https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4451

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAKURU** **ELC NO. 181 OF 2012** **CATHERINE HWERE..................................................................................PLAINTIFF** **VERSUS** **JULIUS KIPYEGON KOECH…........................................................1ST DEFENDANT** **ALBINA CHEBET………………..………………………………….2ND DEFENDANT** **JUDGMENT** 1. By an Amended Plaint dated 9th March, 2012, the Plaintiff herein sued the Defendants seeking the following orders: 2. ***An order of cancellation, revocation and/or nullification of title number Njoro/Njoro Block 4/890 (BELBUR).*** 3. ***An order of transfer of a ¼ out of parcel number Njoro/Njoro Block 4/890 (BELBUR) to the Plaintiff herein.*** 4. ***A perpetual injunction to restrain the Defendants herein from transferring, trespassing, interfering, constructing and/or in any way whatsoever dealing with ¼ acre belonging to the Plaintiff in all that parcel of land known as Njoro/Njoro Block 4/890 (BELBUR).*** 5. ***Costs of the suit together with interest.*** 1. The 1st Defendant filed a Statement of Defence and Counterclaim dated 9th December, 2024, where he denied the contents of the Plaint and sought the following orders: 2. ***An order of cancellation of the Title Deed issued to the 2nd Defendant on 10th November, 2009 for Njoro/Njoro Block 4/890 (BELBUR) and the said title revert to the 1st Defendant’s name.*** 3. The 2nd Defendant filed his Statement of Defence dated 8th June, 2012, and later filed a Defence to the 1st Defendant’s Counterclaim and denied the allegations in the Plaint and 1st Defendant’s Counterclaim. **PLAINTIFF’S CASE** 1. PW1, Catherine Hwere, adopted her witness statement dated 20th February, 2012, as her evidence in chief, and produced her list of documents dated 9th March, 2013, as Pex 1 to 9. 2. It was PW1’s evidence that on 3rd November, 2004, she entered into an agreement with the 1st Defendant for the sale of ¼ acre of land to be excised from Njoro/Njoro/Block 4/890, at a consideration of Kshs.240,000/. PW1 further stated that they signed a sale agreement dated 21st May, 2009, paid Kshs. 176,000/ which the 1st Defendant acknowledged receipt. She also stated that she paid an additional Kshs. 39,000 leaving a balance of Kshs. 25,000/ which was to be paid upon the 1st Defendant availing the original title deed to the suit parcel. 3. It was PW1’s testimony that the 1st Defendant failed to avail the title document as agreed forcing her to file a suit with the Land Dispute Tribunal, which ruled in her favour but the decision was quashed by the High Court in Judicial Review No. 61 of 2010. PW1 told the court that during the Tribunal proceedings, the 1st Defendant confessed that he had given the title deed to the 2nd Defendant for safekeeping, who later fraudulently transferred the suit parcel to himself, and sold it to a third party. 4. PW1 urged the court to grant the orders as prayed in the Plaint. Counsel for the Defendants did not have any questions for the Plaintiff. **DEFENCE CASE** 1. DW1, Julius Kipyegon Koech, adopted his witness statement dated 9th December, 2024, as his evidence in chief, and testified that he was the registered owner of Njoro/Ngata Block 4/286 (BELBUR) which was later subdivided into 11 portions, and that the suit property became Njoro/Njoro Block 4/890 (BELBUR). 2. DW1 further testified that the 2nd Defendant owned two ¼ acres of the suit parcel while the Plaintiff owned another ¼ acre. He stated that sometime in 2009, he had the original title deed after standing surety in court for his friend, and he met the 2nd Defendant and he requested him to keep the original title as he was travelling to Kericho but did not want to go with it. 3. DW1 stated he trusted that the 2nd Defendant would keep the title safe for him, but upon his return, he demanded the title but the 2nd Defendant refused to return on the ground that DW1 owed him some money. DW1 further told the court that the Plaintiff demanded that he transfer the ¼ acre to her and since he did not have the original title, he was unable to effect the transfer. 4. It was DW1’s evidence that he later learnt that the 2nd Defendant had transferred the entire title to his name without his consent, and that the 2nd Defendant on several occasions made him sign documents whose origin he did not know. 5. DW1 confirmed that the Plaintiff had bought ¼ acre out of the suit parcel in 2004, and admitted that he received payments. He blamed the 2nd Defendant for not transferring the land to the Plaintiff as the 2nd Defendant had fraudulently transferred the whole parcel to himself. He urged the court to issue an order cancelling the title deed issued in the 2nd Defendant’s name and reverting to his name to enable him to transfer the portions to the respective owners. 1. DW2, Albina Chebet adopted her witness statement dated 12th May, 2025, as her evidence in chief and stated that she was the wife of the 2nd Defendant (deceased), who died on 24th April, 2021. It was her evidence that the deceased had several parcels which he had involved his brother Joel Kipnyolei Langat to handle the transactions. 