https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3895

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BOMET** **ELC OS NO. E009 of 2026 (OS)** **(FORMERLY KERICHO ELC OS NO.7B OF 2023)** **DAVID CHERUIYOT KIRUI………..…..……..….…….….PLAINTIFF** **VERSUS** **JOSEPH KIPKEMOI KIRUI..……….………..….......1ST DEFENDANT** **DANIEL KIPRONO KIRUI……………………………..2ND DEFENDANT** **LANGAT JOSEPH……………………………………….3RD DEFENDANT** **THE MANAGEMENT COMMITTEE** **SAPTET TEA BUYING CENTER………………………………………..………..…4TH DEFENDANT** **THE LAND REGISTRAR BOMET** **LAND REGISTRY…………………………….……..……5TH DEFENDANT** **THE ATTORNEY GENERAL…………….……………..6TH DEFENDANT** **JUDGMENT.** **INTRODUCTION.** 1. The Plaintiff commenced the present proceedings vide the originating Summons dated 13th July, 2023. 1. The Originating Summons is expressed to be brought under **Order 37 Rule1 (a) (g) and Rule(2) (a) and (b), Section 3A & 63 (e)** of the Civil Procedure Rules Act (sic). 2. The Plaintiff seeks the determination of the following questions: 1. ***Whether the Respondents fraudulently subdivided the land parcel L.R NO. KERICHO/MOGOGOSIEK/1134 registered in the name of RUSI CHELANGAT YOSET (Deceased) and transferred the resultant parcels to themselves without undertaking succession proceedings us by law required*** 2. ***Whether the title subsequent to the subdivision; to wit title numbers L.R NO. KERICHO/MOGOGOSIEK/ 2694, KERICHO/MOGOGOSIEK/ 2695, KERICHO/MOGOGOSIEK/ 2696 KERICHO/MOGOGOSIEK/ 2697 KERICHO/MOGOGOSIEK/ 2698 KERICHO/MOGOGOSIEK/ 2699 KERICHO/MOGOGOSIEK/ 2700 KERICHO/MOGOGOSIEK/ 2701 KERICHO/MOGOGOSIEK/ 2702, should be declared null and void*** 3. ***Whether the ownership of the property L.R NO. KERICHO/MOGOGOSIEK/ should be restored to the name of Rusi Chelangat Yoset (Deceased) for purposes of undertaking succession of the said estate.*** 4. ***Whether the Respondent shall bear costs of the suit.*** 3. The application is supported by the Supporting Affidavit that is sworn by the Plaintiff on 13th July, 2023. **FACTUAL BACKGROUND** 1. On 6th November, 2024, the Court gave directions that the Originating Summons be deemed as a Plaint and the 5th and 6th Defendant’s Replying Affidavit be deemed as the Statement of Defence. 2. The Court also directed that the Originating Summons be heard by way of viva voce evidence. 3. The 1st-4th Defendants were served with summons to enter appearance and the Origination Summons but kept away from these proceedings. This is evidenced in the affidavit of service sworn on 31/7/2023 by one **Vincent Lelgo.** **THE PLAINTIFF’S CONTENTION.** 1. The Plaintiff contends that he was issued with grants of letters of administration *ad litem* dated 9th May, 2022 and he is therefore competent to swear the affidavit in support of the Originating Summons. 2. It is the Plaintiff’s contention that he is one of the sons of **Lucy Chelangat Yoset** (deceased) who was the registered owner of all that Parcel of land known as L.R NO. **Kericho/Mogogosiek /1134** 3. The Plaintiff further contends that his mother died on 27th March, as is evidenced by a copy of the death certificate. 4. The Plaintiff also contends that his mother was survived by eight dependants who include the following: **Jonah Kirui (deceased), Daniel Kirui , Joseph Kirui , David Kirui , Raeli Chumo, Grace Koske, Esther Ruto , Christina Seronei (deceased).** 5. The Plaintiff contends that on or about 23rd January, 2017 the Defendants without any authority from other Dependants and without observing due process caused the subdivision of the property of the deceased into nine portions and also caused themselves to be registered as sole proprietors. 6. It is the Plaintiff’s further contention that the subdivision and the transfer were done in contravention of the law and adds that the distribution which was spearheaded by the 1st Defendant was unfair, inequitable, unlawful, null and void. 7. The Plaintiff contends that the subdivision and unlawful transfer was done without his knowledge and was surprised when he was given a portion registered as L.R NO. **Kericho/ Mogogosiek/2695.** 8. It is the Plaintiff’s contention that he did not participate in this illegality and the acts of Defendants amount to intermeddling with the property of his late mother and that this goes against express provisions of the law and he urges the Court to a cancel all the resultants titles. 9. The Plaintiff further contains that it is fraudulent for the Defendant to undertake the process in contravention of the law and in an inequitable manner and adds that the Defendants gave some beneficiaries, including himself less portions of the land and proceeded to sell and transfer some portions without authority. 10. The Plaintiff also contends that during the lifetime of his mother, she sold a portion of land to Saptet Tea Buying Centre and adds that the sale was to cater for her medication. 11. It is his contention that though his deceased mother did not sign the transfer, succession ought to have been done first before transfer of the land to Saptet Tea Buying Centre and adds that in the circumstances, all the titles including the one issued in favour of Saptet Tea Buying Centre should be cancelled and restored to the name of his mother so that upon undertaking full succession, the purchaser will be listed as a liability to the estate and then get the portion purchased. 12. The Plaintiff contends that before his mother‘s demise his mother provided for each of her son’s habitation and settlement on the suit parcel without specifying the size to be occupied by each beneficiary and adds that her estate is due for distribution according to laws of intestacy. 