https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3269

Kamande v Ololosho & 2 others (Environment and Land Case 329 of 2017) [2026] KEELC 3269 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEELC 3269 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Case 329 of 2017 MD Mwangi, J May 21, 2026 Between George Matiru Kamande Plaintiff and Miton Ene Ololosho 1st Defendant Silas Morompa Ntakito 2nd Defendant Pius Nyabuga Machoge 3rd Defendant Judgment Introduction and background. 1.The Plaintiff initiated this suit by way of a plaint dated 10th October 2014. His case is that in May 2010, he entered into an agreement with the 1st and 2nd Defendants who were the administrators of the estate of Lolosho Ole Dagitus (deceased) for the purchase of a 60 acres’ portion of the land parcel no. Kajiado/Loodariak/159 which was then registered in the name of Lolosho Ole Dagitus (deceased). The consideration was a sum of Kshs. 3,500,000/=. The Plaintiff paid a sum of Kshs. 520,200/= in part performance of the agreement for sale. The land then was the subject of a Succession Cause, HCP&A 3411 of 2005 in Nairobi (in the matter of the estate of Lolosho Ole Dagitus - deceased). 2.The Plaintiff asserts that it was a term of agreement for sale that the 1st and 2nd Defendant would take appropriate legal proceedings in the pending succession cause to secure the interests of the Plaintiff in the subject property. 3.The Plaintiff alleges that he paid a further sum of Kshs. 100,000/= to cater for legal fees in Machakos High Court Miscellaneous Application No. 15 of 2012 and yet a further sum of Kshs. 30,000/= to process the Succession Cause HCP&A 3411 of 2005. 4.The Plaintiff avers that upon confirmation of the grant in Nairobi, HCP&A 3411 of 2005, in favour of the 1st and 2nd Defendants a further court order was issued in the same cause on 14th June 2011 dated 22nd June 2011 authorizing the sale of the 60 acres out of the subject property. The 1st and 2nd Defendants, according to the Plaintiff, have in spite of the issuance of the order of 22nd June 2011, been evasive, neglecting to honour the sale agreement between them and the Plaintiff. The Plaintiff, in a bid to secure his interests, subsequently registered a caution against the title to the suit property on 15th October 2013. 5.The Plaintiff affirms that he has always been able, ready and willing to complete the sale agreement. 6.The Plaintiff states that he subsequently learnt that the 1st and 2nd Defendants had in collusion with the 3rd Defendant fraudulently transferred the title to the entire suit property to the 3rd Defendant. The Plaintiff lodged a complaint with the police under occurrence book no. 36 of 26/8/2014 at Kiserian Police Station. The Plaintiff particularizes the actions of fraud and the breach of contract by the Defendants at paragraph 10 of the plaint. 7.The Plaintiff consequently prays for judgement against the Defendants jointly and severally for:a.A declaration that the transfer of Kajiado/Loodariak/159 by the 1st and 2nd Defendants to the 3rd Defendant is illegal, null and void and be and is hereby quashed.b.Revocation and cancellation of the title to the property Kajiado/Loodariak/159 issued to the 3rd Defendant.c.An injunction against the Defendants jointly and severally restraining the Defendants from interfering with title to the property Kajiado/Loodariak/159.d.Specific performance of the contract of sale by the 1st and 2nd Defendants to the Plaintiff of the portion of 60 acres out of the property Kajiado/Loodariak/159 in terms of the sale agreement of 28th April 2011.e.Costs of this suit.f.Any other relief that the court may deem fit. Response by the Defendants. 8.The 2nd Defendant entered appearance in person and filed a statement of defence dated 27th October 2014 alongside his witness statement of even date. The 2nd Defendant admits entering into agreement with the Plaintiff as pleaded in the plaint. He however states that his brothers caused a disagreement making the completion of the sale agreement impossible. 9.The 2nd Defendant further asserts that he is not privy to the circumstances under which the 3rd Defendant obtained the title to the property Kajiado/Loodariak/159 as the original title is still in the custody of their advocate. The 2nd Defendant further states that he has not attended any land control board meeting for the approval of transfer of the land to the 3rd Defendant. He therefore is not a party to any fraud committed by the 3rd Defendant in obtaining title to the suit property. He affirms that he is willing to discuss with the Plaintiff the completion of the sale agreement. Defence by the 1st and 3rd Defendants. 