https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3989

Jackson (Suing on behalf of the Estate of Somet Ole Tanyaag) v Sigei (Environment and Land Case E021 of 2021) [2026] KEELC 3989 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEELC 3989 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Case E021 of 2021 LN Gacheru, J June 29, 2026 Between Tanyaag Shinanai Jackson (Suing On Behalf Of The Estate Of Somet Ole Tanyaag) Plaintiff and Julius Sigei Defendant Judgment 1.By a Plaint dated 4th November 2021, the Plaintiff herein, Tanyaag Jackson Shinanai, suing on behalf of the Estate of the late Somet Ole Tanyaag, instituted this suit against the Defendant (Julius Sigei), seeking declaratory, injunctive and compensatory reliefs in respect of Land Parcel No. Narok/cis-mara/ololulunga/1143, measuring approximately 165 hectares. 2.The Plaintiff averred that the suit property belonged to the estate of the late Somet Ole Tanyaag; that following disputes over the land, the matter was reported to the local administration, culminating in correspondence from the Chief of Nkorkorri Location dated 7th September 2020 to the Assistant County Commissioner( ACC), Mulot Division; the Chief’s letter to the Deputy County Commissioner dated 26th May 2021, and a subsequent letter by the Assistant County Commissioner dated 27th September 2021, to the Deputy County Commissioner, Narok West Sub-County, concerning the dispute between the Defendant and the family of the deceased. 3.The Plaintiff further averred that a meeting convened by the Assistant County Commissioner( Mulot Division), involving the parties and members of the deceased’s family resolved that the documents relied upon by the Defendant purporting to evidence the purchase of the land could not be authenticated, and that no cultivation, leasing or other dealings were to take place on the land pending resolution of the dispute. 4.The Plaintiff also averred that despite those resolutions, the Defendant ignored the directives of the local administration, and continued cultivating the disputed land without any lawful justification; and that unless the Court intervenes, the estate of the deceased would continue to suffer substantial loss arising from the Defendant’s continuous acts of trespass, which loss could not adequately be compensated by damages. 5.The Plaintiff contended that notwithstanding demand letters issued through the local administration and subsequently through his advocates, the Defendant persisted in cultivating the land, and grazing livestock thereon; and that the Defendant’s continued occupation and use of the property amounted to unlawful trespass, interfered with the estate’s quiet possession and enjoyment of the land, and offended public policy and morality. 6.The Plaintiff particularized the alleged trespass as follows:a.that the beneficiaries of the late Somet Ole Tanyaag, him included, are the lawful owners of Land Parcel No. Narok/cis-mara/ololulunga/1143. measuring approximately 165 hectares in Mulot division within Narok County;b.that the Defendant was cultivating, tilling the land and grazing his herd of cattle on the suit property;c.that the Defendant had intentionally entered upon and interfered with the Plaintiff’s occupation and use of the land without any colour of right; 7.Further, the Plaintiff averred that the Defendant’s continued cultivation and grazing constituted unlawful occupation and trespass. Consequently, the Plaintiff prayed for judgment against the Defendant for the following reliefs:a.A declaration that the estate of Somet Ole Tanyaag is the legal owner of Land Parcel No. Narok/cis-mara/ololulunga/1143, measuring approximately 165 hectares in Molo location within Narok County.b.A permanent injunction restraining the Defendant, whether by himself or his servants or agents or otherwise however, from remaining on or continuing in occupation of Land Parcel No. Narok/cis-mara/ololulunga/1143 measuring 165 Hectares in Molo location within Narok County and the eviction of the Defendant his agents, servants from the suit property.c.General damages for trespass to land and/or illegal occupation of the Plaintiff’s Land Parcel No. Narok/cis-mara/ololulunga/1143 measuring 165 Hectares, together with interest at Court rates.d.Mesne profits for the user of the estate land of the late Somet Ole Tanyaag Narok/cis-mara/ololulunga/1143 measuring 165 Hectares from the month of September 2020 until the final determination of the suit, together with interests at court rates.e.Costs of this suit. 8.In response to the Plaint, the Defendant filed his Statement of Defence and Counterclaim dated 18th March 2022, wherein he admitted that he attended the meeting convened by the local administration, but denied that its purpose was to determine ownership of the suit property. 9.Further, that the meeting was only intended to address a dispute between the Plaintiff’s family and himself regarding the acreage occupied by each party, and that the resolutions relied upon by the Plaintiff were an attempt to manufacture a cause of action. He further contended that the Assistant County Commissioner and other conveners of the meeting lacked the legal mandate to determine disputes relating to ownership of land. 10.The Defendant contended that he lawfully purchased 94 acres out of Land Parcel No. Narok/cis-mara/ololulunga/1143, from the Deceased( Somet Ole Tanyaag) in several phases between 1996 and 1998 pursuant to written sale agreements executed for valuable consideration. He particularized the purchases as follows:a.30 acres purchased on 26th May 1996 for Kshs. 450,000;b.10 acres purchased on 6th July 1996 for Kshs. 190,000;c.10 acres purchased on 15th December 1996 for Kshs. 190,000;d.5 acres purchased on 2nd February 1997 for Kshs. 100,000;e.5 acres purchased on 8th February 1997 for Kshs. 100,000;f.30 acres purchased on 19th April 1997 for Kshs. 550,000; andg.14 acres purchased on 5th February 1998 for Kshs. 126,000. 11.The Defendant averred that he paid the agreed purchase price in full, which payments were acknowledged by the deceased, and that after each transaction he was granted vacant possession of the respective portions. Further, that although he paid for the final purchase of 14 acres, he was only placed in possession of 4 acres ,and was never refunded the consideration paid for the remaining 10 acres. 12.It was the Defendant’s case that, by virtue of the purchases, he became the lawful owner and had been in actual, open and uninterrupted possession of 94 acres of the suit property from 1996. He averred that he established a farmhouse, workers’ quarters and cattle sheds on the land, cultivated crops and grazed livestock thereon. 13.The Defendant further averred that in 1999, the deceased applied for consent to subdivide the suit property into two portions so that the Defendant’s purchased portion (Portion A) would measure approximately 38.05 hectares, while the deceased retained the balance measuring approximately 126.95 hectares (Portion B). 14.The Defendant further contended that a Mutation Form reflecting the intended subdivision was prepared and presented for registration, but the process was frustrated because a restriction had been registered against the title owing to an unrelated boundary dispute involving Ole Peres, a third party. 15.The Defendant also averred that there were other occupants on the remaining portion of the land who had never been disturbed and that the Plaintiff had selectively targeted him despite his lawful occupation. He maintained that he had continuously cultivated the land, and grazed livestock thereon from the date of purchase with the full knowledge and acquiescence of the deceased and, subsequently, the Plaintiff. 