https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3289

Suleman & another v Suleman & 2 others (Environment and Land Case Civil Suit E003 of 2023) [2026] KEELC 3289 (KLR) (25 May 2026) (Judgment) Neutral citation: [2026] KEELC 3289 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Case Civil Suit E003 of 2023 LN Gacheru, J May 25, 2026 Between Hanif Ayoob Suleman 1st Plaintiff Latif Ayoob Suleman 2nd Plaintiff and Ashif Ayoob Suleman 1st Defendant Sohail Ashif Suleman 2nd Defendant Saman Ashif Suleman 3rd Defendant Judgment 1.The 1st Plaintiff instituted this suit vide a Plaint dated 6th March 2023, against the 1st Defendant, which suit was contested by the 1st Defendant vide a Defence dated 4th April, 2023. Subsequently, the Plaintiffs filed an Amended Plaint dated 4th April 2025, against the Defendants in respect of all that parcel of land known as Narok/Town/block 63 (hereinafter referred to as “the Suit Property”). 2.The Plaintiffs have averred that the 1st Defendant and themselves are sons of the late Ayoob Suleman Hajee (Deceased), while the 2nd and 3rd Defendants are sons of the 1st Defendant and the current registered proprietors of land parcel number CIS/Mara/Koiyaki Dagurugueti/2620; that the Suit Property formed part of the estate of the Deceased; and that the 1st Plaintiff was appointed as the Administrator of the estate pursuant to a Certificate of Confirmation of Grant issued by the High Court of Kenya at Nairobi on 14th July 2004 in Succession Cause No. 1357 of 2003. 3.That although the Suit Property had been distributed jointly to the Plaintiffs and the 1st Defendant, they were unable to effect the transfer and registration of the same in their joint names owing to the expiry of the lease; Consequently, the 1st Defendant was entrusted with the responsibility of renewing the lease to facilitate the transfer and registration of the Suit Property in their joint names. 4.That on 10th May 2011, the Plaintiffs, the 1st Defendant, Zarina Ayoob Suleman and Rubina Ayoob Suleman, being siblings and beneficiaries of the estate of the Deceased, entered into a Memorandum of Understanding (hereinafter referred to as “the MoU”); that pursuant to the terms thereof, it was agreed that the 1st Plaintiff would become the sole and absolute owner of the Suit Property, while in exchange, the 1st Defendant would become the sole and absolute owner of land parcel number CIS/Mara/Koiyaki Dagurugueti/2620 together with the buildings erected thereon. 5.That the Plaintiffs, acting in good faith and in fulfilment of the terms of the MoU, transferred ownership of CIS/Mara/Koiyaki Dagurugueti 2620, to the 1st Defendant; that the same was duly registered in the names of the 1st Defendant and his wife, Shelina Suleman, on 28th March 2014, as the sole and absolute owners; and that the 1st Defendant and his wife subsequently transferred land parcel number CIS/Mara/Koiyaki Dagurugueti 2620, to their two sons, the 2nd and 3rd Defendants, in whose names a lease was issued on 10th June 2021. 6.That the 1st Defendant successfully renewed the lease in respect of the suit property; that thereafter, the Suit Property was transferred and duly registered jointly in the names of the 1st Defendant, 1st Plaintiff and 2nd Plaintiff as the proprietors in 2016; and that a Certificate of Lease was subsequently issued. The Plaintiffs contended that the 1st Defendant failed to inform them that the Lease had been renewed until 2018 and has, to date, retained possession of the original Certificate of Lease relating to the Suit Property. 7.The Plaintiffs further averred that the 1st Plaintiff has on several occasions requested the 1st Defendant to effect transfer of the Suit Property to him and to surrender the original Certificate of Lease to facilitate the said transfer, but the 1st Defendant has refused, neglected, and/or failed to do so to date; and that the said requests were made as follows:a.in or about March 2021, through the 1st Plaintiff’s auditors, the 1st Plaintiff requested the 1st Defendant to avail the original Certificate of Lease to facilitate the transfer and registration of the Suit Property in the 1st Plaintiff’s name;b.on 19th May 2022, through his Advocates, the 1st Plaintiff informed the 1st Defendant that they were in the process of registering the lease of the Suit Property in his name and requested the 1st Defendant to avail the original Certificate of Lease to facilitate the said registration; andc.vide a letter dated 11th January 2023, the 1st Plaintiff, through his Advocates wrote to the 1st Defendant requesting him to comply with the terms of the Memorandum of Understanding dated 10th May 2011 by executing the transfer documents to facilitate the transfer of the Suit Property. 8.The Plaintiffs also averred that the 2nd Plaintiff has no objection to the transfer of the Suit Property to the 1st Plaintiff as the sole and absolute proprietor thereof, and has already executed the requisite transfer documents and furnished the 1st Plaintiff with all the necessary documents to facilitate the transfer; that contrary to the terms of the MoU dated 10th May 2011, the 1st Defendant has frustrated the transfer of the Suit Property to the 1st Plaintiff by withholding the Original Certificate of Lease, refusing and/or neglecting to surrender the same upon request, and further refusing to execute the transfer documents, thereby occasioning undue delay in the transfer of the Suit Property to the 1st Plaintiff. 9.Consequently, the Plaintiffs sought for judgment against the Defendants jointly and severally for:a.An order of specific performance compelling the 1st Defendant to execute the Transfer documents and furnish the 1st Plaintiff with the relevant documents, including the original Certificate of Lease for land parcel number Narok/Town/block 63 and/or otherwise facilitate the transfer of the said property to the 1st Plaintiff.b.An order authorizing the Deputy Registrar of this Honourable Court to execute the transfer documents for and on behalf of the 1st Defendant to facilitate transfer of Narok/Town/block 63 to the 1st Plaintiff in the event that the 1st Defendant fails and/or refuses to do so.c.IN THE ALTERNATIVE to prayers a) and b) and without prejudice thereto, an order restoring the Plaintiffs and the Defendants to the status quo ante prevailing prior to the Memorandum of Understanding dated 10th May 2011 by issuing an order for revocation/cancellation of the Certificate of Title issued in the names of the 2nd and 3rd Defendants in respect of land known as CIS/Mara/Koiyaki Dagurugueti 2620 and an order reinstating the Plaintiffs and the 1st Defendant as the registered proprietors thereof; andd.Costs of the suite.Any other relief that this Honourable Court deems fit and just in the circumstances. 10.The suit is contested and, in response to the Plaint dated 6th March 2023, the 1st Defendant filed a Statement of Defence dated 4th April 2023, and subsequently filed a further Defence dated 16th April 2025, in response to the Amended Plaint dated 4th April 2025; wherein he admits; that the Plaintiffs and himself are brothers, and are among the lawful beneficiaries of the estate of Ayoob Suleman Haje (Deceased), who was their father; that the 2nd and 3rd Defendants are his sons and the current registered proprietors of land parcel number CIS/Mara/Koiyaki Dagurugueti 2620; that the High Court of Kenya at Nairobi issued a Certificate of Confirmation of Grant on 14th July 2004 appointing the 1st Plaintiff as the Administrator of the estate of the Deceased; and that pursuant to the said grant, land parcel number Narok/Town/block 63, was equally distributed amongst him and the Plaintiffs. 