Cheluget & 3 others (Suing as joint administrators of the Estate of Isaiah Kiplangat Arap Cheluget - Deceased) v Ominde & another (Environment and Land Case 49 of 2018) [2026] KEELC 3379 (KLR) (28 May 2026) (Judgment)

Cheluget & 3 others (Suing as joint administrators of the Estate of Isaiah Kiplangat Arap Cheluget - Deceased) v Ominde & another (Environment and Land Case 49 of 2018) [2026] KEELC 3379 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3379 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case 49 of 2018 E Asati, J May 28, 2026 Between Rael Chepkurgat Cheluget 1st Plaintiff Johnstone Kipkoech Langat 2nd Plaintiff Laurence Kimmutai Langat 3rd Plaintiff Kenneth Kipyegon Langat 4th Plaintiff Suing as joint administrators of the Estate of Isaiah Kiplangat Arap Cheluget - Deceased and Walter Edwin Ominde 1st Defendant The Land Registrar, Kisumu County 2nd Defendant Judgment Introduction 1.The Plaintiffs brought the suit as joint administrators of the estate of Isaiah Kiplangat Arap Cheluget, deceased, vide the plaint dated 25th September 2018. The subject matter of the suit was a parcel of land known as KISUMU/NYALENDA “B”/481 (herein referred to as the suit land/property), which, according to the Plaintiffs, belonged to the deceased. The Plaintiffs’ case 2.The plaintiffs pleaded that by an agreement dated 9th June 2006, the deceased agreed to sell to the 1st Defendant and the 1st Defendant agreed to purchase the suit land at the sum of Kshs. 4,700,000/= being the purchase price. That pursuant to the agreement, the 1st Defendant paid the deceased the sum of Kshs. 940,000/= as the agreed deposit and agreed on the mode of payment of the balance and other terms. 3.The plaintiffs further pleaded that the 1st Defendant on his part acted in contravention of the agreement which in any event became void because the 1st Defendant failed to pay the balance of the purchase price within the agreed time or at all and that by reason of the fact that the purchase price was not paid in full, the deceased did not execute the instruments of transfer as envisaged in the agreement and no application for Consent of the Land Control Board was made within the time prescribed by law or at all and no consent was granted hence the agreement became void and unenforceable. 4.The Plaintiffs further pleaded that on 11th December 2015, the Defendants jointly and severally and with the intention of defrauding the deceased of the suit property caused the suit property to be transferred in favor of the 1st Defendant. That the 1st Defendant subsequently moved into the suit property and purported to undertake development thereof without the Plaintiffs’ knowledge and authorization, thereby denying the estate of the deceased the right to use and benefit from the suit property. That the suit property is valued at Kshs. 25 million. 5.The Plaintiffs therefore sought the following reliefs: -a.A declaration that the transfer of the suit property comprised in land reference No. KISUMU/NYALENDA “B”/481 to the 1st Defendant on 11th December 2015 was irregular, illegal, fraudulent, and void.b.An order directing the 2nd Defendant to cancel entry numbers 5 and 6 in the suit property vide which the deceased’s interest in the suit property was transferred to the 1st Defendant and to restore the name of the deceased Isaya Cheluget as the registered proprietor of the suit property.c.An order directing the 1st Defendant to surrender vacant possession of the suit property to the plaintiffs and, in default, the 1st Defendant be evicted or otherwise removed therefrom at his own expense.d.General damages for trespass to property and mesne profits as against the 1st Defendant.e.Costs of the suit and interest thereon, as well as on (d) above, at court rates from the date of institution of the suit until payment in full. Case of the 1st Defendant 6.In response to the plaintiffs’ claim, the 1st Defendant filed the1st Defendant’s Statement of Defence and counterclaim dated 8th October 2018 vide which he admitted that the deceased was the registered owner of the suit property known as KISUMU/NYALENDA “B”/481 but averred that the deceased sold the suit property to him (1st Defendant) and effected transfer in favour of the 1st Defendant. The 1st Defendant also admitted that the deceased executed the agreement dated 9th June 2006 and that he (1st Defendant) paid a deposit of Kshs. 940,000/= to the deceased pursuant to the agreement. 