16.The Defendant denied that his occupation amounted to trespass or infringed the Plaintiff's rights. He asserted that the Plaintiff lacked any basis to require him to vacate the portion he had lawfully purchased and occupied. He denied that his occupation offended public policy or morality as alleged. 17.Additionally, the Defendant averred that the Plaintiff’s suit was time barred and that the Plaintiff had not demonstrated that he had obtained the consent of the other beneficiaries of the estate before obtaining letters of administration ad litem and instituting the present proceedings, thereby rendering the suit incompetent. 18.By way of Counterclaim, the Defendant averred that the interest of the deceased and his beneficiaries in the 94 acres occupied by him had been extinguished by operation of the doctrine of adverse possession, having remained in continuous, open, peaceful and uninterrupted possession of that portion from 1996. 19.Consequently, the Defendant sought the following orders:a.A declaration that the Plaintiff's interest and that of the estate of the late Somet Ole Tanyaag in the 94 acres comprised in Land Parcel No. Narok/cis-mara/ololulunga/1143 occupied by the Defendant had been extinguished by adverse possession.b.A declaration that the Defendant is entitled to be registered as the proprietor of the said 94 acres comprised in Land Parcel No. Narok/cis-mara/ololulunga/1143.c.General damages for loss of use of the said 94 acres from 17th November 2021, when interim court orders allegedly restrained him from utilizing the portion of the suit property under his occupation.d.Dismissal of the Plaintiff’s suit with costs. 20.In a Reply to Defence and Defence to Counterclaim dated 22nd May 2023, the Plaintiff reiterated the contents of the Plaint dated 4th November 2021, denied the averments contained in paragraphs 5 to 26 of the Defence, put the Defendant to strict proof thereof, and prayed for the Defence to be dismissed with costs. 21.In response to the Counterclaim, the Plaintiff contended that the Counterclaim was incompetent for want of compliance with Order 7 Rule 5 of the Civil Procedure Rules, 2010, and ought to be struck out. He denied the allegations contained in the Counterclaim and put the Defendant to strict proof thereof. 22.The Plaintiff denied that the Defendant lawfully purchased any portion of the suit property, and maintained that the alleged sale of 94 acres was unsupported by any credible documentary or oral evidence. 23.Further, that the purported sale agreements were unenforceable for failure to comply with Section 3(3) of the Law of Contract Act, and that no valid contract existed for the sale of the suit land. 24.The Plaintiff maintained that the 94 acres formed part of the family land comprised in Land Parcel No. Narok/cis-mara/ololulunga/1143, and denied that the Defendant had acquired any proprietary interest therein, and prayed for the Counterclaim to be dismissed with costs. 25.After the close of pleadings and the pre-trial conferences, the matter proceeded for hearing by way of viva voce evidence. Plaintiff’s Case 26.PW1, Jackson Shinanai Tanyaag, adopted his witness statement dated 4th November 2021, as part of his evidence and produced his list of documents as P Exhibits 1-10. 27.It was his evidence that he was the Plaintiff in the suit and a beneficiary of the estate of the late Somet Ole Tanyaaag, the registered proprietor of land parcel Narok/cis-mara/ololulunga/1143, measuring approximately 165 actres. That he instituted the suit on behalf of the deceased’s estate to protect the suit property from what he described as the Defendant’s unlawful occupation. 28.Further, that before the filing of the suit, the dispute had been reported to the local administration, and he referred to a letter dated 7th September 2020, from the Chief of Nkorkorri Location forwarding the family’s complaint to the Assistant County Commissioner, a further letter dated 26th May 2021, from the Chief to the Deputy County Commissioner, Narok West Sub-County, and another letter dated 27th September 2021, from the Assistant County Commissioner concerning the dispute over the suit property. 29.Further, that the dispute was discussed at a meeting convened by the Assistant County Commissioner, Mulot Division, attended by members of the deceased’s family, the Defendant, local administrators, and other stakeholders. According to him, the meeting considered, among other issues, the Defendant’s occupation of the land, the alleged purchase of the land, its cultivation and the alleged gentleman's agreement between the parties. 30.He stated that the meeting resolved that the documents relied upon by the Defendant as sale agreements could not be accepted as genuine, and that no cultivation, leasing or any other dealings with the suit property should take place until the dispute between the Defendant and the Tanyaag family was resolved. 31.PW1 testified that despite those resolutions, the Defendant ignored and disobeyed the directives issued by the Assistant County Commissioner and continued cultivating the disputed land without justification. 32.He also testified that unless the matter was determined expeditiously, the estate would continue to suffer substantial loss arising from the Defendant’s continued trespass, which, in his view, could not adequately be compensated by an award of damages. Further, that the Defendant’s continued cultivation of the suit property offended both the directives of the local administration and public policy. 33.According to PW1, notwithstanding the intervention of the local administration, and a demand letter issued by his advocates on 30th September 2021, the Defendant remained in occupation of the suit property, continued cultivating it and grazed his livestock thereon. 34.He maintained that the Defendant’s occupation, cultivation and grazing activities on the suit property were unlawful, amounted to trespass and interfered with the beneficiaries’ peaceful occupation and enjoyment of the estate land. 35.It was his testimony that the estate of the late Somet Ole Tanyaag is the lawful owner of land parcel Narok/cis-mara/ololulunga/1143, measuring approximately 165 hectares; that the Defendant had entered, cultivated and grazed livestock on the property without any colour of right; and that the Defendant had refused to vacate despite repeated demands. 36.Further, that there had been no previous suit between the parties over the subject matter, and he urged the Court to declare the estate of Somet Ole Tanyaag, the lawful owner of the suit property, issue a permanent injunction restraining the Defendant from occupying or interfering with the land, order the Defendant’s eviction, award general damages for trespass and mesne profits, and grant the costs of the suit. 37.On cross examination, the Plaintiff testified that the Defendant had grabbed 95 Acres out of the 423 Acres from his Deceased’s father estate, who died in 2005 by alleging that he had bought the said land from the Deceased when he actually leased it; and that the Defendant went to the Court of Appeal where he was allowed to use the suit land. 38.He explained that the suit was not barred by the Limitation of Actions Act, because the plaintiff and the other beneficiaries were young when the dispute began; hence the delay in filing the suit. 39.PW2, Nemuta Ene Tanyaag adopted her witness statement dated 24th May 2023, as part of her evidence in chief, and testified that she is the second wife of the late Somet Ole Tanyaag, a next of kin and a bona fide trustee of his estate. 