13. It is the Plaintiff’s contention that he has been advised by **M/S Mutai Kiprotich** and Company Advocates that the Defendants could not have followed the due process in the succession of his deceased mother‘s estate for the reasons that; 1. ***The copy of the register of land Parcel number Kericho/ Mogogosiek/1134 does not reflect any succession cause number nor is there any evidence of registration of grant against the title.*** 2. ***That there is no registration or entries of registration of from R.L 39 and 42 which are the relevant forms that are registered on transmission upon completion of succession proceedings.*** 3. ***It is fraudulent to leave a land register blank as was done for the land Parcel L.R NO. Kericho/ Mogogosiek/2698 as it sets good ground for grabbers to fill in their names and claim ownership.*** 14. The Plaintiff also contends that had the Defendant instituted succession proceedings, all the dependents and beneficiaries of his late Father’s estate would have been equitably catered for. 15. It is the Plaintiff’s further contention that as a result the Defendants acts of fraudulent and unlawful subdivision and transfer he has suffered and has less land than his beneficial right. 16. The Plaintiff further contends that a demand letter dated 9th April, 2021 was written to the Defendants but it has not borne fruit. **THE 5TH DEFENDANTS’ RESPONSE.** 1. The 5th Defendant filed a Replying Affidavit sworn on 5th November, 2024 by one **M.J Bor** in response to the Originating Summons. 2. The 5th Respondent is represented by the 6th Defendant; The Attorney General. 3. The 5th Defendant deposes that she is the County Land Registrar duly authorised and competent to swear the affidavit on behalf of the 5th Defendant. 4. It is her contention that she reported to Bomet County land registry in the year 2023 and is aware of the fact relating to the instant Suit which facts she is aware of in her capacity as a County Land Registrar. 5. She contends that from the records in the Land Registry it is clear that the Parcel **Kericho/ Mogogosiek /1134** was registered in the name of **Lucy Chelangat Yoset** on 19th January,1987 and a title deed issued on 26th January 1987. 6. It is her further contention that land parcel No. **Kericho/ Mogogosiek /1134** was transferred to one **Yohana Kiplagat Kirui** ID number 38401702 and six others on 23 January 2017 and the title closed on the same day upon subdivision and adds that the register is signed by the then Land Registrar one J.K **Yano.** 7. The 5th Defendant contends that she was unable to trace any death certificate in the Parcel file but found the original title deed in the name of **Rusi Chelangat Yoset** in the parcel file and added that there is no indication as to when it was surrendered. 8. She also contends that she noticed that the transfer and transmission forms are missing in the Parcel file and is unable to tell whether succession proceedings were conducted. 9. It is also the 5th Defendant’s contention that the application for land control consent for subdivision, letter of consent number 692786 dated 23rd November, 2016 and mutation form number 04267023 dated the 20th January, 2017 presented before the Land Registrar are in the Parcel file. 10. It is her further contention that the Land Registrar comes at the tail end of land transactions and registration process and adds that where there is misrepresentation or non-disclosure of material facts it is difficult to discover them especially in a case such as the instant suit where the original title deed and other land transfer forms have been presented to the Land Registry and a land Registrar relies on them as presented and in the ordinary cause of their statutory duties. 11. The 5th Defendant contends that it is difficult for a Land Registrar to tell whether a registered owner is deceased to enable him/her demand for a confirmed grant before any land transaction can be carried out. 12. It is also her contention that she is duly informed by her advocate on record whose advice she believes to be very true that the Plaintiff did not report the crime of intermeddling as required under **Section 45** of the Law of Succession Act for the perpetrator to be identified and punished. 13. The 5th Defendant contends that if at all there was any fraud in subdivision and transfer of the Suit Parcel then the other parties are to blame and adds that the Land Registrar is a victim of misrepresentation and further states that the 5th Defendant is willing to abide by the decision of this Honourable Court and effect any orders that shall be issued. 14. She contends that the Plaintiff has alleged that the subdivision and transfer process was spearheaded by one **Johana Kiplangat Kirui** but has failed to sue him and/or initiate criminal proceedings against him. 15. It is the 5th Defendant’s contention that that the Plaintiff states that the Defendants are beneficiaries of the estate of the deceased and had been given distinct portions of the suit parcel by the registered owner and that it is therefore clear that the 5th Defendant is an innocent party and a victim of misrepresentation. 16. It is also her contention that disclosure of material facts should have been made by those who had interest in the Suit Parcel and the 5th Defendant should therefore be indemnified by the other Defendants. 17. The 5th Defendant reiterates that the Land Registrar was not a party to any fraudulent activities but relied on the document presented to him for registration and adds that the 5th Defendant shall effect the orders issued by the Court. 