https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3770

Nduta & another (Suing as the legal administrators of the Estate of the Late Manda) v Chemutai & 3 others (Environment and Land Case 32 of 2023) [2026] KEELC 3770 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELC 3770 (KLR) Republic of Kenya In the Environment and Land Court at Nyandarua Environment and Land Case 32 of 2023 JM Kamau, J June 18, 2026 Between Eunice Nduta & Margaret Nduta Ngigi Kamau (Suing As The Legal Administrators Of The Estate Of The Late Manda) Plaintiff and Lilian Chemutai 1st Defendant James Mungai Kamau 2nd Defendant Simon Manda 3rd Defendant Nyandarua Land Registrar 4th Defendant Judgment 1.In a Plaint dated 18/11/2021 Eunice Nduta and Margaret Ngigi commenced this suit in their capacity as legal administrators of the Estate of the late Kamau Manda against Lilian Chemutai James Mungai Kamau Simon Manda and the Nyandarua Land Registrar. The same was filed in Court on 19/11/2021. The 1st to 3rd Defendants were sued as the 2nd Administrators and Beneficiaries of the Estate of Kamau Manda. 2.The Plaintiffs averred that the late Kamau Manda was the registered owner of the parcel of land known as Nyandarua/Upper Gilgil/8 measuring approximately 15.5 Hectares at the time of his death in 2008. During the hearing and confirmation of the Grant in 2020 in respect to Kamau Manda, the Plaintiffs learnt that the Defendants had colluded and transferred the subject land to their names with the assistance of the 4th Defendant in order to disinherit the Plaintiffs as well as other beneficiaries of the Estate. 3.The 4th Defendant is accused of having backdated the resultant Title Deed to 2007 and issued the same to the 1st to 3rd Defendants as joint proprietors unlawfully. This, according to the Plaintiffs, was fraudulent. As a result, the Plaintiffs pray for the cancellation of the Title Deed issued to the 3 Defendants which was so transmitted following the confirmation of Nakuru Succession cause No. 389 of 2008, the Estate of the late Kamau Manda. They prayed that the same reverts back to the names of the late Kamau Manda. 4.In their Statement of Defence dated 10/6/2022, the 1st, 2nd and 3rd Defendants averred that the suit was time barred. 5.The 1st Defendant averred that in 1978, she got married to the late John Kamau Manda under customary law and on 6/6/2002 solemnized the marriage under the repealed Marriage Act. And the 2nd and 3rd Defendants are children of the said union. The 1st Defendant claimed that the suit land – Nyandarua/Upper Gilgil/8 was bequeathed to her vide a written will on 10/3/2006. 6.This was actualized through attendance to the Ol-kalou Land Control Board on 23/7/2007 for the transfer of the suit land which was then transferred to the 1st Defendant on 13/11/2007. The 1st Defendant requested the 4th Defendant to insert the names of the 2nd and 3rd Defendants in the records of ownership in order to actualize the wish of the Deceased and which the said 4th Defendant agreed to add. They as a result prayed that the suit be dismissed with costs. 7.In the Statement of Defence by the 4th Defendant dated the 4/8/2022 and filed in Court the following day on 5/4/2022 the Land Registrar denied the contents of the Plaint in toto and said he was a stranger to the contents of the Plaint. He averred that his statutory duties are limited to: -i.Issuing Titles.ii.Transferring propriety rights of land in accordance to the Documents filed in the Registry.iii.Perusing and sanitizing Documents for transfer of land.iv.Correcting entries made fraudulently on record.v.Establishing boundaries.vi.Drawing and maintaining a record of Maps and plans.vii.Placing beacons on boundaries.viii.Removal and variation of restrictions. 8.The 4th Defendant while admitting the jurisdiction of the Court to try the suit consequently prayed that the Plaintiffs’ suit be dismissed with costs. 9.The hearing of the suit commenced on 4/2/2025 when the 1st Plaintiff took to the Witness box, adopted her statement dated 18/11/2021 and testified that she married the late Kamau Manda in 1964 and the two were blessed with 6 children. Kamau Manda later passed on on 27/3/2008. She claimed that she and her children never got anything from her late husband’s Estate. But that the 1st Defendant, 2nd wife to her husband inherited everything. She referred herself as one of the administrators of the Estate of Kamau Manda who she again said passed on on 27/3/2008. She claimed that on 24/7/2008 the 1st Defendant filed Succession Cause No. 389 of 2008 in Nakuru – Estate of the late Kamau Manda where the properties listed as the Assets of the deceased are :-1.Nyandarua/Upper Gilgil/8.2.Nakuru Municipality Block 7/232.3.Nakuru Municipality Block 7/233. 