https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4293

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC CASE NO. 57 OF 2016** **SYLVESTUS GITHINJI MUGO…………….…………1ST PLAINTIFF** **ROBERT MUGO MWANGI………………………..2ND PLAINTIFF** **VERSUS** **HANNAH NJOKI MUGO..……………………….1ST DEFENDANT** **FREDRICK MWNAGI MUGO…………………..2ND DEFENDANT** **PATRICIA WAMUYU MUGO…………….……..3RD DEFENDANT** **LUCIANA WANJIRU MUGO…………………... 4TH DEFENDANT** **CHARLES KARUGU MUGO …………………… 5TH DEFENDANT** **JUDGMENT** 1. The Plaintiffs are the sons and grandson respectively of the late Lawrence Mugo Mungai and his first wife, Tabitha Wanjiru Mugo. The late Lawrence married a second wife, who is sued as the 1st Defendant. The 2nd to 6th Defendants are the children of the late Lawrence Mugo and Hannah Njoki Mugo. 2. The Plaintiffs filed suit against the 1st Defendant on 19/8/2016 and averred that they were the registered owners of the parcels of land known as Mbeti/Kiamuringa/1986, 1987, 1988, 1989, 1990 and 1991, which they claimed to have received from the late Lawrence Mugo. Further, they averred that before his death, the late Lawrence Mugo devised most of his property to his two families and the 1st Defendant and her children were granted 8 prime properties in Ruai and a residential house in Ngomongo area in Nairobi. The Plaintiffs claimed that the suit land was granted pursuant to a family meeting held on 29/12/2005 and that title deeds were subsequently issued. 3. They pleaded that they had developed the suit land by planting mangoes, bananas and Napier grass for commercial purposes and that they leased out the remaining part of the land to third parties who were being threatened by the 1st Defendant. The Plaintiffs averred that the 1st Defendant was separated from the late Lawrence for 7 years and that she moved into the residential home on the suit land when the late Lawrence was ailing. They averred that the 1st Defendant cut down trees on the suit land without the Plaintiffs’ permission on 1/7/2016 which made the Plaintiffs report the incident to the area Chief. They maintained that the 1st Defendant neither had any legal right over the suit land nor any proprietary interest in the land. 4. The Plaintiff sought declaration that the 1st Defendant’s entry into the suit land was illegal and amounted to trespass. They sought an order for the eviction of the 1st Defendant from the suit land to be supervised by the Officer Commanding Kiririto Police Station. They also sought a permanent injunction to restrain the 1st Defendant from interfering with the Plaintiffs’ property, damages for the loss incurred from the destruction of the trees, general damages and costs. 5. The 1st Defendant filed a defence dated 7/10/2016 and denied the Plaintiffs averment. She denied that the Plaintiff lawfully received the suit land from the late Lawrence Mugo and averred that if any transfer of ownership of the suit land occurred, then it was a product of fraud and deceit on the part of the Plaintiffs. She pleaded particulars of fraudulent and deceitful transfer in that HCCC No. 3400 of 1987 was not adhered to, there was no provision made for the 1st Defendant and her children and that there was no consent from the 1st Defendant and her children pursuant to the decision in HCC No. 3400 of 1987. 6. In the counterclaim, the 1st Defendant averred that she married the late Lawrence Mugo in 1971 under Kikuyu customary law and that the marriage was acknowledged in the late Lawrence Mugo Mungai’s eulogy. Lawrence Mugo died at home on 6/2/2016. She explained that the late Lawrence Mugo married Tabitha Wanjiru Mugo in 1952 but they separated in 1968. Nevertheless, Tabitha’s marriage to the late Lawrence was never annulled. The 1st Defendant listed the names of her children who she got with the late Lawrence Mugo. She claimed that she and the late Lawrence established a matrimonial home on the suit land in 1975 or thereabouts after the late Lawrence purchased Mbeti/Kiamuringa/59 in 1970 – 1971. 7. She averred that Tabitha Wanjiru Mugo filed HCCC No. 3400 of 1987 seeking half of the land known as Mbeti/Kiamuringa/59. The land was split between the late Lawrence Mugo and Tabitha Mugo. The 1st Defendant averred that she and the late Lawrence Mugo were granted possession of Mbeti/Kiamuringa/1065 while Tabitha Mugo was granted Mbeti/Kiamuringa/1064. She averred that her son, the late Peter Mburu Mugo was buried on the suit land which is also where the late Lawrence Mugo was also buried. 