https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3863

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT SIAYA** **ELC LAND CASE NO. E004 OF 2022** **DANIEL ABURA JUMA** **(Suing as the legal administrator of the estate of the late AMOS JUMA ABELO alias MALOWA ABURA) ………………………...PLAINTIFF** **VERSUS** **ROSE ABURA………………………………….1ST DEFENDANT** **JAMES OTIENO OYUGI……………………….2ND DEFENDANT** **JUDGEMENT** 1 In his plaint dated 19/05/2020 the Plaintiff sought for the following reliefs; - 1. A declaration that the 1st Defendant intermeddled in the property of the deceased estate 2. A declaration that all actions done by the defendant were null and void and could not give rise to a title 3. An order that title South Sakwa/Migwena /1653 and 1654 be cancelled 4. An order that South Sakwa/Migwena/1193 reconstituted and reverted back to the estate of Amos Juma Abura alias Malowa Abura. 5. An order for eviction of the 2nd Defendant from South Sakwa/Migwena /1654 at his cost. 6. An order for compensation for damages to the deceased estate by the defendant for trespass. 7. Cost of the suit 8. Any other relief 2 It is pleaded that the late Amos Juma alias Malowa Abura on behalf of whose estate he brought the claim, was the sole registered owner of South Sakwa / Migwena /1193 measuring approximately 3.2 Ha from the year 1974 until his death sometime in the year 2002. 3 The Plaintiff avers that the 1st Defendant sometimes around 29th May 2002 and acting under coercion and duress from the 2nd Defendant unlawfully transferred the said land South Sakwa / Migwena /1193 in her name without undertaking succession cause in court which actions amounted to intermeddling and therefore null and void. 4 The plaintiff also avers that the 1st Defendant thereafter proceeded to sub-divide the said land to South Sakwa/Migwena/ 1653 and 1654. She then transferred South Sakwa/Migwena/ 1654 to the 2nd Defendant’s name. It is also pleaded that the 2nd Defendant has built a permanent home on the said land to the detriment of the beneficiaries of the estate of Amos Juma Abura alias Malowa Abura who ought to be using it. 5 The 1st Defendant responded to the suit through statement of Defence dated 24/07/2020 wherein she denied all the allegations contained in the plaint except paragraphs 1-2, 3&4, 5,6, and 7 and 8 & 9. It is however averred that the 2nd defendant took her to the lands department to put her hands on blank forms with guise to assist her transfer the property from her husband to herself. That the 2nd defendant did not allow her any legal representation in this regard. That she never attended court for change of name from her late husband to herself. 6 The 2nd Defendant responded to the suit by Statement of Defence dated 12/6/2020. He avers that between February and April 1971 Amos Juma Abura alias Malowa Abura following the process of Land Adjudication under the provisions of the Land Adjudication Act made a claim in respect of un- surveyed parcel described as South Sakwa/Migwena/ 1193. There being no objection to the claim the adjudication register was forwarded the director land adjudication for onward transmission to the Chief Land Registrar. 7 It is pleaded that Amos Juma Abura alias Malowa Abura died before the adjudication register was forwarded to the Chief Land Registrar. That his alleged registration pursuant to section 27 of the Registered Land Act never happened contrary to what is pleaded. That consequently the land did not form part of the deceased estate as contemplated under section 32 of the Law of Succession Act and therefore is expressly excluded from his intestate succession. 8 That the 1st Defendant registration on May 2003 under section 27 of the Registered Land Act was the 1st registration within the meaning of section 143(1) of the said Act. The 2nd defendant avers that he was not aware of the circumstances of this registration and denies any involvement in the process of the registration or alleged duress attributed to the 2nd defendant. 9 Without prejudice to the above it is pleaded that since a dead person had no legal personality the registration of the 1st defendant was sound and in the best interests of the deceased family members including the plaintiff. 10 It is averred that upon the above registration the 1st defendant approached the 2nd defendant and offered him a portion (2.0 acres) of the parcel to enable her raise school fees for the deceased children which he agreed to purchase at Kshs.45,000/- per acre and sale agreement executed in the presence of witnesses whose particulars are stated. The deceased children’s particulars are also pleaded. 11 The plaintiff avers that upon the 1st defendants request the purchase price was deployed directly for the purpose of school and attendant requirements and the expenses ended up to be in excess of the agreed purchase price to the tune of Kshs.800,000/- culminating to the transfer of the land to the 2nd defendant. That he acquired a valid title as a bonafide purchaser for value without notice of any irregularity on the part of the 1st defendant. 12 In response to the plea for rectification of the register it is pleaded that since the 2nd defendant’s registration as proprietor of the land was 1st registration the court lacked jurisdiction to rectify the register under section 143(1) of the RLA based on the allegations of duress except by Fraud or Mistake and which had not been pleaded and which further offended the provisions of Order 2 Rule 10(1)(a) of the Civil Procedure Rules. 13 The 2nd defendants asserts that he would still be entitled to the land under the doctrine of adverse possession since he was in peaceful uninterrupted and quiet possession and enjoyment of the land for more than 12 years. Further that the plaintiff has always admitted orally and in writing that he was only claiming the portion of land behind the 2nd defendants’ parents’ home. That the plaintiffs’ brothers actively participated in the construction of the 2nd defendants house which constituted admission by conduct of the 2nd defendant’s proprietorship of the parcel within the meaning of section 8 and 14 of the Evidence Act. 14 The jurisdiction of the court is denied. 15 The plaintiff responded to the 2nd defendants defence vide a reply thereto dated 13/07/2020 where he reiterated the averments in the plaint and denied that he ever admitted the 2nd defendant’s proprietorship in the manner alleged. It is also averred he has never seen the sale agreement therein. **HEARING AND EVIDENCE OF THE PARTIES** 16 The suit was heard viva voce on7/4/2025, 9/6/2025 and 17/9/2025. 17 The plaintiff **Daniel Abura Juma** an employee of the judiciary testified **as PW1.** He adopted as his evidence in chief the witness statement dated 19/5/2020. The witness produced the documents listed in the List of Documents dated 19/05/2020 PEX 1 -10. The witness clarified that his deceased father was also known as Amos Juma Abelo. Referring to the green card for parcel 1193 and entry No. 2 in favor of the 1st defendant he pointed the endorsement ‘Succession’ thereon bore no particulars of the cause and asserted his father’s estate has never been administered in court except his appointment as administrator 2018. The witness emphasized he had sued the 2nd defendant for transacting on the suit property without doing succession. 18 PW1 further testified that he had not seen the sale agreement between the 1st defendant who is his biological mother and 2nd defendant and he was never involved in the same. 19 Cross examined on entry No. 1 of the green card he produced he noted the name was never changed from Malowa Abura to Amos Juma Abelo. He conceded he was a minor , not present during the sale and he could therefore not confirm who offered the property for sale or who wished to buy and the terms thereof. He conceded the 2nd defendant not being a family member could not initiate succession proceedings and had no obligation to institute the same. That at the time of his father’s death there existed no title in the name of his father for parcel 1193. He conceded that the 2nd Defendant is not the land registrar and cannot have effected the registration of the parcel into the 1st Defendants name except the land registrar. 