Jacoyange v Jacoyange & 4 others (Environment and Land Case 3 of 2021) [2026] KEELC 3225 (KLR) (14 May 2026) (Judgment)

Jacoyange v Jacoyange & 4 others (Environment and Land Case 3 of 2021) [2026] KEELC 3225 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEELC 3225 (KLR) Republic of Kenya In the Environment and Land Court at Kakamega Environment and Land Case 3 of 2021 A Nyukuri, J May 14, 2026 Between Frankline Mukolwe Jacoyange Plaintiff and Dennis Oningo Jacoyange 1st Defendant Remigius Nganyi Watieri 2nd Defendant Jonathan K Kosgey 3rd Defendant Registrar Of Lands 4th Defendant Honorable Attorney General 5th Defendant Judgment Introduction 1.The plaintiff herein, who is the administrator of the estate of the late Florence Wande Opala, instituted this suit at the Environment and Land Court at Bungoma being case No. 103 of 2017, vide a plaint dated 5th July 2017 and filed on 15th August 2017. He sought against the defendants, the following orders;a.A declaration that the sale of property known as Isukha/ Shirere/2183 subdivison No. 882 by the 1st defendant to the 2nd and 3rd defendants was fraudulent, illegal and therefore the transfer is null and void.b.An order of this Honourable court revoking and or cancelling of titles known as Isukha/Shirere/5528 and Isukha/Shirere/ 5529 registered in the names of the 2nd and 3rd defendants respectivelyc.A mandatory order compelling the 4th defendant to reinstate the title for plot No. Isukha/Shirere/2183 subdivision No. 882 in the name of Florence Wanda Opala (deceased).d.An order compelling or and or revoking the letter of administration ad colligenda bona issued in succession Cause No. 891 of 2003 issued to the 1st defendant in respect of the estate of Florence Wande Opala.e.Costs of the suitf.Any other relief as the court may deem fit to grant. 2.The plaintiff pleaded that the late Florence Wande Opala (deceased), was the registered proprietor of the parcel of land known as Isukha/Shirere/2183 which is a subdivision of parcel No. 882 (suit property) having purchased the same from one Adriano Selete Shikamayia in 1982. 3.He further averred that after the death of the deceased, the 1st defendant obtained letters of administration ad colligenda bona of the estate of the deceased for purposes only of collecting and getting in and receiving the estate and doing any such things for the preservation of the estate. 4.That in 2010, and in total breach of the terms of the letters of administration ad colligenda bona, the 1st defendant fraudulently and without lawful authority, purported to sell the suit property to the 2nd and 3rd defendants, which action amounted to intermeddling with the deceased’s estate. He maintained that the transaction by the 1st defendant was facilitated by negligence and fraud. 5.The plaintiff accused the 1st defendant of fraud, contending that he registered letters of administration ad colligenda bona on the land register, well aware that the same was not a full grant; disposed the suit property knowing he had no authority to do so; transferred the suit property to the 2nd and 3rd defendants knowing that the letters of administration in his possession were limited to collecting and preserving the estate and that he intermeddled with the deceased’s estate. 6.He also accused the 2nd and 3rd defendants of fraud and argued that they failed to conduct due diligence; that they failed to establish whether the 1st defendant had authority to transact and failed to examine the contents of the letters of administration. Regarding the 4th and 5th defendants, he stated that they acted fraudulently by; registering letters of administration ad colligenda bona when the same were limited to preservation of the estate; facilitating the transfer of the suit property to the 2nd and 3rd defendants when the 1st defendant had no authority to transfer the same; and registering an illegal transaction. 7.He stated that the 1st and 2nd defendants subdivided the suit property into parcel Nos. Isukha/Shirere/5528 and 5529 registered in the names of the 2nd and 3rd defendants respectively. 8.Despite service, the 1st and 2nd defendants did not file defence. 9.On 28th January 2021 the matter was transferred o the Environment and Land Court at Kakamega for hearing and determination. 10.In opposing the suit, the 3rd defendant filed defence and counterclaim dated 25th May 2023. He denied the plaintiff’s claim and averred that together with the 2nd defendant, they purchased the suit property from the 1st defendant in 2009, having conducted a search and inspected the same. That they obtained the necessary consent, paid stamp duty and took possession of the suit property. 11.He counterclaimed the following orders;a.A declaration that the 3rd defendant is the co-legal owner of the suit property that is Isukha/Shirere/2183 which was subsequently sub divided to Isukha/Shirere/5529 to the 3rd defendant.b.A permanent injunction restraining the plaintiff from trespassing into the 3rd defendant’s land.c.An order expunging the plaintiff’s details from the records held by the Director of survey and or Land Registrar (if any)d.Any other relief that this court may deem fit to grante.Costs incidental to the suit. 12.The 4th and 5th defendants entered appearance but did not file any defence. 13.The suit was heard by way of viva voce evidence. Both the plaintiff and 3rd defendants presented one witness each. Plaintiff’s evidence. 14.PW1 was Frankline Mukolwe Jacoyange, the plaintiff. He adopted the contents of his witness statement dated 16th August 2017 as his evidence in chief and produced documents attached on the list of documents dated 22nd May 2023. His testimony was that the suit property was registered in the name of his late mother Florence Wande Opala. 