40.It was her evidence that the deceased was the registered proprietor of land parcel Narok/cis-mara/ololulunga/1143, measuring approximately 165 hectares, which forms the subject matter of the suit. 41.Further, that the deceased and herself had three children, namely Soitanae Tanyaag, Toonte Tanyaag and Kuseyo Tanyaag, who was still a minor at the time. Further, that throughout her marriage to the deceased, and until his death, he never informed her that he had sold any portion of the suit property to the Defendant. That the Defendant never approached her at any time, whether during the deceased’s lifetime, at his burial or thereafter, regarding the alleged purchase of the land. 42.She also testified that it was the Defendant’s continued insistence on remaining on the suit property that prompted the family to report the matter to the local administration; that following the complaint, the Chief of Nkorkorri Location wrote a letter dated 7th September 2020 forwarding the family’s grievances concerning the estate of the late Somet Ole Taanyaag to the Assistant County Commissioner, Mulot Division. 43.She further testified that the Chief subsequently wrote to the Deputy County Commissioner, Narok West Sub-County, on 26th May 2021 regarding the same dispute, and that on 27th September 2021, the Assistant County Commissioner also wrote to the Deputy County Commissioner concerning the dispute between the Defendant and the deceased’s family. 44.She further testified that the dispute was deliberated upon at a meeting convened by the Assistant County Commissioner, Mulot Division, attended by the deceased’s family and the Defendant. According to her, the meeting resolved that the documents relied upon by the Defendant as sale agreements could not be accepted as genuine because their authenticity could not be verified; and that the meeting further resolved that no cultivation, leasing or any other dealings with the suit property should take place until the dispute between the Taanyaag family and the Defendant had been resolved. 45.Further, that the Deceased never sold the suit land to the Defendant; and that she used to live on the suit land with her other co-wives when her husband was still alive. 46.PW3, Mupukari Ene Tanyaag, adopted her witness statement dated 24th May 2023 as part of her evidence and further testified she is the fifth wife of the late Somet Ole Taanyaag. That the deceased and herself had three children, namely Thaddeaus Kayion Taanyaag, Kuruo Taanyaag and Emmanuel Taanyaag. 47.PW3 further testified that throughout her marriage to the deceased, and until his death, he never informed her that he had sold any portion of the suit property to the Defendant. She claimed that the Defendant never approached her, whether during the deceased’s lifetime, at his burial or thereafter, concerning the alleged purchase of the suit property. 48.She also testified that the Defendant’s continued occupation of the suit property prompted the family to lodge a complaint with the local administration. That the Chief of Nkorkorri Location wrote a letter dated 7th September 2020, forwarding the family’s grievances regarding the estate of the deceased to the Assistant County Commissioner, Mulot Division. 49.Further, that on 26th May 2021, the Chief wrote to the Deputy County Commissioner, Narok West Sub-County, regarding the same dispute, and that on 27th September 2021, the Assistant County Commissioner also wrote to the Deputy County Commissioner concerning the dispute between the Defendant and the deceased’s family. 50.It was her claim that the dispute was subsequently discussed at a meeting convened by the Assistant County Commissioner, Mulot Division, which was attended by members of the deceased’s family, and the Defendant; and that the meeting resolved that the documents relied upon by the Defendant as sale agreements could not be accepted as genuine because their authenticity could not be verified. 51.She added that the meeting further resolved that no cultivation, leasing or any other dealings with the suit property should take place until the dispute between the Taanyaag family and the Defendant had been resolved. 52.PW4, Selly Ene Tanyaag adopted her witness statement as part of her evidence, and also testified that she was married to the Deceased as his 3rd wife with whom she sired 6 children. That during the subsistence of her marriage to the deceased, he never informed her that he had sold any portion of the suit property to the Defendant. Further, that the Defendant never approached her at any time, whether during the deceased's lifetime, at his funeral or after his demise, to discuss the alleged purchase of the land. 53.She further testified that following the Defendant’s continued occupation of the suit property, the family lodged complaints with the local administration. According to her, the Chief of Nkorkorri Location forwarded the family’s grievances concerning the estate of the deceased to the Assistant County Commissioner, Mulot Division, by a letter dated 7th September 2020. 54.PW3 further added that the Chief subsequently wrote to the Deputy County Commissioner, Narok West Sub-County, on 26th May 2021, regarding the dispute, and that on 27th September 2021, the Assistant County Commissioner likewise communicated with the Deputy County Commissioner over the same matter. 55.That the dispute was thereafter deliberated upon at a meeting convened by the Assistant County Commissioner, Mulot Division, attended by both the Defendant and members of the deceased's family. She claimed that the meeting resolved that the documents presented by the Defendant as sale agreements could not be relied upon because their authenticity could not be verified. That the meeting directed that there should be no cultivation, leasing or any other dealings with the suit property until the dispute between the Defendant and the deceased's family was resolved. 56.Upon cross examination, PW4 testified that the Deceased did not sell the suit land to the Defendant; that the Defendant had been on the suit land from 1995 because he was leasing it, not because he had purchased it; and that her father purchased the land from her husband, the Deceased. 57.PW5, Sanja Ole Sankei, testified that he was the Chief of Nkorkorr location from 1988 until 2016, when he retired; that he was aware of the dispute when it was raised by the Deceased’s children, who wanted to confirm whether the people in occupation of the said land had purchased the same from the Deceased. That he summoned the people in occupation; and he discovered that the said persons in occupation had leased the land from the Deceased, and were not purchasers. 58.PW6, Koriata Nadala Keswe, the current chief of Nkorkorr Location testified that he has been a chief since 2016; and admitted that he wrote letters concerning the dispute, which letters he produced as exhibits. 