20 The witness further testified that had the land registrar been aware that the plaintiffs father was deceased he would have to satisfy that succession was done and by production of the requisite documents before registration of the 1st Defendant. He agreed the land registrar would be the one to be answerable to the estate though he had not enjoined him as a defendant. The witness declined to confirm if his mother had lied to the court by indicating she was coerced. He conceded the 2nd defendant paid school fess for him and his siblings regardless the amounts. He agreed his mother approached the 2nd Defendant for sale of land. PW1 also confirmed he had communicated with the 2nd Defendant where he indicated he was not interested in the portion where the 2nd Defendants house stands but the adjacent land. 21 As pertains the insurance policy PW1 insisted it is his father who took out the policy and paid the premiums thereof. He confirmed though that it is the 2nd defendant who released the policy documents to facilitate release of the insured sum which PW1 confirmed receipt. 22 The witness reiterated in re- examination that he has never been interested on the portion of land where the 2nd Defendants home is built. 23 On inquiry by this court on the size of the portion where the 2nd Defendants house has been constructed, PW1 told the court the said defendant’s current occupation was a quarter of an acre. 24 **PW2 was Koluoch George Williams** a retired teacher and husband to the 1st Defendants sister. The witness adopted his witness statement dated 24/7/2020 as his evidence in chief. He testified that he paid school fees for two daughters of the deceased children and lived with them. That he did not expect any financial gain as he did it out of his kind heart. 25 Upon cross examination PW2 testified he had no proof of payment of the school fees. The school fees were for primary school education. He was aware the 2nd Defendant was very close to the deceased. While the 1st Defendant informed him about the insurance policy he was not aware that the 2nd Defendant was the one paying the premiums. He told the court that the 2nd Defendant requested for a file containing the deceased documents and indicated in the presence of the 1st Defendant he needed the same to enable follow up on the policy and the deceased retirement benefits. She did not mention about land. The 1st defendant informed him a year later that she had not received any money contrary to the 2nd Defendants promise to pay school fees in exchange for land. 26 **DW1 was Elisha Odunda Jaoko** a retired accountant. He adopted his witness statement dated 15/5/2023 as his evidence in chief. It was his evidence that after retirement he was appointed Land Control Board (LCB) chairman Bondo Sub-County. That in 2004 the 1st and 2nd Defendants appeared before the LCB pertaining to the sale of parcel South Sakwa Mgwena/1193. Thereafter the 1st Defendant sold a portion thereof to the 2nd Defendant. That he also recorded a statement with DCI on 25/5/2022. 27 DW1 testified in cross examination that their duty at the LCB was to approve land transactions where the seller and buyer had agreed on the sale. That where the Board approves subdivision the parties do not need to attend. The witness could not confirm if the LCB kept minutes though he was sure the same are recorded. He was not aware the 1st Defendant was married at the time. He could not remember inquiring about their agreements. DW1 clarified in re-examination that the transaction was approved. 28 **DW2 was James Otieno Oyugi** the 2nd Defendant a retired Insurance Officer. He adopted his witness statements dated 12/6/2020 and 23/8/2023 as his evidence in chief and produced the documents in the List of documents dated 12/6/2020, 3/8/2023 -DW2 ex 1-16. The witness statement dated 12/6/2020 largely rehashed his response to the plaint. He asserted he did not grab any file from the 1st defendant. That he was the one who took out the life insurance for the deceased and since he had noted he wasn’t well and paid the premiums. That he informed the 1st defendant about the policy and she was happy with the return of Kshs 140,000/- which she indicated be used towards her children’s School fees. 29 DW2 added that he had engagements with the plaintiff before the filing of the suit as he indicated he was not aware of the sale herein and was issuing threats. The elders had advised the plaintiff this was not proper as the 2nd Defendant was assisting the family just like a father would do. The plaintiff had additionally sent him text messages indicating he was only interested in the portion of land behind the 2nd Defendants mothers house but since the pleadings claimed the entire parcel DW2 decided to leave the matter to the court. 30 Upon cross examination DW2 testified that during the deceased funeral he undertook to continue assisting the 1st defendant and the children and continue paying school fees. That he enlightened her to put the proceeds of the policy into a children’s education fund which she agreed and authorized him to do. The 1st defendant did not want to handle the cash. DW2 conceded he had not produced the agreement for sale of the land. That while he carried out a search before purchase, he did not produce the certificate of official search before court. According to him the money he paid for the school fees served as the purchase price though he did not have a formal agreement in proof. He conceded he did not produce the LCB consent for the transfer and proof of stamp duty payment. He conceded he was not the 1st registered owner of the property. 31 **DW3 was Julius Nyerere Ogam**. He adopted his witness statement dated 16/05/2023 as his evidence in chief. The witness testified on cross examination that he was area chief for Central Sakwa for 27 years. He told the court he did not write a letter of introduction for the 1st defendant for purposes of succession. That the 1st defendant and 2nd defendant informed him of the intention to sale the land. The 1st defendant showed her a title deed in her name. That they presented a sale agreement for 2 acres to him which he signed but did not keep a copy. He did not know the agreed purchase price. He asserted that the 1st Defendant did not sign the agreement in his presence. 32 **DW4 was Dominic Omollo Mitula**. He adopted his witness statement dated 26/9/2023 as his evidence in chief. He testified that he witnessed the signing of the sale agreement between the 1st and 2nd Defendant alongside Monica Otieno Oyugi (for 1st defendant) and Julius Nyerere Ogam (for 2nd defendant). That the 1st defendant informed him she was selling to educate her children following the death of her husband. He asserted no one was forced to sign the sale agreement. Further that the 2nd defendant sent him to the LCB in the company of the 1st defendant but they were turned away by DW1 who insisted the buyer must attend. They later all attended and the consent was granted. He was also aware that the 2nd defendant educated 4 of the 1st defendants’ children. He told the court he was also present during the survey 33 The witness was cross examined. He confirmed he was the 2nd defendants farm manager for over 20 years. That the 1st defendant was a neighbor and he related very well with her. She could read and write. That all the parties executed the agreement in the presence of the chief. The chief signed the agreement in witness to all the signatures. He read the agreement which was for Kshs.90,000/- though the 1st defendant did not receive the same as she indicated verbally it should be used to educate the children. That since then, he has never seen the agreement. 34 The 1st defendant died during the pendency of the proceedings in 2023, she was never substituted with her estate. The suit against her abated. **SUBMISSIONS** 35 Upon close of the defendant’s case, parties were to file their closing submissions which they did. **PLAINTIFFS SUBMISSIONS.