11.The 1st Defendant, however, denied that he was tasked with the responsibility of renewing the lease of Narok/Town/block 63; and averred that the Memorandum of Understanding dated 10th May 2011, is unenforceable by virtue of being time-barred under Section 4(1) of the Limitations of Actions Act, and that any purported enforcement ought to have been undertaken before 4th May 2017; that CIS/Mara/Koiyaki Dagurugueti 2620, either formed part of the estate of the Deceased nor constituted subject matter in Nairobi H.C.C Succession Cause No. 1357 of 2003; and that the said Memorandum of Understanding could not lawfully vary, invalidate, or otherwise compromise the Certificate of Confirmation of Grant issued in the succession proceedings. 12.The 1st Defendant further averred that land parcel number CIS/Mara/Koiyaki Dagurugueti 2620, was transferred jointly to him and his wife, Shelina Suleman, and not to him solely; and that he and his wife subsequently transferred the said property to the 2nd and 3rd Defendants, who are now the indefeasible proprietors thereof. 13.Consequently, he denied that the 1st Plaintiff was unable to initiate the transfer of land parcel number Narok/Town/block 63, on account of the alleged failure by the 1st Defendant to renew the lease; that he failed to inform the Plaintiffs of the renewal of the lease, the transfer and the subsequent registration of the Suit Property in the joint names of the Plaintiffs and the 1st Defendant in 2016 up until 2018; it was his claim that he immediately informed the 1st Plaintiff who resides in Kenya, upon renewal of the lease. 14.The 1st Defendant avers that he has possession of the renewed Certificate of Lease with the full knowledge and acquiescence of the Plaintiffs; and that he is unaware of any alleged transfer of the suit property in favour of the 1st Plaintiff as the sole and absolute proprietor. The 1st Defendant further denies deliberately frustrating transfer of the Suit Property to the 1st Plaintiff by maliciously withholding the original Certificate of Lease of Narok/Town/block 63, refusing to avail the same upon request and refusing to execute the transfer documents; save to admit that the Plaintiffs transferred CIS/Mara/Koiyaki Dagurugueti 2620 to himself and his wife. 15.The 1st Defendant admitted that he is registered as co-proprietor of Narok/Town/block 63 but denied owning CIS/Mara/Koiyaki Dagurugueti 2620, through the 2nd and 3rd Defendants, his sons. He further denied the Plaintiffs’ averments that the 1st Plaintiff made numerous requests for the surrender of the original Certificate of Lease and also denied each and every particular thereof; maintaining that the MoU cannot be enforced as it is time-barred by dint of Section 4(1) of the Limitations of Actions Act; and that there existed no agreement and/or understanding that he would relinquish his ownership interest in Narok/Town/block 63 in exchange for ownership of CIS/Mara/Koiyaki Dagurugueti 2620. 16.The 1st Defendant further averred that there had been concerns regarding Narok/Town/block 63, previous proceedings being Nairobi H.C.C Succession Cause No. 1357 of 2003; that the Plaintiffs unlawfully distributed the assets forming part of the estate of the Decease; that he intends to move the High Court of Kenya at Nairobi for rectification of the Certificate of Confirmation of Grant issued in the said succession cause; and that the Amended Plaint dated 4th April 2025 does not disclose any cause of action against the 2nd & 3rd Defendants and consequently prays that the Plaintiffs’ suit against all the Defendants be dismissed with costs. 17.The 2nd and 3rd Defendants also contested the suit vide a Statement of Defence dated 16th April 2025, filed in response to the Amended Plaint; wherein they admited that they are sons of the 1st Defendant and the current registered proprietors of CIS/Mara/Koiyaki Dagurugueti 2620; that there is no averment in the Amended Plaint questioning the lawfulness of their ownership; and that the 1st Defendant and the Plaintiffs are children of Ayoob Suleman Hajee (Deceased) and among the lawful beneficiaries of his estate. 18.The 2nd and 3rd Defendants further averred that the 1st Defendant has no proprietary interest in CIS/Mara/Koiyaki Dagurugueti 2620, save for the Plaintiffs’ mere allegations to the contrary; and that they are strangers to the succession proceedings relating to the estate of the Deceased, the renewal of the lease in respect of Narok/Town/block 63, the Memorandum of Understanding dated 10th May 2011, the transfer of CIS/Mara/Koiyaki Dagurugueti 2620 to the 1st Defendant and his wife by the Plaintiffs, the alleged withholding of the original Certificate of Lease for Narok/Town/block 63 and all matter pertaining to the intended transfer of the said property to the 1st Plaintiff. 19.The 2nd and 3rd Defendants neither admitted nor denied the Plaintiffs’ averment that the 1st Defendant and his wife transferred CIS/Mara/Koiyaki Dagurugueti 2620, to them and that a lease was issued in their names on 10th June 2021. They further averred that the Plaintiffs’ suit discloses no reasonable cause of action against them, and does not comply with the provisions of Order 1 Rule 1 of the Civil Procedure Rules; consequently, they pray that the Plaintiffs’ suit be dismissed with costs. 20.The Plaintiffs responded to the Defendants’ respective Statements of Defence vide a Reply dated 15th May 2025, wherein they reiterated and maintained the averments contained in the Amended Plaint. In response to the 1st Defendant’s averment that the Memorandum of Understanding dated 10th May 2011, is unenforceable for being statute-barred pursuant to Section 4(1) of the Limitation of Actions Act, the Plaintiffs averred that the present suit concerns the recovery and transfer of the suit property from the 1st Defendant, who has refused to transfer the same to the 1st Plaintiff, and that the suit was instituted within the twelve-year limitation period prescribed under Section 7 of the Limitation of Actions Act. 21.The Plaintiffs further averred that, in any event, time under Section 4(1) of the said Act begins to run from the date the cause of action arises and not from the date of execution of the Memorandum of Understanding; that enforcement of the said Memorandum of Understanding by the 1st Plaintiff was dependent on the renewal of the lease in respect of the suit property, the lease having expired at the time the MoU was executed; and that although the 1st Defendant successfully renewed the lease and obtained a Certificate of Lease in 2016, he only informed the 1st Plaintiff in 2018 and has since refused to surrender the original Certificate of Lease to facilitate transfer of the Suit Property. 