1. DW3, Joel Kipnyolei Langat adopted his witness statement dated 10th June 2015, as his evidence in chief and stated that he is a younger brother of the 2nd Defendant (deceased) produced a list of documents dated 10th June, 2025, as Dex No. 1 and 2. DW3 testified that the 2nd Defendant had purchased two ¼ plots from the suit parcel on 5th November, 2007 and 3rd July, 2009. He also stated that the sale of land between the 1st and 2nd Defendant was consensual and that they both went to the Land Control Board and ensured that there was a change of names in the title. 2. It was DW3’s testimony that the description of the parcel in the title was inaccurate as only three portions of 0.25 acres could be established. He stated that the 2nd Defendant took two and left one, and that Amos and Cosmas were in occupation of the two plots. Further, the change of names in the title deed was done in good faith. 3. DW3 stated that he could not confirm whether the Plaintiff had bought ¼ acre of the suit property, and sometime in 2010 the 2nd Defendant informed him that the 1st Defendant and the Plaintiff went to the Land Dispute Tribunal without informing him. 4. DW2 stated that the 2nd Defendant filed an appeal in Judicial Review 61 of 2010 quashing the tribunal’s proceedings and that the 2nd Defendant’s mistake in the Tribunal was changing the names in the title deed, and urged the court to dismiss the suit against the 2nd Defendant together with the counterclaim. 5. DW4, Cosmas Ng’eno adopted his witness statement dated 10th June, 2025, as his evidence in chief and stated he was in occupation of one of the ¼ portions of Plot No. 4/890 by virtue of an undertaking by the 2nd Defendant and DW3. He further stated that the 2nd Defendant had purchased two ¼ parcels from Plot No.4/890 and settled on Plot No. 4/298. Further, Plot No. 4/890, had been hived off from parcel number 4/364 which was a subdivision of Plot No. 4/296. 6. It was his evidence that he could not confirm whether the Plaintiff purchased a portion of the suit parcel from the 1st Defendant, and in case she did, the same could not override the fact that the 2nd Defendant had purchased two parcels which he was in occupation. DW4 stated that the 1st Defendant ought to bear any liability to the Plaintiff and not him. **PLAINTIFF’S SUBMISSIONS** 1. Counsel for the Plaintiff filed his submissions dated 25th February, 2026, and submitted that it was not in dispute that the sale of a portion of the suit parcel was between the Plaintiff and the 1st Defendant. It was counsel’s submission that the 2nd Defendant implied that the suit parcel No. 4/890 was non-existence, however, the court had ordered the District Surveyor to visit the suit premises and effect the consent order dated 19th July, 2017. 1. Counsel further submitted that upon the visit the Surveyor filed a report dated 17th July, 2018, which confirmed the existence of the parcel of land and what the 2nd Defendant had done. Counsel stated that the court had ordered the Land Registrar to register a mutation dated 27th September, 2017 and if already registered, the same be cancelled. 1. Mr. Ikua submitted that the Defendant via the consent had agreed to have the title No.4/ 890 subdivided in order to get the Plaintiff’s 0.25 acres, which consent was still a record of this court and thus the Defendants are estopped from denying the Plaintiff’s claim of 0.25 acres out of the suit parcel. **1ST DEFENDANT’S SUBMISSIONS** 1. Counsel for the 1st Defendant filed submissions dated 17th April, 2026, and submitted that the 1st Defendant was the original registered owner of Njoro/ Ngata Block 4/286 (Belbur) measuring 5 acres, and further gave a background to the case. 2. Counsel submitted that by allowing the 1st Defendant’s counterclaim, substantive justice will have been done, as the 1st Defendant will be able to hand over to the Plaintiff the ¼ acre portion that she had purchased and the 2nd Defendant will get the two ¼ acre portions that he had also purchased. 3. It was counsel’s submission that the 2nd Defendant cannot be permitted to benefit from an illegality, and that he has not tendered any explanation as to why he should own the entire suit parcel despite having only purchased two ¼ acre portions. 4. Ms. Karuga submitted that the 2nd Defendant, despite admitting that he purchased two ¼ acre portions of land, the 2nd Defendant did not satisfactorily explain how he transferred the suit parcel to his name or why he is entitled to the 1.4 acres when he had only purchased two ¼ acres. **2ND DEFENDANT’S SUBMISSIONS** 1. Counsel for the 2nd Defendant filed his submissions dated 4th March, 2026, where he gave a summary of the case and identified the following issues for determination: 2. ***Whether the 1st Defendant sold a portion of land from Njoro/Njoro Block 4/890 (BELBUR) to the Plaintiff and 2nd Defendant.*** 3. ***The exact sizes of the parcel of land the 1st Defendant sold to the Plaintiff and the 2nd Defendant.*** 4. ***The issue regarding the Title Deed which the 2nd Defendant admitted to have changed the same from the name of the 1st Defendant to his name.