Kiambi v Kiambi & 3 others (Environment and Land Case E019 of 2025) [2026] KEELC 3590 (KLR) (28 May 2026) (Judgment)

Kiambi v Kiambi & 3 others (Environment and Land Case E019 of 2025) [2026] KEELC 3590 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELC 3590 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Case E019 of 2025 JO Mboya, J May 28, 2026 Between Roseta Umotho Kiambi Plaintiff and Fredrick Kiambi 1st Defendant Rael Gakii 2nd Defendant Gerald Mbaabu Gitonga 3rd Defendant The Hon. Attorney General [Sued on Behalf of the The Land Registrar South Imenti] 4th Defendant Judgment 1.The Plaintiff has approached the court vide plaint dated the 30.06.2025 and wherein the Plaintiff has sought reliefs pertaining to and concerning LR NO. Abogeta/U-Kiongone/275 [now subdivided into various portions]. The reliefs sought at the foot of the plaint are:a.A declaration that the Defendant holds the Suitland in trust for the Plaintiffs and that the Defendant is in breach of trust.b.An order directing the 1st, 2nd and 3rd Defendant to surrender the title deed and execute all the necessary documents to enable cancellation of sub division and transfer of LR. Number Abogeta/U-Kiungone/275 [now subdivided into 5621, 5622, 5623 and 5624 into the joint names of the Plaintiff and 1st Defendant failure to which the deputy Registrar execute the said documents.c.An order for the equal subdivision of the land the eventual transfer of the equal shares to the Plaintiff’s name or in the alternative a permanent injunction restraining the 1st Defendant from alienating or disposing parcel number Abogeta/U-Kioungone/275 [now subdivided into 5621, 5622,5623 and 5624] or in any other way dealing with the Plaintiff beneficial ownership of the suit land in way without the Plaintiff and the other family members knowledge and express consent. 2.The Plaintiff has raised and canvassed various assertions. The assertions are: The Plaintiff got married to the 1st Defendant; the marriage was celebrated in the year 1990; thereafter the Plaintiff and the 1st Defendant resided on L/R No. Abogeta/U-Kiongene/398; the said land was [sic] registered in the name of Salesio Kaburu Mugaine [now deceased]; the said Salesio Kaburu Mugaine was the father of the 1st Defendant; upon the death of the father of the 1st Defendant, the 1st Defendant took out succession proceedings in respect of the estate of the deceased; the original parcel of land, now said to be L R No. Abogeta/U-Kiongone/275 was transferred to and registered in the name of the 1st Defendant; and the 1st Defendant holds the original property on trust for the Plaintiff. 3.Additionally, it has been contended thus: the original parcel of land was ancestral/family land; the original parcel of land did not belong to the 1st Defendant absolutely; the 1st Defendant held the original parcel of land on the basis of customary trust; and the 1st Defendant has no capacity to sell/alienate the original parcel of land or its subdivisions. 4.Nevertheless, it has been posited that despite holding the original parcel of land on the basis of customary trust, the Defendant has: Proceeded to charge the original parcel of land; procured a banking facility on the basis of the security of the title of the original parcel of land; subsequently discharged the property; caused the original property to be subdivided into four portions; sold a portion thereof to the 2nd Defendant; transferred another portion to the 1st Defendant; and retained two other portions. 5.Flowing from the foregoing, the Plaintiff has posited that the actions of the 1st Defendant namely; subdividing the original parcel of land; selling a portion thereof the 3rd Defendant; transferring one portion to the 2ND Defendant; and retaining two other portions in his name, have violated the Plaintiff’s right to and entitlement over the original parcel of land. 6.In the premises, the Plaintiff has sought the various reliefs, whose details have been highlighted elsewhere hereinbefore. 7.The 1st and 2nd Defendant duly entered appearance and filed a statement of defence. The statement of defence is dated the 05.12.2025. The 1st and 2nd Defendants have posited thus: The original parcel of land belonged to and was registered in the name of 1st Defendant; the 1st Defendant was the lawful proprietor thereof; the 1st Defendant has the capacity to deal with the original parcel of land. The 1st Defendant pledged the title in respect of the original parcel of land to secure a financial facility; the financial facility was advanced to Salesio Kiogora Kiambi; Salesio Kiogora Kiambi is a son of the 1st Defendant; and Salesio Kiogora Kiambi was obligated to refund the monies at the foot of the loan facility. 8.In addition, it has been stated thus: Salesio Kiogora Kiambi failed to liquidate the financial facility; the chargee threatened to sell/dispose of the original parcel of land; the 1st Defendant sought the intervention of the 1st Defendant to salvage the original parcel of land; the 3rd Defendant paid/liquidated the loan sum; the certificate of title in respect of the original parcel of land was discharged. 9.Furthermore, it has been contended that upon the discharge of the original title, the 1st Defendant proceeded to and subdivided the original parcel of land, the same was subdivided into four portions; One portion was sold to and transferred in favour of the 3rd Defendant; the other portion was transferred to and in favour of the 2nd Defendant; and the 1st Defendant retained two portions arising from the original parcel of land. 10.1st Defendant has further averred that the sale and transfer of a portion of the original parcel of land to and in favour of the 3rd Defendant was informed by the payment of the monies that were due and payable to the chargee. Moreover, it has been posited that the sale and transfer of a portion of the original parcel of land in favour to the 3rd Defendant was preceded by a meeting involving the Plaintiff; the 1st Defendant; the 3rd Defendant; and one other witness, who witnessed the meeting. 