https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4607

Dannel Commercial Partners Ltd v Peresian & 3 others (Environment and Land Case E014 & E002 of 2020 (Consolidated)) [2026] KEELC 4607 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEELC 4607 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case E014 & E002 of 2020 (Consolidated) MD Mwangi, J July 9, 2026 Between Dannel Commercial Partners Limited Plaintiff and Nancy Peresian 1st Defendant Timothy Kores Lemeiruiko 2nd Defendant Kajiado District Land Registrar 3rd Defendant The Honourable Attorney General 4th Defendant Judgment Introduction 1.This dispute concerns the ownership, transfer and possession of Title No. KJD/KITENGELA/42740, measuring approximately 9.46 hectares, situated within Kajiado County. 2.The Plaintiff, Dannel Commercial Partners Limited, instituted these proceedings by way of a Plaint which was subsequently amended pursuant to leave of the Court, culminating in the Amended Plaint dated 16th March 2021. The suit was initially brought against Betty Siparo Lemeiruiko as the 1st Defendant, the Kajiado District Land Registrar as the 2nd Defendant and the Honourable Attorney General as the 3rd Defendant. Following the demise of Betty Siparo Lemeiruiko, the Plaintiff amended its pleadings and substituted Betty Siparo Lemeiruiko with Nancy Peresian and Timothy Kores Lemeiruiko, being the legal administrators of the estate of the deceased, as the 1st and 2nd Defendants respectively, while the Kajiado District Land Registrar and the Honourable Attorney General became the 3rd and 4th Defendants. 3.In the Amended Plaint, the Plaintiff pleads that it is a limited liability company duly incorporated under the laws of Kenya and that, at all material times, it became the registered proprietor of Title No. Kjd/kitengela/42740 following a transaction entered into with the late Betty Siparo Lemeiruiko. The Plaintiff avers that on 29th September 2012, it purchased the suit property from the deceased pursuant to a written Agreement for Sale. It is pleaded that the agreed purchase price was Kshs. 31,000,000/=, out of which a deposit of Kshs. 14,000,000/= was paid, leaving a balance of Kshs. 17,000,000/=. 4.The Plaintiff further pleads that upon execution of the agreement and completion of the requisite transfer documents, the suit property was transferred into its name and that the Kajiado District Land Registrar issued it with a title deed on 25th February 2013. It is the Plaintiff's case that the parties had agreed that the balance of the purchase price would be paid after subdivision of the property and sale of the resultant plots, with the title documents to the subdivided plots being held by the vendor's advocate as stakeholder pending payment of the outstanding purchase price. 5.According to the Plaintiff, after registration of the transfer in its favour, the deceased declined to surrender vacant possession of the property and subsequently denied having sold the land to the Plaintiff. The Plaintiff avers that despite its attempts to access the suit property for purposes of subdivision, it was prevented from doing so by the deceased, her agents, employees and representatives. It further pleads that the Defendants frustrated its efforts to complete the transaction, thereby occasioning it loss and damage. 6.The Plaintiff also pleads that upon conducting investigations in February 2020, it discovered that a restriction had been registered against the suit property and that the Green Card relating to the property was missing from the Lands Registry. It states that its advocates wrote to the Kajiado District Land Registrar seeking clarification but received no response. The Plaintiff therefore contends that its proprietary rights over the suit property have been infringed and that it has been wrongfully deprived of quiet possession and enjoyment of the land. 7.Consequently, the Plaintiff seeks the following reliefs as set out in the Amended Plaint:a.A declaration that the Plaintiff is the absolute proprietor of all that piece of land known as Title No. Kjd/kitengela/42740 By virtue of the title document issued on the 25th day of February, 2013 and the Agreement for Sale of Land dated the 29th day of September, 2012;b.An order granting the Plaintiff vacant possession of the parcel known as Title No. Kjd/kitengela/42740;c.An order for permanent injunction restraining the 1st and 2nd Defendants, their agents, servants, legal representatives, employees and/or any other person(s) acting on behalf of them from alienating, grabbing, interfering, trespassing, encroaching, transferring and/or in any way dealing with the Plaintiff's possession and quiet enjoyment of all that parcel of land known as Title No. Kjd/kitengela/42740;d.The parties be and are hereby directed to fulfil their part of obligations as stipulated under the Agreement dated the 29th day of September, 2012;e.In the alternative, the 1st and 2nd Defendants be and are hereby ordered to refund the full deposit of the purchase price already paid by the Plaintiff in accordance with Clause 17.1.7.C of the Agreement for Sale dated the 29th day of September, 2012;f.General damages for breach of contract;g.Costs of the suit and interest thereon; andh.Any other or further relief that this Honourable Court may deem fit and just to grant. 8.The 1st and 2nd Defendants entered appearance and filed a Statement of Defence dated 3rd August 2021. They deny the Plaintiff's claim and aver that although the Plaintiff holds a title deed in respect of the suit property, the same was acquired fraudulently and is therefore illegal. They deny that the deceased ever sold the suit property to the Plaintiff or entered into the alleged Agreement for Sale. 9.It is noteworthy that the 1st and 2nd Defendants had filed a suit on their own being ELC E002 of 2020 where they had sued Dannel Commercial Partners Limited as the 1st Defendant, Job Kariuki as the 2nd Defendant and the Land Registrar Kajiado as the 3rd Defendant. 