59.Further, that there was a dispute between the Deceased’s family over the suit land which was about 100 Acres; that the land is occupied by Kalenjins, not Maasais; that the Deceased’s family claim that the Defendant never purchased the land from the Deceased (Somet Ole Tanyaag); that he attempted to reconcile the parties but failed; and that he referred the matter to the Assistant County Commissioner and later to the Deputy County Commissioner. Defendant’s Case 60.DW1: Julius Kipyegon Sigei, , adopted his witness statement dated 20th September 2022, as his evidence in chief and produced his list of documents as D Exhibits 1-10. He further testified that he was introduced to the late Somet Ole Taanyaag in 1995 by their mutual acquaintances; that they developed a friendship and occasionally took photographs together, some of which he produced as part of his documentary evidence. It was his further testimony that the deceased resided in Nkorkorri area. 61.Further, that in 1995 the deceased approached him with an offer to sell a portion of land parcel Narok/cis-mara/ololulunga/1143, but he initially declined as he was not interested in purchasing land at the time; that the deceased approached him again in 1996, whereupon he agreed to purchase 30 acres in May 1996, and thereafter acquired additional portions of the land in phases between 1996 and 1998. 62.Further, that in November 1996, he conducted an official search on the suit property, paid the requisite search fees and was issued with an official receipt; that by the end of the transactions he had purchased a cumulative 104 acres from the deceased ( Somet Ole Tanyaag) under several written sale agreements executed in good faith; and that he paid the full purchase price for each transaction and that the deceased acknowledged receipt of all the payments. 63.It was his further testimony that the deceased granted him vacant possession after each phase of the purchase, except for the final phase involving 14 acres, where he was only put into possession of 4 acres. According to him, the remaining 10 acres were never handed over, and he contended that he ought to be compensated by the deceased’s estate for that acreage. 64.That in 1999, the deceased applied for and obtained consent to subdivide the suit property so as to excise his purchased portion. Further, that the subdivision created Portion A measuring approximately 38.05 hectares, registered as NAROK/CIS-MARA/OLOLULUNGA/9682, which represented his portion, and Portion B measuring approximately 126.95 hectares, registered as NAROK/CIS-MARA/OLOLULUNGA/9683, representing the deceased’s remaining land; and that although the deceased presented the Mutation Forms for registration and paid the requisite fees, the transfer was never completed because a restriction had been registered against the title arising from an earlier boundary dispute. 65.Further, that since being placed in possession in 1996, he has been in open, peaceful, continuous and uninterrupted occupation of approximately 94 acres of the suit property. That he had constructed cowsheds and servants’ quarters, kept livestock and cultivated maize, wheat and Rhodes grass on the land. 66.It was his further evidence that in 2021, he was summoned to a meeting before the Assistant County Commissioner after the Plaintiff’s family disputed the acreage he occupied. He informed the meeting that he occupied 94 acres, whereupon a survey was conducted which confirmed that he was indeed occupying 94 acres and not the 147 acres alleged by the Plaintiff. That following the survey, the dispute over the acreage was resolved. 67.Further, that he was subsequently served with a demand letter requiring him to vacate the suit property, a demand he considered unjustified because he believed he was the lawful owner of the 94 acres that he had purchased. Further, that there were other occupants on the remaining portions of the suit land who co-existed peacefully with the Plaintiff’s family, and that he was surprised by the Plaintiff’s allegation that he occupied the entire parcel. 68.He maintained that neither the Plaintiff nor any member of the Plaintiff’s family had ever occupied or utilized the 94 acres he purchased; that having purchased the land for valuable consideration and having remained in possession since 1996, he was the lawful beneficial owner of that portion, and that his occupation and cultivation did not infringe upon the Plaintiff’s rights. 69.He urged the Court to dismiss the Plaintiff’s suit, allow his Counter-claim, and award him damages for the losses occasioned by the interim orders. 70.agreements for the purchase of the suit property; that he drafted the agreement himself; that the agreement mentions the sale of Land parcel No. 1143; and that his wife was the only witness. 71.DW2,: James Nderitu Ndungu, the Assistant County Commissioner for Mulot Division, Narok County, wherein he had served in that capacity since 2019. That on or about 30th March 2022, he received a letter from the Defendant’s advocates, Mitey & Associates Advocates, seeking to verify the authenticity of the minutes of an alleged meeting said to have been held on 23rd June 2021, concerning the land dispute between the family of the late Somet Ole Taanyaag and the Defendant. 72.That in his response he informed the advocates that he neither presided over the alleged meeting of 23rd June 2021, nor delegated any officer from his office to chair such a meeting; that the signature, initials and official rubber stamp appearing on the alleged minutes were not his, and were not authentic; and that upon discovering the alleged forgery of his signature and official stamp, he reported the matter to the Directorate of Criminal Investigations for investigation. 73.Further, that, although he did not preside over the meeting reflected in the disputed minutes, he had chaired three other meetings involving the Plaintiff's family and the Defendant concerning the suit property. He testified that during those meetings, the Plaintiff and his brothers complained that the Defendant was occupying 147 acres despite having purchased only 94 acres from the deceased. 74.It was his further testimony that following the deliberations, he directed the parties to engage the services of surveyors to establish the actual acreage occupied by the Defendant. According to the Survey Report subsequently produced, the Defendant was found to be in occupation of 94 acres, and not the alleged 147 acres. 75.Further, that he never recorded or prepared the disputed minutes relied upon by the Plaintiff, and he maintained that none of the meetings he presided over between the Plaintiff's family and the Defendant resulted in those minutes. 76.Upon cross examination, DW2 testified that there is an active court case over the forgery, being CR Case No. 223 of 2022. 77.DW3, William Kipkoech Mosonik, adopted his witness statement as his evidence in chief and testified that he is a neighbour of the Defendant; that in or about 1994 he purchased 19 acres out of land parcel NAROK/CIS-MARA/OLOLULUNGA/1143, from the late Somet Ole Taanyaag. 78.Further, that in or about 1996, before the Defendant was allocated his share, the deceased personally took all the purchasers onto the land and allocated each purchaser his respective portion. That a Surveyor was present during the exercise, and the 19 acres he had purchased were surveyed, demarcated and pointed out to him. 79.He further testified that the Defendant later purchased part of the remaining portion of the suit land, and that the same was surveyed in the presence of the deceased. That the balance of the land was subsequently sold to other purchasers. 80.He also testified that the Defendant’s parcel lies between his land and that of one Charles Langat; and that his land has not yet been transferred to him due to a caution registered against the suit property, which caution has not been removed to date. That during the lifetime of the deceased, the Defendant never had any dispute with him concerning the suit property. 