10.The 1st Plaintiff then filed an objection to the succession cause because she had been locked out as a consequence of which she was made a joint Administrator of her husband’s Estate with Nyandarua/Upper Gilgil/8 included as one of the Assets of the Deceased. She further stated in her statement that when the matter came up for hearing before Justice Ngugi (now Judge of the Court of Appeal) the Judge directed that a matter be filed in this Court for determination of the ownership of the suit property which would be binding upon the family Court. 11.The 1st Plaintiff concluded by saying that the Deceased Kamau Manda had 3 wives. She produced the following as the Documents she relied upon to buttress her evidence: -1.Certificate of Death.2.Kenya gazette 9002 in the Estate of Kamau Manda.3.Grant of letters of administration.4.Petition for letters of administration, affidavit, consent, letter from the chief, sureties and affidavit filed by the 1st Defendant.5.Judgment on revocation of Grant by Justice Ouko in Succession 389 of 2008.6.An Application for injunction filed on 19th June, 2009 in Succession cause No. 389 of 2008.7.Summons for confirmation of Grant filed on 8th November, 2017.8.Replying Affidavit by the 1st Defendant.9.List of documents filed on the 7th December, 2020 by the 1st Defendant with all the documents attached thereto.10.Witness statement of the 1st Defendant.11.Directions by Justice Ngugi issued on 10th December, 2020.12.Letter dated 27th February, 2009 from Chuma Mburu & Co Advocates.13.Letter from the District Commissioner dated 30th March, 2009.14.A caution registered on 31st December, 1998.15.Petition for letters of administration, Affidavit, Consent, Letter from the chief, sureties and Affidavit filed by the Plaintiffs.16.Letter to the area chief dated 15th October, 2009.17.Letter dated 23rd March, 2009 addressed to the 1st Defendant.18.A copy of will produced by the 1st Defendant.19.Replying Affidavit sworn on 28th September, 2009 together with the exhibits filed in Court.20.Letter dated 9th January, 2016. 12.On cross-examination by Ms. Chemutai, the Witness said that when the latter got married, she found her, Eunice Nduta Kamau on the suit land. But that the 1st Defendant chased her and her children away after her husband died and that she didn’t know whether Chemutai had solemnized her marriage with the Deceased. In answer to the 2nd and 3rd Defendants, the Witness said she knew them since their childhood and that she left the land when her husband, the father to the two died. 13.PW2 – Jane Mukuhi Kamau, a daughter to the 1st Plaintiff and the Deceased and one of the Administrators of the Deceased’s Estate testified and adopted her Statement dated 22/5/2024 and said that she lives with her mother and that since her birth, she lived on the suit land with her mother together with her siblings. She said that her father died in March 2008. She testified that when her father died, her step mother (the 1st Defendant) buried him at night. Jane Mukuhi further said that her father had left no will nor was any stamp duty paid for the alleged transfer of the land to the Defendants and also that by the time of the alleged transfer, there was already a caution against the land placed on 31/12/1998 before the land was transferred on 13/11/2007, which she and her mother came to learn of in 2021. By and large, her witness statement was a replica of that of the 1st Plaintiff. 14.On re-examination by the 1st Defendant, this witness said that it is possible to issue several death certificates in respect to one Deceased person and that she was not aware of any will executed by the Deceased. She further said that she and her siblings schooled at Tumaini Primary School in the neighbourhood and that they used to take care of her father’s cattle on the land. 15.In cross-examination by the 2nd Defendant, James Mungai, the witness said that she completed form 4 in 1991. 16.After the close of the Plaintiffs’ case DW1, Chemutai Kamau testified by adopting her witness statement dated 10/6/2022 and filed in Court on 8/11/2022 as her evidence in chief and produced the following Documents to beef up her case: -1.Certificate of marriage between her and the late Kamau Manda.2.A copy of Will.3.Payment receipt for the said will.4.Letter of Consent of the Land Control Board.5.Transfer form.6.Copy of the Title Deed. 17.In her above statement, Lilian Chemutai said that she married the late John Kamau Manda in 1978 under “customary laws” and solemnized the same on 6/6/2002. The Deceased and herself established their matrimonial home on L.R. No. Nyandarua /Upper Gilgil/8 and raised therefrom her 4 children, Simon Manda Kamau, James Mungai Kamau, Anne Njeri Kamau and Mary Wanjiku Kamau. 