15.He informed court that in 2010, the 1st defendant on the strength of letters of administration ad colligenda bona purported to sell the suit property to the 2nd and 3rd defendants and illegally and fraudulently proceeded to transfer the same to them. That at the time of the alleged sale between the 1st defendant and the 2nd and 3rd defendants, the plaintiff’s mother had passed away and no letters of administration had been issued in respect of her estate. He maintained that the transaction between the 1st, 2nd and 3rd defendants was facilitated by the negligence and fraudulent actions of the defendants. 16.That upon transfer, the 2nd and 3rd defendants subdivided the suit property into parcel Nos. Isukha/Shirere/ 5528 and 5529. He produced a letter from the area Assistant Chief; death certificate of Florence Wande Opala; limited grant of letters of administration; green card and official search of the suit property; green cards for parcel Nos. Isukha/Shirere/5528 and 5529; transfer instrument; application for consent of the land control board; copy of title of the suit property; letter of consent; letter from sub county DCI Officer to the court at Kakamega regarding Succession Cause No. 891 of 2003 and response thereto from court. 17.On cross examination, he stated that he once met the 3rd defendant in Nairobi to discuss the ownership of the suit property. That the 1st defendant was his younger brother and that he did not inform him of the transaction with the 2nd and 3rd defendants. That the 1st defendant never explained to him how the land was transferred and did not tell him if there was any payment made. That marked the close of the plaintiff’s case. 3rd defendant’s evidence 18.DW1 was Jonathan Kimutai Kosgei, the 3rd defendant. He informed court that he was an advocate of the High court of Kenya. He adopted his statement dated 25th May 2023 as his evidence in chief and produced documents attached on the list of documents dated even date. 19.His testimony was that together with the 2nd defendant, they conducted an official search and duly inspected the suit property measuring 0.12 Ha. That they made payment to the 1st defendant in cash and through a bank account and upon completion, the 1st defendant signed completion documents. That he attended the Land Control Board on 6th August 2009 and obtained consent to transfer the suit property to them. 20.He maintained that he paid stamp duty of Kshs. 8000/= and took possession of the suit property. That the plaintiff did not show up until 2019 when he reached out to him claiming that he was the deceased’s administrator. He stated that he conducted due diligence and confirmed that the suit property belonged to the 1st defendant. He produced a green card; deed of transfer and letter of consent. 21.On cross examination, he stated that he was an advocate of the High court of Kenya and that he had been a Land Registrar. That when the transaction herein was done, he was not working in Kakamega. He denied ever having worked as a Land Registrar in Kakamega. 22.Further that he stopped being a Land Registrar in 2014, after working for 8 years from 2006. That the 2nd defendant had been a Land Registrar in Kakamega but that he was not aware if he had been working in Kakamega at the time of the transaction. He stated that he was aware that for a land transaction to be valid, there ought to be a written agreement. 23.He conceded that he had not produced any sale agreement and that he had not produced a document showing payment of stamp duty. Further that he was not aware that the suit property had been registered in the name of the deceased in 1982 and that he only came to know of it when this matter was filed. That he was not aware that when the 1st defendant was transferring the suit property to his name; his mother was already dead. 24.That he learnt later that the transfer from the deceased to the 1st defendant was fraudulent. That he was not aware that the 1st defendant was charged with the fraudulent transfer. That consent to transfer was made on 6th August 2009 and that the transfer was done on 17th June 2010. He conceded that he had not availed evidence of payment of consideration. That marked the close of the 3rd defendant’s case. 25.Parties were directed to file submissions. On record are submissions filed by the plaintiff dated 25th September 2025. Plaintiff’s submissions. 26.Counsel for the plaintiff submitted that the 1st defendant’s actions amounted to intermeddling with the estate of a deceased person. Counsel relied on sections 55, 45 and 80 (2) of the Law of Succession Act and submitted that a limited grant cannot confer power to distribute the estate’s capital assets. Reliance was further placed on the case of Joyce Nyanchama Kalya & Another v David Malakwen Tere & Another [2017] KEHC 5474 (KLR) for the proposition that a transfer without grant of letters of administration is unprocedural and illegal. 27.On whether the 2nd and 3rd defendants were bona fide purchasers for value without notice, counsel relied on the cases of Arthi Highway developers Limited v West End Butchery Limited & 6 Others [2015] KECA 816 (KLR) and Dinah Management Limited v County Government of Mombasa & 5 others 2021[KECA]503 (KLR). 28.Regarding the question of fraud, counsel referred to section 8 of the Land Control Act and the case of Elijah Makeri Nyangwara v Stephen Mungai Njuguna & Another [2013] KEHC] 5046 (KLR) for the proposition that title may be impeached where it is shown that it was obtained illegally, unprocedurally or through a corrupt scheme. 