22.The Plaintiffs additionally averred that there had been no dispute regarding ownership of the suit property and the other properties referenced in the MoU; that the Plaintiffs relinquished their ownership interests in CIS/Mara/Koiyaki Dagurugueti/2620, and voluntarily transferred the same to the 1st Defendant and his wife, who subsequently transferred the said property to the 2nd and 3rd Defendants; and that upon execution of the Memorandum of Understanding, the 1st Plaintiff assumed possession and sole ownership of the suit property without objection from the 1st Defendant. 23.The Plaintiffs further averred that the 1st Plaintiff leased the suit property to Kanini Haraka Enterprises Limited from 1st December 2011 and has since been collecting rent, pursuant to a tenancy agreement entered into with the said tenant, without any objection from the 1st Defendant; that the dispute concerning the 1st Plaintiff’s sole proprietorship of the suit property under the MOU only arose in 2022, when the 1st Defendant, vide a letter dated 23rd November 2022, questioned the 1st Plaintiff’s sole ownership of the suit property; and that the 1st Plaintiff responded vide a letter dated 11st January 2023 demanding compliance with the terms of the Memorandum of Understanding through execution of the transfer documents, which the 1st Defendant declined and/or refused to do, thereby giving rise to the present cause of action. 24.The Plaintiffs therefore averred that the present suit was instituted within twelve (12) years from the date of execution of the Memorandum of Understanding vesting the suit property in the 1st Plaintiff and, in any event, within six (6) years from the date the dispute concerning the 1st Plaintiff’s ownership of the suit property arose in accordance with the Limitations of Actions Act. 25.The Plaintiffs further averred that CIS/Mara/Koiyaki Dagurugueti 2620, did not form part of the estate of the Deceased but was initially jointly owned by the Plaintiffs, and the 1st Defendant; that the Plaintiffs transferred the said land to the 1st Defendant and his wife pursuant to the MOU and not by way of sale or purchase; that the MoU dated 10th May 2011 was executed subsequent to the confirmation of Grant; and that the purpose thereof was to facilitate the redistribution amongst the beneficiaries of properties owned by them, including properties that did not form part of the estate of the Deceased; that the Memorandum of Understanding neither invalidated nor varied the Certificate of Confirmation of Grant; that the 1st Defendant voluntarily executed the same with full knowledge and understanding that it concerned the redistribution of properties owned amongst the beneficiaries; and that having already benefited from the said Memorandum of Understanding, the 1st Defendant cannot claim that the same is unenforceable. 26.The Plaintiffs further averred that the terms of the MoU expressly provided that the 1st Plaintiff would solely and absolutely own the suit property, which required that the 1st Defendant relinquish ownership of the Suit Property, just as the Plaintiffs relinquished ownership of CIS/Mara/Koiyaki/Dagurugueti 2620, to enable the 1st Defendant own it solely absolutely; and that the Defendants’ Defences are mere denials lacking in specificity, do not disclose any triable issues and that the same ought to be struck out for being an abuse of the court process and that judgment be entered in terms of the prayers sought in the Amended Plaint dated 4th April 2025. 27.At the close of pleadings, the matter proceeded for inter partes hearing through viva voce evidence, wherein the Plaintiffs called four (4) witnesses in support of their case, and the Defendant gave evidence for himself and called no witness. PLAINTIFFS’ CASE 28.PW1, Hanif Ayoob Suleman, adopted his witness statement dated 6th March 2023, together with his further witness statement dated 16th May 2025, as his evidence in chief. He also produced the Plaintiffs’ List and Bundle of Documents dated 15th May 2025 as exhibits in support of their case. 29.Pw1 testified that the 1st Defendant is his youngest brother, and both of them are beneficiaries of the estate of Ayoob Suleman Hajee (Deceased), their late father. That sometime in 2003, the beneficiaries of the estate of the Deceased filed Succession Cause No. 1357 of 2003, at the High Court of Kenya at Nairobi and a Certificate of Confirmation of Grant was issued on 14th July 2004, appointing him as the Administrator of the estate of the Deceased. 30.That pursuant to the said confirmed Grant, land parcel known as Narok/Town/block 63, was distributed equally amongst himself, the 1st Defendant and Latif Ayoob Suleman. That the three beneficiaries could not transfer the said property and register the same jointly in their names because the lease in respect of the suit property had expired. The 1st Defendant was then tasked with the responsibility of renewing the lease to facilitate the transfer and registration of the same in their names. 31.Further, that on 10th May 2011, the 1st Defendant, Latif Ayoob Suleman, Zarina Ayoob Suleman , Rubina Ayoob Suleman and himself, entered into a Memorandum of Understanding where they agreed that Pw1 would be the sole and absolute proprietor of land parcel known as Narok/Town/block 63, while the 1st Defendant would own solely and absolutely land parcel known as CIS/Mara/Koiyaki/Dagurugueti 2620 together with the buildings erected on it. 32.That pursuant to the said Memorandum of Understanding, Latif Ayoob Suleman and himself transferred CIS/Mara/Koiyaki/Dagurugueti 2620, to the 1st Defendant and the same was duly registered in the name of the 1st Defendant and Shelina Suleman, his wife, on 28th March 2014, as the sole and absolute owners of CIS/Mara/Koiyaki/Dagurugueti 2620. The 1st Defendant and his wife subsequently transferred the said Property to the 2nd and 3rd Defendants, their sons, and a lease was issued to them on 10th June 2021. 33.He also testified that he could not effect transfer of Narok/Town/block 63, to himself as the same was contingent upon renewal of the lease. Subsequently, the 1st Defendant successfully renewed the lease and the same was transferred and duly registered jointly in the names of the 1st Defendant, Latif Ayoob Suleman and himself in 2016, and a Certificate of Lease was issued. 34.However, the 1st Defendant has to date retained in his possession the original Certificate of Lease, despite numerous requests by him to surrender the same to facilitate transfer of the suit property. That Latif Ayoob Suleman has no objection to the transfer and registration of the property in his name as a sole and absolute proprietor, and has since executed the transfer documents and furnished him with all the necessary documents to facilitate the transfer. 35.It was his further evidence that the 1st Defendant has refused to honour the terms of the Memorandum of Understanding, by refusing to transfer ownership of the Suit Property to him as per the terms of the Memorandum of Understanding dated 10th May 2011. Further, that the 1st Defendant now owns the suit property and CIS/Mara/Koiyaki/Dagurugueti 2620 through the 2nd and 3rd Defendants, his sons. 36.PW2, Latif Ayoob Suleman, adopted his witness statement dated 14th September 2023, as his evidence in chief. He further testified that the 1st Plaintiff is his elder brother, while the 1st Defendants is his younger brother, and they are children of Ayoob Suleman Hajee (Deceased). That upon their father’s death and the filing of Succession Cause No. 1357 of 2003, the High Court of Kenya at Nairobi issued a Certificate of Confirmation of Grant appointing the 1st Plaintiff as the Administrator of the Estate of the Deceased. 