** 36 The plaintiffs’ submissions were filed through the firm of Yonga Odhiambo & Associates and are dated 5/11/2025. Rehashing the facts of the plaintiff’s case and the evidence adduced before court counsel identified the following issues for determination; - 1. Whether the claim is merited. * 1. Whether there was intermeddling - an illegality in the estate that render any subsequent transactions null and void? 2. What are the consequences to the validity of titles obtained as a result of an offence? 2. Appropriate reliefs. 37 It was submitted that the actions of the 1st Defendant amounted to intermeddling. That the actions of the 1st Defendant of sub-dividing South Sakwa/Migwena/1193 and transferring the same to the 2nd Defendant based on coercion and duress was unlawful, and the two resultant titles are a nullity in law. That the 2nd Defendant trespassed on the estate. It was urged that the 2nd Defendant did not adduce details of the Succession Because that gave the 1st Defendant the powers to administer the estate of the deceased. Counsel drew support from the case of **Re Estate of M`Ngarithi M`Miriti (2017) eKLR** which defined intermeddling. 38 The plaintiff added that transactions founded on intermeddling of deceased’s estates are untenable in law, null and void and relied on ***Veronica Njoki Wakagoto (deceased) [2013]eKLR; Re Estate of Paul M’Maria (Deceased) [2017]eKLR*** *and*[***Mugure & another v Kimathi & 3 others [2024] KEELC 3252 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3252/eng%402024-01-25)***.*** 39 The plaintiff pointed that the 2nd defendant cannot benefit from the plea of bonafide purchaser on the basis that he failed to produce the alleged sale agreement or a copy of the search undertaken to ascertain ownership of the property before purchase. Nothing prevented the 2nd defendant as a matter of caution to conduct his due diligence whether the 1st Defendant had been issued with letters of administration. Reliance is placed on the case of **Dina *Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR).*** 40 Additionally, thatlack of proof of payment of purchase price vitiates any claims that due process was ever followed to shield 2nd Defendant as an innocent purchaser of value. The court is referred to the case of **Kariuki (As the Administratrix of the Estate of the Late Kariuki Kamau (Deceased)) v Mugambi (As the Administratrix of the Estate of the Late Leah Mukami Mandania (Deceased)) & another (Environment and Land Appeal E021 of 2024) [2025] KEELC 5586 (KLR) (28 July 2025).** 41 The plaintiff pointed thatthe only reason the 1st Defendant could have agreed to ‘sell’ the said parcel of land to the 2nd Defendant, was because she had no alternative to school her kids. The 2nd Defendant having reneged on his promise to school the 1st Defendant ‘s kids, taken away the insurance policy and failed to give the 1st Defendant the money or used the same to educate her kids, she was under duress and was forced by circumstances perpetuated with the 2nd Defendant to part with the only asset her husband had left behind for his children – the parcel of land. To buttress this point counsel cited the case of ***Euromec International Limited v Shandong Taikai Power Engineering Company Limited (Civil Case E527 of 2020) [2021] KEHC 93 (KLR) (Commercial and Tax) (21 September 2021) (Ruling*)** on applicability of the doctrine of duress and undue influence as vitiating factor to contracts. 42 On the alternative defence of adverse possession the plaintiff urged that a claim of adverse possession cannot be used to sanitize an already illegal and unlawful title. That the 2nd defendant did not sue the estate claiming adverse possession and therefore in turn did not prove adverse possession. Without bringing a claim under adverse possession he cannot use it to claim the parcel of land he occupies. 43 Moreover that where an action is based on fraud or mistake, the period of limitation does not count until discovery. The court is referred to the cases *of* ***Kariuki (As the Administratrix of the Estate of the Late Kariuki Kamau (Deceased)) v Mugambi (As the Administratrix of the Estate of the Late Leah Mukami Mandania (Deceased)) & another (Environment and Land Appeal E021 of 2024) [2025] KEELC 5586 (KLR) (28 July 2025)*** *and* ***Masogo (Suing as the Administrator and Personal Representative of the Estate of Domnick Masogo Umaya) v Adundo & another (Environment and Land Appeal E024 of 2024) [2025] KEELC 4118 (KLR) (29 May 2025)*** 44 The court was invited to find the plaintiffs claim as proved on a balance of probabilities and merited. **THE 2ND DEFENDANTS SUBMISSIONS** 45 The 2nd defendants’ submissions were filed through the firm of Rachier & Amollo Advocates and are dated 10/12/2025. Numerous issues were identified as falling for determination as summarized here below; 46 Whether the Plaintiff's suit against the 1st Defendant was maintainable if the suit against the 1st defendant is not - Noting that the 1st defendant died during the pendency of these proceedings and drawing from the provisions of Order 24 of the Civil Procedure Rule 2010, it is submitted that the Plaintiff could not continue prosecuting a cause of action against a deceased person, nor could he purport to advance positions that only the 1st defendant's estate could legitimately raise in answer to the 2nd Defendant's title. That having failed to take the necessary procedural steps to substitute the 1st defendant, the Plaintiff forfeited the right to litigate against the 1st Defendant or seek remedies capable of binding her estate and the claim, in so far as it relates to the 1st Defendant, must fail. Reliance is placed on the **Court of Appeal case of CKM v ENM & Another (Civil Appeal 250 of 2019) 2024 КЕСА 293 KLR.** 47 It is further urged that **t**he Plaintiff's claim is derivative, that is, that the 2nd Defendant's title must fall only if the 1st Defendant's title is first impeached with clear fault established against the 1st Defendant. There exists no foundation upon which the claim against the 2nd Defendant can be anchored having been sued only as a successor in title. The 2nd Defendant's alleged liability is contingent on the success or failure of allegations against his transferor (the 1st Defendant). 48 Who bore the burden of proof with respect to the question whether the suit property had been lawfully transmitted to the 1st defendant pursuant to the provisions of the law of succession? In this regard it was asserted that the transfer from the deceased to the 1st Defendant was not effected pursuant to the provisions of the Law of Succession*.* 49 That by advancing the affirmative allegation of non-compliance with succession formalities, the Plaintiff was under a legal duty to adduce clear, cogent, and admissible evidence capable of demonstrating any irregularity, defect, or impropriety in the transfer. It is posited that given the lack of evidence of registration of the deceased as the absolute proprietor of the suit property, any claim to succession would remain confined to the adjudication records, which the Plaintiff failed to call for or even adduce through the Director of the Land Adjudication. 50 That there was absolutely no material led by the plaintiff on the basis of which this Court would make a determination regarding Whether the suit property had been registered into the name of the deceased under Section 27 of the Registered Land Act as at the date he died; who as between the deceased and his wife (the 1st Defendant) was registered as the absolute proprietor of the suit land under section 28 of the Land Adjudication Act as read together with Section 27 of the Registered Land Act; Whether the transfer into the name of the 1st Defendant was done pursuant to the Law of Succession Act; Who between the Director of Land Adjudication and the Chief Land Registrar held the succession records relating to the suit property, and the exact point at which the succession, as noted in the green card, actually occurred; specifically, whether it took place while the records were still with the Director of Land Adjudication or after they had been transferred to the Chief Land Registrar. Reliance is placed in the case of ***Ongele (Suing as the Administrator of the Estate of the Late Maricus Ongele Chore (Deceased) vs Odhiambo & Another (Environment and Land Court case 48 of 2012) 2025 KEELC 5555 (KLR) (24 July 2025)*** 51 It is urged that having failed to discharge the burden of proof that lay on him the plaintiff’s case must be dismissed. 