https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3496

Kasura (Suing as the son, next of kin and legal representative of the Late Solomon Leperes Kasura) v Migwi (Sued as the legal administrator of the Estate of Magdalene Mwikali Kiokio alias Magdalene Mwikali Kasura) & 2 others (Environment and Land Case E014 of 2021) [2026] KEELC 3496 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEELC 3496 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Case E014 of 2021 LN Gacheru, J June 4, 2026 Between Noah Parsimei Kasura (Suing As The Son, Next Of Kin And Legal Representative Of The Late Solomon Leperes Kasura) Plaintiff and Anthony Kioko Migwi (Sued As The Legal Administrator Of The Estate Of Magdalene Mwikali Kiokio (Alias Magdalene Mwikali Kasura) 1st Defendant Anthony Kioko Migwi 2nd Defendant Joseph Getuno Nyamochongo 3rd Defendant Judgment 1.This Plaintiff instituted this suit vide a Plaint dated 5th July 2021, in respect of all that parcel of land known as CISMARA/ENABELIBEL-ENENGETIA/77 (hereinafter referred to as “the Suit Property”) against the Defendants herein. 2.Upon the death of Magdalene Mwikali Kioko, the 1st Defendant herein, the Plaintiff filed an Amended Plaint dated 6th January 2025, to substitute her with the legal representative of her estate. 3.The Plaintiff averred that he is the biological son of Solomon Leperes Kasura (Deceased), who was the rightful allottee of the Suit Property, allotted to him vide Minute No. 51/66 of 11th April 1968 by the defunct Mau Local Council. 4.He averred that ENABELIBEL/ENENGETIA was declared an Adjudication Section, and the persons who were ordinarily residents in the area were allocated land by the defunct Mau Local Council, had their land rights determined and registered as members of the Adjudication Section; and that the Adjudication Committee upon completing their work, presented their documents to the land’s office for processing of title deeds. 5.Further, that the Deceased was involved in a road accident and remained hospitalized for a considerable period; during which period the 1st Defendant, who was then in a relationship with the deceased and had been entrusted with his documents for purposes of registration, allegedly took advantage of the situation and caused the suit property to be registered in her own name through fraud, deceit and misrepresentation, instead of the Deceased’s name as was earlier intended. 6.That the Deceased was married to Joyce Katitoo Kasura, with whom he had 10 children, including him; that the family allegedly discovered that the 1st Defendant had unlawfully registered the suit property in her name without the deceased’s knowledge or consent; and that all efforts by the deceased and his family to have the property surrendered or restored to the deceased were unsuccessful; that the dispute remained unresolved up to the time of the Deceased’s demise, and the 1st Defendant has since remarried. 7.That the Deceased was married to Joyce Katitoo Kasura, whom he married on 8th January 1955, and together they were blessed with 10 children, including the Plaintiff, herein. The Plaintiff averred that the family subsequently discovered that the 1st Defendant had unlawfully caused the suit property to be registered in her name without the knowledge, consent, or authority of the Deceased. Despite numerous efforts by the Deceased (Solomon Leperes Kasura), and his family to have the suit property surrendered and restored to the Deceased, the 1st Defendant allegedly declined and/or failed to do so. The dispute remained unresolved up to the time of the Deceased’s demise, and the 1st Defendant thereafter remarried. 8.The Plaintiff further averred that the original title was issued in the name of Magdalinah Mwikali Kasura (now deceased), the 1st Defendant herein; and that on 15th August 2001, she corrected the name in the register to Magdalinah Mwikali Kioko. Thereafter, she subdivided the original parcel into parcels Cismara/Enabelibel/Enengetia/1610–1616, and the 2nd and 3rd Defendants registered as proprietors of the same. 9.That the Deceased’s union with Joyce Katitoo Ene Sembele Kasura, was blessed with 10 issues while the Deceased’s union with the 1st Defendant was blessed with 5 issues. 10.The Plaintiff further averred that the 1st Defendant falsely represented herself as the lawful allottee and proprietor of the suit property, concealed her true identity and status from land officials, caused registration of the property in her name without the deceased’s authority, deprived the deceased’s estate and beneficiaries of their entitlement to the land, and subsequently dealt with the property, including subdivision and transfer, without the consent or knowledge of the estate. 11.That the registration of the 1st Defendant as proprietor of parcel Cismara/Enabelibel/Enengetia/77, and the subsequent subdivisions and transfers arising therefrom, were fraudulent, illegal and void, and he sought cancellation of the impugned titles and restoration of the property to the estate of the deceased for distribution to the rightful beneficiaries. 12.The Plaintiff/Applicant prayed for the following orders against the Defendants herein jointly and severally;1.A Declaration that all that parcel of land known as Cismara/Enabelibel/Enengetia/77 now Cismara/Enabelibel/Enengetia/1610-1616 belongs to the late Solomon Leperes Kasura and that the 1st Defendant holds it in trust and on behalf of the estate of the Deceased.2.A cancellation of the mutation and title deeds that the Defendants hold to all that parcel of land known as Cismara/Enabelibel/Enengetia/77 now Cismara/Enabelibel/Enengetia/1610-1616.3.An order for the transfer of the suit property to the name of Solomon Leperes Kasura.4.Any other relief that this Honourable Court may deem fit to grant in the circumstances.SUBPARAGRAPH 5. Costs of this suit. 13.The suit herein is contested, and in response thereto the Defendants filed a Statement of Defense dated 19th June 2023, in which they averred as follows: that although the Deceased was the allottee of Cismara/Enabelibel/Enengetia/77, the ownership status changed when he willingly transferred the said property to the 1st Defendant, his wife as presumed by law; that the 1st Defendant took possession of the said property in 1969 and a title was issued to her in 1975. 