29.On the legality of the transfer of the suit property to the 2nd and 3rd defendants, counsel referred to the case of Joseph Ondu Nyangiri v Monicah Auma Odeny & Another [2021] KEELC 4261 (KLR) and submitted that the doctrine of nemo dat quod non habet was applicable in the circumstances of this case and that as the 1st defendant lacked capacity and authority to sell the suit property, the 2nd and 3rd defendants could not be conferred with good title. Analysis and determination. 30.The court has carefully considered the pleadings, evidence and submissions presented in this matter. The issues that arise for the court’s determination are;a.Whether the transfer of the suit property to the 2nd and 3rd defendants was unlawful and fraudulent.b.Whether the plaintiff is entitled to the orders sought in the plaint.c.Whether the 3rd defendant is entitled to the orders sought in his counterclaim. 31.It is not in dispute that the deceased was the registered proprietor of the suit property on 21st December 1982, which registration subsisted until she passed on, on 15th October 1999 as demonstrated in her death certificate. 32.The green card shows that the suit property was transferred to the 1st defendant on 20th November 2007 pursuant to orders made in Succession Cause No. 891 of 2003. On 17th June 2010, the suit property was transferred to the 2nd and 3rd defendants and title thereof closed on subdivision on 1st July 2011 creating parcel Nos. Isukha/Shirere/ 5528 and 5529 registered in the names of the 2nd and 3rd defendants respectively. 33.Section 26 of the Land Registration Act provide for indefeasibility of title as follows;“Certificate of title to be held as conclusive evidence of proprietorship(1)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.” 34.Therefore, registration of land vests in the owner, absolute and indefeasible rights unless it is shown that the same was acquired through fraud, misrepresentation, want of proper procedure, illegality or corruption. Therefore, where a title is challenged the owner thereof has to show that its root is clean. 35.In the case of Dina Management Limited v County Government of Mombasa & 5 Others [2023] e KLR, the Supreme court of Kenya held that a defence of bona fide purchaser for value without notice of defect in title cannot legitimize a title obtained unlawfully. 36.Similarly, in the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] e KLR the court held that where title is unlawfully obtained, the same is invalid. 37.In the instant case, it is not disputed that as of 2007 when the suit property was transferred to the 1st defendant, Florence Wande Opala, the registered proprietor thereof had already died. No succession proceedings were taken out in regard to her estate. 38.Regarding the Succession Cause cited in the register of the suit property, namely Succession Cause No 891 of 2003, the letter from the Court Administrator, Kakamega dated 13th October 2021 showed that no such case was registered at the station in 2003 as the last case was number 616 of 2003. It is therefore, clear that the Succession Cause stated in the register of the suit property was nonexistent, hence the transfer of the suit property to the 1st defendant was based on fraud. 39.As the 1st defendant obtained registration through fraud, he had no good title to pass to the 2nd and 3rd defendants as espoused under the doctrine of Nemo dat quod non habet. The purported sale to the 2nd and 3rd defendants having been predicated on title obtained through fraud, could not confer a valid title to them even if they were to provide a land sale agreement, proof of payment of consideration and payment of stamp duty; which they did not. A title whose root is not clean cannot be validated even by innocent purchase. I am therefore satisfied that the transfer of the suit property in the defendants’ names was predicated on fraud. 40.Since Kakamega Succession Cause No. 891 of 2003 does not exist, no grant ad colligenda bona was made in that regard, and therefore, the same is not available for cancellation as sought by the plaintiff. In any event, this court has no jurisdiction to handle probate and administration matters. On that basis, prayer (d) of the plaint is declined. 41.In the premises, I find and hold that the 3rd defendant has not proved his counterclaim on the required standard and the same is hereby dismissed. I further find and hold that the plaintiff has proved his case against the defendants on the required standard and the same is hereby allowed as follows;a.A declaration is hereby made that the sale of property known as Isukha/ Shirere/2183 subdivision No. 882 by the 1st defendant to the 2nd and 3rd defendants was fraudulent, illegal and therefore the transfer is null and void.b.An order is hereby issued cancelling both the subdivision of parcel No. Isukha/Shirere/2183 and the resultant titles known as Isukha/Shirere/5528 and Isukha/Shirere/ 5529 registered in the names of the 2nd and 3rd defendants respectively.c.A mandatory order is hereby made compelling the 4th defendant to reinstate the title for Parcel No. Isukha/Shirere/2183 subdivision No. 882 in the name of Florence Wanda Opala (deceased). The 4th defendant shall dispense with the requirement for surrender of the titles for Isukha/Shirere/5528 and Isukha/Shirere/5528 in implementing this order.d.The costs of the plaintiff’s suit and the 3rd defendant’s counterclaim are hereby awarded to the plaintiff and shall be borne by the defendants. 42.It is so ordered DATED, SIGNED AND DELIVERED AT KAKAMEGA VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 14TH DAY OF MAY, 2026A. NYUKURIJUDGEIn the presence of;Mr. Rono for the plaintiffNo appearance for the defendantsCourt Assistant- Delphine