52 Whether the plaintiff's parole evidence to the effect that the transfer of the suit property into the name of the 1st defendant was not done pursuant to the Succession Act is admissible - It is contended that the Green Card produced by the Plaintiff, certified as a true copy of the original, confirmed that the transfer from the deceased to the 1st Defendant was indeed carried out pursuant to the Law of Succession Act, noting thereon that succession had been affected. That pursuant to the provisions of section 97 of the Evidence Act no oral testimony or extrinsic evidence could be received from the plaintiff to be used to contradict, vary, or supplement the written record to wit the green card. That the mere fact that copies of the succession documents were not located in the Land Register by the Directorate of Criminal Investigations cannot be taken as proof that succession did not occur. 53 Further that the green card was never shown to have been impugned by the office of the Chief Land Registrar, nor was any witness called from the Registry to challenge or refute its authenticity or the accuracy of its contents. In the circumstances, this Court ought to accept the Green Card as conclusive and reliable proof of the relevant entries therein and render the oral testimony of the Plaintiff inadmissible. 54 Whether it was incumbent upon the 2nd defendant to inquire into the manner in which the suit property was registered in the name of the 1st defendant - Highlighting the provisions of section 39(1)(a) of the Registered Land Act, which encapsulates the legislative intention to protect innocent purchasers and render the register conclusive, it is contended that the plaintiff cannot run away from these provisions by seeking refuge in the decision of ***Dina Management Ltd vs County Government of Mombasa & 5 others***. The decision in Dina Management Ltd cannot be read as rewriting Section 39(1)(a) of the Registered Land Act, nor as imposing a retrospective investigative duty on purchasers where Parliament expressly removed it. Properly interpreted, Dina Management only envisages and further imposes a duty of due diligence, upon persons dealing with a proprietor of land, to inquire only into matters that fall outside the protection afforded by Section 39(1)(a) of the Registered Land Act. It does not impose - nor can it be read as imposing - an obligation upon purchasers to investigate matters that Section 39 expressly shields them from, or to reconstruct the historical circumstances under which a proprietor became registered. 55 It is urged that legislative provisions CANNOT be abrogated or annulled by a Court decision however high the position occupied by such a court. 56 It is averred that by dint of section 162(1) of the Land Registration Act later jurisprudence cannot retrospectively rewrite, expand, or dilute the statutory protections and obligations that governed transactions under the Registered Land Act. That transitional provisions under the Land Act operate to preserve and continue to govern rights and obligations arising under repealed land statutes. Reliance is placed in **ELC Civil Suit 369 of 2013 Barclays Bank of Kenya Limited vs Attorney General and Another [2015] КЕНС 7147.** 57 Whether any alleged irregularity attending to the transfer from the 1st to 2nd defendant would operate to vest the suit property upon the estate of the deceased – it is urged that while the Plaintiff contends that the absence of documents such as the sale agreement, consent to transfer, stamp duty receipt, pre-purchase searches, evidence of alteration of the payment method, or any proof or acknowledgment of payment for the parcel purportedly purchased, suggests impropriety in the transaction the same lacked merit. The same were adequately explained by the 2nd Defendant as having been lost during a robbery. 58 The defendant added that by failing to act promptly within the 12-year limitation of actions period for land transactions the Plaintiff ensured that the 2nd Defendant would be deprived of the opportunity to preserve records or defend the transaction effectively. The court is referred to Civil Application no, ***NAl 22 of 1981 between Gathoni and Kenya Cooperative Creameries Ltd*** *and* ***Rawal vs Rawal [1990] KLE 275*** 59 Moreover it is submitted the Plaintiff, who was not privy to the sale agreement, could not credibly speak to its existence or non-existence. That PW2 written statement — which he adopted in court - expressly recorded that the 1st Defendant informed him she did not receive the money directly, but that the 2nd Defendant undertook to educate her children in exchange for the land. In other words, payment of school fees constituted the agreed consideration for the transfer. 60 Drawing a distinction between 'a transfer from the deceased to the 1st Defendant' and 'a transfer from the 1st Defendant to the 2nd Defendant. It is submitted that only an irregularity vitiating the transfer from the deceased to the 1st Defendant would operate to return the property to the name of the deceased's estate. If no irregularity whatsoever is proved that would vitiate the registration of the suit property into the name of the 1st Defendant, then any other irregularity that purported to vitiate the transfer from the 1st defendant into the name of the 2nd defendant would NOT ipso facto operate to vest the property into the deceased' estate. 61 Whether the transfer from the 1st defendant to the 2nd defendant was vitiated by duress and /or undue influence -It is reiterated that there was no duress DW-1, DW-2, DW-3, and DW-4 who were all witnesses to the actual transaction between the 1st defendant and 2nd defendant all testified that the 1st Defendant voluntarily disclosed her reasons for selling the property. That assuming a promise to educate the children of the deceased existed, a promise alone does not, in law, constitute coercion or undue influence capable of vitiating a sale transaction. That only the 1st defendant could testify to the question whether she was acting under any duress or undue influence when she sold the suit property to the 2nd defendant. None of the Plaintiff's witnesses could testify to such facts without violating the hearsay rule. Support is drawn from the case of **Ayub Murila Muruli v Republic [2017] КЕНC 9657 (KLR**). 62 Additionally, is urged that under Order 2 Rule 10(1) of the Civil Procedure Rules particulars of duress and/or undue influence must be given in the plaint before any evidence alleging the same can be admitted by a court of law. This was not done. Reliance was placed in the case *of* ***Kimeu & 3 others v Kiio (Environment and Land Appeal E035 of 2024) [2025] KEELC 8467 (KLR) (2 December 2025*)** where court disregarded claims that were not pleaded as required under order 2 Rule 10 (1): and **Mwaringa v Waashe (Civil Appeal E012 of 2022) [2025] KECA 297 (KLR) (21 February 2025) (Judgment)** 63 Whether the claims of intermeddling with the estate of the deceased were proved - The defendant added that allegations of intermeddling can only be made by an absolute proprietor and therefore the allegations of intermeddling by the estate of the deceased lack merit. That under section 32 of the Law of succession Act, an agricultural land (which is defined as land which was being used by the deceased for agricultural purposes, but which was not registered in his name at the time of his death, and in respect of which he held no certificate of registration under section 27 of the Registered Land Act as read together with section 28 of the Land Adjudication Act) does not form part of the estate of a deceased person and is expressly excluded from intestate succession. Consequently, even the authorities relating to the question of intermeddling which have been cited in the Plaintiff's submissions lack in merit 64 Whether the 2nd defendant has acquired a prescriptive title to the suit property in addition to the registered title - The defendant asserted that his occupation meets each legal element of prescriptive title: (a) it was exclusive and actual, (b) it was open and notorious, (c) it was peaceful and uninterrupted, and (d) it continued well beyond the twelve-year statutory threshold. The court is referred to the case of **Lewa *v Mwagandi (Civil Appeal 56 of 2014) [2015] KЕСА 532 (KLR) (17 July 2015) (Judgment)****.