14.That the 1st Defendant subsequently transferred the said property to the 2nd Defendant, her son and the 3rd Defendant bought part of the suit property for value in 2020. 15.They further averred that by the time ENABELIBEL/ENENGETIA, was declared an Adjudication Section in 1974, and title deeds were processed, the 1st Defendant has taken possession of the suit property by the Deceased’s authority and utilized the same for farming to sustain her children, born out of her relationship with the Deceased. 16.The Defendants denied that the 1st Defendant took advantage of the Deceased’s incapacity to register the suit property in her name, rather that she was already in possession of the suit property prior to registering the same in her name with express authority from the Deceased. 17.They further averred that the Deceased (Solomon Lepers Kasura), was a polygamous man and that he was married to both the Plaintiff/Applicant’s mother and the 1st Defendant. 18.They further denied that the deceased and his family tried to compel the 1st Defendant to surrender the property until the Deceased’s demise, rather that the Deceased willingly transferred the suit property to the 1st Defendant to sustain her family through farming; and that the Deceased never attempted to cancel the title deed issued to the 1st Defendant for over 3 decades after the alleged accident. 19.Moreover, the Defendants averred that the suit property was initially registered in the name of Magdalinah Mwikali Kasura, and the 1st Defendant made an application to acknowledge that she is also known as Magdalinah Mwikali Kioko; that the 1st Defendant us not precluded from subdividing the suit property into land parcels No. Cismara/Enabelibel/Enengetia/1610 – 1616, with the 2nd Defendant owning Cismara/Enabelibel/Enengetia/1610, and the 3rd Defendant owning Cismara/Enabelibel/Enengetia/1615; given that she is the initial registered proprietor of the suit property. 20.The 1st Defendant denied the averment by the Plaintiff that she masqueraded as the Deceased’s wife and later abandoned him thus leaving him and his children as destitute and vagabonds without any land; it was averred that she fulfilled her marital obligations with the Deceased; and that she neither remarried nor had any relationship with Richard Migwi Kangangi. 21.The Defendants denied that they were given demand or notice of intention to sue orally and averred that this suit is an academic exercise as the Plaintiff seeks to gain beneficial interest in the estate of the Deceased from the suit property, which property did not belong to the Deceased at the time of his demise. 22.The Defendants also denied that the Plaintiff/Applicant is entitled to any of the reliefs sought in the Plaint and prayed that the Court dismiss the Plaintiff’s suit with costs. 23.The case proceeded for hearing vis viva voce evidence wherein the Plaintiff gave evidence for himself and called no witness. The Defendants gave evidence through DW1, and DW2, the 2nd and 3rd Defendants herein. PLAINTIFF’S CASE 24.PW1 Joseph Lempako Ole Kiseu, adopted his witness statement dated 6th January 2025 as evidence in chief and further testified as follows: that he lives in Enabelbel and he is the Peace Cordinator in Narok. It was his further evidence that one Solomon reported that his land had been grabbed by one Mwikali; that he summoned the said Magdaline Mwikali, but she failed to appear before him; it was his evidence that the land parcel No. 77, had been allocated to Solomon Leperes Kasura( now deceased) as confirmed by the elders. 25.It was his further evidence that he wrote a letter dated 11th October 1996, to the Land Control Board to give consent for sub division. The said letter was produced and marked as P Exhibit 17. 26.PW1, further testified that the suit property belonged to Solomon Kasura by way of allocation; and that the said land should be given back to him. 27.Upon cross-examination, PW1 confirmed that under the Adjudication Record, indicates the 1st Defendant as the land owner; He denied that the 1st Defendant was not a wife to the Deceased. 28.In re-exam, he testified that the members of Adjudication Committee had tried to resolve the dispute to no avail. He also testified that Mau Local Council gave the suit land to Solomon Kasura, and that Magdalene Mwikali has never lived on the suit land. DEFENDANT’S CASE 29.DW1, Anthony Kioko Migwi, the 2nd Defendant and Legal administrator of the estate of Magdalene Mwikali adopted his witness statement dated 16th June 2023, as his evidence in chief and produced his List & Bundle of Documents as Exhibits 1 – 9. 30.It was his evidence that he lived on the suit property for almost 30 years; that he is the son of the 1st Defendant; that the suit property is not in existence as the same was subdivided by the 1st Defendant, during her lifetime. Further, that from the Plaintiff’s List & Bundle of Documents, the Deceased was to get land parcel No. 260 and not No.77. 31.It was his further evidence that the Plaintiff is his step – brother; and he lived in Eldoret with his mother; Further, that the Deceased (Solomon Leperes Kasura), their father, had many parcels of land; and that he was satisfied with his land. 32.DW1, also testified that the green card for land parcel No. 77 is dated 8th December 1983, is in the name of the 1st Defendant (Magdalene Mwikali -deceased), which entry the Deceased (Solomon Leperes Kasura), did not object; that the house on the suit property does not belong to the Plaintiff; that he (DW) started constructing a permanent house which he halted when this case was filed. 