37.Further, that pursuant to the confirmed Grant, land parcel Narok/Town/block 63, was distributed to the 1st Plaintiff, the 1st Defendant, and himself. However, they could not transfer and register the suit property jointly in their names because the lease had expired. He also testified that the 1st Defendant was tasked with renewal of the lease to facilitate transfer of the suit property. 38.He claimed and testified that the 1st Plaintiff, 1st Defendant and himself purchased land parcel known as CIS/Mara/Koiyaki/Dagurugueti 2620, and were registered jointly as the proprietors of the said land. That the said property did not belong to their late father and did not form part of the properties distributed in the Confirmation of Grant. 39.That on 10th May 2011, the 1st Plaintiff, the 1st Defendant, Zarina Ayoob Suleman and Rubina Ayoob Suleiman and himself entered into a Memorandum of Understanding whose terms expressly said that the 1st Plaintiff would solely and absolutely own Narok/Town/block 63, while the 1st Defendant would solely and absolutely own CIS/Mara/Koiyaki/Dagurugueti 2620, together with the buildings erected on it. 40.That the 1st Plaintiff and myself, pursuant to the terms of the Memorandum of Understanding, transferred ownership of CIS/Mara/Koiyaki/Dagurugueti 2620, to the 1st Defendant and the same was duly registered in the name of the 1st Defendant and Shelina Suleiman, his wife, on 28th March 2014 as the sole and absolute owners of the said property. 41.Further, that he had no objection to the transfer of Narok/Town/block 63, to the 1st Plaintiff and he has already executed the Transfer Documents and furnished the 1st Plaintiff with the necessary documents to facilitate transfer of the suit property. That the 1st Defendant has deliberately refused to execute the transfer documents to facilitate transfer of the suit property to the 1st Plaintiff. 42.PW3, Zarina Ayoob Suleman, wholly adopted her witness statement dated 18th September 2023, as her evidence in chief. She testified that the Plaintiffs and the 1st Defendant are her brothers and beneficiaries of the estate of Ayoob Suleman Hajee (Deceased), their father who died in 2002. That in 2003, they filed Succession Cause no. 1357 of 2003, in the High Court of Kenya at Nairobi and a Certificate of Confirmation of Grant was issued on 14th July 2004, appointing the 1st Plaintiff as the Administrator of the estate of the Deceased. That she was not a beneficiary of the estate of the Deceased. That pursuant to the confirmed grant, Narok/Town/block 63, was distributed among the Plaintiffs and the 1st Defendant. 43.Further, that the Plaintiffs, the 1st Defendant , Rubina Ayoob Suleman and herself, signed a Memorandum of Understanding dated 10th May 2011, whose terms were that the 1st Defendant and the 2nd Plaintiff would transfer Narok/Town/block 63, to the 1st Plaintiff and in exchange, the Plaintiffs would transfer CIS/Mara/Koiyaki/Dagurugueti 2620, to the 1st Defendant. That the MoU did not distribute any of her properties. That the Plaintiffs adhered to the terms of the MoU by transferring land parcel 2620, to the 1st Defendant as the sole and absolute owner. However, the 1st Defendant has continuously and deliberately refused to effect transfer of parcel 63 to the 1st Plaintiff. 44.Upon cross-examination, she testified that the MoU was not entered into to vary the Confirmed Grant as they signed the MoU about 7 years after the Confirmation of the Grant. That she is not aware of any application to vary the distribution agreed upon in Succession Cause No. 1357 of 2003. That land none of her properties were being distributed by the MoU and that her only contribution was appending her signature. That parcel No. 2620 was jointly owned by the Plaintiffs and the 1st Defendant, which was eventually transferred to the 1st Defendant and his wife in accordance with the terms of the MoU. 45.PW4, Rubina Ayoob Suleman, wholly adopted her witness statement dated 18th September 2023, as her evidence in chief. She testified that the Plaintiffs and the 1st Defendant are her brothers and beneficiaries of the estate of Ayoob Suleman Hajee (Deceased), their father who died in 2002. That in 2003, they filed Succession Cause No. 1357 of 2003, in the High Court of Kenya at Nairobi and a Certificate of Confirmation of Grant was issued on 14th July 2004 appointing the 1st Plaintiff as the Administrator of the estate of the Deceased. That pursuant to the confirmed grant, Narok/Town/block 63, was distributed amongst the Plaintiffs and the 1st Defendant. Upon cross-examination, she testified that that she was not a beneficiary of the Deceased’s estate. 46.That the Plaintiffs, the 1st Defendant, Zarina Ayoob Suleman and herself, signed a Memorandum of Understanding dated 10th May 2011, whose terms were that the 1st Defendant and the 2nd Plaintiff would transfer Narok/Town/block 63, to the 1st Plaintiff and in exchange, the Plaintiffs would transfer CIS/Mara/Koiyaki/Dagurugueti 2620, to the 1st Defendant. That the MoU did not distribute any of her properties. That the Plaintiffs adhered to the terms of the MoU by transferring land parcel 2620, to the 1st Defendant as the sole and absolute owner. However, the 1st Defendant has continuously and deliberately refused to effect transfer of block 63 to the 1st Plaintiff. DEFENDANTS’ CASE 47.DW1, Ashif Ayoob Suleman, adopted his witness statement dated 27th June 2023, his supplementary witness dated 3rd March 2025, and his other supplementary witness statement dated 18th July 2025, as his evidence in chief. He also produced his List and Bundle of Documents dated 31st July 2023 ,before this court as exhibits. 48.It was his evidence that the Plaintiffs, PW3 and PW4 are his siblings and children of Ayoob Suleman Hajee (Deceased). That he does not agree with the assertion that the beneficiaries of the estate of the Deceased filed Succession Cause No. 1357 of 2003. However, that he is aware of the Certificate of Confirmation of Grant dated 14th July 2004. 49.It was his further evidence that the 1st Plaintiff distributed to himself a huge chunk of the deceased’s properties, and he is not in agreement with the distribution of the estate of their Deceased’s father, and he dispute the distribution of Narok/Town/block 63, to himself and the Plaintiffs. He claimed that CISMara/Koiyaki/Dagurugueti/2620 did not belong to his father, and that the Memorandum of Understanding dated 10th May 2011 has no effect on the distribution of the estate of the Deceased. 50.Upon cross-examination, he testified that he is aware of Succession Cause No. 1357 of 2003, but was not involved in the distribution of the estate of the Deceased. That he was aggrieved with the mode of distribution where the 1st Plaintiff distributed Parcel No. 7153/5 to himself and that he intends to challenge the distribution in the said Succession Cause. That he signed the consent letter dated 5th May 2003, appointing the 1st Plaintiff as the Administrator of the estate of the Deceased and the Consent to Confirmation of Grant dated 9th June 2004. 