* 65 That therefore to uphold the title of the 1st Defendant, in the manner purported by the estate of the deceased, after 16 years of sale, open and public occupation and possession, uninterrupted possession coupled with loss of documents necessary to mount a proper defence would be extremely prejudicial to the 2nd Defendant. 66 That even assuming that the Plaintiff could Impugn the 2nd Defendant's registered title, the Plaintiff would still be barred by the doctrine of prescription, Equity, statute and judicial policy all frown upon a litigant who slumbers on his rights while another openly occupies, improves, and develops land into an established homestead only to arise 16 years later seeking recovery 67 Whether the plaintiff admitted the legality of the 2nd defendant's proprietorship – it is submitted that in the course of his testimony and from the evidence availed by the 2nd Defendant, via the whatsapp chats the Plaintiff admitted the legality of the 2nd Defendant's proprietorship when he stated ‘he is not interested in the portion of land on which the 2nd defendant had built his home. PW-1 admitted to the Directorate of Criminal Investigations that indeed there was a sale of a portion of Sakwa /Migwena/1193 to the 2nd Defendant, but he only differed with the actual acreage sold. It is however urged that since the entire suit property cannot be severed from the portion the Plaintiff claims to be interested in (because they are comprised in one title), it follows that the proprietorship of the whole title is admitted. 68 Whether the 2nd Defendant promised to educate the deceased's children and whether such private putative promises have anything bearing on the Plaintiff's entitlement to the reliefs sought in the Plaint. It is urged that a bare promise unsupported by consideration is unenforceable in law; it cannot ground a right, compel performance, or be invoked as a basis for rescinding a valid transfer. At most, it would amount to a moral or voluntary undertaking, incapable of affecting title or vesting enforceable rights. 69 Whether the 2nd defendant was under any obligation to adduce evidence proving that the suit property had been sold to him. It was submitted that the 2nd Defendant carried no obligation to prove the fact of sale of the suit property, and therefore he was under no duty to produce documentary evidence in support thereof. **ANALYSIS AND DETERMINATION** 70 I have perused and considered the pleadings, the oral testimonies of the witnesses who testified and the documentary evidence adduced herein. I have equally perused and considered the robust written submissions and authorities filed herein by the Learned Advocates for the parties. The court has identified the following issues for determination. 1. Whether the Plaintiff has proved his claim to the required standard. 2. Whether the failure to substitute the 1st defendant is fatal to the Plaintiffs claim 3. Whether the 2nd Defendant is a bonafide purchaser for value without notice 4. Whether the deceased title has been extinguished by dint of adverse possession and prescription 5. Whether the Plaintiff is entitled to the reliefs sought – what are the appropriate reliefs to issue **Whether the Plaintiff has proved his claim to the required standard** 71 My understanding of the Plaintiffs claim is that he brings this suit as the legal representative adlitem of the estate of his late father Amos Juma alias Malowa Abura whom I will refer to as Malowa. The suit is against his mother (herein Rose) being the 1st Defendant whom he accuses of transferring the parcel No. South Sakwa/Migwena/1193 measuring approximately 3.2 Ha belonging to his deceased father Malowa to herself without undertaking succession following her husbands (Malowa) death and thereafter subdivided the same into two parcels. Following this subdivision Rose transferred one of the resultant parcels Sakwa/Migwena/1654 to the 2nd Defendant (herein Joseph) who used to be a very close of Malowa. According to the plaintiff Joseph coerced Rose to transfer the land to herself and then to him. The actions of both Defendants are termed unlawful, amounting to intermeddling thus null and void. 72 The 2nd Defendant on the other hand avers that he does not know how the 1st defendant got to be registered as proprietor. His case is that he never coerced Rose to sell the land to him but it is Rose who approached him to buy part of the land for purposes of educating the deceased children as she had no other means of raising funds for the same. That since she was the registered owner of the mother parcel, he agreed to purchase a portion thereof. The two entered into a sale agreement whereupon the land was subdivided and he got the portion being South Sakwa/Migwena/1654. That he is a bonafide purchaser for value without notice of any defects/claims and is entitled to the said portion by dint of his long and peaceful possession or adverse possession. 73 It is trite that a party who alleges must prove, and that where no sufficient evidence is tendered, the claim must fail. Section 107 (1) and (2) of the Evidence Act Cap 80, Laws of Kenya is instructive and provides; - ***Whoever desires any Court to give Judgment as to any legal right or*** ***liability dependent on the existence of facts which the assets must*** ***prove that those facts exist.*** ***107(2) when a Person is bound to prove the existence of any fact, it is said that the burden of proof lies on that Person.*** 74 In the case of **Kirugi and Another v Kabiya & 3 others [1987] KLR 347** the Court of Appeal held that; “*The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”.* Also see **Kanyungu Njogu v Daniel Kimani Maingi [2000] eKLR** and **Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR,** 75 The plaintiff who testified as PW1 produced a grant of letters of administration dated 15/02/2018 issued to him under Succession Cause No. P.M 364 of 2017 in the Principals Magistrate Court at Bondo in respect of the estate of Amos Juma Abelo (Pex 1). This therefore gave him the locus standi to file these proceedings. In [***Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama***](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/250)***[2014] Eklr*** *the* Court of Appeal held that- **“...*a litigant is clothed with locus standi upon obtaining a limited or full letters of administration in cases of intestate succession...”*** 76 The plaintiff averred Malowa was the first registered owner of the mother title being parcel No. South Sakwa/Migwena/1193. This is contested by the 2nd defendant who pleads that Malowa died before he was registered as absolute proprietor under the Registered Land Act. 77 The burden of proof was on the plaintiff to prove that his father was the first registered proprietor of South Sakwa/Migwena/1193. PW1 produced Adjudication Record for South Sakwa/Migwena/1193 (Pex 4) and Green Card for South Sakwa/Migwena/1193 (Pex 10). PW1 also adduced a copy of the death certificate showing Malowa died on 2/4/2002. 78 My review of the green card shows that the 1st edition of the parcel South Sakwa/Migwena/1193 opened on 24/6/74 and which also tallies with the adjudication record produced. Malowa Abura was registered as the first registered owner on 24/6/1974 (see Entry No.1). The green card is certified by the District Land Registrar Bondo. Infact, it shows that the 1st defendant was registered later as the 2nd registered owner on 29/5/2003. 79 PW1 conceded in cross examination that at the time of Malowas death there was no title in his name. While that may be correct because the green card bears no such entry, the 1st entry suffices to confirm that he was the 1st registered owner. I say so because for the repealed RLA under which the parcel register was opened, it is the register that confirms registration. This court is therefore satisfied that the first registered proprietor of the suit property was the deceased Malowa Abura. 