8. She claimed that the late Lawrence Mugo documented his concerns regarding interference with the suit land by the Plaintiffs, John Mwangi and Tabitha Wanjiru. That he claimed that the titles over the suit land were obtained fraudulently and demanded cessation of construction of a stone house on the portion of land reserved for Charles Karugu. Further, that the court order barred interference with the stone house already built on the suit land. She added that the late Lawrence barred Tabitha Wanjiru Mugo from going to the suit land. 9. The 1st Defendant pleaded that she and her children had occupied the suit land since 1986 and when the late Lawrence retired in 2003, he went to join them. She averred that she was leasing out a portion of the suit land and collecting rent from the lessees during the lifetime of the late Lawrence Mugo. She added that the suit land was her matrimonial home and that the actions of the Plaintiffs were fraudulent. 10. She sought to have the Plaintiffs’ suit dismissed and ownership of the suit land transferred to her to hold in trust of her children. In addition, she sought to have the Plaintiffs compelled to honour the wishes of the late Lawrence Mugo and a declaration that the decision in HCCC No. 3400 of 1987 stood. Initially, the suit was against the 1st Defendant but she amended her defence and counterclaim and added her children to the suit as her co-Defendants. 11. In the reply to the Defendant’s amended defence and defence to counterclaim, the Plaintiffs averred that they were the rightful owners of the suit land that was gifted to them and that the Defendants were gifted plots in Ruai and a residential property in Ngomongo. They stated that this was confirmed during a family meeting held on 29/12/2005. The Plaintiffs admitted that a consent judgment was recorded in court in HCCC No. 3400 of 1987 vide which the late Lawrence and his first wife Tabitha Wanjiru Mugo subdivided the land. They maintained that the suit land was legally allocated to them. 12. The hearing of the suit commenced on 19/10/2018 when Nyaga Ngungi gave evidence. He stated that in 2006, he was digging holes on land belonging to the 2nd Plaintiff and his grandfather. That the grandfather informed him that the suit land belonged to the 2nd Plaintiff. At the time, a foundation was being laid for a second house, there was already another house belonging to the 1st Defendant where the late Lawrence was residing. That he worked on the suit land until 2010. The second house was being built by Mwangi, the father of the 2nd Plaintiff. 13. On cross-examination he mentioned that he found 3 mango trees on the suit land in 2006. He conceded that the new house was never completed due to some disputes and confirmed that the Plaintiffs did not live on the suit land but would visit and go back to Nairobi the same day. 14. The 1st Plaintiff gave evidence on 6/11/2023 and told the court that the 2nd Plaintiff was his brother’s son. He produced copies of the transfer documents for Mbeti/Kiamuringa/1990 and 1991. He told the court that on the basis of the transfers, he got title. Although they had titles, some people entered the suit land and were preventing them from using the land. This was in reference to the 1st Defendant and her children. He stated that they planted mango trees and other fruits and that the trees which were cut were commercial trees. He produced copies of the map for the suit land, title deeds for Mbeti/Kiamuringa/1986 to 1991, agreement between the late Lawrence and his children, documents disowning the Will and letters dated 13/7/2016 and 15/8/2016 from the Senior Assistant Chief. 15. On cross-examination, he conceded that he did not have evidence to show that the 1st Defendant was prosecuted for attacking his late father. He maintained that the 1st Defendant was given property in Nairobi although he did not have evidence to show that she was given land. Regarding the house where the 1st Defendant lived, he stated that it was built in 1966 or 1967. 16. He told the court that the 1st Defendant was living on Mbeti/Kiamuringa/1065 where her son called Peter was buried. He confirmed that his father was buried near where Peter was buried. He was referred to a resolution of the meeting held on 16/2/2015 to arrange the burial of the 1st Plaintiff late father. On re-examination he confirmed that Peter died in 2003. He added that there was a time when the 1st Defendant was not living in her house that was around 2003 to 2012. 