51.Further, he testified that he could not remember signing the Memorandum of Understanding dated 10th May 2011, but conceded that the signature on page 52 of his List and Bundle of Authorities resembled his. That in the MoU, he was to get two parcels of land and company shares and that he got only one parcel of land, CISMara/Koiyaki/Dagurugueti/2620. 52.It was his claim that he purchased land parcel No. 2620 from the 1st Plaintiff, and although there was no Sale Agreement, and that he did not pay money for the same. Instead, he was supposed to transfer which he did, land parcels Nos CISMara/OLCHORIA/60, 87 & 88 to the 1st Plaintiff in exchange for 2620. That he did renew the lease for block 63, and he has been in possession the Certificate of Lease for block 63, and that he did not inform the Plaintiffs of the renewal of the lease. 53.After the close of viva voce evidence, the parties filed written submissions which the court has carefully read and considered. The Plaintiffs filed their written submissions dated 29th January 2026, through V.A Nyamodi& Co Advocates, cited various decided cases and urged the court to allow their claim as prayed in the Amended Plaint. 54.The Defendants filed two sets of written submissions through Amolo & Kibanya Advocates, and urged the court to dismiss the Plaintiffs claim and allow their Preliminary Objection. The first set is dated 6th February 2026, for 1st ,2nd and 3rd Defendants. The second set are Supplementary submissions dated 27th February 2026, wherein they urged the court to allow their Preliminary Objection by finding that the Plaintiffs’ suit is barred while section 4(1) of the Limitation of Actions Act. 55.The court has also read and considered the pleadings of the parties, the evidence adduced and the relevant provisions of law. The court finds and holds that the issues for determination are:1.Whether time has lapsed for the Plaintiffs to institute this suit.2.Whether the Memorandum of Understanding dated 10th May 2011 is meant to vary the Certificate of Confirmation of Grant.3.Whether the Plaintiffs have any cause of action against the 2nd and 3rd Defendants.4.Whether the Plaintiffs are entitled to the prayers sought.5.Who should bear the costs of the suit. 56.Before delving into the merits of this suit, the Court will first determine the admissibility of the 1st Defendant’s Statement of Defence dated 16th April 2025. The 1st Plaintiff initially filed a Plaint dated 6th April 2023, to which the 1st Defendant responded by filing a Statement of Defence. Subsequently, the Plaint was amended on 4th April 2025. In response thereto, the 1st Defendant filed another Statement of Defence dated 16th April 2025. 57.Order 8 Rule 1 of the Civil Procedure Rules grants a party served with an Amended Plaint leave to amend his pleadings within fourteen (14) days after service. There is no dispute that the Defence dated 16th April 2025, was filed within the stipulated period. The objection raised by the Plaintiffs relates not to timeliness, but to form and procedure. Specifically, the Plaintiffs have argued that the Defence was not titled as an “Amended Defence” and did not comply with the requirements under Order 8 Rule 7(2) of the Civil Procedure Rules. 58.While procedural rules are important in ensuring orderly conduct of proceedings, courts are equally enjoined to administer substantive justice without undue regard to technicalities. Article 159(2)(d) of the Constitution of Kenya, 2010 mandates courts to administer justice without undue regard to procedural technicalities. 59.In the case of DT Dobie & Company (Kenya) Limited v Muchina & another [1980] KECA 3 (KLR), the Court held that the power to strike out pleadings ought to be exercised sparingly and only in very plain and obvious cases. Similarly, in the case of Ramji Megji Gudka Ltd vs Alfred Morfat Omundi Michira & 2 others (2005) eKLR, the Court held as follows:“In our view, the power to strike out pleadings must be sparingly exercised. It can only be exercised in the clearest of cases.” 60.This Court has also considered the holding in the case of Microsoft Corporation v Mitsumi Computer Garage Ltd & another [2001] KEHC 846 (KLR), where Ringera J. observed:“Rules of procedure are the hand maidens and not the mistresses of justice. They should not be elevated to a fetish. Theirs is to facilitate the administration of justice in a fair orderly and predictable manner, not to fetter or choke it.” 61.Although the Defence dated 16th April 2025, may not have been properly titled as an “Amended Defence”, the substance of the pleading clearly demonstrates that it was filed in response to the Amended Plaint. The Court must therefore determine whether the irregularity complained of is fatal. 62.This Court finds that the omission to expressly title the pleading as an “Amended Defence” is a procedural defect, that does not go to the root of the matter. No prejudice has been demonstrated by the Plaintiffs that cannot be compensated by costs or addressed during trial. The Plaintiffs were served with the said Defence, and they are fully aware of the 1st Defendant’s case, and have consequently responded to the same through a very lengthy reply to the said Defence. 63.This Court is persuaded by the reasoning in the case of Philip Chemwolo & Another vs Augustine Kubende (1982-88) KAR 103, where the Court . held:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit.” 64.The Court further notes as has been held in various determinations that striking out pleadings is a drastic remedy which should only be resorted to where the defect is incurable or where prejudice is occasioned to the opposite party. The Supreme Court of Kenya in the case of Kensalt Limited v Water Resources Management Authority [2020] eKLR held:“…As rightly held by the Appellate Court, the remedy of striking out pleadings is resorted to most sparingly, and as a last resort; the alternative being a recourse to rule 15(1), which gives an exception…” 65.Further, the Court of Appeal in the case of Nitin Properties Ltd v Jagjit S. Kalsi & another [1995] eKLR held:“… Striking out is a drastic remedy and it has been held time and again that striking out procedure can be invoked only in plain and obvious cases and that such jurisdiction must be exercised with extreme caution…” 66.Being guided as above by the superior courts, this court finds and holds that in the present case, the irregularity is curable and does not occasion any miscarriage of justice. 67.Further, the overriding objective under Sections 1A and 1B of the Civil Procedure Act obligates this Court to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Striking out the Defence in the circumstances of this case at this stage of Judgment would elevate form over substance and defeat the interests of justice. 68.Accordingly, this Court finds that although the Statement of Defence dated 16th April 2025, was not properly framed as an ‘Amended Defence’, the defect is procedural in nature and is curable under Article 159(2)(d) of the Constitution. The Statement of Defence dated 16th April 2025, is hereby deemed as properly filed and shall remain on record Whether time has Lapsed for the Plaintiffs to Institute this Suit 69.The 1st Defendant has contended that the Plaintiffs’ suit is statute-barred pursuant to Section 4(1) of the Limitation of Actions Act on the basis that the Memorandum of Understanding dated 10th May 2011, which is being relied upon by the Plaintiffs ought to have been enforced within six(6) years from the date of its execution. According to the 1st Defendant, any action founded upon the said Memorandum of Understanding ought to have been instituted on or before 4th May 2017. 