10.The 1st and 3rd Defendants filed a joint statement of defence dated 12th November 2014. In the said statement of defence, the 1st Defendant admits entering into the agreement for sale with the Plaintiff alongside the 2nd Defendant but she asserts that the Plaintiff defaulted in fulfilling the terms therein, more specifically clauses 6, 7 and 13 prompting the 1st and 2nd Defendants to rescind the agreement. The clauses cited related to the mode of payment of the purchase price and completion within 90 days. 11.The 1st Defendant insists that the Plaintiff did not pay Kshs. 1.5 million on 22nd September 2011 when it was due or at all, after the approval was obtained a provided in the mandatory clause 6 of the sale agreement. The 1st Defendant further states that she demanded payment of the sum of Kshs. 1.5 million from the Plaintiff vide letters dated 28th October 2011, 30th June 2012, 20th August 2013, 7th January 2014 and 10th February 2014 but the Plaintiff did not honour the demands. The Plaintiff allegedly went quiet only to emerge 1 year later with court papers. 12.The 1st Defendant further avers that the transfer of parcel no. Kajiado/Loodariak/159 to the 3rd Defendant was not unlawful and or fraudulent in any manner as the same was regularly and lawfully done after execution of an agreement for exchange of land between the 1st and 2nd Defendants on the one part and the 3rd Defendant on the other part. 13.The 1st Defendant concludes with the averment that her decision with the 2nd Defendant to rescind the agreement was informed by the Plaintiff’s default in terms of the agreement and in accordance with the agreement itself. The 1st and 3rd Defendants therefore pray for the dismissal of the Plaintiff’s suit. Analysis of the evidence. 14.The Plaintiff testified in his case and called 2 other witnesses. 15.The Plaintiff who testified as PW1 adopted his witness statement dated 10th October 2024 as his evidence in chief and the 18 documents on his list of documents. He was not cross examined by the 2nd Defendant nor by the 1st and 3rd Defendants. 16.PW2 was the advocate, Rosemary Wangari Chege who likewise adopted her witness statement dated 14th August 2020, as her evidence in chief. She confirmed that she had the original title deed of the suit property in her custody. She however stated that she did not know who was in occupation of the suit property. She was not cross examined by any of the Defendants. 17.PW3 was the Land Registrar Kajiado West, based at Kisamis. She produced before the court the following 3 documents as exhibits, namely;i.Certified copy of the green card.ii.Transfer document.iii.Application for consent.The three documents were marked as PW3 EXH 1, 2, & 3 respectively. 18.The Land Registrar testified that the Kenya Revenue Authority personal identification numbers for the transferors (1st and 2nd Defendants) were not indicated in the transfer form that supposedly transferred the title of the suit property to the 3rd Defendant. The transfer form too was also undated. There was no consent of the relevant Land Control Board authorizing the transfer in the file, which according to the Land Registrar was required in this case since the land is agricultural land. There was no evidence of payment of stamp duty as well. 19.It was the testimony of the Land Registrar that there was no presentation book number indicated in the file meaning that there was no evidence that the transaction (transfer to the 3rd Defendant) was booked prior to its registration. Ideally what was supposed to have been presented to the Land Registrar to effect the transfer was; Transfer documents; Consent to transfer and the application for the consent forms. Identity cards and Kenya Revenue Authority personal identification numbers of all the persons engaged in the transfer. Original title Evidence of payment of stamp duty or exemption of stamp duty. 20.Responding to questions in cross examination by Mr. Kerio, advocate for 3rd Defendant the Land Registrar informed the court that the title to the suit property was in the name of Pius Nyambuga Machoge. 21.In re-examination, the Land Registrar affirmed that it was imperative before registration of a transfer that stamp duty be confirmed as either paid or exempted. Defence case. 22.The 2nd Defendant testified as a witness in his case, (DW1) stating that the 1st Defendant was his mother who died in the year 2017. He adopted his witness statement dated 27th October 2014 as his evidence in chief. 23.Responding to questions in cross examination by the advocates for the Plaintiff and the 3rd Defendant, DW1 confirmed that he sold land no. 159 to George Kamande, the Plaintiff in this case. He sold a part of it measuring 60 acres whereas the entire land is 212 acres. He explicitly stated that he was ready to transfer the 60 acres to the Plaintiff. 24.DW1 confirmed that the original title deed is with his advocate, Rosemary Chege. He was categorical that he did not sell any land to Pius Nyambuga. the 3rd Defendant. He never signed to any land sale agreement with the 3rd Defendant. He denied receiving any money from Pius Nyambuga. The 60 acres that was sold to the Plaintiff was being sold for purposes of raising money to take the 1st Defendant to hospital. 25.Though he admitted entering into an agreement with the Plaintiff, he had not yet signed the transfer in his favour neither had he obtained the Land Control Board consent to subdivide the suit property and transfer 60 acres to the Plaintiff. He had however obtained the authority of the succession court to sell the 60 acres to the Plaintiff. No such authority had been obtained to sell the land or any part of it to the 3rd Defendant. 