7.The 1st Defendant denied the Plaintiffs’ claim generally, and specifically denied that the completion period for the transaction was 60 days and averred that the balance of the purchase price was to be paid upon delivery of the title deed in the purchaser’s name. He prayed that the suit be dismissed. 8.In addition, the 1st Defendant raised a counterclaim in which he pleaded that the deceased owed him Kshs. 3,519,684 on account of services actually procured at the instance of and on behalf of the deceased, and which he (1st Defendant) claimed to have paid for. He therefore sought judgment against the estate of the deceased and in his favour on the counterclaim for: -a.The sum of Kshs. 3,519,684.b.Costs andc.Interest on (a) and (b) above at court rates from the date of filing the counterclaim until payment in full. Case of the 2nd Defendant 9.The 2nd Defendant filed the 2nd Defendant’s Statement of Defence dated 5th October 2018, filed by Grace Essendi, Senior Litigation Counsel for the Hon. Attorney General. The 2nd Defendant denied the Plaintiffs’ claim and averred that, if indeed he effected the registration of transfer of the deceased’s interest in the suit property, then the same was done in accordance with the applicable laws and procedures. The 2nd Defendant denied liability. The evidence 10.Two witnesses testified on behalf of the Plaintiffs. PW1 was the 2nd Plaintiff, Mr. Johnstone Kipkoech Langat. He adopted the contents of his witness statement dated 25/9/2018 as his evidence in chief. He stated that he brought the suit as one of the administrators of the estate of the deceased Isaiah Arap Cheluget, who passed away on 26/6/2017. He testified that the case of the deceased was that the suit property, namely KISUMU/NYALENDA “B”/481, which measures 0.20 Hectares, was fraudulently transferred to one Ominde by the Land Registrar without their knowledge. PW1 produced a total of 15 documents as exhibits in support of the Plaintiffs’ case. He prayed that the claim be allowed, and the title held by the 1st Defendant be cancelled. 11.PW2 was Emmanuel Karisa Kenga, a documents examiner. He testified that when he compared the documents sent to him, his conclusion was that there was no agreement between the disputed signatures and the known signatures. He produced a report bearing his findings as Exhibit P. 16. 12.On behalf of the 1st Defendant, 4 witnesses testified. DW1 was the 1st Defendant. He testified that he knew Isaiah Kiplagat Chulaget, now deceased, and that he bought a piece of land from him, namely KISUMU/NYALENDA “B”/481, on which he has developed a hotel known as Milimani Beach Resort Hotel at a cost of Kshs. 120,000,000/-. DW1 adopted the contents of his witness statement dated 20/1/2023 as his evidence in chief and produced a total of 31 documents as exhibits in support of his case. DW1 denied that he forged the transfer form and the application for Consent of the Land Control Board form. He urged the court to dismiss the suit and allow his counterclaim. 13.DW2 was one Michael Odhiambo Obonyo. He adopted the contents of his witness statement dated 15/10/2018 as his evidence in chief. He testified that as an electrician, he was engaged by the deceased and did some construction for him at a site near the Sunset Hotel, and that the construction was being supervised by the 1st Defendant. 14.DW3 was Gerson Ochieng Okudo. He testified that he knew both the Deceased and the 1st Defendant. That he was a contractor and that he is the one who constructed a house for the deceased on plot No. Block 11/73 near the Sunset Hotel. 15.DW4 was one Benson Mboya Were, who described himself as a land agent. He relied on the contents of his witness statement and testified that he is the one who introduced the 1st Defendant as the buyer to the deceased, who was selling his land parcel near Dunga known as KISUMU/NYALENDA “B”/481. He testified further that he filled in and witnessed when the deceased was signing the application for Consent of the Land Control Board, that he booked the Board meeting, that the parties attended the Board meeting, and consent was given. 