10.In ELC No. E002 of 2020, Nancy Peresian and Timothy Kores Lemeiruko, the 1st and 2nd Defendants herein, as administrators of the Estate of Betty Siparo (deceased), sought the following reliefs:a.A declaration that the transfer of parcel of land known as Kjd/kitengela/42740 from Betty Siparo (deceased) to the 1st Defendant was malafides, illegal and fraudulent.b.An order directed at the 3rd Defendant ordering the cancellation of entry number 3 in favour of the 1st Defendant and urgent reinstatement of Betty Siparo (deceased) as the Bonafide owner of the said parcel of land known as Kjd/kitengela/42740.c.An order of permanent injunction restraining the 1st and 2nd Defendants either by themselves, servants or agents from trespassing, alienating, grabbing or in any other way interfering with the Plaintiff’s peaceful ownership of the said parcel of land known as Kjd/kitengela/42740.d.Costs of and incidental to this suit and interest thereon at court ratese.Such other of further relief that this Honourable court may deem fit and just to grant. 11.Subsequently, the Court consolidated ELC E002/2020 and ELC E014/2020 and designated ELC E014/2020 as the lead file. 12.The 1st and 2nd Defendants plead that the deceased was the registered proprietor of Title No. Kjd/kitengela/37062, measuring approximately 11.40 hectares, which she caused to be subdivided into thirty one portions, including the suit property known as Kjd/kitengela/42740. They aver that the original title deeds remained in the custody of the surveyor pending payment of outstanding survey fees and that one Job Kariuki, who was the deceased's son-in-law, deceptively obtained the title documents from the surveyor without the knowledge or authority of the deceased. It is further pleaded that Job Kariuki subsequently facilitated the transfer of the suit property to the Plaintiff. 13.The 1st and 2nd Defendants further aver that upon discovering the transfer, the deceased reported the matter to the Criminal Investigation Department and thereafter caused a restriction to be registered against the suit property on 1st March 2013. They also plead that Job Kariuki was subsequently charged in Criminal Case No. 617 of 2013 in relation to the impugned transfer. The Defendants maintain that at no point did the deceased sell the suit property to the Plaintiff and pray that the Plaintiff's suit be dismissed with costs. 14.The 3rd and 4th Defendants are sued by virtue of their statutory responsibilities relating to land registration and representation of the National Government respectively. 15.The matter thereafter proceeded for hearing, during which the parties adduced evidence in support of their respective pleadings before filing written submissions for determination by the Court. Analysis of the Evidence 16.The Plaintiff's case was presented through the testimony of PW1, Mr. Dan Awendo, while the 1st and 2nd Defendants testified as DW1 and DW2 respectively. At the close of the oral hearing, the parties filed written submissions in support of their respective cases. The Plaintiff's Evidence 17.PW1, Mr. Dan Awendo, testified under oath and introduced himself as the Managing Director of the Plaintiff company, Dannel Commercial Partners Limited. He adopted as his evidence-in-chief his witness statement dated 10th March 2021, which forms part of the Plaintiff's Trial Bundle. He further produced the documents contained in the Plaintiff's Amended List of Documents dated 10th March 2021, which were admitted and marked as Plaintiff's Exhibits, PE 1–6. 18.PW1 thereafter produced the documents contained in the Plaintiff's Further List of Documents dated 10th April 2024, comprising nine documents, which were admitted as PE 7–15. He also produced the documents contained in the Plaintiff's Supplementary List of Documents dated 22nd October 2024, which were admitted as PE 16–18, together with the sole document contained in the Plaintiff's Further Supplementary List of Documents, which was admitted as PE 19. 19.In his oral testimony, PW1 stated that the dispute concerns Title No. KJD/KITENGELA/42740, which the Plaintiff agreed to purchase from the late Betty Siparo Lemeiruiko. He testified that the Plaintiff was represented in the transaction by Vikibeva & Company Advocates, whereas the vendor was represented by Mukono Ondieki & Company Advocates. According to PW1, both advocates were identified in the Agreement for Sale. He further stated that the vendor subsequently passed away in the year 2014. 20.PW1 testified that following execution of the Agreement for Sale, the parties entered into an Addendum in February 2013. He stated that the Addendum varied the payment arrangements by providing for payment of the purchase price by instalments and acknowledged payment of a deposit of Kshs. 10,500,000/=. According to PW1, the Addendum was necessitated by the vendor's need for funds to facilitate medical treatment owing to her illness. 21.Upon being cross-examined by learned counsel for the 1st and 2nd Defendants, PW1 confirmed that the deceased initially made an oral offer to sell the suit property situated in Acacia, Kitengela, and that the offer was not reduced into writing. He further confirmed that the agreed purchase price under the Agreement for Sale was Kshs. 31,000,000/=, payable by instalments beginning with a deposit of Kshs. 14,000,000/=. 22.Regarding the payments allegedly made towards the purchase price, PW1 referred the Court to the documentary evidence contained in the Plaintiff's bundle. He testified that the Plaintiff had produced bankers' cheques amounting to approximately Kshs. 2.7 million, together with copies of cheques appearing at pages 67 and 70 of the bundle showing payments amounting to approximately Kshs. 3.2 million made to the vendor's advocates. He further testified that there was a cash payment of Kshs. 800,000/= made on 1st October 2012, together with two further cash payments of Kshs. 200,000/= and Kshs. 400,000/=, although he acknowledged that the latter two cash payments were unsupported by documentary evidence. PW1 also referred to an RTGS transfer of Kshs. 3,000,000/= reflected in the Plaintiff's bundle. He stated that the aggregate amount paid by the Plaintiff was approximately Kshs. 10.3 million, explaining that while the cash payments were made directly to the vendor, the cheque payments were channeled through her advocates. 