80 Having satisfied myself that the parcel No. South Sakwa/Migwena/1193 was first registered to Malowa, I must then proceed to interrogate the claims of intermeddling with a deceased property leveled against Rose the 1st Defendant. 81 What is intermeddling? The court was referred to several authorities in answer to this. I need not reinvent the wheel. These are as follows; - 82 The caseof Re **Estate of M`Ngarithi M`Miriti (2017) eKLR the** court stated thus; - ‘Before I delve into the distribution of the estate, I should first settle the issue of intermeddling. Courts have said time and again that any person who without the authority of the Law of Succession Act or any other written law or grant of representation, takes possession or disposes of, or otherwise intermeddle with the free property of the deceased is guilty of a criminal offence and is answerable to the rightful executor or administrator of the extent of the assets he has intermeddled with. ………Whereas the law of succession does not define what intermeddling with the property of the deceased is, there is ample judicial decisions on acts which may amount to intermeddling. For instances, in the case of ***BENSON MUTUMA MURIUNGI vs. C.E.O. KENYA POLICE SACCO & ANOTHER [2016] eKLR the court observed that: “Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act***. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law….” 83 In **Veronica Njoki Wakagoto (deceased) [2013] eKLR; Re Estate of Paul M’Maria (Deceased) [2017] eKLR,** the court stated**; -** ***“In this matter the respondent sold property belonging to a dead person without authority as letters of administration had not yet been made to him. The fact of having petitioned for the letters did not clothe him with any authority. He and Felix Kinuthia intermeddled with the estate, and they no doubt committed an offence under section 45(2) (a) of the Act.*** 84 Arising from the above therefore before one can deal with a property belonging to a deceased person, they must have a confirmed grant. Additionally, the property must meet the test of being a free property of the deceased which I will revisit shortly. It is however noteworthy that the only exception would be where one is authorised by law – see the case of Re ***Estate M’Etirikia Nkatha (deceased) [2021] eKLR*,** where the court indicated that any party seeking to transfer a deceased property before confirmation of a grant has to make an application for partial confirmation of the grant to allow them to sell a portion thereof. 85 Did the 1st defendant therefore intermeddle? I have already made a finding that the 1st registered owner of the suit property was Malowa. Was the parcel free property of the deceased? In the case of ***Mbindyo & Another V Mbindyo (Environment & Land Case Civil Suit E045 of 2022 (2025) KEELC 4305 (KLR) (Ruling)*** the court stated thus; - 14. When exercising such jurisdiction, the, the probate court deals with free property of the deceased person, ***which is usually the property that the deceased was legally competent to freely dispose off during his lifetime and in respect of which his interest had not been terminated by his death (see the definition from the interpretation section of the LSA.)*** 86 It is not in dispute that there was no previous sell of the parcel No. South Sakwa/Migwena/1193 before the death of Malowa and the subdivision and sell thereof. It was therefore free property of the deceased. 87 The issue to be interrogated therefore is how did the 1st Defendant become the registered proprietor of the parcel No. South Sakwa/Migwena/1193 as seen in the Green Card Produced by the Plaintiff. Entry No.2 dated 29/5/2003 shows Rose Akon’go Juma the 1st defendant was registered thereof by way of Succession and which is expected because her husband Malowa expired on 2/4/2002. 88 However the above entry is highly contested by PW1 whose evidence in chief was that there has never been succession with regard to his father Malowas estate following his death in 2002. He told the court that the remarks ‘Succession’ bore no particulars of the citation of the proceedings under which Rose Succeeded her husband property and asserted the only proceedings ever filed were the proceedings in Bondo where he PW1 obtained the grant he has produced herein. 89 I have looked at the green card for parcel 1193 herein. Entry No. 2 as already noted is the registration of Rose on 29/5/2003 as the proprietor. PART B CONSIDERATION AND REMARKS shows that the transfer was pursuant to ‘SUCCESSION’. Again, the burden of proof lay on the plaintiff to prove there was no succession to support the entry. PW1 placed emphasis on the absence of a succession cause number. But the court is of the considered view that absence of the said particulars perse does not support the fact that there was no succession. As long as the green card shows that the transfer to Rose was by way of succession/transmission then this court will not impugn it by the mere absence of a cause number. 90 PW1 testified in cross examination that the Land Registrar would have to satisfy himself while dealing with the property of a deceased proprietor that the requisite documentation of proof of succession were availed before making any entry. Only the Land Registrar would be the appropriate person to confirm whether or not the succession was a façade or that such documents relating to succession exist to support the entry or did not exist considering that the 1st Defendant was nolonger available to give evidence in this regard. The plaintiff did not implead the land registrar to the proceedings neither did he apply for the requisite summons for production of the parcel file. 91 Further I had no evidence placed before me such as a letter from the court at Bondo to confirm that they have never handled any succession cause previously by Rose in respect of the deceased estate. 92 The court can only presume that the transfer to Rose was lawfully undertaken in the absence of evidence in rebuttal thereof. In this regard I will rely on the case of **Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] KECA 27 (KLR)** where the Court of Appeal rendered itself thus; - ***86.‘We note that the 1st to 4th respondents contend that the surrender was unlawful. There is a presumption that all acts done by a public official has lawfully been done and that all procedures have been duly followed. The onus is on the 1st and 4th respondents to prove otherwise. They have failed to do this. A bare allegation that a lawful procedure was not followed is not proof of the allegation. It was open to the 1st to 4th respondents to make an application before the trial court to compel the Commissioner of Lands to produce the original instrument of surrender, the memorial and the endorsement thereon. The 1st to 4th respondents failed to do so.’*** ***87.In our view, a party making a claim for a declaration of title must succeed on the strength of his case and not on the weakness of the defence. We are however cognizant that where the defendant’s case supports that of the plaintiff and contains evidence on which the plaintiff may rely, the plaintiff is entitled to rely on and make use of such evidence. In a claim for declaration of title, as the instant case, the onus is on the Petitioners to satisfy the Court on the evidence produced by them that they are entitled to the declaratory orders sought.’*** 93 The upshot of the foregoing is that assertions must be proved, the plaintiff failed to discharge the burden of proof and I must decline to find that there was intermeddling with Malowas property. 94 But I must at this juncture address the failure by the Plaintiff to substitute the 1st defendant with the legal representative and what it would portend for these proceedings. 95 Order 24 Rule 4 of the Civil Procedure Rules 2010 provides for the effect of death of one of several defendants or of sole defendant. It states as follows- “(1) Where one of two or more defendants dies and the cause of action does not survive or continue to the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Where any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant (3) Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant. 96 It is not in dispute that the 1st Defendant died during the pendency of these proceeding in 2023. The record does not bear any application for substitution as contemplated under the above provisions. Since the suit against the 1st defendant survived her death, consequently, the suit against the 1st defendant abated after one year. Counsel for the Plaintiff did not respond to this issue despite having leave to respond further on any new issues of law raised by the Defendant. 