*** 5. ***The impact of the Recommendation on the report by the surveyor dated 17/7/2018.*** 6. ***Who is to bear the liability of giving the Plaintiff parcel of land measuring 0.25?*** 7. ***Who bears the costs of the suit?*** 8. On the first issue, counsel submitted that the 2nd Defendant purchased two ¼ acres of the suit parcel from the 1st Defendant who also sold other parcels to the 2nd Defendant. Counsel further relied on DW3’s evidence that the first purchase by the 2nd Defendant was before the second purchase of the two ¼ parcels. 9. On the second issue, counsel submitted that the 2nd Defendant admitted changing the title deed and that DW3 admitted that the said change was consensual between the 1st and 2nd Defendant. 10. On the third issue, counsel submitted that the surveyor’s report dated 17th July, 2018, was erroneous since the 1st Defendant admitted to having sold to the 2nd Defendant two ¼ acres of the suit property. Further, the survey report confirmed that the ground size did not coincide with the size captured in the title. 11. Mr. Maragia submitted that there was a difference between the suit parcel and Plot No.4/364 which one John Kaboi Macharia bought, and argued that there was a possibility that the said John had occupied the Plaintiff’s portion. 12. On the fourth issue, counsel submitted that the 1st Defendant having sold to the Plaintiff ¼ acre of the suit parcel, he should be the one to bear the liability since he had gained income from her. Further, that the court should allow the 2nd Defendant’s counterclaim against the 1st Defendant to the extent that the 1st Defendant is liable to gift the 2nd Defendant two ¼ acres from the suit parcel. 13. On the issue of costs, counsel submitted that the 2nd Defendant should be awarded costs of the suit to be borne by the Plaintiff and costs of the counter claim be borne by the 1st Defendant. **ANALYSIS AND DETERMINATION** 1. Order 15 Rules 1 and 2 of the Civil Procedure Rules, 2010 provide for framing of issues and materials from which issues may be framed in a suit respectively. The issues for determination from the pleadings and the evidence are as follows: 2. ***Whether the Plaintiff purchased ¼ acre of Plot No. Njoro/Njoro Block 4/890 (BELBUR) from the 1st Defendant, and paid the full purchase price, and whether the agreement is enforceable.*** 3. ***Whether the Plaintiff is entitled to an order of cancellation of title of Plot No. Njoro/Njoro Block 4/890 (BELBUR) and transfer of ¼ acre in the Plaintiff’s name.*** 4. ***Whether the 1st Defendant’s counterclaim for an order of cancellation of the Title Deed issued to the 2nd Defendant on 10th November, 2009 for Njoro/Njoro Block 4/890 (BELBUR) and the said title revert to the 1st Defendant’s name has merit.*** 5. ***Who bears the costs of the suit?*** 6. It is the Plaintiff’s case that she purchased ¼ acre from the 1st Defendant which was to be excised from Njoro/Njoro/Block 4/890, and despite having fulfilled her obligations as per the sale agreement, the 1st Defendant failed to transfer the title document. 7. It was also her case that the Defendants colluded and fraudulently had the entire title transferred to the 2nd Defendant yet he was only entitled to ¼ acre of the suit parcel. 8. It is on record that the 1st Defendant confirmed that he sold ¼ acre of the suit parcel to the Plaintiff, but blamed the 2nd Defendant whom he had given the title for safe keeping but fraudulently transferred the suit land in his name without his consent. The 1st Defendant did not oppose the Plaintiff’s case but urged the court to cancel the title from the 2nd Defendant’s name to his. 9. The 2nd Defendant contends that the 1st Defendant sold him ¼ acre of the suit parcel, and DW2 and DW3 testified that the Plaintiff purchased a different property from the 1st Defendant and not the suit parcel 10. From the evidence adduced, it is apparent that the 1st Defendant sold ¼ acres of the suit parcel to both the Plaintiff and the 2nd Defendant, as seen in the sale agreement. The Plaintiff paid the full purchase price, which was acknowledged by the 1st Defendant. 11. This is a case that should not have taken too long in the court corridors as the 1st Defendant admitted to having sold the suit land to the Plaintiff and acknowledged receipt of the purchase price. The Defendants, neither challenged the Plaintiff’s sale agreement, nor the claim that she had purchased the suit land from the 1st Defendant. 12. The 2nd Defendant further did not explain how he got into possession of the title deed which he transferred to himself. He did not debunk the allegation that the title had been given to him for safekeeping. 13. On 30th May 2017, Counsel for the Plaintiff, and the Defendants recorded a consent to the effect that: 14. ***THAT the second Defendant shall have parcel No. Njoro/Njoro/Block 4/890 (Belbur) subdivided.*** 15. ***THAT the Plaintiff be given 0.25 (nought decimal two five) acres out of the parcel of land the 2nd Defendant be given 0.25 (nought decimal two five) acres out of the parcel.*** 16. ***THAT the balance to go to the 1st Defendant.