81.DW4: Raphael Patita Pariken, adopted his witness statement as his evidence in chief and also testified that he came to know the Defendant through the late Somet Ole Taanyaag, who was his cousin and the registered proprietor of land parcel NAROK/CIS-MARA/OLOLULUNGA/1143. 82.He further testified that in January 1998, the deceased visited his home and informed him that they were to collect money from the Defendant. Upon inquiring about the purpose of the payment, the deceased explained that it related to the sale of a portion of his land to the Defendant and requested him to accompany him as a witness. 83.Further, that they proceeded to a place known as Kipurgut where they met the Defendant. The deceased then showed the Defendant the portion of land he intended to sell and informed him that he was selling 30 acres for Kshs. 550,000/=. 84.It was his further testimony that the deceased requested him to witness the payment made by the Defendant; that he witnessed the Defendant pay the deceased Kshs. 258,000/=, and an agreement was prepared and executed in his presence acknowledging the payment. That, apart from the Defendant, the deceased also sold other portions of the suit property to various purchasers. 85.DW5: Charles Kipkorir Langat, adopted his witness statement dated 7th May 2023 as his evidence in chief and testified that on or about 1990, his brother purchased a portion of land comprised in NAROK/CIS-MARA/OLOLULUNGA/1143, from the late Somet Ole Taanyaag, and had remained in occupation of that portion. 86.He further testified that in 1996, when the Defendant sought to purchase land from the deceased, the Defendant first inquired whether all the earlier purchasers had been allocated their respective portions; and that the deceased confirmed that each purchaser had received his rightful share before proceeding to sell a portion of the remaining land to the Defendant; that after the Defendant had been allocated his portion, himself purchased 6 acres from the deceased in 1997.That his portion had not yet been transferred to him because a caution had been registered against the suit property. 87.On cross examination, he testified that he witnessed the survey work when the Defendant purchased the said land from the Deceased. 88.After the close of viva voce evidence, the court directed the parties to file and exchange their respective written submissions, which directives they complied with. 89.The Plaintiff filed his written submissions dated 15th December 2025, through Mayende & Busiega Advocates, wherein the following issues were raised for determination:i.Whether the alleged sale agreements are valid and enforceable under the applicable law;ii.Whether the absence of Land Control Board consent rendered the alleged transactions void;iii.Whether lack of spousal consent invalidated the alleged sale;iv.Whether the Defendant could competently maintain a claim for adverse possession while simultaneously asserting ownership through purchase. 90.On the validity of the alleged sale agreements, the Plaintiff submitted that the Defendant admitted to having personally prepared the sale agreements and, consequently, the contra proferentem rule applied, such that any ambiguity in the agreements ought to be construed against him. 91.In support of this proposition, the Plaintiff relied on Bhogatia v Madison Group (Cause 6564 of 2020) [2024] KEELRC 1587 (KLR), where the Court reaffirmed the contra proferentem rule and approved the holding in Mwangi Ngumo v Kenya Institute of Management [2012] eKLR that where a contract is drawn by one party, any ambiguity or uncertainty in its terms must be construed against the party who prepared it. 92.Further, that any defects, inconsistencies or uncertainties in the impugned sale agreements ought to be interpreted against the Defendant, who admitted having prepared them. He further argued that the agreements were vague, failed to adequately identify the suit property, and did not satisfy the formal requirements of a valid contract for the disposition of land. 93.The Plaintiff further submitted that the alleged agreements were unenforceable under Section 3(3) of the Law of Contract Act as they failed to comply with the mandatory statutory formalities governing contracts for the disposition of interests in land. In particular, counsel argued that the Defendant’s wife could not qualify as an independent witness and that the agreements did not clearly identify the subject matter of the sale, thereby rendering them unreliable and legally unenforceable. 94.On the issue of the Land Control Board consent, the Plaintiff submitted that the alleged transactions were void for want of the consent required under Sections 6 and 8 of the Land Control Act, Cap 302, the suit property being agricultural land. 95.The plaintiff also submitted that no consent to subdivide or transfer the land was ever obtained within the prescribed statutory period and relied on Kaulankash v Okeyo & Another, Environment and Land Appeal No. 11 of 2020 [2025] KEELC 3547 (KLR), where the court held that a controlled transaction affecting agricultural land undertaken without the requisite Land Control Board consent is void for all purposes. 96.On the issue of spousal consent, he submitted that the suit property constituted family land, and that no evidence had been tendered to demonstrate that the spouses of the deceased consented to the alleged sale. 97.The Plaintiff relied on Kogo v Yego, Environment and Land Case No. 280 of 2014 [2024] KEELC 7554 (KLR), where the Court emphasized that a disposition of matrimonial property requires the consent of the spouse and held that the absence of such consent rendered the impugned sale incapable of enforcement. 98.Further reliance was placed on Isaack M’Inanga Kiebia v Isaaya Theuri M’Lintari & another [2018] eKLR, wherein the Supreme Court underscored the constitutional protection accorded to family and customary land rights. Further, that, in view of Article 40 of the Constitution and Section 12 of the Matrimonial Property Act, 2013, the alleged sale of the suit property, being family land, was invalid for want of the requisite spousal consent. 99.The Plaintiff further submitted that following the death of the vendor, the Defendant could not enforce the alleged sale agreements against the estate without first pursuing his claim through the succession process. That the Defendant had slept on his alleged rights during the lifetime of the deceased and could not invoke equitable principles in his favour, equity aiding the vigilant and not the indolent. 100.With regard to the Counter-claim, the Plaintiff submitted that the Defendant’s claim for adverse possession was legally inconsistent with his assertion that he had purchased the suit property. Counsel argued that a purchaser who enters land pursuant to a sale agreement occupies the land with the permission of the vendor and cannot, while relying on that sale, simultaneously assert adverse possession unless such permission has lawfully ceased and time has begun to run. 101.The Plaintiff further submitted that the Defendant had failed to establish the essential ingredients of adverse possession, namely that his possession was open, exclusive, continuous, actual and non-permissive for the statutory period. Relying on Gabriel Mbui v Mukindia Maranya [1993] eKLR, he argued that the adverse character of possession is a question of fact and cannot be inferred from mere occupation, but must be demonstrated by clear evidence of hostile occupation under a claim of right. 