97 On the issue of substitution Counsel on record for the 2nd defendant referred this court to the Court **of Appeal case of CKM v ENM & Another (Civil Appeal 250 of 2019) 2024 КЕСА 293 KLR** which I have read and agree with to the extent that no substitution of the 1st defendant herein was undertaken within the statutory period or at all. The estate of Rose the 1st Defendant has not been sued, the suit abated and it therefore means effectively the case against the 1st defendant collapses. 98 However I must note that in **CKM Vs ENM (supra)** the land in issue was registered in the name of the deceased 1st defendant therein while in the present suit the contested title is against the 2nd defendant being South Sakwa/Migwena/1654 was in the name of the 2nd defendant and therefore the suit against the 2nd defendant is alive. It has been urged that the 2nd defendants title can only be impeached/cancelled only if the 1st defendant is found culpable and since the suit collapsed, then then there would be no basis upon which the 2nd defendants title can be impeached. 99 This court indeed notes the root of the 2nd Defendants title is the 1st Defendants title. The 1st Defendants title has not been declared null and void by this court. In any event I would not do so in the absence of the joinder of 1st defendants’ estate. The court respectfully agrees that there would be no basis upon which to impeach the 2nd defendants title. 100 However assuming this court were wrong in the above conclusion then I would state that the 2nd defendant suit did not collapse with the failure to substitute Rose estate. He has been sued as the registered owner of the parcel 1654. 101 The legal implications of a registered title were well captured in **Rosemary Wanjiru Njiraini v Officer in Charge of Station, Molo Police Station & another [2017] eKLR Sila Munyao J** as follows; - 17. It has been the law, and its the law, that the Certificate of Title issued to a person is prima facie evidence, that the said person holds title to the land noted therein. In the pre-2012 land regime, this was provided for in Section 28 of the Registered Land Act and Section 23 of the Registration of Titles Act which were drawn as follows: - ***RLA S.27.*** *Subject to this Act -* ***(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;*** ***(b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied and expressed agreements, liabilities and incidents of the lease.*** ***RTA S.23 (1) The certificate of title issued by the registrar to a purchaser of land upon a transfer or transmission by the proprietor thereof shall be taken by all courts as conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which he is proved to be a party.*** ***(2) A certified copy of any registered instrument, signed by the registrar and sealed with his seal of office, shall be received in evidence in the same manner as the original.*** ***18. The current law is in Section 26 of the Land Registration Act, 2012, which provides as follows: -*** ***26. (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.*** ***(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.*** ***19. It follows that when a person has been issued with a Certificate of Title, that title, prima facie, demonstrates that the individual named therein is the proper owner of the freehold or leasehold title noted in the said certificate. The law already presumes that the said title is a good title, and therefore if another person claims that the said title is not genuine, then the burden of proof is upon the person claiming as much. Such person must tender evidence, that despite what is noted in the Certificate of Title or register, the said title is not a good title and can seek to have it revoked. In our instance, prima facie, the petitioner is a genuine holder of the title to the suit property. If the respondents hold the opinion that the title of the petitioner is not genuine, then the burden of proving as much is on them. It is them who need to bring in evidence that the land in dispute was reserved as police station land; that the allocation of the said land was irregular; and that the petitioner ought not to have been issued with the title to the same. That burden is not upon the petitioner. It cannot therefore be argued that the petitioner has not called evidence to prove that the allotment of the land was regular; or that the petitioner has not called evidence to show that the acreage of the police station land was 4 Ha and not 8 Ha. That was the burden of the respondents to discharge.’*** 102 The implications of the above is that a title may be challenged on the grounds of fraud to which the holder is found to have participated in, illegalities and or failure to follow procedure, misrepresentation and even a corrupt scheme. 103 With regard to fraud the Court of Appeal in **Mombasa, Civil Appeal No. 312 of 2012; - *Emfil Limited Vs Registrar of Titles Mombasa & 2 others [2014] eKLR***held as follows; - **“*Allegations of fraud are allegations of a serious nature normally required to be strictly pleaded and proved on a higher standard than the ordinary standard of balance of probabilities”.*** 104 The plaint dated 19/05/2020 does not bear any particulars of fraud and I will not dwell on the issue. 105 The main ground raised is the issue of intermeddling which I have already declined to make a finding that intermeddling has been proved. I have also made a finding that the transfer to Rose the 1st defendant was pursuant to succession since no evidence was led by the plaintiff to controvert this. Moreover, only the 1st defendant could intermeddle with the estate of Malowa and not the 2nd defendant. At the point of the transfer to the 2nd defendant the suit property 1654 was not part of the free property of Malowa. PW2 conceded in cross examination that the 2nd defendant is not a family member and had no obligation to take out a grant. 106 It has also been urged that the 2nd defendant coerced the 1st defendant to procure the title and subdivide the same, however all the witnesses that testified for the plaintiff indicated that the 1st defendant wanted to sell part of the land and use the proceeds to pay School fees for her children. Moreover, PW1 agreed that he was a minor and he could not confirm who approached the other in respect of the sale of the land. The 1st defendant having died was not available to inform the court she was coerced. Her estate was not sued subsequently to answer to this allegation. In this regard it this court’s finding that the plaintiff did not discharge the burden of proof. The allegations of coercion were not proved against the 2nd defendant. 107 The 2nd defendant further pleads that he was an innocent purchaser for value without notice of any irregularity on the part of the 1st defendant. His evidence is that he did not take part in the transfer of the land from Malowa to the 1st defendant. He purchased his portion when the land was already in the 1st defendants name. PW1 conceded in cross examination that the 2nd defendant is not the land registrar and cannot have affected the registration of the parcel from Malowa into the 1st Defendants name. To me based on the evidence before court there was no evidence led by the plaintiff linking the 2nd defendant to this registration. What about the transfer of South Sakwa/Migwena/1654 to the 2nd defendant? 108 During his oral testimony PW1 reiterated that he never saw a sale agreement between the 1st defendant and the 2nd defendant in support of the above transfer. At paragraph 7 of the plaintiffs Reply to the 2nd Defendants defence it is averred there has never been a sale agreement and no documents attached to show the sale and subsequent registration. The 2nd defendant’s pleadings emphasise the existence of the sale agreement which was signed in the presence of witnesses. DW3 and DW4 corroborated this evidence. However, it is true DW2 the 2nd defendant did not produce a sale agreement. His explanation is that he was robbed in Nairobi and lost the same but he tendered no OB in this regard. 