*** 17. This consent could not be implemented as what was the ground was only 0.5 acres which led the court to direct that the Land Registrar Nakuru not to register the mutations arising from the subdivision by the 2nd Defendant and the Surveyor to implement the consent orders made on 19th July 2017 and 18th January 2018. The court ordered the matter to proceed as the consent was by the parties who had attempted to resolve the matter. This consent was never set aside. 18. The issue as to whether the sale agreement between the Plaintiff and the 1st Defendant is enforceable, a contract for the sale of land must meet the requirements of Section 3(3) of the Law of Contract Act (Cap 23), which stipulates that the agreement must be in writing, signed by both parties, and the signature witnessed. The parties do not dispute that there was a written sale agreement which was signed by both parties and witnessed. The 1st Defendant admitted that he sold the land to the Plaintiff. 19. In such a situation, the court is called upon to administer justice to a party who has fulfilled the obligations under the contract but the seller wants to run away from the obligations without either specifically completing the transaction or compensating for the breach of the agreement. A party should not be allowed to enrich themselves and benefit from denying a purchaser his/her right to the property that she/he legally bought and fulfilled the terms of the agreement. 20. In the case of **Nelson Kivuvani –vs- Yuda Komora & Another Nairobi HCCC No.956 of 1991**, the Court held that: ***“The agreement for sale of land which contains the names of the parties, the number of the property, the purchase price and the conditions attached thereto, the obligation express or implied of each of the parties and signed and witnessed by two witnesses who signed against their names amounts to a valid contract.”*** 1. It follows that the 1st Defendant did not fulfil his part of the bargain therefore he is bound to honor the agreement between him and the Plaintiff. The 2nd Defendant having entered into a consent which could not be implemented due to what was on the ground was part of the problem. 2. On the issue of whether the title in the 2nd defendant’s name should be cancelled and registered in the Plaintiff’s name. Indefeasibility of the title is provided for in **Section 26 (1) (b)**of the **Land Registration Act** which states: ***“The certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer … 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 … and the title of that proprietor shall not be subject to challenge, except –*** 1. ***on the ground of fraud or misrepresentation to which the person is proved to be a party; or*** 2. ***where the certificate of title has been*** ***acquired illegally, unprocedurally or through a corrupt scheme.”*** 3. Section 26 of the Land Registration Act is explicit that a title of a proprietor may be challenged where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. 4. In the present case, it is not in doubt from the evidence on record that the 2nd Defendant acquired the title of the ¼ acre unprocedurally from the 1st Defendant. The 2nd Defendant had his own portion of land but went ahead and acquired title to the whole portion including the Plaintiff’s ¼ acre portion. The Defendant should not be allowed to benefit where he had not sowed. 5. The Court of Appeal in the case of **Munyu Maina vs. Hiram Gathiha Maina (2013) eKLR,** held that: ***“We state 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 challenged and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances.”*** 1. The Defendant’s root of title was under scrutiny, and therefore it was incumbent upon the Defendant to go a step further to prove the root of his title. 2. Section 80(1) of the Land Registration Act provides that: ***“Subject to subsection (2), the Court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.”*** 1. I have considered the evidence of the parties, the pleadings, and the relevant authorities and find that the Defendant’s title was procured unprocedurally and therefore null and void, and should be cancelled. I therefore make the following specific orders: 2. ***An order is hereby issued for the cancellation, and/or nullification of title number Njoro/Njoro Block 4/890 (BELBUR).*** 3. ***An order is hereby issued for the transfer of a ¼ acre out of parcel number Njoro/Njoro Block 4/890 (BELBUR) to the Plaintiff herein.*** 4. ***A perpetual injunction is hereby issued restraining the Defendants herein from trespassing, interfering, constructing and/or in any way whatsoever dealing with ¼ acre belonging to the Plaintiff in all that parcel of land known as Njoro/Njoro Block 4/890 (BELBUR), upon the transfer of the portion to the Plaintiff.*** 5. ***The 1st Defendant’s counterclaim is hereby dismissed with costs to the Plaintiff.*** 6. ***The Land Registrar Nakuru County to ensure the implementation of the transfer orders upon payment of the requisite fees.*** 7. ***Costs of the suit together with interest to the Plaintiff.*** **DATED, SIGNED AND DELIVERED AT NAKURU THIS 14TH DAY OF JULY 2026.** **M. A. ODENY** **JUDGE**