26.Responding to Mr. Kerio, advocate for the 3rd Defendant, he affirmed his earlier testimony that he had indeed sold land to the Plaintiff only but had not dealt with the 3rd Defendant. He denied that the 3rd Defendant was to exchange 3 portions of land with the suit property. The original title has remained with advocate Rosemary Chege all through. It has never been reported lost at any one time. 27.DW1 was aware that the Plaintiff had lodged a caution on the title to the suit property. As far as he was concerned, the caution was still in existence. He has never been notified of the removal of the caution. 28.The 3rd Defendant had evicted the 1st Defendant and his family from the suit property. The grant in the estate of the late father of the 2nd Defendant was confirmed on 5th October 2010. The 1st and 2nd Defendants were to hold the suit property in trust for themselves and other dependants of the deceased some of whom were minors. 29.The 3rd Defendant did not testify in the case. At one point in the course of the proceedings, the court was informed from the bar, by the then advocate for the 3rd Defendant that the 3rd Defendant had passed on. Despite granting the advocate time to present the evidence of death of the 3rd Defendant, none was availed and the court eventually directed that the case proceeds to its logical conclusion. Court’s directions. 30.Upon close of the hearing, the court directed the parties to file written submissions. The Plaintiff and the 2nd Defendant duly complied but the 3rd Defendant did not file any submissions. The court has had occasion to read and consider the submissions by the Plaintiff and the 2nd Defendant which form part of the record of this court. Issues for determination. 31.Having carefully considered the pleadings filed in this case, the evidence adduced at the hearing and the submissions on record, the following issues commend themselves for determination;i.Whether the transfer registration of the title to the suit property in the name of the 3rd Defendant was lawful;ii.Dependent on the outcome of (i) above, whether the title in the name of the 3rd Defendant should be revoked/cancelled;iii.Whether the Plaintiff is entitled to an order of specific performance; andiv.Whether the other reliefs sought are available to the Plaintiff. Analysis and determination. A. Whether the transfer registration of the title to the suit property in the name of the 3rd Defendant was lawful 32.I will handle the first two issue together under the above sub heading. 33.According to the Land Registrar, Kajiado West, the title to the suit property Kajiado/Loodariak/159 is presently in the name of the 3rd Defendant, Pius Nyambuga Machoge. The title was registered in the 3rd Defendant’s name on 30th April 2014 as per the green card which was one of the documents produced by the Land Registrar as an exhibit alongside the transfer document and the application for consent form. 34.The evidence of the Land Registrar in a nutshell was that the transfer document on record was incomplete. It did not indicate the consideration payable, the KRA Pin numbers for the 1st and 2nd Defendants, the supposed transferors, neither was it dated. Further there was no evidence of payment of stamp duty nor was the transfer accompanied by the mandatory consent to transfer authorizing the transfer from the relevant Land Control Board and which consent the Land Registrar confirmed was required in this case as the subject land was agricultural land. Payment of stamp duty too is a prerequisite to registration of any transfer unless lawfully exempted. 35.The Land Registrar went further to point out that the presentation book number was not indicated. There was no evidence of booking of the transfer document upon presentation, prior to registration. Even the original title was not surrendered. 36.In addition to the above evidence of irregularities by the Land Registrar Kajiado West, the capacity of the so-called transferors is wanting. In accordance with the certificate of confirmation of grant issued in Nairobi High Court succession cause no. 3411 of 2005, the 1st and 2nd Defendants were to be registered on the title of the parcel of land known as Kajiado/Loodariak/159 ‘to hold in trust for their own benefit and for the beneficiaries in equal shares.’ As became apparent in the course of the hearing, some of the beneficiaries were actually minors at the time of confirmation of the grant. 