11.In the premises, the 1st and 2nd Defendant have contended that: The Plaintiff herein is not entitled to a portion of the suit property; the original parcel of land was never held in trust for the Plaintiff; the Plaintiff has not proven the element[s] of customary trust; and the Plaintiff’s suit does not disclose any reasonable cause of action. 12.The 3rd Defendant duly entered appearance and filed a statement of defence dated the 05.12.2025. The 3rd Defendant has posited thus: The title in respect of the original parcel of land was charged to Yetu Sacco Limited; Yetu Sacco Limited sought to sell/dispose of the original parcel of land. The 1st Defendant and the Plaintiff sought his intervention to save the property; the 3rd Defendant agreed to do so; the 3rd Defendant paid the loan sum to the chargee; and the original title was released. 13.Additionally, the 3rd Defendant has posited that following the discharge of the original title, the 1st Defendant transferred one of the resultant portions to the 3rd Defendant; the sale was preceded by a meeting which involved inter alia; the Plaintiff; the 1st Defendant; and the 3rd Defendant, respectively. 14.It has been contended that the insofar as the sale of a portion of the original parcel of land to the 3rd Defendant was preceded by due diligence; and involvement of the Plaintiff, the 3rd Defendant accrued bona fide parcel of land namely; Abogeta/U-Kiungone/5621. To this end, the 3rd Defendant has posited that same is a lawful and bona fide purchaser for value. 15.The 4th and 5th Defendants duly entered appearance and filed a statement of defence. The statement of defence was filed by the Hon. Attorney General. The 4th and 5th Defendant denied the accusations leveled against same. Furthermore, the 4th and 5th Defendants posited that the 4th Defendant duly undertook and executed its statutory mandate. In this regard, it has been averred that the Plaintiff has no cause of action against the 4th and 5th Defendant. 16.The matter came up for directions whereupon the parties confirmed that the same had filed and exchanged list and bundle of documents; the list of witnesses; and the witness statements. Thereafter, the advocates for the parties posited that the matter was ready for hearing. 17.The Plaintiff’s case is premised on the evidence of three [3] witnesses. The witnesses are: Roseta Umotho Kiambi; Salesio Kiogora Kiambi; and Bernard Koome Murithi. The witness testified as PW1, Pw2 and PW3, respectively. 18.It was the testimony of PW1 [Roseta Umotho Kiambi] that same is the Plaintiff in respect of the instant matter. In addition, the witness averred that by virtue of being the Plaintiff, same is conversant with the facts of this case. Moreover, the witness posited that same has since recorded a witness statement recorded on the 20.06.2025. Thereafter the witness sought to adopt and rely on the contents of the witness statement as the evidence in chief. Suffice it to state that the witness statement was thereafter adopted and constituted as the evidence in chief of the witness. 19.Additionally, the witness averred that she has equally filed and served a list and bundle of documents dated the 30.06.2025 containing two documents. In this regard, the witness sought to produce and tender before the court the two documents as Exhibit P 1 and P2, respectively. 20.Other than the foregoing, the Plaintiff referenced the plaint dated the 30.06.2025 and thereafter, the witness sought the various relief[s] contained thereunder. 21.On cross examination by the Counsel for the 1st ,2nd and 3rd Defendants [herein referred to as the named Defendants], the witness contended that same was married to the 1st Defendant. Besides, the witness averred that upon her marriage she went to live with the 1st Plaintiff on the original parcel of land which was registered in the names of the 1st Defendant’s father [now deceased]. Moreover, the witness averred that same is still residing on the land todate. 22.While still under cross examination, the witness testified that she has a house on the land. In addition, the witness posited that the house is a small one, but it is connected with the house of one Kiogora Kiambi [the son of the 1st Defendant]. 23.It was the further testimony of the witness that she no longer lives on the suit property. The witness averred that she has since moved out and has rented some houses belonging to Jane Mweria. The witness averred that she has rented out two rooms and one is being used for business and the other is being used for purposes of accommodation. 24.It was the further testimony of the witness that even though she has rented a house and wherein same is carrying out business and residing she [witness], is still having a house on the land. Moreover, the witness denied a suggestion that it is the 2nd respondent, who is currently residing on the land. 25.PW1 further testified that the original parcel of land was family land. In addition, the witness averred that she has complained because the 1st Defendant has sold the family land without involving her and the children. Furthermore, the witness averred that the original parcel of land was charged without her knowledge and involvement. 26.Upon being referred to her witness statement, the witness averred that she has alluded to the loan which was given to the 1st Defendant on the charge of the original parcel of land. The witness further clarified that the loan was taken by the 1st Defendant and not Salesio Kiogora Kiambi. 27.Regarding document number one [1] at the foot of the Defendants’ list and bundle of documents, the witness pointed out that the document is a charge. In addition, the witness averred that the borrower according to the charge document/ Instrument is Salesio Kiogora Kiambi. 28.It was the further testimony of the witness that same is familiar with the 3rd Defendant. In particular, the witness averred that the the 3rd Defendant is the person who bought a portion of the original parcel of land. Nevertheless, the witness averred that she was not aware that the land was about to be sold vide public auction. 