23.PW1 further testified that the Plaintiff's advocates sent a representative to attend the Land Control Board. However, he stated that he did not know the identity of the representative, where the meeting was held, or whether the deceased personally attended the meeting. He also stated that he did not possess any confirmation showing that the vendor had attended the Land Control Board or met her advocates in their offices. Nevertheless, he maintained that the photograph appearing on the transfer instrument was that of the deceased vendor. 24.With regard to completion of the transaction, PW1 acknowledged that the Agreement contained a special condition requiring issuance of a completion notice. He stated that although he contacted the vendor during the months of May and June 2013, he did not do so in writing. 25.PW1 further testified that before purchasing the property, he was shown the land by a surveyor together with a person whom he described as an agent of the vendor, but the vendor herself did not personally take him to the property. 26.Referring to the consent allegedly executed by the vendor's children, PW1 testified that the document appearing in the Plaintiff's bundle identified one John Manase Lemeiruiko as one of the signatories, although he was indicated therein to be a minor. PW1 stated that he had never met any of the persons who signed the consent and was therefore unable to state whether they appeared before an advocate during execution of the document. He further stated that the consent itself did not indicate that the signatories had appeared before an advocate. He testified that he was unaware whether the deceased had any other children and stated that the deceased had orally informed him that she was unmarried. 27.PW1 further testified that the Addendum reflected an initial payment of Kshs. 800,000/= made on 28th September 2012, which preceded execution of the Agreement for Sale on 29th September 2012. He stated that further payments were made through post-dated cheques, bringing the total amount paid to Kshs. 10.3 million. He confirmed that he did not make any effort to engage the deceased's family following her demise, explaining that he only learnt of her death approximately four years later. He further testified that the contractual completion period under the Agreement was nine months. 28.During re-examination, PW1 testified that the Addendum was executed by both the Plaintiff and the deceased vendor and that clause 2 thereof expressly acknowledged receipt of Kshs. 10,500,000/=. He clarified that some payments were made directly to the vendor while others were transmitted through the vendor's advocates. 29.PW1 further referred the Court to the Land Control Board consent contained in the Plaintiff's bundle, stating that it indicated a meeting held on 13th February 2013, during which consent was granted. He also testified that the Defendants had not produced evidence contradicting the authenticity of the consent. 30.On the issue of due diligence, PW1 testified that prior to entering into the transaction, the Plaintiff confirmed the vendor's identity through documents supplied by the vendor's advocates, obtained a verification report, conducted an official search at the Lands Registry and obtained the consent to sell. He stated that these documents were forwarded by the vendor's advocates under cover of a letter dated 21st September 2012. 31.PW1 further explained that the Plaintiff did not issue a completion notice because the title had already been transferred into the Plaintiff's name and there was therefore no necessity for further completion documents. He reiterated that the deceased had informed him that she was unmarried and that he accepted that representation. Finally, he maintained that the Plaintiff had adduced sufficient evidence demonstrating payment of Kshs. 10.3 million, which payments were also acknowledged in the Addendum. The Defence Evidence 32.The Defence called two witnesses. 33.DW1, Ms. Nancy Peresian, testified under oath. She described herself as one of the administrators of the estate of the late Betty Siparo Lemeiruiko, together with the 2nd Defendant, Timothy Koros Lemeiruiko. She adopted as her evidence-in-chief her witness statement dated 1st October 2020, together with the joint witness statement dated 2nd August 2021. 34.DW1 also produced the documents contained in the Defendants' Lists of Documents dated 2nd October 2020 and 2nd August 2021, which were admitted as Defence Exhibits DE 1–12. She further produced the documents contained in the Defendants' Further List of Documents and Supplementary Further List of Documents, which were admitted as DE 13–16. 35.DW1 testified that she and the 2nd Defendant are the only children of the deceased. She stated that their mother fell ill in 2008, and that the family appreciated the seriousness of her illness in 2012, and eventually took her to India for treatment in 2013. According to DW1, they lived together with their mother in Kasarani, Nairobi alongside her brother and her former husband, John Kariithi. 36.DW1 testified that owing to the deceased's medical condition, she was incapable of negotiating or selling land. She stated that had the deceased intended to dispose of any land, she would have accompanied her during the transaction. She testified that she had no knowledge of any negotiations relating to sale of the suit property and that she first became aware of the alleged Agreement for Sale after commencement of the present proceedings. 37.DW1 further testified that neither her nor her mother had ever dealt with Mukono Ondieki & Company Advocates, stating that the deceased's advocate was one "Sally", whose other names she could not recall. She further stated that the deceased maintained only one bank account at Barclays Bank (now ABSA Bank) and referred the Court to the bank statements produced in the Defence bundle. According to DW1, none of the payments alleged by the Plaintiff entered into that account. 38.DW1 denied that the deceased ever attended the Land Control Board or executed the transfer documents in favour of the Plaintiff. She further alleged that the photograph appearing on the transfer instrument was not that of the deceased, explaining that her mother habitually wore short hair and never plaited or weaved her hair as appears on the photo. She maintained that the signature appearing on the transfer instrument too was not that of the deceased. 