33.Further, that his mother now deceased was buried on the suit property; and there was no problem in burying her thereon, though the other family did not attend his mother’s funeral; however, his step-mother was buried at Siabei area which was her land. 34.He confirmed that the 3rd Defendant bought 17 Acres of the suit property from the 1st Defendant at a purchase price of Kshs. 8,500,000/=, pursuant to a Sale Agreement between the 1st and 3rd Defendants; that he was a witness to this transaction; and that the 1st Defendant (his mother, now deceased sold the land and subdivided the remainder to her children. 35.It was his further evidence that the 1st Defendant (Magdalene Mwikali), was buried on the suit property; that his land is parcel NO. 16, which is about 40 Acres; that the subdivision was an open activity, and there was no objection to the said subdivision. 36.Upon cross-examination, he testified that the Deceased (Solomon Leperes Kasura) and the 1st Defendant (Magdalene Mwikali) had another case in court over the said parcel of land; but the Deceased did not dispute ownership of land by the 1st Defendant (Magdalene Mwikali now deceased). 37.Dw1, further testified that the 1st Defendant (Magdalene Mwikali-now deceased) was not a member of the Adjudication Section, and he did not know how the land was registered in the her name; that he is the son of the late Solomon Leperes Kasura and Magdalene Mwikali( both deceased) but not Richard Migwi’s son. 38.DW2, Joseph Getuno Nyamochonga, also adopted his witness statement dated 19th June 2023, as his evidence in chief and produced a list of documents as D exhibits 1 – 6, to support his claim and Defence. 39.It was his testimony that he purchased 17 Acres out of land parcel No CISMARA/ENEBELBEL/ENENGATIA/77, from the 1st Defendant (Magdalene Mwikali Kasura) vide a Sale Agreement dated 3rd July, 2020 and paid Kshs. 8,500,000/= in consideration, and the same was acknowledged by the 1st Defendant; that the witnesses were his mother, the 2nd Defendant and one of his daughters, Juliana. 40.That after he paid the purchase price, the Vendor (Magdalene Mwikali), undertook to subdivide the suit property and delivered the title; that he has been in occupation of the suit property then parcel No. Cismara/Enabelibel/Enengetia/1615, measuring 17 Acres. 41.It was his evidence that he has been in peaceful occupation of the said land which he has fenced, and the allegations that the land was not properly sold to him were false; He further claimed that the 1st Defendant was buried on the suit land. 42.He confirmed that he carried his due diligence and the said land had no encumbrances when he bought it; and that his parcel of land is No. 1615, a subdivision of Land parcel No. 77, initially owned by Magdalene Mwikali. 43.Upon close of viva voce evidence, the Court directed the parties to file and exchange written submissions which they complied with. 44.The Plaintiff filed his written submissions dated 20th January 2026 through Kamwaro & Co Advocates, wherein the followings issued were raised; 1.Whether the initial registration of the suit property CISMARA/ENABELIBEL/ENENGATIA/77 to MAGDALINE MWIKALI KIOKO was irregularly, null and void and impeachable. 2.Whether the title held by the 2nd and 3rd Defendants are impeachable. 3.Whether the court can order for the rectification of the register. 4.Who bears the costs of this suit? 45.On Whether the initial registration of the suit property CISMARA/ENABELIBEL/ENENGATIA/77, to MAGDALINE MWIKALI KIOKO was irregularly, null and void and impeachable, the Plaintiff submitted that the 1st Defendant caused the suit property to be deceitfully registered in her name as Magdalinah Mwikali Kasura, and applied for rectification of the register to bear the name Magdalinah Mwikali Kioko; that the rectification intended to deprive the Deceased (Solomon Leperes Kasura) of his land. 46.Further, he submitted that the Deceased (Solomon Leperes Kasura), was the allottee of the suit property, and that the 1st Defendant (Magdalene Mwikali) was registered as the owner through fraudulent means. Plaintiff relied on the provisions of section 26 (1) of the Land Registration Act that a title remains indefeasible unless it is shown that the said title was obtained through fraud and misrepresentation to which the title holder is proven to have been a party to. 47.Reliance was placed in the case of Munyu Maina v Hiram Gathiha Maina [2013] KECA 94 (KLR) where the Court of Appeal held:“… when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.” 48.Further reliance was sought in the case of Republic vs Minister for Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 others Mombasa HCMCA No. 617 of 2003 [2006] 1 KLR (E&L) 563 , wherein the court held;“Courts should nullify titles by land grabbers who stare at your face and wave to you a title of the land grabbed and loudly plead the principle of indefeasibility of title deed…” 49.Further reliance was sought in the case of Alberta Mae Gcci vs Attorny General & 4 others [2006] eKLR, where the court held;“Cursed should be the day when any crook in the streets of Nairobi or any town in this jurisdiction, using forgery, deceit or any kind of fraud, would acquire a legal and valid title deceitfully snatched from a legally registered innocent proprietor. Indeed, cursed would be the day when such a crook would have the legal capability or competence to pass to a third party, innocent or otherwise, a land interest that he does not have even if it were for valuable consideration. For my part, I would want to think that such a time when this court would be called upon to defend such crooks, has