29.While still under cross examination, the witness testified that she was not the one who persuaded the 3rd Defendant to a buy a portion of the original parcel of land. Moreover, the witness testified that she did not send James Kimathi Ndegwa to persuade the 3rd Defendant to purchase a portion of the original parcel of land. Furthermore, the witness testified that she was not aware that a portion of the land was being sold. In any event, the witness testified that it is the 1st Defendant who sold a portion of the original parcel of land. 30.On cross examination by the learned counsel for the 4th and 5th Defendants, the witness testified that same [witness] has indicated in her witness statement that the original parcel of land, was subdivided. In addition, the witness posited that she has sued the Land Registrar because the Land Registrar caused the various subdivisions to be registered without notice to her and her family members. 31.It was the further testimony of the witness that the land in question belonged to the 1st Defendant. However, the witness clarified that the land was held on trust. 32.The 2nd witness who testified on behalf of the Plaintiff was Salesio Kiogora Kiambi. The witness testified as PW2. 33.It was the testimony of the witness [PW2] that same is conversant with the facts of the case. In addition, the witness averred that same has since recorded a witness statement dated the 16.01.2026 and not 16.01.2025. Thereafter, the witness sought to adopt and rely on the contents of the witness statement as his evidence in chief. Suffice it to state that the witness statement was thereafter adopted and constituted as the evidence in chief of the witness. 34.On cross examination by learned counsel for the 1st, 2nd and 3rd Defendants, the witness testified that he is conversant with the original parcel of land. Furthermore, the witness testified that he used to live/reside on the original parcel of land. Besides, the witness posited that he used to cultivate the land and to grow tea leaves. 35.It was the further testimony of the witness that he took out and obtained a loan facility from Yetu Sacco. The witness clarified that the loan was 1,300,000/= only. Moreover, the witness averred that same used his shares in the sacco to secure the loan. 36.While still under cross examination, the witness averred that the loan facility that he obtained from Yetu Sacoo in the sum of Kshs. 1,300,000/= only, was secured by the title of the original parcel of land namely; Abogeta/u-Kiungone/275. 37.Upon being referred to a copy of the charge document, the witness posited that the charge document shows that the borrower of 2,400,000/=only was Salesio Kiogora Kiambi. In addition, the witness posited that the charge document also bears his identity card number. However, the witness denied having borrowed the sum of Kshs. 2,400,000/= as shown in the foot of the charge document. It was the further testimony of the witness that the 1st Defendant was the one who sold a portion of the original potion of land to the 3rd Defendant. However, the witness clarified that he was not aware that the land had been scheduled for sale by way of public auction. 38.Upon being referred to document number 3 at the foot of the 1st, 2nd and 3rd Defendant list and bundle of documents, the witness pointed out that the document in question is a copy of the sale agreement entered into between the 1st Defendant and the 3rd Defendant. Moreover, the witness stated that he has seen his name on the sale agreement. The witness also averred that the sale agreement is indicated to have been witnessed by: Rael Gakii; Salesio Kiogora Kiambi and Elias Muriuki. 39.While still under cross examination, the witness testified that even though his name and identity card number is shown at the foot of the sale agreement between the 1st and 3rd Defendant, he was not a witness to the sale agreement. In addition, the witness denied the signature attributed to him. Be that as it may, the witness stated that no one has ever been arrested and charged with forgery of his signature. 40.It was the further testimony of the witness that even though he lodged a complaint with the police as pertains to the forgery of the signature, he has not availed/produced a copy of the occurrence book [O B] before the court. Moreover, the witness testified that despite the fact that the 1st Defendant sold a portion of land to the 3rd Defendant, the witness has not been shown the sold portion of land. 41.While still under cross examination, the witness testified that he has a house on the portion of the suit property. However, the witness posited that he did not agree to remove his house from the sold portion of the land. Nevertheless, the witness conceded that the house sits on a portion of the land which was sold to the 3rd Defendant and which is currently registered in the name of the 3rd Defendant. 42.Regarding whether he [witness] has colluded with the Plaintiff to bring the case, the witness testified that he has not colluded with the Plaintiff with a view to removing the 3rd Defendant from the land. 43.The last witness who testified on behalf of the Plaintiff was Bernard Koome Murithi. The witness testified as PW3. 44.It was the testimony of the witness [PW3] that same has since recorded and filed a witness statement. In addition, the witness stated that the statement is dated 15.01.2025. Furthermore, the witness sought to adopt the witness statement as his evidence in chief. Thereafter, the Witness statement was duly adopted and constituted as the evidence-in-chief of the Witness. 45.On cross examination by learned counsel for the 1st , 2nd and 3rd Defendants, the witness averred that the 1st Defendant is his brother. Furthermore, the witness posited that the Plaintiff is his[ Witness] sister in law. The witness pointed out that the Plaintiff has rented a house at the market wherein the Plaintiff lives/resides. The Witness clarified the Plaintiff does not reside on the Suit properties. 