17. Joseph Maina Kagima gave evidence and told the court that the 1st Plaintiff was the son of his cousin. He stated that his father was the brother of the late Lawrence Mugo. He confirmed that the late Lawrence had two wives. He told the court that in 2005, the late Lawrence gave land to the 1st Plaintiff and his other son John Mwangi and when John Mwangi rejected the plot, it was given to his son, the 2nd Plaintiff. He told the court that he attended the meeting between the late Lawrence and his children on 29/12/2005. 18. He stated that there was another meeting where the late Lawrence disowned his Will dated 27/10/1995. The Will was in the custody of Patricia Wamoyo Mugo at the time. That the document disowning the will was signed by Lawrence, Ernest Mburu Mungai and Joseph Maina Kagima. He told the court that nobody opposed the agreement and that when Lawrence disowned his Wil,l he had already distributed and transferred his property to the children and others. He stated that they had deliberated the matter for a long time as a family. 19. On cross-examination, he told the court that Lucy Mugo was buried in Ruai, Nairobi and that there was a disagreement as to where she would be buried. He conceded that the 1st Defendant did not attend the meeting held on 29/12/2005, and that the meeting took place in Nairobi. The 1st Defendant’s children, Fredrick Mwangi Mugo and Patricia Wamoyo Mugo attended the meeting. 20. Jotham Njeru Thiga gave evidence and told the court that the late Lawrence Mugo hired him to cut grass in 1973. He was called by the 2nd Plaintiff to build another house about 30 feet from Lawrence’s house. 21. On cross-examination he stated that they went to Kiamuringa in 1960 and that Lawrence gave him work. He was born in 1958. He told the court that the house was being constructed for Tabitha. Another house was to be constructed for Robert and Robert’s father John Mwangi Mugo was paying him to construct the house. The house was not completed. He claimed that Tabitha did not live in the house but she was the one paying the workers. That the 1st Defendant who was Lawrence’s second wife was living in the house. He claimed that Lawrence showed him 2 title deeds with the names of the 2 Plaintiffs 22. John Olukwa gave evidence and told the court that in 2008 John Mwangi Mugo called him to go and build a house in Kiamuringa for his son the 2nd Plaintiff. That Lawrence told him that he had given his grandson 4 parcels of land and to the 1st Plaintiff he gave 2 parcels of land. That the late Lawrence told him that he had given the 1st Defendant plots in Ruai in Nairobi and a house in Ngomongo Nairobi. When he went to construct the house, construction had gone on five stones up and that he constructed up to a certain level. Lawrence did not tell him about his first wife Tabitha. 23. The Plaintiffs recalled their second witness to produce documents including searches done on the land and an electricity bill. 24. Julius Mugo Mburu gave evidence on behalf of the defence. He stated that Ernest Mburu Mungai was his father while Lawrence Mugo was his uncle. He mentioned the case filed in 1987 between Lawrence and Tabitha over the land before it was subdivided and that the court directed that the land would be subdivided. He stated that Lawrence divided his portion of the land and gave it to the Plaintiffs and that Lawrence and his second wife differed. 25. He claimed Lawrence was beaten up by his second wife after which she left the suit land. They reconciled in 2012. He knew that Lawrence had plots in Ruai and that the Ruai plots had been given to the 1st Defendant. After the land was subdivided into two, Tabitha lived on one part while the 1st Defendant lived on the other part. When Peter Mburu Mugo died, he was buried on Hannah’s portion of the suit land. Lawrence was buried on Hannah’s portion next to Peter Mburu’s grave. 26. Francis Njuguna Mwangi gave evidence. He told the court that Lawrence Mugo was living in Nairobi and had two wives. He was staying at Hannah’s house with the children. 27. Luciana Wanjiru Mugo gave evidence. She told the court that her brothers and sisters were born in Nairobi where they lived until 1986 when they relocated to the suit land in Kiamuringa with their mother. They settled on the land and planted trees. The land was subdivided into two portions in 1992 or 1993. Tabitha’s son Kamau died in 1998 and was buried on Tabitha’s portion. Her brother Peter Mburu died in 2003 and was buried on the portion occupied by her parents. She stated that her father started ailing in 2008 and he declared that Mbeti/Kiamuringa/1065 was for the 1st Defendant’s household. Her father wrote a letter dated 6/12/2011 complaining that the suit land had been transferred without his knowledge. She claimed that her father unsuccessfully tried to lodge cautions against the parcels of land registered in the Plaintiff’s names. 