16.The 2nd Defendant called no witnesses, adduced no evidence, and filed no submissions. Submissions 17.At the close of the evidence, parties filed written submissions as follows: on behalf of the Plaintiffs, written submissions dated 18th June 2025 were filed by David Otieno, Advocate of Owiti, Otieno, Ragot Advocates. The Plaintiffs also filed a list of authorities and a digest of authorities dated 22nd August 2025, and on behalf of the 1st Defendant, written submissions dated 25th June 2025, and supplementary submissions dated 18th November 2025, together with the 1st Defendant’s authority, namely the case of Masha Binya Dena vs Francis Kahindi Kaluma [2021] eKLR, were filed by Andrew Ombwayo & Co. Advocates. Issues for determination 18.I have keenly considered the pleadings filed, the oral and documentary evidence adduced before the court, and the submissions made. I find that the points that emerge for determination in the dispute herein are: -a.Whether or not the land sale agreement dated 9th June 2006 became null and void and hence unenforceable.b.Whether or not the 1st Defendant paid the consideration as agreed.c.Whether or not the transfer of the suit land in favour of the 1st Defendant was fraudulent.d.Whether or not the 1st Defendant is entitled to Kshs. 3,519,684 as sought in the counterclaim.e.Costs of the suit. Analysis and determination 19.Order 21 Rules 4 and 5 of the Civil Procedure Rules require that judgments in defended suits contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. It further requires that, where issues have been framed, the court shall state its finding or decision, with the reasons therefor, on each separate issue. Guided accordingly, the court hereby proceeds to analyze the evidence, the submissions, and to determine each of the issues framed herein.The first issue for determination is whether the land sale agreement dated 9th June 2006 became null and void, hence unenforceable. 20.It was the plaintiffs’ case, as pleaded in paragraph 6 of the plaint, that the starting point of the dispute herein was a land sale agreement dated 9th June 2006, vide which the deceased agreed to sell to the 1st Defendant and the 1st Defendant agreed to buy from the deceased, the suit land at an agreed purchase price of Kshs. 4,700,000/-. The existence of the land sale agreement was admitted by the 1st Defendant vide paragraph 4 of the 1st Defendant’s statement of Defence. A copy of the agreement was produced by the plaintiffs as Exhibit. 21.A reading of the agreement shows that the property being sold was a parcel of land known as KISUMU/NYALENDA “B”/481, measuring approximately 0.02 Hectares. The Vendor was Isaiah K. Cheluget of P. O. Box 124, Litein of PP. No. A966802. The purchaser was Walter Omidne Ogutu of P. O. Box 2652, Kisumu, ID No. 0644929. The agreement was signed by both parties, and a witness by the name of Benson Were, ID No. 11285590. 22.The agreement was also witnessed by an advocate. The consideration was stated to be Kshs. 4,700,000/- and the mode of payment was provided for. 23.The existence of the agreement and its terms was confirmed by PW1, who stated that the plaintiffs were aware and had confirmed from the deceased’s documents that the agreement existed. There was no contestation as to the existence or validity of the land sale agreement. 24.The provisions of Section 3 (3) of the Law of Contract Act require that a contract for the disposition of an interest in land upon which a suit can be brought shall be in writing, be signed by all parties thereto, and the signatures of the parties be attested to by a witness who is present when the contract is signed. Counsel for both parties submitted that there was no dispute that the parties entered into and signed the agreement. 25.I find that the land sale agreement dated 9th June 2006 between the 1st Defendant and the deceased was valid. On whether the agreement subsequently became null and void, hence unenforceable, the plaintiffs pleaded in paragraph 7 of the plaint that the 1st Defendant acted in contravention of the agreement, which in any event became void on the grounds that,a.The 1st Defendant did not pay the balance of the purchase price within the agreed time or at allb.By reason of the fact that the purchase price was not paid in full, the deceased did not execute the instrument of transfer as envisaged by and under the agreement.c.No application for consent of the Land Control Board was made within the time prescribed by law or at all, and none was granted; hence, the agreement became void and unenforceable. 