46.It was the further testimony of the witness that one Salesio Kiogora Kiambi also lives and resides at the rented houses. Nevertheless, the witness conceded that the Plaintiff does not reside on the suit land. 47.With the foregoing testimony the Plaintiff’s case was closed. 48.The 1st and 2nd Defendants’ case is premised on the evidence of three [3] Witnesses. The witnesses are: Fredrick Kiambi Mugaine; Rael Gakii; and James Kimathi Micheni. The witnesses testified as DW1, Dw2 and DW4, respectively. 49.It was the testimony of DW1 [Fredrick Kiambi Mugaine] that he is the 1st Defendant in respect of the subject matter. In addition, the witness averred that he is familiar with the facts of the case. Moreover, the witness posited the he has since recorded and filed a witness statement. To this end, the witness referenced the witness statement dated the 05.12.2025. Thereafter, the witness sought to adopt and rely on the witness statement as his evidence in chief. Suffice it to state that the witness statement dated the 05.12.2025 was duly adopted and constituted as the evidence in chief of the witness. 50.Additionally, the witness referenced the list and bundle of documents dated the 08.12.2025 containing 22 documents; and which documents, the witness sought to tender and produce before the court as exhibits. There being no objection to the production of the documents, same were tendered and produced as exhibits D1 to D22, respectively. 51.The witness further adverted to the statement of defence dated the 05.12.2025 and which defence the witness sought to adopt and rely on as his defence. 52.On cross examination by learned counsel for the 4th and 5th Defendants, the witness averred that the original parcel of land was previously registered in his [witness] father’s name. Thereafter, the witness averred that upon the death of his father, he undertook succession and the land was transmitted to his name. 53.It was the further testimony of the witness that the original parcel of land which was subdivided, ceased to exist. Moreover, the witness testified that upon the subdivision, he procured and obtained the land control board consent to transfer the subdivisions. The witness clarified that he went to the land board twice. Further, and in addition, the witness averred that the stamp duty and the consequential payments were made before the resultants sub-divisions were transferred. 54.While still under cross examination, the witness testified that all the transactions affecting the subdivisions; and transfers of the resultant parcels of land were duly recorded/captured in the green card. Upon being referred to exhibit D7, the witness averred that the document is a copy of the green card bearing the name of the third Defendant. 55.On cross examination by learned counsel for the Plaintiff, the witness testified that he got married to the Plaintiff in the year 1990. Moreover, the witness also posited that he got married to the 2nd Defendant in the year 2004. Nevertheless, it was the testimony of the witness that by the time he was getting married to the 2nd Defendant, the Plaintiff had long left the matrimonial home. 56.Upon being referred to exhibit D1, the witness averred that the document is a copy of the charge dated 24.04.2020. In addition, the witness posited that the borrower is indicated to be Salesio Kiogora Kiambi. Moreover, the witness averred that the amount which was being borrowed is indicated to be Kshs. 2,400,000/= only. 57.Regarding whether the amount in question was repaid, the witness testified that the borrower [Salesio Kiogora Kiambi] did not repay the loan amount. Furthermore, upon being shown a copy of the green card [a copy of the green card] the witness testified that the charge relating to the borrowing of the sum of Kshs. 2,400,000/= only was duly shown on the green card. 58.Regarding exhibit D3, the witness testified that the document is a copy of the sale agreement that was entered into between himself and the 3rd Defendant. The witness testified that the sale agreement was duly signed by himself; the 3rd Defendant; and three other witnesses, including Salesio Kiogora Kiambi. 59.It was the further testimony of the witness that Salesio Kiogora Kiambi duly signed the sale agreement in the presence of the advocates. Besides, the witness confirmed that Salesio Kiogora Kiambi signed the sale agreement as a witness. The witness added that the signature by Salesio Kiogora Kiambi was affixed in his presence. 60.While still under cross examination, the witness testified that original parcel of land was subdivided into four [4] portions. The witness clarified that the resultant parcels include; 5621, 5622, 5623 and 5624, respectively. 61.The next witness was Rael Gakii. Same testified as DW2. 62.It was the testimony of the witness that same is the 2nd Defendant in respect of the instant matter. The witness added that she has since recorded and filed a witness statement. To this end, the witness referenced the witness statement dated the 05.12.2025 and which statement the witness sought to adopt and rely on as her evidence in chief. Suffice it to state, that the witness statement was duly adopted as her evidence in chief. 63.Furthermore, the witness referenced the statement of defence dated 06.12.2025 and thereafter sought to adopt and rely on the same. The witness invited the court to find that the Plaintiff’s suit/ case is devoid of merits and thereafter implored the court to dismiss the same. 64.On cross examination by learned counsel for the Plaintiff, the witness testified that the witness got married to the 1st Defendant in the year, 2000. The witness further testified that by the time she got married to the 1st Defendant, the Plaintiff herein had departed/left the matrimonial home. 65.It was the further testimony of the witness that the original parcel of land was subdivided by the 1st Defendant. In addition, the witness posited that a portion of land that came out of the original parcel of land was transferred to and registered in her name. 66.While still under cross examination, the witness testified that there is a portion of land which was sold to the third Defendant. Moreover, the witness testified that the portion of land was sold to salvage the entire land from being sold by way of public auction. The witness added that the threats to sell the land by public auction was because of a loan that had been taken by Salesio Kiogora Kiambi. 