not come and shall never come.” 50.The Plaintiff also submitted that the 1st Defendant (Magdalene Mwikali -deceased) admitted that she was not a member of the adjudication section, and therefore was ineligible for allocation of the suit property. Further, that Magdalene Mwikali irregularly procured registration of the suit property in her name, and subsequently left the deceased( Solomon Leperes), remarried, and only resurfaced after the said Solomon Leperes died to effect corrections in the land register so as to reflect her official name. 51.The Plaintiff further submitted that the 1st Defendant (Mwikali) failed to discharge the evidential burden under Section 112 of the Evidence Act, as the circumstances under which she acquired the suit property were matters within her knowledge; and that she did not provide a satisfactory explanation regarding the acquisition and registration of the land in her name. 52.The Plaintiff further relied on Section 26 of the Land Registration Act and argued that the law protects innocent proprietors whose land has been fraudulently transferred. Further, since the title held by the 1st Defendant was acquired illegally, unprocedurally, and through fraud, it was a candidate for cancellation as provided by Section 26(1) of the Land Registration Act. 53.Reliance was placed on the case of Elijah Makeri Nyangw'ra v Stephen Mungai Njuguna & Another [2013] eKLR, where the court held that a title obtained illegally or through a corrupt scheme is impeachable and ought to be cancelled to protect the rights of the lawful owner. 54.Further reliance was also sought in the case of Chemei Investments Limited v Attorney General & Others, Nairobi Petition No. 94 of 2025, where the court cited the decision in Milan Kumar Shar & 2 others vs City Council of Nairobi & Another (Supra), and held that that the constitutional values of integrity and the rule of law supersede the doctrine of indefeasibility of title, and that title can only enjoy protection where it has been acquired in accordance with the law and not through fraud, illegality, or a corrupt scheme. 55.The Plaintiff urged the court not to sanitize irregularities or uphold titles founded on fraud under the guise of indefeasibility of title. He also relied on Article 40(6) of the Constitution which excludes constitutional protection from property that has been unlawfully acquired and that courts should not aid litigants who seek to benefit from illegal conduct. 56.Further, the Plaintiff submitted that the registration of the 1st Defendant( Magdalene Mwikali) as the proprietor of the suit property was illegal, fraudulent, null, and void ab initio. According to the Plaintiff, the available evidence demonstrated that the 1st Defendant( Mwikali) misrepresented her identity to the Land Adjudication authorities by causing the property to be registered in the name “Magdalinah Mwikali Kasura” while her official name appearing on her national identity card is “Magdalinah Mwikali Kioko”; and this amounted to fraud and deceit in the acquisition of the suit property. 57.The Plaintiff referred to the definition of fraud in Black’s Law Dictionary and to the decision in Koilel & 47 Others v Ntiyia & 2 Others [2022] KLR, and submitted that fraud encompasses deliberate misrepresentation, concealment of material facts, and conduct intended to obtain an unjust advantage at the expense of another. 58.Further, that since the 1st Defendant’s title was tainted by fraud and misrepresentation, she was incapable of passing a valid title to the 2nd and 3rd Defendants. Consequently, all subsequent transactions founded on her title were equally invalid and liable to cancellation. 59.In support of that position, reliance was placed in the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 Others, Court of Appeal at Nairobi, Civil Appeal No. 246 of 2013 [2015] eKLR, where the Court of Appeal affirmed the cancellation of titles derived from a fraudulent root of title and ordered restoration of the property to the rightful owner. 60.The Plaintiff also cited the case of Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others (2015) eKLR ,in support of the position that while title is generally protected by law, such protection is lost where the title is procured through fraud, misrepresentation, illegality, procedural impropriety, or a corrupt scheme. 61.Further reliance was placed in the case of Funzi Development Ltd & Others vs County Council of Kwale, Mombasa Civil Appeal No. 252 of 2005 [2014] eKLR, a Court of Appeal, which decision was affirmed by the Supreme Court stated as follows;“… a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of title sanction an illegality or gives its seal of approval to an illegal or irregularly obtained title.” 62.Accordingly, the Plaintiff urged the court to find that the 1st Defendant’s title is impeachable under Section 26(1)(a) and (b) of the Land Registration Act, cancel the impugned registrations, and restore the suit property to the estate of the deceased (Solomon Leperes Kasura). 63.On whether the title held by the 2nd and 3rd Defendants are impeachable, the Plaintiff relied on the case of Alice Chemutai Too (Suing as the personal representative of Kipkoech Tele (Deceased) vs Nickson Kipkirui Korir, Attorney General Sued on behalf of the Chief Land Registrar) & Consolidated Bank of Kenya (Environment & Land Case 51 of 2014) [2015] , where the court stated:“However, where a person intends to indict a title on the ground that the title has been acquired illegally, unprocedurally, or through a corrupt scheme, my view has been, and still remains, that it is not necessary for one to demonstrate that the title holder is guilty of any immoral conduct on his part. I had occasion to interpret the above provisions in the case of Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & Another, Eldoret ELC Case No. 609 B of 2012, where I stated as follows: -“…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions.” 64.The Plaintiff argued that the court should not uphold the titles by the 2nd and 3rd Defendants as the same would give life to the title held by the 1st Defendant, which title is impeachable on grounds of fraud. 