28. On cross examination, she denied that her father gave her family land in Ruai and added that the land in Ruai was not in her father’s name. She stated that the plots in Ruai were under the 1st Defendant’s name and her two brothers. She agreed that Tabitha’s family had a right to the Nairobi properties just as Hannah’s side had a right to the suit land. She learned during her sister’s burial in December 2005 that the suit land had been transferred to the Plaintiffs. They had several meetings as a family. 29. The 1st Defendant gave evidence and told the court that she married Lawrence Mugo in 1971 under Kikuyu customary law. She produced a copy of the eulogy for the late Lawrence. She reiterated that the union between Lawrence Mugo and Tabitha Wanjiru was never annulled. She stated that she and her late husband established their matrimonial home on the suit land in 1975. A consent was registered in HCCC No. 3400 of 1987 through which land Mbeti/Kiamuringa/59 was be subdivided into two equal portions. That Tabitha and her children were given Mbeti/Kiamuringa/1064 while she and her late husband occupied Mbeti/Kiamuringa/1065 and their children until his death. 30. She stated that her late husband documented his concerns about the interference with the suit land by the Plaintiffs and Tabitha Wanjiru. She relied on her husband’s Will. She pointed out that the minutes from the Gachoka Land Control Board meeting held on 28/3/2008 did not indicate to whom her late husband transferred Mbeti/Kiamuringa/1988, 1989 and 1990. Her husband’s burial was delayed because the document dated 6/12/2011 had not been complied with. 31. She relied on a resolution from the family committee meeting in which it was resolved that she had a right to the suit land. She explained that she cut trees on the suit land to repair a cow shed and she was summoned by the Assistant Chief. She cut another tree to repair her front yard and was also reported to the Chief. She claimed that she had occupied the suit land since 1986 with her children and that her husband joined them in 2003 or thereabouts. She was leasing out a portion of the suit land when her husband was alive and continued to collect rent from the lessees. 32. On cross-examination, she told the court she did not find Tabitha Mugo when she got married to Lawrence. There was a time when she had a misunderstanding with Lawrence and left. She went back after a while. She told the court that the Ruai plots were not given to her by her husband. She got them from chama ya wamama. She disagreed with the assertion that Tabitha’s children were to get the Ruai plots so that the Defendants could get the Kiamuringa land. 33. She did not know that her husband subdivided Mbeti/Kiamuringa/1065 and gave it to the Plaintiffs. Her daughter died and was buried in Ruai. Before that, her son Peter Mugo was buried in Kiamuringa when the land was still in her husband’s name. She did not attend the meetings. She was upset that the children she had raised had brought her to court. She claimed that the 1st Plaintiff gave his father medicine which she presumed was poison. She stated that her husband sat down with his family and denied that he gave out the suit land. 34. When she left her home, no other building was being constructed on the suit land. She lived with her husband in Kiamuringa. When she went back, she found a house being built and her husband was told that they were building him a modern house near her house. After she went back, she had a good relationship with her husband. She went to the lands office with her husband and they were told the suit land had been transferred. 35. At the conclusion of the hearing, the court gave directions for filing of submissions. Parties filed written submissions and attended court for highlighting. The Plaintiff’s advocate submitted that the suit land was originally Mbeti/Kiamuringa/59 and was bought in 1971 before the 1st Defendant got married. The land was subdivided pursuant to the court order issued in 1987, and Mbeti/Kiamuringa/1065 went to Lawrence Mungai. He argued that no challenge could be taken out through a counterclaim over the court order of 1987. 