67.Regarding the sale agreement that was entered between the 1st and the 3rd Defendants, the witness posited that she was a witness to the sale agreement. In addition, the witness posited that Salesio Kiogora Kiambi [PW2] was also a witness. The witness clarified that the sale agreement was signed by the parties in the presence of an advocate. 68.The next witness who testified on behalf of the 1st, 2nd and 3rd Defendant was James Kimathi Micheni. The witness testified as DW4. 69.It was the testimony of the witness that same is familiar with the subject matter. In addition, the witness averred that he has since recorded and filed a witness statement dated the 18.01.2026. Furthermore, the witness sought to adopt and rely on the witness statement as his evidence in chief. Suffice it to state that the witness statement was duly adopted and constituted as the evidence in chief of the witness. 70.On cross examination by the learned counsel for the Plaintiff, the witness testified that he is familiar with both the Plaintiff and the 1st Defendant. In addition, the witness posited that the Plaintiff approached him [witness] and requested him to speak to the 3rd Defendant so that the 3rd Defendant could buy a portion of the original parcel of land and thereby save/salvage the land from being sold vide public auction. The witness added that the Plaintiff and himself met at the Plaintiff’s shop. 71.Additionally, it was the testimony of the witness that the Plaintiff requested him [witness] to arrange a meeting between the Plaintiff and the 3rd Defendant, so that the Plaintiff could speak to the 3rd Defendant in an endeavor to buy a portion of the suit property. 72.It was the further testimony of the witness, that arising from the request by the Plaintiff, he [witness] in deed arranged a meeting which took place at Ndichu market. The witness averred that the meeting was attended by the Plaintiff; the 1st Defendant, the 3rd Defendant and himself. 73.Upon being referred to exhibit D3, the witness testified that the said document is a copy of the sale agreement that was entered into between the 1st Defendant and the 3rd Defendant. The witness posited that the sale agreement references the names of the witnesses who were present at the time of the execution. However, the witness admitted that he was not a witness to the sale agreement. Moreover, the witness averred that he was not present when the sale agreement was being entered into. 74.With the foregoing testimony 1st and the 2nd Defendant’s case was closed. 75.The 3rd Defendant’s case is anchored on the evidence on the witness of two witnesses. The witnesses are Gerald Mbaabu Gitonga and Elius Kinyua Mwarania. The witnesses testified as DW3 and DW5, respectively. 76.It was the testimony of DW3 that he is the 3rd Defendant in respect of the instant matter. In addition, the witness averred that he is also a director of Yetu Sacco Limited. Furthermore, the witness testified that he has since recorded and filed a witness statement dated the 05.12.2025. Thereafter the witness sought to adopt and rely on the witness statement as his evidence in chief. Suffice it to state that the witness statement was thereafter adopted and constituted as the evidence in chief of the witness. 77.Additionally, the witness alluded to the list and bundle of document dated the 05.12.2025 and sought to rely on same. The documents under reference had been tendered as exhibit D1 to D22, respectively by DW1. Moreover, the witness referenced the Statement of defence the 05.12.2025; and thereafter sought to adopt the contents thereof. 78.On cross examination by learned counsel for the Plaintiff, the witness testified that he entered into a land sale agreement with the 1st Defendant over and in respect of a portion of the original land. The witness averred that the land in question was previously used as security for purposes of a loan which was taken from Yetu Sacco Limited. The witness averred that he paid the loan sum, on behalf of the borrower and thereafter the title was discharged. 79.While still under cross examination, testified that the sale of a portion of the original parcel of land was undertaken with the consent and involvement of the family members of the vendor. In particular, the witness referenced the the 2nd Defendant and Salesio Kiogora Kiambi, as the members of the vendors family, who were present, during the time when the Sale Agreement was being executed. 80.It was the further testimony of the witness that the Plaintiff was also aware of the sale of the land. In particular, the witness testified that the Plaintiff went to see him [witness] to beseech him to buy a portion of the original parcel of land and to save the land from being sold by public auction. 81.Additionally, the witness testified that even though the Plaintiff had approached him to buy a portion of the original parcel of land, the Plaintiff was not a witness to the sale agreement. Be that as it may, the witness reaffirmed that a sale agreement was indeed entered into and executed between himself and the 1st Defendant. Moreover, the witness clarified that the sale agreement was drawn before an advocate. 82.The next witness who testified on behalf of the 3rd Defendant was Elius Kinyua Mwarania. The witness testified as DW5. 83.It was the testimony of the witness that he is a retired officer, having worked with the National Hospital Insurance Fund [NHIF]. In addition, the witness testified that he is familiar with the facts of this case. Moreover, the witness posited that he has since recorded a witness statement dated the 15.01.2026 and which witness statement the witness sought to adopt and rely on as his evidence in chief. Suffice it to state that the witness statement was duly adopted and constituted as the evidence in chief of the witness. 