65.The Plaintiff further argued that the 2nd and 3rd Defendants, as the registered proprietors of parcels Cismara/Enabelibel/Enengetia/1615 and 1616, ought to have protected their interests by filing a Counter-claim against the 1st Defendant, who allegedly transferred or sold portions of the suit property to them. The Plaintiff submitted that despite being aware that the root of their titles had been challenged, the 2nd and 3rd Defendants remained silent, thereby acquiescing to and countenancing the alleged fraud. 66.Further, the Plaintiff argued that the 3rd Defendant cannot rely on the doctrine of innocent purchaser for value because where the title of the transferor is tainted by illegality or fraud, the doctrine cannot cure the defect. Further, that a purchaser cannot obtain a better title than that held by the vendor; and that the 2nd and 3rd Defendants failed to exercise due diligence before acquiring the suit property. That they ought to have investigated the root of the 1st Defendant’s title and established how she acquired the said property despite not being a member of the adjudication section. 67.For the above argument, the Plaintiff relied on the case of Said vs Shume & 2 others (Civil Appeal E050 of 2023) [2024] KECA 866 (KLR) (26 July 2024) (Judgment), where the Court of Appeal emphasized the necessity of thorough due diligence in land transactions, and observed that land purchasers must investigate not only the property, but also the vendor’s ownership. 68.Further, the Plaintiff relied on the Supreme Court decision in Dina Management Limited v County Government of Mombasa (Supra), and submitted that once the root of a title is challenged, a party cannot successfully invoke the doctrine of a bona fide purchaser for value without notice to shield an otherwise defective title. Therefore, the Plaintiff argued that the 1st Defendant did not acquire a valid or lawful title to the suit property; which title cannot therefore confer any legal interest capable of being transferred to any subsequent purchaser. 69.In support of this position, reliance is placed in the case of Kukan & Another (Administrators of the Estate of Jason Kukan Lila) v Kibutha [2023] KECA 742 (KLR) and Esther Ndegi Njiru & Another v Leonard Gatei [2014] eKLR, where the courts emphasized that purchasers of land must undertake due diligence beyond conducting an official search. The authorities stress that a purchaser must investigate the history and root of the title because Article 40(6) of the Constitution does not protect property that is acquired unlawfully. 70.The Plaintiff further relied on the case of Jacob Wekesa Bokoko Balongo v Kincho Olokio Adeya & Another [2020] eKLR, where the court held that the historical background of a title is as important as the title itself when determining whether it was lawfully acquired. Further, that a title obtained through fraud, illegality, or procedural impropriety is void ab initio and not merely voidable. Consequently, under the principle of nemo dat quod non habet, no valid title can pass to a subsequent purchaser, even where that purchaser acted in good faith and paid valuable consideration. 71.The Plaintiff identified the following principles; that fraudulent or illegal root of title taints all subsequent transactions; the doctrine of bona fide purchaser for value does not protect a purchaser where the title acquired was void from the outset; purchasers bear the burden of investigating the entire history of a title and not merely relying on searches and that any title founded on fraud or illegal allocation is incapable of conferring enforceable proprietary rights. 72.The Plaintiff a relied heavily on the Supreme Court decision in the case of Sehmi & Another v Tarabana Company Limited & 5 Others [2025] KESC 21 (KLR) (11 April 2025) (Judgment); which case involved land that had been allocated to a third party despite a pending lease renewal application by the Sehmi family. The Supreme Court ultimately held that the allocation was irregular and that the subsequent purchaser acquired no valid title. 73.The Plaintiff emphasized that the Supreme Court reaffirmed; that an irregular allocation cannot confer ownership rights; a purchaser cannot obtain a better title than that held by the seller, the defence of innocent purchaser for value cannot validate an unlawful title, due diligence requires inquiry beyond the register, particularly where there are apparent warning signs regarding ownership. 74.Applying those principles to the present case, the Plaintiff argued that the 2nd and 3rd Defendants failed to conduct adequate due diligence, and had they done so, they would have discovered several red flags, including that: the 1st Defendant was not a member of the adjudication section; the 1st Defendant was not the deceased’s wife; and that the 1st Defendant altered or rectified her name on the title from Magdalinah Mwikali Kasura to Magdalinah Mwikali Kioko after the death of Solomon Leperes Kasura, the original owner of the suit land. 75.The Plaintiff ultimately argued that the 2nd and 3rd Defendants cannot rely on the doctrine of innocent purchaser for value because they acquired a title whose root was fraudulent and unlawful. 76.On whether the court can order for the rectification of the register, the Plaintiff submitted that this Court has jurisdiction under section 80 of the Land Registration Act, 2012 to rectify the register and cancel any title shown to have been obtained through fraud, illegality, or procedural impropriety. 