39.DW1 further testified that the deceased had entrusted her with the original title documents but that her former husband, John Kariithi, stole them. She stated that the family reported the matter to the Criminal Investigation Department at Kasarani, following which a restriction was placed against the suit property. She referred the Court to the report allegedly recorded by the deceased at Kasarani Police Station. It was her testimony that John Kariithi was subsequently charged with theft relating to another title document (other than the one for the subject parcel of land). 40.DW1 denied knowledge of any person known as John Manase, stating that she had no brother by that name. She further testified that she first met the Plaintiff's director during the hearing of the present case and maintained that the deceased never sold the suit property to the Plaintiff. She prayed that the Plaintiff's title be cancelled. 41.She further testified that the funds required for the deceased's treatment in India were raised by family members and that, after the deceased returned from India in January 2014, she lived for approximately six months only before passing away. She added that the family later sold other parcels of land situated at Kibiko in order to repay debts incurred in financing the medical treatment. DW1 stated that the deceased had intended that her children subdivide and sell portions of the land to establish businesses. 42.During cross-examination, DW1 confirmed that in ELC No. E002 of 2020 (consolidated with this case), her former husband, John Kariithi, had been sued as the second defendant, although she stated that she no longer knew his whereabouts following their divorce. She further stated that she had intended to call the surveyor, Mwangi Githuku, as a witness but acknowledged that the surveyor had not recorded any witness statement. 43.DW1 acknowledged that a letter dated 18th February 2013, contained in the Plaintiff's bundle, indicated that the original title had been forwarded by Mukono Ondieki & Company Advocates. She also admitted that she had not produced a police abstract relating to the alleged loss of the title, nor had she called the police officer who allegedly recorded the deceased's complaint of loss of the title. 44.She further conceded that she had not produced proceedings from the criminal case allegedly instituted against John Kariithi, nor any witness statement recorded by him or by the surveyor. She acknowledged that she had not produced forensic evidence to establish that the signatures appearing on the transfer documents were forged or that the photograph appearing on the transfer form was not that of the deceased. Similarly, she stated that she had not produced any photograph of the deceased before the court for purposes of comparison. 45.DW1 further acknowledged that she had not produced medical records demonstrating that the deceased was ‘too ill to transact’ during the material period. She testified that she did not know where the offices of Mukono Ondieki & Company Advocates were situated stating that the Criminal Investigation Department had informed the family that it had been unable to trace the firm, although she conceded that no investigative report had been produced to support that assertion. She admitted that no documentary evidence had been produced to demonstrate that the family raised funds for the deceased's medical treatment. 46.Upon re-examination, DW1 stated that she did not possess John Kariithi's national identity card. The surveyor referred to in her witness statement was Mwangi Githuku, who had declined to record a witness statement despite her request. She maintained that the Plaintiff had not produced evidence showing that the deceased instructed Mukono Ondieki & Company Advocates or delivered her title documents to that firm. 47.DW1 further testified that in the criminal proceedings involving John Kariithi, he admitted the offence and agreed to return that other title document. She explained that the police officer who recorded the deceased's statement had since been transferred from Kasarani Police Station. She reiterated that the restriction registered against the suit property was lodged following the deceased's complaint and maintained that the signatures appearing on the transfer documents and the Addendum differed from the deceased's known signature. She further stated that although the photograph appearing in the verification report contained in the Plaintiff's bundle was that of the deceased, it differed from the photograph appearing on the transfer instrument. She concluded by reiterating that she had sued John Kariithi for allegedly forging documents and selling the suit property to the Plaintiff. 48.The Defence also called DW2, Mr. Timothy Koros Lemeiruiko, who testified that he is the 2nd Defendant and a son of the deceased. He denied ever signing the alleged consent to sell the suit property and further denied having a brother known as Manasse. 49.During cross-examination, DW2 acknowledged that he had not produced any forensic evidence to demonstrate that the signature appearing on the consent to sell was not his. Upon re-examination, he maintained that expert evidence was unnecessary for him to state that the impugned signature was not his own. 50.Following the testimony of DW2, learned counsel for the Defendants closed the Defence case. 51.The Court thereafter directed the parties to file written submissions, which were subsequently filed before the matter was reserved for judgment. Analysis of the Parties' Submissions 52.Before this Court are the comprehensive submissions filed by the rival parties, detailing their respective legal and factual propositions regarding the contested ownership and transfer of land parcel Kjd/kitengela/42740. The Court has carefully considered the rival arguments, the statutory provisions invoked, and the judicial authorities cited to buttress the parties' respective cases. 