https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/374

**REPUBLIC OF KENYA** **IN THE SENIOR RESIDENT MAGISTRATE'S COURT AT PORT VICTORIA** **ELC NO. E013 OF 2025 SYLVANUS OJIAMBO VS ATANAS LUBANDI** **JUDGMENT** 1. Vide a plaint dated 5th May 2025, the plaintiff seeks orders for removal of all cautions and or restrictions on L.R No. BUNYALA/BULEMIA/186 (***hereinafter referred to as the suit property)*** as well as costs of the suit from the defendants herein. **Plaintiff’s case** 1. The plaintiff states to be the registered owner of the suit land along with Catherine Nalyali Juma, David Akwiri Maloba and Michael Naiya Obulo pursuant to a title issued to them on 28th January 2025. That the defendant went ahead to register a caution over the suit property and continues to maintain the same impeding the plaintiff’s use over the said parcel of land. 2. In evidence, PW1 Sylvanos Ojimbo Naluma stated that he was the son to NICO NALAMWA NGIRA alias NICO NGIRA who passed away on 5/10/1988 and who was survived by Abraham Nalumwa(deceased), William Ngira Nalumwa, James Nalumwa and himself. That his father was the registered owner of the suit property. That vide a succession cause no. Port Victoria E006 OF 2023, he and his siblings petitioned for a grant of letters of administration and pursued the said cause to its confirmation on 24th October 2024. That during transmission, they discovered a caution had been placed over the suit land by the 1st defendant stalling the process. He now prayed for removal of the said caution to allow completion of the distribution of the suit property as well as costs of this suit. The plaintiff relied on his documents as listed in his list of documents filed in court and produced the documents as Pex no. 1 the search certificate for the suit property, Gazette Notice as Pex no. 2, summons for confirmation of grant in Succession cause no. E006 OF 2023 as Pex no. 3, Certificate of confirmed grant as Pex no. 4, copy of search of the suit property as Pex no. 5. That he was not party to a sale agreement and hence the caution ought to be lifted and costs of the suit paid to the plaintiff. That the caution was paced in the year 1993 yet the succession cause was filed in the year 2023, that they tried to lift the caution through the Land registrar in vain, that the letter dated 13/11/2007 says by his late brother Abraham indicates that the family had agreed to give the 1st defendant 1 acre of the suit property, that his brother had no capacity to make such agreements as the property belonged to their late father. That his late brother’s estate was not represented during the succession proceedings, that there was no evidence that the Land Registrar summoned the defendants to remove the caution. He is not also aware if his late father visited the Land Control Board to initiate the transfer as he was not aware of the existence of a sale agreement between the two. He does not know any Joram Wangira and had no information as to where the defendants resided to involve them in the removal with the Land registrar. **Defendant’s case** 1. In an amended statement of defence and counterclaim dated 17th March 2026, the defendant claims purchaser’s interest to the suit property alleging existence of a sale agreement between himself and the late Abraham Nalumwa and also between himself and the late Nico Nalumwa Ngira and his father in law Joram Wangira Ouma. In the counterclaim, he sought an order declaring that she is entitled 0.40ha of the suit property, an order directing the plaintiff herein to transfer the suit property to him, a permanent injunction restraining the plaintiff herein from entering, occupying, cultivating and or in any other manner, undertaking any activity over the suit property, in the alternative the cation to remain in place until the interests of the defendant are determined, costs of the counterclaim and interest for such period of time as the court may direct and that the plaint be dismissed with costs. 2. In evidence, DW1 Lieutenant Cornel Atanas Lubandi testified that the late Nico Nalumwa Ngira approached his late father in law Joram Ouma Wangira to help him find a purchaser of the suit land. His father inlaw informed him of the same and he and his wife agreed to purchase the suit property at a price of Kshs 1,900 in the year 1981. The purchase was made on his behalf by his father in law due to work commitments away.Nico Wangira and his late father in law Joram entered into a sale agreement of the suit property with Abraham Nalumwa as a witness to the said transaction. Nicco and Joram visited the Land Control Board and were issued with a consent. Unfortunately, Nico fell ill and died in 1988 without completing the transfer process. His son Abraham took over the matter and requested for an additional Kshs 6,500 which was paid as part of a further consideration for the purchase totaling now to Kshs 8,400/=. A sale agreement to that effect was executed with Abraham Nalumwa That upon his return from work, he placed a caution over the suit land to protect his purchaser’s interests. Abraham dies and the rest of the siblings, plaintiff included, filed a succession case over their late father’s estate and excluded him as a liability. He prayed for the orders as stated above. He produced as part of his evidence, his KRA Pin as Dex no. 1, copy of official search of the suit land as Dex no. 2, copy of land