18.The Deceased on 10/3/2006 expressed his wish to transfer the suit property L.R. No. Nyandarua/Upper Gilgil/8 to her and on 23/7/2007 they both attended Ol-kalou Land Control Board and obtained a letter of Consent to transfer the same and on 13/1/2007 transfer documents were executed in the presence of Mr. Njuguna Karanja Advocate. Upon meeting registration requirements, the 4th Defendant transferred the land to her and other 2 Defendants her sons in order to actualize the Deceased’s wish. She further testified that the Deceased had no other wives. 19.On cross-examination by Mrs. Gathecha, the 1st Defendant admitted that she never appeared before the Land Control Board and that she never signed the transfer documents and also confirmed that she never paid any stamp duty nor did she execute any document whatsoever in respect to the land. 20.Simon Manda, the 3rd Defendant then took to the witness box and adopted his witness statement dated 10/6/2022 which states that he was the first born of the late Kamau Manda and that the suit land, Nyandarua/Upper Gilgil/8 belonged to his late father and admitted that the property formed part of his aforesaid father’s Estate where he has lived since he was born in 1978. 21.On cross-examination by Mrs. Gatheca for the Plaintiffs, Simon Manda said that there was nobody else going by the name Kamau Manda and that his father had only one wife. He said that his father had other children but that he did not know how many. He said that he never visited the Land Control Board nor any Land Registry. He never signed any transfer forms in respect to the suit land which belonged to his late father. But that his late father transferred the suit land to his mother during his lifetime. He denied that the Title Deed was obtained fraudulently. The same was transferred to his mother before it was further transferred to the 3 of them. 22.After the Land Registrar, 4th Defendant failed to turn up in Court having severally been served and also having not been picking calls from Mrs. Gathecha for the Plaintiffs, the case was closed and after written submissions were made and highlighted, it was now my singular duty to put to pen and paper the Judgment of the case. 23.The singular issue in determining this case is whether the suit property viz. L.R. No. Nyandarua/Upper Gilgil/8 was lawfully and regularly transferred to the first Defendant by the late (John) Kamau Manda on 13/11/2007 or on any other date. This Court being an Environment and Land Court and not a Succession Court is not interested in whether there was a will by the Deceased or not. Among the documents produced by the Defendants is a letter of consent from Ol-kalou Land Control Board dated 23/4/2007 in respect to Nyandarua/Upper Gilgil/8 for the transfer of the land from John Kamau Manda to Lilian Chemutai Kamau absolutely. I emphasize the word “absolutely”. The Application is shown to have been dated 22/4/2027, a Sunday and the meeting of the Board was held the following day, 23/4/2007. What does this mean? 23.There is therefore no doubt that the Application was presented to the Board the same day, Monday 23/4/2007. Parties were invited to the Board on the same day. The Board meeting convened the same day and consent issued the same day, 23/4/2007. This, I am persuaded, is not only unprocedural but highly impractical. Faking of documents requires meticulousness, scrupulousness, conscientiousness, high precision, exactness and accurateness and only a genius can get it all right. The authors of this mischief I believe, backdated documents but could not remember to check the calendar and realize that 22/4/2007 was a Sunday. I decided to. 24.Secondly, the transfer forms dated 13/11/2007 have Lilian Chemutai Kamau as the transferee, exclusively. It is not shown who certified the signature of both the transferor and those of the transferees.These are all anomalies. 25.Then the other miracle happens. The land Registrar, having been issued with transfer forms to effect transfer to Lilian Chemutai Kamau, decides on his own volition, suo moto and without any Application, to transfer the land to Lilian Chemutai, James Mungai Kamau and Simon Manda, gratuitously and indicate their ID numbers as 2963898, 22328686 and 2633724 respectively. Only the PIN No. of the 1st Defendant A003546584J was shown to have been presented to the Land Registrar for purposes of registration. 