53.The Plaintiff, Dannel Commercial Partners Limited, essentially submitted that a valid, binding, and enforceable contract was executed for the purchase of the suit land. To establish the legality of the transaction, the Plaintiff relied on Section 3(3) of the Law of Contract Act, arguing that the written Sale Agreement and its Addendum were properly signed by all parties and duly attested by advocates, thereby fulfilling all mandatory statutory requirements for the disposition of an interest in land. 54.The Plaintiff heavily contested the Defendants' allegations of fraud and illegality, asserting that such claims remained unsubstantiated. Relying on the persuasive authority of Getembe Prime Distributors v Orangi (Civil Appeal E056 of 2024) [2025] KEHC 3312 (KLR), along with the Court of Appeal decisions in Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR and Ndolo v Ndolo [2008] 1 KLR (G & F) 742, as well as the High Court's holding in Orieny & another v National Bank of Kenya (Civil Appeal E016 of 2023) [2024] KEHC 6002 (KLR), the Plaintiff argued that fraud must be specifically pleaded and strictly proved by the party alleging it, with a standard of proof higher than a mere balance of probabilities. 55.The Plaintiff further urged the Court to draw an adverse inference against the Defendants for failing to call material witnesses, namely the surveyor and the investigating police officer from Kasarani Police Station. To bolster this proposition, the Plaintiff relied on the Court of Appeal's holding in Stanley Mombo Amuti v Kenya Anti-Corruption Commission, which cited Elgin Finedays Ltd v Webb (1947 AD 744). 56.Addressing the specific claims of forgery, the Plaintiff submitted that the Defendants failed to produce an expert handwriting or document examiner, placing reliance on In re Estate of Kimani Kahehu (Deceased) [2018] KEHC 7310 (KLR) and Elizabeth Kamene Ndolo vs. George Matata Ndolo (Nairobi Court of Appeal civil appeal number 128 of 1995) to assert that expert evidence is a strict prerequisite for establishing the criminal act of forgery. 57.Regarding the necessity of family consent, the Plaintiff referenced Oganga & another v Orangi & 3 others (Environment & Land Case 466 of 2015) [2023] KEELC 16348 (KLR) to argue that a parent is under no legal obligation to involve their children or obtain their consent before disposing of free land. Ultimately, the Plaintiff relied on Section 26(1) of the Land Registration Act, asserting that its registered title enjoys statutory protection and is absolute and indefeasible. Requesting for specific performance of the contract, the Plaintiff cited Mwaringa v Waashe (Civil Appeal E012 of 2022) [2025] KECA 297 (KLR) and National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Ltd [2002] eKLR to emphasize that courts cannot rewrite contracts made between parties, and further cited Alex Wainaina t/a John Commercial Agencies v Janson Mwangi Wanjihia [2015] KECA 750 (KLR) regarding the court's duty to choose between main and alternative reliefs based on the facts presented. 58.Conversely, the 1st and 2nd Defendants, Nancy Peresian and Timothy Kores Lemeiruko, mounted a robust defense grounded in the assertion that the Plaintiff's title was acquired through a fraudulent and corrupt scheme orchestrated by an imposter. They contended that the Plaintiff failed to conduct proper due diligence as mandated by law, which would have revealed the true ownership of the land and the presence of a caretaker. In this regard, they placed heavy reliance on the Supreme Court decisions in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) and Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), arguing that an innocent purchaser for value must physically inspect the suit premises and conduct extensive pre-contractual searches, which the Plaintiff allegedly failed to do. 59.The Defendants vehemently challenged the authenticity of the signatures and photographs used in the transfer documents, asserting that they were forged. Rebutting the Plaintiff's argument regarding the lack of expert evidence, the Defendants invoked Sections 107, 108, and 109 of the Evidence Act, relying heavily on the Court of Appeal's reasoning in Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR. They submitted that the evidential burden of proving the authenticity of the produced documents lay squarely on the Plaintiff, and it was the Plaintiff's duty—not the Defendants'—to call a handwriting expert if one was deemed necessary to discharge that burden. Additionally, the Defendants addressed the admissibility of public documents, specifically referencing Sections 68(1)(c)(f), 68(2)(c), 79, and 80 of the Evidence Act. 60.To ground their legal claims of fraud and illegality, the Defendants referenced Black's Law Dictionary for the definition of fraud as an intentional perversion of truth, and invoked Section 26(1)(a) and (b) of the Land Registration Act, 2012, alongside the Court of Appeal's decision in Wambui v Mwangi & 3 others (Civil appeal 465 of 2019) (2021) KECA 144 (KLR). They submitted that the indefeasibility of a title certificate is not absolute and is subject to cancellation by a court of law if it is proven that the title was acquired illegally, unprocedurally, or through a corrupt scheme. They also cited Section 87(a) of the Criminal Procedure Code (CPC) to contextualize the withdrawal of prior criminal proceedings against the alleged primary fraudster due to their absence from the country. Furthermore, the Defendants made reference to the Law of Contract Act to emphasize the binding nature of the specific terms and special conditions within the alleged sale agreement, asserting that the Plaintiff failed to adhere to standard pre-contractual inquiries. Issues for Determination 61.Having carefully considered the pleadings, the evidence adduced by the parties and the submissions filed, the Court is of the considered view that the following issues fall for determination:i.Whether there existed a valid and enforceable Agreement for Sale between the Plaintiff and the late Betty Siparo Lemeiruiko in respect of Title No. Kjd/kitengela/42740.ii.Whether the Plaintiff has proved that the late Betty Siparo Lemeiruiko voluntarily executed