84.On cross examination by learned counsel for the Plaintiff, the witness testified that he attended a meeting at Ndichu restaurant at the invitation of the Plaintiff and the 3rd Defendant. In addition, the witness clarified that he was specifically invited to attend the meeting by the third Defendant. Moreover, the witness averred that the meeting was attended by four other persons including the Plaintiff, the 1st Defendant, the 3rd Defendant, James Kimathi Micheni and himself. 85.While still under cross examination, the witness testified that the meeting was intended to discuss the intended sale of a portion of land to the 3rd Defendant. The witness confirmed that the Plaintiff was present in the meeting. Furthermore, the witness posited that the land in question belonged to the 1st Defendant. Besides, the witness posited that the intended sale was to avert the sale of the land by way of public auction. 86.Regarding the sale agreement, the witness testified that he was not party to the witness agreement. For good measure, the witness averred that he was not present when the sale agreement was entered into and executed. 87.With the foregoing testimony, the 3rd Defendant’s case was closed. 88.The 4th and 5th Defendants [ represented by the Attorney General] did not call witness. Notably, the case for the 4th and 5th Defendant was closed without any evidence being tendered. 89.Following the close of the hearing, the advocates for the parties sought time to file and exchange written submissions. To this end, the court proceeded to and issued directions pertaining to and concerning the exchange of the written submissions. The directions were: The Plaintiff shall file and serve written submissions within 21 days from the date of directions; and the Defendants shall be at liberty to file and serve written submissions within 21 days from the date of service. 90.The Plaintiff filed written submissions dated the 25.03.2026 and wherein the Plaintiff has canvassed and highlighted five [5] key issues. The issues are: Whether the suit property was ancestral or family land; Whether the suit property is matrimonial property; Whether the spousal consent of the Plaintiff was required before the original parcel of land could be charged and subsequently sold; Whether the 2nd and 3rd Defendant acquired good title to their respective parcel of land; and Whether the Plaintiff is entitled to the prayers sought. 91.The 1st, 2nd and 3rd Defendants filed two [2] sets of written submissions. The named Defendants highlighted four [4] key issues. The issues are: Whether the original parcel of land was ancestral/family land; Whether the Plaintiff has established/proved the claim on account of customary trust; Whether the suit property was matrimonial property; and Whether the Plaintiff herein has/had a beneficial interest in the suit property. 92.The 4th and 5th Defendant filed written submissions and wherein the same have canvassed two [2] key issues. The issues are: Whether the Plaintiff has established a reasonable cause of action against the 4th and the 5th Defendant; and whether the Plaintiff has proved a claim in respect of customary trust to the requisite standard. 93.Having reviewed the pleadings filed by/on behalf of the respective parties; the evidence tendered [both oral and documentary]; and upon considering the written submissions on record, four [4] key issues crystalize for determination. The issues are: Whether the Plaintiff has established and proven her claim on account of customary trust or otherwise; Whether the 3rd Defendant is a bona fide of purchaser for value with notice of any defect in the title; Whether the Plaintiff has established a reasonable cause of action against the 4th and 5th Defendants; and What reliefs [if any] ought to issue. 94.Regarding issue number one, it is important to recall and reiterate that the Plaintiff herein approached this court contending that the original parcel of land was held on trust for her and the family. Furthermore, the Plaintiff posited that the original parcel of land and by extension, the resultant subdivisions are subject to customary trust. 95.Be that as it may, the Plaintiff posited that despite the original parcel of land being subject to customary trust, the 1st Defendant proceeded to deal with the original parcel of land in violation and breach of the trust. Thereafter, the Plaintiff ventured forward and supplied the particulars of breach of trust in terms of paragraphs 10 and 19 of the Plaint. 96.It is equally important to highlight that crux of the Plaintiff’s claim was to the effect that the Plaintiff was married to the 1st Defendant; thereafter the Plaintiff and the 1st Defendant resided on the original parcel of land; the original parcel of land belonged to and was registered in the name of Salesio Kaburu Mugaine [now deceased]; upon the death of the deceased, the land was transmitted to and registered in the name of the 1st Defendant . 97.Additionally, it was the Plaintiff’s case that during her marriage to the 1st Defendant, same [Plaintiff] took care of her father in law; and planted tea bushes on the original parcel of land. To this end, the Plaintiff contented that she therefore contributed to the improvement of the original parcel of land by planting the tea bushes. 98.I have endeavored to capture and highlight the key features of the Plaintiff’s case. Suffice it to state that it was incumbent upon the Plaintiff to tender and adduce evidence to prove the assertions contained in the body of the pleadings. For good measure, it was not open for the Plaintiff to travel outside the four corners of her case. Notably, the doctrine of departure precludes a litigant from adducing evidence that is at variance with his/her case. [see order 2 Rule 6 of Civil Procedure Rules, 2010]. 