77.To support this position, the Plaintiff relied on the case of Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others (2015) eKLR where the court held;“It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. Where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation. However, where a person intends to indict a title on the ground that the title has been acquired illegally, unprocedurally, or through a corrupt scheme, my view has been, and still remains, that it is not necessary for one to demonstrate that the title holder is guilty of any immoral conduct on his part. I had occasion to interpret the above provisions in the case of Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & Another, Eldoret ELC Case No. 609 B of 2012 where I stated as follows: -"…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions."“I stand by the above words and I am unable to put it better that I did in the said dictum.” 78.On who bears the costs of the suit, the Plaintiff referred to the Black Law Dictionary’s definition of cost to mean:“The expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other.” 79.The Plaintiff, submitted that costs follow the event as provided under Section 27 (1) of the Civil Procedure Act, and prayed that costs be awarded to him. 80.The Defendants filed their written submissions dated 13th April 2026, through Ombati D.B Advocates, and after laying out the background of the case set out the following issues for determination;i.Whether the Plaintiff’s father has ever been registered to the suit land to warrant it to form part of the estate of Solomon Leperes Kasura.ii.Whether the initial registration of the suit property Cis Mara/ Enabelbel-Enengetia/77 to Magdaline Mwikali Kioko was irregular, null and void and impeachable.iii.Whether the title held by the 2nd and 3rd Defendants are impeachable?iv.Whether the court can order for the rectification of the register?v.Who should bear costs of the suit? 81.On the first issue, the Defendants submitted that though the Plaintiff filed this suit and averred that the suit property was a preserve of his father, the late Solomon Leperes Kasura, the Plaintiff did not avail any documents to prove that the said land was ever registered in the name of Solomon Leperes Kasura (deceased) during his lifetime. 82.On whether the registration of the initial land parcel Cis Mara No 77 to Magdalene Mwikali Kioko was irregular, null & void and impeachable, the Defendants submitted that the correction of names was done during the lietime of Solomon Leperes Kasura, and she changed the name to conform with the names in her Identity Card. Further, that the said Solomon Leperes Kasura had even placed a caveat on the title of the suit land and did not complain about the name on the title. 83.Reliance was placed in the case of Rvs Director of Land Adjudication& Another Exparte Stanley Mbiuki(2015) EKLR, where the court held; “recording of the existing rights was final and if there was no objection, the same should not be altered.” 84.Further reliance was sought in the cases of Peter Kimandiu vs Land adjudication Officer Tigania Weat District & 4 Others(2018)eKLR, and Benson Njagi vs Wilson Miriti Thaara CA Case No E126/2025, to support their claim that the 1st Defendant’s name was entered in the adjudication record in a regular manner without undue interference. 85.On whether the title held by 2nd and 3rd Defendants were impeachable, the Defendants relied on Sections 24, 25 and 26(1)(a) & (b) of the Land Registration Act, on the absolute and indefeasibility of titles; and Section 27 of the Registered Land Act Cap 300 (now repealed). 86.For the above submissions, reliance was placed in these cases; Dr Joseph Arap Ngok Vs Justice Moijo Ole Keiwua& 5 Others; Munyu Maina vs Gathiha Maina(2013) eKLR, and they submitted that a registered owner has absolute and indefeasible title and also the case of Samuel Kamere Vs. Land Registrar Kajiado Kenya Civil Appeal No. 28 of 2005 (2015) eKLR, where the court held that bonafide purchase for value without notice may be protected if they acquired a valid and legal title. 87.On whether the court can order for rectification of the register: the Defendants relied on Article 40(6) of the Constitution of Kenya as read with Section 26 of the Land Registration Act 2012 and submitted that a person named on the title is premafaciely held to be the proprietor. Reliance was sought in the case of Isaac Gathungu Wanjohi Vs. AG & 6 Others [2012] eKLR. 88.On who bears the costs of this suit: they relied on Section 27(1) of the Civil Procedure Act and also sought reliance in the case of Court of Appeal in Muchanga Investments Ltd. Vs. Safaris Unlimited (Africa) Ltd. [2009] eKLR and Orix (K) Ltd. Vs. Paul Kabeu & 2 Others [2014] eKLR, where the court held that costs follow the event unless for good reasons. They urged the court to award them cost. 89.The above are the pleadings, and the available evidence as tendered by the parties in court. Having considered the entire pleadings, evidence tendered, the exhibits produced and the rival written submissions the Court finds the issues for determination are; 1.Whether the registration of the 1st Defendant as proprietor of land parcel Cismara/Enabelibel/Enengetia/77 was lawful and valid. 2.Whether the titles held by the 2nd and 3rd Defendants are impeachable. 3.Whether the Plaintiff is entitled to the orders sought, including rectification of the register. 4.Who should bear the costs of the suit. i).Whether the registration of the 1st Defendant as proprietor of land parcel Cismara/Enabelibel/Enengetia/77 was lawful and valid. 