the Agreement for Sale, the Addendum, the transfer instruments and all the completion documents relating to the transfer of the suit property.iii.Whether the transfer and subsequent registration of Title No. Kjd/kitengela/42740 in favour of the Plaintiff was procured fraudulently, illegally, unprocedurally or through a corrupt scheme as alleged by the 1st and 2nd Defendants.iv.Whether the Plaintiff's title to Title No. Kjd/kitengela/42740 is entitled to the protection accorded under Sections 24, 25 and 26 of the Land Registration Act, or whether the same is liable to impeachment.v.Whether the Plaintiff performed, or substantially performed, its obligations under the Agreement for Sale, including payment of the agreed purchase price, and whether any breach of the Agreement has been established.vi.Whether the Plaintiff is entitled to the declaratory, injunctive, vacant possession, specific performance, refund and damages sought in the Amended Plaint.vii.Whether the Defendants have established a basis for cancellation or rectification of the register in respect of Title No. Kjd/kitengela/42740.viii.Who should bear the costs of this suit. Analysis and Determination i. Whether there Existed a Valid and Enforceable Agreement for Sale between the Plaintiff and the Late Betty Siparo Lemeiruiko in respect of Title No. Kjd/kitengela/42740. 62.The Plaintiff’s case is anchored on the existence of a Sale Agreement dated 29th September 2012, and a subsequent Addendum dated 18th February 2013, allegedly executed by the late Betty Siparo Lemeiruiko. For any contract concerning the disposition of an interest in land to be legally enforceable, it must strictly adhere to the mandatory provisions of Section 3(3) of the Law of Contract Act, which provides verbatim:“No suit shall be brought upon a contract for the disposition of an interest in land unless— (a) the contract upon which the suit is founded— (i) is in writing; (ii) is signed by all the parties thereto; and (b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party”. 63.The provisions of Section 3(3) of the Law of Contract Act are replicated verbatim under section 38 of the Land Act. 64.A perusal of the documentary evidence produced by the Plaintiff reveals that both the Sale Agreement and the Addendum were reduced into writing, ostensibly signed by both the purchaser and the vendor, and duly attested by their respective advocates. Ex facie, the documents satisfy the statutory threshold of a valid contract for the sale of land. However, the Defendants vehemently challenge the validity of these agreements, asserting that their late mother was severely ill and lacked the capacity to contract, and that she never executed the said documents. The resolution of this issue is inextricably linked to the allegations of forgery and lack of voluntariness, which must be comprehensively analyzed under the second issue. ii. Whether the Plaintiff has Proved that the Late Betty Siparo Lemeiruiko Voluntarily Executed the Agreement for Sale, the Addendum, the Transfer Instruments and all the Completion Documents Relating to the Transfer of the Suit Property. 65.The 1st and 2nd Defendants averred that the deceased was ailing from cancer, rendering her incapable of negotiating or executing the sale documents. They further alleged that the signature on the transfer instrument was a forgery and that the passport photograph affixed thereto was of an imposter, as the deceased habitually wore short hair. 66.In advancing their case, the Defendants placed heavy reliance on the Court of Appeal's decision in Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR. The Defendants submitted that under Sections 107 and 109 of the Evidence Act, the evidential burden of proving the authenticity of the signatures and photographs lay squarely on the Plaintiff, who sought to rely on them relying on the Jennifer Nyambura case, where the court stated that;“If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side". 67.Conversely, the Plaintiff argued that he who alleges fraud and forgery bears the burden of strict proof, relying on In re Estate of Kimani Kahehu (Deceased) [2018] KEHC 7310 (KLR), which quoted the Court of Appeal in Elizabeth Kamene Ndolo vs. George Matata Ndolo (Nairobi Court of Appeal civil appeal number 128 of 1995). The Plaintiff submitted that a charge of forgery requires expert evidence, which the Defendants failed to provide. 68.This Court takes a judicious view of these competing legal principles. While it is true that under Sections 107 and 109 of the Evidence Act, the initial burden rests on the Plaintiff to prove the transaction, the law is equally settled that a registered instrument of transfer, duly attested by an advocate, carries a presumption of regularity. When the Defendants introduce a specific, criminal allegation of forgery, the evidential burden shifts to them to substantiate it. As properly articulated in In re Estate of Kimani Kahehu:“It is the applicant who alleges that the will was a forgery. The burden is on him to establish that fact to the required standard. Forgery is a criminal act, and facts to establish it must make out a case beyond balance of probability and towards proof beyond reasonable doubt... To establish forgery, it is usually necessary to subject the impugned document to testing of the impugned signature or signatures by a document or handwriting expert. That was not done in this case. No material was placed before me by way of evidence that the signature on the document purported to be that of the deceased was forged". 69.During cross-examination, DW1 and DW2 conceded that they did not subject the impugned documents to a handwriting expert or a document examiner. They failed to produce any contemporary specimen signatures or photographs of the deceased from the 2012–2013 period for the Court's comparison. Furthermore, despite alleging that the deceased lacked the capacity to contract due to her illness, no medical records were tendered to support this claim. 