18. The 5th Defendant concludes her deposition by stating that should the Defendants be condemned to pays costs, then the costs should be borne by the 1st to 4th Defendants who have failed to enter appearance. **PLAINTIFF’S EVIDENCE.** 1. **David Cheruiyot Kirui ,** hereinafter referred to as **PW1** testified in support of the Plaintiff’s case. 2. He introduced himself as a farmer and stated that he was in Court to give evidence on the parcel of land known as **Kericho/ Mogogosiek/1134;** herein after referred to as the suit parcel. 3. It was his evidence that the suit parcel was registered in his mother’s name and gave his mother’s name as **Rusi Chelangat Yoset.** 4. It was his further evidence that he instituted the suit on behalf of his mother’s estate and he produced a copy of grant of letters of administration ad *litem* which were marked as **Exhibit P1**. 5. It was his evidence that **Rusi Chelangat Yoset** is deceasedand that she died on 27th March, 2014. The death certificate was marked and produced as **Exhibit P2.** 6. **PW1** Narrated that before the death of **Rusi Chelangat Yoset,** the suit parcel was registered in her nameand added that atitle was issued to her 19th January, 1978. 7. **PW1** went on to state that the green card for the suit parcel shows that on 23rd January, 2017 a title deed was issued to **Johana Kirui** and six others and explained that as at 23rd January, 2017ssuccession to the estate of **Rusi Chelangat Yoset** had not been done. He produced the green card for the suit parcel as **Exhibit P3.** 8. It was **PW1’s** further evidence that his deceased mother left eight children and he gave their names as;J**ohana Kiplangat Kirui (deceased), Samwel Kirui, Joseph Kirui, David Kirui (Plaintiff), Rael Chumo, Grace Koske, Esther Ruto, Christina Seronei (deceased).** He produced a letter dated 7th March, 2022 from the Chief as **Exhibit P4.** 9. It was **PW1’s** further evidence that the suit parcel has since been sub divided into 4 portions and that the subdivisions are as follows: 1. ***Kericho/Mogogosiek/2694 in the name of Johana Kiplangat Kirui.*** 2. ***Kericho/Mogogosiek/2696 in the name of Joseph Kirui.*** 3. ***Kericho/Mogogosiek/2697 in the name of David Kiplimo Kirui.*** 4. ***Kericho/Mogogosiek/2698 has no registered proprietor.*** 5. ***Kericho/Mogogosiek/2699 reserved for Saptet primary school and that he didn’t know if they had collected their title deed.*** 6. ***Kericho/Mogogosiek/2700 has no registered proprietor.*** 7. ***Kericho/Mogogosiek/2701 registered in name of Langat Joseph and that he collected his title deed on 8th February, 2017.*** 8. ***Kericho/Mogogosiek/2702 registered in the name of Saptei tea buying centre.*** He produced the green cards. **Exhibit P5 (a) –(i)** 1. It was also **PW1**’s evidence that at the time of sub-division succession had not been done and that it still had not been done as at the time he was giving his evidence in Court. 2. It was his further evidence that even though he participated in process of subdivision, it was marred with illegalities and explained that the illegalities were because the right procedure was not followed. 3. **PW1** prayed that the Court adopts the affidavit in support of the originating Summons as part of his evidence-in-chief which prayer the Court acceded to. 4. He ended by praying that the Court determines the questions in the Originating Summons dated 13th July, 2023. 5. Upon cross-examination by counsel for the 5th and 6th Defendant, **PW1** confirmed that **Rusi Chelangat** died in the year 2014 and that the death certificate was issued on 5th February, 2021. 6. He also confirmed that he did not inform the Land Registrar that owner was deceased and further confirmed that he did not give the death certificate to the Land Registrar. 7. **PW1** also confirmed that he did not visit the land registry to register an inhibition or caution and further confirmed that he is the one who was in charge of the sub-division process. 8. He confirmed that he did not go to the land control board, did not go to the surveyor. 9. **PW1** admitted that Johana **Kiplangat Kirui (deceased)** is his brother and confirmed that the subdivision process was spearheaded by **Johana Kirui** and added that after he died the Land Registrar informed them that succession had not been done. 10. He admitted that he did not have the title deed of the suit parcel which was issued in the name of **Rusi Chelangat Yoset** and stated that the children of **Johana** (deceased) have the tile deed. 11. **PW1** confirmed that the suit parcel has been subdivided into 9 parcels and further confirmed that he had only sued 4 of the registered owners. 12. He stated that he was not aware of the processes leading to registration and confirmed that he learnt of the sub divisions in 2017 and that he filed the instant suit in the year 2023. 13. Upon re-examination **PW1** reiterated that the death certificate was issued on 5th February, 2021 and that the subdivision was done on 23rd January, 2017. 14. **PW1** stated that it would not have been possible to take the death certificate issued in 2021 for a process that was undertaken in 2017. 15. He stated that he had not collected the title deed and added that they were advised to institute succession proceedings. 16. Upon clarification being sought by the Court from Counsel for the 5th and 6th Defendants, he stated that they are joining issues with the Plaintiff and added that the title deeds were issued on on misrepresentation and they do not therefore oppose their cancellation. Counsel for the 5th and 6th Defendants further clarified that they were only opposed to orders for costs of the suit being made payable by them as set out in paragraph **14** and **15** of their Replying Affidavit. 