and the case in the lower Court. However, since it is not very clear that the Appellant paid the balance of Kshs. 300,000/-, the same shall be used to cushion the Appellant for the costs incurred in prosecuting the 2 cases, one in the lower Court and this Appeal. But the same will be subject to taxation and assessment of the said costs and if there will be any surplus, the same shall be paid to the Estate of the deceased. This is to avoid further friction and disputes within the family. And for the avoidance of doubt, I order each party to remain in what each got from their late father. **Judgment read and delivered at Nyandarua this 2nd Day of July 2026.** **MUGO KAMAU.** **JUDGE.** **In the Presence of: -** **Court Assistant: Samson.** **Appellant’s Counsel. Mr Gathumbi** **Respondent’s Counsel: Mr Kumo**