36. The Plaintiffs relied on Sections 24 and 26 of the Lands Registration Act and added that the onus was on the person alleging fraud or illegality in impeaching the process of acquisition of a title. He stated that they had demonstrated through the exhibits that the late Lawrence willingly gifted the suit land to the Plaintiffs. Further, that this came out from the evidence of the Defendant’s witnesses. Regarding the Land Control Board (LCB) documents, the Plaintiff submitted that a witness was not called from the LCB or the Ministry of Lands. 37. The Defendants’ advocate submitted that there was no evidence that the late Lawrence handed over vacant possession of the suit land after the alleged subdivision. He maintained that the land was never transferred. He added that the parcels in Ruai and Ngomongo were never transferred to the Defendants. He asserted that Mbeti/Kiamuringa/59 was bought when the 1st Defendant was already married to Lawrence Mugo in 1971. 38. The Plaintiffs submitted that this court could not entertain any disputes regarding the decision rendered in HCCC No. 3400 of 1987. They argued that the law dealing with matrimonial property at the time Lawrence died was the Married Women Property Act of 1882, which defined it as the matrimonial home or homes, household goods and effects in the matrimonial home or property jointly owned and acquired during the subsistence of the marriage. They maintained that the consent order in HCCC No. 3400 of 1987 was valid. 39. The Plaintiffs submitted that after the consent and orders were made in HCCC No. 3400 of 1987, his portion was registered in Lawrence name. They urged that the late Lawrence owned plots in Ruai where he lived with the 1st Defendant. They relied on the evidence of the 1st Defendant who stated that the 1st Defendant separated with the late Lawrence in 1997 due to claims of infidelity. That by the time the 1st Defendant reconciled with Lawrence in 2012, the suit land had been gifted to the 1st Plaintiff and the 2nd Plaintiff’s father, John Mwangi. They urged that the late Lawrence was very close to his sons and transferred the land to them as a gift *inter vivos* during his life time. That at the time, the 1st Defendant had made a decision to settle on the plots in Ruai. 40. They relied on **Peter Nderitu Kibui v Ann Mugure Kibui [2016] eKLR** where the court stated that a gift *inter vivos* must have strict prerequisites. These are, that the individual making the transfer actually intended to make a gift, the donee accepted the gift made to him and that the property was delivered to the donee. The Plaintiffs submitted that its three witnesses testified that the late Lawrence freely and willingly participated in the processes leading to the transfer of the suit land. 41. Further, that the Defendants’ witnesses confirmed that by the time the 1st Defendant went back to the suit land, it had been transferred by the late Lawrence to his sons as a gift. They relied on the transfer documents between the late Lawrence and the Plaintiffs. They urged that the intention of the late Lawrence in transferring title to the two sons was immediate, unequivocal and irrevocable even if the donee could only benefit from it at a later date. 42. Regarding the Will, which the Defendants produced, the Plaintiffs submitted that the question before this court was the ownership of the suit land and not the question of inheritance. They adverted to the agreement between the late Lawrence and his children where he stated that he had transferred the property absolutely. They argued that Section 42 of the Law of Succession Act seeks to protect and preserve wishes and acts executed and undertaken by dead persons during their lifetime. 43. The Plaintiffs argued that as donees they accepted the gift made to them and that acceptance was confirmed when they went to the LCB and obtained consent following which the transfer instruments were signed in their favour. They urged that the doner delivered the gift. They relied on the searches and the minutes of the family meeting. They also emphasized that Lucy Mugo was not buried on the suit land because it had been transferred to the Plaintiffs. 