37.The 1st and 2nd Defendants did not have the capacity to appropriate the suit property without the authority of the court pursuant to the provisions of section 82 (d) (ii) of the Law of Succession Act. 38.Furthermore, all contracts for disposition of an interest in land must be in writing, signed by all the parties and the signature of each party signing has to be attested by a witness who was present when the contract was signed by such party under the provisions of section 3(3) of the Law of Contract Act and section 38(1) of the Land Act. 39.In respect to the transfer to the 3rd Defendant, no such contract was presented to the court. In the statement of defence by the 1st and 3rd Defendants, there was an allegation of an agreement for exchange of land between the 1st and 2nd Defendants and the 3rd Defendant. The 2nd Defendant denied any such arrangement. This alleged agreement was not produced before the court. In any case, the 3rd Defendant did not call any evidence to support the allegations in his statement of defence. Consequently, such allegations remain just that, mere allegations. 40.Odunga J (as then he was ) in the case of Linus Nganga Kiongo and 3 others -vs- Town Council of Kikuyu into ( 2012) eKLR, discussed the consequences of failure by a party to call evidence citing the decision of Lesiit J (as she then was) in the case of Motex Knit Wear Limited -vs- Gopitex Knitwear Mills Limited, Milimani HCCC number 834 of 2002 to the effect that;“Although the Defendant has denied liability in an amended defence and counter-claim no witness was called to give evidence on his behalf. That means that not only does the defence by the 1st Plaintiff stand unchallenged but also the claims made by the Defendant in his defence and counter-claim are unsubstantiated (and) in the circumstances the counter-claim must fail" 41.It is trite that where a party fails to call evidence in support of his case, that party's pleadings remain mere statements of fact since in so doing the party fails to substantiate the pleadings. Failure to adduce evidence means that the evidence adduced by the Plaintiff against them is un- controverted and therefore unchallenged. 42.Finally, the 3rd Plaintiff's title was under challenge and he was under duty to prove its legality as stated in the case of Munyu Maina -vs- Hiram Gathiha Maina (2013) eKLR, which decision was embraced by the Supreme Court of Kenya in the case of Dina Management Ltd -vs- County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment). The Court in Munyu Maina case stated that;“When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that they acquisition was legal, formal and free from any encumbrances including any and all interests which need not noted on the register." 43.In Daudi Kiptugen -vs- Commissioner of Lands & 4 Others [2015] eKLR, the court stated that:“…the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title. If this were not the position then all one would need to do is to manufacture a Lease or a Certificate of title at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein.” 44.In the Dina Management case, the Supreme Court was emphatic that;“Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible. The first allocation having been irregularly obtained, HE Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co (1993) Ltd, who in turn could pass to the appellant. Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under article 40 of the Constitution . The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.” 45.From the foregoing this court finds and declares that the transfer and registration of the 3rd Defendant as the proprietor of Kajiado/ Loodariak/159 was procured or acquired illegally and unprocedurally and through a corrupt scheme and cannot therefore enjoy the protection afforded by the law. It is null and void. 46.This court therefore exercising its authority under section 80 of the Land Registration Act directs the cancellation/revocation of the title in the name of the 3rd Defendant, Pius Nyambuga Machoge and the rectification of the register to delete the name of the 3rd Defendant Pius Nyambuga Machoge and reinstate the register as it were prior to the fraudulent registration of the 3rd Defendant and in accordance with the Certificate of Confirmation of Grant issued in Nairobi High Court Succession Cause No. 3411 of 2005 (In the matter of the estate of Lolosho Ole Dagitus (deceased)). B. Whether the Plaintiff is entitled to an order of specific performance. 47.I did state in the analysis of the pleadings and the evidence adduced that the 2nd Defendant who is the surviving administrator of the estate of the deceased Lolosho Ole Dagitus admits the Plaintiff's claim. He expressed his willingness to complete the sale transaction. The 1st Defendant, a co-administrator, as testified in this case, died way back in the year 2017. 48.The Succession Court in the Nairobi High Court Succession Cause No. 3411 of 2005 (In the estate of Lolosho Ole Dagitus deceased) on 14th June 2011, upon considering an application by the administrators of the estate brought pursuant to the provisions of sections 45(1), 47 and 82 (d) (ii) of the Law of Succession Act and rule 49 of the Probate and Administration Rules, issued an order authorizing the administrators of the estate of the deceased to subdivide the land Kajiado/Loodariak/159 and excise therefrom 60 acres for sale to George Matiru Kamande, the Plaintiff in this case. 49.The sale of 60 acres out of Kajiado/Loodariak/159 to the Plaintiff is therefore sanctioned by the Succession Court. The Plaintiff has expressed his willingness and ability to fulfill all his obligations under the terms of the agreement. 