transfer form for the suit land as Dex no. 3, sale agreement dated 16/3/1981 as Dex no. 4, copy of receipt from lands office as Dex no. 5, copy of a caution for the suit property as Dex no. 6, copies of photos as Dex no. 7. That he relocated to the United States in the year 2006. That Joram transacted on his behalf . he further relied on the following documents as part of his evidence, Dex no. 8 copy of death certificate for Joram Ouma Wangira, Dex no. 9 the Court Order(Ad-Litem) dated 4/3/2026, copy of land sale agreement between Nico Ngira and Joram Wangira as Dex no.10, Dex no. 11, copy of the marriage certificate, Dex no. 12, copy of transfer of Land Form signed by Nico Ngira and Joram Wangira, Dex no 13 copy of caution dated 8/7/1993, Dex no. 14 copy of Land register for Bunyala Bulemia, Dex no. 15 copy of Lubandi’s letter dated 13/11/2006, Dex no. 16 Copy of Abraham’s letter dated 13/11/2007, Dex no/. 17 copy of certificate of confirmation of grant, Dex no. 18 copy of agreement between Lubandi and Abraham. He admitted he has never taken physical possession of the suit land as he and his wife have been out of the country, he had no power of attorney assigning his father in law to transact on his behalf, he had no evidence to prove he sent money to his father in law to purchase the land for him. the letter between him self and Abram is to the effect that the entire family agreed to the sale. The agreements refer to BUNYALA/BULEMIA 198 which he discovered was a mistake so he moved to place the caution to protect his interests. Nico had 4 sons but it was Abraham who was selected to represent his family. The succession cause was done with a caution on hence irregular he was aware of the succession cause filed in respect of the estate of the late Nico and even objected to the same. his interest ought to have been recognized in the succession cause. For over 45 years, he did not pursue his claim over the land as he was away due to work.an earlier succession case had been filed by Abraham in succession cause no. 71 of 2002 3. DW2 Imeldah Lubandi testified as DW1’s wife and the daughter of the late Joram Wangira. She reiterated part of her husband’s evidence and stated that her father purchased the land from NICCO on their behalf. She admitted having no power of attorney assigning the said responsibility to her father. she also wasn’t present at the signing of any of the agreements Dex no. 12 says the property is to be transferred to Joram and not to herself. She had no evidence that their mother utilized the land 4. The parties went ahead to file their submissions which I have considered as follows 5. The plaintiff submitted the defendant’s counterclaim is time barred by dint of section 27 and 28 of the Limitations of Actions Act and that the claim for refund of the purchase price is equally time barred. That further, the 1st defendant lacked locus standi as he ought to have claimed on behalf of his late father in law Joram Ouma Wangira. That in essence, the claim by the defendants that they are seeking the same rights in the Succession Cause no. E006 OF 2023 is evidence that the suit herein is sub judice and hence, in its entirety, the defendants' defence and counterclaim ought to be dismissed with costs to the plaintiff and the prayer lifting the caution allowed as prayed with costs. 6. In their submissions, the defendants stated that they had overriding interests over the suit land by virtue of their purchaser’s interest. That under the doctrine of constructive trust and proprietary estoppel, the plaintiff is estopped from enriching themselves unjustly from the proceeds of the purchase of the suit land. They relied on the cases of ***Macharia Mwangi Maina & 87 others vs Davidson Mwangi Kagiri [2014] e KLR and Willy Kimutai Kitilit vs Michael Kibet [2018] e KLR.*** That the caution was legally registered as the sale had taken steps to materialize save for the demise of Nico and his son Abraham. That the conduct of Abraham in entering into a further sale agreement with the late Joram was evidence that the family acquiesced the sale. He prayed that the orders thus sought are allowed as prayed. 7. Based on the pleadings, evidence and submissions, the following issues arise for determination: 8. Whether the plaintiff is entitled to an order for removal of the caution registered against L.R. No. BUNYALA/BULEMIA/186. 9. Whether the defendants have established the counterclaim and are entitled to the reliefs sought. 10. Who should bear the costs of the suit. **Analysis and determination** 1. It is not disputed that the suit property originally belonged to the late Nico Nalamwa Ngira and that following succession proceedings, the plaintiff and the other beneficiaries became the registered proprietors. *The first question is whether the defendants have proved an enforceable purchaser's interest over the suit property.* 1. The evidence shows that the initial agreement dated 16th March 1981 was entered into between Nico Ngira and Joram Wangira Ouma. DW1 candidly admitted that he was not a party to that agreement. His explanation was that Joram acted on his behalf because he was away on duty. However, no written authority or power of attorney was produced authorizing Joram Wangira to purchase land on behalf of DW1. Likewise, there was no documentary evidence demonstrating that DW1 provided the purchase price to Joram. The assertion that Joram acted as his agent therefore remained unsupported. 