17. The Plaintiff’s case was then closed. **THE DEFENDANT’S EVIDENCE.** 1. **Taibarius Ndege** hereinafter referred to as **DW1** testified as the first defence witness. 2. He introduced himself as the Registrar in charge of Bomet land registry and went on to state that **Kericho/Mogogosiek/1134** falls within his jurisdiction. 3. **DW1** stated that he would be relying on the Replying Affidavit sworn by **M.J Bor** on 5th November, 2024. 4. It was his further his evidence that he had in his possession a green card for the suit parcel and stated that he wished to produce it as evidence. 5. It was his evidence that Entry no. 1 is of 19th January, 1987 and its shows that **Rusi Chelangat Yoset** is proprietor of the suit parcel. 6. It was his further evidence that Entry no. 3 on the green card shows that the suit parcel was transferred to **Johana Kiplangat Kirui** and 6 others and he added that he did not have transfer documents to support this entry. 7. **DW1** testified that the records that he has do not show that succession was done and added that in the ordinary course of events, there would be a record of the transmission either as LRA 39 or LRA 42. 8. It was **DW1**’s further evidence that **Jonah Kirui (deceased)** should have informed the Land Registrar that **Rusi Chelangat Yoset** was deceased. 9. **DWI** stated that his evidence was that **Johana Kiplangat Kirui** (Deceased) misled the Land Registrar. 10. It was his testimony that he had not seen any evidence of the plaintiff (**David Cheruiyot Kirui**) having registered a restriction and also that he had not seen any report by the plaintiff reporting intermeddling with the estate of **Rusi Chelangat Yoset** (deceased). 11. **DWI** concluded his evidence-in-chief by stating that he had no objection to the prayer seeking to cancel the subdivisions. 12. Upon cross-examination by counsel for the Plaintiff, **DW1** stated that he was in Court to state that the correct procedure for transfer of a property of a deceased person was not followed. 13. **DWI** went on to state that succession to the estate of **Rusi Chelangat Yoset** (deceased) ought to have been done and added that unless the office of the Land Registrar is informed of the fact of death of a proprietor, they would not know. 14. It was his further evidence that it would be necessary to attach a death certificate of a deceased proprietor. 15. Upon re-examination, **DW1** stated that the office of the Land Registrar usually relies on documents provided and added that one such document is a title deed. 16. The 5th and 6th defendants case was then closed. **ISSUES FOR DETERMINATION.** 1. The Plaintiff filed submissions dated 17th March, 2026 while the 5th and 6th Defendants filed submissions dated 18th March, 2026. 2. The Plaintiff gives a summary of the pleadings and the evidence presented before the Court. The Plaintiff also gives a summary of the documents that he produced in support of his case, a summary of the 5th and 6th Defendants case and proposes the following issues for determination; 1. ***Whether the land parcel LR No. Kericho/Mogogosiek/1134 was fraudulently and/or unprocedurally subdivided.*** 2. ***Whether the resultant titles from the subdivision of LR No. Kericho/Mogogosiek/1134 should be declared null and void.*** 3. ***Who should bear costs of this application? (sic)*** 3. On the first question proposed for determination by the Plaintiff, the Plaintiff states that it is not disputed that land Parcel No. **Kericho/Mogogosiek/1134** was registered under the name of **Rusi Chelangat Yoset** (Deceased). 4. The Plaintiff submits that it is not in dispute that **Rusi Chelangat Yoset** (Deceased) died on 27th March, 2014 as indicated on the death certificate. 5. The Plaintiff also submits that that any subsequent dealings in the Suit Parcel could only be valid if undertaken in strict compliance with the mandatory provisions of succession and transmission are set out under the Law of Succession Act. 6. The Plaintiff relies on the judicial decisions of **Re Estate of Domenico De Masi (Deceased) [2020] eKLR, Re Estate of Veronica Njoki Wakagoto (Deceased) [2013] eKLR** in support of his submissions. 7. The Plaintiff further submits that the suit parcel of land was subdivided into land parcel No’s **Kericho/Mogogosiek/2694,** **2696, 2698, 2700** and **2702** on 27th January, 2017 which was done before succession proceedings were commence in respect of the estate of his deceased mother. 8. It is the Plaintiff’s submissions that the Land Registrar in his testimony confirmed the existence of fraud and/or irregularities in the subdivision of the suit property noting that no succession proceedings in respect of the estate of the deceased had been conducted prior to the subdivision. 1. It is further the Plaintiff’s submission that the mandatory statutory requirements governing the subdivision and transfer under transmission were not complied with and adds that the entire process was therefore tainted with illegalities and fraud. 2. The Plaintiff relies on Section **26(1)** of the Land Registration Act and submits that the nine resultant title deeds are impeachable by virtue of **Section 26(1) (a)** and **(b)** of the Land Registration Act which provides that a certificate of title may be challenged where it is demonstrated that it was obtained through fraud, misrepresentation, illegality or was acquired unprocedurally or through a corrupt scheme. 