99.I wish to state that even though the Plaintiff had not highlighted the case for spousal consent and whether the suit property is matrimonial property, a great deal of the evidence that was tendered by the Plaintiff; and subsequently, the Written Submissions, were geared towards proving whether the Plaintiff gave spousal consent; and whether the suit property was matrimonial property. 100.To my mind, the twin issues, which engaged the mind of the Plaintiff and her counsel, did not form part of the pleadings before the court. Consequently, I do wish to clarify that the said issues are not part of the questions for my determination. [See the holding in the case of IEBC Versus Stephen Mutinda Mule [2014] eKRL; Dakianga Distributors Limited versus Kenya Seed Company Limited [2015] eKLR; and Presbyterian Foundation versus Kibera Siranga Self Help Nursery School [2023] eKRL, respectively. 101.The critical issue that merited proof by the Plaintiff was whether or not the original parcel land and by extension the sub-divisions , were held on the basis of customary trust for the Plaintiff. The Plaintiff had raised two key aspects in an endeavor to prove customary trust. In particular, the Plaintiff highlighted the aspect that she took care of her father in-law; and planted tea bushes on the original parcel of land. 102.One would have expected the Plaintiff to bring forth evidence tailored towards proving the said assertions. Unfortunately, no evidence was tendered by the Plaintiff. I wish to repeat that the Plaintiff went off target and concentrated on the questions of spousal consent; and whether the suit property was matrimonial property. Instructively, the issues that engaged the Plaintiff and her counsel did not fall within the jurisdiction of this court. On the contrary, the question of matrimonial property and which is governed by the Matrimonial Property Act, 2013; falls within the jurisdiction of the High Court. 103.As pertains to customary trust, it was incumbent upon the Plaintiff to bring herself to the purview/ ambit of the decision in the case of Kiebia v M’lintari & another [2018] KESC 22 (KLR). The supreme court distilled the elements that must be proven and established by any claimant, the Plaintiff herein not excepted, seeking to canvass the plea of customary trust. 104.The Apex court stated thus:Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:1.The land in question was before registration, family, clan or group land2.The claimant belongs to such family, clan, or group3.The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.4.The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.5.The claim is directed against the registered proprietor who is a member of the family, clan or group. 105.In my humble view, the Plaintiff did not tender or adduce any evidence to warrant a finding of customary trust in her favour. I wish to underscore that this court can only make a positive finding in favour of a party where cogent; compelling; and concrete evidence has been tendered. Sadly, no evidence was tendered by and on behalf of the Plaintiff. On the contrary, the Plaintiff’s case was left to hang on the basis of mere assertions; and bare allegation[s]. 106.In respect of the second issue, namely; Whether the 3rd Defendant is a bona fide purchaser for value, I wish to state that by the time the 3rd Defendant was approached to buy the original parcel of land, the land in question was charged to Yetu Sacco Limited as a security by the 1st Defendant [who was the chargor]. In addition, there is no gainsaying that the Borrower was indicated to have been one, Salesio Kiogora Kiambi [PW2]. 107.Furthermore, evidence was tendered that the original parcel of land was on the verge of being sold vide public auction. To this end, the 1st Defendant on one hand, and the Plaintiff on the other hand, approached the 3rd Defendant to buy a portion of the original parcel of land, in an endeavor to salvage the property from being sold through public auction. 108.Further, and in addition, evidence was tendered by the 3rd Defendant [DW3] that before entering into the sale agreement, he facilitated the discharge of the original title which was charged to Yetu Sacoo. Moreover, DW3 also testified that he had occasion to undertake both official search and physical search. 109.Other than the foregoing, evidence abound that the 3rd Defendant actually met the Plaintiff and the 1st Defendant, together with DW4 and DW5, respectively. It was posited that the purpose of the meeting that was held at Ndichu Restaurant was to persuade the 3rd Defendant to buy the property. This evidence was neither challenged nor impugned. 110.Additionally, it is important to underscore that the 3rd Defendant tendered evidence to demonstrate that the entire purchase price was duly paid. Furthermore, the testimony by the 3rd Defendant, was corroborated by DW1. Instructively, DW1 pointed out that the entire purchase price was duly paid and acknowledged. 111.To my mind, the 3rd Defendant has met and established the ingredients underpinning the plea of bona fide purchaser for value. The ingredients under reference were illuminated in the case of Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR). The Apex Court stated as hereunder:90.the Black’s Law Dictionary 9th Edition defines a bona fide purchaser as:“One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”91.The Court of Appeal in Uganda in Katende v Haridar & Company Ltd [2008] 2 EA 173, defined a bona fide purchaser for value as follows:“For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine he must prove that:1.he holds a certificate of title;2.he purchased the property in good faith;3.he had no knowledge of the fraud;4.he purchased for valuable consideration;5.the vendors had apparent valid title;6.he purchased without notice of any fraud;and7.he was not party to the fraud.”92.On the same issue, the Court of Appeal in Samuel Kamere v Lands Registrar, Kajiado Civil Appeal No 28 of 2005 [2015] eKLR stated as follows:“…in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property... 112.I now wish to turn to the third issue. The issue relates to whether the Plaintiff has established a reasonable cause of action against the 4th and 5th Defendants, namely: The Land Registrar and the Hon. Attorney General, respectively. 