44. They urged that the Defendants had failed to prove illegality, mistake or fraud. They asserted that this court could not interfere with the ownership and title over the suit land based on Sections 24 and 26 of the Land Registration Act. They pointed out that they had produced copies of the title documents for the six parcels of land as well as the sale agreement conferring title to the two sons. 45. They reiterated that some of the Defendants signed the agreement. The Plaintiffs urged that the Defendants had not placed any evidence before this court that could challenge the mental status of the late Lawrence when he made the agreement. They maintained that the transfer of land was proper, legal and that all the relevant steps were followed to the letter. They argued that the late Lawrence disowned the Will. They urged that Section 107 of the Evidence Act stipulates that whoever alleges the existence of a given fact bears the responsibility of adducing evidence in support of that allegation. The Defendants also relied on Sections 107 and 109 of the Evidence Act. 46. They submitted that following the decision in HCCC No. 3400 of 1987, the late Lawrence and Tabitha each got a portion measuring 35.5 ha. The Defendants relied on the exhibits annexed to the 1st Defendant’s replying affidavit. One of them stated that John Mwangi bribed the late Lawrence’s advocate and Githinji bribed the surveyor so that the piece of land could be subdivided into 3 portions instead of 2 with the third piece of 20acres being split between John Mwangi and S Githinji. Paragraph 3 declared that John Mwangi and Robert Mugo were not to step in Kiamuringa and they were not to question the 1st Defendant on anything in connection with the suit land. Another paragraph stated that Githinji decided to poison Lawrence when Lawrence learned that the land had been subdivided into 3. The late Lawrence declared that he would be buried by Hannah’s children and that John Mwangi was building on the piece of land which belonged Karugu. He pointed out that according to the order of the court, the land was to be divided without interfering with the old house which was already there. 47. The Defendants submitted that the Gachoka LCB agenda for 23/8/2008 showed that Lawrence Mugo was to transfer Mbeti/Kiamuringa/1989, 1990 and 1988 to unnamed persons. They urged that the agreement which the Plaintiffs relied on purported to gift Mbeti/Kiamuringa/1987 measuring 16 acres to the Plaintiff and Mbeti/Kiamuringa/1986 measuring 12 acres to the 2nd Plaintiff. They pointed out that Mbeti/Kiamuringa/1988, 1989, 1990 and 1991 were not mentioned in that agreement. They argued that the transactions required LCB consent. 48. The issues for determination is whether the court should allow the prayers sought in the plaint or reliefs set out in the counterclaim. The issue of distribution of the assets of the late Lawrence Mugo falls outside the jurisdiction of this court. In addition, this court cannot determine whether the 1st Defendant is the former wife of the late Lawrence as the Plaintiffs pleaded in paragraph 5 of the plaint. This Ccourt can also not deal with the issue of whether there was a separation between the late Lawrence and his second wife, or whether the late Lawrence was assaulted and whether there was infidelity on the part of his second wife. 49. The Plaintiffs averred in paragraph 8 of the plaint that they were granted the suit land pursuant to a family meeting held on 29/12/2005 and that title deeds were subsequently extracted. The court notes that the copies of the titles in the file over Mbeti/Kiamuringa/1986 and 1987 were issued on 28/4/2004 while titles over Mbeti/Kiamuringa/1988 to 1991 were issued on 2/4/2008. The titles for Mbeti/Kiamuringa/1986 and 1987 indicate on the proprietorship section that they were issued on 2/4/2008 yet on the top page it is indicated that they were signed by the land registrar on 28/4/2004. Those for Mbeti/Kiamuringa/1990 and 1991 appear to have been signed by the registrar on 2/4/2008 but the proprietorship section shows that title deeds were issued on 28/4/2004. 50. The agreement dated 29/12/2005 which the Plaintiffs relied on mentions the transfer of Mbeti/Kiamuringa/1987 measuring 16 acres to the 1st Plaintiff and Mbeti/Kiamuringa/1986 measuring 12 acres to the 2nd Plaintiff. The agreement does not mention Mbeti/Kiamuringa/1988 to 1991. 51. The consent in HCCC No. 3400 of 1992 was to the effect that Mbeti/Kiamuringa/59 would be shared equally between Lawrence Mugo and his first wife Tabitha Wanjiru. Based on the facts led in the case, that order was executed. The Will which is challenged showed how Lawrence Mugo desired to subdivide Mbeti/Kiamuringa/1065. The Plaintiffs did not lead evidence on how Mbeti/Kiamuringa/1065 was subdivided and how parcels Mbeti/Kiamuringa/1986 to 1991 were created. 