3. The Plaintiff therefore submits that the subdivision and transfer of the suit property were tainted with illegalities and fraud and invites the Court to determine whether fraud and procedural irregularity can confer a valid title. 4. On the second question for determination, the Plaintiff relies on the Supreme Court decision of **Dina Management Ltd v County Government of Mombasa & 5 others [2022] KESC 24 (KLR)** and submits that the registers of the resultant subdivisions of the suit parcel of land ought to be cancelled as they are void for being obtained unprocedurally. 5. It is the Plaintiff’s submissions that the ownership of land parcel No. **Kericho/Mogogosiek/1134** should be restored to the name of **Rusi Chelangat Yoset**. (Deceased). 6. On the last question i.e. who should bear costs of the suit, the Plaintiff submits that the Defendants should bear costs of the suit. 7. The 5th and 6th Defendants in their submissions propose the following issues for determination; 1. ***Whether the 5th Defendant is liable for fraud.*** 2. ***Who should pay the costs of the suit.*** 8. On the question whether the 5th Defendant is liable for fraud, the 5th and 6th Defendants rely on the judicial decision of **Matundura (Suing as personal representative and administrator of the Estate of Kerebi Matundura) v Matundura & 4 others [2025] KEELC 8389 (KLR)** andsubmit that the Land Registrar is a victim of misrepresentation and that the Land Registrar relied on the conduct of the 1st -4th Defendants and the documents submitted by them. 9. The 5th and 6th Defendants further submit that the process of subdivision was initiated by the other Defendants who misrepresented the subdivision and contended that it was undertaken by the deceased proprietor. 10. It is the 5th and 6th Defendants submissions that the Land Registrar’s role is a at the tail end of the subdivision process and that the Land Registrar does not possess investigative capabilities to establish whether the subdivision process was legitimate and especially, to confirm whether the proprietor of the suit land was deceased. 1. The 5th and 6th Defendants also submit that it was the duty of the Defendants to inform the Land Registrar of the registered proprietor’s death. 2. The 5th and 6th Defendants further submit that the Plaintiff did not produce any evidence to prove that the Land Registrar was part of the fraudulent scheme nor did the Plaintiff show that the Land Registrar received any proceeds of corruption. 3. In support of this proposed question for determination, the 5th and 6th Defendants rely on the judicial decision of **John Mbugua Getao v Simon Parkoyiet Mokare & 4 Others** (citation not given). 4. On the second proposed question for determination, i.e. who should bear the costs of the suit, the 5th and 6th Defendants submit that the Plaintiff has not proved that the Land Registrar participated in fraud and that they should therefore not be condemned to pay costs. **ANALYSIS AND DETERMINATION.** 1. After considering the pleadings, the evidence adduced by both the Plaintiff and the 5th & 6th Defendants together with their respective submissions, it is my view that the following issues arise for determination; 1. ***Whether land parcel No. Kericho/Mogogosiek/1134 was fraudulently and/or unprocedurally subdivided.*** 2. ***Whether the prayers sought in the Originating Summons should be granted.*** 3. ***Who should bear costs of the suit.*** **Summary of evidence and documents.** 1. I shall start by briefly summarizing the evidence of the parties herein and the documents produced either is support of the claim or in opposition to it. 2. It is the Plaintiff’s case that he is the son of **Rusi Chelangat Yoset** (Deceased). 3. It is also the Plaintiff’s case that **Rusi Chelangat Yoset** (Deceased) was the registered owner of land parcel No. **Kericho/Mogogosiek/1134.** 4. It is further the Plaintiff’s case that **Rusi Chelangat Yoset** (Deceased) died on 27th March, 2014. 5. It is the Plaintiff’s case that on 23rd January, 2017, land parcel No. **Kericho/Mogogosiek/1134** was subdivided before succession proceedings could be commenced. 6. It is also the Plaintiff’s case that the subdivision of land parcel No. **Kericho/Mogogosiek/1134** was fraudulent and marred with irregularities. 7. In support of his case, the Plaintiff produced a copy of a Limited Grant of Letters of Administration Ad Litem issued in Bomet Misc. Cause No. E070 of 2021 In the matter of the Estate of **Rusi Chelangat Yoset** alias **Rusi Chelangat Yosei** (Deceased) to **David Cheruiyot Kirui** on 9th May, 2022 as **Exhibit P1.** 8. A copy of the Death Certificate of **Rusi Chelangat Yosei** was produced as **Exhibit P2.** It is Death Certificate No. 0891410 and it shows that **Rusi Chelangat Yosei** died on 27th March, 2014 and her death registered on 30th April, 2014. The Death Certificate was issued on 5th February, 2021. 9. A copy of the green card for land parcel No. **Kericho/Mogogosiek/1134** was produced as **Exhibit P3**. It shows that the register was opened on 19th January, 1987 and that the suit land measures 13.5 Ha. Entry No. 1 is dated 19th January, 1987 when **Rusi Chelangat Yoset** was registered as the owner. The date on entry No. **2** is not legible but it shows that a Land Certificate was issued. Entry No. **3** is dated 23rd January, 2017 when **Johana Kiplangat Kirui** was registered as the owner while Entry No**. 4** is also dated 23rd January, 2017 when the green card was closed on partition into land parcel No’s 2694 – 2702. The green card is certified as a true copy of the original by the Land Registrar, Bomet on 9th April, 2021. 