70.Regarding the disputed consent of the children, the Plaintiff correctly relied on Oganga & another v Orangi & 3 others (Environment & Land Case 466 of 2015) [2023] KEELC 16348 (KLR), which held that:“Was the 1st defendant under any legal obligation to involve them (children) in such a sale? I do not think so, and Mr. Nyamurongi did not refer me to any law or any authority which asserts that a parent must consult and obtain consent of his children before disposing of his/her free land...". 71.In the absence of expert testimony or cogent medical evidence, the Defendants' mere oral assertions cannot displace the documentary evidence presented by the Plaintiff. Consequently, this Court finds that the Defendants have failed to rebut the presumption that the late Betty Siparo voluntarily executed the transaction documents. iii. Whether the transfer and Subsequent Registration of Title No. Kjd/kitengela/42740 in Favour of the Plaintiff was Procured Fraudulently, Illegally, Unprocedurally Or Through A Corrupt Scheme As Alleged by the 1st and 2nd Defendants. 72.The Defendants' case is premised on a complex scheme of fraud allegedly orchestrated by DW1's former husband, Job Kariuki. They alleged that he stole the original title deed from a surveyor and deceptively facilitated the transfer to the Plaintiff. Relying on Black's Law Dictionary, the Defendants defined fraud as, "an intentional perversion of truth designed to induce another to act to their legal or financial detriment". They further noted that Job Kariuki was charged in Criminal Case No. 617 of 2013, though the matter was withdrawn under Section 87(a) of the Criminal Procedure Code because the family was allegedly in India for treatment. 73.The jurisprudence on the pleading and proof of fraud is well settled. The Plaintiff cited Getembe Prime Distributors v Orangi (Civil Appeal E056 of 2024) [2025] KEHC 3312 (KLR), which reiterated the holding in Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading... It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from facts". This was further buttressed by Ndolo v Ndolo [2008] 1 KLR (G & F) 742, which held that when making serious charges of forgery or fraud, the standard of proof is higher than in ordinary civil cases, and Orieny & another v National Bank of Kenya (Civil Appeal E016 of 2023) [2024] KEHC 6002 (KLR). 74.In their endeavour to prove this corrupt scheme, the Defendants failed to call material witnesses. The surveyor, Mwangi Githuku, who allegedly released the title deed, was not called. The police officer from Kasarani Police Station, where the matter was allegedly reported and who could authenticate the OB extract, was not called as a witness. No charge sheet or court proceedings relating to Criminal Case No. 617 of 2013 were tendered in evidence to corroborate the claims against Job Kariuki. The Plaintiff rightly invited this Court to draw an adverse inference from the Defendants' failure to call these material witnesses, quoting Stanley Mombo Amuti v Kenya Anti-Corruption Commission:“... it is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial court, this failure leads naturally to the inference that he fears such evidence will expose facts unfavourable to him ...". 75.This Court finds that the Defendants’ allegations of fraud, theft, and a corrupt scheme involving Job Kariuki amount to mere suspicion and conjecture. The failure to produce the surveyor, the investigating officer, or the criminal court records leaves a gaping hole in their defense. The allegations fall woefully short of the strict standard of proof required to establish fraud in civil litigation. iv. The Plaintiff's Title No. Kjd/kitengela/42740 is Entitled To The Protection Accorded Under Sections 24, 25 And 26 Of The Land Registration Act, Or Whether The Same Is Liable To impeachment. 76.Section 26(1) of the Land Registration Act is the bedrock of the indefeasibility of title in Kenya. It provides verbatim:“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor 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, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except- (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme". 77.The Defendants urged the Court to impeach the Plaintiff's title under the exceptions of Section 26(1)(a) and (b), citing Wambui v Mwangi & 3 others (Civil appeal 465 of 2019) (2021) KECA 144 (KLR), which held that indefeasibility is sanctionable by a court save for fraud, misrepresentation, or a corrupt scheme. They further relied on the Supreme Court decisions in Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) and Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), arguing that the Plaintiff failed to conduct adequate due diligence, such as noting a water pipeline wayleave or physically meeting the owner on-site, which defeats the claim of being an innocent purchaser. 78.While due diligence is indeed an essential hallmark of an innocent purchaser for value, the evidence on record shows that the Plaintiff conducted an official search of the land, obtained an identification verification report of the vendor, and secured a Land Control Board consent, which are standard pre-contractual due diligence steps. The Plaintiff’s advocate was forwarded the completion documents, including the original title deed, by the vendor's advocates. The Defendants’ failure to prove, to the required heightened standard, that the Plaintiff was an active participant in the alleged fraud, misrepresentation, or a corrupt scheme means the statutory exceptions under Section 26(1)(a) and (b) have not been proved. Consequently, the Plaintiff’s title enjoys statutory protection and remains indefeasible. v. Whether the Plaintiff Performed, or Substantially Performed, Its Obligations Under The Agreement For Sale, Including Payment Of The Agreed Purchase Price, And Whether Any Breach Of The Agreement Has Been Established. 79.Under the Agreement for Sale and the subsequent Addendum, the Plaintiff was required to pay a deposit, with the balance to be paid upon the subdivision and sale of the plots. PW1 adduced documentary evidence demonstrating payments cumulatively amounting to Kshs. 10,300,000/=. This included bankers' cheques and RTGS transfers cleared to the vendor's advocates, alongside testimony of cash payments. Crucially, the full payment of this deposit is expressly acknowledged by the deceased vendor and her advocates at Clause 2 of the Addendum to the sale agreement. 