90.The Plaintiff's case is hinged on the allegations that the suit property was originally allocated to his deceased father, Solomon Leperes Kasura, by the defunct Mau County Council in 1968, and that during the adjudication process the 1st Defendant fraudulently caused the property to be registered in her own name. 91.The Defendants, on the other hand, argued that the deceased (Solomon Leperes Kasura) voluntarily transferred the suit land to the 1st Defendant (Magdalene Mwikali), whom they maintained was one of the wives of the said Solomon Leperes Kasura, and that she was therefore lawfully registered as proprietor of the suit land, and legally sold a portion of it to the 3rd Defendant herein. 92.It is trite that the burden of proof lies on “he who alleges.” Further, the burden of proving fraud rests upon the party alleging such fraud, although the standard of proof is not beyond reasonable doubt, but it is higher than on a balance of probabilities as was held in the case of Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR. 93.The Court has carefully evaluated the evidence placed before it, as tendered by all the witnesses. It is not disputed that the deceased (Solomon Leperes Kasura) was the original allottee of this land parcel No. 77. Indeed, the Defendants expressly admitted in paragraph 13 of their Defence that the deceased (Solomon Leperes Kasura) was the allottee of the suit property. 94.The central question herein is how ownership moved from the deceased (Solomon Leperes Kasura) to the 1st Defendant (Magdalene Mwikali-deceased) The Defendants' position is that the deceased (Solomon Leperes Kasura) voluntarily transferred the suit property to the 1st Defendant, Magdalene Mwikali( now deceased), who was his wife. 95.Since the Defendants are the ones who have alleged such transfer, the burden shifted to them to avail such evidence of the said transfer, from Solomon Leperes Kasura to Magdalene Mwikali Kioko. However, no transfer instrument, consent, adjudication record, gift document, surrender, allocation document, or any other documentary evidence was produced to demonstrate how the 1st Defendant (Mwikali) became entitled to registration of this suit land, which had been allocated to Solomon Leperes Kasura (deceased). 96.More significantly, DW1 admitted during cross-examination that the 1st Defendant (Magdalene Mwikali) was not a member of the adjudication section, and that he did not know how the land came to be registered in her name. The said admission is particularly significant because the Plaintiff's case is founded upon the allegation that the 1st Defendant (Magdalene Mwikali-now deceased), improperly inserted herself or her name into the adjudication process and procured registration in her own name, whereas she was not a member of the said adjudication section. 97.Once the Plaintiff demonstrated that the deceased (Solomon Leperes Kasura) was the original allottee, and questioned the root of the 1st Defendant's title, the evidential burden shifted to the Defendants to explain the legality of the registration. This principle was succinctly stated by the Court of Appeal in the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR, that where the root of title is challenged, it is not enough for a proprietor to wave a title deed; he must demonstrate the legality of its acquisition. The Defendants herein had that obligation or duty to demonstrate the legality of Mwikali’s acquisition of the title, which they failed to discharge as required by the law. 98.The Court has further noted that the title was initially registered in the name of “Magdalinah Mwikali Kasura” and later rectified to “Magdalinah Mwikali Kioko”. There was no satisfactory explanation offered as to why the 1st Defendant( Magdalene Mwikali) assumed the surname “Kasura” in the adjudication records The Plaintiff, alleged that the intention was to create the impression that she was the deceased's lawful spouse and therefore entitled to the land. However, it was not clear why she later changed to Kioko from Kasura. Further, her only son the 2nd Defendant did not bear the name Kasura, but Kioko which was his mother’s surname and it was suspect why the 2nd Defendant did not acquire the surname of Kasura. 99.Although the Defendants insisted that the deceased (Solomon Leperes Kasura) took no legal action to challenge the registration during his lifetime, it is mere passage of time cannot sanitize a title that is shown to have been acquired illegally or through fraud. See the case of Lenguyana v Leseli (Environment and Land Appeal E012 of 2025) [2025] KEELC 18467 (KLR) (Environment and Land) (16 December 2025) (Judgment). It is evident that Article 40(6) of the Constitution expressly denies constitutional protection to property that has been unlawfully acquired. 100.Having considered the totality of the available evidence, this Court finds and holds that the Defendants failed to establish any lawful process through which the deceased (Solomon Leperes Kasura) divested himself of the suit property in favour of the 1st Defendant( Magdalene Mwikali Kioko-now deceased). 101.On a balance of probabilities, this court finds that the registration of the 1st Defendant (Magdalene Mwikali-deceased) as proprietor of Land parcel Cismara/Enabelibel/Enengetia/77, was obtained unlawfully, unprocedurally and through misrepresentation and is therefore impeachable under Section 26(1)(a) and (b) of the Land Registration Act.ii).Whether the titles held by the 2nd and 3rd Defendants are impeachable. 102.It is common ground that the original land parcel No. 77 was subdivided into various parcels of land, being Cismara/Enabelibel/Enengetia/1610–1616, and some of those resultant land parcels were transferred to the 2nd and 3rd Defendants. However, this court has found that the root of 1st Defendant’s title is suspect, and her registration as the owner of the said title cannot stand and is impeachable. 