70.The Plaintiffs, on the other hand, argued and maintained that the present suit concerns the recovery and transfer of land, namely Narok/Town/block 63, and is therefore governed by Section 7 of the Limitation of Actions Act, which provides for a limitation period of twelve years. The Plaintiffs further contended that the cause of action did not arise upon execution of the Memorandum of Understanding in 2011, but arose when the 1st Defendant refused and/or failed to execute the transfer documents and surrender the original Certificate of Lease despite demand. 71.Section 4(1)(a) of the Limitation of Actions Act provides that actions founded on contract may not be brought after the end of 6 years from the date on which the cause of action accrued. Section 7 of the same Act provides that an action for recovery of land may not be brought after 12 years from the date on which the right of action accrued to him. 72.The Court must therefore determine the nature of the Plaintiffs’ claim and when the cause of action accrued. From the pleadings before this Court, it is not in doubt that the parties entered into a Memorandum of Understanding on 10th May 2011, pursuant to which the Plaintiffs agreed to transfer, which they did, land parcel CIS/Mara/Koiyaki Dagurugueti/2620, to the 1st Defendant and his wife. The Plaintiffs averred and testified that, in exchange, the 1st Defendant was to transfer Narok/Town/block 63, to the 1st Plaintiff once the lease over the said property was renewed. 73.The court finds and holds that it is not in doubt that such Memorandum of Understanding was signed among all the siblings of the deceased, despite the 1st Defendant denying so because all the Plaintiffs’ witnesses who are related to both parties herein were consistent that the said MOU was entered in 2011 Further, the 1st Defendant during cross examined confirmed that the signature on the said MOU looked like his, and no evidence that he ever complained of forgery of his signature at all. 74.From the evidence of the witnesses herein, it is not disputed that the lease in respect of the suit property ( parcel No 63 Narok Township) had expired at the time the MoU was executed and that the lease was only renewed in 2016. 75.The Plaintiffs have further averred that the suit property was registered jointly in the names of the Plaintiffs and the 1st Defendant in 2016, following renewal of the lease and that the 1st Defendant only informed the 1st Plaintiff of the renewal in 2018. The Plaintiffs further stated and testified that the dispute only crystallized in 2022 when the 1st Defendant questioned the 1st Plaintiff’s sole ownership or use of the suit property and refused to execute the transfer documents despite demand. It was also alleged that he send a demand Notice through his advocates to the 1st Plaintiff’s tenant on the suit property. 76.In the case of Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals Workers v Utithi Secondary School [2024] KEELRC 2610 (KLR), the court referred to a cause of action as factual situation the existence of which entitles one person to obtain from the court a remedy against another person. In determining when a cause of action accrues, the Court of Appeal in the case of Diana Katumbi Kiio –vs- Reuben Musyoki Muli [2018] eKLR held that time begins to run upon breach and not from the date an agreement is executed. This position was reiterated by the court in the case of Jumbo Commodities Limited v B. N Kotecha & Sons Limited (Commercial Cause E209 of 2021), [2022] KEHC 15675 (KLR) (Commercial and Tax) (25 November 2022) (Ruling). 77.This Court is persuaded that although the Memorandum of Understanding was executed in 2011, the Plaintiffs’ cause of action could not effectively arise before renewal of the lease, and registration of the suit property in the names of the parties in 2016. More importantly, the evidence on record demonstrates that the parties continued to act in furtherance of the Memorandum of Understanding long after 2011. 78.The Plaintiffs testified that they transferred CIS/Mara/Koiyaki Dagurugueti/2620, to the 1st Defendant and his wife pursuant to the arrangement in the Memorandum of Understanding, and the 1st Plaintiff took possession and control of the suit property, by leasing the premises of the suit property, collecting rent therefrom without objection from the 1st Defendant for several years. 79.The Court further notes that the alleged breach arose when the 1st Defendant declined and/or refused to facilitate transfer of the suit property to the 1st Plaintiff despite demand. The correspondence exhibited by the Plaintiffs demonstrates that demands were made in 2021, 2022 and 2023, culminating in the institution of the present suit in March 2023. 80.Therefore, from the available evidence, the cause of action accrued upon the 1st Defendant’s refusal to honour the terms of the Memorandum of Understanding after renewal of the lease and upon demand by the 1st Plaintiff. Even assuming the claim were to be construed as one founded on contract, having been filed in 2023, the suit was instituted within the 6 years prescribed under Section 4(1) of the Limitations of Actions Act, because the cause of action arose when the 1st Defendant declined to transfer the suit property after demand, and after he issued notices to 1st Plaintiff’s tenant. In the circumstances, this Court finds that the present suit is not statute-barred. 81.Further, to the extent that the Plaintiffs seek transfer and recovery of an interest in land, the claim falls within the ambit of Section 7 of the Limitation of Actions Act, which provides for a limitation period of twelve years. The suit having been filed approximately twelve years after execution of the Memorandum of Understanding and within a much shorter duration from the alleged breach and refusal to transfer the property, cannot be said to be time-barred. Accordingly, the Court finds and holds that time had not lapsed for the Plaintiffs to institute the present suit and the 1st Defendant’s plea of limitation fails. 82.Whether the Memorandum of Understanding dated 10th May 2011 was meant to Vary the Certificate of Confirmation of Grant 83.The 1st Defendant has contended that the Memorandum of Understanding dated 10th May 2011, could not lawfully vary, invalidate, or otherwise compromise the Certificate of Confirmation of Grant issued on 14th July 2004 in Nairobi High Court Succession Cause No. 1357 of 2003. He further contended and testified that he is not in agreement with the distribution of the estate and intends to dispute the same before the Succession Court. This intention to dispute the distribution was not exhibited, and an intention cannot be used to bar what already agreed upon. 84.The Plaintiffs, however, testified and maintained that the Memorandum of Understanding in issue was executed subsequent to Confirmation of the grant, and was not intended to vary or invalidate the Certificate of Confirmation of Grant. Rather, they contended that the Memorandum of Understanding constituted a voluntary post-distribution arrangement among adult beneficiaries regarding properties owned by them, including property that did not form part of the estate of the deceased. 