26.The sale agreement provided as follows:“Final payment of Kshs 3,760,000/_ to be made upon delivery of the title deed in the purchaser’s name.Period agreed for the transaction is 60 days (sixty days) or there before or after the transfer of the title deed in the purchaser’s name.”This is the portion of the agreement that provided for the mode of and timelines for payment of the balance of the purchase price. From the above-quoted portion of the agreement, it is not clear as to when the 60 days were to start running. What is, however, clear is that the payment of the balance of the purchase price was to happen upon transfer of the sold land in favour of the purchaser. Hence, the transfer was to precede payment of the purchase price. So that failure by the 1st Defendant to pay the balance of the purchase price before transfer and delivery of the title deed in his favour could not amount to breach of the agreement. 27.Regarding consent of the Land Control Board, DW4, who was identified in the agreement as the person to pursue the transfer, testified on how the consent was obtained.I find that the agreement had not become null and void.The second point for determination is whether or not the 1st Defendant paid the consideration as agreed. 28.The agreed consideration as stated in the agreement was Kshs. 4,700,000/=. The mode or terms of payment were as follows:-a.Down payment of 20% of the purchase price, KShs. 940,000/- to be paid upon signing of the agreement.b.Final payment of Kshs. 3,760,000/= to be made upon delivery of title deed in the purchaser’s name. 29.Under terms of payment, the agreement further provided that:-“Period agreed for the transaction is 60 days (sixty days) or there before or after the transfer of the title deed in the purchaser’s name.Transaction process is to be handled by Mr. Benson Were, who will ensure the purchaser gets the title deed in his name.It is agreed that the purchaser, who is an Architect, will produce ARCHITECTURAL DRAWINGS for the vendor for various projects up to the value of Kshs. 1,000,000/- (one million) as part of this agreement.” 30.Both parties agree that the deposit of Kshs. 940,000/=, being 20% of the purchase price, was paid by the 1st Defendant to the deceased. This was pleaded in paragraph 5 of the plaint and paragraph 5 (a) of the 1st Defendant’s Statement of Defence. It was the evidence of PW1, DW1, and DW4 that the deposit of Kshs. 940,000/- was paid by the 1st Defendant to the deceased at the time of execution of the agreement. 31.Regarding the balance of the purchase price, the plaintiffs pleaded in paragraph 8 of the plaint that the 1st Defendant acted in contravention of the agreement by failing to pay the balance of the purchase price within the agreed time or at all. 32.The Plaintiffs’ evidence regarding the balance of the purchase price as adduced by PW1 was that although the 1st Defendant had represented to the deceased that he was an architect and that the two parties had agreed that the 1st Defendant undertakes the preparation of architectural, structural, mechanical and electrical drawings and designs including supervision to completion for a project that the deceased was undertaking in Milimani estate in Kisumu at a cost of 1 million, the 1st Defendant never delivered on his undertaking in that regard. 33.On cross-examination, PW1 stated that according to the agreement the final payment was to be made upon delivery of the title deed in the purchaser’s name. He stated that the balance of Kshs. 3.7 million had not been paid. That the payment was not made within the 60 days stipulated in the agreement. He stated further that he was not aware that his father received Kshs. 1,000,000/- after expiry of the 60 days. He stated that the house for which the architectural drawings were to be supplied was completed in the lifetime of the deceased. That the house was a storeyed building on a land parcel No. Kisumu Municipality Block 11/73, which is one of the properties in the estate of the deceased. 