26.Further, the Defendants took their time to produce a Receipt for Kshs. 2,000/= paid to S.L.M.H. Muhia, advocate ostensibly for the conscripting of the Will in the year 2006 – 9/3/2006 but could not produce a more recent Receipt for payment of Stamp Duty which should have been paid just before 13/11/2007. In any case, the 1st Defendant admitted that she never paid any Stamp Duty for the transfer. This, I believe explains why the Land Registrar could not come to testify in Court because he would have been thoroughly embarrassed. The “transferees of the suit” told the Court that they signed up Application forms for consent but never attended the Land Control Board. The Court can excuse them for this but there is no way the transfer of the land to themselves could have been effected without them executing transfer documents. The transfer forms could also not have been accepted and acted upon by the Land Registrar without their signatures properly attested. The Land Registration Act allows only certain people to witness signatures in the land Transfer forms. In Kenya, signatures on land transfer forms must be attested/witnessed for the transfer to be registered. The Land Registration Act, 2012 together with Conveyancing Rules set who qualifies to attest the documents:1.An Advocate of the High Court of Kenya. Advocates are the standard witnesses for land transfers and must also verify the Identity of parties executing the documents to confirm that they executed the documents freely and voluntarily.2.Magistrate3.Judge4.Notary Public – who are Advocates of the High Court with 5+ years’ experience, appointed by the Chief Justice5.Commissioner for Oaths - These are Advocates authorized to administer oaths. 27.And if executed outside Kenya,1.Within Commonwealth: Judge, magistrate, advocate, notary public, or commissioner for oaths. 28.Section 44 of the Land Registration Act, 2012 provides as follows:(1)Except as otherwise provided in this Act, every instrument effecting any disposition under this Act shall be executed by each of the parties consenting to it, in accordance with the provisions of this section.(2)The execution of any instrument referred to in subsection (1), by a person shall consist of appending a person’s signature on it or affixing the thumbprint or other mark as evidence of personal acceptance of that instrument.(3)The execution of any instrument referred to in subsection (1) by a corporate body, association, co-operative society or any other organization shall be effected in the presence of either an advocate of the High Court of Kenya, a magistrate, a Judge or a notary public.(4)An instrument executed out of Kenya shall not be registered unless it has endorsed on it or attached to it a certificate in the prescribed form completed—(a)if the instrument was executed in the Commonwealth, by a judge, magistrate, notary public, commissioner for oaths; or(b)if the instrument was executed in a foreign country outside the Commonwealth, by any other person or class of persons as the Cabinet Secretary may prescribe.(5)The transferee shall in addition to executing the instrument, attach the following—(a)a copy of an Identity card or passport; and(b)a copy of a Personal Identification Number certificate;(c)passport-size photographs;(d)where applicable, a marriage certificate; or(e)such other identification documents as the Cabinet Secretary may prescribe. 29.Who is this that witnessed the signatures of the transferor and the transferee in the transfer forms dated 13/11/2008? Also, the 2 other transferees, 2nd and 3rd Defendants, did not provide the aforesaid documents to meet the requirements for the land to be transferred to them. I am also surprised at the speed the Title Deed was issued. All I can say is that for once I commend the land registry for its expedition. Maybe this would explain why a number of requirements were overlooked such as non-payment of stamp duty, the transfer of the Title Deed to more than the one person who had been named as the transferee of the land – Lilian Chemutai Kamau and also the failure to observe that the letter of Consent also showed the 1st Defendant as the sole transferee. What do these anomalies and unprocedural behaviors amount to? 30.It is not in dispute that the Defendants are registered as joint owners of the suit land. The rights of a proprietor are enshrined under Section 25 of the Land Registration Act which states that a certificate of Title issued to a proprietor shall be taken as prima facie evidence that the named proprietor is the absolute and indefeasible owner subject to such encumbrances, easements restrictions and conditions endorsed on the Title. It gives an absolute and indefeasible Title to the owner of the property. The Title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of Title bestowed upon the Titleholder under the Act.“…………..The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto……………” 31.Appurtenant to is derived from the Norman French word which means to belong to, anything corporeal or incorporeal which is an incident of, and belongs to some other thing as principal, an addition to, adjoining to, enjoyed with, an adjunct of, usually occupied with or attached to a more important thing and passing with it upon sale, transfer, or conveyance. 