109 The 2nd defendant case is that indeed he was approached by the 1st defendant who offered the sale of the land to enable her educate the children and he agreed. The evidence of the witnesses indicates there existed arrangements from inception that is the year 2002 when Malowa died for the sale of the portion of land by the 1st defendant to raise money for the education of her children. PW2 Koluoch George Williams told the court the 1st defendant informed him of the 2nd defendants promise to pay school fees in exchange for land. DW3 Julius Nyerere Ogam the chief testified that the 1st defendant and 2nd defendant informed him of the intention to sell the land. DW4 told the court the 1st defendant informed him she was selling the land to educate her children following the death of her husband. 110 To me the absence of a sale agreement is neither here nor there based on the indication above there existed arrangements to sale the land to the 2nd Defendant. I’m also aware of the amendments to the law of contract Act of June 2003 requiring a contract for disposition of land to be in interalia in writing. However, my review of the said amendment applies to instances such as of claims for specific performance. In the present case it is the plaintiff who has sued and not the 2nd defendant. 111 Then there is the allegation with regard to consideration. PW1 insisted there was no consideration to confirm the sale. The 2nd defendant evidence is that the 1st defendant did not want to handle the cash but it was her desire that the purchase price is used towards payment of the school fees. This evidence was not controverted. DW2 presented a bundle of receipts showing school fees paid for the deceased children including the plaintiff. PW1 conceded in cross examination that the 2nd defendant paid school fees regardless of the amount paid. PW1 also confirmed he received the policy maturity proceeds. This confirms the assertion that DW2 used his own money to educate the deceased children. 112 Moreover the 2nd defendant was under no obligation to pay school fees for Malowas children which PW2 agreed with during cross examination. I would therefore hesitate to make a finding that there was no consideration paid and I must agree with the position that the school fees and money spent on upkeep of the deceased children sufficed for consideration based on the arrangements between the 1st defendant and the 2nd defendant. 113 In arriving at the above conclusion the court is guided by the case of **Moi University Vs Ziapplyne & Others (2022) KASC** where the Supreme Court of Kenya discussed the ingredients that underpin a valid contract and held that sufficiency of consideration was not a material factor. 114 This court therefore finds no reason to vitiate the arrangements of the sale of the portion of the land between the 1st defendant and the 2nd defendant. 115 It is pleaded that the 2nd defendant has enjoyed possession of parcel 1654 for more than 16 years since 2004 when he was registered as proprietor and has enjoyed a quiet and peaceful possession. At paragraph 17 of the 2nd defendants defence it is pleaded that even if the 2nd defendant’s proprietorship were to be capable of being impeached for whatever reason, the 2nd defendant would still claim prescriptive title to the parcel by way of adverse possession and enjoyment of the land parcel for more than 12 years. 116 The question that arises is whether this plea is properly before me in the absence of a counterclaim. Counsel for the plaintiff posits that a claim of adverse possession cannot be used to sanitize an already illegal and unlawful title and that the 2nd defendant did not sue the estate claiming adverse possession and therefore in turn did not prove adverse possession. Without bringing a claim under adverse possession he cannot use it to claim the parcel of land he occupies. Further that where an action is based on fraud or mistake, the period of limitation does not count until discovery. 117 I will not belabor the issue of adverse possession. Firstly, there are no particulars of fraud or mistake that were pleaded to support the allegation that time stopped running for purposes of limitation. Secondly there is no counterclaim. Thirdly it is trite that under the provisions of sections 7,13, and 38 of the Limitation of Action Act a claim for adverse possession only lies on land registered in the name of another person. The 2nd Defendant produced a title deed for parcel 1654 registered in his name. He cannot claim adverse possession over land registered under his own name. 118 But I note from the proceedings that the 2nd defendant has pleaded at paragraph 18 that the plaintiff has on numerous occasions both orally and in writing maintained that he is only claiming a portion of land behind the 2nd defendants’ parents’ home. This is termed as an admission of proprietorship. DW2 produced whatsapp messages dated 23/5/2020 between himself and PW1 (see page 48 – 50 of the 2nd defendants’ bundle). 119 A look at the above communication shows the plaintiff referring to a meeting over the land and requesting the 2nd defendant to surrender the land back to them. The same also culminated into a clarification by the plaintiff that he was not interested in the entire parcel 1654 but a portion. This evidence was not controverted by the Plaintiff. PW1 confirmed in cross examination that he had communicated with the 2nd defendant where he indicated he was not interested in the portion where the 2nd defendants house stands but the adjacent land which he also reiterated in re-examination. 120 I think as a court I cannot close my eyes to the above admission except that on inquiry by this court the plaintiff placed the size of the portion where the deceased stands as quarter and acre. I was not convinced by this answer as it could not be authenticated since I had a title indicating an acreage of 1.44 Ha. In any event there was no evidence adduced by the plaintiff that Rose sold only the portion where the 2nd defendants house stood. PW1 was a minor anyway and conceded he could not confirm the arrangements. Based on the plaintiff’s own admission alone I would not disturb the occupation in parcel 1654. 121 What I can gather from these proceedings is that the mother title was approximately 3.2 Ha, parcel 1654 measures 1.44 Ha leaving the balance for the children. I see a lady who had no intention of depriving her children of the entire property. She saw the importance of not disposing the entire land. The plaintiff has to be contended with the remainder at the pleasure and mercy of the 2nd Defendant. 123 The above analysis speaks to all the issues identified by this court and have demonstrated why the plaintiffs claim must fail. 124 The upshot of the foregoing is that the Plaintiff has failed to prove his claim to the required standard against the 2nd defendant. 125 Is the plaintiff entitled to the orders sought? The prayers sought by the plaintiff have already been outlined at the beginning of this judgement. Having failed to prove his claim against the 2nd defendant the suit is hereby dismissed noting that the suit against the 1st defendant abated. 126 It is trite that based on the provisions of section 27 of the Civil Procedure Act costs ordinarily follow the event. The court is however clothed with discretion depending with the circumstances of each case. The 2nd Defendant has always treated the plaintiff and his siblings being the deceased children as if they were his own. I will therefore direct that each party shall bear his own costs of these proceedings. 127 The plaintiff’s suit is hereby dismissed and each party shall bear its own costs of these proceedings. Orders accordingly. **Delivered** and **Dated** This **24th Day** of **June 2026** **HON. LADY JUSTICE A.E. DENA** **JUDGE** **24/6/2026** **Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:** Mr. Que for the Plaintiff Ms. Adunga for 2nd Defendant Court Assistant – Abiud Wekesa