103.The 3rd Defendant argued that he is a bona fide purchaser for value without notice, and that before purchasing his portion of land, which he has fenced, he conducted due diligence and found no encumbrances. However, the jurisprudence coming from the superior courts is that when the root of the title is tainted, the subsequent titles emanating from that tainted title are also tainted, and impeachable under Sections 26 and 80 of the Land Registration Act. 104.It is trite that the doctrine of bona fide purchaser for value is well established. However, that doctrine cannot protect a purchaser where the root of the vendor's title is itself defective. As stated by the Court of Appeal in the case of Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR, a title founded upon fraud cannot confer valid proprietary rights upon subsequent transferees. 105.Similarly, Section 26(1)(b) of the Land Registration Act permits impeachment of a title that has been acquired illegally, unprocedurally or through a corrupt scheme even where the current holder is innocent. The Supreme Court in the case of Sehmi & Another v Tarabana Company Limited & 5 Others [2025] KESC 21 (KLR), reaffirmed that where the root of title is unlawful, subsequent purchasers acquire no better title than that possessed by their transferor. 106.Further, the maxim nemo dat quod non habet applies with full force herein. This doctrine emphasize that "no one gives what they do not have" and is a fundamental principle that a seller or transferor of property cannot pass a better title than what he/she possesses. If the title is defective or non-existent, the buyer also gets no title. See the case of Kamau & another v Nganga & 3 others [2025] KEELC 18678 (KLR) 107.Having found that the 1st Defendant (Magdalene Mwikali-deceased) acquired no valid title over land parcel No. 77, then it follows that she had no lawful title capable of being transferred to the 2nd Defendant or sold to the 3rd Defendant. Therefore, this court finds and holds that the 2nd and 3rd Defendants did not acquire good titles, flowing from a tainted title held by the 1st defendant (Now deceased). 108.Having analyzed the evidence as above, this Court therefore finds and holds that the titles presently held by the 2nd and 3rd Defendants are equally impeachable and liable to cancellation, since they did not acquire good title, and cannot rely on the doctrine of innocent purchaser for value without notice, Due diligence was key.iii).Whether the Plaintiff is entitled to the orders sought. 109.Section 80(1) of the Land Registration Act provides that:“Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that the registration was obtained, made or omitted by fraud or mistake.” 110.Having found that the registration of the 1st Defendant (Magdalene Mwikali-deceased) was unlawful and that all subsequent transactions that flowed from that defective title were also defective or tainted, null and void, then this Court is satisfied that this is a proper case for rectification of the register. 111.The available evidence has established that land parcel No. Cismara/Enabelibel/Enengetia/77, was subdivided into various parcels of land being; Nos. 1610–1616. Since those subdivisions emanated from an impeachable title, they cannot stand. Accordingly, the resultant titles are liable to cancellation and the register restored to reflect the lawful position. For avoidance of doubt, the titles held by 2nd and 3rd Defendants are included in the impeached titles. 112.It is evident that the original allottee (Solomon Leperes Kasura) is not alive, he is a deceased person and that is why the suit was filed by the legal representative of his estate. Consequently, the property cannot be transferred directly to him as prayed in the Plaint. The proper order is for restoration of the suit property to the Estate of Solomon Leperes Kasura to be administered and distributed in accordance with the law of succession.iv).Who should bear the costs of the suit 113.Costs ordinarily follow the event pursuant to Section 27 of the Civil Procedure Act, but ordinarily costs are awarded to the successful litigant. The Plaintiff herein has substantially succeeded in his claim, and the Court finds no reason to depart from the general rule that costs follow the event. 114.Consequently, costs of this suit is awarded to the plaintiff to be borne by the Defendants herein jointly and severally. 115.Ultimately, the court finds that the Plaintiff has proved his case against the Defendants herein, on the required standard of balance of probabilities. For the above reasons, judgment is entered for the Plaintiff against the Defendants herein jointly and severally in the following terms;i.A declaration is hereby issued that land parcel Cismara/Enabelibel/Enengetia/77 was unlawfully and fraudulently registered in the name of Magdalinah Mwikali Kasura alias Magdalinah Mwikali Kioko and that the said registration is null and void.ii.A declaration is hereby issued that parcel Cismara/Enabelibel/Enengetia/77, forms part of the Estate of the late Solomon Leperes Kasura.iii.An order is hereby issued cancelling all subdivisions and resultant titles arising from parcel Cismara/Enabelibel/Enengetia/77, including parcels Cismara/Enabelibel/Enengetia/1610–1616.iv.The Land Registrar, Narok County, is hereby directed to rectify the land register by cancelling the registrations in favour of the 1st, 2nd and 3rd Defendants and restoring parcel Cismara/Enabelibel/Enengetia/77 to the Estate of the late Solomon Leperes Kasura.v.Upon restoration of the register, the property shall form part of the Estate of Solomon Leperes Kasura and shall be dealt with in succession proceedings before the appropriate court.The Defendants shall jointly and severally bear the costs of this suit.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 4TH DAY OF JUNE 2026.L. GACHERUJUDGE.Delivered in the presence of:Elijah Meyoki – Court AssistantMr Kamwaro for the Plaintiff.Mr Ombati & Ms Mogere for the Defendants.L. GACHERUJUDGE4TH June 2026