102.He further relied on Elms v Heard, Environment and Land Case No. 135 of 2022 [2025] KEELC 3155 (KLR) where it was held that possession founded on a sale agreement is initially permissive and cannot constitute adverse possession, unless it subsequently becomes hostile upon the termination of the purchaser’s permission. 103.Further reliance was placed on Chepkwony v Terer, Environment and Land Originating Summons No. E005 of 2023 [2025] KEELC 3188 (KLR), where the Court restated that adverse possession can only be established upon proof of open, notorious, continuous, exclusive, actual and non-permissive occupation for the prescribed period. 104.The Plaintiff also submitted that the Defendant’s occupation originated from the alleged sale agreements and was permissive rather than hostile, with the result that his claim for adverse possession could not be sustained.That the Defendant could not rely on the existence of a restriction or caution registered against the title to excuse his failure to perfect the alleged purchase. It was contended that the caution constituted notice to any prospective purchaser and that the Defendant was bound by the doctrine of caveat emptor. 105.Accordingly, he urged the Court to find that the alleged sale agreements were invalid, void and unenforceable, dismiss the Defence and Counterclaim, and allow the Plaintiff’s suit with costs. 106.The Defendant filed his written submissions dated 13th February 2026, through Mitey & Associates Advocates, and raised the following issues for determination:i.Whether the Defendant acquired an interest in the suit property in 1996.ii.Whether the Plaintiff is entitled to an award of general damages for trespass and mesne profits.iii.Whether the Defendant has proved adverse possession.iv.Who is entitled to costs. 107.On whether the defendant acquired an interest in the suit property in 1996, it was submitted that the existence and execution of the sale agreements were never disputed by the Plaintiff; and that the evidence established that the deceased executed written sale agreements in favour of the Defendant, received the agreed purchase price and placed the Defendant in possession of the suit property, thereby conferring upon him a proprietary interest. 108.He further submitted that the sale agreements complied with the requirements of Section 3(3) of the Law of Contract Act, having been reduced into writing, signed by the parties and attested by a witness. Further, that the Plaintiff failed to prove that the witness, Mary Sigei, was the Defendant’s wife and, even if she were, no provision of the law prohibited her from witnessing the execution of the agreements. 109.The Defendant further submitted that the absence of Land Control Board consent did not defeat his equitable interest in the suit property. Relying on Maina & 87 Others v Kagiri (Civil Appeal Nos. 6, 26 & 27 of 2011 (Consolidated)) [2014] KECA 880 (KLR), he submitted that the Court of Appeal held that where purchasers have paid the purchase price, a constructive trust may arise notwithstanding the absence of Land Control Board consent, and that the Land Control Act should not be employed as an instrument of unjust enrichment. 110.Further reliance was placed on Kotut v Rose Jebor Kipngok [2019] KECA 921 (KLR), where the Court affirmed that proprietary estoppel and constructive trust remain available to protect purchasers who have paid the purchase price despite the absence of Land Control Board consent. 111.Further reliance was placed on Aliaza v Saul (Civil Appeal No. 134 of 2017) [2022] KECA 583 (KLR), in which the Court of Appeal held that a constructive trust may arise in favour of a purchaser who has paid the purchase price, and taken possession notwithstanding the failure to obtain Land Control Board consent, and that such a trust may be inferred by the court even where it has not been expressly pleaded. The Defendant urged the Court to find that a constructive trust arose over the 94 acres occupied by the Defendant. 112.On spousal consent, the Defendant submitted that the impugned transaction occurred in 1996, prior to the enactment of the Constitution of Kenya, 2010, the Land Act, the Land Registration Act, 2012, and the Matrimonial Property Act, 2013. Therfore, the statutory requirement for spousal consent could not be applied retrospectively to invalidate the transaction. 113.On the Plaintiff’s entitlement to general damages for trespass and mesne profits, the Defendant submitted that his entry upon and occupation of the suit property was pursuant to the sale agreements and with the permission of the deceased. Referring to Section 3(1) of the Trespass Act and the definition of trespass in Clerk & Lindsell on Torts (18th Edition), he submitted that trespass consists of an unjustifiable intrusion upon land in another’s possession and could not arise where occupation was authorized by the owner. 114.Further, that the claim for mesne profits had neither been specifically pleaded nor strictly proved. Relying on Christine Nyanchama Oanda v Catholic Diocese of Homa Bay Registered Trustees [2020] KECA 536 (KLR), he submitted that a claimant cannot recover both general damages for trespass and mesne profits and that mesne profits, being in the nature of special damages, must be specifically pleaded and proved. 115.He also relied on Peter Mwangi Mbuthia & Another v Samow Edin Osman [2014] KECA 279 (KLR), for the proposition that no award of mesne profits can issue where no specific sum has been pleaded. Further reliance was placed on Kiambu Coffee Growers Co-operative Union Limited v Attorney General & 3 Others; Constituency Development Fund, Gatundu North (Interested Party) [2023] KEELC 19273 (KLR), where the Court held that mesne profits are ordinarily recoverable where a contractual tenancy has come to an end and the occupant thereafter remains in possession as a trespasser. That no tenancy relationship had been established in the present case. 116.On whether he had proved adverse possession, the Defendant submitted that his Counter-claim was pleaded in the alternative in the event that the Court found the sale transaction void. He argued that he had been in open, peaceful, continuous and uninterrupted possession of the suit property since February 1998, after taking possession of the final portion purchased from the deceased. 117.He relied on Songoi v Songoi (Civil Appeal No. 11 of 2016) [2020] KECA 942 (KLR), where the Court of Appeal identified the essential elements of adverse possession as proof of the date of entry, the nature of possession, the owner’s knowledge of such possession, continuous occupation for the statutory period, and open and uninterrupted possession. The Defendant argued that he had satisfied each of those requirements through both oral and documentary evidence. 118.He further relied on Titus Ong'ang'a Nyachieo v Martin Okioma Nyauma & 4 Others (Civil Appeal No. 102 of 2015) [2017] KECA 266 (KLR), where the Court of Appeal held that where a purchaser enters land pursuant to a controlled transaction that subsequently becomes void for want of Land Control Board consent, occupation becomes adverse upon the transaction becoming void by operation of law. Therefore his possession became adverse upon the lapse of six months after the application for the Land Control Board consent, and had continued uninterrupted for well over twelve years. 