34.The 1st Defendant pleaded in paragraph 8 of the defence and counterclaim, that he paid the entire purchase price before the agreed time and that it was actually the deceased who still owed him Kshs. 3,519,684 on account of services actually procured at the instance and on behalf of the deceased, which services the 1st Defendant actually paid for. 35.The 1st Defendant testified that after the execution of the land sale agreement, he procured architectural drawings for the deceased’s Sunset Cottage and secured the payment of Kshs. 1,000,000/- that was offset from the purchase price of the suit property. He stated that he also made a further payment of Kshs. 1,000,000/- to the deceased by cheque number 10144 dated 15th April 2008 through his business known as Kamro Agrovet Limited, which the deceased cashed. That he made the payment at the request of the deceased, even though he was to pay the final balance after the final transfer and registration of the suit property to him. 36.The 1st Defendant testified that he also did additional work for the deceased at the instance of the deceased, whose payment the deceased disputed. The 1st Defendant particularized and calculated the total amount incurred at Kshs. 5,279,684/-. He further explained that because of the dispute, he lodged a case in court, namely Kisumu ELC CASE NO. 87 OF 2015 against the deceased Mr. Isaiah Kiplangat Cheluget, seeking to have the Vendor (the deceased) compelled to hand over the land transfer forms and the Land Board Consent to him. That the parties thereafter reached a rapprochement pursuant to which the vendor surrendered the documents. That the parties agreed verbally that the 1st Defendant’s dues in terms of fees for the additional work would offset the balance of the sale price. 37.The 1st Defendant produced a copy of cheque No. 10144 dated 15.04.2008 for Kshs. 1,000,000/- drawn by Kamro Agrovet Limited in favour of Isaiah K. Cheluget. He also produced a bank statement to show that the cheque was paid. 38.To prove that he was given instructions by the deceased to do the additional works, the 1st Defendant produced a handwritten document dated 26/8/2008, a certificate of lease dated 27th March 1981 in respect of land parcel No. Kisumu Municipality Block 11/73 in the name of the deceased, copies of architectural and mechanical drawings, and photographs of the construction on plot No. Block 11/73 and Receipt for payment of Kshs. 14,430/- for plan approval. 39.On Cross-examination and re-examination, the 1st Defendant stated that Mr. Cheluget, the deceased, complained after he (1st Defendant) had delivered the building to him (deceased). That he paid a total of Kshs. 2,940,000/- to Mr. Cheluget. 40.Regarding payment of the balance of the purchase price, it was submitted, on behalf of the plaintiff, that the 1st Defendant would not have rendered the services because he was not authorized to do so. That to give him credit for Kshs. 1 million is to sanitize a violation of the law and the commission of offences. That the 1st Defendant did not exhibit the architectural drawings as required by Section 112 of the Evidence. Counsel submitted further that the sum of Kshs. 1,000,000/-, which the 1st Defendant claims to have paid to the deceased vide cheque drawn by Kamro Agrovet Limited, was not pleaded in the defence and counterclaim. 41.Citing the case of Kinyanjui Kamau vs Genge Kamau Njoroge [2015] eKLR, Counsel submitted that parties are bound by their pleadings and that parties are not allowed to introduce unpleaded issues in the proceedings that would catch the other party by surprise. That evidence cannot be admitted of facts that are not pleaded. Counsel submitted further that the bank statement produced showed that the account’s debt situation was made worse by the deposit of the disputed cheque, as it was in debt to the bank. That the account had no money to pay the cheque. 42.On behalf of the 1st Defendant, it was submitted that Exhibits 5, 6, and 21 prove payment of the deposit and additional Kshs. 1,000,000/-. That the 1st Defendant’s bank statements and cheques corroborate the payment. Counsel relied on Order 7 Rule 3 of the Civil Procedure Rules and Section 35 of the Limitation of Actions Act and the case of Amit K. Karsan vs Dyer & Blair Ltd [2014] eKLR to submit that a valid set-off may operate to extinguish a debt provided it arises from a liquidated and ascertainable sum. 43.I have considered the pleadings, evidence, and submissions on the issue of payment of the purchase price. I find that: -a.Kshs. 940,000/-, being 20% of the purchase price, was paid and acknowledged.b.Kshs. 1,000,000/- claimed to have been paid by the 1st Defendant vide cheque No. 101442 drawn by Kamro Agrovet Limited was paid as an overdraft as reflected in the bank statement produced as an exhibit.c.Kshs. 1,000,000/- by way of architectural services was proved. The 1st Defendant produced architectural drawings on pages 22, 23, 24, 25, and 26 of the 1st Defendant’s bundle of documents. PW1 acknowledged that although he had not seen any evidence that the architectural drawings mentioned in the agreement were done and delivered, the house with respect to which the drawings were to be done was built and completed in the lifetime of the deceased. There is no evidence that the deceased disputed the provision of the architectural services in his lifetime or complained to anybody concerning the 1st defendant’s incompetence as an architect. 