32.As was held in the case of Esther Ndegi Njiru & Another =vs= Leonard Gatei [2014] eKLR:“the law is extremely protective of Title and provides only two instances for challenge of Title. The first is where the Title is obtained by fraud or misrepresentation to which a person must be proved to be a party. The second is where the certificate of Title has been acquired through a corrupt scheme”. 33.It is trite law that once a person is registered as a proprietor of land, he is to enjoy all rights and privileges appurtenant thereto. Having established that the late Kamau Manda was the registered owner of the suit property, I find that when he was alive, he was entitled to all the rights and privileges belonging or appurtenant thereto and hence to occupy, possess and do all that is legally appurtenant to his rightful ownership. After his demise, these rights passed on to his Estate. 34.In Solomon Omwega Omache & another –v- Zackery O. Ayieko & 2 others (2016) e KLR it was stated that the court has the duty to uphold the sanctity of the records from the Lands office. 35.Section 80 (1) of the Land Registration Act No. 3 of 2012 provides as follows:“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.” 26.But such allegations must go beyond imaginations. They must be proved. In RG PATEL VS LALJI MAKANJI (1957) EA 314 the court expressed itself as follows:“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require prove beyond reasonable doubt, something more than a mere balance of probabilities is required” 27Given the seriousness of the allegations, the onus was on the Plaintiffs to provide evidence to the Court of the alleged fraud which evidence must meet the standard of proof as was underscored by the Court of Appeal in Central Bank of Kenya Limited v Trust Bank Limited & 4 Others [1996] eKLR as being beyond that of a balance of probabilities but not beyond reasonable doubt. In that case, the Court rendered itself as follows:“The appellant has made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case.” 28.In the case of Urmila w/o Mahendra Shah v Barclays Bank International Ltd & another [1979] eKLR, the Court of Appeal took the view that the onus to prove fraud in a matter is on the party who alleges it. Similarly, in cases where fraud is alleged, it is not enough to simply infer fraud from the facts. 29.The position that emerges is that evidence of especially high quality and strength is required to prove fraud in land cases. It is a daunting and burdensome task to prove fraud in any civil case. In the instant case, the Plaintiffs pleaded and particularized the fraud, and also laid a basis by way of credible evidence upon which the Court was able to make a finding that indeed there was fraud in the transaction leading to the transfer and registration of the suit land in the name of the Defendants. 30.Having come to this conclusion, Section 26(1)(a) &(b) of the Land Registration Act, 2012 guides me on the need to protect the sanctity of a Title Deed but limits me where there is darkness: -“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. 31.The proviso to this sacred Section has been brought out clearly in the monkeyshines and tomfooleries in this case. There are so many fraudulent activities, unprocedural and illegal procedures in the transfer of the Title in respect to Nyandarua/Upper Gilgil/8 ranging from unbelievable entries in the land registry, to clear and deliberate shortcuts to aid and suit the Defendants’ selfish and self-centered interests and self-aggrandizement. A registered proprietor only enjoys the statutory protection of Title as long as he/she can show that the Title was acquired procedurally. 32.My hands are therefore tied to one thing. Which is? To get recourse to Section 80 of the Land Registration Act, 2012 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.Subsection (2) of the Act,(2)) The register shall not be rectified to affect the Title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, 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” 33.I therefore grant the Plaintiffs the reliefs they have sought in their Plaint dated 18/11/2021. Accordingly, Land parcel No. Nyandarua/Upper Gilgil/8 shall revert to the name of the originally registered proprietor before the fraudulent transactions, Kamau Manda alias John Kamau Manda. And consequently, the parcel of land known as LR NO. Nyandarua/Upper Gilgil/8 shall form part of the Estate of Kamau Manda alias John Kamau Manda to be so comprised therewith forthwith in Nakuru High Court Succession Cause No. 389 of 2008, Estate of Kamau Manda. The Plaintiffs shall also have the costs of this suit against the Defendants. JUDGMENT READ AND DELIVERED AT Nyandarua THIS 18TH DAY OF JUNE, 2026.MUGO KAMAUJUDGEIn the Presence of: -Court Assistant: Samson.Plaintiff’s Counsel: Ms. Nyabuto H/B for Mrs. Gathecha.Defendant: N/A for the 1st, 2nd and 3rd Defendants.Ms. Mungai for the 4th Defendant.