2. More importantly, the agreement conferred rights, if any, upon Joram Wangira. Following Joram's death, those rights could only be pursued by the legal representative of his estate. Although DW1 produced a limited grant ad litem, the pleadings before court are not brought on behalf of the Estate of Joram Wangira Ouma but in his own capacity. The counterclaim seeks declarations in favour of DW1 personally. Consequently, there is a disconnect between the contracting purchaser and the party seeking enforcement. 3. The subsequent agreement allegedly executed between Abraham Nalumwa and DW1 cannot cure that defect. By the time of that agreement, Abraham had not obtained letters of administration to the estate of the deceased proprietor. It is trite law that a deceased person's property can only be dealt with by a personal representative duly appointed under the Law of Succession Act. The said Abraham had no grant allowing him the locus to transact on behalf of his father’s estate. His actions amounted to intermeddling pursuant to section 45 of the Law of Succession Act. In essence, any purported sale by Abraham before obtaining a grant and confirming the same was therefore incapable of conferring any legal interest over the estate property. 4. The letter dated 13th November 2007 in which Abraham purportedly acknowledged that the family had agreed to transfer one acre equally does not improve the defendants' case. Abraham alone lacked authority to bind either the estate of the deceased proprietor or the other beneficiaries. Indeed, PW1 testified that Abraham had no legal capacity to make such commitments, and no evidence was produced showing that the other beneficiaries formally sanctioned the transaction. 5. The defendants further relied on the doctrines of constructive trust and proprietary estoppel as discussed in **Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR and Willy Kimutai Kitilit v Michael Kibet [2018] eKLR.** 6. The principles in those authorities are well settled. Courts may enforce equitable interests notwithstanding want of Land Control Board consent where the conduct of parties gives rise to a constructive trust or proprietary estoppel. 7. However, each case turns on its own facts. In the present matter, several distinguishing features emerge.First, the defendants never took possession of the land. DW1 expressly admitted that for over forty-five years neither he nor his wife had occupied, cultivated or developed the suit property.Secondly, there was no evidence that the defendants made improvements to the land or altered their position in reliance upon the sale.Thirdly, there is a complete absence of evidence that the beneficiaries of the estate accepted or continued to recognize the defendants' alleged purchaser's rights after the death of Nico, save for Abraham's unilateral correspondence. 8. The equitable doctrines relied upon cannot therefore arise in a factual vacuum. Equity intervenes to prevent unconscionable conduct where one party has acted to his detriment in reliance upon another's assurances. Such circumstances have not been demonstrated here. 9. The court further notes that DW1 admitted that despite lodging the caution in 1993, he took no meaningful legal steps to enforce the alleged purchaser's rights for over three decades. He attributed the delay to working abroad. That explanation cannot suspend statutory limitation periods indefinitely. 10. The plaintiff submitted that the counterclaim is statute barred. The court agrees.The agreements relied upon date back to 1981, while the subsequent agreement with Abraham dates back to 2007. The present counterclaim was only filed in March 2026. Any claim founded on contract became time barred long before institution of the counterclaim under section 4(1) of the Limitation of Actions Act. To the extent that the defendants seek specific performance arising from those agreements, the claim is hopelessly out of time. 11. Even if the claim were viewed as one seeking recovery of land, the unexplained inaction spanning several decades significantly undermines the equitable relief sought.Regarding the caution itself, section 73 of the Land Registration Act empowers the court to order its removal where it no longer serves a lawful purpose. 12. The caution was lodged to protect an alleged purchaser's interest. Having found that the defendants have failed to establish any enforceable legal or equitable interest over the suit property, there remains no legal basis for its continued existence. Its continued registration only serves to impede the registered proprietors in the enjoyment and administration of their land. **Disposition** 1. Accordingly, the court makes the following orders: 2. Judgment is entered for the plaintiff. 3. An order is hereby issued directing the Land Registrar, Busia, to remove the caution registered against L.R. No. BUNYALA/BULEMIA/186 forthwith. 4. The defendants' amended defence and counterclaim dated 17th March 2026 are dismissed in their entirety. 5. The defendants shall jointly and severally bear the costs of the suit and the counterclaim. It is so ordered. Right of appeal within 30 days Dated, signed and delivered at Port Victoria this 9th day of July 2026, in the presence of Ms. Nabulindo for the defendants, Mr. Ashioya for the plaintiff and Mr. Masiga the Court Assistant. **Hon. Anne Njeru** **SRM**