80.The Defendants heavily contested this, pointing to an ABSA Bank statement belonging to the deceased, arguing that no such deposits were reflected therein. Furthermore, they critiqued the cheques produced by the Plaintiff as being uncertified and lacking acknowledgment directly from the deceased. They highlighted discrepancies in the Addendum, arguing it acknowledged payments made in March 2013 despite allegedly being executed in February 2013. 81.This Court notes that proof that funds did not enter one specific personal account (the ABSA account) does not negate the documentary evidence showing that the Plaintiff successfully remitted the funds to the vendor's appointed legal representatives (Mukono Ondieki & Co. Advocates) via RTGS and cleared cheques. The advocates acted as her agents, and payment to an appointed agent constitutes payment in law. The written acknowledgment in the Addendum, witnessed by an advocate, carries significant evidential weight. I find that the Plaintiff substantially performed its obligations regarding the payment of the deposit. Further performance regarding the balance was frustrated by the placement of the restriction by the CID and the subsequent denial of vacant possession. vi. Whether the Plaintiff is Entitled To The Declaratory, Injunctive, Vacant Possession, Specific Performance, Refund And Damages Sought In The Amended Plaint. 82.Having established that there was a valid, written contract, that the Plaintiff substantially performed its obligations by paying the required deposit, and that the title was lawfully acquired and registered without proven fraud on the Plaintiff's part, the Plaintiff is entitled to the primary reliefs sought. 83.This Court is strictly guided by the principle of sanctity of contract. As the Court of Appeal stated in Mwaringa v Waashe (Civil Appeal E012 of 2022) [2025] KECA 297 (KLR), quoting National Bank of Kenya Limited v Pipe Plastic Samkolit (K) Ltd [2002] eKLR:“A court of law cannot rewrite a contract between parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded or proved". 84.The Plaintiff has demonstrated its readiness and willingness to complete the transaction. Therefore, an order for specific performance, alongside orders for vacant possession and a permanent injunction to restrain the Defendants from interfering with the Plaintiff's quiet enjoyment of Title No. Kjd/kitengela/42740, is merited subject to the payment of the balance of the purchase price in ninety (90) days from the date of this judgement. 85.Regarding the alternative prayers, the Plaintiff correctly cited Alex Wainaina t/a John Commercial Agencies v Janson Mwangi Wanjihia [2015] KECA 750 (KLR), which held that:“where relief is prayed for in the alternative, a court of law has to choose, on the facts, whether to grant the main relief or the alternative and give reasons either way...". 86.Since the Court is granting the primary relief of specific performance, the alternative relief for a refund of the purchase price fails. The claim for general damages for breach of contract is declined, as the orders for specific performance and vacant possession serve as adequate restitution in the circumstances. In any event the relief is unavailable under the law of contract. vii. Whether the Defendants have Established A Basis For Cancellation Or Rectification Of The Register In Respect Of Title No. Kjd/kitengela/42740. 87.This issue flows naturally from the determinations rendered above. The Defendants bore the heavy burden of proving that the register should be rectified on the strict grounds of fraud, illegality, or a corrupt scheme under Section 26 of the Land Registration Act. 88.Having failed to discharge this evidential burden by failing to call material witnesses or adduce expert forensic evidence, their prayer for the cancellation of the Plaintiff's title and the reinstatement of the deceased as the proprietor lacks merit and must be dismissed. viii. Who should bear the costs of this suit. 89.It is a well-settled principle of law that costs follow the event unless the Court, for good reason, directs otherwise. The Plaintiff, having wholly succeeded in proving its case on a balance of probabilities and having successfully defended its title against the unproven allegations of fraud, is entitled to the costs of this consolidated suit. 90.In light of the foregoing analysis and determination, the Court makes the following orders:A.An order for specific performance, alongside orders for vacant possession and a permanent injunction to restrain the Defendants from interfering with the Plaintiff's quiet enjoyment of Title No. Kjd/kitengela/42740 are granted.B.The Plaintiff shall pay the 1stand 2nd Defendants the balance of the purchase price amounting to Kshs. 20,700,000/- in ninety (90) days from the date of this judgement. This amount shall, in not paid in ninety (90) days from the date of this judgement, attract interest at court rates from the date of judgement until payment in full.C.The 1st and 2nd Defendants, and any persons claiming through or under them, are hereby ordered to surrender vacant possession of the parcel known as Title No. Kjd/kitengela/42740 to the Plaintiff within ninety (90) days from the date of this judgement.D.An order of permanent injunction is hereby issued, restraining the 1st and 2nd Defendants, their agents, servants, legal representatives, employees, or any other person acting on their behalf, from alienating, grabbing, interfering, trespassing, encroaching, transferring, or in any way interfering with the Plaintiff's peaceful possession and quiet enjoyment of the land parcel known as Title No. Kjd/kitengela/42740. This order takes effect on expiry of ninety (90) days from the date of this judgement.E.Considering the unique circumstances of this case, the court makes no orders as to costs. Each party shall bear its own costs.It is so ordered. DATED, SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 9THDAY OFJULY 2026.M.D. MWANGIJUDGEIn the virtual presence of:Mr. Sikuku for the PlaintiffMs. Nduta for the 1st and 2nd DefendantsN/A by the 3rd and 4th DefendantsCourt Assistant: Alex