52. It is apparent from the documents produced by the defence that Tabitha Wanjiru subdivided Mbeti/Kiamuringa/1064 and transferred the resultant portions to Edwin Mugo Githinji, Mary Wangari Mwangi, Rose Mugo and Elizabeth Mwangi, with each one of them getting 7.28 ha. She retained 0.33 ha and Ernest Mburu Mugo got 4.05 ha. This is reflected in the LCB consent dated 27/11/2015 and the transfer dated 25/1/2016. What this means is that the late Lawrence Mugo’s first house distributed the entire Mbeti/Kiamuringa/59 to the exclusion of his second wife and her children yet the land comprises the portion on which the 1st Defendant’s matrimonial home and graves of her son and husband are. 53. No evidence was led regarding the Ruai plots and the Ngomongo house, which the Plaintiffs contend that the late Lawrence granted to the 1st Defendant and her children during his lifetime. The Assistant’s Chief letter dated 16/9/2016 confirmed that the 1st Defendant was the widow of Lawrence Mugo and that she had been living in Kiamuringa since 1986 and had seven children. 54. The Plaintiffs submitted extensively on the state of mind of the late Lawrence when he transferred the suit land to them. This falls outside the mandate of this court and will be determined by the court that will undertake proceedings over the distribution of his estate. No evidence was led by the Plaintiffs to prove that the late Lawrence granted them vacant possession of the suit land. On the contrary, the evidence shows that the late Lawrence halted the construction of the second house by the 2nd Plaintiff and his father next to the 1st Defendant’s house. The late Lawrence also wrote letters complaining about the conduct of his children from his first wife regarding the suit land . 55. Sitting as an Environment and land court, this court cannot determine whether Mbeti/Kiamuringa/59 formed matrimonial property acquired by the late Lawrence and his first wife Tabitha Wanjiru Mugo. In addition, this court cannot deal with the allegations that the 1st Defendant assaulted her husband and they were separated for years. The question as to whether or not the late Lawrence disowned his Will is not for this court to make a finding on. These issues fall within the province of the family court and not the land court. 56. The suit land comprised agricultural land yet the Plaintiffs did not produce LCB consent. The contention by the Defendants that the LCB forms from Gachoka LCB did not indicate the transferees for Mbeti/Kiamuringa/1988, 1989 and 1990 is not an idle one. The Plaintiffs did not lead evidence on how Mbeti/Kiamuringa/1065, which the late Lawrence retained was subdivided to create the suit land and the participation of the late Lawrence in the subdivision process. Section 26 of the Land Registration Act contemplates the tracing of the root of title and the grounds on which title over land may be impeached. The grounds are fraud, illegality and obtaining a title through a corrupt scheme. 57. The Plaintiffs only produced transfers for Mbeti/Kiamuringa/1990 and 1991. They did not produce the transfers for Mbeti/Kiamuringa/1986 to 1989. Without proof that the other parcels of land were procedurally transferred to the Plaintiffs, it is doubtful that they were legally transferred by the late Lawrence Mugo. 58. Although the Plaintiffs produced searches done on the suit land, the searches merely show that the Plaintiffs are the registered owners of the suit land but they do not demonstrate the process through which they acquired the land. The root of the titles acquired by the Plaintiffs has been successfully challenged. The ownership of the suit plots by the Plaintiffs was unprocedurally obtained. 59. The suit land forms part of the estate of the late Lawrence Mugo Mungai and is to be distributed by the probate court that will distribute the assets of the late Lawrence Mugo Mungai. 60. The court declines to declare that the 1st Defendant trespassed onto the suit land. The court declines to grant the orders sought in the plaint dated 19/8/2016. Each party will bear its costs. Delivered virtually at Bungoma this 30th day of June 2026. **K. BOR** **JUDGE** **In the presence of: -** Mr. M. Otieno holding brief forMr. D. Okatch for the Plaintiffs Mr. S. Ongaro for the Defendants Court Assistant- Diana Kemboi