44.I find that the 1st Defendant paid a total sum of Kshs. 2,940,000/- only, to the deceased as part of the purchase price, leaving a balance of Kshs. 1,760,000/-. . 45.Although the 1st Defendant contended that the remainder of the balance of the purchase price was offset against his fees and expenses incurred in rendering additional works to the deceased, there is no evidence to that effect. There is also no agreement varying the terms of the agreement dated 9th June 2006 or connecting the land sale transaction to the additional works claimed. 46.Therefore, my determination of the 2nd issue is that the purchaser has so far not paid the purchase price in full.The third issue for determination is whether or not the transfer of the suit land in favour of the 1st Defendant was fraudulent. 47.The evidence brought before the court, particularly the title deed dated 11th December 2015 and certificate of official search of the same date exhibited by the 1st Defendant, shows that the suit land Parcel No. KISUMU/NYALENDA “B”/481 measuring 0.20 Ha is registered in the name of the 1st Defendant. 48.The 1st Defendant pleaded in paragraph 3 of his defence and counterclaim that indeed the deceased was the registered owner of the suit land, but that the deceased sold the said land to him and that the deceased himself effected the transfer of title in the 1st Defendant’s name. 49.The Plaintiffs’ case, on the other hand, is that the deceased did not transfer the suit land to the 1st Defendant. Rather, it was the Defendants who, jointly and severally, with the intention to defraud the deceased of the suit land, illegally and fraudulently caused the suit land to be transferred in favour of the 1st Defendant. The particulars of fraud were pleaded in paragraph 11 of the plaint as follows: -a.Effecting the registration of a transfer of the deceased’s interest in the suit property without an instrument of transfer prepared in accordance with the applicable procedures and duly signed by the deceased.b.In the alternative to (a) above, forging the deceased’s signature in the instrument of transfer effecting the transfer of the deceased’s interest to the 1st Defendant.c.Effecting the transfer of the suit property to the 1st Defendant without the consent of the Land Control Board lawfully and procedurally obtained or at all,d.Effecting the transfer of the suit property to the 1st Defendant without calling for all the relevant documents, including the original title deed which was at the time in the deceased’s possession and is now in the Plaintiffs’ possession as the administrators of the estate of the deceased.e.Quietly withdrawing KISUMU ELC CASE NO. 87 OF 2015, without the knowledge of the deceased so as to pave the way for the commission of the fraudulent and illegal acts. 50.The 1st Defendant denied the allegations and the particulars of fraud, illegality, and nullity under paragraph 11 of the plaint. 51.PW1, testifying on behalf of the plaintiffs, reiterated the contents of the plaint that the transfer was fraudulent and illegal and therefore a nullity. 52.PW2, a document examiner, produced a report in which he concluded that there was no agreement between the disputed signatures and the known signatures. 53.Concerning the transfer of the sold land, the land sale agreement provided that the transaction process was to be handled by Mr. Benson Were, who was to ensure the purchaser got the title deed in his name. 54.The agreement provided further in special conditions (g) and (h) that: -“Upon receiving the down payment of Kshs. 940,000/- (Nine hundred and forty thousand), the Vendor shall sign the land transfer forms, and the same forms be retained by the advocate acting on behalf of both parties. The Lawyer holding the transfer forms will not effect the transfer until all the money has been paid by the purchaser to the Vendor.f.The final payment of Kshs. 3,760,000/- will be paid by the purchaser to the Vendor through the Lawyer only after the transfer of the said title for (KISUMU NYALENDA B/481) has been effected.” 