1. A copy of a letter dated 7th March, 2022 written by **Peter K. Mutai**, the Chief Simoti Location was produced as **Exhibit P4**. The letter is addressed to the Chief Magistrate, Bomet Law Court and its reference is “*Estate of* ***Rusi Chelangat Yosei*** *(Deceased*)”. In the said letter, the Chief set out the following as the beneficiaries of the estate of ***Rusi Chelangat Yosei*** (Deceased); 1. ***Raeli Chumo (Daughter)*** 2. ***Christina Seronei (Deceased)*** 3. ***Easther Ruto (Daughter)*** 4. ***John Kiplangat Kirui (Deceased Son) survived by Elizabeth Kirui and Grace Kirui.*** 5. ***Grace Koskei (Daughter)*** 6. ***Daniel Kiprono Kirui (Son)*** 7. ***Joseph Kipkemoi Kirui (Son)*** 8. ***Daniel Cheruiyot Kirui (Son)*** 2. A certified copy of the green card for land parcel No. **Kericho/Mogogosiek/2694** was produced as **Exhibit P5(a).** It shows that the register was opened on 23rd January, 2017 and that the said parcel of land measures 3.355 Ha. It also shows that it is one of the resultant partitions of land parcel No. 1134. Entry No. **1** is dated 23rd January, 2017 when **Johana Kiplangat Kirui** was registered as the owner while Entry No. **2,** of the same date, is when the title deed was issued. It is certified on 9th April, 2021 by the Land Registrar, Bomet as being as the true copy of the original. 3. A certified copy of the green card for land parcel No. **Kericho/Mogogosiek/2695** was produced as **Exhibit P5(b).** It shows that the register was opened on 23rd January, 2017 and the said parcel of land measures 2.869 Ha. Entry No. **1** is dated 23rd January, 2017 when **David Cheruiyot Kirui** was registered as the owner. The green card was certified on 9th April, 2021by the Land Registrar as being a true copy of the original. 1. A certified copy of the green card for land parcel No. **Kericho/Mogogosiek/2696** was produced as **Exhibit P5(c).** It shows that the register was opened on 23rd January, 2017 and that the said parcel of land measures 3.112 Ha. Entry No. **1** is dated “*23.1.2.2017*” (sic); when **Joseph Kipkemoi Kirui** was registered as the owner. The green card was certified on 9th April, 2021by the Land Registrar as being a true copy of the original. 2. A certified copy of the green card for land parcel No. **Kericho/Mogogosiek/2697** was produced as **Exhibit P5(d).** it shows that the register was opened on 23rd January, 2017 and that the said parcel of land measures 3.112 Ha. Entry No. 1 is dated 23rd January, 2017; when **Daniel Kiprono Kirui** was registered as the owner. The green card was certified on 9th April, 2021by the Land Registrar as being a true copy of the original. 3. A certified copy of the green card for land parcel No. **Kericho/Mogogosiek/2698** was produced as **Exhibit P5(e)**. It shows that the register was opened on 23rd January, 2017 and that the said parcel of land measures 0.141 Ha. Entry No. 1 is dated 23rd January, 2017 and the parcel of land has no registered owner. The green card was certified on 9th April, 2021by the Land Registrar as being a true copy of the original. 4. A certified copy of the green card for land parcel No. **Kericho/Mogogosiek/2699** was produced as **Exhibit P5(f).** It shows that the register was opened on 23rd January, 2019 and the parcel of land measures 0.125 Ha. Entry No. 1 is dated 23rd December, 201; when the land was registered in the name of the Permanent Secretary To Treasury while Entry No. **2** is of an even date is when the title deed was issued. The green card was certified on 9th April, 2021by the Land Registrar as being a true copy of the original. 5. A certified copy of the green card for land parcel No. **Kericho/Mogogosiek/2700** was produced as **Exhibit P5(g).** It shows that the register was opened on 23rd January, 2017 and that the parcel of land measures 0.145 Ha. Entry No. 1 is dated 23rd January, 2017. The parcel of land has no registered owner. The green card was certified on 9th April, 2021by the Land Registrar as being a true copy of the original. 6. A certified copy of the green card for land parcel No. **Kericho/Mogogosiek/2701** was produced as **Exhibit P5(h).** It shows that the register was opened on 23rd January, 2017 and the parcel of land measures 0.046 Ha. Entry No. **1** is dated 23rd January, 2017 when **Langat Joseph** was registered as the owner while Entry No**. 2** dated 8th February, 2017 when the title deed was issued. The green card was certified on 9th April, 2021by the Land Registrar as being a true copy of the original. 7. A certified copy of the green card for land parcel No. **Kericho/Mogogosiek/2702** was produced as **Exhibit P5(i).** It shows that the register was opened on 23rd January, 2017 and the land measures 0.202 Ha. Entry No. 1 is dated 23rd January, 2017 when **Saptet Tea Buying Center** was registered as the owner. The green card was certified on 9th April, 2021by the Land Registrar as being a true copy of the original. 8. The 5th and 6th Defendants case on the other hand is that **Rusi Chelangat Yoset** (Deceased) was registered as the owner of land parcel No. **Kericho/Mogogosiek/1134** on 19th January, 1987. It is also the 5th and 6th Defendants case that the said parcel of land was transferred to **Johana Kiplangat Kirui (Deceased)** on 23rd January, 2017 before it was closed upon subdivision on the same day. 9. It is further the 5th and 6th Defendants case that **Johana Kiplangat Kirui** (Deceased) misled the 5th Defendant (Land Registrar) in issuing the title deed as he failed to inform him that **Rusi Chelangat Yoset** was deceased. 