50.In considering whether the Plaintiff is entitled to the relief of specific performance, I am guided by the decision in the case Amina Abdul Kadir Hawa -vs- Rabinder Nath Anand & another (2012) eKLR, where the court held that in order for the relief of specific performance to be available to the Plaintiff, the following guiding parameters should be demonstrated to exist;a.The remedy is an equitable remedy meaning that the court has to satisfy itself that on the facts presented to it, it is equitable in the interest of both parties to grant the reliefs;b.It is available where damages will not be an adequate compensation;c.It is a discretionary relief which discretion should not be exercised arbitrarily but on the basis of applicable principles; the discretion has to be exercised judiciously with a reason;d.Specific performance may nonetheless be withheld in circumstances where it is likely to cause hardship to the Defendant even if the circumstances giving rise to the hardship to be suffered by the Defendant were not contributed to by the contracting parties and may have arisen even after the conclusion of the contract; ande.The party entitled to earn the relief has to demonstrate that he/she has fulfilled all his/her obligations under the terms of the contract or alternatively, that there is demonstrated proof that he/she is ready and willing to fulfill the same. 51.Considering the Plaintiff's case against the above parameters, I am satisfied that the Plaintiff is deserving of the order of specific performance and that no hardship will be suffered by the 2nd Defendant or the estate of Lolosho Ole Dagitus - deceased, considering the circumstances of this case and in view of the court order issued way back by the Succession Court authorizing the sale of 60 acres to the Plaintiff. 52.The court directs that the Plaintiff completes payment of the remaining balance of the purchase price in the next 60 days. The 2nd Defendant is ordered to subdivide the land Kajiado/Loodariak/159 and excise therefrom 60 acres for transfer to George Matiru Kamande, the Plaintiff in this case and avail all completion documents in the next 90 days from the date of this judgement. C. Whether the other reliefs sought are available to the Plaintiff. 53.The Plaintiff additionally prays for an order of permanent injunction restraining the Defendants, jointly and severally from interfering with the title to the property Kajiado/Loodariak/159. 54.I guess that this order was meant for the interim stage awaiting the hearing and determination of this case. As this court has already pronounced itself in respect to the other prayers sought in the suit, this prayer is superfluous. It is this disallowed. 55.The only other issue for the court to consider is that of costs. The general principle under section 27 of the Civil Procedure Act is that costs shall follow the event. The Plaintiff’s case succeeds as against the Defendants. Nonetheless, considering that the 2nd Defendant is still willing to perform the contract and has actually been so ordered, I do not consider it appropriate to award costs as against the 2nd Defendant. As against the 3rd Defendant however, the court awards the Plaintiff the costs of the suit. Final disposition 56.The final disposition therefore is that;a.The court finds and declares that the transfer and registration of the 3rd Defendant as the proprietor of Kajiado/ Loodariak/159 was procured and or acquired illegally and unprocedurally and through a corrupt scheme and cannot therefore enjoy the protection afforded by the law. It is null and void.b.The court orders the cancellation/revocation of the title in the name of the 3rd Defendant, Pius Nyambuga Machoge and the rectification of the register to delete the name of the 3rd Defendant, Pius Nyambuga Machoge and reinstate the register as it were prior to the fraudulent registration of the 3rd Defendant and in accordance with the Certificate of Confirmation of Grant issued in Nairobi High Court Succession Cause No. 3411 of 2005 (In the matter of the estate of Lolosho Ole Dagitus (deceased)).c.The court issues an order of specific performance and orders that the Plaintiff to complete payment of the remaining balance of the purchase price in the next sixty (60) days from the date of this judgement. The 2nd Defendant on his part is ordered to subdivide the land Kajiado/Loodariak/159 and excise therefrom 60 acres for transfer to George Matiru Kamande, the Plaintiff in this case in accordance with the order of 14th June 2011 in Nairobi High Court Succession Cause No. 3411 of 2005 (In the estate of Lolosho Ole Dagitus deceased) and avail all completion documents to the Plaintiff in the next ninety (90) days from the date of this judgement.d.The court awards the Plaintiff the costs of the suit as against the 3rd Defendant.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF MAY, 2026.M.D. MWANGIJUDGEIn the virtual presence of:Ms. Chege h/b for the PlaintiffN/A by the 2nd and the 3rd DefendantsCourt Assistant: AlexM.D. MWANGIJUDGE