119.The Defendant further submitted that the Plaintiff’s own witnesses confirmed that both the deceased and the Plaintiff were aware of the Defendant’s occupation of the suit property and that no dispute arose during the deceased’s lifetime; and that he had established all the elements necessary to succeed in his counterclaim for adverse possession. 120.On costs, the Defendant submitted that having demonstrated that the Plaintiff’s suit was devoid of merit and that his Counter-claim was meritorious, costs should follow the event. He urged the Court to dismiss the Plaintiff’s suit with costs and allow the Counter-claim. 121.Having carefully considered the pleadings, the oral and documentary evidence tendered by the parties, the rival written submissions and the applicable law, the Court is of the view that the following issues arise for determination:i.Whether the plaintiff has locus standi to institute the suitii.Whether the transaction were void for want of Land Control Board consent and whetehr the Defendant acquired an equitable interest.iii.Whether the Defendant lawfully acquired an interest in Land Parcel No. NAROK/CIS-MARA/OLOLULUNGA/1143.iv.Whether the Plaintiff has established that the Defendant is a trespasser and is entitled to the declaratory, injunctive and monetary reliefs sought in the Plaint.v.Whether the Defendant has proved his Counterclaim, including the claim founded on adverse possession.vi.Who should bear the costs of the suit. 122.On whether the Plaintiffs has locus standi, the defendant challenged the Plaintiffs capacity to sue on behalf of the estate of the deceased. The law is settled that only a duly appointed personal representative may sue or be sued on behalf of a deceased person’s estate. 123.In Trouistik Union International & Another v Jane Mbeyu & Another (1993) Eklr, the Court of Appeal held that a suit on behalf of a deceased person’s estate can only be maintained by a person holding a grant of representation. 124.The record shows that the Plaintiff obtained a Grant of Letters of Administration Ad Litem authorizing him to institute proceedings on behalf of the Estate . Such a grant is sufficient for purposes of instituting and prosecuting a suit. In Otieno v Ougo & Another (1986 -1989) EA 468, the Court of Appeal affirmed that a limited grant ad litem confers legal capacity to commence proceedings on behalf of an estate. 125.The Defendant’s argument that the plaintiff required prior consent from all beneficiaries before obtaining the grant is unsupported by law. Once a competent court issues a grant, the holder acquires the legal authority to represent the estate until the grant is revoked or set aside. Consequently, the Court finds that the Plaintiff possessed the requisite locus standi to institute the present proceedings. 126.On whether the transaction were void for want of Land Control Board, there is no dispute that the suit property is agricultural land situated within a land control area. Section 6(1) of the Land Control Act, Cap 302 provides that any sale, transfer, subdivision or other controlled transaction concerning agricultural land becomes void unless consent of the Land Control Board is obtained within six months. The Court of Appeal in Kariuki v Kariuki (1982) KECA 13 (KLR) reiterated that transactions lacking Land Control Board consent become void for all purposes. 127.Although the Defendant testified that consent was obtained, he did not produce the consent itself. Consequently, the court is unable to conclusively find that valid consent was obtained and acted upon. However, the legal position has considerably evolved regarding the effect of the absence of Land Control Board consent where a purchaser has paid the purchase price and taken possession. 128.In Macharia Mwangi Maina & 87 others v Davidson Mwangi Kagiri (2014) e KLR, the Court of Appeal held that the doctrines of constructive trust and proprietary may arise notwithstanding the provisions of the Land Control Act where a purchaser has paid consideration and been put into possession. 129.Similarly, in Willy Kimuitai Kitilit v Michael Kibet (2018) Eklr the Court of Appeal held that the equitable dctrines of constructive trust and proprietary estoppel are applicable in Kenya and may be invoked to prevent injustice even where a transaction would otherwise be void under the Land Control Act. 130.The Plaintiff argued that constructive trust was not pleaded. While it is true that parties are generally bound by their pleadings, courts are equally guided by the principle that where facts giving rise to a legal consequence are pleaded and proved, The court may grant the appropriate relief arising from those facts. The defendant expressly pleaded purchase, payment of consideration, possession, attempted subdivision, and intended transfer. These are precisely the factual foundations from which a constructive trust arise. 131.In Odd Jobs v Mubia (1970) EA 476, the Court held that a court may determine an issue which although not expressly pleaded, was left to the court for determination and was fully canvassed during trial. The evidence demonstrates that the deceased received the purchase price, put the Defendant into possession, and permitted him to occupy the Land for many years without objection 132.On whether the Defendant lawfully acquired an interest in Land Parcel No. NAROK/CIS-MARA/OLOLULUNGA/1143, the Plaintiff’s case is that the Defendant is an unlawful occupier of the suit property; that the late Somet Ole Tanyaag never sold any portion of the suit land to the Defendant; that the sale agreements relied upon by the Defendant are either invalid or incapable of conferring any proprietary interest; and that the Defendant’s occupation amounted to trespass upon the estate of the deceased. 133.The Defendant, on the other hand, maintained that between the years 1996 and 1998, he lawfully purchased various portions of the suit property from the deceased through a series of written sale agreements, eventually acquiring a total of 94 acres. Further, that he paid the agreed purchase price in full, was immediately placed into possession by the deceased, and has remained in uninterrupted occupation ever since. 134.The Court has carefully evaluated the documentary evidence alongside the oral testimony of the parties and their witnesses. The Defendant produced several written agreements to confirm and evidence the sale transactions entered into with the deceased over a period of approximately two years. These agreements were supported by evidence of payments, and were not displaced by any expert evidence establishing forgery or fraud. 135.Equally persuasive was the testimony of DW3, DW4 and DW5, who confirmed that the deceased sold portions of the suit property to several purchasers and that the deceased Somet Ole Tanyaag, personally identified and allocated the respective portions of land on the ground. Their evidence remained consistent on the material particulars and corroborated the Defendant’s account that he lawfully acquired his portion directly from the deceased. 136.The Court also notes that the Defendant’s occupation commenced during the lifetime of the deceased. There was no evidence placed before this Court demonstrating that the deceased ever challenged the Defendant’s occupation, sought to rescind the sale agreements or demanded that the Defendant vacate the land. To the contrary, the evidence demonstrates that the Defendant remained in possession peacefully for several years before the present dispute arose following the deceased’s demise. 