10. It is the 5th and 6th Defendants case that they have no objection to the cancellation of the resultant partitions of the suit parcel of land as the procedure for transfer of property belonging to a deceased person was not followed. 11. In support of their case, the 5th and 6th Defendants produced a certified copy of the green card for land parcel No. **Kericho/Mogogosiek/1134.** The contents of the said green card have been set out in the preceding paragraphs. **A. Whether land parcel No. Kericho/Mogogosiek/1134 was fraudulently and/or unprocedurally subdivided.** 1. It is not disputed that land parcel No. **Kericho/Mogogosiek/1134** was registered in the name of **Rusi Chelangat Yoset** (Deceased) on 19th January, 1987. 2. It is also not disputed that **Rusi Chelangat Yoset** died on 27th March, 2014 and it is further not disputed that land parcel No. **Kericho/Mogogosiek/1134** was partitioned on 23rd January, 2017 after the death of **Rusi Chelangat Yoset** and before succession proceedings in respect to her estate were commenced. 3. Before proceeding any further, it is important to point out that the Plaintiff commenced the present proceedings vide an Originating Summons and specifically expressed to be bringing this suit under the provisions of **Order 37 Rule1 (a) (g)** and **Order 37** **Rule (2) (a)** and **(b)** of the **Civil Procedure Rules** and of the **Civil Procedure Act. Section 3A & 63 (e).** 4. **Order 37 Rule 1 (a)** and **(g)** of the **Civil Procedure Rules** provides as follows; ***“The executors or administrators of a deceased person, or any of them, and the trustees under any deed or instrument, or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir, or legal representative of a deceased person, or as cestui que trust under the terms of any deed or instrument, or as claiming by assignment, or otherwise, under any such creditor or other person as aforesaid, may take out as of course, an originating summons, returnable before a judge sitting in chambers for such relief of the nature or kind following, as may by the summons be specified, and as circumstances of the case may require, that is to say, the determination, without the administration of the estate or trust, of any of the following questions—*** 1. ***any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or cestui que trust;*** 2. ***the determination of any question arising directly out of the administration of the estate or trust.”*** 3. The provisions of **Order 37 Rule (2) (a)** and **(b) of the Civil Procedure Rules** are as follows: ***“Any of the persons named in rule 1 may in like manner apply for and obtain an order for—*** ***(a) the administration of the personal estate of the deceased;*** ***(b) the administration of the real estate of the deceased;”*** 1. The Plaintiff herein has letters of administration *ad litem* in respect of the estate of **Rusi Chelangat Yoset** (Deceased). He does not have a confirmed grant and cannot therefore purport to bring this action under the said provisions of the law. 2. The registered owner of Parcel 2694; **Johana Kiplangat Kirui** (deceased) and/or his legal representatives curiously not parties to this suit and if this Court were to grant any orders, they wound have been condemned unheard. 3. Among the questions set out for determination in the Originating Summons, is the question of fraud. 4. The Court of Appeal in **Vijay Morjaria vs Nansingh, Madhusingh Darbar & another [2000] eKLR** held that: ***“It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. 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 the facts.”*** (Emphasis mine) 1. In the above cited judicial decision, the Court of Appeal held that fraud must be specifically pleaded and the alleged particulars of fraud must be stated on the face of the pleading. 1. In the judicial decision of **Jaswant Harilal Chudasama v Shashikant Harilal Chidasama [2017] KEELC 553 (KLR)** the Court held as follows; ***“Originating summons were meant to deal with simple matters which the Court can settle through that process. In other words originating summons are appropriate where the issues sought to be determined are simple. In the case of Kibutiri Vs Kibutiri ( 1982-1988) 1 KAR 60, Law J had this* to say regarding originating summons:-** “***The procedure by way of originating summons is intended;*** ***to enable simple matters to be settled by the Court without the expense of bringing an action in the usual way not to enable the Court to determine maters which involve a serious question”*** ***…In the instant case, the applicant has demonstrated through affidavits that there are serious issues of law and fact which need to be settled. For example there is the allegation of fraud. The law is clear that allegations of fraud need not only be particularized but also proved. This cannot be done in an originating summons.”*** (Emphasis mine) 1. As stated, the Plaintiff purportedly instituted this suit as the legal representative of the estate of the deceased **Rusi Chelangat Yoset**. I have established that he holds letters of administration *ad litem* and cannot therefore bring action under **Order 37 rule 1 (a) and (g)** and **Order 37 Rule 2 (a)** and **(b)** of the **Civil Procedure Rules.** 2. Further, I have found that where fraud is alleged, it must be specifically pleaded and proved and this cannot be done in an Originating Summons. 