85.It is not disputed that the Certificate of Confirmation of Grant issued on 14th July 2004, distributed Narok/Town/block 63, jointly amongst the Plaintiffs and the 1st Defendant. It is equally not disputed that the Memorandum of Understanding was executed several years later on 10th May 2011 by the beneficiaries themselves, which was long after the distribution of the estate of their deceased father. 86.Therefore, the question before this Court is whether the Memorandum of Understanding amounted to an unlawful variation of the confirmed grant. A Certificate of Confirmation of Grant serves to identify the beneficiaries of an estate, and the mode of distribution of the estate. Once distribution has been completed and beneficiaries become entitled to their respective shares, each beneficiary acquires proprietary rights capable of being dealt with in law, subject to the applicable legal requirements. 87.In Re Estate of Jared Kimithi Gathiaka alias Gerald Kimithi Gathiaka (Deceased), Kiambu HCC Succ CauseNo 152 of 2017, the Court held that once a Grant has been confirmed and the estate distributed, proprietary rights vest on the beneficiaries and they are at liberty to deal with their respective shares as they deem fit, including transferring or surrendering their interests. Similarly, in Re Estate of Maina Gathungu (Deceased)( 2017)eklr, a beneficiary cannot sell property before it vests in them. A beneficiary only acquires a valid title to the property or share allotted to them once the same has been vested and transferred to them. 88.From the evidence on record, the Memorandum of Understanding did not purport to revoke, annul or rectify the confirmed grant issued in the succession proceedings. Rather, it constituted a subsequent consensual arrangement among the beneficiaries regarding ownership and redistribution of certain properties amongst themselves. The Plaintiffs have specifically averred that CIS/Mara/Koiyaki Dagurugueti/2620, did not form part of the estate of the deceased, and that the purpose of the Memorandum of Understanding was to facilitate redistribution of properties beneficially owned after confirmation of grant, and was not tied to distribution of the estate of their deceased father. This was a private arrangement. 89.Further, this Court observes that the Law of Succession Act, Cap 160 Laws of Kenya, provides elaborate and specific procedures for alteration, rectification, review or revocation of a Confirmed Grant. Under Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules, rectification of a grant may only be undertaken by the Succession Court in limited circumstances relating to errors in names, descriptions, or setting out of shares. 90.Likewise, Section 76 of the same Act provides the legal framework for revocation or annulment of grants where sufficient grounds have been established. Consequently, any party desirous of varying the mode of distribution contained in a Certificate of Confirmation of Grant must approach the Succession Court through the prescribed statutory procedure. In the present case, no evidence was placed before this Court demonstrating that the parties invoked the succession jurisdiction of the High Court to seek rectification, review, or revocation of the confirmed grant. This further reinforces the finding that the Memorandum of Understanding dated 10th May 2011, was not intended to formally vary the Certificate of Confirmation of Grant, but merely constituted a private post-distribution arrangement among the beneficiaries regarding their beneficial interests. 91.To this court’s understanding, the Memo of Understanding was a consensual understanding among parties on how to deal with their properties, some of them having been acquired through succession or transmission, and cannot be said to be a rectification of confirmed grant. 92.The conduct of the parties following execution of the Memorandum of Understanding further supports this position. The Plaintiffs testified that they transferred CIS/Mara/Koiyaki Dagurugueti/2620, to the 1st Defendant and his wife pursuant to the terms thereof, and the 1st Defendant accepted and benefited from that transfer. The 1st Defendant and his wife subsequently transferred the same property to the 2nd and 3rd Defendants. This conduct demonstrates that the parties acted upon and implemented the terms of the Memorandum of Understanding for several years without contest. 93.The Court further notes that the Memorandum of Understanding did not seek to reopen the succession cause or alter the beneficiaries identified in the confirmed grant. Instead, it dealt with how the beneficiaries themselves would hold and enjoy the properties allocated to them after confirmation of the grant. This Court therefore finds that the Memorandum of Understanding dated 10th May 2011, was not intended to vary, revoke or invalidate the Certificate of Confirmation of Grant issued in Nairobi High Court Succession Cause No. 1357 of 2003. Rather, it was a voluntary post-distribution arrangement entered into by competent adult beneficiaries concerning their proprietary interests. Accordingly, the 1st Defendant’s contention that the Memorandum of Understanding was unlawful for purporting to vary the confirmed grant is without merit and the same is hereby rejected. ). Whether the Plaintiffs have any Cause of Action against the 2nd and 3rd Defendants. 94.The Plaintiffs have sought reliefs against the 2nd and 3rd Defendants on the ground that the property known as CIS/Mara/Koiyaki Dagurugueti/2620, was transferred to them by the 1st Defendant and his wife after it was transferred to the latter in accordance with the Memorandum of Understanding dated 10th May 2011. 95.It is not disputed that the 2nd and 3rd Defendants are sons of the 1st Defendant and that CIS/Mara/Koiyaki Dagurugueti/2620, was transferred to them by way of gift from their father and mother after the latter had become the registered proprietors thereof pursuant to the transfer effected by the Plaintiffs. 96.The Plaintiffs contend that the transfer to the 2nd and 3rd Defendants was undertaken to defeat the Plaintiffs’ interests arising from the Memorandum of Understanding and that the 1st Defendant maintains ownership of the same property through his sons. However, the Court notes that the Plaintiffs voluntarily transferred CIS/Mara/Koiyaki Dagurugueti/2620, to the 1st Defendant and his wife, thereby vesting in them sole and absolute proprietorship together with all attendant proprietary rights, including the right to transfer or gift the property, as provided by Section 24 (a) of the Land Registration Act. 97.No evidence was placed before this Court to demonstrate that the transfer to the 2nd and 3rd Defendants was fraudulent, illegal or unprocedural. Further, the Plaintiffs did not demonstrate that the 2nd and 3rd Defendants participated in any fraud or wrongdoing or that they procured the transfer unlawfully, so that their title can be impeached under Section 26(1)(a)&(b) of the Land Registration Act. 98.The Court is guided by the decision in the case of Chemjor v Chepkwony [2023] KEELC 16864 (KLR) where the Court held that allegations of fraud must not only be specifically pleaded but must also be strictly proved. In the present case, the Plaintiffs failed to strictly prove any fraud or illegality against the 2nd and 3rd Defendants, and in any event, after the transfer of the suit property to 1st Defendant through the Memorandum of Understanding, he was at liberty to deal with the said property as he so wished, transferring it to his sons, the 2nd and 3rd Defendants being one of them. 99.However, the transfer of the said parcel of land to 1st Defendant is fundamental to the Plaintiffs claim in proving that indeed, they carried their part of bargain as stipulated in the Memorandum of Understanding but the 1st Defendant failed to perform his part, but went ahead and transferred the land that he acquired through the Memo of Understanding to his sons, the 2nd and 3rd Defendants herein. 