137.The Plaintiff placed considerable reliance on minutes allegedly generated during meetings convened by the Assistant County Commissioner. However, DW2, who served as the Assistant County Commissioner, Mulot Division categorically denied presiding over the alleged meeting of 23rd June 2021, and disowned the signature and official stamp appearing on the purported minutes. Further, DW2 testified that the documents did not emanate from his office, and that the matter had been reported to the Directorate of Criminal Investigations for thorough investigation. In light of this evidence, the Court attaches little evidential value to the impugned minutes. 138.The Plaintiff further argued that the transactions were invalid for want of Land Control Board consent and lack of spousal consent. While it is true that agricultural land transactions ordinarily require the consent of the Land Control Board, the Court of Appeal has consistently held that where a purchaser has paid the purchase price, taken possession and substantially performed his obligations, equity will intervene through the doctrines of constructive trust and proprietary estoppel to prevent injustice notwithstanding the absence of such consent. As pointed out earlier, this principle was affirmed in Macharia Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR and reaffirmed in Willy Kimutai Kitilit v Michael Kibet [2018] eKLR. 139.Equally, the Court finds no merit in the Plaintiff’s contention regarding spousal consent. The transactions complained of occurred between 1996 and 1998, well before the enactment of the Constitution of Kenya, 2010, the Land Registration Act, the Land Act and the Matrimonial Property Act, which Acts introduced the statutory requirement for spousal consent. Those statutory provisions cannot be retrospectively applied to invalidate transactions lawfully entered into before their commencement. 140.Consequently, the Court is satisfied that the Defendant has proved, on a balance of probabilities, that he lawfully acquired a beneficial interest in approximately 94 acres of the suit property through valid sale transactions with the deceased and that his subsequent possession was with the authority and consent of the registered proprietor. 141.Having found that the Defendant entered unto the suit property pursuant to sale agreements entered into with the deceased proprietor and was placed into possession by the deceased himself, it necessarily follows that his occupation cannot be characterized as trespass. 142.Trespass is founded upon unlawful entry onto another person’s land without permission or lawful justification. The evidence before this Court demonstrates that the Defendant’s possession originated from the express permission of the deceased proprietor and continued openly and uninterrupted for several decades. The Plaintiff therefore failed to establish that the Defendant’s occupation was unlawful. 143.The Court also notes that the Plaintiff did not produce evidence proving that the Defendant occupied the entire 147 hectares as alleged. Indeed, the evidence of DW2 established that following a survey undertaken pursuant to administrative intervention, the Defendant was found to be occupying approximately 94 acres, corresponding substantially with the acreage purchased. 144.Since the Defendant’s occupation is not unlawful, the Plaintiff is not entitled to the declarations sought; being the permanent injunction, eviction orders, mesne profits or general damages for trespass. These remedies are therefore declined. 145.In the Counterclaim, the Defendant’s primary case is founded upon the sale agreements entered into with the deceased. In the alternative, he pleaded that by virtue of his uninterrupted occupation of the suit property since 1996, he had acquired title by adverse possession. 146.As already found, the Court is satisfied that the Defendant acquired equitable rights over the suit property through the sale agreements executed with the deceased. Those rights are enforceable in equity under the doctrines of constructive trust and proprietary estoppel. 147.Even assuming, for the sake of argument, that the transactions became unenforceable for want of Land Control Board consent, the Defendant’s alternative claim based on adverse possession would nevertheless succeed. The evidence demonstrates that he entered into possession in 1996, and has remained in open, exclusive, continuous and uninterrupted possession of approximately 94 acres ever since. By the time the present suit was instituted in 2021, more than twelve years had elapsed. 148.The Court is guided by the decisions in Public Trustee v Wanduru Ndegwa [1984] eKLR, Macharia Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR and Willy Kimutai Kitilit v Michael Kibet [2018] eKLR, which recognize that where a purchaser remains in uninterrupted possession after payment of the purchase price, equitable interests arise and, where applicable, time continues to run for purposes of adverse possession. 149.Accordingly, the Defendant has proved his Counter-claim on a balance of probabilities and this Court comes to an inescapable conclusion that he is entitled to protection of his occupation over the 94 acres, that he purchased from the deceased. 150.On Costs, the Court finds that they ordinarily follow the event as provided under Section 27 of the Civil Procedure Act, unless good reason exists to depart from that principle. The Defendant has successfully defended the claim against him, and substantially succeeded in his Counter-claim. Consequently, this Court finds no reason to deny him costs. 151.Ultimately, the Court finds and holds that the Plaintiff has failed to prove his case on the required standard of balance of probabilities, while the Defendant has successfully proved his Counter-claim, on the required standard, and his claim is found merited and thus allowed. 152.Consequently, judgment is entered in favour of the Defendant against the Plaintiff in the following terms:a.The Plaintiff’s suit as contained in the Plaint dated 4th November 2021 is hereby dismissed in its entirety, with costs.b.Judgment is entered for the Defendant against the Plaintiff herein as contained in the Counter-claim dated 18th March 2022.c.It is hereby declared that the Defendant is entitled to the 94 acres comprised in Land Parcel No. NAROK/CIS-MARA/OLOLULUNGA/1143, having acquired the same from the late Somet Ole Tanyaaag, through sale agreements and, in the alternative, by adverse possession, and the legal representative of the estate of the late Somet Ole Tanyaaag to execute all necessary documents to effect transfer of the said 94 acres to the Defendant within ninety (90) days from the date hereof. In default the Deputy Registrar of the Court to execute the necessary documents.d.The Land Registrar, Narok County, shall facilitate the registration and transfer of the said 94 acres to the Defendant upon completion of the requisite survey, subdivision and mutation processes in accordance with the law.e.The Defendant’s claim for general damages arising from the interim orders is declined for want of strict proof.f.The Plaintiff shall bear the costs of the suit and the Counter-claim.It is so ordered. DATED, SIGNED AND DELIVERED THIS 29TH DAY OF JUNE 2026.L. GACHERUJUDGEDelivered online in the presence ofDIVISION -Elijah Meyoki - Court AssistantMr Okumu for the Plaintiff.Ms Martim holding brief for Mr Mitey for the Defendant.L. GACHERUJUDGE.