3. Lastly and maybe more importantly, the Plaintiff is seeking the cancellation of the resultant subdivisions of land parcel No. **Kericho/Mogogosiek/1134**. **Order 37 Rule 8** of the **Civil Procedure Rules** provides as follows; ***“An application under the Land Registration Act (Cap. 300) other than under Part VII and Part VIII thereof shall be made by originating summons unless there is pending a suit involving the same lands when the application may be made in that suit.”*** 1. This means that the applications under part VII and VIII of the **Registered Land Act (CAP 300)** shall not be made by Originating Summons. Part VII of the **Registered Land Act** provides for *Transmission and Trusts* while Part VIII provided for *Restraints on Disposition i.e.* Inhibitions Cautions and Restrictions. 2. In the judicial decision of **Ngomeni Swimmers Ltd v The Commissioner of Lands & 18 others [2013] KEHC 584 (KLR)** the Environment and Land Court sitting in Malindi held as follows; ***"Order 37 Rule 8 of the Civil Procedure Rules, 2010 provides that Applications under the Registered Land Act shall be made by way of an Originating Summons except under section 120, 128, 133, 143 and 150 of the Act.*** ***Section 143 of the repealed Registered Lands Act, Cap 300 is the only section that gives the court the mandate to rectify the register by directing that any registration be cancelled or amended once it is satisfied that the registration was made or omitted by fraud or mistake.*** ***In view of the fact that Order 37 Rule 8 of the Civil Procedure Rules, 2010 expressly prohibits the filing of an Originating Summons in respect to claims brought pursuant to the provisions of section 143 of the repealed Registered Land Act, this court cannot grant the declaratory orders that are being sought by the Plaintiff by way of an Originating Summons.*** ***As was held by the Court of Appeal in the case of Wakf Commissioner Vs Mohamed bin Umeya bin Abdulmaji Bin Mwijabu (1984) KLR 346, an Originating Summons is intended for settling simple matters without the expense of a full trial and not for serious issues.*** ***The issues raised by the Plaintiff and the Interested Parties in this matter are complex issues which can only be dealt by way of a Plaint and after the full hearing of evidence. Declaratory orders for cancellation of title deeds cannot be said to be a simple issue which can be decided by way of an Originating Summons."*** (Emphasis mine) 1. **Section 143** of the Registered **Land Act (CAP 300)-** repealed- provides as follows; ***143. (1) Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than a first registration) has been obtained, made or omitted by fraud or mistake.*** ***(2) The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.*** 1. **Section 80** of the **Land Registration Act** provides as follows; ***(1)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.*** ***(2)The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.*** 1. **Section 143** of the **Registered Land Act (CAP 300)-** repealed- is in *pari materia* with **Section 80 Land Registration Act**. 2. Cancellation of titles and/or declaring the titles null and void is one of the orders that is being sought by the Plaintiff herein and it is not in the category of orders that can be issued in a suit commenced by way of Originating Summons. 3. Put differently, **Order 37 rule 8** of the **Civil Procedure Rules** prohibits issuance of orders for cancellation of titles in suits commenced by way of Originating Summons. 4. I note that the 5th and 6th Defendants concede that the titles issued by the Land Registrar ought to be cancelled but that can only be done in compliance with the law and procedure set out for determining the matters complained of by the Plaintiff. **b. Whether the prayers sought in the Originating Summons should be granted.** 1. The prayers sought in the Originating Summons have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder for ease of reference; 1. ***Whether the Respondents fraudulently subdivided the land parcel L.R NO. KERICHO/MOGOGOSIEK/1134 registered in the name of RUSI CHELANGAT YOSET (Deceased) and transferred the resultant parcels to themselves without undertaking succession proceedings us by law required*** 2. ***Whether the title subsequent to the subdivision; to wit title numbers L.R NO. KERICHO/MOGOGOSIEK/ 2694, KERICHO/MOGOGOSIEK/ 2695, KERICHO/MOGOGOSIEK/ 2696 KERICHO/MOGOGOSIEK/ 2697 KERICHO/MOGOGOSIEK/ 2698 KERICHO/MOGOGOSIEK/ 2699 KERICHO/MOGOGOSIEK/ 2700 KERICHO/MOGOGOSIEK/ 2701 KERICHO/MOGOGOSIEK/ 2702, should be declared null and void*** 3. ***Whether the ownership of the property L.R NO. KERICHO/MOGOGOSIEK/ should be restored to the name of Rusi Chelangat Yoset (Deceased) for purposes of undertaking succession of the said estate.*** 4. ***Whether the Respondent shall bear costs of the suit.*** 2. Given my finding on issue (**A**) above, the said prayers cannot be granted. **c. Who should bear costs of the suit.** 1. The general rule is that costs shall follow the event. This is in accordance with the provisions of **Section 27** of the **Civil Procedure Act (Cap. 21).** 2. A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. **DISPOSITION.** 1. In the result, I hereby strike out this suit and find that the prayers sought by the Plaintiff cannot be granted in a suit commenced by way of Originating Summons. 2. Each party shall bear own costs of the suit. 3. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 25TH DAY OF JUNE, 2026.** **L. A. OMOLLO** **JUDGE.** **In the presence of: -** **Mr. Kirui Evanson for the Plaintiff.** **1st, 2nd, 3rd and 4th Defendants – Absent.** **Mr. Ojwang for the 5th and 6th Defendants.** **Court Assistant; Mr. Joseph Makori.**