100.It is evident that the Plaintiffs’ claim is fundamentally anchored on an alleged breach of the Memorandum of Understanding by the 1st Defendant. Such alleged breach, however, cannot by itself invalidate a subsequent transfer made by a registered proprietor in the absence of proof of fraud or illegality on the part of the transferees. Further, the Memorandum of Understanding created obligations, if any, only between the parties thereto. The 2nd and 3rd Defendants were not parties to the said Memorandum of Understanding. Accordingly, this Court finds that the Plaintiffs have failed to establish any sustainable cause of action against the 2nd and 3rd Defendants to warrant the court to impeach and/ or invalidate their title. Iv) Whether the Plaintiffs are Entitled to the Prayers Sought 101.Having found that the suit was instituted within the prescribed limitation period and further having found that the 1st Defendant failed to establish that the Memorandum of Understanding dated 10th May 2011, varied the Certificate of Confirmation of Grant or that the 2nd and 3rd Defendants acquired the title to CIS/Mara/Koiyaki Dagurugueti/2620, unlawfully, this Court now proceeds to determine whether the Plaintiffs are entitled to the reliefs sought. 102.The evidence on record demonstrates that the Memorandum of Understanding constituted a valid post-distribution arrangement between the beneficiaries concerning their respective proprietary interests. This position has been supported by the Plaintiffs herein and their two witnesses, who are their sisters, and participated in the drawing and signing of the Memorandum of Understanding. 103.The court finds that PW2 and Pw3, who were sisters of the parties herein were independent witnesses and not beneficiaries of any of the suit properties, and their evidence was consistent and believable. Therefore, the court finds and holds that the Memo of understanding was post distribution arrangement, and 1st Defendant benefitted from the said Understanding, and he should relinquish his ownership of the suit property as stipulated in the said Memo of Understanding dated 10th May 2011. 104.It is evident from the available evidence that the parties herein who are brothers did enter into a post distribution understanding, which arrangement was witnessed by their sisters PW3 & PW4. The Plaintiffs have demonstrated that they fully performed their obligations thereunder by transferring CIS/Mara/Koiyaki Dagurugueti/2620, to the 1st Defendant and his wife. The 1st Defendant equally benefited from the said arrangement and cannot approbate and reprobate by accepting the benefit of the agreement while refusing to honour the corresponding obligations thereunder. 105.The Court is guided by the decision in Serah Njeri Mwobi vs John Kimani Njoroge [2013] KECA 501 [KLR] where the Court held that parties are bound by the terms of their agreements unless coercion, fraud, or illegality is established. The Court further finds that although the 2nd and 3rd Defendants were not parties to the Memorandum of Understanding, the transfer of the suit property to them did not extinguish the Plaintiffs’ equitable interests arising from the agreement between the Plaintiffs and the 1st Defendant, particularly considering that the transfers were affected gratuitously by way of gifts from their parents. 106.In the circumstances, this court finds and holds that the Plaintiffs have proved their case on the required standard of balance of probabilities against the 1st Defendant herein, but no prove of fraud on the part of the 2nd and 3rd Defendants. Consequently, this court finds and holds that the Plaintiffs are entitled to the prayers sought against the 1st Defendant herein as per the reliefs sought in the Amended Plaint. Who Should bear Costs of this Suit. 107.Section 27 of the Civil Procedure Act provides that costs follow the event unless the Court, for good reason, orders otherwise. Having found that the Plaintiffs have proven their case on a balance of probabilities and are entitled to the reliefs sought in the Amended Plaint, this Court finds that they are the successful litigants and are entitled to costs, since there is no reason to depart from the general principle that costs follow the event. Accordingly, costs of the suit are awarded to the Plaintiffs as against the 1st Defendant. 108.However, with regard to the 2nd and 3rd Defendants, the Court notes that they are sons of the 1st Defendant and that CIS/Mara/Koiyaki Dagurugueti/2620, was transferred to them by their father and mother by way of gift. The 2nd and 3rd Defendants were not parties to the Memorandum of Understanding dated 10th May 2011, and no evidence was adduced to demonstrate fraud, collusion, or bad faith on their part. Consequently, no costs will attach to them, and they will bear their own costs in respect of the claim against them. 109.Having considered the available evidence, the exhibits produced, the rival written submissions, and the relevant provisions of law, the Court makes the following orders:i.A declaration be and is hereby issued that the Memorandum of Understanding dated 10th May 2011, did not vary the Certificate of Confirmation of Grant issued in Nairobi High Court Succession Cause No. 1357 of 2003, but constituted a valid post-distribution arrangement between the beneficiaries.ii).The 1st Defendant is in breach and has breached the terms of the Memorandum of Understanding dated 10th May 2011.iii).). The transfer of CIS/Mara/Koiyaki Dagurugueti/2620, by the 1st Defendant and his wife to the 2nd and 3rd Defendants by way of gift did not extinguish the Plaintiffs’ equitable interests arising from the Memorandum of Understanding. However, the plaintiffs cannot be returned to status quo ante prior to the Memo of Understanding.Iv).Consequently, the Plaintiffs are entitled to the reliefs sought in the Amended Plaint in terms of prayers Nos (a), and (b) with costs.v.For avoidance of doubt, Costs of the suit are awarded to the Plaintiffs as against the 1st Defendant, only. In respect of 2nd and 3rd Defendants, they shall bear their own costs.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 25TH DAY OF MAY 2026.L. GACHERUJUDGE25/05/2026Delivered Online in the presence of.Elijah Meyoki ..Court AssistantLatif Suleman 2nd plaintiff presentAshif for the 1st Defendant presentBoth Advocates are absent but their respective clients are present