113.It is common ground that the Land Registrar is tasked with the mandate and obligation to undertake registration of various statutory instruments, provided that the instruments are prepared and executed in accordance with the law. Moreover, the land registrar is called upon to interrogate whether the process that are provided for under the law have been complied with or adhered to. 114.In respect of the instant matter, the land registrar was availed assorted transfer instruments relating to the resultant subdivisions; and which transfer instruments were duly executed in accordance with the law. Furthermore, evidence was tendered that prior to the submissions of the transfer instruments for registration, the requisite land control board consents had been obtained and availed. 115.Notwithstanding the foregoing, the land registrar has been sued in the instant matter. However, there is no gainsaying the no allegations of fraud or illegality, whatsoever, have been raised or canvassed. Notably, the Plaintiff’s claim before the court relates to breach of trust by the 1st Defendant and not otherwise. 116.I have examined the pleadings before me as well as the evidence that was tendered. I am unable to discern any reasonable cause of action as against the 4th and 5th Defendants. There is no wrong doing, which has been adverted as against the named Defendants. Furthermore, no fault has been alluded to. Clearly, no liability can attach to or be attributed to a party without fault. 117.Suffice it to state that a party must espouse some cause of action known to law against the adverse party. It is not enough to merely implead a party without attributing liability. 118.What constitutes a reasonable cause of action or better still, a cause of action capable of being canvassed before a court of law was illuminated in the case of Kigwor Company Limited v Samedy Trading Company Limited [2021] KECA 810 (KLR). The Court of Appeal stated thus:“36. In the Court of Appeal case of Attorney General & another v Andrew Maina Githinji & Another [2016] eKLR Justice Waki held that:-“A cause of action is an act on the part of the Defendant, which gives the Plaintiff his cause of complaint.”“That definition was given by Pearson J. in the case of Drummond Jackson vs. Britain Medical Association (1970) 2 WLR 688 at pg 616. In an earlier case, Read vs. Brown (1889), 22 QBD 128, Lord Esher, M.R. had defined it as:-“Every fact which it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the court.”Lord Diplock, for his part in Letang vs. Cooper [1964] 2 All ER 929 at 934 rendered the following definition:-“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”When did the cause of action in this case arise? Put another way, when did the Respondents become entitled to complain or obtain a remedy ...” 119.I am afraid that no reasonable cause of action was espoused against the 4th and the 5th Defendants. Simply put, the Plaintiff is non-suited as against the said Defendants. 120.The last issue relates to the claim that were raised before the court. I wish to repeat, that the Plaintiff herein had sought a declaration that the original parcel of land and by extension the subdivisions thereof, were subject to customary trust. However, while dealing with issue number one, I pointed out that the Plaintiff had not tendered or adduced any credible evidence to prove her claim. 121.It follows therefore that the Plaintiff has not proved her claim. 122.The 3rd Defendant filed a statement of defence dated the 05.12.2025. The 3rd Defendant did not file any counter claim. Nevertheless, during the hearing, the 3rd Defendant made a plea to this court to grant an order of demolition of the house/structure belonging to PW2 and which structure sits on the portion of land belonging to the 3rd Defendant. I agree that the 3rd Defendant is the holder of the certificate of title in respect of the named property. 123.However, if the third Defendant was desirous to procure and obtain an order of eviction and demolition [whichever was deemed apposite] then it behooved the third Defendant to file a counter claim. In the absence of a counter claim, this court cannot proceed to grant a relief that has not been properly sought. [see Emuria v Sambu & 2 others [2025] KECA 1033 (KLR)] Conclusion: 124.The Plaintiff bore the burden of proving her claims before the court. The claims could only be proven on the basis of the evidence in the conventional way. In addition, the evidence, [if any], must relate to the issues pleaded and not otherwise. 125.With regard to the instant matter, the Plaintiff did not discharge the burden of proof. In the premises, I am afraid that the Plaintiff is not entitled to the remedies/reliefs that were sought. 126.Regarding costs, I am alive to the settled principle. Suffice it to state that costs do follow the event. However, there is no gainsaying the court still retains a discretion in matters of costs. The discretion must, however, be exercised on the basis of good reason[s] and sound principles.[See the decision of the Supreme court in Jasbir Singh Rai and three others [2013] eKLR]. 127.The Plaintiff and the 1st Defendant are related. The assertions that lead to the filing of the instant suit were/are wholly attributable to the 1st Defendant. In this regard, and taking into account the obtaining circumstances, it is not apposite to condemn the Plaintiff with costs. Final orders: 128.Flowing from the foregoing analysis, the final orders that commend themselves to the court are:i.The Plaintiff’s suit be and is hereby dismissed.ii.Each party shall bear own costs of the suit. 129.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 28TH DAY OF MAY, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the presence of:Court Assistant: ZakayoMr. Gikunda Kiutha holding brief for Mr. Kiutha Arithi for the 1st, 2nd and 3rd DefendantsMs. Miranda Senior Litigation Counsel for 4th and 5th Defendants.N/A for the Plaintiff