55.The plaintiffs did not adduce evidence on whether the deceased signed the transfer forms and left them with the lawyer as per the agreement. PW1 only stated in his witness statement that, by reason of the fact that the purchase price was not paid in full, the deceased did not execute the instruments of transfer as envisaged by and under the agreement. 56.If this is the true position of the deceased, then the deceased breached the agreement by failing to execute the instruments of transfer of the land upon receipt of the deposit of the purchase price. 57.The burden of proof rested with the plaintiff to demonstrate that the deceased indeed did his part of the agreement and that it was the 1st Defendant who was in breach or that the transfer was fraudulent. 58.The evidence of PW2 was procured at the instance of the Plaintiffs. PW2 produced no documents to confirm that he was licensed to examine documents. His evidence is to be weighed against the evidence of DW4 who was the person identified by the parties in the agreement as the one to pursue the transfer and who testified as to how the transfer documents were obtained and executed. 59.To prove that the deceased transferred the land to him, the 1st Defendant testified vide his witness statement dated 20th January 2023 that pursuant to the land sale agreement, the deceased was expected to obtain the Land Control Board Consent, if necessary. That the deceased executed the Application for Land Control Board Consent, attended a Land Control Board meeting and presented a Land Control Board Consent to have the subject property transferred to him (1st Defendant). 60.That when he reached an agreement with the deceased, the deceased handed over the land transfer deeds that they had signed and the Land Control Board Consent but informed the 1st Defendant that he had lost or misplaced the original title deed to the suit land amongst those of his other properties. 61.That the deceased later applied to be issued with new title deeds to his three properties including the subject property being KISUMU/NYALENDA B/463, KISUMU/NYALENDA B/481 and KISUMU/DAGO/708 which were gazetted through Kenya Gazette Notice No. 5168 on 17th July 2015. 62.That upon expiry of 60 days after publication of the Gazette notice, the deceased notified him (1st Defendant) to proceed to conclude the transfer and registration of the suit property. 63.The evidence of loss of original title deed and gazettement of the same by the deceased for purposes of replacement was not disputed by the Plaintiffs. 64.Taking into account the totality of the evidence placed before court, I find that fraud has not been proved to the required standard, which is higher than proof on a balance of probabilities. 65.I find that the plaintiffs have not proved the claim in the plaint. I further find that the plaintiffs are only entitled to the unpaid balance of the purchase price of Kshs 1,760,000/- and interest thereon at court rates from the date of registration of the suit land in favour of the 1st defendant, which was on 11th December 2015, till payment in full and final settlement. This was, however, not prayed for in the plaint. 66.Regarding the counterclaim by the 1st Defendant, I find that the agreement for additional works/services between the deceased and the 1st Defendant was not part of the land sale transaction, the subject matter of the suit herein. Further, I find that there is no evidence of an agreement between the deceased and the 1st Defendant that any charges/fees due from the deceased to the 1st Defendant in respect of the additional works were to be offset against the balance of the purchase price. The counterclaim has not been proved.The result is that;i.The suit is dismissed.ii.The counterclaim is dismissed as welliii.Each party shall bear its own costs of the suit and the counterclaim.Orders accordingly. JUDGMENT DATED AND SIGNED AT KISUMU AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY, 2026.E. ASATI,JUDGE.In the presence ofAtika: Court Assistant.Otieno David for the Plaintiffs.Andrew Ombwayo for the 1st Defendant.No attendance for the 2nd Defendant.